PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           03 February 1999                   
	DOCKET NUMBER:   AC98-11812
                                              AR1999015352

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Loren G. Harrell		Director	
	Ms. Juanita I. Williams		Analyst	

  The following members, a quorum, were present:

	Mr. Samuel A. Crumpler		Chairperson	
	Mr. Fred K. McCoy		Member	
	Mr. Mark D. Manning		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests reimbursement of $2,730.00 collected for an indebtedness related to his receipt of basic allowance for quarters (BAQ) at the “with dependents” rate.  He also requests reinstatement of BAQ at the “with dependents” rate.  

3.  The applicant states, in effect, that he was not afforded due process before the debt collection began and that the wrong regulation was used to establish the debt.  As background information, he states that in May 1996 he was reassigned on a permanent change of station from Fort Riley, Kansas, to Fort Rucker, Alabama, with his dependent son.  Because he was unable to find a residence, he decided to leave his dependent son with his natural mother.  He returned to Fort Rucker and during in-processing, informed finance personnel that his son did not travel the entire distance to Fort Rucker with him.  Later, the overpayment for his son’s travel was collected from his pay.  He states that he also asked and was granted permission to reside in single type family quarters for 6 months until he could find a place for him and his son to live.  

4.  The applicant continues, stating that he also inquired as to whether or not he could continue to receive BAQ at the “with dependents” rate ($390.00 per month) while residing in single-type government quarters (barracks), and was told to notify his chain of command, which he did.    

5.  He further states that the Defense Finance and Accounting Service (DFAS) has tried to make his situation into an issue of child support to prevent his entitlement to BAQ at the “with dependents” rate.  He insists that his situation is  not an issue of child support, as the court gave him legal custody and named him the “residential” parent of his son. 

6.  In support of his application he submits a copy of a court order of the District Court of Geary County, Kansas, dated 14 October 1993, which shows that he petitioned the court as the natural unwed father for joint custody of his son.  He was granted joint custody and was declared the “residential”  parent, with visitation rights given to his son’s mother.  

7.  He also submits copies of receipts signed by his son’s mother and a notarized statement from her, which indicates that she received monthly payments from him during the period June 1996 through January 1997 in the amounts stated on the receipts which varied from $270.00 to $455.00, and averaged $400.63 per month.    

8.  The applicant’s chain of command supports his application. 

9.  A record of electronic mail communications between officials at DFAS reveals differences of opinion as to the applicant’s entitlements.  In one such communication, an official at DFAS  stated “our argument [that the applicant was not entitled to BAQ at the with dependents rate] is weak when referencing the Department of Defense Financial Management Record (DODFMR).” 

10.  On 9 October 1997 an Associate Counsel, Military Law Division, Office of the General Counsel, DFAS, Indianapolis Center, responded to a request for reconsideration of its ruling in the applicant’s case from the Chief, Legal Assistance, Office of the Staff Judge Advocate, Fort Rucker.  In response to the legal assistance office argument that the applicant had “physical custody” of his child by virtue of the order naming him as a residential parent, the Associate Counsel replied as follows:  

	“As we stated in our previous opinion, we believe that the fact
that the child did not reside with SGT [applicant] during the 
period in question changes his status to that of a 
non-custodial parent.  It is incontroverted (sic) that SGT 
[applicant]’s separation from the child was not caused by 
the requirements of military service.  Rather, as you indicated 
in our recent telephone conversation, SGT [applicant] 
voluntarily requested assignment to the barracks.  Under 
similar circumstances, the Comptroller General has looked
beyond the face of the custody decree to determine the 
child’s actual residence based on the facts of the particular 
case.”   

11.  The Associate Counsel also stated in the same response that “we agree” that it is possible that a soldier can live in the barracks, have someone else have physical custody of his child, and still be entitled to BAQ at the with dependents rate, in accordance with the language in the DODFMR, Volume 7a, paragraph 260412, “but not in the case of SGT [applicant].”  The Associate Counsel then went on to quote paragraph 260416C of the DODFMR as providing that “a member who was assigned to single-type government quarters and entitled to BAQ soley on the basis of the member’s payment of child support on December 4, 1991, continues to be entitled to such BAQ at the with-dependents rate until the member becomes eligible for BAQ for a reason other than, or in addition to, the member’s payment of child support.”  The Associate Counsel then concluded that the language of paragraph 260412 merely recognized the existence of members whose entitlement was grandfathered under paragraph 260416C.  

12.  On 20 August 1998 the Total Army Personnel Command informed the DFAS that the applicant’s application for remission or cancellation of indebtedness (based upon hardship and injustice) was approved for $390.00 and since $2,730.00 of the indebtedness had already been collected prior to the commander’s signature on the application, it could not be considered for remission or cancellation.  The DFAS was informed that if the applicant felt an injustice had occurred surrounding the collected portion of the debt, he could make application to this Board for a further review.   

CONCLUSIONS:

1.  The applicant’s application for remission or cancellation of his indebtedness in the full amount of $3,120.00, based upon hardship and injustice, was approved by the Department, but only in the amount of $390.00.  

2.  It appears the only reason the remaining amount of the debt ($2,730.00) was not remitted/cancelled was because it had already been collected from the applicant’s pay when his application was approved.  

3.  With this in mind, the Board is predisposed to granting the applicant’s request for reimbursement of the amount collected and also finds no basis for not doing so under the facts and circumstances of this case.   

4.  The Board notes that the applicant, as the State of Kansas termed it, was declared the “residential parent” of his son, and his son lived with him.  As such, he was properly paid BAQ at the with dependents rate until June 1996 when he moved into the barracks with the approval of his chain of command.  

5.  The Board considers the above arrangement to have been temporary and notes that the applicant contributed the full amount of the BAQ at the with dependents rate to his son’s mother during the 6-month period in question.

6.  The Board notes that the applicant was straightforward and truthful in informing finance personnel that his son did not travel the full distance with him to Fort Rucker, travel for which he had received pay, which was properly, subsequently collected from him.  There is no reason then to believe that he knowingly sought to receive BAQ payments above and beyond the amount to which he was entitled, particularly since he gave the full amount of the BAQ received to his son’s mother for the care of his son.  

7.  As to the applicant’s request that BAQ at the with dependents rate be reinstated, the Board notes that the applicant was previously and properly paid BAQ at the with dependents rate, based upon a court order declaring him the “residential” parent and because his son did in fact reside with him.  Barring a current regulation, law or policy that prohibits such payment to the applicant, BAQ at the with dependents rate should be reinstated, retroactive to February 1997, when he moved out of the barracks, provided his son continued to live with him.      

8  The Board agrees with the applicant that his case is not an issue of child support.  

9.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing that the application for remission/cancellation of the indebtedness of the individual concerned was approved in the full amount of the indebtedness, i.e., $3,120.00, as an exception to policy; and that the amount already collected for the indebtedness ($2,730.00) be reimbursed to him.    

2.  That barring a current regulation, law or policy that prohibits payment of BAQ at the with dependents rate, such payment be reinstated to the individual concerned, retroactive to February 1997, conditioned upon proof that his minor son resided/resides with him and he is not occupying single-type government quarters.   

BOARD VOTE:  

____X____  ____X____  ____X____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON

INDEX

CASE ID	AC98-11812	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	1999.02.03	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	295	
2.		
3.		
4.		
5.		
6.