BOARD DATE: 31 January 2017 DOCKET NUMBER: AR20150014589 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X____ ___X_____ ____X___ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 31 January 2017 DOCKET NUMBER: AR20150014589 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. _____________X____________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. BOARD DATE: 31 January 2017 DOCKET NUMBER: AR20150014589 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests a waiver/remission of her indebtedness to the Department of Defense (DOD) in the amount of $11,331.61. 2. The applicant states: a.  She is being held liable for $11,331.61 based on overpayment of basic allowance for housing (BAH) while she was assigned in Korea during the period 9 April 2012 through 25 June 2013. b.  She was unaware she was being overpaid BAH. She believed she was entitled to the pay due to the fact that her family stateside at Fort Riley, KS, in the same living conditions while she was in Korea. Her paperwork was signed by a finance officer when she arrived in Korea. She received the pay for over a year. c.  She should not be held accountable for the possible mistake. She is no longer serving on active duty and she is not earning the same income so she cannot afford to pay the debt. 3. The applicant provides: * self-authored statement * DD Form 2789 (Waiver/Remission of Indebtedness Application) * Headquarters, U.S. Army Garrison, Fort Riley, KS, Orders 033-218, dated 2 February 2012 * Headquarters, U.S. Army Garrison, Fort Riley, KS, Orders 053-208, dated 22 February 2012 * DD Form 214 (Certificate of Release or Discharge from Active Duty) * marriage license * son's birth certificate * DOD Civilian Leave and Earnings Statement (LES) * Defense Finance and Accounting Service (DFAS) letter, undated CONSIDERATION OF EVIDENCE: 1. The applicant married A____ R____ P____ on 12 November 2008. 2. On 26 July 2007, she enlisted in the Regular Army. 3. On 28 July 2009, she gave birth to a son. 4. Headquarters, U.S. Army Garrison, Fort Riley, KS, Orders 033-218, dated 2 February 2012, ordered her permanent change of station reassignment from Fort Riley, KS, to Korea with a reporting date of 10 April 2012. 5. Her DA Form 93 (Record of Emergency Data), dated 10 April 2012, shows she had a son and she was married to A____ R____ P____, who was also an active duty Soldier stationed at Fort Riley, KS, with a mailing address in Ogden, KS. 6. Her DA Form 93, dated 9 May 2013, shows she had a son and she was still married to an active duty Soldier stationed at Fort Riley, KS, with a mailing address in Ogden, KS. 7. Installation Management Command-Pacific, Unit 15742, U.S. Army Garrison Humphreys Transition Center, Orders 135-0002, dated 15 May 2013, reassigned her to the 7215th Medial Support Unit, Aurora, CO, for transition processing and release from active duty effective 25 July 2013. 8. Installation Management Command-Pacific, Unit 15742, U.S. Army Garrison Humphreys Transition Center, Orders 176-0005, dated 25 June 2013, amended Orders 135-0002 by reassigning her to the 3247th U.S. Army Hospital, Fort Bragg, NC, in lieu of the 7215th Medial Support Unit, Aurora, CO. 9. On 25 July 2013, she was honorably released from active duty. 10. On 8 September 2016, the Chief, Compensation and Entitlements Division, Department of the Army Office of the Deputy Chief of Staff, G-1, provided an advisory opinion in which he recommends denial of the applicant's request. He stated DFAS found she received BAH at the with-dependent rate without authority. Although she had a child born of her marriage, it appears the child is her husband's dependent. This is evidenced by the fact she was receiving a housing allowance at the without-dependent rate while assigned to Fort Riley, KS. For housing allowance purposes, she was considered a member without a dependent. Therefore, upon her reassignment to Korea and being assigned to the barracks, she was only entitled to receive the barracks rate housing allowance, or BAH-Partial. 11. On 9 September 2016, a copy of the advisory opinion was provided to the applicant for review and for an opportunity to provide a response. 12. On 6 October 2016, she provided a response in which she stated: a.  She disagrees with the advisory opinion. She was an active duty Soldier for 6 years and received BAH for 4 years. b.  She arrived in Korea in April 2012 and she completed her financial paperwork as instructed. She indicated she was married to an active duty member and they had one child, both living at Fort Riley, KS. She was not paid anything except her base pay for her first month of assignment. She resubmitted her paperwork using the same information and she started receiving her pay the following pay period as she presumed she was entitled. c.  She spoke with her leadership about her pay and she was advised the information was in fact correct. She had never been stationed overseas nor did she receive extensive training on exactly how much she was entitled to receive being away from her spouse and child at the time. d.  She has submitted countless paperwork showing permanent change of station moves, deployments, as well as her child's living conditions being changed, all within approximately 1 year of completing her active duty contract. e.  She is no longer serving active duty and she was not informed of this extensive debt until almost 1 year after her discharge. She feels her service in the Army was discredited and unappreciated by holding her solely responsible for the large debt for a mistake that numerous people seemed to have made or overlooked. 13. The applicant submitted a DD Form 2789 with her application to the Army Board for Correction of Military Records (ABCMR). She indicated the documentation for the BAH in question by the finance officer at the time is next to impossible to retrieve. There is no evidence she submitted the form to DFAS in accordance with the instructions in the form and regulatory guidance. REFERENCES: 1. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 2. The official website of the Defense Travel Management Office defines BAH as a U.S. based allowance prescribed by geographic duty location, pay grade, and dependency status. It provides Uniformed Service members equitable housing compensation based on housing costs in local civilian housing markets within the United States when government quarters are not provided. A Uniformed Service member stationed outside the United States, including U.S. territories and possessions, who is not furnished government housing is eligible for overseas housing allowance. 3. There are several types of BAH. These include BAH with or without dependents and BAH-differential (DIFF). a.  BAH with or without dependents is paid to a member with a permanent duty within the 50 United States who is not furnished government housing and is eligible for BAH based on the member's dependency status at the permanent duty zip code. b.  BAH-DIFF is the housing allowance amount for a member who is assigned to single-type quarters and who is authorized BAH solely by reason of the member's payment of child support. A member is not entitled to BAH-DIFF if the monthly rate of that child support is less than the BAH-DIFF. c.  Partial BAH is authorized for members who are living in government quarters and without dependents. 4. Army Regulation 600-4 (Remission or Cancellation of Indebtedness) provides instructions for submitting and processing applications for remission or cancellation of indebtedness to the U.S. Army. Applications must be based on injustice, hardship, or both. The regulation states, in part, that a Soldier's debts to the U.S. Army may be remitted or canceled in cases arising from payments made in error to a Soldier, payments made in excess of an allowance on behalf of a Soldier, debts incurred while serving on active duty as a Soldier, and debts acknowledged as valid. a.  Paragraph 1-10 states the commander is responsible for helping the Soldier to resolve personal debts, including errors in pay. The monthly review of the unit commander's finance report will highlight possible erroneous payments. In addition, the battalion personnel administration center, servicing personnel service battalion, and field office DFAS accounting officer will help commanders to resolve indebtedness caused by administrative transactions. It is incumbent upon the aforementioned personnel involved in identifying indebtedness and processing requests for remission to expedite the process to minimize possible out-of-service debt. b.  Paragraph 1-10 further states Soldiers must make sure their financial accounts are correct. They must review their monthly LESs and report errors or discrepancies to the command and field office DFAS finance officer. The most common areas for errors in the LES are leave balances and receipt of BAH, variable housing allowance, or cost of living allowance at the "with dependents" rate when it should be at the "without dependents" rate. c.  Paragraph 1-12 provides that in determining injustice or hardship, the following factors will be considered: the Soldier's awareness of policy and procedures; past or present military occupational specialty, rank, years of service, and prior experience; the Soldier's monthly income and expenses; and the Soldier's contribution to the indebtedness to the U.S. Army by not having the situation corrected. d.  Paragraph 1-13 provides additional factors for consideration in determining injustice. It states the application must contain evidence that the applicant did not know and could not have known of the error or the applicant inquired of a proper authority and he/she was told the payment was correct. e.  Paragraph 1-14 provides additional factors for consideration in determining hardship. Repayment will cause hardship because of excessive monthly expenses due to: (1) living in a high cost area, (2) living apart from family members because of military orders, (3) number and age of family members, (4) medical and dental bills that cannot be reimbursed, and/or (5) other unusual expenses. Expenses caused by living standards that are too high or by mishandling of funds are not a basis for a hardship case. f.  A Soldier may apply to the ABCMR under the provisions of Army Regulation 15-185 if circumstances prevented consideration of all or portion of the debt for remission or cancellation of indebtedness. DISCUSSION: 1. The applicant submitted a DD Form 2789 with her application to the ABCMR. There is no evidence she submitted the form to DFAS in accordance with the instructions in the form and regulatory guidance. 2. She contends she was not aware she was receiving the incorrect amount of BAH and she should not be held accountable for the overpayment. 3. The evidence of record shows she was and still is married to another active duty Soldier and her husband claims their son as his dependent. Although both Soldiers are entitled to BAH, only one Soldier can be paid at the BAH with dependent rate. 4. She was assessed the debt as a result of overpayment of her BAH entitlement and she has not shown DFAS incorrectly calculated this debt. 5. She contends her commander incorrectly advised her and local finance personnel may have been negligent in processing her entitlements. Army Regulation 600-4 allows for waiver or remission under such circumstances; however, she provided no statements from proper authorities stating she was incorrectly advised of her entitlement to BAH at the with dependent rate. 6. By regulation, the member must provide clear and convincing evidence of injustice or hardship to support approval of an application for cancellation or remission of indebtedness. Further, by law and regulation, no one is entitled to unearned compensation, and only in very unusual circumstances would equity and good conscience suggest that an individual should keep an overpayment. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150014589 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150014589 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2