BOARD DATE: 19 December 2017 DOCKET NUMBER: AR20170000415 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: 19 December 2017 DOCKET NUMBER: AR20170000415 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: 19 December 2017 DOCKET NUMBER: AR20170000415 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 correction of his military records to show his debt to the U.S. Government was remitted or cancelled. 2. The applicant states he does not believe he received any money that he was not entitled to receive. He argues that he did his due diligence in making certain his records and personnel information were up to date and reflected the current status of his dependents and financial support requirements. 3. The applicant provides: * Divorce Decree from the State of Hawaii filed on 22 December 2009 (5 pages) * Certificate of Marriage Registration from the New York Department of Health, dated 12 February 2010 * Certificate of Death from the Commonwealth of Massachusetts, issued on 11 May 2012 * Certificate of Marriage Registration from the New York Department of Health, dated 8 October 2013 * DA Form 5960 (Authorization to Start, Stop, or Change Basic Allowance for Quarters and/or Variable Housing Allowance), dated 14 September 2015 * Email from the Defense Finance and Accounting Service (DFAS) to the applicant, dated 4 January 2016 * Memorandum for Commander, from the Fort Campbell Defense Military Pay Office (DMPO), subject: Outstanding Debt for Overpayment of Basic Allowance for Housing (BAH), dated 7 January 2016 * DFAS Form 702 (DFAS Military Leave and Earnings Statement (LES)) for the month of February 2016 * Memorandum for Commander, from DFAS, DMPO, subject: Outstanding Debt for Overpayment of BAH, dated 3 March 2016 * Email from the 2d Brigade Combat Team S-1 (Personnel Office) to the applicant, dated 24 March 2016 * Memorandum for Record, subject: Assumption of Command Orders, dated 30 March 2016 * DA Form 3508 (Application for Remission or Cancellation of Indebtedness) with two support memoranda (8 pages) * DA Form 2823 (Sworn Statement) from the applicant, dated 1 April 2016 * Memorandum for Commander, subject: Legal Review of Request for Remission/Forgiveness of Debt for the Applicant, dated 4 April 2016 (3 pages) * DA Form 139 (Pay Adjustment Authorization), dated 12 April 2016 (2 pages) * Memorandum from the U.S. Army Human Resources Command (HRC), subject: Remission or Cancellation of Indebtedness, dated 19 April 2016 CONSIDERATION OF EVIDENCE: 1. On 6 October 1999, the applicant enlisted in the Regular Army and he was trained as a legal specialist. He was advanced/promoted through the ranks attaining the rank/pay grade of sergeant/E-5 in 2005, staff sergeant/E-6 in 2007, and sergeant first class/E-7 in 2010. 2. The applicant has provided a copy of a divorce decree from the State of Hawaii showing he was divorced from his spouse effective 22 December 2009. This document shows he and his former spouse were awarded joint custody of one child, who was to reside with the applicant’s former spouse. Neither party were required to pay the other alimony. The applicant was required to pay child support beginning on 1 November 2009 in the amount of $740 per month until the child reached age 18 on 11 March 2025. 3. The applicant provides his marriage certificate showing, on 12 February 2010, he was remarried in New York. 4. The applicant provides a Certificate of Death showing this spouse died on 6 May 2012. 5. The applicant provides a copy of his marriage certificate showing he again remarried on 8 October 2013 in New York. 6. The applicant provides a DA Form 5960, dated 14 September 2015, wherein he recertified his authorization for a housing allowance, effective 9 September 2015. He listed his duty station as Fort Campbell, Kentucky. He indicated authorization for basic allowance for quarters without dependents. He indicated he was married with dependent children. He listed two dependent daughters and three dependent sons, four of whom were residing in Tennessee; and one was residing in North Carolina. 7. The applicant provided an email from DFAS, Fort Campbell, Kentucky, dated 4 January 2016, informing both the applicant his spouse, who also is an active duty Soldier, the Army Audit Agency had identified a discrepancy with their BAH and they needed to come to the DMPO no later than 8 January 2016 with supporting documentation for the BAH entitlement. The email listed the appropriate documents to bring and provided a phone number to be used for making an appointment. 8. A memorandum, dated 7 January 2016, from the DFAS DMPO to the applicant’s commander, shows the applicant’s commander was informed of the applicant’s overpayment of BAH for the period from 10 September to 31 December 2015 in the amount of $1,400. The commander was requested to contact the applicant and determine what action should be taken to satisfy the debt. 9. A DFAS Form 702 for the month of February 2016 shows a deduction was taken from the applicant’s pay in the amount of $1,400 for a debt and $15 for a miscellaneous debt. 10. In a memorandum, dated 3 March 2016, DFAS DMPO informed the applicant’s commander of the applicant’s overpayment of BAH in the amount of $15,772.90 for the period 31 December 2010 to 29 February 2016. The commander was requested to contact the applicant and to determine what action to take to satisfy the debt. 11. The applicant also signed a Voluntary Repayment Agreement wherein he indicated he was filing an application for remission or cancellation of indebtedness. This form does not contain his commander’s recommendation or signature. 12. The applicant has provided a DA Form 3508 signed by him and his spouse and dated 30 March 2016, wherein it is requested that a debt in the amount of $15,772.90 be remitted or cancelled on the basis of injustice. This form indicates a representative from DFAS suspended collection of this debt on 13 April 2016. 13. In a memorandum for HRC, dated 31 March 2016, the applicant’s company commander recommended approval of the applicant’s request for remission or cancellation of indebtedness, due to overpayment of BAH. 14. On 1 April 2016, the applicant made a sworn statement wherein he said: a. On 24 March 2016, he received notice of an outstanding debt for overpayment of BAH between 31 December 2010 and 29 February 2016. While the memorandum from finance is dated 3 March 2016, it was erroneously sent to the wrong unit. The memorandum was emailed to him on 24 March 2016 with a 3 April 2016 suspense to respond. On 31 March, he was granted a verbal extension until 15 April; however, on 2 April 2016, he was departing for Fort Polk, Louisiana to participate in “JRTC rotation 16-06.” Therefore, he had been afforded very little time to collect documentation to support his statement. He had not been informed of the exact basis for the alleged overpayment of BAH, but believed there had been a mistake calculating this alleged indebtedness. Below, he explains why he was entitled to all the BAH payments he received during the period 31 December 2010 to 9 September 2015. He admitted he was over paid BAH between 10 September and 31 December 2015, through no fault of his own, and had already repaid that debt. b. During the period 31 December 2010 through May 2012, he was married to another service member. During this time they had four children, three were her dependents and one was his dependent. At the time of their marriage in February 2010, all marriage certificates and documents reflecting their change in status were submitted to the servicing S1. At that time, as the senior member of the marriage, he maintained his ''with dependent" BAH rate. His spouse changed her BAH rate to “without dependent," based on her being married to the applicant and them living together. In November 2010, he moved into on-post housing and the entirety of his BAH was directed to Fort Drum Community Housing. In October 2011, his spouse separated from the Army and no longer drew military pay or allowances. In May 2012, his spouse died. Again, all proper paperwork and documents were provided to his S1, reflecting he was no longer married and was not responsible for her dependents, who had returned to other parents or family members. c. On the advice of his first sergeant (1SG), he remained in on-post housing after the death of his wife until his deployment in January 2013. He continued to be entitled to housing and received BAH at the “with dependents" rate because his son's mother had also separated from the Army and he began claiming his son as a dependent. d. In October 2013, he married another service member who maintained a separate household at Fort Campbell, Kentucky, with her children as her dependents, while he maintained his house in Watertown, New York, with his dependent son. e. In July, 2015, he made a permanent change of station (PCS) move from Fort Drum to Fort Campbell, reporting in September 2015. During his out-processing from Fort Drum and in-processing at Fort Campbell, he completed a DA 5960 to change his BAH to the "without dependent" rate to reflect that he was collocated with his spouse who was drawing the “with dependent" rate to support their family who were now all living together. f. On 4 January 2016, he received an email stating the Army Audit Agency had identified a discrepancy in both his wife's and his BAH. They reported, as requested, to the finance office, where they again provided all previous marriage, divorce, death, and other supporting documents. This is when he realized his DA Form 5960 had not been received and he repaid BAH overpayment he had received between September 2015 and January 2016. g. At no time between 2010 and 2016 did he receive notification informing him that he was receiving an unauthorized allowance. He also went through numerous reviews of his personnel and finance records with his S1 without identifying any problems. All money received during the time in question was used entirely for housing and care of his dependents, as it was intended. All birth, marriage, divorce, and death documents were submitted in a timely manner to reflect the status changes. At no time did he misrepresent himself or his current status in an effort to receive unauthorized entitlements, nor did he believe at any time that he actually received any pay he was not entitled, except for the BAH he had already repaid for the period September 2015 to January 2016, which was due to a processing error. 15. In a memorandum, dated 4 April 2016, the applicant’s brigade commander endorsed and recommended approval of the applicant’s request for a complete remission or cancellation of his debt as being in the best interest of the U.S. Government. 16. In a memorandum dated 4 April 2016, the Brigade Judge Advocate (BJA), 101st Airborne Division, Fort Campbell, provided a legal review of the applicant’s request for remission/cancellation of debt to the Commander, 1st Brigade Combat Team, wherein counsel provided the facts of the case, references and rules, and his analysis of the issue. The BJA also stated that final approval/ disapproval of the applicant’s request lies within the discretion of the Commanding General, HRC. a. The facts: * applicant was notified of a debt to the government in the amount of $15,772.90, on 24 March 2016 * debt was incurred between 31 December 2010 and 29 February 2016 * applicant contends he was entitled to all payments and allowances he received between 31 December 2010 and 9 September 2015 * applicant admits to receiving BAH overpayment due to a processing error for period beginning on 10 September 2015 which he repaid in February 2016 * applicant contends he was entitled to BAH with dependents while his spouse had her BAH changed to without dependents * applicant moved into on-post housing at Fort Drum in November 2010 and his BAH was directed to Fort Drum community Housing * in October 2011, the applicant’s spouse separated from the Army and no longer received military pay and allowances * in May 2012, the applicant’s spouse died * after May 2012, the applicant no longer claimed his deceased spouses children as his dependents * in October 2013, the applicant remarried a Soldier who was stationed at Fort Campbell, while he was stationed at Fort Drum with his son * in July 2015, the applicant PCS’d to Fort Campbell, arriving in September 2015, and he submitted a DA Form 5960 changing his BAH to “without dependents” to reflect he was living with his spouse and their children * on 4 January 2016, the applicant was notified by email from the Army Audit Agency of a discrepancy in his BAH due to the incorrect processing of his DA Form 5960 * In March 2016, the applicant was notified of the current amount of indebtedness b. Rules: The BJA notes the following was extracted from Army Regulation (AR) 600-4 (Remission or Cancellation of Indebtedness): * objectives of remission or cancellation of debt are to remit or cancel debts to the U.S. Army that are considered unjust and/or to end hardship or undue suffering * pertinent instances to this case are payments made to the Soldier while on active duty that were in error or in excess of an allowance * the criteria listed as prohibiting remission or cancellation of debt do not apply in this case based on the evidence * approval factors include cancellation as in the best interest of the Army; would adversely affect Soldier’s ability to provide for family; Soldier’s application is confirmed; Soldier was not at fault; Soldier could not have prevented the debt; and the Soldier attempted to correct the error * disapproval factors include cancellation as not in the best interest of the Army; would not adversely affect Soldier’s ability to provide for family; Soldier’s application is not confirmed; Soldier was at fault; Soldier could have prevented the debt; and the Soldier did not attempt to correct the error c. Analysis: The BJA writes the applicant maintains that he did not receive any pay he was not entitled to (with the exception of the payments made between 10 September and 31 December 2015, which he has demonstrated repayment). The applicant has not had any previous opportunity to challenge this notice of indebtedness because he has not been provided notice of the specific calculations made in determining the amount of indebtedness allegedly incurred over a 6-year period. Without knowing how the $15,772.90 debt has been calculated, it is impossible to determine whether or not an error has been made. Nevertheless, even assuming the debt is legitimate, it would be unjust to require the applicant to repay a debt incurred through no fault of his own over a 6-year period. The applicant has served honorably for 18 years and plans to continue his service in the U.S. Army. Under the circumstances, granting his request would be in the best interests of the U.S. Army. 17. A DD Form 139 (Pay Adjustment Authorization), dated 12 April 2016, from the Fort Campbell DMPO to DFAS-Indianapolis, states the applicant had received BAH at the “with dependent rate” during the specific periods listed, when he was only authorized the “without dependent rate.” The debt was listed for each period as the difference between the two BAH rates for specified dates, the number of days, and rate per day. The debt totaled $15,772.90 for overpayment during 1,369 days between 12 February 2010 and 8 September 2015. 18. In a memorandum, dated 19 April 2016, the Chief, Operations Management Division, HRC, notified the Deputy Director, DMPO, Fort Campbell, that the applicant’s request for remission or cancellation of the subject debt had been reviewed and was disapproved. The review determined that no grounds existed to remit or cancel the debt based on hardship and/or injustice. The memorandum advised the applicant he could apply to the ABCMR if he felt an injustice occurred. 19. In the processing of this case, an advisory opinion was obtained from the Chief, Compensation and Entitlements Division, Office of the Deputy Chief of Staff, G-1 (Personnel Officer), Department of the Army, wherein, this official stated: a. Based on a careful review of the facts surrounding the applicant’s situation, the advisory opinion supported the HRC decision to deny the applicant’s request to remit or cancel his debt. b. The advisory opinion noted the applicant reported his dependency status changes to his supporting finance office when he was married; however, he failed to properly notify his servicing finance office of his divorce and changes in dependency status. This resulted in the BAH overpayments. Accordingly, the HRC decision to deny relief was fair and equitable. c. According to the applicant’s divorce decree, he was ordered to pay child support. Because the applicant was divorced and the wife was awarded legal and physical custody of their son, the Joint Travel Regulation requires that he recertify his eligibility to receive a with dependent housing allowance and provide proof that he was paying child support in at least the BAH differential amount for his pay grade. 20. On 20 June 2017, a copy of the advisory opinion was sent to the applicant for his information and opportunity to respond. He did so in a memorandum dated 7 July 2017, wherein he stated: a. In response to his failure to report his dependency changes when he was divorced, he argued that his divorce was final on 22 December 2009 and he remarried on 12 February 2010. He was on post-deployment/PCS leave from 23 November 2009 until early February 2010 when he reported into Fort Drum. While reporting and completing his finance and personnel processing, he made them aware of his changes in status and was told to wait due to his plans to get remarried. He then completed the change following remarriage. Therefore, he believes not reporting these changes for a period 1 ½ months while he was on leave should not be considered grounds for denial of his request. b. In reference to the second paragraph in the advisory opinion, the applicant provides pay charts for the years 2009, 2010, and 2017, and his LES for June 2017. He argues that these documents and his divorce decree show he has been paying $740 monthly in child support since his divorce which is greater than the differential amount for his pay grade. c. The applicant believes he has shown how he repeatedly took steps to ensure his records and finances were always in order. He argues that he did not receive BAH while living on-post because it all went to the housing office. Had he filed for BAH, he would have been entitled to the full amount. d. The pay charts for the years 2008, 2009, and 2017, as provided by the applicant, show BAH differentials of $267, 276, and 316.80 for the respective years. The LES for June 2017, indicates a discretionary allotment in the amount of $740, but details are not available showing to whom the money is going, or its intended purpose. REFERENCES: AR 600-4 outlines the policies and guidance for remission or cancellation of indebtedness to the U.S. Army. It allows all Active Army Soldiers and those in the Active Guard/Reserve Program to submit an application for remission or cancellation of indebtedness to the U.S. Army. Guidance is included on the submission and processing of applications for remission or cancellation of indebtedness to the U.S. Army. a. This regulation provides that 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. The Battalion S–1 (BN S–1), Brigade Combat Team/Brigade S–1 (BCT/BDE S–1), and the DFAS Accounting Officer/Finance and Accounting Officer (DAO/FAO) will help commanders resolve indebtedness caused by administrative actions. It is incumbent upon commanders, BN S–1s, BCT/ BDE S–1s, and DAO/FAOs involved in identifying indebtedness and processing requests for remission to expedite the process to minimize possible out-of-service debt. b. Soldiers must make sure their financial accounts are correct. They must review their monthly LES and report errors or discrepancies to the commander and the DAO/FAO. One of the most common areas for errors in the LES is receipt of BAH at the “with dependents” rate when it should be at the “without dependents” rate, or vice versa. c. This regulation gives 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. This includes debt caused by errors in pay to or on behalf of a Soldier. d. HRC, following the standards in this regulation, determines injustice, or hardship on the basis of the information received. The following factors will be considered: * the Army’s policy in the area of indebtedness to the U.S. Army (for example, BAH * the Soldier’s awareness of policy and procedures * past or present military occupational specialty (MOS), rank, years of service, and prior experience are taken into consideration * the Soldier’s monthly income and expenses * the Soldier’s contribution to the indebtedness to the U.S. Army by not having the situation corrected * additional income or assets such as a spouse’s salary, savings account, and bonds e. Additional factors for consideration in determining injustice: * the application must contain evidence that the applicant did not know, and could not have known, of the error * the applicant inquired of a proper authority and was told that the payment was correct f. Additional factors for consideration in determining hardship: * repayment would cause hardship because of excessive monthly cost of living expenses, size of family, non-reimbursable medical and dental bills, and other unusual expenses * expenses caused by living standards that are too high or by mishandling of funds are not a basis for a hardship DISCUSSION: 1. The applicant contends his military records should be corrected by showing his debt to the U.S. Government was remitted or cancelled because he does not believe he received any money which he was not entitled. He argues that he did his due diligence in making certain his records and personnel information was up dated and reflected the current status of his dependents and financial support requirements. 2. He further contends his failure to timely report his dependency changes when he divorced was due to him being on leave and being instructed by personnel and finance to report his changes after he remarried. This caused a delay of 1 ½ months. However, this does not explain the 1,369 days between 12 February 2010 and 8 September 2015 for which he received excess BAH totaling $15,772.90. 3. Despite recommendations of approval by the applicant’s company and brigade commanders and a favorable legal review, HRC denied his request because no grounds existed to remit or cancel the debt based on hardship and/or injustice. 4. The G-1, Department of the Army, determined, based on a review of the applicant’s request and the decision by HRC, that he had not recertified his eligibility to receive a with dependent housing allowance and had not provided sufficient proof showing he had paid child support in at least the BAH differential amount for his pay grade. The applicant’s LES shows he has a discretionary allotment in the amount of $740 for June 2017. However, this evidence does not show who received the money, or for what purpose the money was allotted. Furthermore, there is no evidence of previous or subsequent allotment payments. Accordingly, the G-1 determined the HRC decision to deny the applicant’s request for relief was fair and equitable. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20170000415 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20170000415 11 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2