IN THE CASE OF: BOARD DATE: 12 January 2012 DOCKET NUMBER: AR20110013839 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 his current debt that resulted from overpayment of basic allowance for housing (BAH) be waived. 2. The applicant states during his assignment to Brooke Army Medical Center (BAMC), Fort Sam Houston, TX, he was demoted from sergeant (SGT)/E-5 to specialist (SPC)/E-4. He was also divorced from his wife. No one in his chain of command informed him about the barracks non-availability process required to continue to reside off post. His chain of command believed he was entitled to the BAH Diff (the difference between BAH at the "with dependent" rate and at the "without dependent" rate). However, he believes he was entitled to BAH at the full amount because he was under a lease and also paying child support. It wasn't until after he renewed his lease that the issue was raised. He communicated with finance officials at Fort Sam Houston, TX, and he was told the Joint federal Travel Regulation (JFTR) entitled individuals who resided off-post to BAH at the full rate while on a lease, command authorized, and dispersing child support. There was no communication between him and his chain of command to move back to the barracks. 3. The applicant provides: * Letter from Directorate of Debt and Claims Management, Defense Finance and Accounting Service (DFAS) * Account Statement * Letter from DFAS to his Member of Congress * Final Decree of Divorce * Residential Lease Contract, 2006, 2007, and 2008 * Hearing Request – Administrative Wage Garnishment * Consumer Debtor Financial Statement * Notice of Intent to Initiate Administrative Garnishment Proceedings * DA Form 3508 (Application for Remission or Cancellation of Indebtedness) * 2009 Marriage License * December 2007 Leave and Earnings Statement (LES) CONSIDERATION OF EVIDENCE: 1. The applicant's records show he married his spouse, Tixxxxx, on 7 April 1997. He enlisted in the Regular Army on 27 May 1997 and he held military occupational specialty 68W (Health Care Specialist). He served through multiple reenlistments and attained the rank/grade of SGT/E-5 on 1 January 2004. 2. His DD Forms 4 (Enlistment Contract), dated 9 February 2001, 2 April 2004, and 21 February 2006, show he was married to Tixxxxx and had two dependent children, NM (born 8 July 1995) and TA (born 29 October 1998). 3. He was assigned to BAMC, Fort Sam Houston, TX, on or about 17 September 2004, where he remained until his discharge in February 2010. 4. On 1 August 2006, he signed a lease for an apartment at 2xxx NE Lxxxi, San Antonio, TX, for the period 1 October 2006 to 31 October 2007. Only his name is listed on the lease. 5. His records show he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice that resulted in his reduction to SPC/E-4 on 11 April 2007. The NJP is not available for review with this case. 6. On 1 August 2007, he and a female, Lynxxxx De Vxxxxx signed a lease for a dwelling located at 9xx H Street, San Antonio, TX, for a period of 1 year, from 1 August 2007 to 31 July 2008. He would marry Lynxxxx De Vxxxxx on 9 May 2009. 7. On 24 August 2007, he and his spouse, Tixxxxx, were divorced. Their divorce decree listed the applicant's residence address as 9xx H Street, San Antonio, TX and Tixxxxx's residence address as 3xx FM xxx, Copperas Cove, TX. The divorce decree stipulated he would pay her monthly child support in the amount $748.26 per month, effective 1 June 2007. The divorce decree was filed in the court on 7 September 2007. 8. There is no indication in his records that shows he submitted the necessary form [DA Form 5960 (Authorization to Start, Stop, or Change Basic Allowance of Quarters and/or Variable Housing Allowance)]. Additionally, there is no indication in his records he was issued a Certificate of Non-Availability (CNA) authorizing him to reside off post. 9. His December 2007 LES shows he received the "with dependent" BAH rate in the amount of $954.70, based on zip code 78234. This LES also shows he paid child support in the amount of $748.26. 10. His pay records at DFAS show he received BAH at the with dependent rate as follows: * 2007 $954.70 * 2008 $1,058.70 * 2009 $1,138.70 11. On 9 April 2008, he and Lynxxxx De Vxxxxx signed a new lease for a different dwelling at 4xxx E. Hxxxxxx Street, San Antonio, TX, for a period from 15 July 2008 to 30 June 2009. 12. He and Lynxxxx De Vxxxxx were married on 9 May 2009. He was ultimately honorably discharged in the rank/grade of SPC/E-4 on 20 February 2010. He completed 12 years, 8 months, and 24 days of creditable active service. 13. On 26 July 2010, by letter, an official at the Directorate of Debt and Claims Management, DFAS, Indianapolis, IN, notified him that: * He was indebted to the U.S. Government the amount of $16,572.83 due to an overpayment of BAH from 7 September 2007 to 8 May 2009 * If not timely paid, the debt would increase due to interest, penalties, and administrative charges * If he were unable to pay, monthly installment payments would be arranged * If not paid, the debt would be reported to a collection agency and/or credit bureaus 14. It is unclear if the applicant responded to this notice, paid any installments, or communicated with DFAS at this stage. 15. On 9 March 2011, A Notice of Intent to Initiate Administrative Wage Garnishment Proceedings was sent to the applicant. The notice informed him that the U.S. Department of treasury continues to try to collect the debt he owes to the Department of Defense, now $21,738.64 and that he had failed to pay his debt in full or make arrangements to resolve the debt. He acknowledged receipt of the notice and indicated that he disputed the terms of the proposed garnishment and elected to request a hearing. With his response, he submitted a consumer debtor financial statement. 16. On 11 March 2011, he submitted a DA Form 3508 for remission or cancellation of the debt. He indicated he was married but his spouse did not reside with him. He based his application on hardship and injustice. 17. The response or disposition regarding his request is not available for review with this case. However, on 13 April 2011, by letter to his Member of Congress, an official at DFAS stated that: * The applicant's debt, originally $16,572.83 plus interest, resulted from overpayment of BAH; he was paid BAH at the "with dependents" rate from 7 September 2007 to 8 May 2008 * Since he changed marital status on that date, he was no longer authorized BAH payment at the full amount; he should contact his unit to request a certificate of non-availability (CNA) authorizing him to reside off post * The applicant was notified on 26 July 2010 of the debt and continued to receive billing statements, the last was on 10 November 2010 * He failed to establish a repayment agreement and his account was referred to a collection agency * If he felt there was an error, he could submit a DD Form 2774 for remission of the debt 18. The DFAS official website makes the following definitions: a. BAH is a U.S. based allowance prescribed by geographic duty location, pay grade, and dependency status. It provides military members equitable housing compensation based on housing costs in local civilian housing markets within the United States when government quarters are not provided. A member assigned to permanent duty within the 50 United States, who is not furnished government housing, is eligible for a BAH, based on the member's rank, dependency status, and permanent duty station ZIP Code. b. Although BAH distinguishes between with-dependent and without-dependent, the with-dependent compensation is based on comparable civilians using average family size. c. The BAH allowance of a member who is divorced and has children depends on whether or not the member has legal and physical custody of the children, pays child support, and/or lives in single-type government quarters. If the member has legal and physical custody of his/her children, then he/she is authorized BAH at the with-dependent rate if not assigned adequate family-type government quarters. If the former spouse has custody and the member is paying adequate child support (at least in an amount of the member's BAH-DIFF rate) the member is authorized BAH at the with-dependent rate if not in government quarters or BAH-DIFF if assigned single-type government quarters. d. BAH-DIFF is the housing allowance amount for a member who is assigned to single-type quarters and who is authorized a BAH solely by reason of the member's payment of child support. A member is not authorized BAH-DIFF if the monthly rate of that child support is less than the BAH-DIFF amount. The BAH-DIFF amounts, originally calculated in 1997, are updated annually based on changes in the Basic Pay tables (JFTR, paragraph U10008). e. Military members who don't have custody, and are paying child support, are not authorized to reside in the barracks and receive full-rate BAH. Instead, such members are paid an entitlement called BAH-DIFF, or BAH Differential. BAH-DIFF is the difference between the full married rate and full single rate of BAH RC/T, (which is a different allowance than BAH type I, the full-rate active duty housing allowance). In order to receive this allowance, however, the military member must or may have to prove (by support agreement or court order) that the amount of child support they provide equals or exceeds the amount of BAH-DIFF they are entitled to. If the amount of support is less than the BAH-DIFF entitlement, the member receives nothing. Single members who are authorized to reside off base at government expense who pay child support are entitled to the full, with-dependent rate housing allowance. f. BAH-DIFF rates are computed from the difference between the full-rate and single-rate for specific ranks, so it doesn't mean that one with more rank receives a greater BAH-DIFF amount. For example, an O-2 is entitled to a greater amount than is an O-3 or even an O-4. That's simply the way the amounts are calculated. This is the way that Congress phrased the law. g. BAH rates for San Antonio, TX, are as follows * 2007, E-4, With Dependents: $955.00; Without dependents: $689.00 and BAH-DIFF $200.00 * 2008, E-4, With Dependents: $1,059.00; Without Dependents: $794.00; and BAH-DIFF: $189.30 * 2009, E-4, With Dependents: $1,139.00; Without Dependents: $854.00; BAH-DIFF: $196.80 19. Army Regulation 420-1 (Army Facilities Management) addresses the management of Army facilities. Specifically, it describes the management of public work activities, housing, and other facilities operations and management, military construction program development and execution, master planning, utilities services and energy management, and fire and emergency services. Paragraph 3-18 (Eligibility, assignment, and termination of permanent party unaccompanied personnel housing defines the categories of permanent party unaccompanied housing. Paragraph 3-18(k) (Authority to live off post) states Garrison commanders may authorize single Soldiers in the grade of sergeant (E5) and below to reside off post under the following conditions: (1) when adequate housing is not available and military necessity is not a factor; (2) when the Soldier is pregnant, and (3) when the Soldier has purchased a home near the installation prior to notification of assignment to that installation. Personnel who are authorized to reside in the civilian community shall receive HS counseling on the Equal Opportunity in Off-post Housing Program before negotiating a rental or lease agreement for community housing. DISCUSSION AND CONCLUSIONS: 1. The applicant was assigned to Fort Sam Houston, TX, on or about 17 September 2004. His records show he was married to Tixxxxx at the time. It appears he was collecting BAH at the "with dependent rate." He was reduced to SPC/E-4 on 11 April 2007 and he and his spouse were divorced on 7 September 2007. However, there is no evidence he was issued a CNA to continue to reside off post or submitted appropriate forms to stop or change his BAH rate. 2. After his divorce, he was not authorized to reside off post. However, it appears he made a personal decision to do so on his own and he continued to do so despite not having a CNA. He knew or should have known not to take action with obtaining proper authorization. Yet, he continued to collect BAH at the "with dependent" rate until 8 May 2009. He and Lynxxxx were married on 9 May 2009. He was ultimately discharged from the Army on 20 February 2010. 3. Subsequent to his discharge, DFAS officials notified him that he was indebted to the U.S. Government for the amount of $16,572.83 due to an overpayment of BAH from 7 September 2007 to 8 May 2009. He was also advised that if not timely paid, his debt would increase due to interest, penalties, and administrative charges and that if he were unable to pay, monthly installment payments would be arranged. It appears that he failed to respond. 4. On 9 March 2011, he received a notice of intent to initiate administrative garnishment. His debt had increased to $21,738.64 and he had failed to pay his debt in full or make arrangements to resolve the debt. He acknowledged receipt of the notice and indicated that he disputed the terms of the proposed garnishment and elected to request a hearing. The disposition of this hearing is unknown. 5. During the contested period - 7 September 2007 to 8 May 2009 - the applicant was single and he did not have custody of his children. However, he was under a court order to pay child support. Military members who don't have custody, and are paying child support, are not authorized to reside in the barracks and receive full-rate BAH. Instead, such members are paid the BAH-DIFF. In order to receive this allowance, however, the military member must prove (by support agreement or court order) that the amount of child support they provide equals or exceeds the amount of BAH-DIFF they are entitled to. 6. During the 2007, 2008, and 2009 time frames, the BAH-DIFF rates for the applicant's grade were $200.00, $189.30, and $196.80 respectively. In each case, the BAH-DIFF was less than the court-ordered child support of $748.26 per month. Therefore, he was entitled to payment of BAH-DIFF during the contested period. 7. Although single members who are authorized to reside off base at government expense and who pay child support are entitled to the full, with-dependent rate housing allowance, the applicant in this case was not authorized to reside off post subsequent to his divorce in September 2007. He made a personal decision to do so on his own. He knew or should have known not to take action without obtaining proper authorization. 8. In view of the foregoing evidence, the applicant's pay records should be corrected to show he was entitled to the BAH-DIFF rate from 7 September 2007 to 8 May 2009. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ___X____ ___X ___ ____X___ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by paying him the BAH-DIFF rate from 7 September 2007 to 8 May 2009. 2. The Board further determined that the evidence presented was insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to cancellation or remission of his debt. ___________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. ABCMR Record of Proceedings (cont) AR20110013839 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20110013839 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1