IN THE CASE OF: BOARD DATE: 29 October 2015 DOCKET NUMBER: AR20140013789 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, in effect, that her records be corrected to show that she elected to receive her Basic Allowance for Housing (BAH) at the “with- dependents” rate effective 10 March 2004. 2. The applicant states, in effect, that she and her spouse are dual military officers serving in the Active Guard Reserve (AGR) program of the Arkansas Army National Guard (ARARNG) who were married on 10 March 2004. She goes on to state that at the time of their marriage, her spouse was paying child support for 4 children and he was informed at the time by the personnel noncommissioned officer (NCO) that because he was paying child support he had to claim BAH at the with-dependents rate. She continues by stating that she had a child on 24 March 2005 and in April 2005, she inquired as to her being able to claim BAH at the “with-dependents” rate because she was and always has been the higher ranking of the two and was again told that her husband, who was a lieutenant, had to claim the BAH at the “with-dependents” rate because of his paying child support. She also states that she and her spouse attempted on two occasions to change their BAH elections and were told on both occasions that they could not do so because of her spouse having to pay child support. However, in August 2013, the ARARNG directed a recertification of BAH and at that time the personnel NCO inquired as to why she was drawing BAH at the without dependents rate when she was always the higher ranking member and went on to inform her that she could have always drawn BAH at the “with-dependents” rate. She further states that she has attempted to correct the error made based on misinformation she and her spouse received since 2004 and no one seems to want to correct the error and pay her and her spouse what they were entitled to receive but were denied based on incorrect information. 3. The applicant provides a three-page letter explaining her application, copies of emails, an advisory opinion from the National Guard Bureau (NGB), a sworn statement from the applicant, her marriage license, birth certificate of her child, promotion orders for her and her spouse, and her estimate of what is owed her. CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant was serving as an AGR major in the ARARNG receiving BAH at the no dependents rate when she married her spouse, a second lieutenant serving in the ARARNG AGR program. Her spouse was divorced with four children (paying child support) and was receiving BAH at the “with-dependents” rate when they married on 10 March 2004. The applicant had a child by her spouse on 24 March 2005. 3. On 11 April 2014, the NGB provided an advisory opinion to the Board recommending approval of the applicant’s BAH from the “without-dependents” to the “with-dependents” rate for the period 10 March 2004 to 18 August 2013. 4. On 20 November 2014, the Office of the Deputy Chief of Staff, G-1 provided the Board with an advisory opinion which opines, in effect, that there was no evidence to show that the applicant or her spouse had submitted DA Form 5960s (Authorization to Start/Stop/Change Basic Allowance for Quarters (BAQ) and or Variable Housing Allowance (VHA). Officials at that office also opine that the Comptroller General has consistently upheld that the government is not liable for incorrect information provided by its officers, agents or employees. Accordingly, there was no basis for granting full administrative relief. 5. The advisory opinion was provided to the applicant who responds with a one-page letter stating, in effect, that there are no DA Form 5960s on file because they were not allowed to submit for a change because they were told that they were not authorized to change their BAH election; however, they attempted twice to make such a change. She also states that she and her spouse did not know that they were being misinformed until 2013 and have attempted to make right the wrong that was done to them since that time. 6. The applicant was honorably retired by reasons of sufficient service for retirement on 31 July 2014. Her spouse, who is currently serving in the rank of major is still serving on active duty in the AGR program. 7. A review of the applicant’s spouse’s records shows he attempted in December 2008 to change his BAH rate while serving in the rank of captain. He again changed his election on 20 August 2014. 8. The Joint Federal Travel Regulation (JFTR), paragraph 10204A, states “When one or both members are authorized housing allowances for a child(ren), from a previous relationship…and the members marry and are stationed in the same area, all children…of either member are one (or the same) class of dependents. Therefore, only one housing allowance at the with-dependents rate is payable. Any child(ren) born of their marriage, or adopted by them, is within the same class of dependents for housing allowance purposes. However, if the member elects to stop receiving a housing allowance at the 'with-dependents' rate then the other member may claim the children for housing allowance purposes.” DISCUSSION AND CONCLUSIONS: 1. The applicant’s contention that her records should be corrected to show that she was receiving BAH at the “with-dependents” rate effective 10 March 2004 has been noted and appears to have merit. 2. Notwithstanding the advisory opinion from the Office of the Deputy Chief of Staff, G-1 which opines that the applicant’s request should be denied because there are no DA Form 5960s on file to show that she and her spouse attempted to make the change, the applicant’s explanation that there are no DA Form 5960s on file because they were incorrectly informed that such a change could not be made is reasonable and believable. Additionally, to deny on the basis that the Government cannot be held liable for the errors of its agents is to deny the very reason for this Board’s existence. 3. It is inconceivable that the applicant and her spouse would choose to receive BAH at a second lieutenant rate vice a major’s rate unless they were informed, albeit incorrectly, that it was the only option available to them. This error appears to have been compounded throughout the years because the applicant always outranked her spouse. Additionally, 1 year after their marriage, she had a child which would further reinforce her argument that she should have been receiving BAH at the “with-dependents” rate. 4. Therefore, as a matter of equity, the applicant’s records should be corrected to show that effective 10 March 2004, the applicant elected to receive BAH at the “with-dependents” rate until her retirement on 31 July 2014, with entitlement to all additional pay that flows from that change. Applicant and her husband who jointly submitted documents seeking this correction are advised that his pay may be temporarily impacted to account for what becomes BAH overpayments to him by virtue of this correction. BOARD VOTE: ___x____ ___x____ ___x____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing that effective 10 March 2004, the applicant elected to receive BAH at the with-dependents rate until her retirement on 31 July 2014, with entitlement to all additional BAH that flows from that change. _______ _ 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) AR20140013789 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20140013789 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1