BOARD DATE: 31 January 2017 DOCKET NUMBER: AR20150014229 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: AR20150014229 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: AR20150014229 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, cancellation of debt for overpayment of overseas housing allowance (OHA) for the period 18 November 2011 through 20 May 2012. 2. The applicant states, in effect: a. In 2010, he was stationed in Korea and, while there, married a Korean National. Because of his marriage, he became entitled to receive OHA, with Korea reflected as his permanent duty station (PDS). He started receiving OHA in January 2011. b. He reenlisted while still in Korea, on 28 October 2010, and elected the Army training reenlistment option so he could attend 91F (Small Arms and Artillery Repairer) school. In October 2011, he was reassigned to a new PDS (Fort Bliss, TX). Orders Number 294-1015, dated 21 October 2011, issued by IMCOM (Installation Management Command)-Pacific Region, Military Personnel Division, directed him to report with his acquired dependent in January 2012, but his projected attendance at 91F school was not addressed. His first sergeant (1SG) and commander directed him to go to Fort Lee, VA (location of the 91F school) in a temporary duty (TDY) status. He requested his orders be amended to reflect this change, but this did not happen. His 1SG told him to simply show the Fort Lee officials his school paperwork, and they would correct his orders. c. He left Korea in November 2011 for the U.S., and began the sign-in process at Fort Lee on 3 December 2011, which was over one month prior to his projected arrival at Fort Bliss. The sign-in process was interrupted when he was told, in order to complete the process, his existing orders needed amendment. He was given authorization to remain at Fort Lee by the school's retention sergeant major. This was followed by a month-long dispute between the Fort Lee and Korea retention offices as to who was responsible for correcting the orders. On 27 December 2011, he received an eMessage notifying him his reporting date to Fort Bliss had been revised to 20 May 2012. With this change, he was permitted to enter the Fort Lee school in January 2012. d. In February 2012, there were emails between Fort Lee and Korea regarding corrections to his orders to more accurately reflect his wife's location (changing her location from Uijeongbu [a city north of Seoul] to Songpagu [a district within Seoul]). In March 2012, he received an endorsement that changed his orders to authorize his wife to relocate from Songpagu to Fort Bliss. On 20 April 2012, he received Orders 111-1009, dated 20 April 2012, issued by IMCOM-Pacific Region, Military Personnel Division. These orders included his TDY to Fort Lee from 6 January 2012 to 17 April 2012, and showed his revised 20 May 2012 reporting date to Fort Bliss. The orders also stated he was not authorized to move either family members or household goods to Fort Lee. e. His wife came to the U.S. in April 2012, and they reported to Fort Bliss in May 2012. He again ran into problems when he arrived at Fort Bliss because, he was told, his orders needed further correction. He attempted to have the changes made, but, despite calls and emails, he never received a response from Korea. Finally, his commander at Fort Bliss made the necessary corrections to his orders so that he could sign in. f. He asserts he was entitled to receive OHA based on his Korea PDS while he was on TDY, and through his arrival for duty at Fort Bliss. Promptly after his arrival at Fort Bliss, he went to his supporting Finance office to convert from OHA to Basic Allowance for Housing (BAH). Based on this, Finance started his BAH, but he also continued to receive OHA. He went to his Finance office to fix this, but it took 3 months for the finance system to respond. He stopped receiving OHA in or around July 2012. g. He readily acknowledges he was overpaid 3 months of OHA (May to July 2012), and that he owes this back to the Army, but the Army apparently concluded he was overpaid OHA starting in November 2011. The total amount the Army said he owed was $23,705. The Defense Finance and Accounting Service (DFAS) already took $5,000 from his pay, and applied it toward reducing this alleged overpayment. h. On 23 July 2012, his commander provided a memorandum confirming the applicant was TDY from November 2011 to April 2012. On 17 December 2012, the same commander prepared an unsigned memorandum, addressed to the Fort Bliss Finance office, recommending cancellation of his debt. This commander was later reassigned, and never signed the memorandum. Based on discussions between the Finance office and his squad leader, and under provisions of Army Regulation (AR) 600-4 (Remission or Cancellation of Indebtedness), his debt was suspended. i. Although legal and finance paperwork created an alleged debt of $23,705 on 20 March 2013, he asserts the debt should actually be $18,863, given the Army already collected $5,000. On 15 August and 16 August 2013, two commanders (Major E and Captain H, respectively) recommended disapproval of the applicant's request for debt cancellation. A memorandum, dated 14 November 2013, issued by the Chief, Operations Management Division, Fort Knox, disapproved his request for debt cancellation, stating there were no grounds for his request. On 19 August 2014, the U.S. Department of the Treasury (Treasury) advised him he still owed $17,396 ($22,267, with interest and penalties). When he communicated with Treasury, he was told the amount of his debt was being legally disputed, and, as such, collection activities were on hold. 3. The applicant provides: * marriage certificate, dated 13 October 2010 * document titled, "[applicant] Breakdown of his LES (Leave and Earnings Statement)" * document titled, "Command Sponsorship versus Non-Command Sponsorship Benefits Comparison Matrix" * memorandum, date 2 March 2012, Subject: Endorsement * Orders Number 111-1009, dated 20 April 2012 * Orders Number 123-02, dated 2 May 2012 * memorandum for record (MFR), dated 23 July 2012, Subject: Confirmation of TDY Dates * memorandum, dated 17 December 2012, Subject: Recommendation for Cancellation of Debt of OHA/BAH * DD Form 139 (Pay Adjustment Authorization), dated 21 June 2013 COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: Counsel states, in effect: a. He contends an injustice occurred with regard to allegations the applicant received an overpayment of OHA, in the amount of $18,863. Counsel then essentially restated what was asserted above by the applicant. b. The Joint Federal Travel Regulation (JFTR), chapter 10 (Housing Allowances), section 2 (Member with Dependent), subsection A (When Authorized BAH or OHA) (paragraph U10402), provides that, "... a member with dependent...is authorized...OHA at the rate prescribed...when...3. A dependent is not in route or does not accompany the member to the PDS, or the vicinity thereof, so as to preclude assignment of family QTRS (quarters)." Further, section 2, subsection B provides, in pertinent part, "a member ordered on PCS (permanent change of station) with TDY enroute is authorized OHA...during that period. See paragraph U10416 (Member in Transit)." [Chapter 10, JFTR, prescribes policy regarding housing allowances. It states, in general, a member on active duty, who is entitled to basic pay, is authorized a housing allowance based on grade, dependency status, and location.] [Part E (Assignment Situations), section 2 (Member with Dependent), paragraph U10402 (Member with Dependent), subparagraph A (When Authorized BAH or OHA), states a member with a dependent is authorized BAH or OHA when a dependent is not enroute, or does not accompany the member to the PDS, so as to preclude assignment of family QTRS. Under such circumstances, the mere availability of QTRS does not negate the right of a member to receive BAH or OHA for a dependent.] [Section 9 (Member in Transit), paragraph U10416 (Member in Transit) states a transit housing allowance (BAH-T) is a temporary housing allowance paid while a member is in a travel or leave status between PDS', provided the member is not assigned to government quarters. BAH-T continues during proceed time, as well as authorized delays, to include TDY enroute. Within this section, subparagraph C (Old PDS outside the U.S.) states, when a member's old PDS is outside the continental U.S. (OCONUS), the member is authorized OHA, if not assigned government quarters, through the day before departing the OCONUS PDS. OHA is no longer authorized the day the member departs; the member is instead authorized BAH-T, if the member is not receiving a with-dependent housing allowance for dependents reside separately. If the member is receiving a with-dependent rate OHA for dependents reside separately, that OHA rate continues provided the dependents remain at the OCONUS location. If the dependents also perform PCS travel, BAH-T then applies.] c. Although Orders Number 294-1015 authorized the applicant to pick up his "acquired dependent" (his wife) from her authorized and designated location in Uijeongbu, and proceed to Fort Bliss, those orders were incorrect. They did not reflect he would first be in a TDY-status to attend schooling, and there was nothing showing his wife was permitted to accompany him to Fort Lee. The revised orders (Orders Number 111-1009) clearly stated his wife's movement to Fort Lee was not authorized. d. The decision by MAJ E to recommend disapproval of the applicant's request to cancel his debt was based on his view the PCS orders authorized his spouse to move to Fort Bliss prior to the applicant going TDY. MAJ E contended the applicant elected not to comply with this instruction, and thus he accrued this debt. Notwithstanding this assertion, the applicant had been instructed by his 1SG and his commander to proceed to Fort Lee and, at Fort Lee, his orders would be "straightened out." The applicant followed this instruction, and, ultimately, his orders were amended. Had the original orders been correct, as was assumed by MAJ E, the applicant would, no doubt, have been charged with being absent without leave (AWOL) when he reported to Fort Lee instead of Fort Bliss. He was not so charged. In short, the applicant followed the instructions of his 1SG, as any reasonable noncommissioned officer would do, and, by so doing, became lost in the Army's bureaucratic red tape. e. The Army's decision to demand repayment of OHA for the term of his TDY (and while his wife remained in Korea) was wrong, and this injustice must be corrected by cancelling his alleged debt of $18,863. CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 19 November 2008. He held military occupational specialty (MOS) 88M (Motor Transport Operator), and was assigned to Korea, arriving in May 2009. 2. The applicant provides evidence he was married a Korean National on 13 October 2010. 3. He reenlisted on 28 October 2010 and selected the Army Training reenlistment option MOS training as a 91F (Small Arms/Artillery Repairer). His DA Form 3286-E (Statements for Enlistment) showed he was assigned to attend a specific class number. 4. The applicant also submitted a document that indicates he began receiving OHA, and continued receiving OHA until July 2012. His OMPF is void of any documentation that addresses his receipt of OHA, his TDY to Fort Lee, or his PCS to Fort Bliss. The Defense Finance and Accounting Service (DFAS), however, provided copies of the following: a. Orders Number 294-1015, dated 21 October 2011, issued by IMCOM-Pacific, Military Personnel Division, showed the applicant was reassigned to Fort Bliss and had a reporting date of 10 January 2012. The order also stated he was authorized to pick up his dependent at Uijeongbu, Korea, and move her to his next duty station. Regarding housing allowance, it indicated the applicant's housing allowance was to be based on the PDS. The applicant was authorized housing allowance based on the location at which his dependent maintained or established a permanent residence. b. DD Form 1610 (Request and Authorization for TDY Travel of DOD (Department of Defense) Personnel), dated 26 April 2012, showing the applicant was authorized TDY at Fort Lee while enroute to Fort Bliss. The purpose of the TDY was to attend the Small Arms/Artillery Repair course. c. Treasury Cross-Servicing Dispute Resolution, dated 22 April 2015, reflected the principal amount of the applicant's debt was $17,322.17, and that the applicant was disputing the debt. 5. The applicant provides the following additional documents: a. MFR, dated 23 July 2012, Subject: Confirmation of TDY Dates, signed by CPT JPP, commander, affirms the applicant was TDY at Fort Lee from 2 November 2011 to 17 April 2012. b. Memorandum, dated 17 December 2012, Subject: Recommendation for Cancellation of Debt of OHA/BHA [sic, BAH], unsigned but with signature block of CPT JPP, commander, that states, in effect: * the writer recommends cancelling the applicant debt of $23,705.94; he was paid OHA/BAH from November 2011 through April 2012 at the rate of $2,413.42 per month * the Finance office determined he had been collecting the wrong amount; according to the applicant, his orders from Uijeongbu, Korea indicated he should receive OHA while TDY to Fort Lee * the applicant left Korea in November 2011 to report to Fort Lee for training; he turned in all supporting documentation to the battalion S-1; the Finance office approved his BAH * cancellation of the debt was warranted because the applicant was an outstanding Soldier who was, at that time, preparing for a deployment to Afghanistan * in the writer's view, the applicant had acted in good faith, and his former chain of command, battalion S-1, and supporting Finance office should have been more knowledgeable of OHA/BAH requirements c. DD Form 139, dated 21 June 2013, indicates the applicant was required to pay the Army $23,705.94 for overpayment of OHA for the period 18 November 2011 to 31 August 2012. 6. He was discharged under other than honorable conditions on 20 December 2013. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 4 Years, 10 months, and 19 days of net active creditable service. The narrative reason for separation was misconduct (serious offense). 7. On 18 January 2017, an official from the Army Deputy Chief of Staff, G-1, provided an advisory opinion. a. Based on a careful review of the facts, the official states his office supports the decision made by the U.S. Army Human Resources Command (HRC) to disapprove the applicant's request to cancel his Overseas Housing Allowance (OHA) debt. In addition, the official recommends disapproval of his current petition to the Board. b. Upon executing a PCS from Korea to Fort Bliss, TX, the applicant was no longer authorized to receive OHA. He was authorized Basic Allowance for Housing - Transit (BAH-T) until the day prior to reporting in at Fort Bliss, which would have included his period of temporary duty (TDY) at Fort Lee, VA. Based on these facts, HRC's decision is viewed as fair and equitable. c. Paragraph 10404-A1b (Acquired Dependents - General Rules) of chapter 10 (Housing Allowances), within the JFTR, requires a service member's housing allowance to be based on the permanent duty station (PDS) when a dependent has been acquired, and that dependent reside in the PDS vicinity. The applicant was eligible to receive "with-dependent" OHA, effective the date of his marriage, provided his lease or mortgage was certified by his supporting housing office, using DD Form 2367. d. Because the applicant executed a PCS from an overseas location, and was receiving a housing allowance based on his PDS in Korea, his OHA should have stopped effective the day before his departure from Korea. He was then authorized BAH-T effective his date of departure from Korea through the day before he reported to Fort Bliss, including his TDY period at Fort Lee. 8. On 18 January 2017, the Case Management Division, Army Review Boards Agency, provided the applicant a copy of the advisory opinion for review and comment. On 24 January 2017, counsel submitted a response, essentially stating: a. The applicant respectfully urges the Board not to adopt the recommendation by the DCS, G-1 official. The advisory states, "upon executing a PCS from Korea to Fort Bliss, [the applicant] is no longer authorized to receive OHA." This issue, of course, is when the PCS was executed. Paragraph 1 of the advisory goes on to conclude, "therefore, we believe HRC's decision is fair and equitable." It is safe to say the latter conclusion begs the question at issue, and that the applicant believes HRC's decision was neither fair nor equitable. b. The relevant facts are: * the applicant received orders in October 2011 reassigning him to a new PDS (Fort Bliss) * Orders Number 294-1015, issued in Korea, directed him to proceed to Fort Bliss, and report on 10 January 2012; orders also authorized him to have his "acquired dependent" accompany him * notwithstanding what was said in the orders, his 1SG and commander in Korea told him to instead proceed on TDY to Fort Lee for schooling * despite the applicant's request to change his orders prior to his departure, no corrections were made; this failure to amend his orders "caused no end of misunderstanding and difficulty" c. His orders were ultimately revised. * on 2 March 2012, the applicant received an endorsement recognizing his TDY to Fort Lee, and authorizing his wife's relocation to Fort Bliss * on 20 April 2012, he received Orders Number 111-1009; the orders noted his Fort Lee TDY, confirmed a Fort Bliss reporting date of 20 May 2012, and did not authorize his wife to travel to Fort Lee d. Counsel argues the applicant would have been charged with AWOL if his original orders (Orders Number 294-1015) been correct. In effect, the fact he was not charged with being AWOL serves as proof his original orders were invalid. In short, the applicant followed the orders of his 1SG and commander when he left Korea and traveled to Fort Lee, with the result that he has become lost in the Army's bureaucratic red tape, and subjected to an unwarranted debt. e. The advisory references chapter 10 of the JFTR, and acknowledged the applicant was entitled to OHA effective the date of his marriage. The advisory states, however, that OHA "must stop effective the day before his departure from Korea." Counsel then quotes section 2, subsection A of chapter 10, and restates his earlier argument that the applicant was, in fact, authorized while in a TDY status enroute to a new PDS. Based on this argument, he contends the applicant's debt should be cancelled. REFERENCES: 1. Chapter 10, JFTR, prescribes policies and procedures for travel for Department of Defense personnel. a. Paragraph 10000C states, if a member has to maintain separate households, and a dependent is not residing in the PDS with the member, approval through the Secretarial Process is required, and a commander may submit a request for determination through Army channels to Headquarters, Department of the Army. b. Paragraph U10002 (Housing Allowance), subparagraph E (Housing Allowance Start and Stop Dates), states HOA eligibility starts on the day the member obtains private sector housing, and the authorizing document is DD Form 2367 (OHA Report, Individual). OHA authority stops on the day before the member departs in compliance with a PCS order. 2. AR 600-4, in effect at the time, states a Soldier's debt to the U.S. Army may be remitted or canceled based on this this regulation for cases that include payments made in error to a Soldier and payments made in excess of an allowance on behalf of a Soldier. Indebtedness will not be remitted or canceled where the Soldier concerned received a less than honorable discharge at the time of separation. DISCUSSION: 1. The applicant requests cancellation of his debt based on overpayment of OHA. Counsel argues a section within the JFTR appears to permit a Soldier to continue to receive OHA at the old PDS when he/she was being paid at a with-dependent rate, and the dependents are not residing with the Soldier. It indicates the OHA rate continues provided the dependents remain at the OCONUS location. Once they perform PCS travel, BAH-T applies. 2. The applicant's first set of orders (Orders Number 294-1015, dated 21 October 2011), required him to move with his wife to Fort Bliss, and report not later than 10 January 2012. Instead, although he offers no documentary proof, he asserts she remained in Korea while he completed his TDY enroute to Fort Bliss. a. In October 2010, he had reenlisted to attend 91F school at Fort Lee but, apparently due to an administrative error, his PCS orders did not reflect a TDY to attend school enroute to his new PDS. The applicant and counsel assert, based on verbal instructions from his 1SG and commander, he traveled directly to Fort Lee rather than reporting to Fort Bliss on the understanding his orders would be appropriately corrected on his arrival. Paragraph 10000 C of the JFTR permits a Soldier to maintain two separate households, but only when approval is obtained through Secretarial Process. The applicant left his wife in Korea, despite there being no indication he attempted to gain prior approval, but was denied, for her to remain. Thus, he did not have the authority to continue to receive OHA. b. The JFTR directs OHA to stop the day prior to a Soldier's PCS move. While the evidence of record is not clear, it appears he departed Korea, based on PCS orders, on 18 November 2011, because the starting date of his debt is 18 November 2011. The subsequent order added his TDY, stated his wife was not authorized to travel to his TDY location, and revised his reporting date to May 2012. It did not include any specific authorization for her to remain in Korea while he was in a TDY status. He indicates she eventually traveled to the U.S. in April 2012, after which they both traveled to Fort Bliss, arriving in May 2012. 3. Subsequent to his relocation to Fort Bliss, the applicant became involved in misconduct that resulted in his discharge under other than honorable conditions. Under these circumstances, AR 600-4 does not permit remission or cancellation of a debt. Based on the foregoing, the applicant does not appear to be eligible for the requested relief. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150014229 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150014229 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2