IN THE CASE OF: BOARD DATE: 21 March 2017 DOCKET NUMBER: AR20150016841 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 IN THE CASE OF: BOARD DATE: 21 March 2017 DOCKET NUMBER: AR20150016841 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. IN THE CASE OF: BOARD DATE: 21 March 2017 DOCKET NUMBER: AR20150016841 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 records to show: a.  he was married with two dependent children during the period 24 August 2009 through 13 December 2012, b.  he was entitled to basic allowance for housing (BAH) at the with-dependent rate for the period 24 August 2009 through 13 December 2012, c.  he was paying child support to his dependent children during the time of his enlistment, and d.  payment for the difference in BAH based on the above corrections. 2. The applicant states: a.  When he enlisted in the Army, his marital status was recorded as single and without dependents and he was classified as such for payment of BAH. This classification was inaccurate, as he was married and making payments to support his two children. b.  He discovered the error during basic training. He discussed the issue with his supervisors to correct the information; however, he was given the runaround and he was unable to make the correction during basic training. c.  He continued his efforts to correct his BAH classification while stationed in Schweinfurt, Germany. He was advised by judge advocate officials to complete an affidavit as part of the process to rectify his BAH pay. He complied with the instructions given and he was later deployed to Afghanistan. d.  In July 2011, he returned to Schweinfurt, Germany, from Afghanistan. He was unable to pursue or rectify his BAH classification upon his return because of the mental and physical stress he was experiencing. He receives disability compensation from the Department of Veterans Affairs (VA) for post-traumatic stress disorder (PTSD) and other physical conditions. e.  His BAH payments were not classified correctly and because of this, he had to pay out-of-pocket to support his two dependent children and wife. The payments went toward school tuition in Uganda, school supplies, and necessities of life. He and his family suffered financial hardship as a result of receiving insufficient BAH. f.  On 13 December 2012, he was honorably discharged. He was unable to correct his BAH entitlement prior to his discharge due to bureaucratic inefficiencies, change in location, and deployment to Afghanistan. 3. The applicant provides: * self-authored brief, undated * Affidavit for BAH, dated 30 November 2010 * DD Form 214 (Certificate of Release or Discharge from Active Duty) * VA Rating Decision, dated 20 August 2015 * Congressional correspondence * Defense Finance and Accounting Service (DFAS) correspondence * certified marriage record * birth certificates * 12 United Services Automobile Association (USAA) Savings Account Statements 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 provided copies of birth certificates for his children that show him as the father and: * his daughter as M____ J____ N____, born on 12 March 1997, and her mother as R____ N____ * his son as D____ C____ K____, born on 31 March 1998, and his mother as R____ N____ 3. The applicant provided a copy of his marriage certificate that shows he married R____ A. P____ on 31 August 2007 and a copy of her birth certificate. Her birth certificate shows her middle name as L____. 4. His DD Form 93 (Record of Emergency Data), dated 31 July 2009, shows he indicated he was divorced. 5. His DD Form 1966 (Record of Military Processing – Armed Forces of the United States), dated 6 August 2009, shows in: a. Section I (Personal Data): * item 8 (Marital Status) – Divorced * item 9 (Number of Dependents) – 0 b. Section III (Other Personal Data), item 23 (Martial/Dependency Status and Family Data), he marked "NO," indicating he had no one dependent upon him for support and there was no court order or judgement in effect that directed him to provide alimony or support for children. c. Section VI (Remarks), in part: * request a judge advocate general review for children born out of wedlock – all documents scanned (two entries), * (Applicant) must acknowledge present custody plan will remain in force for first enlistment term on Dependent Annex, in accordance with Army Regulation 601-210 (Active and Reserve Components Enlistment Program), paragraph 2-10d(3) 6. His Standard Form 86 (Questionnaire for National Security Positions), dated 6 August 2009, shows he listed his current marital status as divorced, his date of divorce as 7 April 2006, and his former spouse as D____ M____ B____. He also listed his two children living in Uganda and he identified his father as J____ B____ B____. 7. The applicant enlisted in the Regular Army on 24 August 2009 for a period of 3 years in the rank/grade of private/E-1. 8. Both his DD Forms 93, dated 17 February 2011 and 9 April 2012, show he indicated he was divorced and he listed his two children living in Uganda. 9. He provided 12 USAA savings account statements showing the following money wire transfers: * 16 August 2011 – $1,300.00 to his father * 2 September 2011 – $800.00 to his father * 16 September 2011 – $500.00 to his father * 30 November 2011 – $500 to an unidentified recipient * 5 January 2012 – $300.00 to an unidentified recipient * 20 January 2012 – $315.00 to an unidentified recipient * 31 January 2012 – $215.00 to an unidentified recipient * 7 March 2012 – $2,515.00 to an unidentified recipient * 2 April 2012 – $2,400.00 to an unidentified recipient * 16 April 2012 – $1,050.00 to an unidentified recipient * 30 April 2012 – $1,050.00 to an unidentified recipient * 14 May 2012 – $1,050.00 to an unidentified recipient * 21 May 2012 – $750.00 to an unidentified recipient * 31 May 2012 – $1,050.00 to an unidentified recipient 10. On 13 December 2012, he was honorably released from active duty. His DD Form 214 shows he completed 3 years, 3 months, and 20 days of creditable active military service. 11. He provided Congressional correspondence from Representative C____, dated 18 September 2014, in which he requested assistance relating to his denial of GI Bill benefits, disability compensation, and payment of his BAH allowance. On 23 October 2014, DFAS provided a response to his inquiry and stated: a.  The Claims Branch reviewed his records and found he listed himself as divorced and no children in his DD Form 93, dated 7 July 2009. In his DD Form 93, dated 4 February 2011, he listed himself as divorced with two children living in Uganda. The applicant was advised that if the DD Form 93 erroneously showed him as divorced, he would need to provide additional documentation showing he was, in fact, married and the documentation had to show his wife's legal residence and full information, to include her social security number. He was further advised that he could provide his filed tax documentation for years in question and his wife's current contact information. b.  He may be due some other type of BAH entitlement for the children listed on his 2011 DD Form 93. He was then instructed to provide birth certificates for the children showing him as their father, a court order requiring him to pay child support or proof that he provided child support in the amount of the BAH with-dependent rate, and he was provided a DFAS website for additional information on how to submit his claim. c.  Regarding his denial of the Montgomery GI Bill, his DA Form 1059 (Service School Academic Evaluation Report) showed he became ineligible for the Montgomery GI Bill because he was released from the Warrior Leader Course Class 11-12 for academic reasons. d.  He provided a copy of his online submission reply from DFAS, undated, which shows he indicated he was responding to a DFAS letter, dated 23 October 2014. He indicated he provided proof of his marriage to R____ L. M____, which took place on 31 August 2007, birth certificates of his two children, and documentation showing he wired money to them on a regular basis while serving on active duty in the Army. e.  On 20 March 2015, DFAS advised him they were not a determining body for BAH entitlements and he was provided instructions for pursuing his request for BAH. 12. He provided a copy of his VA Rating Decision, dated 20 August 2015, which shows he received a combined disability rating of 80 percent and his disabilities included PTSD (claimed as depression). 13. On 13 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 recommended denial of the applicant's request. He stated: a.  The applicant did not disclose to the government that he was, in fact, married. Moreover, he did not show proof that he was paying monthly child support. b.  According to the applicant's security clearance application, dated 6 August 2009, he stated he was divorced. However, he presented what appears to be a copy of a marriage certificate from the Marion County Indiana Circuit Court, dated 1 October 2007, in his application. Because he did not disclose his marriage to the government, the Compensation and Entitlements Division was unable to verify that he was married during the period of his enlistment. c.  In order to receive a with-dependent housing allowance on behalf of the dependent children, the applicant is required to pay child support monthly in the amount of at least the BAH Differential (BAH-DIFF) for his grade. There is no evidence showing the applicant paid child support for each month. d.  The Defense Finance and Accounting Service was correct to pay the applicant BAH Partial, or the barracks rate, during his enlistment. There is no evidence submitted that warrants administrative relief. 14. On 19 September 2016, a copy of the advisory opinion was forwarded to the applicant for review and for an opportunity to provide a response. He did not provide a response. REFERENCES: The Defense Travel Management Office official website provides 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 dependents and without dependents, the with-dependent compensation is based on comparable civilians using average family size. The BAH allowance of a member who is divorced and has children depends on whether 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. c.  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. d.  Military members who do not 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 BAH-DIFF. 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 he or she provides equals or exceeds the amount of BAH-DIFF he or she is 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 BAH. BAH-DIFF rates are computed from the difference between the full rate and single rate for specific ranks, so it does not mean that one with more rank receives a greater BAH-DIFF amount. DISCUSSION: 1. The applicant contends he should have been paid BAH at the with-dependent rate during the period 24 August 2009 through 13 December 2012. He also contends he was unable to correct his BAH entitlement prior to his discharge due to bureaucratic inefficiencies, change in location, and deployment to Afghanistan. 2. The evidence of record shows he indicated he was divorced at the time of his enlistment in the Regular Army on 24 August 2009 and he maintained this status until his separation on 13 December 2012. He provided a marriage certificate with his application to this Board showing he married on 31 August 2007; however, it is not known if he remained married or divorced prior to his entry on active duty in 2009. The evidence of record shows he never disclosed to the government that he was married during his period of his enlistment. 3. Although he contends he was unable to correct his BAH entitlement prior to his discharge due to bureaucratic inefficiencies, change in location, and deployment to Afghanistan, DFAS provided him with guidance regarding the required documentation for his BAH dispute. He failed to provide DFAS with the required documentation. 4. The USAA savings account statements he provided show he wired money to his father and other unidentified recipients. He does not provide evidence showing he paid child support each month during the period 24 August 2009 through 13 December 2012, the wired funds were for child support purposes, he had a court order to pay child support, or the amount of monthly child support required by court order. Further, he provided no evidence showing the type of BAH he was receiving or his wife's legal residence during the period 24 August 2009 through 13 December 2012. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) @#!CASENUMBER 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150016841 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2