IN THE CASE OF: BOARD DATE: 7 April 2016 DOCKET NUMBER: AR20150017769 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: 7 April 2016 DOCKET NUMBER: AR20150017769 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: 7 April 2016 DOCKET NUMBER: AR20150017769 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 remission of his Defense Finance and Accounting Service (DFAS) debt resulting from the overpayment of overseas housing allowance (OHA) and basic allowance for housing (BAH). 2. The applicant states: * he was overpaid OHA and BAH * he was not charged with any crime or found guilty by any court * all charges are unfounded * he was found guilty of a suspicion and not an actual charge * the debt is causing a financial strain on his family 3. The applicant provides: * DD Form 2789 (Waiver/Remission of Indebtedness Application), dated 18 May 2015 * DA Form 2823 (Sworn Statement), dated 18 May 2015 * memorandum for record, dated 3 March 2014, subject: Remission/ Cancellation of Debt for Overpayment OHA/BAH * memorandum for record, dated 10 March 2014, subject: Remission/ Cancellation of Debt for Overpayment OHA/BAH * DA Form 2823, dated 10 February 2013 * DFAS memorandum, dated 15 August 2013, subject: Overpaid OHA * DD Form 139 (Pay Adjustment Authorization), dated 15 August 2013 * DFAS memorandum, dated 16 September 2013, subject: Overpaid BAH * DA Form 3508 (Application for Remission or Cancellation of Indebtedness), dated 19 March 2014 * DD Form 139, dated 19 September 2014 * memorandum for record, dated 24 February 2016, subject: Remission Rebuttal 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 enlisted in the Regular Army on 8 April 1997 and is currently serving in Germany in the rank of sergeant first class. 3. His records contain a marital separation agreement which shows he and his wife separated on or about 1 August 2012 as a consequence of disputes and irreconcilable differences, but were living in the same quarters pending assignment of separate quarters/housing at the time. The couple has two children, both of whom were to remain in the custody and control of their mother, the applicant's wife. The applicant was deemed the non-custodial parent. The applicant signed the document on 17 September 2012; his wife signed it on 18 September 2012; and the Legal Assistance Office, Camp Foster, Japan, made the document official on 18 September 2012. 4. His records contain a DD Form 2367 (Individual OHA Report) signed by the applicant on 1 October 2012 and the Director, Defense Military Pay Office, Torri Station, approving the application on 2 October 2012, which shows: * he was not entitled to a cost-of-living allowance (COLA) or OHA for dependents residing elsewhere * he separately paid for all utilities, none were included in the rental/lease agreement with the landlord * in order to determine if he was a "sharer" for housing allowance purposes, he listed himself as the only individual who would occupy the residence * he did not have command-sponsored dependents in the area of his permanent duty station 5. A DFAS-Japan memorandum, dated 15 August 2013, states he incurred a debt to the U.S. Government for overpaid OHA in the amount of $18,821.07 for the period 1 November 2012 through 31 May 2013. He was informed deductions from his military pay account could be made in monthly installments if the overpayment was incurred in good faith and a lump sum payment was not possible. He was also advised he could request remission or cancellation of indebtedness. Included with the memorandum was a DD Form 139 detailing the exact OHA overpayments. 6. A DFAS-Japan memorandum, dated 16 September 2013, states he incurred a debt to the U.S. Government for overpaid COLA in the amount of $15,492.00 for the period 1 November 2012 through 31 May 2013. He was informed deductions from his military pay account could be made in monthly installments if the overpayment was incurred in good faith and a lump sum payment was not possible. He was also advised he could request remission or cancellation of indebtedness. Included with the memorandum was a DD Form 139 detailing the exact COLA overpayments. 7. In support of his application for remission or cancellation of indebtedness, the applicant wrote a memorandum for record, dated 3 March 2014. It states: * he was placed under investigation by the U.S. Army Criminal Investigation Command (CID) for which he received a letter of reprimand on 9 September 2013 which was filed locally * due to being separated from his military spouse, he asked officials in the housing office to place him in the barracks * he was denied a barracks room due to the occupancy rate being at 95-percent, thus informed he was authorized to reside off-post if he so wished * he signed a lease on an off-post apartment, but after some time apart, he and his wife started to spend more time together at her on-base residence * this was in part due to her being pregnant and needing his assistance more with their other children and in part due to them attempting to mend their broken marriage * due to this, he allowed another Soldier's dependent to temporarily reside in his off-post quarters in order to watch out for his apartment and his belongings * as soon as he was informed this was in violation of Army policy, he took measures and had the individual move out of his off-post quarters * the local finance office informed DFAS that he owed a total amount of $34,313.07 even after the CID report came back as unsubstantiated * he made multiple attempts to correct the pay error through unit channels to no avail * his erroneous payments were due to him not knowing the full scope of the Army and Air Force housing regulations * it was not due to deception or dishonesty on his part * he is currently in a position of financial hardship and a continued garnishment of his pay and allowances will force him into even more debt, causing him more financial problems and missed payments on financial obligations * this will in turn cause a hardship on his dependent children through forfeiture of child support payments 8. His battalion commander also provided a memorandum for record in support of the applicant's request for remission of indebtedness, dated 10 March 2014, which states: * on 9 September 2013, the applicant was the subject of a CID investigation * the investigation resulted in him receiving a local letter of reprimand as it was determined there was probable cause to believe he committed the offenses of OHA fraud, making a false statement, and larceny of Government funds * due to the fact there was no clear evidence that found him blatantly guilty of OHA fraud, he only received a minor reprimand that will stay in his local file * the applicant was an exceptional Soldier who remained in high standing within the 835th Transportation Battalion * it is his battalion commander's belief that the debt was incurred due to multiple guidelines from the housing office and administrative errors that the Soldier may have overlooked * furthermore, the applicant is already in a position of financial hardship and continued garnishment of his pay and allowances would force him into more debt and cause him more financial problems and missed payments on financial obligations * he highly recommended full forgiveness of indebtedness in the amount of $34,313.07 that DFAS was garnishing from his check in the amount of $1,499.87 per month 9. His application for remission or cancellation of indebtedness, dated 20 March 2014, shows: * he requested cancellation of indebtedness based on perceived hardship and injustice * his indebtedness amounted to $34,313.07 * he was legally separated from his wife and did not reside with her * he had five daughters, none of whom resided with him, for whom he paid a total of $3,227.76 in child support to four women, one of whom was his wife 10. The applicant provided a DD Form 2789, dated 18 May 2015, in which he requests remission of his indebtedness. It states he first became aware of the debt or erroneous payment in March 2013 when he was notified by CID and in August and September 2013 when he was notified by DFAS. He moved out of his off-post apartment and into the barracks on 1 June 2013. 11. Included with his DD Form 2789 was a sworn statement made by the applicant on 18 May 2015. The statement reiterates what was stated in his memorandum for record the year prior. 12. Neither the copy of the CID investigative report nor the letter of reprimand were provided by the applicant and they are not in his available record for review. 13. An advisory opinion was obtained from the Department of the Army Office of the Deputy Chief of Staff, G-1, Chief, Compensation and Entitlements Division, which states: * based on a careful review of the facts surrounding the situation, they recommend disapproval of the applicant's request for cancellation of his debt * pursuant to the applicant's statement, he allowed another individual to live in his private apartment for which he was receiving OHA while he resided with his spouse in her on-post residence * according to the Joint Travel Regulations, chapter 10, paragraph 10022, a sharer relationship was established when the individual resided in the applicant's residence, therefore he was only authorized to receive the without-dependent OHA rate for his residence based on his duty station * DFAS found the applicant received OHA at the with-dependent rate without authority and there was no evidence submitted warranting relief 14. The applicant was provided a copy of the advisory opinion and submitted a rebuttal, which states: * at no time did he enter into a "shared relationship" agreement, either written or verbally with Ms. J____ for the purpose of financial profit or mutual benefit * he does acknowledge that he entered into an understanding with her that between 15 December 2012 and 22 March 2013 she would serve in a caretaker capacity of his residence in the event of his impending temporary duty status * that was the extent of their agreement and was a mutual understanding based on simple good neighbor practices in order to ensure his residence was maintained throughout his absence * on 1 April 2013, he was informed of an on-going criminal investigation concerning alleged mistreatment of his step-son by his spouse * after consulting with the CID and counselors at Military and Family Life Counseling, it was recommended that his step-son acquire a safe haven protection status until the case was closed or a more suitable residence was established * all parties agreed that his vacated residence met the safe haven criteria and would provide the necessary protection for his step-son * acting in the interest of his step-son, he complied with their recommendations * from 2 October 2012 through 31 May 2013 he was assigned to Okinawa, Japan, for which he received $18,821.07 to establish and maintain a suitable residence monthly * in addition to this, he received a separate BAH at the with dependent rate in order to provide suitable housing for his daughter * as documented within the Army Health Care System, his daughter was diagnosed with behavioral health concerns, specifically suicidal ideations * his daughter's medical screening was completed in July 2011 and she was enrolled in the Exceptional Family Member Program (EFMP) * she was initially denied travel to Japan as facilities there do not meet the criteria for treatment * as the custodial parent over his daughter, he is entitled to receive BAH at the with-dependent rate for the purposes of providing her with basic housing requirements in order to continue her medical treatment 15. The applicant has not provided any additional documentation regarding any of his children, proof of custody, command-sponsored dependency, or EFMP paperwork and this documentation is not in his available record for review. REFERENCES: The Joint Travel Regulations prescribe policy, criteria, and administrative instructions regarding per diem, travel, and transportation for Uniformed Service Members and Department of Defense civilian employees. b. Chapter 9 (Station Allowances (Outside the Continental United States (OCONUS) COLA and Temporary Lodging Allowance)) defines a service member without dependents as one who has no dependents, or whose dependents do not reside in the permanent duty station (PDS) vicinity, or who has non-command sponsored dependents residing at the PDS vicinity, or who does not have legal custody and control of the dependents. For COLA purposes, a service member paying child support is a member without dependents unless the service member has command-sponsored dependents at the PDS other than the dependents on whose behalf the service member is paying child support. COLA is prescribed as a daily rate. It is computed by using the service member's annual income (as determined by the service member's grade, years of service, and dependency status) to identify the service member's annual spendable income (as determined by the number of command-sponsored dependents) which, when multiplied by the authorized COLA index determines the annual COLA. A service member in the grade of E-7 or higher, who has no dependent, has elected to not occupy government quarters and who is occupying private sector housing is authorized the COLA for a service member with no dependents. A service member with dependents is authorized OCONUS COLA based on the number of command-sponsored dependents at the PDS vicinity. A service member, who is serving an unaccompanied tour at an OCONUS PDS, but is accompanied or joined by a non-command sponsored dependent, is not authorized with-dependent COLA even if the dependent's presence leads the service member to choose not to use an available Government dining facility. The service member is authorized COLA the same as any other service member without dependents under the same conditions. If the service member changes the tour election and agrees to serve the accompanied tour, with-dependent COLA starts on the date the dependent is command sponsored. b. Chapter 10 (Housing Allowances) defines "sharer" for OHA/Family Separation Housing-OHA Based Location (FSH-O) purposes as a service member who resides with one or more of the following: Service members authorized an OHA/FSH-O, Federal civilian employees, including dependents, authorized a living quarters allowance or COLA (in non-foreign, OCONUS locations), or other persons, excluding the Service member's dependents, who contribute money toward the payment of rent, mortgage, and/or utilities. DISCUSSION: 1. The applicant's request for remission of his debt arising from overpayment of OHA and BAH was carefully considered. 2. He allowed another individual to live in his private apartment for which he was receiving OHA and COLA while he resided with his spouse in her on-post residence. 3. According to the Joint Travel Regulations, a sharer relationship was established between the applicant and the individual he allowed to reside in his apartment when he allowed her to reside there while he resided elsewhere, unbeknownst to DFAS and in contravention to regulatory guidance. 4. This resulted in his DFAS-confirmed overpayment of OHA in the amount of $18,821.07 and COLA in the amount of $15,492.00 for the period 1 November 2012 through 31 May 2013. DFAS has not claimed the applicant was overpaid BAH. 5. Although neither the CID report nor the subsequent letter of reprimand are in his available records for review, according to a memorandum for record from his battalion commander it was determined there was probable cause to believe the applicant committed the offenses of OHA fraud, making a false statement, and larceny of Government funds. 6. Despite his claims to the contrary, there is no indication that his daughter's status in the EFMP has any bearing on his receipt of unauthorized payment of OHA and COLA for a residence he ultimately did not occupy, but allowed a third party to live in while he lived with his estranged wife in her quarters. There is no evidence he was the custodial parent to any of his children at the time or that they resided with him as their command sponsor when he received overpayment of OHA and COLA. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150017769 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150017769 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2