BOARD DATE: 27 June 2017 DOCKET NUMBER: AR20150019051 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: 27 June 2017 DOCKET NUMBER: AR20150019051 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: 27 June 2017 DOCKET NUMBER: AR20150019051 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, remission or cancellation of his indebtedness to the U.S. Government in the original amount of $15,198.32. 2. The applicant states he wishes to have his divorce dates entered into the "system," as well as his new wife's residential address in San Diego, CA, and he wants the record to show his wife never moved to Hawaii. He further states his wife never stayed in Hawaii more than 90 days and she was never command-sponsored to move to Hawaii. He states he is entitled to dual basic allowance for housing (BAH). The attached documents show she lived in San Diego, CA. 3. The applicant provides: * a Puerto Rican civil court document, dated in the year 2005, announcing his divorce from X____X____X___ * a Commonwealth of Virginia Marriage Register, dated 22 April 2015, showing he married X____ X____ X____X____ on 17 February 2006 * a State of Hawaii Divorce Decree, dated 18 December 2007, showing he was granted a divorce from J____ Z____ M____ (formerly J____ Z____ T____ O____) on 12 December 2007 * a County of San Diego, CA, License and Certificate of Marriage, dated 16 October 2009, which shows he married Mrs. BC on 5 July 2009 * a Rental Agreement and/or Lease, effective 1 July 2010 * a Residential Lease/Rental Agreement, effective 22 March 2012 * two Wells Fargo Home Mortgage statements, dated 11 February 2013 and 17 July 2015 * statements from the office of his wife's physician, detailing charges for treatment during the years 2010 and 2011 * service verification letters from San Diego Gas and Electric, dated 11 August 2015 * several member club usage reports from "24 Hour Fitness," detailing his wife's health club usage in certain months of 2013, 2014, and 2015 * AT&T monthly statements for the months of April 2010, September 2011, October 2011, November 2012, July 2013, March 2014, June 2014, and August 2015 * copies of pages from his wife's U.S. Passport, detailing her international travel during the years 2005 through 2015 * Defense Finance and Accounting Service (DFAS) Account Statement/Notice of Debt, dated 29 October 2015 * a letter from DFAS, Indianapolis, IN, dated 3 November 2015 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. Following prior service in the Regular Army, the applicant was appointed as a Reserve warrant officer of the Army on 14 October 1999 in the rank of warrant officer one (WO1) and entered active duty as an aviation officer. He was promoted to chief warrant officer two (CW2) on 14 October 2001. 3. The applicant was reappointed as a Reserve commissioned officer of the Army on 31 October 2001 and as a Regular Army commissioned officer on 11 November 2005 in the rank of CW2. He was promoted to chief warrant  officer three (CW3) on 1 December 2006. 4. The applicant was reassigned to 3rd Battalion, 25th Aviation Regiment, located at Wheeler Army Airfield, HI, on or about 4 April 2006. His records do not establish whether he requested or was approved for a command-sponsored (accompanied) overseas tour. Nevertheless, he remained in Hawaii for the remainder of his active service, with the exception of combat deployments to Iraq (twice) and Afghanistan. 5. The applicant was promoted to chief warrant officer four (CW4) on 1 January 2012. 6. The applicant was honorably retired Army on 30 June 2015 by reason of sufficient service for retirement. His DD Form 214 confirms he was separated at Schofield Barracks, HI; however, his mailing address after separation was listed as San Diego, CA. 7. By DFAS Account Statement/Notice of Debt, dated 29 October 2015, the applicant was notified that his outstanding debt of $15,198.32 remained unpaid, had accumulated interest charges in the amount of $12.72, and had grown to an outstanding balance of $15,211.04. 8. By a separate unavailable letter, the applicant petitioned the President of the United States for assistance vis-à-vis the validity of his outstanding debt. By letter, dated 3 November 2015, DFAS replied to the applicant on behalf of the President, stating: After review of our records, we have determined that your debt in the amount of $15,198.32, remains valid. Your debt is for the collection of Basic Allowance for Housing (BAH). You were overpaid BAH, Family Separation Housing (FSH), and Cost of Living Allowance (COLA). Additionally, it was discovered that your marital status changed multiple times and no changes were reported to the Schofield Barracks Defense Military Pay Office (DMPO). As advised in our previous response to you, debts were posted to your account to collect the overpayment of BAH, FSH, and COLA in the net amount of $110,587.54, as a result of your marital status changes not being reported and your current spouse's subsequent move to Hawaii. The Joint Federal Travel Regulation (JFTR) Volume 1, Paragraph 10408A3 states that the BAH is to be stopped when the spouse visits the Soldier in excess of 90 days. Paragraph 10408A4 states it could be restarted once the spouse departs to establish a residence elsewhere. We have been unable to confirm the exact dates of departure from Hawaii; however, we have evidence that your wife remained in Hawaii at least 20 months and as long as four and a half years. We have prepared and enclosed a Statement of Military Pay Account (DFAS-IN Form 0-641) detailing entitlements, deductions, and payments recorded on your Master Military Pay Account (MMPA) for the month of separation from the U.S. Army. Your MMPA includes entitlements totaling $11,121.67, less deductions totaling $23,841.96, less payments totaling $2,478.03, resulting in a debt of $15,198.32 ($11,121.67-$23,841.96-$2;478.03=-$15,198.32). As stated above, your debt was originally $110,587.54. However, $95,389.22 was collected prior to your separation, leaving a balance due of $15,198.32 ($110,587.54-$95,389.22). Our results are based on information from your official military records which are available to our agency. If you disagree with the collection of the debt or feel that an injustice has occurred, you can petition the Army Board for Correction of Military Records (ABCMR). If you elect to pursue this avenue, you should complete the enclosed Application for Correction of Military Record (DD Form 149) and send it with all supporting documentation to the address located on the back of the form. Applying to the ABCMR does not suspend the collection of the debt. If you receive a favorable decision from the ABCMR, any money collected, to the extent of the debt, will be refunded. Collection action will continue unless your military records are changed to eliminate the requirement for recoupment. Another possible avenue of relief is to petition for a Waiver of Indebtedness. If you would like to apply for a waiver, we have enclosed a Waiver/Remission of Indebtedness Application (DD Form 2789). The completed form, along with all pertinent documentation, may be forwarded to the following address: DFAS-IN, 8899 East 561 Street, Department  3300 (Waivers/ Remissions), Indianapolis, IN  460249-3300. Upon receipt, your request will be carefully considered under the applicable law. Be advised, that collection actions will continue during this process. If the debt is waived, all funds collected to the extent of the waiver, will be refunded. You also have the option to apply for a remission of indebtedness. If you wish to pursue a remission, you should complete the enclosed Application for Remission or Cancellation of Indebtedness (Form DA 3508 [sic]) and a Notarized Sworn Statement (Form DA 2823 [sic]), include all supporting documentation and return it to: Human Resources Command (HRC), ATTN: EPMD, Special Actions Branch/AHRC-EPO-A, Remissions or Cancellation of Indebtedness, 1600 Spearhead Division Avenue, Department 334, Fort Knox, KY  40121. Upon receipt, your request will be carefully considered under the applicable law. If the debt is remitted, all funds collected, to the extent of the remission, will be refunded. Please be advised that collection action will not cease while you await a final decision on your remission. Your debt was transferred to our office for collection on July 25, 2015. We initially notified you of your debt through a correspondence September 28, 2015, at your address on file: 11233 Tierrasanta Blvd., 32, San Diego, CA  92124. The notification letter provides information on the debt, an account statement and the actions required by law to pursue in order to settle the account. This letter also shows the methods of repayment, including a calculated monthly repayment amount, interest rate and the possible consequences for non-payment. In accordance with the Debt Collection Act of 1982 and the Debt Collection Improvement Act of 1996, we are authorized to assess interest, penalty, and administrative fees on all past due debts. These acts also authorize the reporting of past due debts to the credit bureau network, the Private Collection Agency, and the referral to the Department of the Treasury Offset Program. Your account is not currently being reported to any of these entities. We recommend you contact our Customer Service Representatives at the number listed below, to establish a repayment plan to preclude negative action on your account. If you cannot make the established payments, you may indicate your request for financial hardship by completing an application online…. 9. The applicant provides: a. court documents, including marriage licenses and divorce decrees, which document his marital status between 2005 and 2009. These documents confirm the applicant was married when he was reassigned to Hawaii on or about 4 April 2006; however, he was granted a divorce from his then-wife on 12 December 2007. He remained unmarried from 12 December 2007 through 5 July 2009, the date he married his third wife; b. rental agreements and/or leases, covering the periods 1 July 2010 through 30 June 2011 and 22 March 2012 through 30 April 2013. These documents show the applicant and/or his third wife, X____ X____-X____, entered into lease agreements to rent housing in the San Diego, CA, area during the specified times. No rental agreements and/or leases were submitted to account for the periods 5 July 2009 through 30 June 2010 and/or 1 July 2011 through 21 March 2012; c. Wells Fargo Home Mortgage statements, dated 11 February 2013 and 17 July 2015, which show the applicant's wife and another individual purchased a residence in San Diego, CA, on or about 1 February 2013; d. numerous other statements, letters, club usage reports, and other documents that appear to show the applicant's spouse resided in San Diego, CA, during the years 2010-2015; and e. copies of pages from his wife's U.S. Passport, detailing her international travel during the years 2005 through 2015. 10. An advisory opinion was obtained from the Chief, Compensation and Entitlements Division, Office of the Deputy Chief of Staff, G-4, Headquarters, Department of the Army, dated 27 March 2017, wherein he opined: a. Based on a careful review of the facts surrounding this case, the Office of the Deputy Chief of Staff, G-4, recommends disapproval of the applicant's request for administrative relief. The Office of the Deputy Chief of Staff, G-4, supports DFAS's decision to disapprove the applicant's application to cancel the debt because the applicant's spouse resided at the permanent duty station (PDS). The Joint Travel Regulations (JTR) mandate that entitlements based on the dependent's location are required to stop. Therefore, the Office of the Deputy Chief of Staff, G-4, concludes that DFAS's decision is equitable and fair. b. The JTR, chapter 10, paragraph 10408-A3, provides the Department of Defense policy for the payment of FSH. Officials at DFAS have evidence that the applicant's dependent visited the duty station exceeding 90 days; therefore, the dependent is considered to have been residing at the PDS. As a result, the with-dependent housing allowance based on the dependent's location and the FSH is required to stop. The applicant is only authorized to receive a with-dependent housing allowance based on his PDS. 11. A copy of the advisory opinion was forwarded to the applicant on 28 March 2017 for information and to allow him the opportunity to submit comments or a rebuttal. No response was received. REFERENCES: 1. JTR, chapter 10 (Housing Allowances), part E (Assignment Situations), section 5 (Member with Dependents Serves an Unaccompanied/Dependent- Restricted Tour or Unusually Arduous Sea Duty Tour – Members Only), paragraph 10408 (Member with a Dependent Serves an Unaccompanied/ Dependent Restricted Tour or Unusually Arduous Sea Duty Tour), subparagraph A (General Rules): a. Subparagraph 1 provides that a member with a dependent who serves an unaccompanied/dependent restricted tour (see Department of Defense Instruction 1315.18 (Procedures for Military Personnel Assignments)) outside the continental United States or unusually arduous sea duty outside the United States is authorized a dependent's location-based with-dependent housing allowance, or an old PDS-based with-dependent housing allowance if the dependent remained in the residence shared with the member before permanent change of station, did not relocate, and is not in Government quarters. b. Subparagraph 2 provides that if single-type Government quarters are not available for assignment to the member at the PDS outside the continental United States, and the dependent does not reside at or near the PDS, then FSH-O/FSH-B is also authorized. A member assigned to unusually arduous sea duty is not authorized FSH since Government quarters are available for assignment. c. Subparagraph 3 provides that a dependent may visit the member at the PDS for up to 90 consecutive days without affecting the with-dependent allowance or FSH. If the visit exceeds 90 days, the dependent is residing at the PDS and the dependent-location housing allowance and FSH stop. In this event, the member is authorized a PDS-based with-dependent allowance. d. Subparagraph 4 provides that if the dependent subsequently departs the PDS after day 90 to establish a residence elsewhere, FSH, if otherwise payable, and the with-dependent allowance previously authorized are reinstated as of the departure day. 2. Army Regulation 600-4 (Remission or Cancellation of Indebtedness) provides instructions for submitting and processing applications for remission or cancellation of indebtedness to the U.S. Army. Applications must be based on injustice, hardship, or both. The regulation states a Soldier's debts to the U.S. Army may be remitted or canceled in cases arising from payments made in error to a Soldier, payments made in excess of an allowance on behalf of a Soldier, debts incurred while serving on active duty as a Soldier, and debts acknowledged as valid. a. Paragraph 1-12 contains guidance for determining injustice or hardship and states the following factors will be considered: the Army's policy in the area of indebtedness to the U.S. Army (for example, excess leave or BAH while living in Government housing); the Soldier's awareness of policy and procedures; past or present military occupational specialty, rank, years of service, and prior experience are taken into consideration; the Soldier's monthly income and expenses; the Soldier's contribution to the indebtedness to the U.S. Army by not having the situation corrected; and additional income or assets (for example, spouse's salary, savings account, and bonds). b. Paragraph 1-13 outlines the following additional factors for consideration in determining injustice: the applicant did not know, and could not have known, of the error; and the applicant inquired of a proper authority and was told that the payment was correct. c. Paragraph 1-14 outlines the following additional factors for consideration in determining hardship: repayment will cause hardship because of excessive monthly expenses due to: (1) living in a high cost area, (2) living apart from family members because of military orders, (3) number and age of family members, (4) medical and dental bills that cannot be reimbursed, and (5) other unusual expenses. Expenses caused by living standards that are too high or by mishandling of funds are not a basis for a hardship case. 3. Army Regulation 37-104-4 (Military Pay and Allowances Policy) provides Department of the Army policies for entitlements and collections of pay and allowances for active duty Soldiers. It is used in conjunction with Department of Defense Financial Management Regulation, volume 7, part A, Department of Defense 7000.14-R. a. Paragraph 28-2 states that if the Secretary of Defense or any designee determines that a Soldier is indebted to the U.S. Government as a result of an erroneous payment made to or on behalf of the Soldier by an agency of the U.S. Government, that debt may be collected. b. Paragraph 32-1 states the Secretary of Defense may waive U.S. claims for erroneous payments of pay and allowances, including travel and transportation allowances, totaling less than $1,500.00 or deny waivers in any amount. A claim of the United States against a Soldier or former Soldier, arising out of an erroneous payment of pay and allowances including travel and transportation allowances may be considered for waiver within 3 years from the date of discovery, when collection of the erroneous payment would be against equity and good conscience, and not in the best interest of the United States. c. Paragraph 32-4 states a debt may not be waived merely because it resulted from administrative error. It further states that no one is entitled to unearned compensation, and only in very unusual circumstances would equity and good conscience suggest that an individual should keep an overpayment. DISCUSSION: 1. The applicant's request for cancellation or remission of his outstanding debt was carefully considered. By regulation, a member must provide clear and convincing evidence of injustice or hardship to support approval of an application for cancellation or remission of indebtedness. 2. The applicant was reassigned to Wheeler Army Airfield on or about 4 April 2006. His records do not establish whether he requested or was approved for a command-sponsored (accompanied) overseas tour; however, given the nature of his request to this Board and his receipt of monetary housing benefits over a number of years during his assignment, it may be concluded that his assignment to Hawaii was considered as an unaccompanied tour. 3. It appears the applicant was entitled to a housing allowance based on his dependent's location-based with-dependent housing allowance upon his reassignment to Wheeler Army Airfield and FSH based on his status as an officer and/or the unavailability of Government quarters. 4. The evidence of record shows the applicant was granted a divorce from his second wife on 12 December 2007 and he remained unmarried from 12 December 2007 through 5 July 2009, the date he married his third wife. It is unclear whether DFAS was made aware of his divorce, whether his housing allowances were subsequently adjusted, or what housing benefits he was entitled to or received during the period December 2007 through July 2009. 5. There is some doubt as to whether DFAS was aware of his divorce in December 2007, which may have led to an overpayment of housing allowances during the period December 2007 through July 2009. This may be a portion of the debt for which the applicant now seeks relief. 6. Upon his marriage to his third wife on 5 July 2009, the applicant would have been entitled to a housing allowance based on his dependent's location-based with-dependent housing allowance and FSH based on his status as an officer and/or the unavailability of Government quarters, provided his wife did not accompany him to Hawaii. 7. According to DFAS records, the applicant's wife did reside with him in Hawaii; therefore, his housing entitlements changed, his finance record was audited, and a debt was levied against him for overpayment of housing allowances. 8. The applicant contends his wife never stayed in Hawaii more than 90 days and she was never command-sponsored to move to Hawaii; therefore, he is entitled to dual BAH since the documents he provides show his wife lived in San Diego, CA during the period of his assignment in Hawaii. 9. In support of his contentions, the applicant provides: rental agreements and/or leases, covering the periods 1 July 2010 through 30 June 2011 and 22 March 2012 through 30 April 2013; home mortgage statements, dated 11 February 2013 and 17 July 2015, which show his wife and another individual purchased a residence in San Diego, CA, on or about 1 February 2013; and numerous other statements, letters, club usage reports, and other documents that appear to show his spouse resided in San Diego, CA, during the years 2010-2015. 10. It appears the applicant's third wife did, in fact, reside for some time in the San Diego, CA, area, and the period of her residence there coincided in part with the period of the applicant's assignment to Wheeler Army Airfield. However, no rental agreements and/or leases were submitted to account for the periods 5 July 2009 through 30 June 2010 and/or 1 July 2011 through 21 March 2012. It is possible she resided in Hawaii for portions of these periods, possibly exceeding 90 days at a time. 11. By law and regulation, no one is entitled to unearned compensation, and only in very unusual circumstances would equity and good conscience suggest that an individual should keep an overpayment. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150017490 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150019051 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2