BOARD DATE: 10 August 2017 DOCKET NUMBER: AR20160007386 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: 10 August 2017 DOCKET NUMBER: AR20160007386 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: 10 August 2017 DOCKET NUMBER: AR20160007386 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 debt incurred due to receiving Basic Allowance for Housing (BAH) be forgiven and reimbursement of funds collected as a result of this correction. She also requests personal appearance before the Board. 2. The applicant states she had (and still has) dependent children for whom she is required to provide court-ordered, financial support. She was authorized to receive BAH at the with dependents rate while she was stationed outside of the continental United States (OCONUS). a. Per the Joint Federal Travel Regulation (JFTR), the Defense Finance and Accounting Service (DFAS) determined she owed a debt based on a change (of code) from "married" to "with dependent children." b. She states that she has paid the debt in full; however, she requests the collected monies be refunded. She adds that she was recently notified of her involuntary separation due to reduction in force. The return of the collected funds will assist her in paying off additional debt that she incurred as a result of the offset that occurred in her monthly pay due to the debt collection action. 3. The applicant provides copies of her: * divorce decree and consent order * Officer Record Brief * financial support document * documents related to remission of debt action * notification of separation CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the U.S. Army Reserve on 20 August 1998. She further enlisted in the Regular Army on 17 September 1998 and served honorably through 31 July 2008. 2. The applicant was appointed as a Reserve commissioned officer of the Army, in the rank of second lieutenant, on 3 August 2008. a. She was promoted to captain/pay grade O-3 on 1 October 2011. b. She served in Korea from 22 September 2013 to 20 September 2014. 3. A review of the applicant's Army Military Human Resource Record, Finance Records Review folder, revealed the following: a. A Circuit Court for Anne Arundel County, Judgement of Absolute Divorce, that shows Richard R___ (defendant) was granted a divorce from the applicant on 2 April 2014. It also shows, in pertinent part, the applicant was ordered to pay the defendant $3,500 per month in child support on the 1st day of each month beginning on 1 May 2014. If further shows the provisions of the Consent Order as to custody and visitation of their children remained in effect. b. A DA Form 5960 (Authorization to Start, Stop, or Change Basic Allowance for Quarters (BAQ) and/or Variable Housing Allowance (VHA)), completed by the applicant to recertify her eligibility for BAQ, that shows in: * item 7 (BAQ Type), an "X" in the block indicating "With Dependents" * item 8 (Marital/Dependency Status) – * an "X" in block b (Married) and in line 3 (Date of Marriage), the entry: "20 November 1996" * an "X" in block e (Dependent Child) and in line 4 (Child in Custody of), no entry (i.e., is blank) * item 10 (Dependents/Sharers), the following handwritten entries (all with the same address) – * Richard R____, Spouse * Emmanuel R____, Son, XX January 2000 * Fabian R____ Son, XX September 2002 * item 13 (Member's Signature), she certified the information and signed the form on 9 October 2014 c. A DA Form 5960, completed by the applicant to recertify her eligibility for BAQ, that shows in: * item 7, an "X" in the block indicating "With Dependents" * item 8 (Marital/Dependency Status) – * no entry in block b (Married); no entry in block c (Divorced); and in line 3 (Date of Marriage, Divorce/Separation): "2 April 2014" * an "X" in block e (Dependent Child) and in line 4 (Child in Custody of), an "X" in the block indicating "Former Spouse" * item 10 (Dependents/Sharers), the following handwritten entries (all with the same address) – * Elijah R____, Child, XX November 1997 * Emmanuel R____, Child, XX January 2000 * Fabian R____ Child, XX September 2002 * item 13, she certified the information and signed the form on 7 November 2014 4. In support of her application, the applicant provides the following documents: a. A Circuit Court for Anne Arundel County, Consent Order, that shows, on 15 July 2014, Richard R___ (defendant) was awarded $3,100 per month in child support commencing 1 May 2014 (said amount was not retroactive). b. Her Officer Record Brief, dated 31 July 2015, that shows she: * served 12 months OCONUS in Korea beginning 1 October 2013 * was divorced (0 dependent adults and 3 dependent children) c. United Services Automobile Association (USAA), Federal Savings Bank, letter, dated 10 April 2015, that provided the applicant verification of all funds transferred from her USAA account to Richard R____'s USAA account during the period 1 May 2014 to 31 October 2014. d. Bravo Company, U.S. Army Element, Troop Command-South, Fort Belvoir, VA, memorandum, dated 1 July 2015, subject: Remission of Debt. It shows the company commander stated that due to administrative error and miscommunication, the applicant was overpaid in the amount of $16,750.60 throughout the duration of her Army service on active duty. The issue was identified in March 2015 that resulted in the initiation of a debt recoupment. The commander noted the period under consideration was while the applicant was OCONUS (in Korea) from 1 October 2013 to 25 September 2014. (1) The commander stated, during this period, the applicant left her spouse and three dependent children at her prior duty station and she was receiving BAH (with married coding) as well as Overseas Housing Allowance (OHA). Her divorce was finalized on 2 April 2014 and she paid her child support payments via electronic funds transfer to her former spouse's account. "[The applicant] indicated that at that time she was unaware that payments should have been made via allotment for DFAS tracking." The applicant also indicated to the commander that "she was also unaware that the codes needed to be changed in DFAS from 'Married' to 'With Dependent Children' when she went to DEERS [Defense Enrollment Eligibility System] to have her former spouse removed as her dependent. (2) The commander added, "[The applicant] stated that she was not informed of this until she arrived at Fort Belvoir in October 2014." The commander concluded that the applicant was entitled to BAH with dependents and recommended the applicant's debt be greatly reduced. e. Page 1 of 2 of a DA Form 2823 (Sworn Statement), written by the applicant (initialed, but not signed), dated 8 November 2015, in support of her request for remission of debt. She provided a summary of her pay and entitlements while serving OCONUS in Korea; acknowledged she was granted a divorce on 2 April 2014; and that she paid child support via electronic funds transfer. She stated, "I was unaware at that time that payments should have been made via allotment for DFAS tracking. When I went to DEERS to remove my former spouse, I was under the assumption that all systems were connected and finance would automatically default to with dependents, I was not informed that I needed to go to finance to have the coding changed from married to with dependent children. I was still authorized BAH with dependent rate because I still have dependents other than a spouse." f. U.S. Army Human Resources Command (HRC), Fort Knox, KY, memorandum, dated 8 February 2016, subject: Remission or Cancellation of Indebtedness. It shows the Chief, Operations Management, notified the Director, Defense Military Pay Office, National Capital Region, Fort Belvoir, VA, the applicant's application for remission or cancellation of indebtedness in the amount of $16,750.00 was disapproved. g. A DD Form 139 (Pay Adjustment Authorization) and DD Form 1131 (Cash Collection Voucher), both dated 22 February 2016, that show the applicant submitted a request to pay off a "Hardship Duty Pay" (HDP) debt; the original debt amount was $17,184.65; she consented to the collection of the debt in the amount of $6,091.14; and the payoff debt balance for overpayment of HDP was $6,091.14." h. HRC, Fort Knox, KY, memorandum, dated 8 February 2016, that shows the Director, Officer Personnel Management, notified the applicant she was selected for involuntary separation by a board convened under the provisions of Title 10, U.S. Code, section 638a, and that she would be separated on 1 December 2016. 5. In connection with the processing of this case, an advisory opinion was obtained from the Chief, Compensation and Entitlements Division, Office of the Deputy Chief of Staff (ODCS), G-1, Washington, DC, dated 25 October 2016. a. The advisory official stated that after a careful review of the facts surrounding the applicant's case, the ODCS, G-1, supports the HRC decision to disapprove her application to cancel the debt and recommends the Army Board for Correction of Military Records disapprove her application. b. The advisory official noted the applicant failed to notify her servicing finance office of her divorce and change in dependency status, which resulted in her being overpaid the BAH. Coordination with DFAS revealed the basis for the debt was the applicant divorced while serving a dependent restricted tour in Korea and she was ordered to pay child support to the ex-husband. This resulted in a change in her dependency status (to with children). The JFTR requires recertification of eligibility to receive a with-dependent housing allowance (emphasis added). Because she was serving overseas, she was only authorized to receive a with-dependent OHA based on her duty station, provided she was not residing in a single-type government quarters and had a valid lease agreement. Although she reported her dependency status change to her supporting office, she did not report it to her supporting finance office responsible for her pay. 6. On 2 November 2016, the applicant was provided a copy of the ODCS, G-1, advisory opinion for information and to allow her the opportunity to submit comments or a rebuttal. 7. On 2 November 2016, the applicant responded by email message. a. She stated, in pertinent part: "It was a matter of a difference in a code, as I am receiving BAH with dependent children. The amount of money would have been the same that was distributed to me. I was already paying the $500 difference between the BAH for Fort Meade and the court-ordered amount of my base pay." b. Later that same day, she followed up with the following email message: "I understand and accept my responsibility for not reporting the information to finance. I was not aware that the systems do not communicate with each other between DEERS and DFAS. If it is found that there is a significant difference in the coding between BAH with dependent children and the BAH that I received for being married, then I will pay that difference. However, my obligation to provide monetary compensation to care for my family while serving overseas did not change because I got divorced. This debt is causing hardship as I now have to pay college tuition for one of my dependent children and I have been selected for separation. I am faced with not only being one of those soon to be unemployed after serving on active duty for almost half of my life but now in substantial debt." REFERENCES: The JFTR, chapter 10 (Housing Allowance), Part B (Dependency, Members Only), provides in paragraph D (Legal Separation Agreement or Court Order Stating Support Amount), if there is a court order or legal separation agreement stating the support amount, a member must contribute to the dependent's support the amount specified therein, but in no case may the support payment be less than the applicant's BAH–Difference rate. DISCUSSION: 1. The applicant contends, in effect, that her debt incurred due to receiving BAH at the incorrect rate should be forgiven and she should be reimbursed all funds collected as a result of this correction because she was unaware of all of the administrative actions she was required to take in order for her records to be to updated, which resulted in the excess payment of BAH. 2. The applicant had approximately 10 years of prior active duty service as an enlisted Solider prior to being appointed as a commissioned officer. a. She served overseas in Korea on a dependent-restricted tour from on or about 22 September 2013 to 20 September 2014 and, in pertinent part, she received OHA and BAH at the "with dependent" rate. b. On 2 April 2014, approximately half-way through her overseas tour, the applicant was divorced and the court ordered her to pay her former spouse $3,500 per month in child support on the 1st day of each month beginning on 1 May 2014 (changed to $3,100 in July 2014, but not retroactive). 3. The applicant's contention that she was unaware that the systems (DEERS and DFAS) do not communicate with each other is noted. a. There is no evidence of record that shows the applicant changed her marital status (in DEERS or with DFAS) from "married" to "divorced" (or to "single") while she was serving overseas. b. About six months after her divorce, the applicant departed Korea and returned to the United States. On 9 October 2014, she "recertified" her BAQ "with dependents" entitlement (for DFAS purposes). At that time, she indicated that she was married (to Robert R___) and had 2 dependent children. c. It is noted she then "recertified" her BAQ "with dependents" entitlement (for DFAS) again, on 7 November 2014. She did not indicate her marital status at that time; however, she did indicate the date of her divorce and that her three (3) dependent children were in the custody of her former spouse. 4. On 8 February 2016, the Chief, Operations Management, HRC, disapproved the applicant's application for remission or cancellation of indebtedness in the amount of $16,750.00. On 22 February 2016, she consented to the collection of the remaining/payoff debt balance in the amount of $6,091.14. 5. The ODCS, G-1, in coordination with DFAS, supports the HRC decision to disapprove her application to cancel the debt, recommends denial of her request for remission/cancellation of the debt, and recommends denial of her request for reimbursement of funds collected for the debt. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160007386 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160007386 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2