ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 29 March 2019 DOCKET NUMBER: AR20160013289 APPLICANT REQUESTS: cancellation of his current debt of $150,000. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Birth Certificate of Dependent Son * Child Support Agreement * California All Purpose Certificate of Acknowledgment * Experian Credit Report * Form 1040EZ (Income Tax Return for Single and Joint Filers with No Dependents) * Final Decree of Divorce * DA Form 5960 (Authorization to Start, or Change Basic Allowance for Quarters and/or Variable Housing Allowance) x 5 * Memorandum for Defense Military Pay Office * Bank Statement, USAA * Notarized Child Support Agreement * Memorandum Subject: Law Enforcement Report * DA Form 2627 (Record of Proceeding Under Article 15 UCMJ) * DA Form 3508 (Application for Remission or Cancellation of Indebtedness * DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings * DA Form 5892 (PEBLO Estimated Disability Compensation Worksheet) * Physical Disability Information Report * DA Form 2823 (Sworn Statement) * Memorandum Subject: Battalion Commander's Letter of debt reduction/ proration * Memorandum Subject: Brigade Commander's Letter of debt reduction/ proration, dated 12 May 2016 FACTS: 1. The applicant states he was investigated for Basic Allowance for Housing (BAH) fraud, which he was found not guilty by his battalion commander. He was informed by Finance that since this was a BAH fraud case, he will lose all BAH and will be paid at barracks rate in order to fix the debt. He was required to submit a remission. The remission was disapproved because it was for a BAH fraud case regardless of being found innocent. There were no barracks available to the applicant for over 5 years. 2. A review of the applicant's records show: * on 16 August 2002, he enlisted in Regular Army * he served 6 years 1 month as an Army Recruiter (79R4O) * 1st marriage on 24 February 2003 * on 25 October 2006, his spouse filed for divorce and he received divorce decree * on 8 January 2010, his dependent was born * 2nd marriage on 7 September 2014 * 2nd divorce on 8 January 2016 3. On 20 March 2015, the Company Commander notified the Battalion S1 the applicant was receiving BAH he was not entitled to. 4. On 9 September 2015, a Law Enforcement Report was completed on the applicant investigating BAH fraud, and the report shows: * Offenses: Larceny (Found) and Fraud (Found) * Dates of Occurrences: 25 October 2006 through 8 January 2009 * On 26 May 2015, the Company Commander reported the applicant received BAH and Family Separation pay he was not entitled to * Investigation established probable cause to believe the applicant committed the offenses when he provided documents he knew to be false, and received BAH at with dependent rate after he was divorced from his spouse, and he received family separation pay he was not entitled to * Loss to US Government was $7800.00 5. On 22 April 2016, the applicant completed a DA Form 2823 (Sworn Statement) showing: * the applicant requested remission or cancellation of indebtedness due to the total amount of $141,603.15 * the final calculation of indebtedness is incorrect because it was based on the applicant begin charged BAH fraud in which he was found not guilty of knowingly stealing money from the government * he reports his spouse divorced him in 2006 without his knowledge, documents were forged * Finance informed the applicant he was required to pay back all BAH with dependent rate, however his son was born in 8 January 2009, entitling him to BAH with dependent rate * he received BAH at barracks rate which caused him to pay back all BAH received since 2006 * requesting recalculation because he should receive BAH with dependent rate since the birth of his son, and he was under the impression he was still legally married * requesting recalculation having to pay back family separation he received while deployed to Iraq from January 2009 to December 2009 * due to being medically retired and becoming a full time student, he will be unable to repay the debt in a timely manner 6. On 5 May 2016, the applicant's Battalion Commander provided a memo showing: * request applicant’s erroneous BAH debt be reduced to the amount he has been proven to owe and to prorate over a period of time to prevent hardship * applicant received notice that he owed $141,603 in BAH back pay as a result of an investigation for BAH fraud because it was believed he was erroneously receiving BAH for his spouse from 24 February 2003 to September 2014 * a review of his records during the investigation, it was proven there were extenuating circumstances that cause the applicant to receive BAH * the applicant was not aware of his former wife filing for divorce or the official dissolution of the marriage * the applicant became aware of the official divorce in 2014 when he hired an attorney to locate his former wife; the attorney did not locate his former spouse, but found a legal divorce decree * signature on the divorce decree was proven to be forged because the applicant was deployed to Iraq at the time the decree was signed, additionally the signatures do not match any documents he has ever signed * applicant made numerous attempts to have divorce decree revoked, he was informed he has exceeded the five year statute of limitation to challenge a divorce * applicant became a father in January 2009 with another women, not his wife, and in March 2009, the son became the applicant's legal dependent, authorizing him to receive BAH with dependent rate * on April 2016, the applicant was informed he had to repay $141,603 debt to the Army, however the applicant is responsible for debt incurred from October 2006 to March 2009, which is per the date of the legal divorce up to the date his son became his legal dependent 7. On 12 May 2016, the applicant's Brigade Commander provided a memorandum showing: * recommendation for the applicant to be approved from a reduction and proration of his current BAH debt of $141,603 * the debt was an erroneous calculation of his BAH from October 2006 to September 2014 * the repayment of this debt will cause a significant hardship on the applicant * the calculations include dates the applicant was authorized BAH * the applicant was medically retired from the Army and as a result of this error he has received a no pay due * he was informed he would not receive any final military payments or retirement benefits until this issue is resolved 8. On 26 May 2016, the applicant received a memorandum from the Army Human Resources Command, Director Defense Military Pay Office Indianapolis showing: * a review of the applicant's documents indicate the applicant committed fraud * he received BAH and Family Separation Pay from 25 October 2006 to 9 October 2014 * when he arrived to a new duty station on 9 October 2014, he claimed former spouse on travel voucher and DA 5960(Authorization to Start, or Change Basic Allowance for Quarters and/or Variable Housing Allowance), but he had recently remarried on 7 September 2014 * the applicant should be liable for all debt accrued since he deliberately made a false claim * the total indebtedness in this case for BAH and FSA is $152,322.36 * recommend disapproval based on false claim/ fraud 9. On 8 June 2016, the applicant received a memorandum from Army Human Resources Command, Chief Operations Management Division showing: * the applicant’s remission or cancellation of indebtedness in the amount of $152,322.36 has been reviewed and returned without action * in accordance with Army Regulation 600-4 Chapter 1, paragraph 1-8, subparagraph e, a debt that is obtained or converted for their own use through fraud or larceny may not be remitted or canceled under title 10 USC 4837 * a final investigation by the Fort Knox Criminal Investigation Command on 9 September 2015 determined fraud and larceny existed * the applicant can apply to the Army Board for Correction of Military Records for further review if they feel an injustice occurred 10. On 4 April 2018, an Advisory Opinion was requested from Army Human Resources Command by Army Review Board Agency (ARBA), and it shows: * the original request was received by this office on 31 May 2016 and was returned without action based on findings of CID Investigation that determined fraud and larceny existed in this case * HRC is not authorized to process a case involving larceny and/or fraud, they cannot provide an advisory opinion 11. On 17 October 2018, ARBA received an advisory opinion from the Office of the Deputy Chief of Staff G-1, Chief Compensation and Entitlements Division showing * it is the opinion of the office that no relief be granted in regards to amount of $152,322.36 indebtedness * the documents provided within the request and within the applicant's master personnel file reflect he was culpable in the fraudulent receipt of his BAH * it is the opinion of this office that the debt established by Defense Finance and Accounting Service (DFAS) is correct because of the following: o the criminal investigative report indicated one charge of larceny and fraud was founded o the amount of larceny and fraud was $7800.00, the calculation of the difference between the entitlement to BAH with dependents and the amount of BAH without dependents for the period of 25 October 2006 and 8 January 2008 and the amount of family separation pay * the debt established by DFAS and placed on the applicant is the calculation of loss of BAH with dependents and family separation pay for the period of 25 October 2006 to 30 April 2015 * DFAS declared the period of 25 October 2006 to 30 April 2015 due to the applicant's claim that he was still married and unaware of his divorce, but after reviewing multiple documents signed by the member, he certified that his first wife relocated with him during Permanent Change of Station and on several BAH certifications * he also certified his dependency status with both his first former spouse and child * DFAS was unable to determine the proper BAH; DFAS established the debt as a tainted claim towards BAH * there is insufficient evidence that the applicant was paying child support for his child; a court order was established over 2 years after the birth of the child, but payment was not evident in the applicant's records 12. Army Regulation 600-4 (Remission or Cancellation of Indebtedness) The objectives of remission or cancellation of debt are to remit or cancel debts to the U.S. Army that are considered to be unjust and in the best interest of the United States. Indebtedness to the U.S. Army that may be remitted or canceled under 10 USC 4837. A Soldier’s debts to the U.S. Army may be remitted or canceled on the basis of this regulation 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 or in an active status as a Soldier * Debts acknowledged as valid * Debts for which an appeal has been denied * Debts for which a waiver has been denied * Debts established as a result of financial liability of investigation of property loss Indebtedness to the U.S. Army will not be remitted or canceled under the following conditions: * When a Soldier’s pay is not reduced promptly in connection with forfeiture of pay imposed by a court-martial sentence or under Uniform Code of Military Justice, Article 15 (UCMJ, Art. 15). * When debt is incurred while not on active duty or in an active status. * If a Soldier will receive less than an honorable discharge at time of separation. * When a Soldier is held liable for loss, damage, or destruction of property to another branch of Service. * When debts are due to loss of public funds obtained or converted to own use through fraud, larceny, embezzlement, or other unlawful means. * When debts are due to fines imposed by a court-martial sentence. * The amount is $150 or less and based on hardship only. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The applicant’s contentions, letters of support, and advisory opinions were carefully considered. Based upon the preponderance of evidence, the Board agreed fraud was founded by law enforcement and the debt is valid. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION ? 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. 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. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 1. Army Regulation 600-4 (Remission or Cancellation of Indebtedness) This regulation provides policy and instructions for submitting and processing packets for remission or cancellation of indebtedness to the U.S. Army. Requests for remission or cancellation of indebtedness must be based on injustice, hardship, or both. This includes debts caused by erroneous payments to or on behalf of a Soldier if a waiver has been requested and denied. In accordance with the authority of Section 4837, Title 10, United States Code (10 USC 4837), may remit or cancel a Soldier’s debt(s) to the U.S. Army if such action is in the best interests of the United States, the debt was incurred while on active duty or in an active status, and Soldier received an honorable discharge. Assistant Secretary of the Army (Manpower and Reserve Affairs) ASA (M&RA)) wil consider applications that are not within the authority of the Deputy Chief of Staff (DCS), G–1 or the Commanding General (CG), U.S. Army Human Resources Command (HRC). The application packets must show unusual circumstances within the scope of the authority of the SECARMY (10 USC 4837 and 32 USC 710(c)) or concern a debt amount greater than or equal to over $100,000. The objectives of remission or cancellation of debt are to remit or cancel debts to the U.S. Army that are considered to be unjust and in the best interest of the United States. A Soldier’s debts to the U.S. Army may be remitted or canceled on the basis of this regulation 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 or in an active status as a Soldier. * Debts acknowledged as valid. * Debts for which an appeal has been denied * Debts for which a waiver has been denied * Debts established as a result of financial liability of investigation of property loss Indebtedness to the U.S. Army will not be remitted or canceled under the following conditions: * When a Soldier’s pay is not reduced promptly in connection with forfeiture of pay imposed by a court-martial sentence or under Uniform Code of Military Justice, Article 15 (UCMJ, Art. 15). * When debt is incurred while not on active duty or in an active status. * If a Soldier will receive less than an honorable discharge at time of separation. * When a Soldier is held liable for loss, damage, or destruction of property to another branch of Service. * When debts are due to loss of public funds obtained or converted to own use through fraud, larceny, embezzlement, or other unlawful means. * When debts are due to fines imposed by a court-martial sentence. * The amount is $150 or less and based on hardship only. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160013289 6 1