ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 17 May 2019 DOCKET NUMBER: AR20160015052 APPLICANT REQUESTS: the remission or cancellation of indebtedness in the amount of $66,210.67 for overpayment of basic allowance for housing (BAH) and cost of living allowance (COLA) payments. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-Authored Statement * Three Letters of Support * DA Form 2823 (Sworn Statement) – Personal * DA Form 2823 – DJL * DA Form 3508 (Application for Remission or Cancellation of Indebtedness) * Support Statements for DA Form 3508 * DD Form 149 with Additional Evidence * Certificate of Non-Availability Statement (CNA) Control #: UPH-8662501-17- 000000020 * Memorandum from Commander FACTS: 1. The applicant states he is requesting remission or cancellation of indebtedness in the amount of $66,210.67. He attempted to submit the proper paperwork on numerous occasions only to be told that finance lost the paperwork or required additional documentation. He believes the discrepancy is due to the information not reaching the appropriate site. His statement details the following timeline: a. He submitted a request to finance based on hardship stemming from his July 2013 divorce where the judge ordered he be responsible for the $1,390.54 mortgage payment for the home in Colorado, the spouse’s residence. He also had an expense for his own residence at his duty station in Hawaii for $3,267.91 and it presented a heavy burden. a. b. He meticulously checked his Leave and Earnings Statement (LES) from August 2013 through August 2014 to confirm he was still receiving the BAH at the "with dependent rate" and assumed it had been granted since the rate remained consistent. c. On September 2015, he noticed a problem on his LES. There was a negative COLA amount of $696.03 and a total debt of $1,200.03 d. On October 2015, he noticed for a second time two additional debts. The BAH reflected a debt of $18,881.40 and a debt for COLA in the amount of $1,425.33. A total advance debt was noted in the amount of $28.822.10. e. On November 2015, he was completely disheartened when the numbers grew larger. The BAH debt was documented at $36,348.97, the advance debt reflected $39,342.97 and a total debt of $66,210.67. f. He submitted a second hardship packet to finance in November 2015. He was unable to submit the original packet from July 2013 because he did not have them, but did provide statements from witnesses confirming he previously submitted the packet to finance. g. He received notice from his squad leader on December 2015, that a third packet was required because finance lost or misplaced the last packet. A subsequent notice from the squad leader in January 2016 required the applicant to submit supporting documentation from the commander and lieutenant colonel (LTC) because finance lost or misplaced the memoranda. h. On February 2016, the squad leader notified the applicant again of the leadership support documents required due to the misplacement or loss by finance. This was the fifth request for documentation that prevented the packet from being processed. A sixth request followed on March 2016, for the LTC’s memorandum that was again lost or misplaced. i. He received a letter from finance in May 2016, for the indebtedness owed in the amount of $66,210.67. He stated he was constantly proactive in submitting the required documents at every step, he did not attempt to conceal anything or fraudulently attempt to obtain money, and the challenges stemmed from mistakes made processing the paperwork which should not result in him bearing the burden of paying the debt. j. In the midst of challenges with finance and the news of the indebtedness, he was diagnosed with stage four lymphoma in August of 2014. He underwent numerous surgeries, chemotherapy, radiation treatments, and extensive rehabilitation efforts followed by a medical evaluation board that threatened his ability to serve. He fought to continue to serve because he loves what he does and would like to continue to serve honorably, but the debt is having a significant impact on himself and his family. He humbly requests the cancellation of debt. a. 2. The applicant provides: a. Three letters of support stating he previously submitted an exception to policy request in July, 2013, and supporting his request to continue to receive BAH with dependent rate. * GWJ dated 20 October 2015 – First Sergeant * DJL dated 2 November 2015 – Team Leader * DDS dated 5 November 2015 – Operations Noncommissioned Officer in Charge (NCOIC) b. DD Form 2823, dated 19 November 2015, from DJL stating at the time he served as the assistant team leader and he reaffirmed the applicant submitted the packet in July 2013, to the platoon sergeant and the documents requesting an exception to policy to continue to receive BAH at the with dependent rate were filed through the unit. c. DD Form 2823, dated 20 November 2015, a sworn statement made by the applicant under oath, restated he submitted paperwork requesting an exception to policy to continue to receive BAH at the with dependent rate to the S-1 following his divorce in July, 2013. He made the request due to hardship incurred after being ordered to pay $1,390.54 for the home in Colorado and still having responsibility of the residence in Hawaii with a payment of $3,267.91. d. DA Form 3508, dated 25 January 2015, an application for remission or cancellation of indebtedness submitted to Headquarters, Tripler Army Medical Center with documents and statements in support of the application. The application also included a copy of the initial memorandum sent on 22 July 2013 requesting BAH at the with dependent rate. e. A second DD Form 149, dated 2 March 2017, was submitted with new evidence to support the initial request. An approved certificate of non-availability (CNA) to reside off post and to receive BAH without the dependent rate. The document further states in the notes that an exception to policy packet was submitted, processed, and approved by the Garrison Commander for the period of 18 July 2013 through 10 August 2015, the period which the applicant incurred the indebtedness. f. He also included a memorandum from the Commander which indicated he was awarded the CNA and he supported getting the matter resolved at the earliest opportunity considering the applicant consistently made efforts to remedy the situation since November, 2015. The Commander requests careful consideration and further noted that the applicant took appropriate steps at every level to submit the packet; however, the prior leadership team failed him. 3. A review of the applicant’s service record shows: 1. a. He enlisted in the Regular Army (RA) on 8 August 2006. He was married to Kr . They divorced on an unknown date. b. He married Ar on an unknown date. They divorced on 12 July 2013. He reenlisted on 14 October 2010, 25 March 2012, 1 June 2016, and he reenlisted for an indefinite term on 13 December 2018. c. He arrived in Hawaii around January 2013 and he is currently assigned to that command/installation. He married his spouse Me on 11 August 2015. He was promoted to sergeant/E-5 in May 2009 and to staff sergeant/E-6 in October 2018. d. He is currently still serving on active duty. e. A memorandum from Human Resources Command (HRC), dated 24 May 2016, showed the application for remission or cancellation of indebtedness in the amount of $66,210.67 had been reviewed and disapproved. The review determined that no grounds exist to remit or cancel the debt based on hardship and/or injustice. The applicant was advised to appeal, if he felt an injustice occurred. f. An advisory opinion was received from the Army G-1 on 8 May 2018 in the processing of this case. An advisory official stated: (1) Based on a careful review of the facts surrounding this situation, the G-1 recommend the Board disapprove the applicant's request for administrative relief. Based on their review of the facts, the G-1 supports HRC's decision to disapprove his application to cancel the BAH and COLA debts. The applicant continued to receive BAH and COLA based on Hawaii after his divorce without authority. Therefore, the Army G-1 believes HRC's decision is fair and equitable. (2) The applicant divorced in July 2013, having no other dependents to claim for housing allowance purposes. Because of the divorce, he was required to report the change in dependent status to his supporting finance office. However, he through his own admission, continued to receive with-dependent BAH and COLA throughout his assignment in Hawaii until it was eventually discovered by the finance office. Rather than elevating the continued allowance payments to his chain of command, he submitted several exception to policy requests to continue to receive with-dependent allowances to satisfy court ordered financial obligations. The Joint Travel Regulation, the proponent of BAH and COLA, does not provide the authority to continue with- dependent allowances when the member does not have qualifying dependents. (3) The applicant continued to receive BAH and COLA despite knowing he was not eligible to receive the allowances. Moreover, he failed to take the proper steps to notify his chain of command and servicing finance office. Therefore, the Army G-1 believes this is sufficient to disapprove his application for administrative relief. (1) g. On 8 May 2018, the advisory opinion was forwarded to the applicant for acknowledgement and/or response. The applicant stated in his rebuttal: (1) He referenced the documents previously provided with the DD Form 149s and stated he requests the advisory opinion be rejected in part as the facts for the disapproval were incorrect. (2) He asserted that all appropriate channels were consulted in the processing of his request for relief of BAH debt. He restated the timeline of events as described in the initial self-authored statement. (3) He referenced the approved CNA and noted the approval of the BAH without dependents rate for the 18 July 2013 through 10 August 2015 previously noted as the dates of indebtedness. (4) He states that he continued to make efforts to have it rectified and the recent leadership team was able to assist in those efforts. He is therefore requesting the BAH debt be decreased by $57,704.71 as that is the amount of non-dependent BAH for the dates in question. 5. By regulation, a housing allowance rate is based on the member’s pay grade, permanent duty location, dependency status, and accompaniment of dependents, if eligible and applicable. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was not warranted. Based upon the G1 advisory opinion’s finding that the applicant continued to receive BAH and COLA despite knowing he was not eligible to receive the allowances and failed to take steps to correct the error, the Board concluded that the debt was fair and just and should be collected from the applicant. 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. REFERENCES: 1. Department of Defense Instruction (DoDI) 5154.31 Volume Six provides that permanent housing allowances may be authorized pursuant to section 403 of Title 37, United States Code (Reference (b)). Generally, the prescribed housing allowance rate is based on the member’s pay grade, permanent duty location, dependency status, and accompaniment of dependents, if eligible and applicable. a. Cost of living allowance (COLA) is a supplemental allowance that compensates for variation in non-housing costs for designated high cost areas. b. Basic allowance for housing (BAH) is an allowance that offsets housing costs in civilian markets. 2. Army Regulation (AR) 608-99 (Family Support, Child Custody, and Paternity: Personal Affairs) in effect at the time, sets forth the basic authority for financial requirements in the absence of a court order or written support agreement. a. A Soldier’s obligation to provide financial support to family members under this regulation is not contingent upon whether the Soldier is entitled to, or receiving, any form of BAH. b. Where a Soldier’s entitlement to is based solely on the financial support the Soldier provides to a family member, the Soldier’s entitlement to his allowance is only authorized if the monthly financial support provided by the Soldier is at least the amount of the BAH-DIFF, the difference between the BAH II-WITH and the BAH II-WITHOUT for a Soldier’s pay grade. c. The Defense Finance and Accounting Service may cancel a Soldier’s entitlement to BAH-WITH or BAH-DIFF and recoup past payments of BAH-WITH or BAH-DIFF when a Soldier’s monthly financial support is less than BAH-DIFF regardless of the current residence of the supported family member, or if the supported family member is a child, regardless of the Soldier’s marital status when the child was born. d. Normally, a Soldier is not entitled to BAH-WITH on behalf of a former spouse or stepchildren after the divorce.