ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 2 January 2020 DOCKET NUMBER: AR20170001539 APPLICANT REQUESTS: cancellation/remission of a $2,300.75 debt to the US government due to an overpayment of Basic Allowance for Housing (BAH). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Correction of Military Records) * Applicant’s Statement * DD Form 3508 (Application for Remission or Cancellation of Indebtedness) * DA Form 2823 (Sworn Statement) * Notice of Potential Overpayment * Memorandum from Applicant * Memorandum to Company Commander * Memorandum to Battalion Commander * Leave and Earning Statement (LES) * Memorandum from Chief, Special Actions Branch * Memorandum from Director, Defense Military Pay Office (DMPO) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states he owes a debt of $2,300.75 according to the Fort Gordon, GA Finance Office due to receiving an unauthorized BAH rate. He received notice as he was out processing the installation for retirement. The period the injustice occurred was between December 2012 and April 2014. He received BAH with dependents, due to his having to pay support for a child from a previous marriage. Seven months after he arrived at Ft Gordon, he got married to another service member (SM) who was stationed at Ft Jackson, South Carolina and received BAH with dependents, for her two children. He was told that after he got married to the SM, his BAH rate should have changed to without dependents because his child wasn't physically with him. He felt this was an injustice based on the fact that unless he was notified by the proper personnel (brigade S1, Local finance office, etc) he would have not known his BAH should be adjusted. There were several check and balances that didn't catch the error either. Only upon out processing did the finance office discover the error and made him aware of the debt. He did not tell the finance personnel that his daughter wasn't with him, they assumed. They told him that she wasn't. He was told that based on his rank and time in service, he should have known better. His argument was, how would he know better when finance wasn't his specialty or Military Occupational Specialty (MOS)? Anytime he ever had a pay issue, he was to go see finance except for this time. If he was a junior service member, the chain of command would want to know how did this happen and highlight, who failed at doing their job correctly. He felt that because he was a senior NCO (Noncommissioned Officer) and retiring that he should bare more responsibility. He felt the board should consider his application because if he had not been retiring or permanent change of station (PCSing), he would have never known it. It was only discovered as he was out processing. 3. The applicant provides: a. The applicant statement dated 30 December 2016, stated he was informed by the Fort Gordon, Georgia finance office that he owed the amount of $4,601 due to receiving the incorrect BAH rate for approximately 16 months. He submitted a remission packet to the local finance office and the Human Resources Command (HRC) responded by suspending half of the debt in the amount of $2,300.75. He asks that that consideration be given to suspend the entire debt due to no fault to himself. He was receiving BAH at the with dependent rate (at Fort Gordon, GA) because he had custody of his daughter. He married another SM who had children and was also receiving BAH at the with dependents rate (at Fort Jackson, South Carolina). They each field paperwork for enrollment into the married army couples program (MACP). His spouse PCS’d to Fort Gordon, GA and they began living under one household. He was not told by the personnel service center or finance that his BAH form need to be submitted for change. He received a medical retirement and while out processing he was informed by Fort Gordon finance office he might owe the government back pay due to receiving the improper BAH rate from the time he married the SM. When his spouse processed Fort Gordon Finance office she was told she would receive BAH at the without dependents rate since the applicant was already receiving BAH at the with dependent rate and he was the higher ranking of the two. The error was not detected by the commander’s monthly finance review, personnel records review or the local finance office. It was recommended by the chief finance officer at Fort Gordon finance office that he submit a remission packet for the debt because if it was an error on his part he had no idea of the disparity in rate or why he shouldn’t have received the with dependent rate while he was stationed apart from his spouse and still paying child support for his daughter and having her physically with him outside and between the school months. b. Notice of potential overpayment dated 19 September 2016 from DMPO stated military records indicated he was indebted to the US government in the amount of $4601.50 for overpayment of BAH for the period of 28 December 2012. The applicant enclosed a completed application for remission or cancellation of indebtedness. c. The DA Form 3508 dated 23 September 2016 shows the amount of debt, $4,601.50 and the date he was notified of the indebtedness as 23 September 2016. It also showed he had one child and that he was married to another SM. It also stated the child of the applicant resided with him during months she was not in school-holidays and summer months specifically. d. DA Form 2823 dated 28 September 2016 from the spouse X__, X__ who stated they were married on 28 December 2012. Prior to being married, they were both receiving BAH with dependent rate for their dependents. Once married she process her request for enrollment into the MACP 10 January 2013 through Fort Jackson. The applicant processed his paperwork at the same time through Fort Gordon. When she submitted her paperwork for process, she was never informed that any additional paperwork was required. Shortly after PCSing to Fort Gordon, 29 April 2014, she in processed and was called by Fort Gordon finance department informing her that she and the applicant could not both receive BAH with dependent rate. She stated they had been and the lady said probably because they were living apart and they could no longer both received BAH with dependent rate. She responded to and stated that made since, the applicant would continue to receive the with dependent rate and she would receive the without dependent rate. May 2014 through September 2016 she did not receive the with dependent BAH rate. She was never made aware through personnel contact, written correspondence, email or phone at any time prior. e. The applicant requested remission of debt to the Defense Finance and Accounting Services (DFAS) for through his commander on 20 October 2016. He stated he was completely aware of the seriousness of the situation and more than willing to see the debt paid in full should it be necessary. f. His company commander memorandum dated 21 October 2016, certified he had read and reviewed the documentation on the situation concerning the applicant and discussed the situation with the applicant. The commander stated the large gap in time between when the incorrect BAH rate was implemented and when it was identified by the Army, does not in any way diminish or change the Army’s requirement to endorse that the funds are properly accounted. All available documentation lead him to strongly believe that the applicant was not at fault. Although the applicant’s overpayment was due in no part to neglect on the applicant’s part, the Army does not have a statute of limitations on collecting overpayment to service members. He non concurred with the applicant's request for remission of BAH debt. He believed the applicant should have to pay his debt like any other Soldier who received overpayment from the Army. He also strongly felt that the mechanisms responsible for causing the disservice to the applicant receive attention in order to prevent similar unnecessary hardships on other Soldiers. g. His commanding officer on 26 October 2016 certified she had read and reviewed the documentation on the situation concerning the applicant and he non concurred with the applicant’s request for remission of BAH debt. She was the Special Court Martial convening authority for the applicant. h. His Leaves and Earning Statement for the period 1-31 October 2016 showed he received $1415.70 at the with dependent (child) BAH rate. i. The memorandum from the Chief, Special Actions Branch dated 7 December 2016 stated the application for remission or cancellation of indebtedness for the applicant in the amount of $4,601.50 had been reviewed and was partially approved for $2,300.75. The review determined that no grounds exist to remit or cancel the remaining portion based on hardship and /or injustice. The applicant could contact the local finance office for proration of the remaining balance. He could also apply to the Army Board for Correction of Military Records for further review if he felt an injustice occurred. The reply did not imply that an error or injustice occurred. j. The memorandum from the Director, DMPO dated 8 December 2016 stated the collection balance due of $2,300.00 would begin to be collected on his next LES. Contact the debt management office if he would like to make alternative arrangements for payment. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 18 March 1994. b. Orders 013-004 dated 13 January 2012, he PCS’d form Camp Arifjan, Kuwait to Fort Gordon, GA item h dependents YES and item i he was authorized shipment of household goods and movement of Family member, I__ (date of birth X X__ 20XX) from Baltimore, Maryland to his next duty station, he was authorized to assist with the move of family member. c. His state of South Carolina License and Certificate of Marriage dated 28 December 2012 indicates his marriage to X__ X__. d. Orders 258-0900 dated 14 September 2016, he was reassigned for separation processing. He was released from assignment and duty because of physical disability incurred while entitled to basic pay and under conditions that permit his placement on the Temporary disability Retired List (TDRL). His effective date of retirement was 6 December 2016 and placed on the retirement list 7 December 2016. e. DD Form 214 dated 6 December 2016 indicates he was honorably retired for disability, temporary (enhanced). He served 22 years, 8 months, and 19 days of active service that period. 5. The Defense Travel Management Office states Basic Allowance for Housing (BAH) is a U.S. based allowance prescribed by geographic duty location, pay grade, and dependency status. It provides uniformed Service members equitable housing compensation based on housing costs in local civilian housing markets within the United States when government quarters are not provided. 6. The JTR, chapter 10 states unless otherwise authorized/approved, a member’s housing allowance is based on the Permanent Duty Station (PDS). A member may be authorized a housing allowance based on the location at which the dependents maintain a permanent residence, or the old PDS, if authorized/approved through the Secretarial Process. 7. Army Regulation 600-4 (Remission of Cancellation of Indebtedness) states, 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 debt to the U.S. Army may be remitted or canceled in cases arising from payments made in error or in excess of an allowance, and debts in which an appeal has been denied to the Soldier. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found relief was not warranted. Based upon the clemency already provided the applicant by HRC cutting the debt in half, as well as the rank and experience of the applicant at the time of the overpayment, the Board concluded that there was insufficient evidence of an error or injustice which would warrant changing the applicant’s military record. 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. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 600-4 (Remission of Cancellation of Indebtedness) states, 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 debt to the U.S. Army may be remitted or canceled in cases arising from payments made in error or in excess of an allowance, and dents in which an appeal has been denied to the Soldier. 3. The Defense Travel Management Office states Basic Allowance for Housing (BAH) is a U.S. based allowance prescribed by geographic duty location, pay grade, and dependency status. It provides uniformed Service members equitable housing compensation based on housing costs in local civilian housing markets within the United States when government quarters are not provided. 4. The JTR, chapter 10 states unless otherwise authorized/approved, a member’s housing allowance is based on the Permanent Duty Station (PDS). A member may be authorized a housing allowance based on the location at which the dependents maintain a permanent residence, or the old PDS, if authorized/approved through the Secretarial Process. NOTHING FOLLOWS ABCMR Record of Proceedings (cont) AR20170001539 6 1