ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 14 April 2021 DOCKET NUMBER: AR20170017551 APPLICANT REQUESTS: 1. Reconsideration of the Board's decision to deny his debt remission in the amount of $110,587.54 of Basic Allowance for Housing (BAH) entitlements, as a result he is seeking reimbursement of all monies paid to this debt. 2. A personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * Self-Authored letter of contention in lieu of DD Form 149 (Application for the Correction of Military Records) * Bank Transaction History statement, dated 24 July 2017 * Bank Home Loan Settlement letter, dated 30 June 2010 * Advisory Opinion from the Office of the Deputy Chief of Staff, G-1, dated 27 March 2017 * Advisory Response Email Communication * Rental Agreement, dated 1 July 2010 * Army Board for Correction of Military Records (ABCMR) Docket Number AR20150019051 FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20150019051 on 27 June 2017. 2. The applicant states that he would like to present the following items of contention with the board’s decision to deny his request for debt remission as reflected within the Report of Proceedings (ROP): a. (Page 1) The debt amount reflected on the previous docket of $15,198.32 was incorrect. The correct amount is $110,587.54 with a current balance of $5,908.98; he is requesting a refund of the money already paid in error due to false accusations from the Defense Finance and Accounting Service (DFAS). b. (Page 2) The original request was submitted within 10 months from discovery, not in excess of the 3-year statute of limitations. c. (Page 4) DFAS statement of "having evidence" reflective of his spouse visiting his duty station for periods exceeding 90 days; this evidence was not presented because it does not exist. His wife did not reside in Hawaii for any period longer than 90 days and he has provided evidence (within this submission). d. (Page 6) No response was received from him for the advisory opinion. This is patently false. He responded directly to the published point of contact for the advisory opinion letter, Mr. V- G- as well as Ms. M- (Case Management Division) in an email dated 13 April 2017 and 14 April 2017 respectively. He has provided a copy of that correspondence as evidence for review. e. (Page 9) The statement that his assignment in Hawaii was an unaccompanied tour is incorrect. On 4 April 2006, his assignment was accompanied (command sponsored), however on 18 December 2007 he was divorced resulting in his tour becoming unaccompanied. On 5 July 2009, he was remarried, however his tour remained as unaccompanied because his new wife did not receive command sponsorship. f. (Page 9) The statement that the applicant was entitled to a housing allowance and Family Separation Housing (FSH) based on his status as an officer and or/the unavailability of Government quarters is incorrect as he never received FSH, he received his housing allowance and was entitled to housing allowance and FSH. g. (Page 9) The statement that DFAS was not aware of his divorce which may have led to overpayment of housing allowances is incorrect as he contests that he both informed and presented his divorce decree to DFAS upon receipt. He further states that although his marital status changed his entitlement amount (BAH with dependents) did not because of his mandated child support as defined within his divorce decree. Therefore, there was no way his divorce resulted in any overpayment. DFAS further claimed that they have no record of this submission which is likely a result of their changing from paper record keeping to electronic filing and his documents not being scanned into the system. h. (Page 10) The statement that the applicant's wife did reside with him in Hawaii is also incorrect because his wife never resided in Hawaii for any period longer than 90 days. Nothing in his official military record is reflective of that fact either. i. (Page 10) The statement that there was "no rental agreements and or leases submitted to account for the period of 5 July 2009 through 30 June 2010 and/or 1 July 2011 through 21 March 2012" is also incorrect. His wife resided in San Diego, CA from 5 July 2009 through 30 June 2010 in a home that she owned from August 2004 to 30 June 2010. In this submission, he provides the evidentiary documents to support this statement. Further, from 1 July 2011 through 21 March 2012, they did have a rental agreement and this agreement was provided in the original submission considered by the Board. Within this document, he brings attention to the statement "upon completion of the 1-year lease (1 July 2010 to 30 June 2011), the agreement would become a month to month agreement unless the tenant declares an intent to vacate" to which his wife did not. She remained in these quarters until 21 March 2012. 3. A review of the applicant’s available service records reflects the following on: a. On 21 September 1999, (Orders Number 264-000210-A-660) after prior service as an enlisted Soldier, he was later appointed as a Warrant Officer in the Army Reserve effective 18 October 1999 and ordered to active duty for a period of 6 years. b. On 11 November 2005, (Orders Number 60-2-A-80) he was assessed into the Regular Army. c. On 4 April 2006 – he was assigned to Schofield Barracks, Hawaii; this information was obtained from his Officer Record Brief (ORB) in the absence of the actual orders. d. On 22 June 2009, (Orders Number C2-173-339) he was deployed to Iraq for a period not to exceed 365 days effective 10 September 2009; entitled to Family Separation Allowance and BAH based on Permanent Duty Station (PDS). e. On 12 August 2009, he completed a DD Form 93 (Record of Emergency Data) and an SGLV-8286 (Servicemembers Group Life Insurance Election and Certificate) reflective of his wife (Ms. M-) as the beneficiary. The address of record is in Chula Vista, CA. f. On 1 November 2011, (Orders Number SB-305-0157) he was deployed to Afghanistan for a period not to exceed 365 days effective 1 January 2012; entitled to BAH based on his PDS. g. On 8 November 2011, he completed DD Form 93 reflective his wife (Ms. M-) as the beneficiary. The address of record is in Chula Vista, CA. h. On 7 December 2012, he completed DD Form 93 reflective his wife (Ms. M-) as the beneficiary. The address of record is in X, X. i. On 16 January 2014, he completed DD Form 93 reflective his wife (Ms. M-) as the beneficiary. The address of record is in X, X. j. On 4 April 2014, (Orders Number C1-094-013) he was identified for reassignment from Hawaii to Honduras effective 1 July 2014; contained within this order is the following statement "the Soldier elected for family members (spouse Ms. M-and son M- ) to relocate to designated location in X, X; his ORB does not reflect this assignment. k. On 25 April 2014, (Orders Number C1-115-016) amended Orders Number C1- 094-013 insomuch as authorizing shipment of a privately owned vehicle to an alternate port in accordance with the Joint Federal Travel Regulation. He maintained relocation of his dependents to San Diego, CA. l. On 15 January 2015, (Orders Number 015-0001) he was reassigned pending retirement effective 9 February 2015; orders reflect that this assignment is from within Hawaii and further that there was no command sponsored dependents authorized to travel m. On 30 June 2015, (Orders Number 225-0004) retired him from the Army. 4. On 7 November 2015, the applicant petitioned the Board to in effect, cancel/remit his debt in the amount of $110,587.54 of BAH entitlements, and as a result reimbursement of all monies paid to this debt. 5. On 27 June 2017, in Docket Number AR20150019051 the Board denied the applicant’s request for debt remission. At that time, he requested to have his records corrected to reflect his divorce dates from his former spouse be updated within his records. Further, that the address of his current spouse be corrected to reflect an address in X, X. He contested that his wife never moved to Hawaii. She visited him while he was assigned but never stayed in Hawaii for more than 90 days. He never obtained command sponsorship for her to move to Hawaii. Therefore, he states that he was in fact entitled to dual BAH. At the time of submission, he provided the following: * Divorce Decree dated in the year of 2005 (dissolution of his marriage to his former spouse) * Marriage Register dated 22 April 2015 (reflective of him being remarried on 17 February 2006) * Rental Agreement dated 1 July 2010 (reflective of a lease agreement from 1 July 2010 – 30 June 2011 for Ms. M- in X, X) * Certificate of Marriage dated 5 July 2009 (reflective of his marriage to Ms. M-) * Rental Agreement dated 22 March 2012 (reflective of a lease agreement from 21 March 2012 – 30 April 2013 for Ms. M- and the applicant in X, X) * Mortgage Statements (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 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 * Letter from DFAS, Indianapolis, IN, dated 3 November 2015 6. On 27 March 2017, as part of Docket Number AR20150019051, an advisory opinion was obtained from the Chief, Compensation and Entitlements Division, Office of the Deputy Chief of Staff, G-4, Headquarters, wherein he recommended disapproval of the applicant's request for administrative relief. The Office of the Deputy Chief of Staff, G-4, supported DFAS's decision to disapprove the applicant's application to cancel the debt because the applicant's spouse resided at the 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, concluded that DFAS's decision was equitable and fair. 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. 7. Upon reviewing the submitted documentation and available evidence the Board concluded in fact that his wife did reside for some time in the X, X, area, and the period of her residence there coincided in part with the period of the applicant's assignment to Wheeler Army Airfield, Hawaii. 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. 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. 8. The applicant provides the following: a. Bank Transaction History statement, dated 24 July 2017, reflective of his wife’s mortgage loan information from 8 July 2009 to 14 June 2010; property address being reflected is in X, X with the same mailing address b. Bank Home Loan Settlement letter, dated 11 June 2010, reflective of the property being sold as a short sale with a proposed closing date of 30 June 2010. c. Advisory Opinion from the Office of the Deputy Chief of Staff, G-1 dated 27 March 2017 – reflective of their recommendation to disapprove his request for administrative relief because his spouse resided with him at his PDS; DFAS had evidence that his dependents visited the duty station exceeding 90 days therefore the dependent is considered to be residing at the permanent duty station. d. Advisory response email from the applicant to Mr. G- and Ms. M- asking to review all documents submitted to be aware of all facts pertaining to his case. e. Rental Agreement, dated 1 July 2010, reflective of his wife agreeing to lease a property in X, X from 1 July 2010 through 30 June 2011 and month to month thereafter. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that relief was warranted. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and regulatory guidance. The Board considered the applicant’s statement and his record of service, documents provided by the applicant and ARBA legal review. Notwithstanding the Office of the Deputy Chief of Staff, G-1 advisory, the Board based its decision on the preponderance of evidence, and regulatory guidance to make a determination to cancel the applicant’s debt. The Board agreed the onus is on DFAS and the applicant provided sufficient creditable evidence that was substantiated through his SGLI Election and Certificate (SGLV 8286) from 2009 to 2014. that his spouse resided in California from 2009 to November 2012. Furthermore, the records allowed the Board members to confirm based on his Record of Emergency Data (DD Form 93), dated 7 December 2012 that his spouse from December 2012 until his retirement resided in Hawaii. The Board agreed cancellation of his debt and recoupment of funds already paid are warranted. The Board agreed there is sufficient evidence to amend the previous Board’s decision and granted full relief. 2. The applicant’s request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 XXX XXX XXX GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by notifying DFAS that the applicant’s debt in the amount of $110,587.54 has been relieved that was established due to his Basic Allowance for Housing (BAH) entitlements. The Board recommends refund of the money already paid in error. 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. REFERENCES: 1. DOD Financial Management Regulation, Volume 7A states a Service member on active duty entitled to basic pay is authorized a housing allowance based on his or her grade, rank, location, and whether he or she has any dependents. This is referred to as BAH. Ordinarily housing allowance is based on the Service member’s PDS. However, the Service may determine that a Service member's assignment to a PDS, or the circumstances of that assignment, requires a dependent to reside separately. Authorization or approval of a housing allowance based on the dependent's location or old PDS is through the Service Secretary or through the Secretarial Process. The Secretary concerned may determine that other circumstances may require a dependent to reside separately from the Service member and authorize or approve a housing allowance payment based on either the dependent’s location or the old PDS. If the Secretary concerned determined that an additional reason for a BAH or Overseas Housing Allowance (OHA) waiver was acceptable, the Secretarial Process may then be used to authorize or approve individual cases based on that determination. BAH or OHA is based on the old PDS in a situation in which the Service member is making a PCS to a dependent-restricted or unaccompanied assignment OCONUS and the dependent remains at the Service member’s old PDS. If the dependent of a Service member assigned to an unaccompanied tour moves to a designated place, the Service member is authorized BAH or OHA based on the dependent’s location. Payment based on the old PDS is not authorized. a. Service Member With-dependent Serves Unaccompanied or Dependent- Restricted Tour or "Unusually Arduous Sea Duty" is authorized a with-dependent housing allowance based on the dependent’s location. The housing allowance may be based on the old PDS if the dependent remained in the residence shared with the Service member before the permanent change of station, did not relocate, and is not in Government quarters. The housing allowance for the dependent’s location may be authorized or approved to be effective on the date of the lease. b. When a dependent visit in an area where government quarters are available for 90 or fewer days, there is no change to the allowance. When the visit exceeds 91 or more days' allowance based on the dependent’s location is stopped on the 90th day and started on the 91st day based on the PDS. 2. BAH entitlements when a Service member is divorced from a person who is not a Service member, they share joint legal custody of a child, and the former spouse is awarded primary physical custody, then the Service member is a non-custodial parent for housing allowance purposes. When a Service member not assigned to Government quarters pays additional support to the former spouse who has primary custody of the child so that the total child support provided is equal to or more than the BAH-Diff rate, he or she is authorized a housing allowance at the with-dependent rate. 3. Family Separation Allowance (FSA) or Family Separation Housing (FSH) allowance is payable when dependent transportation to the permanent duty station (PDS) is not authorized at the governments expense, the dependent does not reside within the vicinity of the PDS or when government quarters are not available for assignment of the Service member. There are two types of FSH: FSH B and FSH O. a. FSH-B is payable for an assignment at a PDS in Alaska or Hawaii or to a PDS in the CONUS to which concurrent travel has been denied. FSH-B is payable in a monthly amount equal to the without-dependent BAH rate applicable to the Service member’s grade and PDS. b. FSH-O is payable for an assignment at a PDS outside the United States. FSH-O is payable in a monthly amount up to, and under the same conditions as, the without- dependent OHA rate applicable to the Service member’s grade and PDS. 4. Joint Travel Regulation, 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)) OCONUS or unusually arduous sea duty outside the U.S. 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 OCONUS, 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. 5. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. //NOTHING FOLLOWS//