ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 6 February 2020 DOCKET NUMBER: AR20180006214 APPLICANT REQUESTS: .cancelation of his debt of $23,799.67 for overpayment of Basic Allowance forHousing (BAH) entitlements .personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: .DD Form 149 (Application for Correction of Military Record) .letter from US Army Human Resources Command (HRC) .Application for Remission or Cancellation of Indebtedness .letter to Defense Finance and Accounting Service (DFAS) .legal review of investigation .Criminal Investigation Division (CID) report .recommendations for remission/cancellation packet .sworn statement .character reference .emails regarding family visits .Leave and Earnings Statement (LES) FACTS: 1.The applicant states: a.He currently has a debt to the United States Army for $23,799.67. He'sasking for this debt to be completely canceled due to the wrong amount being charged, financial hardship, and injustice. The debt started to be deducted from his paycheck, which was leaving him and his family struggling to pay bills. b.He received a Field Grade Article 15 in July 2017 as punishment for theincident. He was never told he would have to pay any money back. In November 2017, four months after his Article 15, Belgium decided to charge him for his Columbia, South Carolina BAH he received while he was in England. c.His family was in England from June 20, 2016 through April 30, 2017. TheArmy is trying to tact on another $5,670 from 1 May 2017 through 16 September 2017 even though his family wasn't in England, during that time. d.This is an injustice and a financial hardship due to he and his family livingseparately. He pays double bills due to living apart from his family. He was supposed to be deployed upon his arrival to Fort Riley, Kansas which is why they live separately. He's already been punished for this situation and feel he shouldn't have to pay anything. The amount he owed, according to the CID investigation, was $18,129 not $23,799.67. 2.The applicant's service records contain a DA Form 2627 (Record of ProceedingsUnder Article 15, Uniform Code of Military Justice, dated 18 July 2017, which shows: .the applicant was found guilty of falsely certifying his authorization for BAHand stealing money of more than $500 from the military .his punishment was reduction to SGT, suspended, and forfeiture of $1,606pay 3.The applicant's service record is void of a DA Form 5960 (Authorization to Start,Stop, or Change Basic Allowance for Housing) for the time period in question. 4.The applicant provides the following documents for the Board's consideration: a.A letter from HRC, dated 5 February 2018, which states: .the application for remission or cancellation of indebtedness in the amountof $23,799.67 was reviewed and returned without action .in accordance with regulation, a debt that is obtained or converted to ownuse through fraud or larceny may not be remitted or canceled .a final investigation by CID determined larceny of government funds andfalse official statement existed in the case b.A DA Form 3508 (Application for Remission or Cancellation of Indebtedness),dated 11 January 2018, which shows the applicant's money earned and bills he currently has. The applicant supplied the following pertinent information in support of his application: (1)His family was not living with him prior to moving to Fort Riley, Kansasbecause he was told he was going to deploy three weeks after his arrival. His wife and he agreed it would be best for her and the children to stay in Columbia, South Carolina until he got back from deployment. (2)Upon his arrival in Fort Riley, he was kept on rear detachmentbecause the brigade needed so much help. After being told he was staying on rear detachment, he asked if he could deploy since he was prepared to go. He was told no. (3)He explained to his chain of command the financial hardship it wouldcause him with being on the rear detachment. He was told he would have to stay. He was unable to move his family to Fort Riley until the Summer of 2018 due to his child attending a special preschool program in Columbia, South Carolina. His two year old received special services because he was being diagnosed with autism. He paid child support for another child who lived in Virginia. (4)He paid rent in Kansas where he lived and a mortgage in SouthCarolina where his family lived. He was paying double on utility bills. He had to pay medical bills and for medicine for his son. He had to pay his sewer bill in South Carolina and home owner's association fees. He had a yearly termite pest control fee and back flow test fee which all adds up his expenses. c.A document entitled Single Cost of Living Allowance (COLA) versus DualCOLA rates for London, England which shows the amount of money for COLA he would have received as a single person or a person with dependents while living in England. d.A letter from DFAS, dated 3 January 2018 where in the applicant was notifiedhe had a debt of $23,799.67 for overpayment of BAH from June 2016 through 16 September 2017. The applicant disagreed with the debt and would dispute the debt. e.A legal review of the CID investigation, dated 2 November 2017 and signedby the Trial Counsel which found: .the trial counsel found sufficient evidence to find probable cause theapplicant committed larceny of military property more than $500 .there was sufficient evidence to find probable cause the applicant made afalse official statement .the loss to the government was $23,799.67 by overpayment of BAH .the amount of money should be recouped from the applicant f.A final CID report dated 27 June 2017, which shows: .the CID reviewed the applicant's pay and allowance benefits .the applicant was receiving BAH for his dependent spouse while she wasresiding with him at his permanent duty station .the applicant completed an authorized early return of dependents in 2015to Columbia, South Carolina .the applicant returned his dependents to reside with him in June 2016 .the applicant continued to receive BAH for Columbia, South Carolina .the applicant recertified his pay and allowance benefits in February 2017reporting his dependents lived in South Carolina .his dependents were residing with him and his claimed residence in SouthCarolina was being rented by another family .the finance office reported the estimated loss to the Government was$18,129 g.A memorandum to HRC from the applicant's company commander, dated 11 January 2018, wherein the commander stated cancellation of the debt would serve the best interests of the Government because the applicant was already punished by receiving a Field Grade Article 15, which put a huge dent in his career. h.A memorandum to HRC from the applicant's brigade commander, dated 17 January 2018, wherein the command recommended cancellation of the applicant's debt. i.A self-authored DA Form 2823 (Sworn Statement), dated 10 January 2018,which states: (1)The applicant checked his LES to make sure his pay was correct. Inthe entitlements column he saw an advance debt of $23,799.67 and a negative amount for BAH of $22,407.67. The difference in the two amounts was $1,395 which was his BAH for Fort Riley, Kansas. He then looked in the remarks section of his LES it showed a total indebtedness of $23,799.67. He thought this entry on his LES was a mistake so he didn't bring it up to his finance office at the time. He thought it was human error which was corrected to give him his BAH amount. (2)He checked his LES at the end of December, which showed thecorrect BAH amount. In the remarks section the indebtedness amount of $23,799.67 was still on the LES. He was trying to figure out why this still showed on his LES. He called DFAS and spoke to an employee and explained he had the indebtedness information on his LESs. The employee looked into the finance system and told the applicant there was no debt showing in the system and it looked like there was a mistake made. The employee told the applicant to double check with his local finance office to see if they can figure out why his November LES showed the way it did and why the debt was on his December LES. (3)In January 2018, the applicant called his local finance office. Heinformed the employee about the issues with his November and December LESs. The employee looked into her system to find out about the debt. She asked the applicant if he was under investigation, and the applicant told her no. He told her he was under investigation months ago but the case was closed and he received an Article 15 for punishment. She then stated the trial counsel submitted a memorandum and his investigation documents to finance to recoup the government funds from his BAH case in the amount of $23,799.67. (4)The applicant went to the Fort Riley finance office the next day. Hewas shown the documents that were submitted by the trial counsel. He saw the trial counsel stated the applicant submitted a tainted claim for BAH and the loss to the government was $23,799.67. The applicant never submitted any paperwork requesting he pay back the government from his investigation. The applicant asked finance if there was anything he could do because he didn't agree with the debt. Finance said they didn't see anything wrong with the debt and if he wanted to fight it he'd have to submit a remission/cancellation packet. He then received the debt notification letter from finance. He had not received it prior to that day. He disagreed with the debt on the spot and he received the remission/cancellation packet. He was informed he had 30 days to get it back to the finance office or finance would take two-thirds of his pay each month. He told the finance office if they did that, he would be homeless and unable to survive. (5)The applicant was appalled as to why the trial counsel would say theapplicant submitted a tainted claim for the debt. He received punishment for the BAH overpayment and the debt amount was the wrong amount. According to the CID report, the amount of loss to the Government was $18,129. His wife and children were visiting him in England from 19 June 2016 through 30 April 2017. According to the Joint Travel Regulation, families have up to 90 consecutive days to visit their spouse at their primary duty location. He hadn't known of that provision before the investigation. With the 90 day rule, the real loss to the Government would be $11,682.90. (6)The applicant why the trial counsel put the recoupment amount forJune 2016 through September 2017 since his family left England in April 2017. He felt he shouldn't have to pay back the large amount of debt. He was never told he would have to pay back anything at the conclusion of his investigation. He received an Article 15 form the incident that detrimentally impacted his career. If felt he shouldn't be punished two time for the same incident. The Army was also trying to take his promotable status to Sergeant First Class, which would mean he would be punished three times for the same incident. (7)The applicant was financially unable to pay back the debt. His billswere more money than he made. He was paying for a mortgage in South Carolina and his rent in Kansas. He was paying double of most everything which put a strain on his finances. The applicant was supposed to deploy when he arrived at Fort Riley but was put on rear detachment. He told his command that would be a financial hardship for him if he could not deploy. His unit said they had no choice but to leave him on rear detachment. His family had obligations in South Carolina, which did not allow for their move to Kansas until the summer of 2018. (8)The applicant moved to the United Kingdom in September 2014 on anaccompanied tour. In August 2017, he completed an early return of dependents and his family moved to South Carolina. In June 2016, his family wanted to go back to England to visit the applicant. He informed his first sergeant and company commander his family would be visiting him. He contacted the finance and legal office to verify his family could visit him and it wasn't against any regulation or rules. He was informed his family could visit him and his BAH in South Carolina would not be in jeopardy because he had done an early return of dependents. (9)The applicant was notified in April 2017, he was under investigation forBAH fraud. He spoke to CID and was confused as to why he was under investigation because he had done his due diligence by checking before his family visited. CID informed him of the Joint Travel Regulation and the provision that families could only visit up to 90 consecutive days or the BAH must stop. Finance disagreed with that statement because the applicant could not change his BAH without documentation showing his family moved back to England, such as orders. He was being investigated for falsifying his BAH certification. His family was visiting him in England at the time he recertified and finance told him he had to recertify saying his family was in South Carolina, even though they were visiting him in England, because he didn't have orders bringing them back to England. (10)The Article 15 he received was the result of misunderstanding theregulation. He did his best to ensure the BAH he received was authorized and correct through his finance and legal departments. He did not fight the Article 15 based on advice from his attorney. The dollar amount the trial counsel submitted to DFAS was incorrect. Even the correct amount of calculated recoupment is an excessive amount and he requested it be cancelled. The money had already been spent taking care of his family in another state. He never intended to defraud the government. j.A DA Form 2823, dated 13 April 2017, from a finance clerk in England, whichstates: .he had a conversation with the applicant in January 2017 .the applicant asked how long his family could visit him without his pay orentitlement being adjusted .based off looking through the Joint Travel Regulation, he informed theapplicant as long as his family does not violate England's visa and travellaw, they could stay as long as they wanted to .without official orders, the applicant's pay entitlements could not beadjusted k.A DA Form 2823, dated 13 April 2017, from the applicant's first sergeant,which states: .the applicant made the first sergeant aware his family was going to visithim .the applicant let the first sergeant know he had contacted the financeoffice regarding the visit .the applicant contacted the first sergeant in August 2016 because he wasfeeling harassed by the other servicemembers he worked with .they were complaining about the applicant's family being in England .the first sergeant reassured the applicant he wasn't doing anything illegal .in 2017, the first sergeant received an email from a sergeant first classwhich expressed concerns regarding the applicant's family membersgoing in and out of the country .the first sergeant replied that as long as the applicant was funding thetravel, they were not an infraction committed .the first sergeant engaged the legal team regarding the applicant'ssituation .the legal office said as long as the family was abiding by the immigrationlaws they were not in trouble .the applicant again called the finance office and was again told as long asthey were abiding by immigration laws there was not a problem .the applicant was just going off of what he was told by finance and legal .the applicant inquired about the situation on numerous occasions l.A Character reference from the Senior Network Operations Chief, dated 21April 2017, which states: .the author was writing the reference to emphasize the applicant integrity,care, and professionalism .the applicant went the extra mile to ensure noncommissioned officers andtheir families were taken care of .the applicant was a dependable noncommissioned officer dedicated tohelping servicemembers .the applicant was by far the most knowledgeable 42A she had theopportunity to work with over the 14 years of her service m.The email exchanges between the first sergeant and sergeant first classregarding concerns about the applicant's family being in England. The emails between the applicant and his chain of command regarding his family's visit to England. n.The applicant's LESs for November 2017, December 2017 and January 2018showing the debt of $23,799.67. 5.Army Regulation 15-185 (ABCMR) states an applicant is not entitled to a hearingbefore the ABCMR. Hearings may be authorized by a panel of the ABCMR or by theDirector of the ABCMR. 6.See applicable references below. BOARD DISCUSSION: 1.The Board carefully considered the applicant’s request, supporting documents andevidence in the records. The Board considered the applicant’s statement, his record ofservice, the determination by CID and the legal review, the location(s) of his family andthe rental of his property in South Carolina, the NJP imposed and the establishment of a debt. The Board considered the statements (DA Forms 2823) and the characterreference and email exchanges about the applicant’s Family visit to England. TheBoard considered the amount of the debt and the applicant’s statement regarding theamount of debt and financial hardship. The Board found insufficient evidence toovercome the results of the investigation or to mitigate the applicant’s debt. Based onthe preponderance of evidence, the Board determined that the applicant’s debt was notin error or unjust.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 ofequity and justice in this case.3.After reviewing the application and all supporting documents, the Board found thatrelief was not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : 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. X 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 states a Service member on active dutyentitled 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 BasicAllowance for Housing (BAH). Ordinarily housing allowance is based on the Servicemember’s Permanent Duty Station (PDS), or the home port for a Service memberassigned to a ship or afloat unit. However, the Service may determine that a Servicemember’s assignment to a PDS, or the circumstances of that assignment, requires adependent to reside separately. Authorization or approval of a housing allowancebased on the dependent’s location or old PDS is through the Service Secretary orthrough the Secretarial Process. The Secretary concerned may determine that othercircumstances may require a dependent to reside separately from the Service memberand authorize or approve a housing allowance payment based on either thedependent’s location or the old PDS. If the Secretary concerned determined that anadditional reason for a BAH or OHA waiver was acceptable, the Secretarial Processmay 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 ismaking a PCS to a dependent-restricted or unaccompanied assignment OCONUS andthe dependent remains at the Service member’s old PDS. If the dependent of a Servicemember assigned to an unaccompanied tour moves to a designated place, the Servicemember is authorized BAH or OHA based on the dependent’s location. Payment basedon 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 PCS, 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 visits in an area where government quarters are availablefor 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.Joint Travel Regulation, chapter 10 (Housing Allowances), part E (AssignmentSituations), section 5 (Member with Dependents Serves anUnaccompanied/Dependent- Restricted Tour or Unusually Arduous Sea Duty Tour-Members Only), paragraph 10408 (Member with a Dependent Serves anUnaccompanied/ 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)) outside the continental United States or unusually arduous sea duty outside the United States 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 outside the continental United States, 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. 3. Army Regulation 600-4 (Remission or Cancellation of Indebtedness) provides instructions for submitting and processing applications for remission or cancellation of indebtedness to the U.S. Army. Applications must be based on injustice, hardship, or both. The regulation states a Soldier's debts to the U.S. Army may be remitted or canceled 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 as a Soldier, and debts acknowledged as valid. a. Paragraph 1-12 contains guidance for determining injustice or hardship and states the following factors will be considered: the Army's policy in the area of indebtedness to the U.S. Army (for example, excess leave or BAH while living in Government housing); the Soldier's awareness of policy and procedures; past or present military occupational specialty, rank, years of service, and prior experience are taken into consideration; the Soldier's monthly income and expenses; the Soldier's contribution to the indebtedness to the U.S. Army by not having the situation corrected; and additional income or assets (for example, spouse's salary, savings account, and bonds). b. Paragraph 1-13 outlines the following additional factors for consideration in determining injustice: the applicant did not know, and could not have known, of the error; and the applicant inquired of a proper authority and was told that the payment was correct. c. Paragraph 1-14 outlines the following additional factors for consideration in determining hardship: repayment will cause hardship because of excessive monthly expenses due to: (1) living in a high cost area, (2) living apart from family members because of military orders, (3) number and age of family members, (4) medical and dental bills that cannot be reimbursed, and (5) other unusual expenses. Expenses caused by living standards that are too high or by mishandling of funds are not a basis for a hardship case. 4. 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 regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. 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//