ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: . BOARD DATE: 23 August 2019 DOCKET NUMBER: AR20180015271 APPLICANT REQUESTS: cancellation of his current debt of $13,293.26. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DA Form 4187 (Personnel Action) * DA Form 5960 (Authorization to Start, Stop, or Change Basic Allowance for Quarters and or/Variable Housing Allowance * applicant's bank statements * Parenting Plan * applicant's son's birth certificate * Divorce Decree FACTS: 1. The applicant states: * the debt in the amount of $13,293.26 needs to get expunged from his records as it was income that he was obligated to receive * he gave Fort Gordon finance his command approved [sic BAH] documents three times * yet this debt remains over his head and will cripple him * he was divorced in February 2017 * he submitted his command approval for Basic Allowance for Housing (BAH) at that time * when he was out-processing in July 2018, he was told finance didn't have the documentation * he resubmitted the documents as requested * they wouldn't accept the new documentation * he contested the debt after starting his terminal leave * finance didn't submit his contest * the debt is illegally placed in his name * this shouldn't be the case after giving 6 years of honorable service to the nation * when finance wouldn't take his new documentation, they took his old ones and he no longer has a copy of them * finance wouldn't return the original documents to him 2. The applicant provides: * his divorce decree, which shows he and his wife were divorced on 20 February 2017 * a Parenting Plan, which shows he has two children with his ex-wife and he was to pay $600 per month in child support beginning on 1 March 2017 * one of his son's birth certificates for the Board's consideration 3. The applicant provides his bank statements showing he made payments to his ex- wife. The bank statements cover the following periods: * 21 August 2017 - 20 September 2017 * 21 September 2017 - 20 October 2017 * 21 October 2017 - 20 November 2017 * 21 May 2018 - 20 June 2018 4. The applicant provides a DA Form 5960 changing his BAH status from married to divorced effective 20 February 2017. He lists his two children as dependents. The form was signed by the applicant and the certifying officer on 24 July 2018. 5. The applicant provides a DA Form 4187 stating the applicant requests to continue his BAH. He was divorced on 20 February 2017 and is allowed to continue to receive BAH. The form was signed by the applicant and his company commander on 24 July 2018. 6. The applicant's service records contain a document entitled Finance Records Review wherein the applicant reviews his finance documents. The DA Form 5960 is not listed on the review. The applicant reviewed his finance documents in September 2017 and in February 2018. 7. The applicant's service records contain a DD Form 214 (Certificate of Release or Discharge from Active Duty) showing he was discharged from the Army effective 24 September 2018 after serving 6 years of service. 8. 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. 9. Army Regulation 37-104-4 (Military Pay and Allowances Policy), states generally speaking, BAH is payable to members on active duty and will vary according to grade in which serving or appointed for basic pay purposes, dependency status, and the permanent duty station assigned. 10. DoD Financial Management Regulation (Basic Allowance for Housing (BAH)) Volume 7a, Chapter 26 states, when a member is divorced from a nonmember, and they share joint legal custody of a child, and the ex-spouse is awarded primary physical custody, then the member is considered a noncustodial parent for the purpose of entitlement to BAH. If the member’s court-ordered child support is less than the applicable BAH-DIFF rate, and the member is not residing in, or assigned to, government quarters, the member is entitled only to BAH at the without dependents rate. However, members who pay additional support to the ex-spouse having primary custody of the child(ren) so that the total child support provided is equal to or more than the BAH-DIFF rate, and who are not assigned to government quarters, are entitled to BAH at the without dependents rate and BAH-DIFF. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents and evidence in the records. The Board considered the applicant’s statement, the personnel actions in his records, the annotation that the contents of the court documents he provided and his bank statements, confirmation of financial records reviews and the Financial Management regulations pertaining to divorced service members. The Board found that he was liable for child support and appeared to make payments. However, there was no indication in his records as to the source of the debt and the applicant provided none. Based on a preponderance of evidence, the Board determined there was insufficient evidence to show an error or injustice had occurred. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. 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. 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. 2. Army Regulation 37-104-4 (Military Pay and Allowances Policy), states generally speaking, BAH is payable to members on active duty and will vary according to grade in which serving or appointed for basic pay purposes, dependency status, and the permanent duty station assigned. The BAH is intended to pay only a portion of housing costs. Use DA Form 5960 (Authorization, to Start, Stop, or Change Basic Allowance for Quarters (BAQ), and/or Variable Housing Allowance (VHA) ) to start, stop, or change BAH and/or variable housing allowance (VHA). The BAH consists of the following: * BAH–I – formerly known as BAQ and VHA. * BAH–II – formerly known as BAQ. * BAH difference (BAH–DIFF) – difference between with and without dependents’ rates of BAH–II. * Partial BAH. * Overseas housing allowance (OHA). 3. DoD Financial Management Regulation (Basic Allowance for Housing (BAH)) volume 7a, Chapter 26 states, when a member is divorced from a nonmember, and they share joint legal custody of a child, and the ex-spouse is awarded primary physical custody, then the member is considered a noncustodial parent for the purpose of entitlement to BAH. If the member’s court-ordered child support is less than the applicable BAH-DIFF rate, and the member is not residing in, or assigned to, government quarters, the member is entitled only to BAH at the without dependents rate. However, members who pay additional support to the exspouse having primary custody of the child(ren) so that the total child support provided is equal to or more than the BAH-DIFF rate, and who are not assigned to government quarters, are entitled to BAH at the without dependents rate and BAH-DIFF. ABCMR Record of Proceedings (cont) AR20180015271 3 1