ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 9 December 2020 DOCKET NUMBER: AR20190007648 APPLICANT REQUESTS: .his record reflects Basic Allowance for Housing (BAH) at the with dependentsrate beginning on 9 September 2007 .eligibility for Family Separation Allowance (FSA) for combat service after9 September 2007 .reimbursement of funds taken in error APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: .DD Form 149 (Application for Correction of Military Record) .Marriage License dated 9 September 2007 .Certificate of Live Birth dated .Divorce Decree dated 27 February 2012 .Marriage License dated 20 February 2013 FACTS: 1.The applicant did not file within the three-year time frame provided in Title 10,U.S. Code, section 1552 (b); however, the Army Board for Correction of MilitaryRecords conducted a substantive review of this case and determined it is in the interestof justice to excuse the applicant's failure to timely file. 2.The applicant states he was authorized BAH and FSA and that his pay is beinggarnished in error. 3.The applicant's service records show he served in the US Army Reserve and on: a.19 April 2007, the applicant was honorably released from active duty under the provisions of AR 635-200, Chapter 4 (Active Duty Enlisted Administrative Separations). Narrative Reason for separation was completion of required active service. His DD Form 214 shows he was ordered to active duty in support of Iraqi Freedom from 10 April 2006 through 21 March 2007. b.5 October 2008, DD Form 93 (Record of Emergency Data), reflecting spouse and three children. c.21 April 2009, (Orders #09-111-00033), published by the US Army Civil Affairs Psychological Operations Command, activated him in support of Iraqi Freedom. Additional instructions provide: .Bring copies of rental or mortgage agreement, marriage certificate, birthcertificate of natural children or documentation of dependency or child support .Bring copies of family care plan, wills, powers of attorney and all documentsthat affect the soldiers pay status d.22 July 2010, the applicant was honorably released from active duty under the provisions of AR 635-200, Chapter 4 (Active Duty Enlisted Administrative Separations). Narrative Reason for separation was completion of required active service. His DD Form 214 shows he was ordered to active duty in support of Iraqi Freedom from 17 July 2009 through 24 May 2010. e.5 March 2013, Orders 13-064-00009, published by the US Army Civil Affairs Psychological Operations Command, activated him in support of Operation Enduring Freedom. Additional instructions provide: .Bring copies of rental or mortgage agreement, marriage certificate, birthcertificate of natural children or documentation of dependency or child support .Bring copies of family care plan, wills, powers of attorney and all documentsthat affect the soldiers pay status .BAH is based upon principal residence when ordered to active duty in a TDYstatus f.15 May 2013, Orders DX-135-0005, published by the Headquarters, ArmySupport Activity Fort Dix, activated him in support of Operation Enduring Freedom, Kandahar, Afghanistan. Additional instructions provide: .Temporary storage of HHG authorized as provided by paragraph U4770A-Aof the JFTR, but may impact on your BAH authorization. Contact your localtransportation office for assistance. For BAH questions, please contact yoursupporting finance office. .For active duty Soldiers, Basic Allowance for Housing (BAH) is based upontheir permanent duty station. For RC Soldiers and retired Soldiers called orordered to active duty, BAH is based on principal residence when ordered toactive duty in a Temporary Duty (TDY) Status. Shipment of HHG andmovement of dependents are not authorized in a TDY status. g.11 December 2013, Orders 345-0049, published by the Headquarters, Army Support Activity Fort Dix, released him from active duty with an effective date of 9 February 2014. h.9 February 2014, the applicant was honorably released from active duty under the provisions of AR 635-200, Chapter 4 (Active Duty Enlisted Administrative Separations). Narrative Reason for separation was completion of required active service. DD Form 214 shows he was ordered to active duty in support of Operation Enduring Freedom from 26 May 2013 through 5 December 2013. i.10 February 2014, the Enlisted Record Brief reflects his basic pay entry date as 28 July 2004. He was married with three children. j.20 February 2016, DA Form 5980 (Authorization to Start, Stop, or Change BasicAllowance for Quarters), reflects: .Item #4 (Type of Action) – Start .Item #5 (Duty Location) – Ingleside, IL .Item #6 (Date/Action) – 20 February 2013 .Item #7 (BAQ Type) – with dependents .Item #8 (Marital/Dependency Status) – Married Spouse SSN, SpouseDuty Station are blank, however, date of marriage shows20 February 2020 .Item #10 (Dependent/Sharer) – provides name of spouse, and address asRound Lake Beach, IL. No dependent children are listed. .Item #11 (Certification of Dependent Support) is blank k.18 July 2017, (Orders 17-199-00061), published by the 88th Regional SupportCommand, honorably discharged him from the US Army Reserve with an effective date of 8 August 2017. 4.The applicant’s master military pay account (MMPA) shows: a.23 September 2009, shows the applicant was not eligible for BAH but waseligible for Family Separation Allowance (FSA) from 9 June 2009 through 30 August 2010 based on Orders #09-111-00033, dated 21 April 2009. b.16 December 2009, shows the applicant was entitled to FSA from 9 June 2009through 30 August 2010, but was paid in accordance with a DD Form 1561(Statement to Substantiate Payment of Family Separation Allowance (FSA)) for the period 17 April 2009 through 5 June 2009. c.24 March 2010, shows the applicant was eligible for FSA from 9 June 2009through 30 August 2010. d.23 June 2010, shows the applicant was eligible for FSA from 9 June 2009through 30 May 2010, and a collection of FSA was processed for the period 1 June through 15 June 2010. e.24 June 2013, and 23 September 2013 shows the applicant was eligible for BHAfrom 22 March 2012 through 17 June 2014 and FSA from 25 March 2013 through 17 June 2014 based on Orders #13-064-00009, dated 5 March 2013. f.16 December 2013, updated the BHA to reflect 22 March 2013 through9 February 2014 based on Orders #345-0049, dated 11 December 2013. The FSA entitlement was from 25 March 2013 through 14 December 2013 with collection processed on 15 December 2013. g.23 June 2014 through 21 September 2017, reflects he was not eligible for BAHor FSA. On 21 September 2017, his account was posted with a BAH debt. An adjustment was made to reflect BAH without Dependents and a collection of FSA. 5.The applicant provides: a.Marriage License dated 9 September 2007 which shows the applicant was married to K_. b. Certificate of Live Birth which shows his daughter’s birth and reflects K_ as the Mother and the applicant as the father. c.Divorce decree, dated 27 February 2012, which states, in part: .he had one child under the age of 18 born of both parties .the parties have joint care, custody, control and education of said minor child .Joint Parenting Agreement .The divorce decree does not state who was named the custodial parent of the dependent child or where the child lived. d.Marriage License dated 20 February 2013, which shows the applicant marriedP_. 6.See regulatory guidance under REFERENCE. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found the relief was not 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 and documents provided by the applicant. Evidence in the record show the applicant was married with children and that he was eligible during period of this military service to BHA and FSA. The Board was not clear on if the spouse was receiving entitlements or why there was a DFAS recoupment. The Board determined the burden of proof is on the applicant to provide the proper information. Furthermore, the Board determined the applicant didn’t exhaust all his options through DFAS with a denial notification or a DFAS verification for entitlements. Based on a preponderance of evidence, the Board determined there was insufficient evidence to find that funds collected from the applicant were in error o r unjust; therefore, the Board denied relief.BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING XXX XX XXX DENY APPLICATION 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.The applicant did not file within the three year time frame provided in Title 10,U.S. Code, section 1552 (b); however, the Army Board for Correction of MilitaryRecords conducted a substantive review of this case and determined it is in the interestof justice to excuse the applicant's failure to timely file. 2.Joint Federal Travel Regulation (JFTR) provides in Chapter 10 (Housing Allowances)provides that a Service member on active duty entitled to basic pay is authorized ahousing allowance based on his or her grade, rank, location, and whether he or she hasany dependents. a.When the Service member’s court-ordered child support is less than theapplicable BAH-Diff rate and the Service member is not residing in, or assigned to, Government quarters, the Service member is only authorized a housing allowance at the without-dependent rate. b.When a Service member not assigned to Government quarters pays additionalsupport 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-Differential (Diff) rate, he or she is authorized a housing allowance at the with-dependent rate. c.A Service member assigned to single-type Government quarters or a single-typehousing facility under a uniformed Service’s jurisdiction is not usually authorized more than BAH Partial. However, if the Service member is authorized BAH solely due to paying child support and the Service member is paying an amount equal to or greater than BAH-Diff, then he or she is authorized BAH-Diff. A Service member is not authorized BAH-Diff if the child support payment is less than the Service member’s applicable pay grade BAH-Diff amount. BAH Diff is a fixed rate and is the difference between the with-dependent Basic Allowance for Quarters (BAQ) rate and the without-dependent BAQ rate as of December 31, 1997 based on the Service member’s grade and increased each year by the average pay raise percentage. d.A service member that is married to a nonservice member is entitled to BAH atthe with dependent rate. 3.DoD Financial Management Regulation (Basic Allowance for Housing (BAH)) volume7a, Chapter 26 states: a.When a member is divorced from a nonmember, and they share joint legalcustody 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. b. Family Separation Allowance (FSA) is payable only to members with dependents. FSA is payable in addition to any other allowance or per diem to which a member may be entitled. The purpose of FSA and the conditions of entitlement are set out in this chapter. (1) The term’ ’dependents” is defined as spouse or children or parents as. (2) Household, this term means the same as “home” or “family.” It applies to a collection of persons living under one roof, having one head or manager who controls and supervises the affairs of the family. c. FSA is payable to each member with dependents who is on permanent duty outside the United States or in Alaska who meets all of the following conditions: (1) Transportation of dependents to the permanent duty station or to a place near that station is not authorized at Government expense; (2) Dependents do not live at or near the permanent duty station; and (3) Adequate government quarters or housing facilities are not available for assignment to a member and inadequate Government quarters or housing facilities are not assigned. d. Divorced or Legally Separated Members. Treat FSA-I cases involving a divorced or legally separated member, or such a member with a child in the legal custody of a former spouse or another person, the same as FSA-II cases. e. FSA-II This FSA provides compensation for added expenses incurred because of an enforced family separation. It is payable to qualified members serving inside or outside the United States. It is not authorized when a member performs duty at any station under permissive orders. (1) Effective 1 October 1980, FSA-II is payable to a member serving in any grade as a member with dependents. A member must meet all general requirements and one of the following conditions. (2) Transportation of the dependents is not authorized at Government expense and the dependents do not live in the vicinity of the member’s home port/permanent duty station. 4. Army Regulation 600-4 (Remission or Cancellation of Indebtedness) 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. A Soldier's debt to the U.S. Army may be remitted or canceled on the basis of this regulation in cases arising from debts incurred while serving on active duty or in an active status as a Soldier. 5.. Army Regulation (AR) 15-185 (ABCMR) paragraph 2-9 states 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. //NOTHING FOLLOWS//