IN THE CASE OF: BOARD DATE: 11 February 2022 DOCKET NUMBER: AR20210012479 APPLICANT REQUESTS: remission of debt associated with his previous receipt of $22,530.00 of Basic Allowance for Housing (BAH). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: •DD Form 149 (Application for Correction of Military Record) •Self-authored letter, dated 22 March 2021 •DD Form 214 (Certificate of Release or Discharge from Active Duty), dated12 May 2011 •Certified Transcript of Marriage, dated 23 April 2009 •DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the U.S.),dated 15 December 2005 •DD Form 4, dated 11 June 2010 •DD Form 4, dated 3 December 2013 •AF Form 901 (Reenlistment Eligibility Annex to DD Form 4), dated 11 June 2010 •AF Form 901, dated 2 December 2013 •AF IMT 1089 (Leave Settlement Option), dated 2 December 2013 •AF Form 901, dated 9 March 2018 •DD Form 4, dated 5 January 2018 •DD Form 139 (Pay Adjustment Authorization), dated 21 May 2011 •DA Form 5960 (Authorization to Start, Stop or Change Basic Allowance forQuarters (BAQ) and or Variable Housing Allowance (VHA)), dated 10 May 2011 •Order Appointing Guardian of the Persons, dated 30 September 2009 •Excerpt from the Joint Federal Travel Regulation (JFTR) •DFAS-IN Form 0-641 (Final Pay Worksheet), dated 12 May 2011 FACTS: 1.The applicant did not file within the three-year time frame provided in Title 10, UnitedStates Code (USC), section 1552(b); however, the Army Board for Correction of MilitaryRecords (ABCMR) conducted a substantive review of this case and determined it is inthe interest of justice to excuse the applicant's failure to timely file. 2.The applicant states in pertinent part that his DA Form 139 currently reflects that heowes $22,530.00 in previously received BAH payments. He argues that this is incorrect.In a Self-authored letter, he provides that he is a victim of an error or injustice that iscurrently affecting his military records. a.When he was released from Active duty, the finance office informed him that heowed the difference between "BAH with dependents" and "BAH at partial rate" for the period of 17 April 2009 (his date of marriage to another active duty service member) to 12 May 2011 (his date of separation from active duty). He was further advised that the justification for this debt was that his spouse, who was also serving on active duty and currently in receipt of BAH on behalf of children from a previous marriage and the two of them were not stationed together. Therefore, he was only entitled to BAH at the partial rate. In order for him to receive BAH without dependents, he must have obtained a statement of non-availability. He argues that this information is incorrect as his spouse did not have children from a previous marriage but instead had custody of her younger siblings. With regard to his entitlement to BAH with dependents, he adds that in accordance with the JFTR, when a service member is married to another service member and are required to maintain separate households at or in the vicinity of their Permanent Duty Stations (PDS), both parties are entitled to BAH. He further argues that his wife was in the U.S. Air Force and not in the Army and therefore the guidance provided by the Defense Military Pay Office (DMPO) wherein it states that "Soldiers married to Soldiers, assigned to different duty stations, will be housed as single Soldiers" does not apply, but instead the guidance in the JFTR referencing service member married to another service member should apply since he was stationed at Fort Bliss, TX and his spouse was assigned to McGuire Air Force Base, NJ. b.He acknowledges that he was in receipt of BAH at the with dependent rate($22,530.00) when he was only entitled to BAH without dependents ($17,688.98) from 2009-2011. He recognizes that he should owe the difference between the two rates which would equal approximately $4,841.02. He further acknowledges the requirement to repay a portion of his previously received bonus entitlement ($1,436.67) due to his failure to complete the associated service obligation. As of the date of this application, he provides that he has repaid approximately $17,279.80 of his in service debt. c.In summary, he provides that he has made several attempts to resolve this issuethroughout the years; his debt is currently in collection. When he initially separated he attempted to contact the installation commander, however he was unable to reach him for a year due to his deployment followed by his retirement. Since being released from active duty, he has experienced many challenges to include 2 overseas assignments and the loss of a parent and child. Despite these unforeseen challenges, he has unsuccessfully disputed the validity of this debt with the Defense Finance and Accounting Service (DFAS) on 3 separate occasions. He was then advised to seek relief through the ABCMR process. 3.A review of the applicant's available personnel records reflects the following: a.On 24 July 2007, the applicant enlisted in the Regular Army for 5 years to serveas a Military Policeman (31B). In conjunction with this enlistment, the applicant elected to receive a $6,000.00 cash bonus and the U.S. Army College Fund ($69,300.00) as enlistment incentives. b.On or about 1 April 2009, the applicant was promoted to the rank/grade ofspecialist (SPC)/E-4. c.On 9 May 2011, Headquarters Fort Bliss issued Orders Number 129-0001reassigning the applicant to the U.S. Army transition point pending separation. d.On 12 May 2011, the applicant was honorably discharged from the Army underthe provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) paragraph 13-2e (Army Physical Fitness Test/Physical Standards Failure) at the rank of SPC. 4.The applicant provides the following a: a.Certified Transcript of Marriage, dated 23 April 2009, reflective of the applicant's legal marriage to on 17 April 2009. b. DD Form 4, dated 15 December 2005, reflective of the applicant's spouse enlisting in the U.S. Air Force for 4 years on 14 December 2006. c. DD Form 4, dated 11 June 2010, reflective of the applicant's spouse reenlisting for 4 years in the U.S. Air Force. d.DD Form 4, dated 3 December 2013, reflective of the applicant's spousereenlisting in the U.S. Air Force for 5 years and 6 months. e.AF Form 901, dated 11 June 2010, reflective of associated documentationrelated to the applicant's spouse's reenlistment in the U.S. Air Force. f.AF Form 901, dated 2 December 2013, reflective of associated documentationrelated to the applicant's spouse's reenlistment in the U.S. Air Force. g.AF IMT 1089, dated 2 December 2013, reflective of the applicant's spouseelection to carry over her leave balance into her new period of enlistment. h.AF Form 901, dated 9 March 2018, reflective of associated documentationrelated to the applicant's spouse's reenlistment in the U.S. Air Force. i. DD Form 4, dated 5 January 2018, reflective of the applicant's spouse's election to reenlist in the U.S. Air Force for 3 years 31 months. j. DD Form 139, dated 21 May 2011, reflective of the Fort Bliss Finance Office's notification to the DMPO to initiate collection of a $22,530.00 debt resulting from the applicant's previous receipt of unauthorized BAH at the with dependents rate from April 2009 – May 2011. The amount owed is the difference between BAH at the with dependent rate and partial BAH from April 2009 – May 2011. k. DA Form 5960, dated 10 May 2011, reflective of the applicant's submitted BAH Recertification. The applicant indicates that he is married to another service member and has no additional dependents. l. Order Appointing Guardian of the Persons, dated 30 September 2009, reflective of the applicant's spouse being appointed as the legal guardian of and . m. Excerpt from the JFTR reflective of the following guidance as it pertains to BAH entitlement when both husband and wife are members and separate households are maintained "…each is authorized BAH. Only 1 member may receive BAH at the with dependent rate." In an attached document of unknown origin, labeled as "DMPO-Fort Bliss, TX," the applicant brings attention to the same guidance noted in the JFTR in that both members are entitled to BAH. However, only one member may receive BAH at the with dependent rate. In no case may a spouse who also is a member in receipt of basic pay be a dependent for allowance purposes. n. DFAS-IN Form 0-641 (Final Pay Worksheet), dated 12 May 2011, reflective of the applicant having an in service debt for $24,737.39 ($22,530.00/BAH and $1,436.67/Bonus). A portion of this was withheld from the applicant's final pay leaving a remaining in service debt balance of $21,137.96. 5.On 22 October 2021, the Department of the Army, Office of the Deputy Chief ofStaff, G-1, Chief, Compensation and Entitlements Division provided an advisory opinionrecommending disapproval of the applicant's requested relief citing that there is nodocumentation that the applicant received an exception to policy from the GarrisonCommander nor a certificate of non-availability to reside off post, authorizing him toreceive a housing allowance. Army Regulation 420-1 (Army Facilities Management)requires Soldiers in the grade of E4 and below to reside in unaccompanied personnelhousing. Therefore, the applicant was required to reside in unaccompanied personnelhousing while assigned to Fort Bliss. Although he is married to another member, hisspouse was not assigned to Fort Bliss; Army policy treats him the same as anunmarried Soldier. However, Army policy provides the authority for garrisoncommanders to approve exceptions to the policy under certain conditions. Because the applicant did not provide proof of an approved exception to policy, his application for relief should be denied. 6.On 4 November 2021, the applicant was provided with a copy of the advisory opinionand afforded 30 days to provide comments. As of 8 February 2022, the applicant hadnot responded. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The applicant’s contentions, the military record, an advisory opinion, and regulatory guidance were carefully considered. Based upon a preponderance of the evidence, the Board concurred with the advising official’s recommendation and determined there is insufficient evidence that shows the debt was unjust. 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. 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.Title 10, USC, section 1552(b), provides that applications for correction of militaryrecords must be filed within 3-years after discovery of the alleged error or injustice. Thisprovision of law also allows the ABCMR to excuse an applicant's failure to timely filewithin the 3-year statute of limitations if the ABCMR determines it would be in theinterest of justice to do so. 2.Joint Travel Regulation, Chapter 10 (Housing Allowances) provides that a Servicemember on active duty entitled to basic pay is authorized a housing allowance based onhis or her grade, rank, location, and whether he or she has any dependents. Section1003 (Service Member Married to Another Service member) provides that a dependentwho is on active duty in a Uniformed Service and is entitled to basic pay cannot beconsidered a dependent for housing allowance purposes. When two Service membershave a dependent, the Service members must choose which one will receive BAH atthe with-dependent rate. a.Section 100301 (Both Service Members Married to Each Other Entitled to BasicPay) provides that when both Service members maintain separate households at or in the vicinity of their Permanent Duty Station(s) each is individually authorized BAH. Only one Service member may receive BAH at the with-dependent rate. When both Service members no longer share a common residence due to military orders, their authorization for increased allowances or assignment to Government quarters should be determined separately without regard to the general rule that all dependents of Service members are in the same class for the purpose of determining housing allowance authorizations. Each member is required to have physical custody of a dependent if both members are claiming a housing allowance authorization at the with-dependent rate. When neither Service member has other dependents and both are prevented by distance from living together, each is usually treated as a Service member without a dependent for BAH. b.Table 10-17 (Conditions of BAH Partial) provides that if a Service member in thegrade E-6 or below without a dependent is offered an assignment of adequate Government quarters, or is assigned Government quarters but elects not to occupy such quarters and resides in private quarters at own expense, then the service member is not authorized BAH. 3.Army Regulation 600-4 (Remission or Cancellation of Indebtedness) in accordancewith the authority of Title 10 USC, section 4837, the Secretary of the Army may remit orcancel a Soldier’s debt to the U.S. Army if such action is in the best interests of theUnited States. Indebtedness to the U.S. Army that may not be canceled under Title 10USC, section 4837 when the debt is incurred while not on active duty or in an activestatus. //NOTHING FOLLOWS//