IN THE CASE OF: BOARD DATE: 17 August 2022 DOCKET NUMBER: AR20210016171 APPLICANT REQUESTS: correction of his military records to reflect authorization to reside off-post with entitlement to receive Basic Allowance for Housing (BAH) resulting in remission of the remaining debt balance currently being recouped. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Headquarters, U.S. Army North (Fifth Army) letter * Copy of Particulars of Marriage, dated * Apartment Lease Contract, dated 14 May 2020 * Ministry of Justice – Order Dissolving Marriage, dated 6 December 2020 * Memorandum for Record (MFR), dated 1 October 2021 * MFR, dated 24 September 2021 * Memorandum – Subject: Request for Certificate of Non-Availability (CNA), dated 12 March 2021 * Memorandum – Subject: Request for CAN, dated 3 March 2021 * Memorandum – Subject: Request for authority to reside off post and obtain a CNA to receive BAH at the without dependent rate for E-5 and below, dated 10 March 2021 * Spreadsheet for March 2021 * Memorandum – Subject: Financial Counseling Appointment, dated 12 February 2021 * DA Form 5960 (Authorization to Start, Stop, or Change Basic Allowance for Quarters (BAQ), And/Or Variable Housing Allowance (VHA), dated 11 March 2021 * Enlisted Record Brief * Leave and Earnings Statement (LES), dated February 2021 * Orders Number 301-239, dated 28 October 2019 * Memorandum – Subject; CNA and Authorization for BAH, dated 24 March 2021 * BAH Offer Memorandum, dated 24 March 2021 * Memorandum – Subject: Notice of Indebtedness, dated 27 April 2021 * Memorandum – Subject: Remission or Cancellation of Request, dated 14 June 2021 * Memorandum – Subject: Recommend Approval of Financial Remission Packet, dated 28 June 2021 * DA Form 3508 (Application for Remission or Cancellation of Indebtedness), dated 8 June 2021 * Unit Transmittal letter, dated 18 June 2021 * DA Form 2823 (Sworn Statement), dated 9 June 2021 * LES, dated May 2021 * Orders Number 125-077, dated 4 May 2020 * Orders Number 301-239, dated 28 October 2019 * Spreadsheet for June 2021 * Memorandum – Subject: Remission or Cancellation of Indebtedness, dated 13 July 2021 * Email communication FACTS: 1. The applicant states in pertinent part, through legal counsel, that he enlisted in the Regular Army in October of 2018 and graduated from Basic Combat Training (BCT) in January 2019. Following his completion of BCT, he attended Advanced Individual Training (AlT) at Joint Base San Antonio (JBSA), TX from January to April 2019. He notes that as a Phase 1 trainee, he was required to live in the barracks. He completed Phase 1 in April 2019 and proceeded on Permanent Change of Station (PCS) orders to Fort Bliss, TX to attend Phase 2 of his AIT. As a married Soldier in Phase 2, he was authorized to reside off-post until he graduated from Phase 2 in February 2020. Upon graduation, he was reassigned back to JBSA with a report date of 18 March 2020. Due to the restrictions of movement associated with COVID-19, he was prohibited from proceeding to his reassignment location and therefore remained at Fort Bliss, TX. On 4 May 2020, he was issued amended orders to JBSA with a report date no later than 10 June 2020. The applicant finally arrived at his follow-on assignment on 15 May 2020 and entered into a lease agreement with a through date of 15 November 2021 with a $1,150.00 monthly rent requirement. a. On November 2020, the applicant advised his supervisor of his pending divorce and asked for guidance regarding the retention of his BAH entitlement. He was advised to remain in off-post housing pending receipt of the official divorce decree prior to notifying finance. On 6 December 2020, the applicant was divorced. The applicant's former spouse advised him that he would receive a copy of the divorce decree directly from the New Zealand Ministry of Justice. He received the divorce decree on 10 February 2021 and informed his leadership on the following day. He notes that his commander did not direct him to move into the barracks because she believed that the barracks were at capacity and therefore a CNA would be issued. She further supported his request to continue to reside off post because of his lease agreement obligation. b. Upon receipt of his divorce decree, the applicant proceeded to the housing office to initiate the CNA process, but they were teleworking due to the COVID-19 restrictions. During the next several weeks, the applicant worked with the housing office and his unit to prepare and submit his CNA packet. He notes several challenges that he experienced during the process due to conflicting information provided by his unit and the housing office. Finally, on 26 February 2021, the completed packet was submitted to the housing office. c. On 24 March 2021, the housing office issued the CNA and BAH Offer Memorandum authorizing him to reside off-post with entitlement to BAH at the single rate. d. On 27 May 2021, the applicant was notified by the Military Pay Office (MPO) that two outstanding debt balances were reflected within his pay account related to BAH overpayments: $4,934.70 from 1 January 2021 – 31 March 2021 and $1,347.25 from 1 June 2020 – 31 December 2020 = $6,281.95. The applicant requested remission of this debt in June 2021. e. On 13 July 2021, the U.S. Army Human Resources Command (HRC) partially approved his request resulting in the remission of $3,140.97 worth of debt. He was further advised that there were no grounds to remit or cancel the remaining portion of the debt based on hardship and or injustice. f. The applicant contests that the provisions of Army Regulation (AR) 600-4 (Remission or Cancellation of Indebtedness) are nonapplicable because he was residing on an installation that is managed by the U.S. Air Force and according to the housing office, there is no local policy. Further, Air Force Instruction 32-6000 (Housing Management) requires single service members in the rank of E-5 and below to reside in the barracks unless there is a hardship (Airman). The applicant notes that this reference provides that Soldiers are issued a CNA permitting them to reside off-post. The goal for the installation is to maintain an occupancy rate of 95 percent occupancy within Single Soldier Housing (barracks). Requests to reside off-post are determined by the availability of space in the barracks. Unit commanders may not authorize Soldiers to reside off-post. At JBSA, this authority was further delegated to the housing office. g. The applicant argues that the recoupment of these funds is both an injustice and a hardship because he was legally obligated to comply with the terms of his rental lease until 14 November 2021. The endorsed lease does not contain a clause under the Servicemembers Civil Relief Act (SCRA) that addresses divorce as a reason for early lease termination. Since the applicant was now divorced with no dependents and below the rank of E-5, Air Force policy would require him to reside on post without entitlement to BAH unless he received a CNA and BAH Offer which he received on 24 March 2021. The applicant believes that he acted in good faith when he submitted his request to HRC in June 2021. h. The applicant did not have the financial means to pay his rent without entitlement to BAH. He contests that HRC's denial of his request for debt remission of the remaining 50 percent is both unfair inequitable. The same justification utilized to remit the $3,140.97 debt should be applied to the remaining balance. Counsel contests that even if the applicant did not demonstrate a hardship to repay the debt, it is simply unjust for him to be required to repay a debt incurred through no fault of his own based on the challenges that he experienced throughout the process and therefore granting his requested relief is in the best interest of the U.S. Army. 2. A review of the applicant's available service records reflects the following: a. On 15 March 2013, the applicant married Ms. in. b. On 22 October 2018, the applicant enlisted in the Regular Army to serve as a 68C (Practical Nursing Specialist). c. On 25 January 2019, the applicant was advanced to the rank/grade of private first class (PFC)/E-3. d. On 12 April 2019, Headquarters, U.S. Army North (Fifth Army) issued Orders Number 102-239 reassigning the applicant to William Beaumont Army Medical Center (WBAMC) Student Detachment, effective 22 April 2019. e. On 25 April 2019, the applicant requested entitlement to BAH at the with dependent rate. f. On 5 November 2020, the Registrar of Family Court ordered that the applicant's marriage to Ms. be dissolved. The order was sealed on 6 December 2020. g. On 1 June 2020, the applicant was advanced to the rank/grade of specialist (SPC)/E-4. 3. The applicant provides the following a: a. Apartment Lease Contract dated 14 May 2020, reflective of the applicant entering into a housing lease agreement covering the period of 15 May 2020 – 14 November 2021. Ms. is not listed on the agreement. b. MFR dated 1 October 2021, reflective of Sergeant (SGT) the applicant's supervisor while he was assigned to JBSA, statement regarding the delay in providing the obligatory paperwork to the personnel, finance, and housing offices. SGT provides that the applicant sought her assistance with retaining his BAH entitlement once he was divorced. She notes that the leadership recommended that the applicant remain in off- post housing and to delay notifying the finance office until he received his official divorce decree. She further notes that once the applicant received the decree, they immediately notified his assigned unit and were further advised to apply for a CNA to which he complied with immediately. c. MFR dated 24 September 2021, authored by Major (MAJ) the applicant's commander while he was assigned to JBSA. MAJ provides that on or about 23 February 2021, she was informed that the applicant was divorced in December 2020 and would be submitting a request for a CNA, however he was still waiting on his divorce decree, a required document to be submitted with his request for a CNA. She notes the applicant was currently engaged in a lease agreement that would not expire until November 2021. She notes the installation requirements pertaining to the requirement for single Soldiers in the rank of SGT and below to reside in the barracks. However, at that time, she understood that there was no availability in the barracks and supported his request to reside off-post. She further provides the applicant sought the advice of the leadership and the housing office in February 2021 but was provided with conflicting information resulting in a delayed submission of his request for a CNA which was ultimately approved on 22 March 2021. She attributes this delay to the COVID-19 restrictions requiring the use of teleworking capabilities. MAJ recommended approval of the applicant's request for debt remission based upon his financial worksheet and has no idea why the applicant accumulated a BAH debt of $1,347.25 from 1 June 2020 - 31 December 2020 because he was entitled to BAH for that period and the MPO has been unable to provide an explanation for this action. d. Memorandum – Subject: Request for CNA dated 12 March 2021, reflective of the Commander, Troop Command, Brook Army Medical Center (BAMC) recommendation for the approval of the applicant's request for entitlement to BAH at the without dependent rate. e. Memorandum – Subject: Request for CNA dated 3 March 2021, reflective of the applicant's immediate commanders' recommendation for approval of the applicant's request for entitlement to BAH at the without dependent rate. f. Memorandum – Subject: Request for authority to reside off post and obtain a CNA to receive BAH at the without dependent rate for E-5 and below dated 10 March 2021, reflective of the applicant's request to be permitted to reside off-post and be entitled to BAH at the without dependent rate. The applicant acknowledges that he would be required to occupy government housing and forfeit his BAH if adequate quarters became available. g. Spreadsheet for March 2021, reflective of the applicant's financial obligations for this period. The applicant receives $4,489.30 and has $4,020.38 worth of expenses. h. Memorandum – Subject: Financial Counseling Appointment dated 15 February 2021, reflective of the applicant receiving one-on-one financial counseling. i. DA Form 5960 dated 11 March 2021, reflective of the applicant's request to have a change in his BAH entitlement to the without dependent rate due to being divorced. j. Enlisted Record Brief dated 23 February 2021 reflective of the applicant's pertinent personnel and administrative information. Section IV (Personal/Family Data) reflects the applicant as married; one adult dependent. k. LES dated February 2021, reflective of the applicant's entitlement for the month of February. He received $1,653.00 in BAH at the with dependent rate. l. Orders Number 301-239 dated 28 October 2019, reflective of the applicant being reassigned from WBAMC to BAMC with an 18 March 2020 reporting date. m. Memorandum – Subject; CNA and Authorization for BAH dated 24 March 2021, reflective of the applicant's request for a CNA being approved, effective 24 March 2021. This approval was permanent and would remain in place for the duration of his assignment at JBSA. n. BAH Offer Memorandum dated 24 March 2021, reflective of the approval of the applicant's request to reside of post being approved by the housing office on 25 March 2021. o. Memorandum – Subject: Notice of Indebtedness dated 27 April 2021, reflective of the applicant's disagreement with the incurred BAH debt ($6,281.95) and further request for cancellation or remission of this debt. p. Memorandum – Subject: Remission or Cancellation of Request dated 14 June 2021, reflective of the Commander, Troop Command, BAMC recommendation for approval of the applicant's request for remission of the $6,281.95 BAH debt. q. Memorandum – Subject: Recommend Approval of Financial Remission Packet dated 28 June 2021, reflective of the applicant's immediate commanders' approval for the request for forgiveness of the applicant's $6,281.95 BAH debt. She again notes that there were several contributing factors outside of the applicant's control that resulted in the delayed submission. r. DA Form 3508 dated 8 June 2021, reflective of the applicant's request for remission of the $6,281.95 BAH debt based on hardship. s. Unit Transmittal letter dated 18 June 2021, reflective of the submission of the applicant's debt remission packet. t. DA Form 2823 dated 9 June 2021, reflective of the applicant's official statement in support of his request for debt remission. The applicant again notes the delayed receipt of the divorce decree followed by the CNA approval in March 2021 as being the catalyst for this action. u. LES dated May 2021, reflective of the applicant's pay and entitlements for the month of May 2021. The applicant received $1,239.00 in BAH at the without dependent rate; Remarks reflects a $6,281.95 debt. v. Orders Number 125-077 dated 4 May 2020, reflective of a change in the reporting date (18 March 2020) on Orders Number 301-239, due to the travel restrictions put in place in response to the COVID-19 travel restrictions. The new report date was "10 June 2020." w. Orders Number 301-239 dated 28 October 2019, reflective of the applicant being reassigned to BAMC with a reporting date of 18 March 2020. x. Spreadsheet for June 2021, reflective of the applicant's financial obligations for this period. The applicant receives $4,075.30 and has $4,493.55 worth of expenses. y. Memorandum – Subject: Remission or Cancellation of Indebtedness dated 13 July 2021, reflective of HRCs partial approval ($3,140.97) of the applicants request for debt remission ($6,281.95). The review determined that there were no grounds to remit or cancel the remaining portion of the $6,281.95 based on hardship and/or injustice. The remaining owed balance is $3,140.98. z. Email communication reflective of communication between February and August 2021 concerning the applicant's request for a CNA. The documents bring attention to the efforts made and the challenges associated with getting the correct document format/requirements. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation. Upon review of the applicant’s petition and available military records, the Board determined there was sufficient evidence that the applicant provided all the necessary documentation to support remaining in off post housing. The Board agreed at no fault of the applicant, correction of his military records to reflect authorization to reside off-post with entitlement to receive Basic Allowance for Housing (BAH) resulting in remission of the remaining debt balance currently being recouped is warranted. Based on this, the Board granted relief and recommends exact remission of the remaining debt balance be determined by DFAS-IN. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 X X X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined that the evidence presented was 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 to reflect authorization to reside off-post with entitlement to receive Basic Allowance for Housing (BAH) resulting in remission of the remaining debt balance currently being recouped. Recommend exact remission of the remaining debt balance be determined by DFAS-IN. 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, United States Code (USC), Section 7837 (Settlement of Accounts: Remission or Cancellation of Indebtedness of Members) provides that the Secretary of the Army may have remitted or cancelled any part of the indebtedness of a person to the United States or any instrumentality of the United States incurred while the person was serving as a member of the Army, whether as a regular or a reserve in active status, but only if the Secretary considers such action to be in the best interest of the United States. 2. Joint Travel Regulation, Chapter 10 (Housing Allowances) provides that 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. Section 100103 (Housing Allowance Rates and Applicable Dates) provides that when a Service Member entitled to BAH based upon marriage (on behalf of the spouse, with no other dependents) is divorced, entitlement to BAH at the "with dependent" rate is terminated at midnight on the day of the final decree of divorce. Table 10-17 (Conditions of BAH Partial) provides that if a Service member in the grade 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; without a dependent, is single and assigned to family-type quarters is not authorized "BAH- Partial." 3. AR 420-1 (Army Facilities Management), Paragraph 3-20 (Eligibility, assignment, and termination of permanent party unaccompanied personnel housing) provides that the authority to live off post may be denied if it would adversely affect a training mission, military discipline, or military readiness. (Installation Management Command (IMCOM) region directors may not grant exceptions). Garrison commanders may authorize single Soldiers in the grade of E-5 and below within the continental U.S. to reside off post under the following conditions: * When adequate housing is not available and military necessity is not a factor * When the Soldier is pregnant * When the Soldier has purchased a home near the installation prior to notification of assignment to that installation a. If a Soldier refuses to occupy Government housing, he or she will be advised in writing that their BAH will be forfeited if housing adequate for their grade is available. b. Garrison commanders are the authority for issuance and control of Certificates of Non-Availability (CNA) for BAH at the without dependent rate. 4. AR 600-4 (Remission or Cancellation of Indebtedness) in accordance with the authority of Title 10 USC, section 4837, the Secretary of the Army may remit or cancel a Soldier's debt to the U.S. Army if such action is in the best interests of the United States. Indebtedness to the U.S. Army that may not be canceled under Title 10 USC, section 4837 when the debt is incurred while not on active duty or in an active status //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210016171 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1