IN THE CASE OF: BOARD DATE: 1 June 2023 DOCKET NUMBER: AR20220004588 APPLICANT REQUESTS: remission of debt associated with previously received Basic Allowance Housing (BAH) and Family Separation Allowance (FSA) APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Defense Finance Accounting Services (DFAS) letter, 7 January 2022 * DD Form 2789 (Waiver/Remission of Indebtedness Application), 16 February 2021 * DA Form 2823 (Sworn Statement), 16 February 2021 * Memorandum – Subject: Notification of Entitlements Recoupment, 25 June 2020 * Master Military Pay Account (MMPA) * DD Form 137-6 (Dependency Statement – Full-Time Student) * Form 1040 (U.S. Individual Income Tax Return) * Summary of Expenses * Wells Fargo statement * Central Georgia EMC * USAA statement * Verizon statement * Certificate of Title. * USAA statement * Chase statement * DD Form 137-6 * University letter FACTS: 1. The applicant states in pertinent part that he completed a DD Form 2789 in effort to correct the DD Form 137-6 that was misinterpreted and therefore completed incorrectly. He then completed a subsequent DD Form 137-6, but the issue was not resolved prior to his retirement. He notes that while he was deployed, his son still qualified as his dependent. 2. A review of the applicant's available service records reflects the following: a. On 3 January 1992, the National Guard Bureau (NGB) issued Special Orders Number 1 AR extending Federal recognition of the applicant's appointment in the Georgia Army National Guard (GAARNG) on 25 November 1991. b. On 2 May 2007, the applicant was issued his Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter). c. On 2 May 2015, the applicant completed DA Form 5960 (Authorization to Start, Stop or Change Basic Allowance for Quarters (BAQ) and/or Variable Housing Allowance (VHA)) requesting entitlement to BAQ at the with dependent rate. The applicant identifies his spouse as his dependent. d. On 28 April 2019, the applicant was ordered to active duty and on 20 June 2020, the applicant was released from active duty. e. On 11 April 2022, the NGB issued Special Orders Number IP-10436 withdrawing Federal recognition of the applicant's appointment in the GAARNG and transferring him into the U.S. Army Retired Reserve, effective 30 June 2021. 3. The applicant provides: a. DFAS letter, dated 7 January 2022, reflective of the applicant being informed of a debt related to overpayment of BAH and FSA entitlements totaling $14,560.41 occurring from 25-30 May 2019 and 1 July 2019 – 15 March 2020. Payment recoupment in the amount of $410.72 would be initiated if not paid in full within 30 days. b. DD Form 2789 dated 16 February 2021, reflective of the applicant's request for remission of his BAH and FSA debt totaling $15,363.53. The document is void of a determination made by the GA U.S. Property and Fiscal Office (USPFO). c. DA Form 2823 dated 16 February 2021, reflective of the applicant's request for a waiver of DD Form 2789 based on the fact that the information presented on DD Form 137-6 (7 July 2020) was not completed properly regarding the determination of student dependency status. He notes that when he completed the DD Form 137-6 initially, he mistakenly entered his dependent child annual income ($5,895.00) rather than his monthly income ($491.27). The document is further provided in its entirety for the Board's review within the supporting documents. d. Memorandum – Subject: Notification of Entitlements Recoupment, dated 25 June 2020, reflective of the applicant being advised that an investigation was conducted on 16 June 2020 which revealed that he had previously received financial entitlements (BAH and FSA) that he was not authorized. By moving his dependent to his duty station, he changed her [sic] permanent residence from the home of record (HOR) to Saudi Arabia, thereby affecting his eligibility and/or BAH and FSA rates. e. MMPA reflective of historical information pertaining to the applicant's pay and entitlements, specifically his receipt of FSA Type II from 5 May 2019 – 20 June 2020, and BAH from 28 April 2019 – 20 June 2020. f. DD Form 137-6 reflective of the applicant identifying his dependent (date of birth: 6 November 1997) as a student attending the University of North Georgia from January – April 2019 and August -November 2019. Item 12e. (Monthly Salary) reflects $491.27. g. Form 1040 reflective of the applicant' submitted tax return indicating his son as a dependent. h. Summary of Expenses, reflective of the applicant's monthly contributions (expenses) in support of his dependent son to include utilities, insurance etc. from May 2019 – April 2020 (total $23,140.40) i. Wells Fargo statement reflective of principal and interest information pertaining to a loan received by the applicant; monthly payment of $2,443.98. j. Central Georgia EMC reflective of the applicant's monthly utility usage/bills. k. USAA statement reflective of the applicant's homeowner's insurance premium information. l. Verizon statement reflective of the consolidate monthly cell phone bills for an account shared by the applicant's spouse and dependent children. m. Certificate of Title reflective of information pertaining to the ownership of a 2009 Toyota Tacoma. n. USAA statement reflective of information pertaining to the insurance of 5 vehicles. o. Chase statement reflective of authorized credit charges. p. DD Form 137-6 reflective of the applicant identifying his dependent (date of birth: 6 November 1997) as a student attending the University of North Georgia from January – April 2019 and August -November 2019. Item 12e. (Monthly Salary) reflects $5,895.00. q. University letter reflective of information pertaining to the applicant's dependent son's enrollment status. This document provides that he was a fulltime student from August 2016 -December 2020. 4. During the processing of this case, the Chief, Military Pay Branch, Office of the Deputy Chief of Staff, G-1, provided an advisory opinion that states the following: a. Based on a careful review of the facts surrounding this situation, we recommend the Army Review Boards Agency disapprove the applicant’s request for administrative relief. Based on the facts presented, we support the DFAS decision to indebt the applicant for the overpayment of BAH and FSA based on his child. Department of Defense policy requires the applicant to reside separately from his dependent to receive a housing allowance at the with-dependent rate based on the dependent’s location. Since the applicant’s child was moved to his permanent duty station for 90 or more consecutive days, DFAS’s decision is warranted. b. Since the investigation determined that the applicant’s child relocated to his permanent duty station in Eskan Village, Saudi Arabia and continued to live at the duty station, this is not considered a temporary social visit. Therefore, the applicant is not authorized a BAH based on the dependent’s location and a Family Separation Housing (FSH) while assigned to Saudi Arabia. He is eligible to receive an overseas housing allowance based on his duty station for the periods 25 May 2019 through 15 March 2020 and 24 August 2019 through 15 March 2020, provided he has a lease agreement and a certified DD Form 2367. c. The purposes of FSH and FSA are to partially cover the added housing expense resulting from a government enforced separation from dependents while the member serves an unaccompanied overseas tour. Since the applicant’s child lived at the duty station, he is considered to have relocated to Saudi Arabia and, therefore, BAH, FSH, and FSA are not payable. 5. The applicant was provided a copy of the advisory opinion for review and comment. He did not respond. 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, and regulatory guidance were carefully considered. The Board reviewed and agreed with the Army G-1 advisory opinion and DFAS decision to indebt the applicant for the overpayment of BAH and Family Separation Allowance (FSA) based on his child. DOD policy requires the applicant to reside separately from his dependent to receive a housing allowance at the with-dependent rate based on the dependent’s location. Since he was moved to his permanent duty station for 90 or more consecutive days, DFAS’s decision is warranted. The Board determined the applicant is not authorized a BAH based on the dependent’s location and a Family Separation Housing (FSH) while assigned to Saudi Arabia. Since the applicant’s child lived at the duty station, he is considered to have relocated to Saudi Arabia and, therefore, based on the preponderance of the evidence, BAH, FSH, and FSA are not payable. 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 (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. 2. AR 15-185 (Army Board for Correction of Military Records (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// ABCMR Record of Proceedings (cont) AR20220004588 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1