IN THE CASE OF: 
BOARD DATE:  2 March 2023 
DOCKET NUMBER: AR20220004725 


APPLICANT AND COUNSEL REQUESTS:  in effect – 

•waiver and/or remission/cancellation of $212,674.10 of the $248,950.10 debt forBasic Allowance for Housing (BAH) and Cost of Living Allowance (COLA)

•a personal appearance before the Board



APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: 

•DD Form 149 (Application for Correction of Military Record)

•Defense Finance and Accounting Service (DFAS), Fort Meade, MDMemorandum, Subject: Notice of Indebtedness, 19 October 2020

•General Officer Memorandum of Reprimand (GOMOR), 2 February 2021

•Filing Determination on Reprimand, 25 May 2021

•Counsel's brief to the Board, 1 July 2021



FACTS: 

1.The applicant and counsel state:

a.The applicant received $36,276.00 in BAH and Continental United States

(CONUS) COLA that she was not entitled to receive. However, because the "tainted-claim rule" has been applied, that overpayment calculation ballooned to $248,950.10. On behalf of the applicant, they respectfully ask that $212,674.10 of that debt be waived and that she only be required to pay back $36,276.00, the overpayment amount she was reprimanded for receiving by Major General (MG) . The $248,950.10 is the amount of BAH the applicant was paid from 2014 to 2020. It includes the single rate which she was entitled to as a service member living off post. She was not court-martialed. She received disciplinary actions for the erroneous mistake in judgement. She had to sell her house and used all her savings. She cannot pay her bills and has tried to harm herself.       b. On 2 February 2021, MG  issued the applicant a GOMOR for collecting over $36,000 in BAH funds she was not entitled to receive over a five-year period.  









c. On 22 February 2021, via civilian representation, the applicant submitted written rebuttal matters to the GOMOR for MG 's consideration. In these written rebuttal matters, the applicant requested that the GOMOR be rescinded or, in the alternative, that it not be permanently filed in her Army Military Human Resources Record (AMHRR). The justification for that request was that, although the applicant did claim her half-sister as her stepmother for BAH entitlement purposes, she did not intend to defraud the Government, but instead made an error that was driven by culture and circumstances. "Sergeant First Class (SFC)  [applicant] is  years old. Her half-sister  is  years old. Their familial relationship has existed since SFC  was a small child, before she could even form concrete memories. In fact, SFC 's first memories as a child always include Ms. ."     d. In support of the contention that the applicant made an error, not a calculate move to defraud the Government, retired SFC , wrote a letter to MG  wherein he stressed: "As long as I have known her, she has referred to her sister as her stepmother because she raised her." Others stepped forward to support the applicant as well. In fact, seven other senior Army leaders, officer and enlisted alike, came forward to indicate that the applicant is a Soldier of outstanding character. After considering the Criminal Investigation Division (CID) investigation, as well as the applicant's commendatory material, her years of faithful service, and other matters presented, MG  determined that the applicant's GOMOR should only be locally filed.    e. As expressed to MG , the applicant is incredibly sorry for her error. For that misjudgment, "she takes full responsibility." But that error, under the totality of the unique circumstances, is understandable, a determination fully supported by the case decisions made by MG  and Colonel (COL) . Indeed, when the subject entitlement was suddenly stopped, the applicant called DFAS to find out why, which is indicative of a mistake based on a firmly held belief shaped over a decades-Iong relationship wherein the applicant viewed Ms.  as her stepmother, not intentional misconduct. The applicant is currently paying the subject debt back.  f. In conclusion, considering the totality of the circumstances, including the life-altering amount of the subject debt and the fact that the applicant has been dutifully paying back the amount that she was not authorized, they pray that the requested waiver will be granted. In their humble view, requiring the applicant to pay back money that she was otherwise entitled to, would not be fair or just under the circumstances. The applicant and counsel therefore respectfully request that $212,674.10 of the subject debt be waived and that the applicant only be required to pay back $36,276.00, the overpayment amount the applicant was reprimanded for receiving by MG .       


2.A review of the applicant's official military records show the following:

a.Having had prior service, on 1 April 2006, she was ordered to active duty in an
















Active Guard/Reserve status. She served continuously until her medical retirement. b. Orders Number B-05-002928 published by the U.S. Army Human ResourcesCommand (HRC), St. Louis, MO, promoted the applicant to SFC/E-7, effective on with a date of rank of 1 June 2010.  c. On 20 June 2017, a letter from DFAS Indianapolis, IN, shows the applicant was notified that her application was reviewed and approved on behalf of her parent (). DFAS determined BAH at with-dependent rate was approved for the period effective  26 May 2017. The enclosed documentation was sent to her local Finance office to update her military pay record. Annual re-determination of eligibility was required by April 2018. The letter further states: (1) The applicant was responsible for notifying DFAS immediately of anychanges in the dependent's residential, financial, or marital status. She was also responsible for notifying DFAS if, for any reason, her support to her dependent became less than one-half of the dependent's monthly expenses.  (2) Failure to provide prompt notice of these changes may result in subsequent collection action against her, as the sponsoring service member, for any overpayment of BAH, and/or the value of any medical benefits received by the dependent after eligibility for dependency ends.   d. On 17 July 2017, DA Form 5960 (Authorization to Start, Stop, or Change Basic Allowance for Quarters (BAQ) and/or Variable Housing Allowance (VHA)) shows the applicant requested BAH with dependents for her stepmother (). She also recertified, with her signature,  was her dependent stepmother and she provided dependent support.    e. On 15 March 2022, HRC, Fort Knox, KY, published Orders 074-0010 retiring the applicant, effective 8 June 22, and placing her on the Temporary Disability Retired List, effective 9 June 2022.   f. DD Form 214 shows the applicant was retired by reason of "Disability, Temporary" on 8 June 2022. She completed 16 years, 2 months, and 8 days net active service with 1 year, 3 months, and 15 days total prior active service. 3. The applicant’s record is void of and she has not provided any documents which supports the establishment of her stepmother as a dependent.

4.The applicant provides:

a.DFAS Fort Meade, MD Memorandum, Subject: Notice of Indebtedness, dated19 October 2020 notifying the applicant of her indebtedness and directing her to make a selection acknowledging validity or disagreement of the debt.  

b.GOMOR dated 2 February 2021 that states:

(1)She made multiple false official statements resulting in her theft of BAH funds.



A law enforcement investigation revealed she submitted multiple secondary dependency claims falsely claiming her sister was her stepmother. As a result, she collected over $36,000.00 in BAH funds she was not entitled to receive. This fraudulent receipt of benefits occurred over a five-year period. The applicant's decisions reflect a severe lack of judgment and compromises her honesty and integrity. (2) As a Noncommissioned Officer (NCO), the applicant was charged with the responsibility of setting the example for subordinates to emulate. Clearly, her actions fell below the standards expected of an NCO in the U.S. Army. There is no excuse for her irresponsible and improper behavior, and further incidents of this nature may result in more serious action being taken against her. MG  trusted that the applicant's future duty performance will reflect the degree of professionalism expected of every Soldier assigned to the command.   c. A filing determination on the GOMOR dated 25 May 2021, wherein, MG  directed the GOMOR be placed temporarily in the applicant's local unit file with all enclosures. The GOMOR will remain in the file for 18 months or until the applicant is reassigned to another general court-martial jurisdiction, whichever is sooner.     

5.On 18 November 2022, the Office of the Deputy Chief of Staff, G-1, Lead, MilitaryPay Branch provided an advisory opinion for this case and recommended disapproval.The advisory official stated:

a.Based on a careful review of the facts surrounding this situation, we [G-1]recommend the Army Review Board Agency disapprove the applicant's request for administrative relief. Based on G-1's review of the facts, G-1 supports the DFAS decision to indebt the applicant for the overpayment of BAH. Department of Defense (DOD) policy requires the applicant to have a qualifying dependent to receive a housing allowance at the with-dependent rate. Since her step-sister was not a qualifying dependent under DOD policy, G-1 believes DFAS's decision is warranted. 

b.G-1 recommends the Board receive an advisory opinion from the DFAS Office ofthe General Counsel to determine if the Tainted Claim Rule should be applied in this case. The law provides that if a person submits a fraudulent claim, the claim for that entitlement is forfeited. The person committing the fraud cannot subsequently collect on a corrected (i.e. non-fraudulent) claim for the same entitlement.  

c.The Defense Office of Hearings and Appeals (DOHA), the DOD office with finalauthority to adjudicate all military pay and allowance claims, has consistently applied the Tainted Claims Rule, including to claims for housing allowances. In DOHA Claims Case Number 05091301 (31 October 2005), DOHA ruled that a member's fraudulent submission for Basic Allowance for Quarters (BAQ) on the basis of marriage eliminated any claim the member would have to BAQ at the with dependent rate for the same time period on the basis of his child support payments.      

6.On 25 November 2022, the applicant was provided a copy of the advisory opinion toallow for comments or rebuttal. As of 24 February 2023, she nor counsel hasresponded.


BOARD DISCUSSION: 

After reviewing the application and all supporting documents, the Board determined relief was not warranted. The applicant's contentions, the military record, and regulatory guidance were carefully considered.  One potential outcome discussed was to grant relief based upon a mistake of fact by the applicant; the applicant didn’t know she was being overpaid at the time.  However, based upon facts outlined within both advisory opinions and the lack of any rebuttal  of those facts submitted by the applicant, the Board concluded there was insufficient evidence of an error or injustice warranting relief of the applicant’s BAH debt. 

BOARD VOTE: 

Mbr 1 Mbr 2 Mbr 3 

:X : : GRANT FULL RELIEF 

: : : GRANT PARTIAL RELIEF 

: : : GRANT FORMAL HEARING 

: :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. 

Microsoft Office Signature Line...
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) 15-185 (ABCMR), states that the ABCMR begins itsconsideration of each case with the presumption of administrative regularity. It willdecide cases based on the evidence of record and it is not an investigative body. Theapplicant has the burden of proving an error or injustice by a preponderance of theevidence. Paragraph 2–11 states that applicants do not have a right to a hearing beforethe ABCMR. The Director or the ABCMR may grant a formal hearing whenever justicerequires.

2.AR 637-1 (Army Compensation and Entitlements Policy) provides Department of theArmy (DA) policies for entitlements and collections of pay and allowances for active dutySoldiers. It is used in conjunction with the Department of Defense (DoD) FinancialManagement Regulation (FMR), Volume 7A. For the purpose of this regulation, activeduty is defined in accordance with Title 37, United States Code (37 USC). The term"active duty" means full-time duty in the active service of a uniformed service andincludes full-time training duty, annual training duty, full-time National Guard duty, andattendance, while in the active service, at a school designated as a service school bylaw or by the Secretary of the Army. The regulation provides in:

a.Paragraph 7–3 (Dependents), a dependent is defined as the Soldier's legalspouse, minor children, or unmarried dependents over the age of 21 and under the age of 23 if attending college, for whom the Soldier provides support. A Soldier's parent is considered a dependent for the purpose of BAH if the Soldier provides more than half of the parent's support. The parent's income must be less than one-half of the parent's living expenses. Unliquidated capital assets are not considered income. 

 b.  Paragraph 23–1 (Waiver), the Secretary of Defense may waive U.S. claims for erroneous payments of pay and allowances, including travel and transportation allowances, totaling less than $1,500.00 or deny waivers in any amount. Waiver requests exceeding $1,500.00 will be referred to the Comptroller General of the United States together with recommendation of the Director, DFAS. A claim of the United States against a Soldier or former Soldier arising out of an erroneous payment of pay and allowances, including travel and transportation allowances, may be considered for waiver within 3 years from the date of discovery when collection of the erroneous payment would be against equity and good conscience and not in the best interest of the United States. However, a claim may not be waived if it has been: (1) Made the subject of an exception by the Comptroller General in the account of any accountable official. (2) Sent to the Government Accountability Office (GAO) for collection. (3) Sent to the Attorney General for litigation. 
 
 c.  Paragraph 23–2 (Delegation of waiver authority), the SECDEF has delegated waiver authority to the Director, DFAS, who may grant waivers up to $1,500.00 and deny waivers in any amount for Soldiers. This authority has been further delegated to the directors of the DFAS centers. 
 
3.  AR 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. 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 7837, Title 10,  
United States Code (10 USC 7837), the Secretary of the Army 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 (if separated from active duty). Assistant Secretary of the Army (Manpower and Reserve Affairs) ASA (M&RA)) will 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 Secretary of the Army (10 USC 7837 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 


 
4.  Department of Defense 7000.14R, Financial Management Regulation, Volume 7A, Chapter 26 (Housing Allowances) establishes policy pertaining to housing allowances. Housing allowances include Basic Allowance for Housing (BAH), Overseas Housing Allowance (OHA), and Family Separation Housing (FSH) Allowance.  Entitlement eligibility is subject to the conditions set forth in this chapter. In pertinent part, it states: 
 
 a.  Paragraph 3.2 (Determinations and Fraudulent Claims (260302)) states dependency must be determined before a housing allowance is authorized. After initial approval, the Services must maintain adequate levels of internal audit to assure the legality, propriety, and correctness of all housing allowance payments. See individual Service regulations for procedures.  
 b.  Subparagraph 3.2.1. (Determinations) states, in determining relationship or dependency for housing allowance eligibility, the appropriate officials must apply the rules in this section. The Service Secretary or designee makes all determinations of relationships or dependency for a primary dependent. The designee may re-delegate.  Otherwise, the Army disbursing officer or designee make determinations. The Defense Finance and Accounting Service (DFAS) determines relationships and dependency for secondary dependents and individuals whose status as a primary dependent is questionable for the Army. Determinations for relationships or dependency for non-DoD Services is per Service regulations. 
 
 c.  Subparagraph 3.2.1.1. (Dependent Status Certification) states, upon arrival at a new permanent duty station (PDS), each Service member authorized a housing allowance for a dependent must recertify the status of the dependent to the Secretary concerned to support a housing allowance on the dependent's behalf. If a Service member fails to provide the certification, the housing allowance on the dependent's behalf stops at the end of the month in which the certification is due. A housing allowance at the appropriate partial or without-dependent rate is paid unless the Service member is not authorized that allowance for some other reason. A housing allowance at the with-dependent rate is authorized effective the date the Service member provides proper certification. The higher rate is not retroactive unless the Service member's commander certifies that the failure to recertify promptly was for reasons beyond the Service member's control.   
 
 d.  Subparagraph 3.2.1.2. (Dependency Re-determinations) states, annual re-determination of dependency is required for a Service member who claims a housing allowance for a parent, parent in-law, stepparent, parent by adoption, or a person who serves in loco parentis.  
 
 e.  Paragraph 3.2.3. (Fraudulent Claims) states, any Service member who submits a claim for a housing allowance that contains a false statement is subject to court-martial or criminal prosecution. Fraudulent acceptance of benefits may cause a civilian recipient to be subject to criminal prosecution. The law provides for severe penalties of imprisonment and a fine. For military personnel, it may include a punitive separation, total forfeitures, and confinement. 
  
5.  Army Military Pay E-Message 19-007, Subject: Defense Finance and Accounting Service Clarification of the Tainted Claim Policy and Procedural Guidance. The purpose of this message is to inform all Defense Military Pay Offices (DMPOs), Finance Offices (FOs), Regional Readiness Commands (RRCs), U.S. Property and Fiscal Offices (USPFOs) of the "Tainted Claim" Policy and provide clarifying Procedural Guidance. In pertinent part, it states: 
 
 a.  It is necessary to issue this policy clarifying the responsibilities of the Certifying Officer (CO) and/or Disbursing Officer (DO) regarding members who have filed a falsified claim and request payment of the same entitlement for the fraudulent period. The law provides that if a person submits a fraudulent claim, the claim for that entitlement is forfeited. The person committing the fraud cannot subsequently collect on a corrected (i.e. non-fraudulent) claim for the same entitlement. This prohibition is known as the Tainted Claim Rule. The DOHA, the DOD office with final authority to adjudicate all military pay and allowance claims, has consistently applied the Tainted Claims Rule, including to claims for housing allowances. In DOHA Claims Case Number 05091301 (31 October 2005), DOHA ruled that a member's fraudulent submission for Basic Allowance for Quarters (BAQ) on the basis of marriage eliminated any claim the member would have to BAQ at the with-dependent rate for the same time period on the basis of his child support payments. 
 
 b.  When a determination is made that an entitlement or payment is based on incorrect or insufficient data, the CO/DO will collect the entitlement in full. If fraud is suspected the DO/CO would refer to DODFMR Volume 5 for the investigation procedure.  
 
 c.  Once a Report of Investigation (ROI) is received, the Disbursing Officer (DO) or Certifying Officer (CO) will review for the facts and legal summary. When the ROI is provided by the Army Criminal Investigation Division (CID), there should be a section for a legal review, in which an Army Judge Advocate General (JAG) officer provides an opinion on whether probable cause exists that an offense of fraud, larceny, or making a false statement was committed. For ROIs done outside of the CID process, the DO/CO should coordinate with the local legal office to determine the existence of fraud and document the legal opinion. The ROI and Legal opinion support the DO/CO determination of fraud. 
 
 d.  If the JAG officer determines there is probable cause, the Tainted Claim Rule should be applied. The period of overpayment is collected in its entirety without benefit of an offset of what the member would have otherwise been due had the fraudulent activity not occurred. If the member files a "corrected" claim for payment of the same entitlement for the same time period, the claim should be denied, and the member should be given DOHA appeal rights. 
 
 e.  Court-martial charges do not have to be referred in order for the Tainted Claim Rule to be applied.           
 
//NOTHING FOLLOWS//