2. The applicant requests that her indebtedness to the United States Government be canceled. She states, in effect, that she enlisted as a single parent of a small child. Based on her recruiters advice, she gave custody of the child to her [applicants] mother prior to enlisting. After completing basic training and starting advanced training, finance officials told her that, even though she resided in the barracks, she was entitled to collect Bachelor Allowance for Quarters (BAQ) payments at the with dependent rate provided she had sole or joint legal custody of her child. She obtained joint legal custody and the Army paid her BAQ at the with dependent rate from the date of her enlistment.
3. The applicant was born on 11 May 1973 and, in 1991, she became a single parent after giving birth to a daughter. Two years later, she sought to join the Army and her recruiter advised her that she had to relinquish legal custody of her child. She enlisted in the Regular Army for 4 years on 14 September 1993 after giving her mother legal custody of the child. This was accomplished by order of the Macon County, Alabama, District Court on 21 July 1993.
4. After completing basic training, the applicant went to Fort Sam Houston, Texas, for advanced training as a medical specialist. At Fort Sam Houston, finance personnel informed her that she was entitled to BAQ at the with dependent rate provided she could prove sole, or joint, custody of her child. The applicant then went back to the Macon County District Court and, on 5 January 1994, amended the original custody order to provide joint custody of the child between the applicant and her mother. Shortly thereafter, the Army began paying the applicant BAQ with dependents retroactively to her first day of service.
5. In April 1995, the applicant was stationed at Fort Campbell, Kentucky. When finance personnel reviewed her records, they determined that she was erroneously receiving full BAQ with dependents when she was only entitled to the difference between BAQ without dependents and BAQ with dependents. The Finance Office took action to collect BAQ without dependents from the applicant for the period in question. This amounted to $4,678.14.
6. On 13 September 1995, the applicant submitted a Request for Remission or Cancellation of Indebtedness, DD Form 139, through her chain of command seeking to have the debt forgiven. She pointed out that she was the recipient of incorrect advice from her Finance Office and should not be penalized for following that advice in good faith. She was supported throughout her chain of command.
7. The request was forwarded through finance channels to Headquarters, Department of the Army (HQDA) Total Army Personnel Command (PERSCOM). The request was partially approved in the amount of $2,788.67, but the applicant was ordered to repay $1,889.47. It was determined that her allotment to her daughter during the period in question only amounted the approximately $2,800, thus the remainder did not go to support and must be repaid.
8. In the processing of this case, a staff advisory opinion was obtained from the DFAS (Defense Finance and Accounting Service), Indianapolis Center. It contains no information, advice or recommendation which would constitute a basis for granting the relief requested. Citing Comptroller General Decision B203620, March 4, 1982 and General Accounting Office Settlement Certificate Z-2917199-050, the DFAS stated that only the amount of overpayment actually used for support may be waived. Further, Department of Defense (DOD) Financial Management Regulation, Volume 7, Part A, paragraph 30238b provides that the amount of support declared by the soldier for a dependent must be at least equal to the amount received from the Army.
CONCLUSIONS:
1. The applicant was a single parent. When she entered the Army, she followed the instructions of her recruiter and other knowledgeable individuals in establishing custody for her child. When she was advised that she qualified for BAQ with dependent support payments provided she change her custody arrangement, she went through the civil courts to accomplish the necessary change.
2. Army finance personnel made a mistake in paying the applicant BAQ with dependents; they should have paid her the with dependent differential, not the entire amount. When the mistake was discovered, collection efforts were established which placed the applicant in debt for more than $4,600.00. This was later reduced by the total amount of the allotment paid by the applicant to support her child. She was still indebted for $1,889.47.
3. The applicant did not seek the original allotment or attempt to defraud the Government; she was told of the entitlement by finance personnel and, as a new private, relied upon their expert advice in obtaining the correct amount of money. Even though it cannot be proven that every cent of the support allotment went to her child, it would appear unjust and inequitable to penalize the applicant for a mistake by the Finance Office.
4. The DFAS advisory opinion notwithstanding, the Board recommends that the applicants records be corrected as indicated below.
RECOMMENDATION:
That all of the Department of the Army records related to this case be corrected by remitting and/or canceling the indebtedness in the amount of $1,889.47 for the individual concerned.
BOARD VOTE:
GRANT AS STATED IN RECOMMENDATION
GRANT FORMAL HEARING
DENY APPLICATION
CHAIRPERSON
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