RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        9 August 2005
      DOCKET NUMBER:  AR20040007904


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mr. Robert J. McGowan             |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Barbara J. Ellis              |     |Chairperson          |
|     |Mr. Kenneth L. Wright             |     |Member               |
|     |Mr. Patrick H. McGann, Jr.        |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests cancellation of his debt to the Government of
$13,541.25 and remission of those funds already paid to satisfy same.

2.  The applicant states, in effect, he was told he was entitled to the
money he received as a basic allowance for housing at the single rate (BAH-
S) even though he was residing in Government quarters.  He believes he
should be entitled to this money because he is a divorced father and
provides child support to his ex-wife.  He adds:

      a.  Army Regulation (AR) 608-99 (Family Support, Child Custody, and
Paternity) is designed to improve procedures for enforcing financial
support, child custody, paternity, and related obligations within the
Department of the Army (DA) and preempts all other regulations on these
matters within the DA.  His divorce decree mandates he support his son.

      b.  He was told by field grade officer(s) at the Camp Doha, Kuwait
FSO (Financial Service Office) he was entitled to BAH-S.

      c.  Finance officers could not agree on the proper interpretation of
pay and allowances regulations as they applied to divorced Soldiers and the
issue of dependents.

      d.  Title 10 U.S.C. §2774 permits waiver of collection of erroneous
payments of pay and allowances if collection would be against equity and
good conscience.  His overpayment occurred because a subject matter expert
could not properly interpret pay regulations.  As an ammunition warrant
officer, he is an expert on "bullets," not financial matters.  He believes
he should have been granted the waiver.

      e.  He takes exception to the Defense Office of Hearings and Appeals
(DOHA) opinion the BAH-S payments he received while occupying Government
quarters did not go for the intended purpose.  He reiterates he sent the
money to his ex-wife in the form of child support.

      f.  Other similar cases adjudicated by DOHA resulted in favorable
decisions.

      g.  The Government quarters he occupied at Camp Doha were 35-foot
long trailers and were not suitable.

3.  The applicant provides:

      a.  A 21 September 2004 letter to the Army Board for Correction of
Military Records (ABCMR).

      b.  A 2 May 2002 memorandum requesting remission or cancellation of
indebtedness.

      c.  A 31 May 2002 memorandum for record requesting remission of
indebtedness under the provisions of AR 600-4.

      d.  A 6 June 2002 memorandum from the Commander, 3rd Corps Support
Command, V Corps supporting his request for remission of indebtedness.

      e.  DA Form 3508-R (Application for Remission of Cancellation of
Indebtedness).

      f.  Settlement Certificate, Defense Office of Hearings and Appeals
(DOHA), Defense Legal Services Agency, Department of Defense, dated
19 November 2002, denying his request for waiver of indebtedness.

      g.  A 16 December 2002 letter from the applicant to United States
Senator Robert C. Byrd wherein he states:  he owns a home near Fort Bragg
and it was unrented for 4 months during his assignment to Kuwait; the
Defense Enrollment Eligibility Reporting System (DEERS) recognizes his son
as a dependent for medical care, so DFAS should also recognize him as a
dependent; living conditions in Kuwait are substandard and unsafe; he is in
a constant state of deployment, always moving.

      h.  Claims Appeals Board Decision, Defense Office of Hearings and
Appeals (DOHA), Defense Legal Services Agency, Department of Defense, dated
13 January 2003, affirming the 19 November 2002 Settlement Certificate.

CONSIDERATION OF EVIDENCE:

1.  The applicant is a Chief Warrant Officer 3 (CW3).  He previously served
13 years as an enlisted Soldier, rising to the rank of Staff Sergeant
(SSG/E-6) before accepting an appointment as a Warrant Officer on 11
October 1996.  He is divorced and the father of a 17-year old son for whom
he provides court-ordered child support.

2.  From November 1998 to November 2000, the applicant was stationed at
Fort Bragg, North Carolina.  At Fort Bragg, he received Basic Allowance for
Housing at the single (without dependents) rate (BAH-S) because he resided
off-post.  He also received BAH at the differential rate (BAH-DIFF) because
of court-ordered child support payments.

3.  On 27 February 2001, the applicant departed Fort Bragg on permanent
change of station (PCS) orders for an assignment with US Army Forces
Central Command - Kuwait.  When he in-processed at Camp Doha, he was
informed by a military pay clerk at the FSO that because he was being
assigned Government quarters, he was not entitled to receive BAH-S.  He
challenged that statement and the pay clerk's supervisor, a noncommissioned
officer in the FSO, advised him he was no longer entitled to receive BAH-S.

4.  The applicant did not agree with the BAH information provided to him at
in-processing and continued to challenge the cancellation of his BAH-S
until he received a favorable ruling from the FSO officer-in-charge (OIC),
a Major.  His BAH-S was continued and, as a result, he was erroneously
overpaid $13,541.25 in BAH-S from 27 February 2001 through 1 March 2002.

5.  The applicant performed a PCS move from Kuwait to Germany in 2002.
Upon in-processing in Germany, the overpayment was discovered and a debt
was established.  The applicant applied for a waiver of the debt under the
provisions of 10 U.S.C. 2774.  His request was supported by his chain of
command and was forwarded to the Defense Finance and Accounting Service
(DFAS) - Denver, Colorado.  DFAS reviewed the request and forwarded it to
the Defense Office of Hearings and Appeals (DOHA), Defense Legal Services
Agency, Department of Defense with a favorable endorsement.

6.  On 19 November 2002, DOHA issued a Settlement Certificate denying the
applicant's request for waiver.  Citing the fact the applicant admitted he
was twice advised he was not entitled to BAH-S, but received a favorable
ruling from the FSO OIC after providing a copy of his divorce decree and
child support order.  DOHA stated BAH-S is an allowance to help offset
housing expenses and not child support payments; the applicant's BAH-DIFF
is an allowance for his dependent child.  Stating the applicant's receipt
of BAH-S was not used for its intended purpose [to defray housing
expenses], DOHA ruled collection of the overpayment was not inequitable.

7.  The applicant appealed the Settlement Certificate to the DOHA Claims
Appeals Board.  In a 13 January 2003 decision, DOHA affirmed the Settlement
Certificate.
8.  Basic Allowance for Housing (BAH) is based on geographic duty location,
pay grade, and dependency status.  The intent of BAH is to provide Soldiers
accurate and equitable housing compensation based on housing costs in local
civilian housing markets, and is payable when Government quarters are not
provided.  A Soldier with permanent duty within the 50 United States, who
is not furnished Government housing [emphasis added], is eligible for BAH
based on the dependency status at the permanent duty ZIP Code.  A Soldier
stationed overseas, who is not furnished government housing [emphasis
added], is eligible for Overseas Housing Allowance (OHA) based on
dependency status.  If a Soldier is serving an unaccompanied overseas tour,
he/she is eligible for BAH at the with dependents rate, based on the
dependent's U.S. residence ZIP Code, plus OHA at the without dependents
rate, if the member is not furnished Government housing overseas [emphasis
added].

9.  BAH-DIFF is the housing allowance amount for a member who is assigned
to single-type quarters and who is authorized a basic allowance for housing
solely by reason of the member's payment of child support.  A member is not
entitled to BAH-DIFF if the monthly rate of that child support is less than
the BAH-DIFF.  BAH-DIFF is determined by the Secretary of Defense and the
rate is published annually and is determined by increasing the previous
year's table by the percentage growth of the military pay raise.

10.  The DoD Financial Management Regulation provides, in pertinent part,
if there is a court order or legal separation agreement stating the amount
of support, a member must contribute to the support of the dependent the
amount specified therein, but in no case may the support payments be less
than the applicable BAH-DIFF rate.  Further, when a member is divorced from
a nonmember, and they share joint legal custody of a child, and the ex-
spouse is awarded primary physical custody, then the member is considered a
noncustodial parent for the purpose of entitlement to BAH.  If the member’s
court-ordered child support is less than the applicable BAH-DIFF rate, and
the member is not residing in, or assigned to, government quarters
[emphasis added], the member is entitled only to BAH at the without
dependents rate.  However, members who pay additional support to the ex-
spouse having primary custody of the child(ren) so that the total child
support provided is equal to or more than the BAH-DIFF rate, and who are
not assigned to government quarters [emphasis added], are entitled to BAH
at the without dependents rate and BAH-DIFF.

11.  AR 600-4 (Remission or Cancellation of Indebtedness for Enlisted
Members) provides instructions for submitting and processing applications
for remission or cancellation of indebtedness to the United States Army,
including debts caused by errors in pay.  It provides that applications
must be based on injustice, hardship, or both.

12.  AR 608-99 (Family Support, Child Custody, and Paternity) sets forth
Department of the Army (DA) policy, responsibilities, and procedures on
financial support of family members, child custody and visitation,
paternity, and compliance with court orders regarding these and related
matters.

DISCUSSION AND CONCLUSIONS:

1.  The applicant believes because he has a dependent child and pays court-
ordered child support to his ex-wife, he should have been entitled to BAH-S
while occupying Government quarters in Kuwait.  He also believes because he
was misinformed by a finance officer, he should be permitted to keep the
BAH money he was erroneously paid.

2.  BAH is a program to provide uniformed service members equitable housing
compensation based on actual cost of housing in local civilian housing
markets.  BAH has several components, one of which is BAH-DIFF.
Entitlement to BAH-DIFF is based solely on a member's payment of non-
custodial child support (i.e., member does not have physical custody of the
dependent).  Members are entitled to BAH-DIFF provided their child support
payments are equal to or greater than the BAH-DIFF allowance received.

3.  When the applicant was assigned to Fort Bragg, he lived off-post in a
home he purchased with a mortgage.  Because he was single and not residing
in Government housing, he was authorized BAH-S to help defray his housing
costs. He was also entitled to BAH-DIFF because he was a divorced, non-
custodial parent paying court-ordered child support to his ex-wife.

4.  When the applicant reported to Camp Doha, his BAH situation changed.
He was twice told by FSO personnel his BAH-S would be stopped because he
was being provided Government housing.  He argued against stopping his BAH-
S and continued to do so until found someone who agreed with him, the OIC
of the Financial Service Office.  Unfortunately, the OIC was wrong in
permitting him to continue to receive BAH-S while living in Government
housing and he incurred a $13,541.25 debt caused by overpayment of BAH-S.

5.  The applicant's chain-of-command supported his efforts to waive the
overpayment debt.  However, the Defense Office of Hearings and Appeals
(DOHA), in a Settlement Certificate, denied the request stating:  the
applicant was told he was not entitled to BAH-S, but pushed the issue until
he got the answer he wanted to hear; he properly received BAH-DIFF which
was designated for child support; and since the overpayment was not used
for its intended purpose, collection of it would not be against equity and
good conscience, nor oppose the best interests of the Government.

6.  The applicant appealed the DOHA decision and wrote to Senator Robert C.
Byrd to solicit his assistance.  In his letter to Senator Byrd, he
indicated he still had a home in North Carolina and a mortgage to pay.  On
13 January 2003, DOHA issued a Claims Appeals Board Decision which affirmed
the Settlement Certificate.  The appeals decision stated under 10 U.S.C.
§ 2774, DOHA has the authority to waive collection of erroneous payments if
collection would be against equity and good conscience and not in the best
interest of the United States.  The standard used is that of the
"reasonable person," that is, would such a person know he was receiving
payments in excess of entitlements.  In this case, the applicant was twice
correctly told he was not entitled to BAH-S.  He was told his BAH-DIFF
would continue based upon his dependent child, but his BAH-S would stop
because of a change in his personal housing situation. Even though a Major
erroneously advised him that he was entitled to BAH-S, DOHA concluded a
"reasonably prudent person of the [applicant's] rank and experience" should
have known otherwise.  DOHA commented the applicant's decision to maintain
housing in the Fort Bragg area was a personal financial decision for which
the Government was not responsible.  Finally, DOHA stated it was clear the
applicant did not spend the overpayment money on off-post housing in
Kuwait; therefore, the money was not used for its intended purpose, even if
not authorized.

7.  There is no error or injustice in this case.  As properly stated in the
DOHA Settlement Certificate and Claims Appeals Board Decision, the
applicant knew, or should have known, he was not entitled to BAH-S while
serving in Kuwait. That he received conflicting advice was an event of his
own making.  Under such circumstances, he should have continued to press
for an explanation of the discrepancy and obtained clear and thorough BAH
advice in writing.  Further, he should have held all overpayment funds
until a final determination was made in his case and should not have spent
the funds on things for which they were not authorized.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__bje___  __klw___  __phm___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis for correction of the
records of the individual concerned.



                                        Barbara J. Ellis
                                  ______________________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040007904                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050809                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |128.1200                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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