IN THE CASE OF:	  

		BOARD DATE:	    8 March 2011

		DOCKET NUMBER:  AR20100015207 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests correction of his Defense Finance and Accounting Service-Indianapolis (DFAS-IN) Form 0-641 (Statement of Military Pay Account), dated 1 June 2009, to show he was entitled to basic housing allowance (BAH) at the with-dependent rate for his Hawaii duty station.  In addition, he requests the DFAS demand for overpayment be stopped due to gross miscalculations due to no fault of his own.

2.  The applicant states his military pay account does not show his wife lived with him in Hawaii and his DFAS-IN Form 0-641 has multiple accounting errors.  He should not be expected to surrender any monies to the U.S. Government based on the gross accounting errors.

3.  He deployed to Iraq and married during his mid-tour leave on 30 May 2008.  He states his unit administrators, "informed [him] that because [he] was stationed in Hawaii, that [he] was rated the Hawaii BAH."  When he redeployed from Iraq, his wife moved from Chicago, IL, to Hawaii and they signed a rental agreement on 9 February 2009.  He states this fact is not recorded in his pay records.  He separated from the service and was unable to work for several months due to an injury.  He currently is a college student and is unemployed.  He states his indebtness to the U.S. Government should be waived due to his current financial situation.

4.  The applicant provides the following evidentiary documents in support of his application:

* Hawaii Rental Agreement, dated 9 February 2009
* DFAS-IN Form 0-641, dated 10 June 2009
* DFAS-IN Form 0-642, dated 10 June 2009
* DFAS letter, dated 23 December 2009
* DFAS statement for overpayment of BAH (variable housing allowance (VHA)), dated 23 December 2009
* DFAS letter to applicant, undated
* DD Form 2789 (Waiver/Remission of Indebtness Application), dated 5 May 2010
* DFAS letter to applicant, dated 7 June 2010
* marriage license, dated 30 May 2008
* spreadsheet showing personal assessment of DFAS accounting errors
* personal budget showing monthly/annual income, expenses and debt with supporting financial institution or debt documents

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 7 September 2005.  He completed initial entry training and was awarded military occupational specialty 19K (M1 Armor Crewman).

2.  The applicant married on 30 May 2008 in Dupage County, IL.  There is no record available to show the applicant filed a DA Form 5960 (Authorization to Start, Stop, or Change Basic Allowance for Quarters (BAQ) and/or VHA).

3.  On 10 June 2009, the applicant was honorably released from active duty upon the expiration of his term of service (ETS) and was transferred to the U.S. Army Reserve Control Group (Reinforcement).  He was issued a DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows the highest rank he attained was specialist four/pay grade E-4 and he was separated at Schofield Barracks, HI.  Item 18 (Remarks) shows he served in Iraq, an imminent danger pay area, from 7 December 2007 to 19 February 2009.  In addition, he was retained beyond his ETS for 133 days as essential to National security in accordance with Title 10, U.S. Code, section 12305.

4.  He provided a Hawaii rental agreement showing he and his wife entered into a legally-binding rental agreement on 9 February 2009.  This fixed rental agreement shows it would terminate on 15 June 2009.

5.  He provided a DFAS-IN Form 0-641, dated 10 June 2009, showing DFAS calculated he was overpaid BAH (VHA) in the amount of $5,069.36 from 30 May 2008 to 10 June 2009.

6.  He provided a DFAS-IN Form 0-642, dated 10 June 2009, showing he had a negative leave balance of 2.5 days, incurring a debt balance of $361.16.

7.  He provided a letter from DFAS informing him on 23 December 2009 that he had a debt from his active duty military pay account for overpayment of military pay or allowances related to his BAH (VHA) entitlement for the period 30 May 2008 to 10 June 2009.  The debt balance was $5,042.36.  His projected monthly payments were $146.64.  His first debt repayment was due on 23 January 2010.

8.  He provided an undated letter from DFAS in response to his DFAS inquiry.  DFAS informed him that it had reexamined his active duty military pay account and determined his debt was valid.  DFAS stated the debt was due to recoupment of Hawaii BAH from 30 May 2008 to 10 June 2009.  Further, the letter stated:

During that time you were being paid the rate for Hawaii with dependent when your dependent spouse was living in Illinois.  [Note:  If the dependent of a member, assigned to an unaccompanied tour, moves to the designated place, the member is authorized BAH/overseas housing allowance based on the dependent's location.]  The debt is for the collection of the difference between the two rates.

9.  In its letter, DFAS advised the applicant to seek relief through the Army Board for Correction of Military Records (ABCMR) and to petition for a waiver of indebtedness.

10.  He provided a DD Form 2789 showing he requested a waiver of his debt on 5 May 2010.  In his request, he stated, "I called several times, sent in pertinent information (marriage certificate, etc.).  [I] could not get anyone to help with this so-called overpayment."  In addition, he stated, "[The] error was not my fault, my wife was in Hawaii and they do not want to pay us for this.  If I have to repay this, it will create extreme financial hardship."

11.  He provided a letter from DFAS Chief of Remissions and Waivers Branch informing him DFAS could not process his application for a debt waiver until the ABCMR made a decision.  He was told to resubmit his waiver request to DFAS with the ABCMR's decision.

12.  He provided a personal financial spreadsheet showing his estimated monthly combined financial obligations were $4,115.82 with a net monthly income estimated at $4,058.12.  Therefore, his family budget was short an estimated $60.00 per month.  He provided financial statements for each debt outlined in his personal spreadsheet, to include his spouse's student loans that have an estimated total of $75,000.00.

13.  References:

	a.  Army Regulation 37-104-4 (Military Pay and Allowances Policy) states Soldiers are responsible for reviewing their LES and for the prompt and accurate reporting of changes in their personal circumstances that affect their entitlement to pay or the distribution of their pay to their commander and servicing finance office or defense military pay office.  BAH is payable to Soldiers on active duty and will vary according to the grade in which serving or appointed for basic pay purposes, dependency status, and their permanent duty station.  BAH pays only a portion of housing costs.  Soldiers will use a DA Form 5960 to start, stop, or change BAH and/or VHA.

	b.  Army Regulation 600-4 (Remission or Cancellation of Indebtedness) states Soldiers must make sure their financial accounts are correct.  They must review their monthly LES and report errors or discrepancies to the command and the finance office or defense military pay office.  It also states that in determining injustice or hardship, the following factors will be considered:  the Soldier's awareness of policy and procedures; past or present military occupational specialty, rank, years of service, and prior experience; the Soldier's monthly income and expenses; and the Soldier's contribution to the indebtedness to the U.S. Army by not having the situation corrected.  An additional factor to be considered is whether there is evidence the Soldier did not know – and could not have known – of the error.

	c.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR and provides that the ABCMR will review each application to determine if it meets the criteria for consideration by the ABCMR.  Paragraph 2-5, section II, states that the Board will not consider any application if it determines the applicant has not exhausted all administrative remedies available to him or her.

DISCUSSION AND CONCLUSIONS:

1.  Based on the evidence of record, the applicant received Hawaii BAH (VHA) at the with-dependent rate from his date of marriage to his date of separation from active duty.  However, he was not entitled to the Hawaii BAH (VHA) because his 


spouse did not reside in Hawaii during his deployment.  The evidence shows his spouse resided in Illinois from their date of marriage until 9 February 2009 when they entered into a Hawaii rental lease agreement.

2.  In the process of seeking relief from his debt for overpayment of BAH (VHA) entitlements, DFAS informed him he could seek relief from the ABCMR.

3.  While the applicant stated he informed his unit administrators of his change in BAH (VHA) entitlements, he did not provide documentary evidence to this Board to show he submitted a DA Form 5960 to affect the change to BAH (VHA).

4.  As the applicant was a specialist at the time of his separation, it is fair to presume he attempted to correct his record to show his proper BAH (VHA) entitlements.  As his attempts were unsuccessful in effecting a change to his record, it would now be appropriate to correct his record to show he submitted a timely DA Form 5960 on 9 February 2009 when his wife signed the rental agreement in Hawaii.  This form would then allow DFAS to correct his active duty military pay account to show he was entitled to BAH (VHA) for Hawaii from 9 February to his date of separation.

5.  The ABCMR will not address his request for a waiver or remittance of his debt as he has not exhausted all available administrative remedies.  After his finance record is corrected, he should submit a second request to DFAS for a waiver or remission of his debt.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__X_____  __X_____  __X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing the applicant submitted a timely application to request BAH (VHA) at the with-dependent rate for Hawaii from 9 February to 10 June 2009.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to correcting his records so that the full amount of his debt due to BAH overpayment is stopped.



      _________X___________
               CHAIRPERSON
      
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.
ABCMR Record of Proceedings (cont)                                         AR20100015207



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ABCMR Record of Proceedings (cont)                                         AR20100015207



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