IN THE CASE OF:	  

		BOARD DATE:	  20 September 2011

		DOCKET NUMBER:  AR20110004019 


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 his debt in the amount of $4,643.42 be remitted.

2.  The applicant states:

   a.  the Defense Finance and Accounting Service-Indianapolis (DFAS-IN) charged him with overpayment of BAH [Basic Allowance for Housing] in the amount of $9,286.83.
   
   b.  his application for remission/cancellation of indebtedness was partially approved in the amount of $4,643.42 on 10 February 2011.
   
   c.  he believes the full amount of the debt should be cancelled due to an error resulting from the guidance he received from the Chief of Customer Service/Defense Military Pay Office (DMPO)/DFAS-IN (Mr. N---) on 3 October 2008.

3.  The applicant also states:

	a.  he was deployed to Iraq in January 2008 and he received a "Dear John" letter from his wife in May 2008 stating she was leaving their residence/duty station and taking their 5-year old daughter.  His wife was working in a GS 
0346-11 position.  At that time, he was the only family member on active duty receiving BAH with dependent rate. 

	b.  in May 2008, his wife was ordered to active duty in an Active Guard Reserve status for a period of 12 months as a full-time Army Reserve captain.  He was still in Iraq.

	c.  he was unaware of his wife's employment status, ideas, goals, or any other intentions at this point.  He was unprepared for the situation as there was no evidence of her plans to leave him and take their daughter at any point prior to his deployment.

	d.  On 3 October 2008, per MILPO [Military Personnel Office], TACOM [Tactical Army Command] and the Chief Customer Service-DMPO/DFAS
(Mr. N---), he submitted a DA Form 5960 (Authorization to Start, Stop, or Change Basic Allowance for Quarters and/or Variable Housing Allowance) changing his status to married/without dependents, effective 10 May 2008.     

	e.  on 20 October 2008, per guidance from the Chief Customer Service-DMPO/DFAS (Mr. N---), he submitted another DA Form 5960 which included his divorce decree.  Mr. N--- stated DFAS would base his BAH on "Parenting Time" he had with his daughter. 

4. The applicant provides:

* Memorandum, dated 10 February 2011
* Transmittals of Pay and Other Documents, dated 1 November and 
20 October 2010
* Memorandum, dated 27 October 2010
* Memorandum, dated 15 October 2010, from his Battalion Commander
* DA Form 3508 (Application for Remission or Cancellation of Indebtedness)
* Parent's Worksheet for Child Support Amount
* DA Forms 5960, dated 3 October and 20 October 2008
* Sworn statement, dated 1 October 2010
* Memorandum, dated 4 October 2010
* Notice of Indebtedness, dated 22 June 2011
* DFAS debt computation
* DFAS Military Leave and Earnings Statements for the periods 1-30 September 2010, 1-31 October 2008, and 1-30 November 2008
* Divorce decree 

CONSIDERATION OF EVIDENCE:

1.  Having prior active enlisted service in the U.S. Navy and inactive enlisted service in the Army National Guard, he was commissioned a second lieutenant on 14 June 1997.  He was promoted to major on 2 October 2007 and he served in Iraq from 27 January to 16 August 2008. 

2.  A DA Form 5960, dated 3 October 2008, shows he changed his BAH status to married without dependents.

3.  A DA Form 5960, dated 20 October 2008, shows he changed his BAH status to divorced with dependents.

4.  His divorce decree shows he was divorced on 21 October 2008.

5.  On 4 October 2010, he received a notice of indebtedness for overpayment of BAH.

6.  On 4 October 2010, the applicant submitted an application for remission or cancellation of indebtedness in the amount of $6,848.00 for BAH.  His application included a Parent's Worksheet for Child Support Amount. 

7.  He provided memoranda, dated 15 October and 27 October 2010, from his chain of command.  The recommendation was that his debt be cancelled in whole for the cited reasons:

* the applicant states he was deployed and had no knowledge his spouse had requested BAH 
* he did not knowingly receive excessive payments and only learned of them after-the-fact
* he was overpaid BAH due to no fault of his own
* he took the appropriate action to correct the error when he became aware of the problem
* he acted in good faith and took corrective action based on guidance from his chain of command and the DMPO,DFAS-IN, Chief of Customer Service 

8.  On 10 February 2011, his application for remission or cancellation of his debt in the amount of $9,286.83 was partially approved for cancellation of only $4,643.42.  The Chief, Special Actions Branch, U.S. Army Human Resources Command, Fort Knox, KY determined that no grounds existed to remit or cancel the remaining portion of his debt based on an injustice.    

9.  An email, dated 29 June 2011, from the Compensation and Entitlements Division, Office of the Deputy Chief of Staff, G-1, Washington, D.C. states DFAS informed that office the Chief Customer Service DMPO/DFAS (Mr. N---) died in April 2008.
10.  In the processing of this case, an advisory opinion was obtained from the Chief, Compensation and Entitlements Division, Office of the Deputy Chief of Staff, G-1, Washington, D.C.  That office recommends denial of the applicant's request.  The opinion states:

	a.  after further review of the applicant's divorce decree, that office agrees with the HRC's determination and does not support full administrative relief of the applicant's debt.

	b.  according to DFAS officials, his debt is based on two periods: 

* 24 September 2008 through 30 April 2009, the dates following the effective date of his divorce
* 1 May 2009 through 31 August 2010, his ex-wife's dates of active service
* he is only entitled to the BAH without-dependent rate unless his ex-wife agrees to allow him to continue the BAH-with dependent rate

	c.  the applicant may also be authorized the BAH with-dependent rate only when he has physical custody of his child.  However, he must notify his supporting finance office when he has physical custody of his child in order to effect the change in his housing allowance.  According to DFAS officials, the applicant did not provide the physical custody dates to his supporting finance office.   

11.  A copy of the advisory opinion was provided to the applicant for comments or a rebuttal.  On 4 August 2011, he responded via email.  In summary he stated:

* he did provide "Parenting Time" documents to the Chief Customer Service DMPO/DFAS (Mr. N---), on 20 October 2008
* this information is stated on page 5 of the DA Form 3508 (block 48)
* the Chief Customer Service DMPO/DFAS (Mr. N---) was specifically waiting for his "Parenting Time" information from the divorce decree in order to adjust his BAH
* the Parent Worksheet for Child Support Amount was also enclosed as supporting documentation for his remission/cancellation of debt packet
* the whole basis for his financial "concerns" and the reasoning behind the submission of his packet was the Chief Customer Service DMPO/DFAS 
     (Mr. N---) established his BAH incorrectly in 2008
* it was a MILPO clerk at Fort Huachuca who incorrectly established BAH for his ex-wife in 2009
* he is paying for a number of errors in the financial realm that are not his 
* he was in Iraq when the whole financial mishap began  
DISCUSSION AND CONCLUSIONS:

1.  According to DFAS officials, the applicant's original debt in the amount of $9,286.83 for overpayment of BAH was based on two periods:  

* 24 September 2008 through 30 April 2009, the dates following the effective date of his divorce 
* 1 May 2009 through 31 August 2010, his ex-wife's dates of active service.  

2.  On 10 February 2011, his request for remission or cancellation of indebtedness was approved in part in the amount of $4,643.42.  

3.  He contends the remainder of his debt should be cancelled because, in October 2008, the Chief Customer Service DMPO/DFAS-IN (Mr. N---) provided him guidance and established his BAH incorrectly.  However, according to DFAS officials, Mr. N--- died in April 2008.  Therefore, he could not have provided any guidance to the applicant in October 2008.

4.  Following his divorce, on 20 October 2008, he changed his BAH status to divorced with-dependents.  However, effective the date of the divorce he was only entitled to BAH without-dependents unless his ex-wife agreed to allow him to continue the BAH with-dependent rate.  It appears she did not.

5.  The advisory opinion also states he would be authorized BAH with-dependent rate only when he has physical custody of his child.  Although he contends he provided "Parenting Time" documents to his finance office, according to DFAS officials, he did not provide the physical custody dates to his supporting finance office in October 2008.    

6.  Based on the foregoing, there is insufficient evidence on which to grant his request.

BOARD VOTE:

________  ________  ________  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 that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      _______ _   _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)                                         AR20110004019



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ABCMR Record of Proceedings (cont)                                         AR20110004019



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