IN THE CASE OF:	  

		BOARD DATE:	  7 February 2013

		DOCKET NUMBER:  AR20120017641 


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 relief from her disapproved remission of indebtedness for basic allowance for housing (BAH) overpayment.  

2.  The applicant states she was held responsible for BAH overpayment.  The applicant continues that she initially filled out her BAH form incorrectly; however, finance caught the error and contacted her.  The applicant states she was informed by the Fort Campbell Defense Military Pay Office, Fort Campbell, KY, that the BAH was not corrected and she had a BAH overpayment debt.  The applicant states the Fort Campbell Defense Military Pay Office changed her marital status to single from married without a divorce decree from her initial BAH form mistake.

3.  The applicant provides:

* permanent change of station (PCS) orders, dated 30 July 2010
* a DA Form 31 (Request and Authority for Leave) 13 September 2010 
* a DA Form 5960 (Authorization To Start, Stop, or Change Basic Allowance for quarters (BAQ), and/or Variable Housing Allowance (VHA)), dated 12 November 2010
* a DA Form 1351-2 (Travel Voucher or Subvoucher)
* a Document Summary Sheet, dated 12 December 2010
* a memorandum from the Fort Campbell Defense Military Pay Office to the applicant, dated 1 March 2012
* a DA Form 2823 (Sworn Statement), dated 26 March 2012
* a memorandum from the applicant's Company Commander to the U.S. Army Human Resources Command (HRC), dated 28 March 2012
* a DA Form 3508 (Application for Remission or Cancellation of Indebtedness), dated 30 March 2012
* a memorandum from the applicant's Battalion Commander to HRC, dated 2 April 2012
* a memorandum from HRC to the Commander, 101st Finance Management Company, dated 18 March 2012 
* a DD Form 1131 (Cash Collection Voucher), dated 26 June 2012 

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 10 February 1993.  She successfully completed training and was awarded military occupational specialty 88M (Motor Transport Operator).

2.  She provided PCS orders, dated 30 July 2010, which show she was assigned to Fort Campbell, KY with a reporting date of 10 November 2010.  The orders further show in item (d) the entry "Dependents:  "Yes" and in item (v) the entry "Joint domicile has been approved.  Pinpoint assignment is to Fort Campbell, KY. Spouse is already assigned to gaining installation."

3.  The applicant provided a DA Form 5960, dated 12 November 2010.  

* item 4 (Type of Action) shows recertification
* item 7 (Basic Allowance for Quarters (BAQ)) shows with dependents
* item 8 (Marital/Dependency Status) shows single/child in custody of member
* item 13 (Member's Signature) shows the applicant certified the information with her signature

4.  On 1 March 2012, she received a notice of indebtedness from the Defense Finance and Accounting Service (DFAS), Fort Campbell Defense Military Pay Office for overpayment of BAH for $6,044.00.

5.  On 30 December 2012, the applicant submitted an Application for Remission or Cancellation of Indebtedness for $6,044.00 for BAH.  

6.  Her application included a Sworn Statement, dated 26 March 2012, showing she was contacted by the local finance office that she had a BAH debt.  The applicant stated: 

	a.  A local finance representative informed her that she had been receiving the wrong BAH since 11 November 2010.

	b.  She was informed since she was married to a service member only one of them was entitled to BAH with dependent.

	c.  She was deployed to Afghanistan and her spouse was assigned at Fort Campbell.  They were both told they were entitled to BAH with dependent considering each had children living in separate households.

	d.  After she reported to Fort Campbell she indicated on a DA Form 5960 that she was single with dependent.

	e.  The local finance office contacted her through her spouse about her BAH paperwork.

	f.  The applicant stated, "Myself and my spouse went to see the local finance office and confirmed I was married and they asked about where my spouse's child was living since we still support him while he is in high school.  At that point they took my spouse's information and stated they would ensure our BAH was updating [sic] correctly.  Then when the LES's came out in 201012 I also once again confirmed with finance my BAH entitlements were correct and they stated yes."

	g.  Presently the local finance office told her BAH was paid incorrectly.  A local finance representative also told her that there was concern that someone changed her BAH status in the finance system to show single with dependent BAH.

	h.  At no time did she provide divorce papers for a change in status, which is an error on finance.  The local finance office knew she was dual military.  They tracked her down on Fort Campbell.  She does not believe the incorrect payment was her fault.  Her original BAH Form would show at no time did she did she try to defraud the government.

	i.  She relied on the local finance office to correctly process her BAH entitlements.

7.  She provided memoranda, dated 28 March 2012 and 2 April 2012, from her chain of command.  Her chain of command recommended that her debt be cancelled in whole for the cited reasons:

* that Army Regulation 600-4 (Remission or Cancellation of Indebtedness) paragraph 1-4, applies to the applicant and this situation
* she was not at fault and could not have prevented the debt
* she acted properly by submitting all the proper paperwork needed at her level
* finance was aware she was dual military and she did not at anytime show proof she was a single parent

8.  On 18 July 2012, her application for remission or cancellation of her debt in the amount of $6,044.00 was disapproved.  The Chief, Special Actions Branch, HRC, Fort Knox, KY determined that no grounds existed to remit or cancel the debt based on an injustice.    

9.  The applicant provided a DD Form 1131, dated 26 June 2012, showing she has repaid the BAH overpayment in the full amount of $6,044.

10.  Chapter 10 (Housing Allowances), Part C (Member to Member), of Volume 
1 of the Joint Federal Travel Regulations (JFTR) addresses child(ren) from previous relationships and dependent parents.  When one or both members are authorized housing allowances for a child(ren) from a previous relationship or on behalf of a dependent parent(s), and the members marry and are stationed in the same area, all children and dependent parents of either member are one (or the same) class of dependents.  Therefore, only one housing allowance at the with-dependent rate is payable.  Any child(ren) born of their marriage, or adopted by them, is within the same class of dependents for housing allowances purposes.  However, if the member elects to stop receiving a housing allowance at the with 
dependents rate, then the other member may claim the children for housing allowance purposes.  A relationship determination is required, but ordinarily a 
dependency determination is not.  In all instances of a member having a spouse on active duty, full details must be given showing the spouse’s full name, social security number, duty station, and branch of Service.  This does not apply to two members living together but not married.  These members are each authorized a housing allowance based on each member’s dependents.

11.  Army Regulation 600-4 provides instructions for submitting and processing applications for remission or cancellation of indebtedness to the U.S. Army.  Applications should be based on injustice, hardship, or both.  This includes debts caused by errors in pay to or on behalf of a Soldier.  Chapter 1-4 specifies additional factors for consideration in determining injustice.  The application must contain evidence that the applicant inquired of a proper authority and was told that the payment was correct.


DISCUSSION AND CONCLUSIONS:

1.  Evidence shows the applicant's debt in the amount of $6,044.00 was for overpayment of BAH, due to her being married to another service member.  

2.  She contends she was overpaid BAH through no fault of her own.  However, there is no evidence in her available records and she has not provided evidence 
which shows the Fort Campbell Defense Military Pay Office was in error when it approved BAH for her based on her DA Form 5960.  

3.  The applicant's DA Form 5960, dated 12 November 2010, shows she recertified her entitlement status as single parent with dependent when she in processed at finance.  She states after her spouse returned from deployment he was contacted by finance in regard to her BAH paperwork.   

4.  The applicant explained in her sworn statement that finance went over the BAH with both of them.  She states that the Fort Campbell Defense Military Pay Office ensured them that their BAH was updated correctly.  She states at that time finance confirmed her BAH entitlements were correct.  However, there is no evidence in the applicant's available record that shows the Fort Campbell Defense Military Pay Office confirmed her BAH entitlements were correct.

5.  The applicant further contends in her sworn statement that an official at finance told her there was some concern why someone back in October 
2010 would change her marital status to single with dependent BAH.  There is no evidence that shows finance purposely changed her marital status to single with dependent without her knowledge.  The evidence of record indicates she made the error when she incorrectly completed her DA Form 5960 on 12 November 2010.

6.  Her letters from her chain of command were carefully considered.  However, JFTR, Chapter 10, Part C, states, "When one or both members are authorized housing allowances for a child(ren) from a previous relationship or on behalf of a dependent parent(s), and the members marry and are stationed in the same area, all children and dependent parents of either member are one (or the same) class of dependents.  Therefore, only one housing allowance at the with-dependent rate is payable."

7. Evidence of record shows the applicant was clearly overpaid.  There is no evidence that an injustice of hardship occurred.  Based on the foregoing, there is insufficient evidence upon which to grant her 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)                                         AR20120017641





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ABCMR Record of Proceedings (cont)                                         AR20120017641



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