BOARD DATE:	  28 May 2014

		DOCKET NUMBER:  AR20140003538 


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, in effect, remission or cancellation of indebtedness in the amount of $6,667.40.  Additionally, she requests that the money already collected be returned with a 3.125 percent interest rate and a one-time fee of $15.00.

2.  She states she married another service member on 5 March 2004.  Even though they were married, her spouse continued to receive basic allowance for housing differential (BAH-Diff) based on court-ordered child support and she was told by her unit S-1 that she was entitled to receive BAH with dependents.  She was discharged from the Army in October 2004.  On 23 June 2005, she reenlisted in the Regular Army (RA) and during her in-processing at Fort Lee, VA, even though all the financial documents indicated that she was dual military, she was confirmed for BAH with dependents.  During her spouse's out-processing she was informed that since both service members were at the same home station, they should not have drawn BAH with dependents at the same time.  However, she maintains that she and her spouse were not co-located during the period 24 June 2004 to 21 November 2005.  Prior to her spouse out-processing, she was unaware of the debt.  

3.  She provides:

* Self-authored statement
* Final Decree of Divorce
* Spouse's Judgment Summary, dated 15 May 2003
* Applicant's and spouse's Master Military Pay Account (MMPA)
* Memoranda, Subject:  Outstanding Debt for Overpayment of BAH, dated 
4 November 2010 and 21 December 2010 with Voluntary Repayment Agreement
* DA Forms 5960 (Authorization to Start, Stop, or Change Basic Allowance for Quarter (BAQ) and/or Variable Housing Allowance (VHA)), dated 
19 October 2010 and illegible
* DA Form 3508 (Application for Remission or Cancellation of Indebtedness) with memoranda, Subject:  Remission or Cancellation of Indebtedness for Applicant, dated 18 January 2010 and 5 January 2011 
* DA Form 2823 (Sworn Statement)
* Memorandum, Subject:  Assumption of Command Authority of Army Regulation 600-20 (Army Command Policy), dated 12 August 2010
* Checking Account Statements
* U.S. Army Human Resources Command (HRC) Memorandum, Subject:  Remission or Cancellation of Indebtedness for applicant, dated 27 June 2011
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Orders 201-0038, dated 19 June 2004
* Marriage Certificate
* Enlisted Record Brief
* Leave and Earnings Statements for applicant and spouse
* Certificate of Nonavailability of Government Quarters

CONSIDERATION OF EVIDENCE:

1.  On 3 December 1992, the applicant enlisted in the RA .  

2.  Her LESs from 1-31 January 2002 through 1-30 November 2003 show she was not receiving BAH.  However, her LES for the period 1-31 December 2003 shows her BAH with dependent child started on 15 October 2003, based on a 42223 (Fort Campbell, KY) zip code.  Her LESs for the period 1-31 January 2004 through 1-31 October 2004 show she continued to receive BAH at the 
with-dependent rate.

3.  On 5 March 2004, the applicant married a service member.

4.  On 22 October 2004, she was honorably discharged from active duty under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-8, parenthood and credited with completing 11 years, 10 months, and 22 days of active duty service.  

5.  On 23 June 2005, she again enlisted in the RA and is currently serving in the grade/rank of staff sergeant (SSG)/E-6.
6.  Her LES for the period 1-31 July 2005 shows her BAH was changed effective 23 June 2005 and she received BAH at the with-dependent rate for zip code 42223.

7.  The applicant's spouse's LESs show prior to and after their marriage he continued to receive BAQ-Diff and BAH at the single rate for zip code 42223.

8.  In memoranda, Subject:  Outstanding Debt for Overpayment of BAH, dated 
4 November 2010 and 21 December 2010, the applicant was notified by the Commander, 101st Financial Management Company, Fort Campbell, KY of being indebted to the U.S. Government in the amounts of $2,698.00 and $10,636.80, respectively, for overpayment of BAH.  In both memoranda she was given a suspense date and told that repayment or arrangements must be received no later than the suspense date.  She was also informed that a one-time administrative fee of $15.00 may be applied if she failed to respond by the suspense date.  Additionally, if she requested a proration for more than three months, then a one-time $15.00 administrative fee and interest fee of 3.125 percent would be administered.

9.  On 6 January 2011, the applicant submitted a DA Form 3508 and in a memorandum, dated 5 January 2010, she requested remission or cancellation of her indebtedness in the amount of $13,334.80 on the grounds of injustice and hardship.  She stated the debt was incurred at no fault of her own and occurred about five years ago.  She further stated that she followed the procedures as instructed by the finance office and submitted all documents and information in good faith.  

10.  On 18 January “2010” (i.e., 2011 ), the rear detachment commander recommended cancellation of the applicant's debt in the amount of $13,334.80. He said he found it an injustice to place the debt on the applicant that was accrued over six years ago.  He opined that the erroneous payment of BAH was not known by the applicant and was not found out until her spouse began his out-processing.  He added the error involved multiple parties:  the commander reviewing the Unit Commander's Finance Report, finance during in-processing in the Soldier Readiness Program, and the applicant for misinterpreting the regulation.  He requested that a change in the applicant's BAH be effective on 
15 October 2010, the date she was made aware of the erroneous payment.

11.  A DA Form 5960, dated 19 October 2010, shows that she requested to change her BAH to without dependents based on her marriage on 5 March 2004.

12.  On 3 January 2011, the applicant's spouse was honorably discharged from the RA in the grade of sergeant first class with disability severance pay.
13.  A DA Form 5960, date illegible, shows she requested to change her BAH to with dependents.  She listed that she was married and had a child.  The date of the action was listed as 3 January 2011 and her dependent daughter's date of birth was listed as September 1997.  The daughter's current address was listed as Clarksville, TN and the applicant's address was listed as Fort Campbell, KY.

14.  On 27 June 2011, the Chief, Operations Management Division, HRC, partially approved the applicant's request for remission or cancellation of her debt in the amount of $13,334.80 and approved an amount of $6,667.40.  The HRC representative said that she had reviewed the applicant's request and determined that no grounds existed to remit or cancel the remaining debt based on hardship or injustice.

15.  On 28 October 2011, the applicant and her military spouse divorced.

16.  On 7 April 2014, an advisory opinion was obtained from the Chief, Compensation and Entitlements Division, Office of the Deputy Chief of Staff, G-1, who agreed with the decision rendered by HRC, as cited in paragraph 14 above. The representative stated that since the applicant's husband was receiving BAH at the with-dependent rate she was only authorized BAH at the without dependent rate.  There was no evidence presented to show that the applicant submitted a DA Form 5960 to her supporting finance office prior to October 2010 to adjust her BAH to the without dependent rate.

17.  On 14 April 2014, the advisory opinion was forwarded to the applicant for her acknowledgement and/or response, but she failed to respond.

18.  A review of the applicant's Army Military Human Resource Record (AMHRR) shows her principal duty title from 1 June 2006 through 31 May 2011 primarily consisted of her performing duties as a Human Resources (HR) Noncommissioned Officer (NCO) 42A (HR Specialist).  She also performed duties as the Headquarters Platoon Sergeant from February 2007 through May 2008.  In her capacity as an HR NCO as well as a platoon sergeant, her daily duties and scope of responsibilities involved taking care of her and the unit's Soldiers' financial needs to include processing their financial actions.

19.  Her AMHRR also contains a DD Form 93 (Record of Emergency Data) that was scanned into her records on 17 October 2008.  This document shows she had a daughter who was born in 1997.  The address listed for the daughter was Clarksville, TN.


20.  The official website of the Defense Travel Management Office defines BAH as a U.S. based allowance prescribed by geographic duty location, pay grade, and dependency status.  There are several types of BAH.  These include BAH with/without dependents and BAH-DIFFERENTIAL (DIFF).  

	a.  BAH with/without dependents is paid to a member with permanent duty within the 50 United States, who is not furnished government housing and is eligible for BAH, based on the member's dependency status at the permanent duty zip code.

	b.  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.

21.  Joint Federal Travel Regulations (JFTR) chapter 10 covers housing allowance. 

   a.  Paragraph U10202 states when both husband and wife are members and separate households are maintained at or in the vicinity of their permanent duty station (PDS), or PDSs, each is individually authorized BAH.  Only one member may receive BAH at the with-dependent rate.

	b.  Paragraph U10204 states when one or both members are authorized housing allowances for a child(ren) from a previous relationship and the members marry and are stationed in the same area, all children of either member are one (or the same) class of dependents.  Therefore, only one housing allowance at the with-dependent rate (including BAH-DIFF) 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-dependent rate, then the other member may claim the children for housing allowance purposes. 

	c.  Table U10C-1, Rule 17 states that when member "A" has dependents other than a spouse and member "B" has dependents other than the spouse then member "A" is authorized BAH with dependent and member "B" is authorized BAH without dependent.  Members must elect which one is to receive the with-dependent BAH rate.  If they cannot agree as to the election, the senior member receives the with-dependent rate.



DISCUSSION AND CONCLUSIONS:

1.  The applicant claims, in effect, that her indebtedness should be cancelled based on her unawareness of the debt, finance approval of her BAH, and the passage of time.

2.  There is no evidence and she did not provide any to show that she should have received BAH with dependent.  Although the evidence shows she had a daughter who was born in 1997, only one member may receive BAH at the 
with-dependent rate.  Therefore, since her spouse who was senior in rank was already receiving BAH with dependent (BAH-Diff) she was not authorized the same entitlement. 

3.  The evidence of record shows the applicant performed duties as an HR NCO and platoon sergeant.  Her daily duties and scope of responsibilities involved taking care of her and the unit's Soldiers' financial needs to include processing their financial actions.  Therefore, she should have been very familiar with dual military status and their financial entitlements.  Further, as the HR NCO, if she was unsure of an entitlement, she had regulations and personnel at her disposal to research and/or instruct her on the correct entitlements.  One cannot be financially responsible for the actions of others when they themselves are not knowledgeable on the regulatory requirements and fail to seek the assistance and/or advice from personnel who can aid her or resolve her financial issues.  Consequently, her contention that she was unaware of the debt and finance approved her BAH is not sufficient as a basis to approve her request.

4.  Additionally, it appears that an audit was conducted on her MMPA and based on that audit as well as her request for remission or cancellation of her indebtedness HRC partially approved her request, reducing her debt from $13,334.80 to $6,667.40. The HRC representative determined that no grounds existed to remit or cancel the remaining debt based on hardship or injustice, and she provides no evidence now.

5.  In view of the above, there is an insufficient basis on which to grant relief.

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)                                         AR20140003538





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ABCMR Record of Proceedings (cont)                                         AR20140003538



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