BOARD DATE:	  24 March 2015

		DOCKET NUMBER:  AR20140007086


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 remission/cancellation of indebtedness for overpayment of Basic Allowance for Housing (BAH)/Variable Housing Allowance (VHA). 

2.  The applicant states she had one dependent child and even though she got a divorce, her dependent child still lived with her.  She states that it was never mentioned in her divorce decree because the child was from a previous relationship, before her marriage.

3.  The applicant provides:

* Defense Finance and Accounting Service (DFAS) Letter, dated 20 March 2014
* Summary Record and Hearing Decision – DFAS
* DFAS-IN Form 0-641 (Statement of Military Pay Account), dated 8 October 2012
* Jumps Leave and Earning Statements (LESs) 
* DFAS Letter dated 2 January 2013
* Account Statement dated 2 January 2013
* DFAS Letter (undated)
* Final Decree of Divorce dated 20 April 2011
* Certificate of Birth dated 15 October 2007
* DD Form 1172 (Application for Uniformed Service Identification Card DEERS Enrollment) last updated on 22 September 2010
* Enlisted Record Brief
CONSIDERATION OF EVIDENCE:

1.  The applicant provides a Certificate of Birth which shows that she gave birth to a son in Austin, TX on 15 October 2007.  Her son's father's name is listed as A___ M. R___ on the Certificate of Birth.  Two years after the birth of her son, on 2 October 2009, she married E___ R. U. C___.  Her spouse is not the father of her son.

2.  The applicant enlisted in the Regular Army on 16 February 2010.  Her DD Form 1966/1 (Record of Military Processing – Armed Forces of the United States) shows that at the time of her enlistment she had two dependents, a son and husband.

3.  On 21 September 2010, she completed a DD Form 93 (E) (Record of Emergency Data).  On this form she listed her son in Section 1 – Emergency Contact Information and no entry was made in item 5d (Address).

4.  She provides a copy of her DD Form 1172 which shows she applied for Unformed Services Identification Cards – DEERS Enrollment for her spouse, her child, and herself.  The DD Form 1172 shows their eligibility effective date as 16 February 2010 and the verification date as 22 September 2010.

5.  While on active duty the applicant and her spouse divorced on 20 April 2011. The divorce decree shows she and her spouse had no minor children under 18, or any adult, disabled children who were entitled to child support or medical support.  The divorce decree shows she was not pregnant at the time of the divorce.

6.  On 8 October 2012, the applicant was honorably discharged due to parenthood in accordance with Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 5-8 that states Soldiers will be considered for involuntary separation when parental obligations interfere with the fulfillment of military responsibilities.

7.  On 2 January 2013, DFAS notified the applicant that:

* They are responsible for collection of individual debts owed to the Department of Defense (DOD)
* The organization maintaining her active duty military pay account advised that she is indebted to DOD as a result of overpayment of BAH/VHA before her recent separation
* Her Account Statement explains the reason for the debt
* She could avoid interest, administrative charges, and penalties if full payment of the debt was made within 30 days of the notice
* If she was financially unable to make full payment, she may make monthly installment payments
* Minimum payment must be received within 30 days of the due date

8.  The Account Statement the applicant received from DFAS-IN Debt and Claims, also dated 2 January 2013, shows she had a Variable Housing Allowance (VHA) debt in the amount of $15,586.00 due to an overpayment of Basic Allowance for Housing (BAH) from 20 April 2011 to 30 September 2012.

9.  In response to an inquiry the applicant made concerning the debt, DFAS notified the applicant that the document she provided to that office was not sufficient to change or cancel her debt.  She was told that the debt was transferred to that office for collection by the United States Army and that she must provide them with official documents from the Department of the Army or her last servicing Defense Military Pay Office that specifically requests that they (DFAS) change or correct her Military Pay Account.  She was told by DFAS that the information provided to that office was based on her official military record and that if she believed the information provided was incorrect or wished to have her record changed or corrected, she should apply to the Army Board for Correction of Military Records (ABCMR) for relief.

10.  On 20 March 2014, DFAS notified the applicant that her request for a hearing was appropriate.  She was told that a hearing was accomplished by reviewing the records to validate the debt for the purpose of administrative garnishment.  She was that told it was to her benefit to read the entire hearing decision and to comply with the instruction.  She was provided a copy of the Summary Record and Hearing Decision which states the following findings:

* The DFAS-IN/Form 0-641 is a breakdown of the applicant's pay for the month of separation
* Her LESs support the computed debt amount
* Defense Debt Management System (DDMS) and the applicant were notified of the debt on 2 January 2013
* DDMS issued two letters to the applicant neither of which was returned as undeliverable
* DDMS issued a follow-up letter even though only one demand letter was required by law
* On 4 June 2013 a letter from DFAS was sent in response to the applicant's inquiry regarding her eligibility to receive VHA
* The applicant was given sufficient time to work with DDMS to resolve the debt before it became delinquent and was transferred to the Treasury Department on 27 October 2013
* On 19 November 2013, the Treasury Department notified the applicant of their intent to collect the debt by Administrative Wage Garnishment (AWG)
* Because the applicant complied with the requirement to request a hearing, collection by AWG was suspended pending the results of the hearing decision
* After interest and fees are assessed, the applicant's debt, as of the date of the hearing decision is as follows:

				$15,586.00 (Principal)
				       101.00 (Interest
					   30.00 (Administrative Fees)
				$15,717.44 (Amount Referred to the Treasury Department)
				    4,400.88 (Treasury Fees) – 28 percent of $15,717.44
				$20,118.32 (Total Amount Due)

11.  The Summary Record and Hearing Decision states:

* Based on the facts surrounding the case, the appropriate collection actions and fee accruals were made in accordance with the Debt Collection Improvement Act of 1996
* Collection of the debt by AWG will ensure the DOD is reimbursed for the overpayment of VHA that the applicant received and was obligated to repay
* The applicant contends that she does not owe the debt because although she was divorced, she had a dependent son living with her at the time of her divorce
* Her military records do not show she had a dependent child
* Her Divorce Decree specifically states both parties have no dependent children
* If she had a dependent child living with her and her husband prior to their divorce and she had custody of the dependent child, she should have ensured the Department of the Army (DA) was aware of her dependent child
* It is her responsibility to ensure her dependents are on record
* It should be noted that she was advised to contact the ABCMR in order to correct her records
* It is not within the purview of an administrative hearing to determine her VHA eligibility when the Department of the Army has already made the determination
* If the applicant still disagrees with the debt, a possible avenue of relief is to petition the ABCMR
* In order to consider any adjustment to her proposed garnishment based on financial hardship, she must provide proof that payment of the debt at the current repayment schedule would cause undue hardship

12.  The Summary Record and Hearing Decision states it was determined that the debt remains valid and that the amount is correct.  It states that the applicant was provided due process and collection of the debt by AWG, not to exceed 15 percent of disposable pay, is proper.

13.  The applicant provides DFAS-IN Form 0-641 the debt she allegedly owes and her LESs covering the periods 1 April 2011 through 31 October 2012.  Her LESs for this period show she was receiving BAQ at the "with dependent rate" and her BAQ dependent category is shown as "spouse."

14.  On 11 June 2014 an advisory opinion was obtained from the DA Office of the Deputy Chief of Staff (G-1), Chief, Compensation and Entitlements Division.  He states that the Army has reviewed the claim of the applicant and supports DFAS' findings based on the divorce decree dated 4 October 2012, which states that "The husband and wife do not have minor children under 18."  Moreover, the DFAS letter to the applicant dated 2 January 2013 states that after 90 days a penalty will be charged annually and administrative charges, as well as interest for the amount of BAH overpaid for the period 20 April 2011 through 30 September 2012, will be assessed.

15.  Army Regulation 600-4 (Remission or Cancellation of Indebtedness) provides instructions for submitting and processing applications for remission or cancellation of indebtedness to the United States Army.  It states that applications must be based on injustice, hardship, or both.  This includes debts caused by errors in pay to or on behalf of a Soldier.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted and her supporting evidence has been considered.

2.  After careful review of the evidence provided by the applicant and evidence contained in her official military record, it is clear that an error was made in assessing a VHA debt against her for overpayment of BAH at the with dependent rate for spouse.

3.  Contrary to what the advisory opinion states, the evidence shows that the applicant listed her son on all of the appropriate documents at the time of her enlistment in the RA.  She listed her son as a dependent on her DD Form 1966/1, DD Form 93 (E), and DD Form 1172.  The only document on which he is not listed is the divorce decree and that's because her son's father is not her former spouse. 

4.  There is no evidence in the available record showing that the applicant's son was residing anywhere other than with her from the date she enlisted in the RA until the date she was involuntary separated on 8 October 2012 for parenthood.  

5.  It appears from the record that the applicant did not provide her unit and Army Finance Office with a copy of her divorce decree in a timely manner.  Or, if it was provided and her unit and the Army Finance Office did not correct her Army finance record by removing her spouse as her dependent and showing her receipt of BAQ at the with dependent rate was based on her minor dependent child.  Therefore, as a matter of equity it would be appropriate to correct her Army finance record to show that on 20 April 2011 she provided her unit and Army Finance Office with a copy of her divorce decree and based on the fact her personnel record showed she had a dependent son born in 2007 that the appropriate Army office corrected her Army finance record to show she was entitled to BAQ at the with dependent rate based on her minor dependent child.  

6.  Based on the recommended change to the applicant's Army finance record, it would be equitable for the Army Finance Office or DFAS to audit her Army finance pay record for the period from 20 April 2011 to 30 September 2012 and adjust her BAQ accordingly.  Upon the adjustment to her Army finance pay record to show BAQ at the with dependent rate based on her minor dependent, it would be appropriate to notify the Treasury Department of the Army's adjustment to her pay record and any debts due based on the adjustment.  If DFAS determines monies are due her for overpayment of her BAQ/VHA debt, then she should be reimbursed accordingly to include notification to the Treasury Department.  Finally, based on the recommended correction it would be equitable to forgive the applicant the interest, penalties, administrative fees and associated Treasury Department fees as allowed by law.  

7.  In view of the foregoing, the applicant's records should be corrected as recommended below.


BOARD VOTE:

___X_____  ___X_____  ___X_  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  showing she submitted her divorce decree to her unit and Army Finance Office effective 20 April 2011;

	b.  correcting her Army finance record to show removal of her spouse as her dependent and then showing her minor dependent child as her qualified dependent for BAQ at the with dependent rate effective 20 April 2011 through her date of separation;
	
	c.  auditing her Army finance record based on the correction to show entitlement to BAQ/VHA at the with dependent rate for a minor child for the period 20 April 2011 to her date of separation;

	d.  adjusting her debt, if any owed to the Treasury Department, after the audit; 

	e.  forgiving her the applicable interest, penalties, administrative fees and associated Treasury Department fees allowed by law based on her initial VHA debt;  

	f.  reimbursing her any funds that were collected; and

   
g.  paying her any monies due as a result of this correction to her Army finance record.




      _______ _ 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)                                         AR20140007086



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ABCMR Record of Proceedings (cont)                                         AR20140007086



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