IN THE CASE OF:  	  

		BOARD DATE:  11 September 2014    	  

		DOCKET NUMBER:  AR20140008485 


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 or cancellation of his debt in the amount of $8,998.08 due to overpayment of basic allowance for housing (BAH).

2.  The applicant states:

	a.  On 21 August 2013, he was notified of his $17,138.71 debt to the government.  This was due to incorrect advice regarding BAH despite diligent efforts to ascertain his entitlements.

	b.  He was divorced on 2 September 2010 and he submitted relevant documentation to discontinue his BAH.  Despite this, he continued to receive BAH while deployed.  His mother emailed a finance employee on his behalf seeking clarification.  The finance employee informed the Fort Campbell finance office that he was being paid the right amount per post regulations and he was entitled to full BAH at the with-dependent rate.  Additionally, upon his return to the barracks, he would receive the without-dependent rate because of his child support.  The statement that he would receive BAH at the without-dependent rate was incorrect.  Living in the barracks would entitle him to only basic allowance for quarters (BAQ)-differential for child support.

	c.  Even after receiving this incorrect information, he still submitted a form to stop receiving BAH, yet it continued.  He and his supervisor went to the housing office as directed, yet were told the same:  receipt of BAH was proper.

	d.  During a leave and earnings statement (LES) review, his squad leader noticed he received BAH and ordered him to move off-post to justify BAH.  He followed orders and submitted a form to stop meal deductions.  Even after this, he went to the S-1 to ensure proper payment.

	e.  He has exhausted all remedies via his chain of command, Congressional inquiry, and through application for remission of indebtedness.  His brigade commander states he repeatedly tried to resolve this, yet leaders and experts failed.  His commander states he followed orders to move, he took every step to ensure correct payment, and he continued to diligently support the unit.  The training noncommissioned officer (NCO) for his unit states the company submitted the proper paperwork, but the applicant was cleared to receive BAH while residing in government quarters.

3.  The applicant provides:

* email from a finance employee
* letter to a Member of Congress, dated 19 March 2014
* DA Form 3508 (Application for Remission or Cancellation of Indebtedness)
* letter from unit training NCO, dated 10 April 2014
* divorce decree
* indebtedness letter, dated 21 August 2013
* letters of support
* DA Form 2823 (Sworn Statement)
* BAH termination letter, dated 23 October 2012
* DA Form 5960 (Authorization to Start, Stop, or Change BAQ, and/or Variable Housing Allowance)

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 14 May 2009 and attained the rank of specialist.

2.  He was divorced in September 2010.

3.  He provided an email from a disbursing cashier at an Army finance office, dated 5 April 2011, who stated:

* according to the applicant's finance office he is getting paid the right amount per his post regulations
* there is no debt because his child support is more than the military differential amount and he is not residing in the barracks at this time
* he is entitled to the full BAH with-dependent rate
* he is listed in the finance system as a single father
* once he returns and resides in the barracks, he will be authorized the without-dependent rate because his child support is so much
* he is good right now
* his allotment is going and the rest of his account looks good 

4.  He provided a DA Form 5960, dated 5 January 2012, which shows he submitted a request to stop his BAH at the with-dependent rate.

5.  On 21 August 2013, he received a notice of indebtedness for overpayment of BAH in the amount of $17,138.71.

6.  He provided a memorandum from his commander, dated 17 September 2013, who stated:

	a.  The applicant was divorced on 29 June 2010 and he submitted all supporting documents to stop his BAH shortly after.  He followed the order of his squad leader to close out his barracks room and reside off post.  The applicant took every step possible to ensure he was being paid correctly, which is shown in the supporting documents attached to his packet.

	b.  The applicant has been with this unit since 2009.  He has always been loyal to his unit, even throughout a deployment in which he was injured.  He is currently a candidate for the Warrior Transition Unit, but still comes to work every day asking what he can do to help the unit.

	c.  The applicant pays child support in the amount of $450.00 every month.  If a debt in the amount of $17,138.71 was applied to his LES, he would not be able to pay his support for his children.

	d.  The applicant submitted the paperwork to stop his BAH in October 2010.  Since submitting that paperwork, he has made every attempt to ensure that his pay was corrected.  The finance office received a pay inquiry from the applicant in January 2012 in which they acknowledged that his BAH was stopped.  He was also continually told by the finance office that he was being paid correctly.  Due to his efforts to correct the situation and his responsibility to support his children, the commander recommended his debt of $17,138.71 be prorated over a period of 36 months.

7.  On 17 September 2013, he submitted an application for remission or cancellation of indebtedness.

8.  On an unknown date, it appears his application for remission or cancellation of his debt was disapproved.

9.  He provided a letter from his brigade commander to a Member of Congress, dated 19 March 2014, who stated:

	a.  The Army overpaid the applicant for multiple months due to confusion about his status and entitlements.  The applicant attempted to correct this error on numerous occasions prior to receiving the notification of debt.  It is also clear that many leaders and subject matter experts provided incorrect information and guidance to the applicant about his entitlements, which exacerbated the problem.

	b.  Upon further review, the finance office determined the applicant only owes $8,998.08, not $17,138.71 originally reported.  The applicant has been notified of this reduction in his debt.  The applicant has exhausted his options for appealing this determination through Army finance channels.

10.  In the processing of this case, a staff advisory opinion was obtained from the Chief, Compensation and Entitlements Division, Office of the Deputy Chief of Staff, G-1, Headquarters, Department of the Army, dated 11 June 2014.  The advisory official recommended disapproval of the applicant's request.

	a.  That office supports the findings of the Defense Finance and Accounting Service (DFAS) based on the timeline.  The divorce was final on 2 September 2010, at which time the applicant was entitled to BAH-differential only, based on paying at least the differential amount in child support.

	b.  The applicant submitted a DA Form 5960 to the Defense Military Pay Office on 5 January 2012 to request to stop BAH at the with-dependent rate,     16 months after the divorce was final.  Within 9 days, on 14 January 2012, a memorandum from Military Pay at Fort Campbell was sent to the applicant's unit requesting information regarding his living situation, to ascertain the applicant was not entitled to BAH.

11.  A copy of the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  He responded and stated:

	a.  The funds that were paid to him were the result of mistakes by Army personnel.  He followed the guidance of those persons and he requests that he not be held liable for the BAH payments paid to him in the past.

	b.  The conclusion of DFAS was he should be responsible to pay back the BAH payments paid to him; however, they ignore the fact he turned in documents properly to include his divorce decree and BAH certifications and worked with unit leaders and the finance office to ensure he was paid correctly.  It now appears the guidance given to him and others from the finance office was incorrect, but he did nothing to cause this error and should not now be penalized for the Army's error.

	c.  The documents he previously submitted establish he was following Army guidance from an Army finance office when he received BAH payments following his divorce.  The message from the finance office employee in April 2011 clearly stated he had no indebtedness and should continue to receive BAH payments for a period of time.  He relied upon this advice and this only occurred when he and his mother, acting on his behalf, inquired whether he should still receive BAH payments due to his rank and his divorce.  He filed a correct DA Form 5960 to stop receiving BAH, but was advised that he should still receive those payments.  Given all the effort he went to clarify his situation and be paid correctly, it is unfair and unjust now to hold him liable for overpayment of BAH.

DISCUSSION AND CONCLUSIONS:

1.  It appears the applicant did not change his BAH rate upon his divorce in September 2010 and he incurred a debt for overpayment of BAH.

2.  His contentions and the supporting documentation were carefully considered; however, regrettably, there is no evidence of record and he provided no evidence which shows this debt was incurred erroneously.

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

4.  His contention he submitted relevant documentation to discontinue BAH and the April 2011 email from the finance employee were noted.  If the applicant can provide additional proof/evidence of all his attempts to correct this issue, he may reapply to this Board for reconsideration.








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 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)                                         AR20140008485



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ABCMR Record of Proceedings (cont)                                         AR20140008485



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