IN THE CASE OF:	  

		BOARD DATE:	  26 February 2015

		DOCKET NUMBER:  AR20140016947 


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, that she be paid $7,500.00 in back pay for basic allowance for housing (BAH).

2.  She states an audit was conducted of her records by the Fort Leavenworth finance office in August 2013, that determined the Defense Finance and Accounting Service (DFAS) erred in the amount of BAH owed to her in the amount of $7,500.00.

3.  She provides:

* Self-authored statement
* Numerous emails
* DD Form 137-3 (Dependency Statement - Parent), dated 12 July 2013
* DD Form 1172 (Application for Identification Card/Deers Enrollment), dated 13 July 2013
* Copies of checks and a discretionary allotment to dependent
* DFAS Dependency Determination Form, dated 3 August 2006

CONSIDERATION OF EVIDENCE:

1.  The record shows the applicant is currently a lieutenant colonel (LTC)/O5 serving on active duty in the Regular Army.  She was deployed to Iraq from on or about 10 June 2008 to 15 June 2009.

2.  A DFAS Dependency Determination form, dated 3 August 2006, shows that dependency was established for a "parent."  The form stated that the parent must resubmit to DFAS for re-approval when her identification card has expired.

3.  On 25 May 2010, the applicant and her spouse were divorced.

4.  She provided numerous emails between herself, the S-1, Army Field Support Battalion, Fort Hood TX, and the supervisor, Review Section, Defense Military Pay Office (DMPO), Fort Leavenworth, KS concerning BAH.  On 30 April 2013, the DMPO explained that a second audit of her mother's dependency was conducted from her deployment date (28 May 2008) and the date of her divorce (25 May 2010).  She said per her calculations, the audit would result in a balance due to her of $7,500.00.  She further stated the information was forwarded to DFAS through their DMPO Director.  The other emails explained that if the applicant was trying to claim her mother during years 2008 to 2009, she needed to complete and submit a new DD Form 137-3.

5.  On 12 July 2013, the applicant submitted a DD Form137-3 with a copy of an allotment and carbon copy check receipts.

6.  In the processing of this case an advisory opinion was obtained from Chief, Compensation and Entitlements Division, Office of the Deputy Chief of Staff, G-1, The advisory official recommends denial of the applicant's request and states:

   a.  The housing allowance for member to member couples with dependents in this case is paid based on the Joint Travel Regulation (JTR), Chapter 10, paragraph U10204.  Since the applicant's husband was receiving BAH at the with-dependent rate for their children, the applicant is only authorized to receive BAH at the without-dependent rate during the marriage.

   b.  Members claiming a housing allowance on behalf of a parent are required to receive an annual dependency re-determination from DFAS in accordance with JTR, Chapter 10, paragraph 10100-E.  The agency was advised by DFAS that the applicant did not submit a DD Form 137, to recertify her mother as a dependent for housing allowance purposes for the period she is claiming a with-dependent BAH.

7.  The applicant was provided a copy of the advisory opinion and afforded an opportunity to provide a response, but she elected not to respond.

8.  The JTR pertains to per diem, travel and transportation allowances, relocation allowances and certain other allowances for, in pertinent part, Uniformed Service Active Duty members.
   a.  Paragraph 10100-E, Dependency Re-determination, states that annual re-determination of dependency is required for a member who claims a housing allowance for "parents, parents in law, stepparents, parents by adoption, or in loco parentis.

   b.  Paragraph 10204-A, Child(ren) from Previous Relationships and Dependent Parents, states that 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 (including BAH-Diff (differential)) is payable.  Any children 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 purpose.  A relationship determination is required, but ordinarily a dependency determination is not.

   c.  Paragraph 10204-C, Members Assigned to Different Locations, effective 15 April 2003, when married members are assigned to different locations, pursuant to competent military orders, the authorization for a housing allowance at the with dependent rate or to Government furnished quarters should be determined separately, without regard to the general rule that all children and parents of the members are dependent of the same class for housing allowances.  Each member is required to have physical custody of a dependent if both members are claiming a housing allowance authorization at the with-dependent rate. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests back pay of BAH in the amount of $7,500.00.  This amount appears to be based on an email from the DPMO who stated, in effect, that a second audit of her mother's dependency was conducted and per her calculations, the applicant was due BAH in the amount of $7,500.00 from her deployment date (28 May 2008) and the date of her divorce (25 May 2010). 

2.  The evidence of record shows she was married to another Soldier who was receiving BAH at the with-dependent rate for their children.  As cited in the JTR all children and dependent parents are dependent of the same class for housing allowances.  Therefore, only one housing allowance at the with-dependent rate is payable if members are assigned to the same location.

3.  However, if members are assigned to different locations, each member is required to have physical custody of a dependent if both members are claiming a housing allowance authorization at the with-dependent rate.  It appears that the applicant is requesting BAH for the year she was deployed to Iraq (June 2008 to June 2009).  It is highly unlikely that she had physical custody of any of her dependents at that time.  Additionally, there is no evidence and she did not provide any to support physical custody for the additional 11 months of BAH at the dependent rate after her return and until her divorce on 25 May 2010. 

4.  Further, there is no evidence and she did not provide any to show she received an annual dependency re-determination as required by the JTR to recertify her mother as a dependent for housing allowance purposes for the period she is claiming.

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)                                         AR20140016947





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140016947



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1