DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
WJH
Docket: 5607-10
13 April 2011
From: Chairman, Board for Correction of Naval Records
To: Secretary of the Navy
Ref: (a) Title JO U.S.C... 1552
Encl: (1) DD Form 149 w/attachments
(2) MILPERSMAN 1300-308
(3) OPNAVINST 7220.12
(4) CNO ltr 7220 Ser N130C/10U0820 of 12 Nov 2010
1. Pursuant to the provisions of reference (a) Petitioner
filed enclosure (1) with this Board requesting, in effect,
that the applicable naval record be corrected to show that
he was granted a waiver of repayment of a debt established
after he was overpaid Basic Allowance for Housing (BAH)
while in Sasebo JN.
2. The Board, consisting of Messrs. Pfeiffer, Zsalman, and
George, reviewed Petitioner's allegations of error and
injustice on 11 April 2011. After careful and
conscientious consideration of the entire record, the Board
found that the evidence submitted was sufficient to
establish the existence of probable material injustice and
determined that the corrective action indicated below
should be taken on the available evidence of record.
Documentary material considered by the Board consisted of
the enclosures, naval records, and applicable statutes,
regulations and policies. The Board also considered an
advisory opinion provided by the Chief of Naval Operations
Code N130 (hereinafter N130), attached as enclosure (4)
that recommended no relief be granted.
3. The Board, having reviewed all the facts of record
pertaining to Petitioner’s allegations of error and
injustice, finds as follows:
Socket: 5607-10
a. In January 2008, Petitioner received Permanent
Change of Station (PCS) orders directing him to transfer
from Portsmouth VA to Sasebo JN in February 2008. The
orders were considered “accompanied” orders because they
authorized his family to accompany him to the new duty
station at government expense.
b. Under the regulations governing overseas transfer
orders, members are provided with an opportunity to elect
whether they desire to be accompanied by family members in
the overseas area. See enclosure (2). Also, in order to
receive BAH based on the dependent’s Continental United
States (CONUS) location, prior approval must be received
from the Commander Navy Personnel Command (PERS 451H). See
enclosure (3).
c. Petitioner transferred to Sasebo. His dependents
did not accompany him. They remained in CONUS Lt
Chesapeake VA.
d. Upon arrival, Petitioner checked in with the
Personnel Support Detachment (PSD) Sasebo. A service
record entry shows that on 19 Feb 2008, Petitioner elected
an “accompanied” tour. He avers that he advised the PSD of
marital problems he was having, that he had been separated
from his spouse and that his spouse remained in Chesapeake
VA. He was not advised by the PSD to request BAH based on
the dependent’s Continental United States (CONUS) location.
His CONUS BAH based on his dependent’s location (Chesapeake
VA) was continued causing an overpayment.
e. In July 2008, his spouse moved from Chesapeake VA
to Pensacola FL. The BAH rate in Pensacola FL is lower
than the BAH rate in Chesapeake VA. Petitioner avers that
he informed PSD that his spouse had relocated. However, he
did not update his Record of Emergency Data. Accordingly,
he continued to receive BAH based on Chesapeake VA which
was his dependent’s location of record. Petitioner was
paid BAH at the higher Chesapeake VA rate from
approximately 21 July 2008 to approximately 30 April 2010.
The difference in the rates caused a separate overpayment
of $5620.05:
f. In approximately April 2010, an audit of all
Sailors in Sasebo receiving CONUS BAH was conducted. At
Docket: 5607 -10
that time, it was discovered that Petitioner was not
entitled to CONUS BAH because he was serving in Sasebo on
“accompanied” orders and he had no prior authorization to
receive BAH based on his dependent’s location. He had been
overpaid a total of $36,129.25.
g. The PSD Sasebo subsequently established the
overpayment as a debt.
h. In May 2010, Petitioner applied to this Board
seeking to have the debt for overpayment of BAH waived.
i. By enclosure (4), N130 recommends no relief be
granted. N130 reasons that Petitioner was not entitled to
CONUS BAH because he was serving in Sasebo on “accompanied”
orders and he had no prior authorization to receive BAH
based on his dependent’s location. He could have brought
his family to Sasebo at government expense but chose not to
do so.
CONCLUSION:
Upon review and consideration of all the evidence of
record, the Board finds an injustice and concludes that
Petitioner’s request warrants partial favorable action.
The majority understood and carefully considered the
comments made in enclosure (4). However, it found that the
following factors militated in favor of relief. The PSD
Sasebo erred when it allowed the CONUS BAH to continue.
Absent that error, Petitioner would likely have sought PERS
451H approval or adjustment to his tour length. Also, the
PSD Officer in Charge has confirmed that the failure by the
PSD Sasebo to stop the BAH or to seek authorization to
receive BAH based on the dependent’s location was, at least
in part, the cause of the overpayment. Also, due to its
Size, enforcing the debt would create an extremely heavy
financial burden on a Second Class Petty Officer. For
these reasons, the Board finds that, Petitioner’s request
should be granted partial favorable action extending to
waiver of $30,509.20 of the total debt. In the Board’s
view, Petitioner should be responsible for the separate
overpayment of $5620.05 because of his failure to update
his Record of Emergency Data that his spouse had moved to
Pensacola FL.
Docket: 5607-10
RECOMMENDATION :
That Petitioner’s naval record be corrected, where
appropriate, to show that:
a. $30,509.20 of the debt (partial amount) caused by
the overpayment of BAH will be waived.
4. Pursuant to Section 6(c) of the revised Procedures of
the Board for Correction of Naval Records (32 Code of
Federal Regulations, Section 723.6(c)) it is certified that
quorum was present at the Board’s review and deliberations,
and that the foregoing is a true and complete record of the
Board's proceedings in the above entitled matter.
fyliam GAL
ROBERT D. ZSALMAN WILLIAM J. HESS, III
Recorder Acting Recorder
5. The foregoing action of the Board is submitted for
your review and action.
Executive D
Pdaalath
The recommendation is reviewed and approved:
Word 4/20]
ROBERT L. WOODS
Assistant General Counse!
(Manpower and Reserve Affairs)
1000 Navy Pentagon, Rm 4D548
Washington, DC 20350-1000
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