MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:            17 December 1998                  
	DOCKET NUMBER:   AC98-12291

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Loren G. Harrell		Director	
	Mr. Theodore Heartley		Analyst	

  The following members, a quorum, were present:

	Ms. Karen L. Wolff 		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. Kenneth L. Wright		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  That her debt of $3,353.69 resulting from an overpayment of basic allowance for housing (BAH) be cancelled.

APPLICANT STATES:  In effect, that she was misinformed regarding her entitlement to BAH; that she believed she was entitled to full BAH; that at the time of her entry on active duty, she was divorced and informed military officials of her marital status, however, she had not received her divorce decree; and that she incurred this debt through no fault of her own.

In support of her request, she submitted a number of documents including a copy of DD Form 139, pay adjustment authorization; a copy of DA Form 3508-R, request for remission and cancellation of indebtedness with her letter, chain of command endorsements and decision document; and a copy of a court order for custody and child support.

EVIDENCE OF RECORD:  The applicant's military records show:

She had 6 years, 10 months and 1 day of prior National Guard service.

She enlisted in the Regular Army on 20 May 1997 for a period of 3 years and duty in the telecommunications career field.  She is presently serving at Fort Sill, Oklahoma. 

On 10 August 1998, she received a DD Form 139 from her local finance office advising that she was indebted to the government for $3,353.69 due to an overpayment of BAH.  The notice further stated that she entered the service on 20 May 1997 and was divorced on 12 May 1997, therefore, she was not entitled to BAH with dependents, only BAH (at the without dependents rate).

On the same date, she applied for remission or cancellation of the debt.  She stated in her request, in effect, that since she had no proof of divorce, she had to apply for BAH as a married person.  She further stated that she, finally, obtained a copy of her divorce decree through her father only after her effort to obtain it from her ex-husband had failed.  She also stated that she understood that she was supposed to receive full BAH because she was paying $500.00 per month in child support for 2 children; and that the court had recently ordered her to pay $468.00 per month which was, subsequently, garnished from her wages.  She added that this debt greatly hinders her ability to go on financially; that she and her husband can barely get by; and that they hope to gain custody of her two children next year.

She provided a copy of a memorandum dated 21 October 1998 from U.S. Total Army Personnel Command (DA PERSCOM), Chief, Special Actions Branch to her local finance officer stating, in effect, that her request for remission or cancellation of her indebtedness was reviewed in accordance with Army Regulation 600-4 and not favorably considered.

In the processing of this case, the Board contacted DA PERSCOM to clarify the rational for denying the applicant’s request.  DA PERSCOM stated that relief was denied because the applicant provided no substantiating evidence for the alleged injustice and hardship, the basis for her request.  DA PERSCOM also provided the Board a copy (COPY ATTACHED) of the local finance officer’s recommendation of disapproval that stated, in pertinent part, that when a soldier has a spouse whom he/she is not supporting, there is no entitlement based on that spouse; and that her children had been in the custody of an uncle since October 1996. 

Court documents provided by the applicant, show that temporary custody of her two children was awarded to an uncle and his spouse on 9 October 1996; and that she was ordered to pay child support in the amount of $468.00 on 23 April 1998.

Army Regulation 600-4 pertains to the remission and cancellation of indebtedness for enlisted members and states, in pertinent part, that to establish the existence of injustice, the evidence must show that applicant did not know or could not have known of the error.  The regulation further states that to establish the existence of a hardship, the evidence must show that repayment of the debt will cause excessive monthly expenses due to living in a high cost area, living apart from family members because of military orders, the number and age of family members, non reimburseable medical and dental bills, and other unusual expenses.  Expenses caused by living standards that are too high or by mishandling funds are not a basis for a hardship case.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  The applicant’s contention that she did not know and not told she had no full entitlement to housing allowance is not credible when the evidence of record is considered. 

2.  Her contention that she experienced difficulty in obtaining her divorce decree is irrelevant.  Based on her statement that she and her husband are experiencing financial difficulty, it appears that she remarried prior to her entry on active duty and established entitlement to full housing allowance based on proof of such remarriage.  In doing so, she incurred an obligation to provide support for the primary dependent, her second husband, which according to her local finance officer, she failed to do. 

3.  Further, at the time of her entry on active, her obligation to pay child support was voluntary and didn’t become mandatory in a specified amount until nearly one year later.  She made a choice, perhaps ill-advised, to provide $500,00 per month in voluntary child support.  Therefore, the issue of child support is also irrelevant.

4.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence which would satisfy the aforementioned requirement.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	YYYYMMDD	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.