MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           22 June 2000                   
	DOCKET NUMBER:   AR2000035301

	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. Carl W. S. Chun		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Luther L. Santiful		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. Roger Able		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 the general officer memorandum of reprimand (GOMOR) dated 22 July 1996 and the relief-for-cause non-commissioned officer evaluation report (NCO-ER) for the period ending January 1997 be expunged from his records and that his name be removed from the subject line of the U. S. Army Criminal Investigation Command (CID) report prepared by the Fort Belvoir, VA Field Office.

APPLICANT STATES:  That the GOMOR was predicated on the CID report which stated he improperly claimed his spouse at the time, I___, for Temporary Quarters and Subsistence Expenses (TQSE) for the same period he was away on annual training for the U. S. Army Reserve.  His marriage to I___ was a nullity because his divorce from his first wife had never been finalized.  He, I___ and their children moved to Fort Belvoir for his civilian job and resided in a local Econo Lodge.  They were experiencing marital problems at the time in part because of I___’s penchant for extended vacations away from the family.  On one such vacation she even wed another, only to return to him.  Therefore, after she departed yet again for Fayetteville, NC after another altercation in February 1995 he was not surprised.  He fully expected her to return.  In late June 1995, within 30 days after he had annulled his marriage of 17 years to I___, she asserted he was a bigamist, an adulterer and a thief.  The CID investigated her allegations.  She later declined to make a statement and recanted her earlier statements.  In addition, she provided statements that he had supported her financially and that her trip to North Carolina was a vacation.  Based on these statements, the Fort Belvoir garrison commander, the Defense Finance and Accounting Service (DFAS) and the Central Clearance Facility (CCF) concluded that he filed valid TQSE and basic allowance for quarters (BAQ) claims in February 1995.  The CID, rather, disregarded her statements and focused on his marriage.  The NCO-ER was based on the GOMOR.  Since the premise on which the GOMOR was issued was wrong, the NCO-ER was wrong as well.

COUNSEL CONTENDS:  Counsel contends that DFAS determined that a claimant could seek both TQSE and temporary duty (TDY) if it was determined to be prudent for the claimant to retain temporary quarters and meals while he was also TDY.  The applicant had explained that the TQSE was for his family residing at the Econo Lodge and for them to eat.  While he was TDY, he had a right to claim both the TDY expenses away from his residence and the TQSE to maintain his family.  The Commander, U. S. Army Civil Affairs and Psychological Operations Command (CAPOC) issued the GOMOR on the sole basis that “…knowingly filed concurrent claims for TQSE as a federal civilian employee and claims for TDY subsistence for meals during periods of AT.  Knowing, concurrent receipt of these two entitlement allowances constitutes a violation of the UCMJ, Article 134.”  It is clear that at the time he made his claims for TQSE and TDY, he had the right to claim both himself and his spouse.  

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

He enlisted in the Regular Army on 27 August 1973.  

On 17 June 1974, the applicant married D___.  In 1978, he initiated a divorce but he apparently did not pay court costs and the case was not docketed.  Therefore, his divorce was not finalized.

On 28 August 1980, the applicant was honorably discharged from the Regular Army.  

On 28 March 1981, the applicant and I___ married.  Around 1983, the applicant learned that the divorce had never been finalized and that he was not divorced. 

In August 1983, the applicant enlisted in the U. S. Army Reserve (USAR).  At some point he also became a Department of Defense civilian.  

In November 1989, the applicant filed a complaint, asserting that his marriage to I___ was a nullity.  He did not proceed to a judgment on this matter.

D___ filed for final dissolution of her marriage to the applicant.  It was finalized on 2 February 1994.

In 1994, while serving as a Reserve Affairs Officer with the 1st Personnel Command in Germany, he received permanent duty travel orders for reassignment to Fort Belvoir, VA.  His spouse, I___, one stepson, one son and one daughter were listed as dependents authorized to travel with him.  He reported for duty on or about 29 January 1995.  

The applicant was ordered to annual training 9 – 12 March, 2 – 3 May and        13 – 20 May 1995 in his capacity as a Reserve soldier.  

On or about 17 May 1995, the applicant annulled his marriage to I___.

On 16 June 1995, the applicant married K___, a former Army officer.

In August and September 1995, I__ wrote two statements, one addressed to Major B___, the applicant’s supervisor, and the other unaddressed in which she stated the applicant supported her financially during her vacation in North Carolina up to 17 May 1995, when their marriage was annulled.

On 18 August 1995, the applicant requested guidance and a policy decision from DFAS based upon his situation and whether he was entitled to TQSE while he was on annual training.  The applicant did not discuss his marital situation in his request.  On 20 September 1995, DFAS responded by stating that, since November 1989, lodging could be paid while a civilian employee was on TDY if the agency determined that the employee acted prudently in retaining the lodging.  The meals portion could not be paid, since (in the TDY situation) the meals were covered by per diem.  

The applicant apparently sought further clarification.  As a result, on an unknown date, the DFAS, Rome, NY Operating Location reviewed the applicant’s claim for TQSE and determined he did not receive any benefits to which he was not entitled.

On 20 February 1996, the CID’s investigation established probable cause to believe that the applicant knowingly submitted a fraudulent TQSE claim for $16,901.59, of which $3,316.50 was not authorized; that he married I___ without being properly divorced from D___, and that he subsequently obtained an illegal annulment from I___ in order to marry K___, resulting in another bigamous relationship.  An interview with Major B___, had disclosed that I___ had contacted him with her allegation of bigamy.  She had stayed in the Fort Belvoir area with the applicant for about 3 weeks in February 1995, staying with the children in room 184.  She left because the applicant told her he had a restraining order placed on her.  K___ arrived at the Econo Lodge in April 1995 and stayed with the applicant in room 227, while the children stayed in room 184. Major B___ had been contacted by the applicant’s attorney and advised that the applicant had documentation which proved he had never been married to I___.  An interview with DFAS disclosed the applicant was not entitled to claim I___ as a dependent after she departed the Fort Belvoir area as she was not returning.  He also was not entitled to claim meals for himself while he was on active duty.  An interview with the applicant disclosed he had left a power of attorney with a friend and placed his children in his friend’s care while he was on active duty.  An interview with the general manager of the Econo Lodge disclosed that the children were left unattended on weekends and when the applicant went on active duty.  He had been in the company of a female Army captain after I___ departed the area.  She related the applicant used to brag about how he did not know where I___ was.

On 16 April 1996, the Office of the Staff Judge Advocate, Fort Belvoir, VA noted that the CID investigation of the allegations made against the applicant revealed sufficient evidence to title him for bigamy, adultery, false claims, and larceny of government funds.  It was determined that the magnitude of the offenses did not warrant prosecution.  However, the declination of criminal prosecution should not deter administrative action in connection with his civilian employment or any action his reserve command deemed appropriate.

On 10 May 1996, the U. S. Army Central Personnel Security Clearance Facility made a preliminary decision to revoke the applicant’s security clearance and notified him.  After reviewing his response and the statement from his command that the charges were unfounded, his clearance was reinstated.  

On 22 July 1996, the Commanding General, CAPOC issued a GOMOR to the applicant.  The GOMOR stated in part that the applicant knowingly filed concurrent claims for TQSE as a federal civilian employee and claims for TDY subsistence for meals during periods of annual training knowing that concurrent receipt of these two entitlement allowances was a violation of the Uniform Code of Military Justice.  The misconduct committed by the applicant, i. e., theft by fraud of U. S. Government property, was so serious that it impugned his integrity and mortally damaged his ability to further serve the command and the Army.

The applicant received a relief-for-cause NCO-ER for the period September 1996 through January 1997.  In part IVa, the applicant received “no” ratings in the areas of “is honest and truthful in word and deed;” “maintains high standards of personal conduct on and off duty;” and “has the courage of convictions and the ability to overcome fear – stands up for and does what’s right.”  In parts IVb (competence), IVd (leadership), and IVf (responsibility and accountability) he received ratings of “needs some improvement.”  His rater rated his overall potential as marginal.  His senior rater rated his overall potential as poor.  The NCO-ER contains several negative comments concerning his financial judgment.

Army Regulation 600-37 sets forth policy and procedures to authorize placement of unfavorable information about Army members in individual official personnel files; ensure that unfavorable information that is unsubstantiated, irrelevant, untimely or inaccurate is not filed in an individual official personnel files; and ensure that the best interest of both the Army and the soldier are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files.  A letter may be filed in the OMPF only upon the order of a general officer or by direction of an officer having general court-martial jurisdiction over the individual. 

Army Regulation 623-205 establishes the policies and procedures for the     NCO-ER system.  Paragraph 4-2 states that an NCO-ER accepted for inclusion in an NCO’s OMPF is presumed to be administratively correct, to have been prepared by the properly designated rating officials and to represent the considered opinion and objective judgment of the rating officials at the time of preparation.  Paragraph 4—7 of that regulation also states that the burden of proof in an NCO-ER appeal rests with the applicant.  Accordingly, to justify 

deletion or amendment of an NCO-ER under the regulation, the applicant must produce evidence that clearly and convincingly overcomes the presumptions referred to above and that action to correct an apparent material error or inaccuracy is warranted.

In the processing of this case, an advisory opinion was obtained from the legal advisor to the Army Review Boards Agency (SEE ATTACHED).  The legal advisor opined that there was no legal objection to the GOMOR and no legal objection to the facts upon which the relief-for-cause NCO-ER was based.  Based upon the evidence, the applicant committed bigamy because he married I___ prior to obtaining a legal divorce from D___.  His marriage to I___ was never legalized after he obtained his divorce from D___ so by claiming her as a dependent he committed fraud.  In addition, he filed for reimbursement of his meals while TDY even though, because he had already been paid for meals under TQSE, he was not authorized to do so.

The applicant’s counsel responded to the advisory opinion.  Counsel stated that whether the applicant knowingly or inadvertently committed bigamy was not relevant to the reprimand at issue.  The sole question was whether he violated the rules when he filed for two entitlements for subsistence in 1995.  DFAS twice stated the applicant did not receive any entitlement which he was not authorized. 

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

1.  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 that would satisfy the aforementioned requirement.

2.  The Board notes that the applicant and his counsel make two contentions:  (1) that his marriage to I___ was a nullity and (2) that he had the right to claim TQSE and TDY for both himself and his spouse.  The Board concludes that he cannot have it both ways.

3.  Even if the applicant thought he was free to marry I___ in 1981, he knew in 1983 that his divorce was not final so his marriage was not legal.  Yet, he never took steps to finalize that divorce, which only required that some court costs be paid.  In fact, in 1989 he initiated steps to annul his marriage to I___ based upon the fact his divorce was not final.  His divorce was never finalized until D___ took the step in 1994 to dissolve the marriage.  Even at this date the applicant did not 

take steps to legally marry I___.  Prior to this date the Board concludes that a case could be made that the applicant never defrauded the Government by claiming I___ as his dependent.  He claimed a spouse as a dependent and he had a legal spouse, although it was not I___.  However, the Board concludes that a strong case could be made that he defrauded the Government every time he received dependent allowances for I___ when he did not take steps to legally marry her after February 1994.  

4.  The Board notes that DFAS initially gave a favorable response to the applicant’s inquiries based upon incomplete information.  When given complete information (during CID’s interview with DFAS), DFAS stated he was not entitled to claim I___ as a dependent after she departed the Fort Belvoir area as she was not returning.  The applicant contends she was going to return.  The Board does not agree with his contention.  Witnesses told CID that the applicant kept company with a female captain after I___ departed and that he boasted that he did not know where I___ was.  He does not refute these statements.  He provided power of attorney to a friend to care for his children when he went on annual training instead of having I___ return from vacation to care for them.  The Board finds it difficult to reconcile these actions with his claim that I___ was going to return.  

5.  The GOMOR stated that the applicant knowingly filed concurrent claims for TQSE as a federal civilian employee and claims for TDY subsistence for meals during periods of annual training knowing that concurrent receipt of these two entitlement allowances was a violation of the Uniform Code of Military Justice. DFAS’s 20 September 1995 response to his inquiry said he could not claim meals.  The Board finds no error in the wording of the GOMOR and notes that it could have been much harsher.

6.  Since the Board finds that there was no error with the premise of the GOMOR, the Board also finds that there was no error or injustice in giving the applicant the contested NCO-ER.  The Board notes, once again, that the wording of the NCO-ER could have been much harsher.

7.  The Board concludes the applicant is properly the subject of the CID report prepared by the Fort Belvoir, VA Field Office.

8.  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

__lls___  __aao___  __ra____  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000035301	
SUFFIX		
RECON		
DATE BOARDED	20000622	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	134.00	
2.		
3.		
4.		
5.		
6.