MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            4 May 2000
	DOCKET NUMBER:   AR2000039825

	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	
	Mr. Joseph A. Adriance 		Analyst	

The following members, a quorum, were present:

	Mr. Luther L. Santiful		Chairperson	
	Mr. James P. Steuve		Member	
	Ms. Carol Jo Suiter		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:  In effect, that he be paid back pay based on his entitlement to a basic allowance for quarters (BAQ) from May 1986 to August 1995.

APPLICANT STATES:  In effect, that due to circumstances surrounding his case he believes that his record is in error and that this condition existed since the beginning of his initial enlistment.  He claims that he never received monies due as a result of a child support judgement against him issued by the State of Washington in 1995.  In April 1995, the applicant was ordered to pay child support in the amount of $525.00 per month.  This court order included payment in arrears dating back to the birth of the child on 13 December 1983.  He claims that he was unaware of the child prior to the court judgement and therefore he failed to sign up for BAQ at the time of his enlistment in May 1986.  The applicant never received BAQ until August 1995 which is the date of his current marriage.  He contends he should be eligible to receive back BAQ based on his having to pay child support back to 1983 and the fact that he did not draw any BAQ until 1995.  The applicant provided the enclosed letter of support from a legal assistance attorney from Fort Lewis, Washington, dated 17 December 1999.

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

On 2 March 1987, the applicant enlisted in the Regular Army (RA) and has continuously served on active duty until the present.  At the time of his enlistment in the RA the applicant has served in the Army National Guard and had completed 5 months and 1 day of initial active duty for training between 22 April and 22 September 1986.  He currently holds the rank of sergeant/E-5 and his current term of service is due to expire (ETS) on 19 November 2001.  

On 14 April 1995, a court order was issued by the County of Kitsap Court in the State of Washington, which ordered the applicant to pay child support in the amount of $525.00 per month for a dependent son.  This court order directed payment in arrears back to the date of birth of the dependent son which was 
13 December 1983.  Records indicate that the applicant drew no BAQ while on active duty between his initial RA enlistment in March 1987 and August 1995 when he began to receive BAQ based on his current marriage.  

On 17 December 1999, a legal assistance attorney from Fort Lewis, Washington made the argument to the finance office that because the applicant was unaware of the fact that he had a dependent at the time of his enlistment he should be authorized BAQ from the date of his enlistment.  This legal advisor contended that the applicant should be entitled to BAQ or at least a BAQ differential if he were living in the barracks from the date of his initial enlistment.  Counsel claims this entitlement is due because the applicant paid child support dating back to the birth of the child, which was December 1983.  
On 28 January 2000, the Chief of the Entitlements Branch, Defense Finance and Accounting Service (DFAS), Indianapolis, Indiana responded to the legal counsel’s recommendation that the applicant be paid back BAQ pay.  This letter indicated that based on financial regulations, which state that subsequent payment of arrears of child support does not entitle a member to BAQ on behalf of the dependent for the period of nonsupport or inadequate support.  Therefore, the applicant was entitled to BAQ only from the date of the court order, 14 April 1995 to 18 August 1995 when he began to draw BAQ based on his current marriage.  

Defense Financial Management Regulation, Volume 7, Part A, paragraph 260406 B (Nonsupport) states, in pertinent part, that a member who fails to support a dependent on whose behalf BAQ is received is not entitled to BAQ on behalf of that dependent.  Recoupment for periods of nonsupport or inadequate support does not entitle a member to BAQ on behalf of that dependent for the period of nonsupport or inadequate support; in addition, a member does not avoid the legal responsibility to comply with a court order for support by forfeiting BAQ.  

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 Board concurs with the DFAS finding that the applicant’s entitlement to BAQ began effective the date of the court order, which was 14 April 1995.  The fact that the applicant claims he was unaware that he had a child until the court order of 1995, in the opinion of the Board, is not sufficient mitigation to award entitlement to back BAQ pay.  

2.  The Board determined that the applicant’s claim that he was unaware of his being the parent of the dependent son in question does not alleviate his responsibility to provide child support as evidenced by the court order and does not provide sufficient cause to conclude he bears no responsibility for the delay in payment of child support for the dependent son in question.  

3.  Notwithstanding the applicant’s claim that he was unaware of his parental responsibility for the child, the Board has determined that the regulatory provisions stipulating that forfeiture or non receipt of child support does not provide a member reason to avoid the legal responsibility to comply with a court order for child support is in fact applicable in this case. 

4.  Additionally, whether knowingly or unknowingly, the applicant clearly failed to support a dependent as defined by the regulation and as evidenced by the court order and the Army bears no responsibility to subsidize this failure on the applicant’s part.  Further, the regulation stipulates that the requirement to pay support in arrears does not entitle a member to payment of BAQ on behalf of that dependent for those periods of nonsupport.  Therefore, the Board concludes the applicant is not entitled to back BAQ for the dependent in question, and that his entitlement to BAQ began on the date of the court order, 14 April 1995.  

5.  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.

6.  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

___cs___  ___jps___  ___ls ___  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR2000039825	
SUFFIX		
RECON		
DATE BOARDED	2000/05/03	
TYPE OF DISCHARGE	N/A	
DATE OF DISCHARGE	N/A	
DISCHARGE AUTHORITY	N/A	
DISCHARGE REASON	N/A	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  295	128.1200	
2.		
3.		
4.		
5.		
6.