PROCEEDINGS

	IN THE CASE OF:      

	BOARD DATE:           18 April 2002                   
	DOCKET NUMBER:   AR20010559644

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

	Mr. Carl W. S. Chun		Director	
	Mr. Walter Avery, Jr.		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Ms. Barbara J. Ellis		Member	
	Mr. Ronald E. Blakely		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

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

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that the collection of $9782.16 erroneously collected from him be returned.

3.  The applicant states, in effect, that after he was married, in California, on 23 December 1997 he learned that his wife was still married to another man.  The Criminal Investigation Division (CID) initiated an investigation and his unit filed charges against him for fraudulently claiming Basic Allowance for Housing, Basic Allowance for Subsistence, Family Separation Allowance, and for bigamy.  In January 2000, a Fort Campbell pay officer penned a memorandum stating that his marriage was not valid and that he was not entitled to over $16,000.00 of entitlements received.  The applicant cites that Department of Defense Financial Management Regulation (DoDFMR) 7A states that the Defense Finance and Accounting Service (DFAS) must determine the validity of a marriage and does not delegate this decision to local finance offices.  

4.  In support of his request, he submits several documents to include memorandums from a Fort Campbell pay officer and military lawyer.

5.  The applicant’s military records show that he enlisted in the Regular Army on 17 January 1996 for four years and training as an infantryman.  He is currently a specialist on active duty stationed at Fort Campbell, Kentucky.

6.  A Fort Campbell pay officer states that the CID case was closed favorably for the applicant and that the charges against him were dropped and dismissed entirely and that the local pay office did not have the authority to initiate the collection, which the applicant is now appealing.  She explains that according to the judge advocate general, the applicant does have a legal marriage due to the law of the state of California.  The applicant’s marriage had not ended in divorce, annulment or death so according to the law of California, he has a valid marriage. The DFAS and the Army must recognize state law as the authority for determining validity of marriages.  The applicant was able to have the remaining debt remitted, but the amount of money that has already been collected ($9782.16) cannot be returned to the soldier without the approval of the Board.

7.  A military lawyer states she was on temporary active duty at Fort Campbell and is licensed in California and has practiced Family Law for the last ten years.  She explains that the garnishment of the applicant’s pay was based on the determination by the local pay office that the applicant’s marriage was not valid.  This was due, in part, to a memorandum, dated 7 January 2000, written by a local pay officer.  This memorandum concluded that the applicant was overpaid in entitlements.  The memorandum does not comport with California law.  Thus, the subsequent garnishment action by DFAS was inappropriate and illegal.  She also states that on 29 March 2000 a detailed explanation of California law was provided to DFAS.  It appears this explanation was not understood because DFAS began garnishing the applicant’s pay.  Under California law, there is a strong presumption of validity that attaches to a marriage.  It is also settled military law that state law controls in determining the validity of a marriage.  Though it would appear at first blush that California law is counter-intuitive regarding the validity of certain marriages, there is strong public policy that supports the state of the law.  Bigamy is illegal by statue in California, but this does not automatically render a bigamous marriage invalid.  Although his wife had a prior existing marriage, the second marriage remained valid under California law.  Family Code §310 specifically states that only three things will dissolve a marriage in California.  Those things are death, a judgment of divorce or annulment.  Under California law, the applicant was validly married while he received the entitlements in question.  In California, marriages do not cease to exist automatically by change of circumstance or by independent action except a legal proceeding subsequent to a properly filed petition under Family Code §2250.  In fact, in response to a complaint from his wife, the Inspector General is now insisting that the applicant support his wife as if the marriage were valid.  On behalf of the applicant, she hereby requests that all pay garnished in repayment be refunded to the applicant.

8.  On 13 June 2001, the US Total Army Personnel Command (PERSCOM) informed the applicant’s commander that an application for remission or cancellation of indebtedness was approved in a partial amount of $5,035.63.  Since $9,782.16 of the indebtness was collected prior to the commander’s signature on the application, it cannot be considered for remission or cancellation under the provisions of Army Regulation 600-4, paragraph 1-11b.  It was determined that there are no grounds to remit or cancel the remaining portion of the debt on the basis of injustice or hardship.  The applicant was advised to submit an appeal to the Board.

9.  A DD Form 139 (Pay Adjustment Authorization) dated 8 May 01 reflects that the applicant was overpaid in Basic Allowance for Quarters (BAQ), Variable Housing Allowance (VHA), Basic Allowance for Subsistence (BAS) and Family Separation Housing (FSH) for a total of $16,717.79.

10.  On 29 March 2000, a memorandum for record was prepared announcing the charges against the applicant were withdrawn and dismissed without prejudice to the Government.

11.  DoDFMR 7A Chapter 26 provides, in pertinent part, that if a member’s marriage is void (because of a pre-existing marriage of the spouse, for example) the member has no lawful spouse and is not entitled to BAH as a result of the purported marriage.  When invalidity of the marriage is discovered, no further BAH payments may be made for any period.  The member may retain payments already received if they are validated under section 5005.  When validity of a marriage is questionable, submit the case to DFAS for a determination on validity of the marriage and, if necessary, validation of payments already made.
CONCLUSIONS:

1. After a careful examination of the evidence, it is determined that according to the laws of California the applicant’s marriage to a woman already married was legal, until ruled otherwise by that state.  Therefore he was entitled to all of the entitlements provided to married soldiers to include:  BAQ, VHA, BAS and FSH.  A local finance officer erred in his decision in attempting to determine the validity of the applicant’s marriage and was premature in initiating the garnishment action against him.  His decisions were contrary to the instructions of DoDFMR 7A that instructs that questions of the validity of a marriage must be forwarded to DFAS for a decision and that the member may retain payments already received.  The applicant is entitled to the return of all BAQ, VHA, BAS and FSH collected from him.

2.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by:

a.  showing the individual concerned had no BAQ, VHA, BAS, or FSH reimbursement debt as a matter of law; and 

b.  returning to him any and all funds recouped, or withheld from him, or paid by him regarding the invalidated debt. 

BOARD VOTE:  

___fne___  ___reb__  ___bje___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_________Fred N. Eichorn________
		        CHAIRPERSON

INDEX

CASE ID	AR2001059644	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010418	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	128.12	
2.		
3.		
4.		
5.		
6.