MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:  27 April 2000
	DOCKET NUMBER:   AR1999031835

	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. Theodore G. Heartley		Analyst	

  The following members, a quorum, were present:

	Ms. Elizabeth Buchanon		Chairperson	
	Mr. Kenneth L. Wright		Member	
	Mr. Thomas A. Pagan		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:  Remission or cancellation of his indebtedness in the amount of $58,944.14.

APPLICANT STATES:  In effect, that he was legally married at the time and therefore entitled to receive basic allowance for quarters (BAQ), variable housing allowance (VHA), and family separation housing (FSH) (formerly known as family separation allowance or FSA) since he was authorized to live off-post and did not occupy government housing.  He further states that his request was not even considered by U.S. Total Army Personnel Command (DA PERSCOM) because his commander did not sign his application in a timely manner. 

In support of his request, he submitted DA Form 3508-R, Application for Remission or Cancellation of Indebtedness; chain of command recommendations; a sworn statement; two noncommissioned officer letters of support; a copy of DA Form 5960, Authorization to Start, Stop, or Change BAQ and /or VHA; a copy of a divorce decree; a copy of a leave and earning statement (LES) for 1 August-31 August 1999; a memorandum from a legal assistance attorney dated 6 September 1999; a memorandum from Fort Gordon, Georgia, Office of the Staff Judge Advocate (SJA), Chief, Legal Assistance Division, dated 14 May 1999; a copy of an extract of Army Regulation (AR) 608-99, paragraph 2.3.A.;and a copy of a DA PERSCOM memorandum dated 4 November 1998.

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

He initially enlisted in the Regular Army (RA) in the rank of private first class on 17 February 1987, for training and duty in military occupational specialty 75B.  His enlistment documents indicate that he was married at the time however, he and his spouse were residing at different residence addresses in Huntsville, Alabama. He is currently serving on active duty in the RA at Fort Gordon and holds the rank of staff sergeant.  The expiration of his current term of service (ETS) is 28 March 2002.

His available records indicate that his permanent duty assignments included Fort Lewis, Washington from July 1987 to November 1991; Korea from November 1991 to February 1993; Fort Hood, Texas from February 1993 to January 1997; Korea from February 1997 to February 1998; and his present assignment at Fort Gordon since March 1998.  

A divorce decree issued in Madison County, Alabama indicated that he was divorced from his spouse on 7 September 1995.

DA Form 5960 indicates that on 9 April 1998, at Fort Gordon, he initiated action to terminate partial BAQ.  The form indicated that he was divorced on 7 September 1995.

A Criminal Investigation Division (CID) Final Supplement Report of Investigation (ROI) dated 5 June 1998, indicated that he was the subject of a criminal investigation, involving larceny, sodomy, false official statements, making and presenting a false claim, wrongful cohabitation, adultery, and indecent acts with a child. 

The ROI stated, in effect and in pertinent part, that the investigation, which began in January 1998 at Fort Lewis, established probable cause to believe that between 1 January 1991 and 7 September 1995, he committed the offenses of wrongful cohabitation and adultery by living as man and wife with another woman in an off-post residence at Fort Hood while still married.  The ROI further stated, in pertinent part, that the investigation established probable cause to believe that between 19 February 1987 and 31 March 1998, he committed the offenses of larceny of government funds, false official statements, and making and presenting a false claim, when he submitted documents and received BAQ, VHA, and FSH in the amount of $58,776.51 for which he failed to provide to his spouse and family.  The ROI stated that during an interview with his spouse on 17 February 1998, she stated that she married the applicant on 8 April 1983, prior to his entry in the RA; that she had not seen him since their separation in 1987; that she was not aware that he entered RA service nor was she receiving any military benefits; and that she filed for divorce, paid for the proceedings, and was unaware if he knew of the divorce proceedings since she was unable to locate him.  The ROI also stated that on 17 April 1998, he waived his legal rights and provided a sworn statement wherein he admitted to committing the offenses of larceny and false official statements when he received BAQ, VHA, and FSA and did not intend to provide these entitlements to his spouse.  He further admitted that he initiated the documentation for these entitlements at three duty stations.  The ROI indicated that the findings were coordinated with the local staff judge advocate and that the report of commander’s action was pending.  The Board noted that a copy of his sworn statement that allegedly accompanied the ROI was not available in his records. 

The staff of Board learned by telephonic report from his chain of command confirmed telephonically by the originating CID office at Fort Lewis, that in October 1998, non-judicial punishment by field grade Article 15, UCMJ, was imposed against him for misconduct.  His punishment included a 6-month suspended reduction to sergeant, a 6-month suspended forfeiture of 2/3 pay per month, restriction for 45 days, and extra duty for 45 days.  This report also revealed that his unit commander delayed supporting and endorsing his request for remission and cancellation of indebtedness until UCMJ proceedings were completed.  A record of UCMJ proceedings was not contained in his available records.  

DA PERSCOM memorandum dated 4 November 1998, indicated that his application for remission or cancellation of indebtedness, received on 28 October 

1998, and reviewed under the provisions of AR 600-4, paragraph 1-8, was not favorably considered; and that he should apply to the Army Board for Correction of Military Records for further consideration.

DA Form 3508-R, signed by him on 17 May 1999 and by his commander on 6 September 1999, indicated that he applied for the remission or cancellation of a 
debt in the amount of $58, 944.14, made known to him on 18 June 1998, based on hardship and injustice.  His unit commander also prepared a detailed endorsement dated 9 June 1999, which highly recommended approval of his request based on new information obtained from SJA for consideration including (1) his estranged relationship with his spouse while legally married to her from February 1987 to September 1995; (2) his divorce on 8 September 1998, his receipt of a divorce decree for the first time in April 1998, and his prompt action to stop his entitlements after receiving his divorce decree; (3) supporting statements attesting to his actions, in good faith, to stop his entitlements; and (4) his overall potential for retention and good duty performance in past and present assignments as indicated by his official performance records.

His August 1999 LES shows that debt collection was established in the amount of $481.00 per month.

The memoranda of 6 September 1999 and 14 May 1999, from his legal assistance attorneys, essentially argued the matter of his entitlement to BAQ at the without dependent rate versus his entitlement to BAQ at with dependent rate; and the intent of AR 608-99, paragraph 2.3.A, regarding oral support agreements and the Army’s role of non-interference and non-involvement in the administration of these agreements when the soldier and spouse mutually consent to waive support from one another as in this case.  In effect, these memoranda contended that he was at least entitled to partial relief, specifically, the difference between the amount paid on behalf of his spouse and family which he did not provide and the amount he should have received for himself only while authorized to live off-post.

AR 608-99 pertains to DA policy regarding responsibilities and procedures for financial support of family members, child custody, visitation, paternity, and compliance with court orders regarding these and related matters.  Paragraph 2.3.A pertains to oral financial agreements and states, in effect and in pertinent part, that the Army will not be involved in disputes over the terms or enforcement of an oral financial support agreement nor will the Army interfere when such an agreement exists and is being followed.  The provision further states that when a dispute arises, compliance with the provisions of this regulation will apply only either by advising the soldier to provide the agreed-upon amount or if the soldier refuses, directing the soldier to provide a pro rata share of BAQ according to the procedures outlined in paragraph 2.6.  

There was nothing contained in his records or in the evidence submitted by him to show the existence of a written or oral agreement for financial support or that he provided his spouse financial support.  Also, there was nothing contained in his available records to indicate that he was authorized to live off-post at the aforementioned assignment locations and receive BAQ, VHA, and FSH.  Further, there was nothing contained in his available records or in the evidence provided by him to show that he entered into a housing lease or rental agreement at these locations or that he paid for related housing expenses. 

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 request is not supported by the evidence of record or any evidence submitted by him.

2.  The Board concludes that the evidence of record leaves little doubt that he received full compensation for housing allowances based on his marriage and, despite any estrangement, he did not provide the appropriate amount of financial support to his spouse that directly resulted from housing allowance payments to him from 17 February 1987, the date of his entry on active duty to 7 September 1995, the date of his divorce as required by law and all applicable regulations.  

3.  The Board acknowledges that while some merit exists in counsels’ argument that as a matter of interpretation of the regulation governing financial support agreements and the alleged oral mutual agreement to waive financial support, he was alternatively entitled to housing allowances, at the “without dependents” rate, by virtue of his rank and the authority granted to him to live off-post during the period in question, there was no clear, convincing, and compelling evidence to show that he was granted permission to reside off-post at any location by competent authority or that he entered into a lease or rental agreement and paid the associated costs.

4.  In the absence of such evidence that could, possibly, establish a basis from which to reduce his considerable debt burden, the Board finds that the ongoing collection action for the amount of $58, 944.14 as identified in his August 1999 LES is appropriate and should continue.

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

__EB___  __KW___  ___TP__  DENY APPLICATION

						Karl F. Schneider
				     Director, Army Review Boards Agency

INDEX

CASE ID	AR1999031835	
SUFFIX		
RECON		
DATE BOARDED	20000427	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.