RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 9 August 2007 DOCKET NUMBER: AR20070003589 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. Ms. Catherine C. Mitrano Director Mr. Michael L. Engle Analyst The following members, a quorum, were present: Mr. Jeffrey C. Redmann Chairperson Ms. Rea M. Nuppenau Member Mr. Dennis J. Phillips Member The Board considered the following evidence: Exhibit A - Application for correction of military records. Exhibit B - Military Personnel Records (including advisory opinion, if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests, in effect, payment of basic allowance for housing (BAH) for the period from 1 January 2006 to his retirement on 31 October 2006; and BAH-Differential (BAH-DIFF) from 7 November 2002 to 31 December 2005. 2. The applicant states that he was divorced on 7 November 2002 and was entitled to these allowances. 3. The applicant provides copies of his leave and earnings statements, retirement orders, officer record brief, and his divorce decree. CONSIDERATION OF EVIDENCE: 1. The applicant, at the time of his application, was retired from active duty in the rank of lieutenant colonel, pay grade 05. 2. On 28 October 1984, the applicant entered on active duty as a second lieutenant and served through a series of assignments and promotions until his retirement on 31 October 2006. He had completed 22 years and 3 days of creditable active duty. 3. On 7 November 2002, the applicant was divorced. Pursuant to the order of the court, the applicant was required to make a child support payment of $1,000.00 per month until the child’s 18th birthday, or until the child quits school. The child was born on 12 October 1988 and was 18 years of age on 12 October 2006. 4. Available leave and earnings statements show that the applicant was paid BAH at the without dependent rate during the period from November 2002 to May 2006. There is no evidence showing that he received BAH-DIFF during the period from 7 November 2002 until 31 December 2005. 5. In the processing of this case an advisory opinion was obtained from the Chief, Compensation and Entitlements Division, Office of the Deputy Chief of Staff, G1, Washington, DC. The opinion provided that the applicant was entitled to receive BAH at the without dependents rate plus BAH-DIFF from the date of his divorce through 31 December 2005; and to receive BAH at the with dependents rate beginning on 1 January 2006. 6. On 24 July 2007, the applicant concurred with the advisory opinion. 7. Department of Defense Financial Management Regulation (DODFMR) provides at paragraph 260406.D.1, that effective 31 December 2005, when a member is divorced from a nonmember, and they share legal custody of a child, and the ex-spouse is awarded primary physical custody, then the member is considered a noncustodial parent for the purpose of entitlement to BAH. If the member’s court-ordered child support is less than the applicable BAH-DIFF rate, and the member is not residing in, or assigned to, government quarters, the member is entitled only to BAH at the without dependents rate. However, members who pay additional support to the ex-spouse having primary custody of the child so that the total child support provided is equal to or more than the BAH-DIFF rate, and who are not assigned to single type government quarters, are entitled to BAH at the with dependents rate. DISCUSSION AND CONCLUSIONS: 1. The evidence clearly shows that the applicant was divorced on 7 November 2002 and that he was required to pay child support in the amount of $1,000.00 per month. 2. The evidence clearly shows that the applicant did not received BAH-DIFF during the period from 7 November 2002 to 31 December 2005; and thereafter only received BAH at the without dependents rate. 3. The DODFMR clearly shows that the applicant was entitled to receive BAH at the without dependents rate and BAH-DIFF between 7 November 2002 and 31 December 2005; and to receive BAH at the with dependents rate commencing on 1 January 2006. 4. In view of the above, the applicant’s request should be granted. BOARD VOTE: __ DJP _ __RMN__ __JCR _ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: a. showing he was entitled to receive BAH at the without dependents rate and BAH-DIFF for the period from 7 November 2002 to 31 December 2005; b. showing he was entitled to receive BAH at the with dependents rate from 1 January 2006 until his retirement on 31 October 2006; and c. auditing his pay records and paying to him any and all monies owed as a result of this correction to his records. __ Jeffrey C. Redmann ____ CHAIRPERSON INDEX CASE ID AR20070003589 SUFFIX RECON DATE BOARDED 20070809 TYPE OF DISCHARGE DATE OF DISCHARGE DISCHARGE AUTHORITY . . . . DISCHARGE REASON BOARD DECISION GRANT REVIEW AUTHORITY ISSUES 1. 128.1200 2. 3. 4. 5. 6.