RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        22 March 2005
      DOCKET NUMBER:  AR20040002718


      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. Robert J. McGowan             |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Thomas D. Howard, Jr.         |     |Chairperson          |
|     |Mr. Robert J. Osborn, II          |     |Member               |
|     |Mr. James B. Gunlicks             |     |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 that his debt to the Government be cancelled.

2.  The applicant states, in effect, that he was married and was receiving
basic allowance for housing (BAH) at the with dependents rate.  He was
transferred to Korea on an unaccompanied tour.  His wife indicated that she
was contemplating divorce, but unbeknownst to him, she filed and the
divorce was granted on 27 December 2002.  He did not learn of the divorce
until he returned from Korea and reported to his new duty station at Fort
Bliss, Texas on 15 June 2003.  The Finance Office established a debt for
BAH overpayment.

3.  The applicant states, in effect, that he was misled by his ex-wife who
defrauded the Government by accepting BAH payments from him from January to
June 2003 while knowing that she was not married to him.  He cites the
hardship this debt places upon him and asks that it be cancelled or
reduced.

3.  The applicant provides:

      a.  A 2-page chronology of events.

      b.  A 2-page itemization of his financial status.

      c.  A PayPal account summary showing that he made payments of $3,060
to his ex-wife from January-May 2003.

      d.  A copy of his signed Final Decree of Divorce issued by the
District Court of Tarrant County, Texas 27 December 2002.  Also included
with this item is a US Postal Service Priority Mail envelop with a mailing
date of 5 June 2003.

      e.  A copy of his Leave and Earning Statement (LES) for the period
1-31 May 2004 showing net pay and debt repayment activity.

      f.  A copy of a memorandum of support from a former supervisor during
his tour of duty in Korea.

      g.  Copies of documents showing his indebtedness for automobile
insurance, rent, installment loans, bank statements, etc..

CONSIDERATION OF EVIDENCE:

1.  The applicant is an active duty Sergeant (SGT/E-5) with more than 8
years of service.  On an unknown date following his initial enlistment in
October 1996, he  married.

2.  In June 2002, the applicant was transferred to Korea on a 12-month
unaccompanied tour of duty.  He returned from Korea in June 2003 and was
assigned to Fort Bliss, Texas.

3.  According to the documents submitted by the applicant, his wife
notified him that she was seeking a divorce.  He agreed to the divorce and
she sent him legal documents to sign and return to her.  One of these
documents was the Final Decree of Divorce which the applicant signed and
returned.  His wife then filed the petition and the divorce was granted on
27 December 2002.

4.  Also according to the documents submitted by the applicant, he learned
that his divorce had been granted when he received the signed decree from
his ex-wife.  The document was mailed from College Station, Texas on 5 June
2003 and addressed to the applicant at an El Paso, Texas address.  Prior to
receipt of this document, he believed he was still married.

5.  When he processed-in to his new unit at Fort Bliss, he informed the
Finance Office of his divorce and provided a copy of the decree.  The
Finance Office informed him that he was not entitled to BAH at the with
dependents rate from 27 December 2002 to present and established a debt for
overpayment of BAH.

6.  The applicant submitted a request through command channels to the US
Army Human Resources Command (HRC) – Alexandria, Virginia seeking remission
or cancellation of a debt in the amount of $4,449.74.  The request was
disapproved on 12 December 2003.

DISCUSSION AND CONCLUSIONS:

1.  The applicant has exhausted all avenues of administrative remedy in
this matter.  The matter is now correctly before this Board.

2.  The applicant contends that his debt is unjust because he did not know
that he was divorced until June 2003 and he immediately notified his
servicing Finance Office.  He believes the debt to be unjust and should be
cancelled or reduced by the amount of money that he sent to his "wife" from
27 December 2002 through May 2003.
3.  The applicant was aware of the fact that his wife was actively seeking
a divorce, not merely contemplating one.  She sent him legal documents,
including the Final Decree of Divorce, which he signed and returned.  He,
therefore, should have known that his wife was proceeding with her plan to
divorce.

4.  The applicant's argument that he did not know that he was divorced
until June 2003 is not persuasive.  The applicant signed the Final Decree
of Divorce.  The decree stated that a minimum of 60 days must elapse
between the filing of the petition for divorce and the court's issuance of
the final decree.  That means that, given the mailing time associated with
sending the documents to and from Korea, the applicant probably signed the
Final Decree of Divorce in late September or early October 2002.  With the
court-imposed 60-day time lapse, the divorce would become final in December
2002 if the pertition were filed in October 2002. It was incumbent upon the
applicant to stay on top of the situation in order to determine the final
result.

5.  As a noncommissioned officer (NCO) with several years of active service
behind him, he knew, or should have known, that his receipt of BAH at the
with dependent rate was contingent upon his being married.  He should have
alerted his servicing Finance Office in Korea that his marital status was
about to change. He certainly should not have continued to sit back and
accept his married BAH for 6 months after the divorce given the tenuous
status of his marriage.  His defense of ignorance may be acceptable for a
Private new to the ways of the Army, but not for a seasoned NCO.  It was
his responsibility to know what was going on.

6.  The applicant, if his wife was not forthcoming regarding their marital
status, could have contacted via mail, email, or the Internet, the Tarrant
County Family Court to inquire as to the status of the case.  He was not
solely dependent upon his wife for such information.  The Clerk of the
Court could have assisted him with determining the status of the petition.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__tdh___  __rjo___  __jbg___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis for correction of the
records of the individual concerned.




                                        Thomas D. Howard, Jr.
                                  ______________________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040002718                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050322                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |128.1000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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