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 childs 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 members 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 applicants 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.
ARMY | BCMR | CY2009 | 20090008034
Soldiers who volunteer to remain on active duty beyond the 24-month [730 days] mobilization authorized under the involuntary provisions of Title 10, U.S. Code, section 12302, and to serve under the provisions of Title 10, U.S. Code, section 12301(d), on an extended tour up to 12 additional months or to be reassigned to another unit upon completion of 12 months of BOG in Iraq, Afghanistan, or certain theater units for up to 12 additional months are eligible for voluntary AIP. The evidence...
CG | BCMR | Other Cases | 2009-102
The PPC addressed the applicant’s claim for BAH-with but stated that his request for court costs and for compensation for pain and suffering “are beyond the scope of this memo.” The PPC stated that when two members divorce, the custodial parent receives BAH-with even if he or she receives child support from the other member, and the non-custodial member is only entitled to BAH-with “if otherwise qualified.” However, “if the custodial parent agrees in a notarized writing, the non-custodial...
ARMY | BCMR | CY2004 | 20040007904C070208
He was told by field grade officer(s) at the Camp Doha, Kuwait FSO (Financial Service Office) he was entitled to BAH-S. c. Finance officers could not agree on the proper interpretation of pay and allowances regulations as they applied to divorced Soldiers and the issue of dependents. The applicant provides: a. The applicant believes because he has a dependent child and pays court- ordered child support to his ex-wife, he should have been entitled to BAH-S while occupying Government...
CG | BCMR | Other Cases | 2005-012
Pursuant to the divorce decree, the applicant was awarded physical custody of the minor child, and the mother was ordered to pay the applicant child support of $125 per month. (2) A member of a uniformed service with dependents is not entitled to a basic allowance for housing as a member with dependents unless the member makes a certification to the Secretary concerned indicating the status of each dependent of the member. The applicant argued that his record should be corrected to...
ARMY | BCMR | CY2011 | 20110013839
His pay records at DFAS show he received BAH at the with dependent rate as follows: * 2007 $954.70 * 2008 $1,058.70 * 2009 $1,138.70 11. Single members who are authorized to reside off base at government expense who pay child support are entitled to the full, with-dependent rate housing allowance. Although single members who are authorized to reside off base at government expense and who pay child support are entitled to the full, with-dependent rate housing allowance, the applicant in...
ARMY | BCMR | CY2008 | 20080008576
Application for correction of military records (with supporting documents provided, if any). At the time of his enlistment in the NCARNG, the applicant reported he was divorced, had no dependents, and there was no court order or judgment in effect that directed him to provide alimony or support for children. The evidence shows that the applicant was separated from his family before he enlisted in the NCARNG.
ARMY | BCMR | CY2014 | 20140003469
b. BAH-DIFF is the housing allowance amount for a member who is assigned to single-type quarters and who is authorized a basic allowance for housing solely by reason of the member's payment of child support. The child must be dependent upon the member for over one-half of the child's support. The evidence of record shows that $788.67 monthly is being deducted from his pay on his LESs as SUPPORT/COMM DEBT.
ARMY | BCMR | CY2014 | 20140003538
Even though they were married, her spouse continued to receive basic allowance for housing differential (BAH-Diff) based on court-ordered child support and she was told by her unit S-1 that she was entitled to receive BAH with dependents. She provides: * Self-authored statement * Final Decree of Divorce * Spouse's Judgment Summary, dated 15 May 2003 * Applicant's and spouse's Master Military Pay Account (MMPA) * Memoranda, Subject: Outstanding Debt for Overpayment of BAH, dated 4 November...
ARMY | BCMR | CY2011 | 20110019796
Application for correction of military records (with supporting documents provided, if any). The applicant states that upon enlistment in the Army in May 1999, he was under a court order to provide support to his dependent son. In the absence of additional evidence that conclusively shows he was paying adequate child support, his child was enrolled in DEERS, and the periods and grades for the period shown on his DD Form 214 that show he was not married to another Soldier receiving the...
ARMY | BCMR | CY2015 | 20150011111
Application for correction of military records (with supporting documents provided, if any). The applicant states: * the document is not current or valid and should not be filed in his records * the document was revoked the same month it was drafted under the guidance of his civilian counsel * the document contains the social security number of his ex-wife, then a second lieutenant (2LT) and now identified by the applicant as First Lieutenant (1LT) A____ M. A____ * his ex-wife has attempted...