RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  17 January 2008
	DOCKET NUMBER:  AR20070004224 


	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

Ms. Deyon D. Battle

Analyst

The following members, a quorum, were present:


Mr. Hubert O. Fry, Jr

Chairperson

Mr. John T. Meixell

Member

Mr. Rowland C. Heflin

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 he receive back pay that he believes is owed to him as a result of his daughter's birth.  

2.  The applicant states that his daughter was born on 7 July 1996 and he never received a pay increase for an additional dependent.  He states that he was unable to get his paperwork in order because he was in Bosnia until the expiration of his term of service (ETS).  He states that after his ETS, he attempted to retrieve the back pay that was due to him but he was unsuccessful in finding the correct agency to help him.  He states that he is not sure what he is entitled to financially, but he believes it should be at least $200.00 per month from 7 July 1996 through 11 November 1997.

3.  The applicant provides in support of his application a copy of a Document Reject Slip dated 1 September 1997; a copy of an Acknowledgement of Paternity; a copy of a German Certificate of Birth; a copy of a Payment Demand for Support Payments; copies of confirmation of child support payments from July 1996 through July 1997; a copy of electronic mail that he sent to a United States Senator's office dated 19 July 2006; a copy of a Privacy Release Authorization Form dated 1 August 2006; correspondence from the Senator's office dated
22 August 2006; and copies of his Leave and Earnings Statements (LESs) for the period covering 1 July 1996 through 31 December 1996, 1 January 1997 through 31 January 1997, 1 March 1997 through 31 March 1997, 1 May 1997 through 31 May 1997, 1 July 1997 through 31 July 1997, and 1 September 1997 through 30 September 1997.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  On 12 November 1993, the applicant enlisted in the Army in Kansas City, Missouri, for 4 years, in the pay grade of E-2.  He successfully completed his training as an infantryman.  

3.  The available records indicate that on 5 May 1997, the applicant made a commitment to pay child support from 7 July 1996 to 6 July 2014, as a result of the birth of his child.

4.  The applicant's LESs for the periods covering 1 July 1996 through 31 January 1997, 1 March 1997 through 31 March 1997, 1 May 1997 through 31 May 1997, 1 July 1997 through 31 July 1997, and 1 September 1997 through 30 September 1997 show that he was receiving partial basic allowance for quarters (BAQ); however, he was not receiving BAQ for dependents.

5.  The applicant attempted to have BAQ differential initiated; however, on 1 September 1997, his request was returned because he failed to submit the necessary supporting documents.

6.  The applicant was honorably released from active duty on 11 November 1997, upon completion of his required service.

7.  During the preparation of this ABCMR Record of Proceedings the applicant's final LES was not available for review.

8.  Chapter 26 of the Department of Defense Financial Management Regulation provides for BAQ.  It states, in pertinent part, that a member with dependents who is entitled to basic pay is entitled to BAQ at the rate prescribed for members with dependents when (1) adequate government quarters are not furnished for the member and dependents without payment of rental charge; (2) adequate government quarters are not furnished for the member's dependents, or dependents are prevented by competent authority from occupying such quarters, even through quarters are assigned for the member's occupancy; and (3) dependents are not en route or do not accompany the member to the permanent duty station, or the vicinity thereof, so as to preclude assignment of family quarters.  Under such circumstances, the mere availability of quarters which could have been assigned does not defeat the right of the member to the BAQ for dependents.  Dependency must be approved before entitlement to BAQ is authorized.  After initial approval, the Military Services shall maintain adequate levels of internal audit to assure the legality, propriety, and correctness of all disbursements for BAQ.


DISCUSSION AND CONCLUSIONS:

1.  The applicant has submitted certain copies of his LESs, which indicate that he was not receiving BAQ for dependents.

2.  However, he has not submitted a copy of his final LES and without this document, it is impossible to determine whether he was ever paid BAQ for members with dependents.

3.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__HOF  _   __RCH__  __JTM___  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.




_____Hubert O. Fry, Jr.____
          CHAIRPERSON




INDEX

CASE ID
AR20070004224
SUFFIX

RECON

DATE BOARDED
20080117
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.  283
128.0000/Pay and Allowances
2.  295
128.1200/BAQ/Subsistence Allowance
3.

4.

5.

6.