IN THE CASE OF:	  

		BOARD DATE:	  18 February 2009

		DOCKET NUMBER:  AR20080008576 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that he be paid basic allowances for housing (BAH) and family separation allowances (FSA) plus accrued interest and punitive damages.

2.  The applicant states, in effect, that he was "misrepresented" at the time of his enlistment.  He enlisted as single without dependents.  He was denied BAH and FSA during his initial active duty for training period for basic combat and advanced individual training.

3.  The applicant adds that he had qualifying dependents, three natural children, at the time of his enlistment on 12 May 2005.  He was divorced from his spouse in December 2003 and at the time of his enlistment he was providing his children support.  He had provided support to his children from the date he and his wife separated and it was provided based on a voluntary agreement with his former spouse.

4.  The applicant further adds that a formal court order was established preceding his deployment to Iraq so that support could be issued by payroll deduction.  At the time of his processing, his records were updated to reflect his children and their dependency status; therefore, he should now be paid all compensation, allotments, entitlements, interest, and/or penalties due him.

5.  In support of his request, the applicant submitted copies of his DD Forms   214 (Certificate of Release or Discharge from Active Duty) for the period 15 June 2005 through 6 October 2005 and for the period 9 March 2006 through 31 May 2007; six printed pages from the Master Military Pay Account (MMPA) record; a copy of a Separation Agreement and Property Settlement, dated 12 September 2003; a divorce Summary Judgment, dated 8 December 2003; a copy of three miscellaneous orders; and a copy of a Voluntary Support Agreement and Order, showing the dates 8 February and 1 March 2006.

CONSIDERATION OF EVIDENCE:

1.  On 12 May 2005, the applicant applied for enlistment in the North Carolina Army National Guard (NCARNG).  In conjunction with this application, he completed a DD Form 1966 (Record of Military Proceedings - Armed Forces of the United States).  To item 8 (Marital Status) and item 9 (Number of Dependents), he responded, "Divorced" and "0," respectively.  To questions in item 23 (Marital/Dependency Status and Family Data), the applicant responded in the negative.  Question 23a reads as follows:  Is anyone dependent upon you for support?  Question 23b reads as follows:  Is there any court order or judgment in effect that directs you to provide alimony or support for children?

2.  The applicant placed his signature in the appropriate space in Section IV (Certification) immediately following the statement:  "I certify that the information given by me is true, complete, and correct to the best of my knowledge and belief.  I understand that I am being accepted for enlistment based on the information provided by me in this document; that if any of the information is knowingly false or incorrect, I could be tried in a civilian or military court and could receive a less than honorable discharge which could affect my future employment opportunities."

3.  The applicant's DD Form 4 (Enlistment/Reenlistment Document - Armed Forces of the United States) shows he enlisted in the NCARNG for 8 years on the same date, 12 May 2005.

4.  The evidence shows the applicant underwent his initial active duty for training during the period 15 June 2005 through 6 October 2005.  At the completion of his active duty for training, the applicant was returned to his NCARNG unit in Asheboro, North Carolina.

5.  The applicant submitted six printed pages from the MMPA records.  These MMPA records covered the periods of his service from July through December 
2005.  The number of dependents reflected on these MMPA records is zero.

6.  On 8 February 2006, the applicant signed a Voluntary Support Agreement and Order acknowledging that he was the parent of the children listed on the agreement and that he had a legal duty to support his children.  He stated that he understood that the agreement he was entering into was in lieu of or in conclusion of legal proceedings instituted to establish support, and that he was entering into the agreement voluntarily, without coercion, and of his own free will.  The Voluntary Support Agreement and Order was approved by the court on 1 March 2006.

7.  On 9 March 2006, the applicant was ordered to active duty in support of Operation Iraqi Freedom.  The applicant served in Kuwait and in Iraq for the period 11 May 2006 through 29 April 2007.  He was returned from Iraq and was honorably released from active duty on 31 May 2007.  The applicant was returned to his NCARNG unit to resume his National Guard service.

8.  In the processing of this case, an advisory opinion was requested from the Office of the Deputy Chief of Staff, G-1, Compensation and Entitlements Division, Washington, DC.  On 24 October 2008, the Chief, Compensation and Entitlements Division, stated that after careful review of the applicant's case, it was his opinion that although the applicant was providing support to his children, without documentation showing proof of support and the amount he was paying, he was not authorized BAH differential (BAH-DIFF).  In order for a Soldier to qualify for payment of BAH-DIFF, he or she must pay at least the amount equal to BAH-DIFF in child support.  The Chief, Compensation and Entitlements Division, also noted that there was no legislative authority to pay the applicant FSA since he was already separated and divorced from his spouse at the time he attended his basic combat and advanced individual training courses.

9.  A copy of the advisory opinion was provided to the applicant for his acknowledgement and/or rebuttal on 30 October 2008.  The applicant did not respond to the advisory opinion.

10.  With his request for correction of his record, the applicant submitted a copies of his Separation Agreement and Property Settlement and divorce Summary Judgment.  This document contains no provisions for the payment of alimony to his former spouse or support for children.  The Summary Judgment does acknowledge that three children were born of the marriage and that custody of the children was awarded to the applicant's former spouse.

11.  The Department of Defense Financial Management Regulation (DODFMR) states that FSA is payable only to members with dependents.  FSA is payable in addition to any other allowance or per diem to which a member may be entitled.  The term "dependents" as defined in the DODFMR includes a Soldier's spouse or children.

12.  The BAH is a monetary allowance based on geographic duty location, pay grade, and dependency status.  The intent of BAH is to provide uniformed service members with permanent duty within the 50 United States accurate and equitable housing compensation based on housing costs in local civilian housing markets, and is payable when government quarters are not provided.

DISCUSSION AND CONCLUSIONS:

1.  The applicant alleges that he was denied BAH and FSA while he was undergoing basic combat and advanced individual training; however, the applicant did not provide any documentary evidence that a request for these allowances was denied.

2.  The applicant alleges that he was "misrepresented" at the time of his enlistment and was enlisted as single without dependents; however, the information recorded on enlistment documents was provided to the recruiter by the applicant himself.  To questions on the applicant's DD Form 1966 specifically about his martial and dependency/family data, he unequivocally responded he was divorced and had no dependents.  These responses were given by the applicant with his full knowledge and understanding he could be tried in a civilian or military court and could receive a less than honorable discharge if he knowingly provided false or incorrect information.  The applicant has not provided any compelling evidence he was misrepresented at the time of his enlistment.  The information recorded on his enlistment documents could not have been known unless he provided it to his recruiter himself.

3.  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.  Based on this declaration, the applicant was enlisted into the NCARNG.  At the time the applicant underwent his basic combat and advanced individual training, his MMPA was coded to correspond with his claims of dependency and family structure.  The MMPA records show he had zero dependents.

4.  With his request to this Board, the applicant provided a copy of a summary judgment which shows he was divorced and has three children.  The circumstances by which and when this document was made available to military officials is not known.  It should, however, be noted that this summary judgment does not address alimony payment nor support for his three children.  The applicant alleges he was providing his children support and had been providing this support from the date he and his wife separated based on a voluntary agreement he had with his former spouse; however, he provided no substantive evidence to show he was providing child support for the three children.

5.  Although the applicant alleges he was providing support to his children, without compelling evidence he was providing this support and the amount he was paying, he is not authorized BAH.

6.  The evidence shows that the applicant was separated from his family before he enlisted in the NCARNG.  The Chief, Compensation and Entitlements Division, noted in his advisory opinion there was no legislative authority to pay the applicant FSA since he was already separated and divorced from his spouse at the time he attended his basic combat and advanced individual training courses.

7.  Based on the evidence in this case, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____x___  ____x___  ___x____  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.



      ___________x______________
                 CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080008576



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ABCMR Record of Proceedings (cont)                                         AR20080008576



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