IN THE CASE OF:	  

		BOARD DATE:  3 April 2014

		DOCKET NUMBER:  AR20140003469 


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 extension of his basic allowance for housing (BAH) until 26 June 2014.

2.  He states that his BAH was discontinued before his daughter graduated from college as a full-time student.  He was ordered by the court to pay child support and his pay check was garnished.  He only gives an extra allowance to his daughter if needed.

3.  He provides:

* DD Form 137-6 (Dependency Statement - Full Time Student 21 - 22 Years of Age), dated 2 January 2013
* Certificate of Birth
* Hackensack University Medical Center letter, dated 15 October 2013
* Leave and Earnings Statements (LES)
* Canceled checks
* Divorce Decree
* Numerous emails

CONSIDERATION OF EVIDENCE:

1.  The record shows the applicant is currently a major (MAJ)/O4 serving on active duty in the Regular Army.


2.  On 9 January 2006, the applicant and his spouse divorced.  The Separation and Property Settlement Agreement was listed as part of his divorce and as such, the applicant and his former spouse were directed to comply with the terms of the agreement.  In the agreement the applicant was obligated to support his dependents until they reach the age of 18 years or graduation from college, which ever occurred last.  If the child or children remain at home while attending college, the child support would remain unchanged.  If the child or children did not reside at home and attended college, the child support would be renegotiated.  The settlement agreement listed their three children, but only one child would be 21 years of age at this time. 

3.  In an email, Subject:  Dependency Determination (Applicant), dated 
17 January 2014, the Claims Examiner, Military Pay Operations, Defense Finance and Accounting Service (DFAS), said that he had received the email the applicant submitted on 2 January 2014, in response to his initial email concerning his request to reestablish BAH entitlement for his full-time student over the age of 21.  He said the $788.67 "SUPPORT/COMMUNITY (COMM) DEBT" circled on his LES in his 2 January 2014 submission was not proof of support of his child.  He said DFAS still needed the following items in order to make a determination:

* Current letter from the school registrar's office stating the child was on a full-time basis at an accredited school in pursuit of a degree (Spring 2014)
* Proof of support 
* Copies of bills paid on behalf of his dependent 
* 9/11 GI Bill contributions he made to child

4.  On 23 January 2014, the applicant responded to the Claims Examiner's email. He said he was wondering why his child support was not proof of support for his daughter.  He continued that this was the main child support that was taken from his paycheck and it was court ordered.  He said he was not expected to give more than the child support per month as per court determination.  He also provided:

   a.  A DD Form 137-6, dated 2 January 2013, that shows his youngest child had an average monthly expense of $2,120.00.
    
   b.  A letter from Hackensack University Medical Center, dated 15 October 2013, that shows his daughter was a full-time student at the University pursuing a registered nurse degree with an expected graduation date of 11 June 2014.
   
   c.  LESs for the periods 1 to 31 October 2013 and 1 to 31 December 2013 that show he received BAH in the amount of $2,265.00.  It was listed as basic allowance for quarters with dependent child.  The SUPPORT/COMM DEBT was listed as $788.67.  The LES for the period 1-31 January 2014 shows he received $302.00 for BAH with the remarks of "rate change BAH 1 January 2014."
   
   d.  The three canceled checks show that on 11 January, 1 February, and
22 February 2014 he wrote checks in the amount of $81.00, $100.00, and $150.00 respectively, for a total amount of $331.00 for his daughter.

5.  On 24 January 2014, the Claims Examiner explained that they could not use the $788.67 SUPPORT/COMM DEBT garnishment against the applicant as current proof of support.  He said it was court-ordered child support and under the Department of Defense (DOD) regulation governing the entitlement to BAH it could not be used.  He stated that the back child support was going to his daughter's mother and not the child in the form of a court-ordered garnishment. He further stated that under the regulation the applicant had to show proof of support currently for the child once the child turned 21 years of age.

6.  On 3 February 2014, the applicant's request for BAH on behalf of his full-time student over 21 years of age was denied.  The reason cited was because his contribution to his child was less than 50 percent of her expenses.

7.  The official website of the Defense Travel Management Office defines BAH as a U.S. based allowance prescribed by geographic duty location, pay grade, and dependency status.  There are several types of BAH.  These include BAH with/without dependents and BAH-DIFFERENTIAL (DIFF).  

	a.  BAH with/without dependents is paid to a member with permanent duty within the 50 United States, who is not furnished government housing and is eligible for BAH, based on the member's dependency status at the permanent duty zip code.

	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.  A member is not entitled to BAH-DIFF if the monthly rate of that child support is less than the BAH-DIFF.

8.  Joint Federal Travel Regulations (JFTR) chapter 10 covers housing allowance.

   a.  Paragraph U10100 Part B (Dependency) states that dependency must be determined before a housing allowance is authorized.  After initial approval, the Services must maintain adequate levels of internal audit to assure the legality, propriety, and correctness of all housing allowance payments.  Annual re-determination of dependency is required, in pertinent part, for a member who claims a housing allowance for students 21 and 22 years of age.

	b.  Paragraph U10106 (Dependent Support) states when a member is divorced from a nonmember, and they share joint legal custody of a child, and the ex-spouse is awarded primary physical custody, then the member is a non-custodial parent for housing allowance purposes.  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 only authorized a housing allowance at the without-dependents rate.

	c.  Paragraph U10108 (Secondary Dependents) states, in pertinent part, that an unmarried child over age 21 and under age 23 (full time in college) requires an in-fact dependency in accordance with Service regulations.  The child must be dependent upon the member for over one-half of the child's support.  This means the child’s income, not counting the member's contributions, must be less than one-half of the child’s living expenses, and the member's contribution must be more than one-half of the child’s monthly living expenses. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his BAH should be extended until 26 June 2014, when his 21-year old daughter graduates from college. 

2.  The evidence of record shows that $788.67 monthly is being deducted from his pay on his LESs as SUPPORT/COMM DEBT.  DFAS identified this debt as back child support which was being paid to his daughter's mother and not the child in the form of a court-ordered garnishment.  

3.  Based on the evidence provided, it appears that the applicant contributed $331.00 toward his daughter's expenses of $2,120.00.  As cited above, in order to be eligible for BAH at the with-dependent rate for a child, the applicant must show that his contributions to his child are more than 50 percent of her expenses.  He has failed to provide evidence to substantiate this requirement. 

4.  In view of the above, there is an insufficient basis on which to grant relief in this case.


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)                                         AR20140003469





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ABCMR Record of Proceedings (cont)                                         AR20140003469



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