MEMORANDUM OF CONSIDERATION
IN THE CASE OF:
BOARD DATE: 27 April 2000
DOCKET NUMBER: AR1999031835
I certify that hereinafter is recorded the record of consideration of the Army Board
for Correction of Military Records in the case of the above-named individual.
Mr. Theodore G. Heartley Analyst
The following members, a quorum, were present:
Ms. Elizabeth Buchanon Chairperson
Mr. Kenneth L. Wright Member
Mr. Thomas A. Pagan Member
The Board, established pursuant to authority contained in 10 U.S.C. 1552,
convened at the call of the Chairperson on the above date. In accordance with Army
Regulation 15-185, the application and the available military records pertinent to the
corrective action requested were reviewed to determine whether to authorize a formal
hearing, recommend that the records be corrected without a formal hearing, or to deny
the application without a formal hearing if it is determined that insufficient relevant
evidence has been presented to demonstrate the existence of probable material error
The applicant requests correction of military records as stated in the application
to the Board and as restated herein.
The Board considered the following evidence:
Exhibit A - Application for correction of military
Exhibit B - Military Personnel Records (including
advisory opinion, if any)
ABCMR Memorandum of
APPLICANT REQUESTS: Remission or cancellation of his indebtedness in the
amount of $58,944.14.
APPLICANT STATES: In effect, that he was legally married at the time and
therefore entitled to receive basic allowance for quarters (BAQ), variable housing
allowance (VHA), and family separation housing (FSH) (formerly known as family
separation allowance or FSA) since he was authorized to live off-post and did not
occupy government housing. He further states that his request was not even
considered by U.S. Total Army Personnel Command (DA PERSCOM) because his
commander did not sign his application in a timely manner.
In support of his request, he submitted DA Form 3508-R, Application for
Remission or Cancellation of Indebtedness; chain of command recommendations;
a sworn statement; two noncommissioned officer letters of support; a copy of DA
Form 5960, Authorization to Start, Stop, or Change BAQ and /or VHA; a copy of a
divorce decree; a copy of a leave and earning statement (LES) for 1
August-31 August 1999; a memorandum from a legal assistance attorney dated
6 September 1999; a memorandum from Fort Gordon, Georgia, Office of the Staff
Judge Advocate (SJA), Chief, Legal Assistance Division, dated 14 May 1999; a
copy of an extract of Army Regulation (AR) 608-99, paragraph 2.3.A.;and a copy
of a DA PERSCOM memorandum dated 4 November 1998.
EVIDENCE OF RECORD: The applicant's available military records show:
He initially enlisted in the Regular Army (RA) in the rank of private first class on
17 February 1987, for training and duty in military occupational specialty 75B. His
enlistment documents indicate that he was married at the time however, he and
his spouse were residing at different residence addresses in Huntsville, Alabama.
He is currently serving on active duty in the RA at Fort Gordon and holds the rank
of staff sergeant. The expiration of his current term of service (ETS) is 28 March
His available records indicate that his permanent duty assignments included Fort
Lewis, Washington from July 1987 to November 1991; Korea from November
1991 to February 1993; Fort Hood, Texas from February 1993 to January 1997;
Korea from February 1997 to February 1998; and his present assignment at Fort
Gordon since March 1998.
A divorce decree issued in Madison County, Alabama indicated that he was
divorced from his spouse on 7 September 1995.
DA Form 5960 indicates that on 9 April 1998, at Fort Gordon, he initiated action to
terminate partial BAQ. The form indicated that he was divorced on 7 September
ABCMR Memorandum of
A Criminal Investigation Division (CID) Final Supplement Report of Investigation
(ROI) dated 5 June 1998, indicated that he was the subject of a criminal
investigation, involving larceny, sodomy, false official statements, making and
presenting a false claim, wrongful cohabitation, adultery, and indecent acts with a
The ROI stated, in effect and in pertinent part, that the investigation, which began
in January 1998 at Fort Lewis, established probable cause to believe that between
1 January 1991 and 7 September 1995, he committed the offenses of wrongful
cohabitation and adultery by living as man and wife with another woman in an
off-post residence at Fort Hood while still married. The ROI further stated, in
pertinent part, that the investigation established probable cause to believe that
between 19 February 1987 and 31 March 1998, he committed the offenses of
larceny of government funds, false official statements, and making and presenting
a false claim, when he submitted documents and received BAQ, VHA, and FSH in
the amount of $58,776.51 for which he failed to provide to his spouse and family.
The ROI stated that during an interview with his spouse on 17 February 1998, she
stated that she married the applicant on 8 April 1983, prior to his entry in the RA;
that she had not seen him since their separation in 1987; that she was not aware
that he entered RA service nor was she receiving any military benefits; and that
she filed for divorce, paid for the proceedings, and was unaware if he knew of the
divorce proceedings since she was unable to locate him. The ROI also stated
that on 17 April 1998, he waived his legal rights and provided a sworn statement
wherein he admitted to committing the offenses of larceny and false official
statements when he received BAQ, VHA, and FSA and did not intend to provide
these entitlements to his spouse. He further admitted that he initiated the
documentation for these entitlements at three duty stations. The ROI indicated
that the findings were coordinated with the local staff judge advocate and that the
report of commander’s action was pending. The Board noted that a copy of his
sworn statement that allegedly accompanied the ROI was not available in his
The staff of Board learned by telephonic report from his chain of command
confirmed telephonically by the originating CID office at Fort Lewis, that in October
1998, non-judicial punishment by field grade Article 15, UCMJ, was imposed
against him for misconduct. His punishment included a 6-month suspended
reduction to sergeant, a 6-month suspended forfeiture of 2/3 pay per month,
restriction for 45 days, and extra duty for 45 days. This report also revealed that
his unit commander delayed supporting and endorsing his request for remission
and cancellation of indebtedness until UCMJ proceedings were completed. A
record of UCMJ proceedings was not contained in his available records.
ABCMR Memorandum of
DA PERSCOM memorandum dated 4 November 1998, indicated that his
application for remission or cancellation of indebtedness, received on 28 October
1998, and reviewed under the provisions of AR 600-4, paragraph 1-8, was not
favorably considered; and that he should apply to the Army Board for Correction of
Military Records for further consideration.
DA Form 3508-R, signed by him on 17 May 1999 and by his commander on
6 September 1999, indicated that he applied for the remission or cancellation of a
debt in the amount of $58, 944.14, made known to him on 18 June 1998, based on
hardship and injustice. His unit commander also prepared a detailed
endorsement dated 9 June 1999, which highly recommended approval of his
request based on new information obtained from SJA for consideration including
(1) his estranged relationship with his spouse while legally married to her from
February 1987 to September 1995; (2) his divorce on 8 September 1998, his
receipt of a divorce decree for the first time in April 1998, and his prompt action to
stop his entitlements after receiving his divorce decree; (3) supporting statements
attesting to his actions, in good faith, to stop his entitlements; and (4) his overall
potential for retention and good duty performance in past and present assignments
as indicated by his official performance records.
His August 1999 LES shows that debt collection was established in the amount of
$481.00 per month.
The memoranda of 6 September 1999 and 14 May 1999, from his legal assistance
attorneys, essentially argued the matter of his entitlement to BAQ at the without
dependent rate versus his entitlement to BAQ at with dependent rate; and the
intent of AR 608-99, paragraph 2.3.A, regarding oral support agreements and the
Army’s role of non-interference and non-involvement in the administration of these
agreements when the soldier and spouse mutually consent to waive support from
one another as in this case. In effect, these memoranda contended that he was
at least entitled to partial relief, specifically, the difference between the amount
paid on behalf of his spouse and family which he did not provide and the amount
he should have received for himself only while authorized to live off-post.
AR 608-99 pertains to DA policy regarding responsibilities and procedures for
financial support of family members, child custody, visitation, paternity, and
compliance with court orders regarding these and related matters. Paragraph
2.3.A pertains to oral financial agreements and states, in effect and in pertinent
part, that the Army will not be involved in disputes over the terms or enforcement
of an oral financial support agreement nor will the Army interfere when such an
agreement exists and is being followed. The provision further states that when a
dispute arises, compliance with the provisions of this regulation will apply only
either by advising the soldier to provide the agreed-upon amount or if the soldier
ABCMR Memorandum of
refuses, directing the soldier to provide a pro rata share of BAQ according to the
procedures outlined in paragraph 2.6.
There was nothing contained in his records or in the evidence submitted by him to
show the existence of a written or oral agreement for financial support or that he
provided his spouse financial support. Also, there was nothing contained in his
available records to indicate that he was authorized to live off-post at the
aforementioned assignment locations and receive BAQ, VHA, and FSH. Further,
there was nothing contained in his available records or in the evidence provided by
him to show that he entered into a housing lease or rental agreement at these
locations or that he paid for related housing expenses.
DISCUSSION: Considering all the evidence, allegations, and information
presented by the applicant, together with the evidence of record, applicable law
and regulations, it is concluded:
1. The applicant’s request is not supported by the evidence of record or any
evidence submitted by him.
2. The Board concludes that the evidence of record leaves little doubt that he
received full compensation for housing allowances based on his marriage and,
despite any estrangement, he did not provide the appropriate amount of financial
support to his spouse that directly resulted from housing allowance payments to
him from 17 February 1987, the date of his entry on active duty to 7 September
1995, the date of his divorce as required by law and all applicable regulations.
3. The Board acknowledges that while some merit exists in counsels’ argument
that as a matter of interpretation of the regulation governing financial support
agreements and the alleged oral mutual agreement to waive financial support, he
was alternatively entitled to housing allowances, at the “without dependents” rate,
by virtue of his rank and the authority granted to him to live off-post during the
period in question, there was no clear, convincing, and compelling evidence to
show that he was granted permission to reside off-post at any location by
competent authority or that he entered into a lease or rental agreement and paid
the associated costs.
4. In the absence of such evidence that could, possibly, establish a basis from
which to reduce his considerable debt burden, the Board finds that the ongoing
collection action for the amount of $58, 944.14 as identified in his August 1999
LES is appropriate and should continue.
5. In order to justify correction of a military record, the applicant must show to the
satisfaction of the Board, or it must otherwise satisfactorily appear, that the record
ABCMR Memorandum of
is in error or unjust. The applicant has failed to submit evidence that would satisfy
the aforementioned requirement.
6. In view of the foregoing, there is no basis for granting the applicant's request.
DETERMINATION: The applicant has failed to submit sufficient relevant
evidence to demonstrate the existence of probable error or injustice.
________ ________ ________ GRANT
________ ________ ________ GRANT FORMAL HEARING
__EB___ __KW___ ___TP__ DENY APPLICATION
Karl F. Schneider
Director, Army Review Boards Agency
ABCMR Memorandum of
CASE ID AR1999031835
DATE BOARDED 20000427
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY AR . . . . .
BOARD DECISION DENY