BAH fraud theories impacted by the same-sex marriage case!

The SMARTEST thing anyone suspect in a criminal investigation can do is keep his or her mouth shut.  Don’t say anything.  Don’t try to explain how it’s just a big misunderstanding.  And most importantly, don’t ever, ever admit to anything that constitutes an admission or a crime.

Some smart JAG with the Army’s appellate defense division recently challenged a BAH fraud conviction based on a sham marriage theory using the Supreme Court cases that permitted same-sex marriage.  The argument was, basically, that the military can’t define marriage and because the accused had a valid marriage certificate, there was a constitutional violation when he was convicted.

As background, BAH stands for Basic Allowance for Housing –it’s a tax free allowance added to each pay check calculated based on pay grade and geographic location.  It also increases if you have a dependent.  Generally, junior Soldiers, Airman, Marines, and Sailors aren’t entitled to BAH – they have to live in the barracks or on the ship.  There is one caveat – if the junior servicemember is married, he or she is entitled to BAH and can normally co-habitate with the spouse.

A “sham marriage” is marriage for the purpose of obtaining a government benefit.  Sometimes the benefit is immigration status, and sometimes it’s for additional government benefits, like BAH.  The key to a “sham marriage” is that the marriage is for the sole purpose of perpetrating a fraud to obtain something that one would not otherwise be entitled to.

In United States v. Windham, a Specialist (E-4) pleaded guilty at Special Court-Martial to several charges, including a specification that committed larceny when he entered into a sham marriage for sole purpose of obtaining BAH at the dependent (higher) rate.  On appeal, Windham asserted that the Supreme Court’s decision in United States v. Windsor (the same-sex marriage case), requires the federal government to recognize his marriage because he had a valid Texas marriage certificate.  The problem for Windham was that he told the military judge during his plea colloquy that he married for the SOLE PURPOSE of obtaining BAH.  The appellate court upheld the conviction based on those statements.

This case raises an interesting issue for the defense in future BAH fraud cases.  It seems so long as the “sole purpose” of the marriage was not to obtain BAH, meaning maybe they liked holding themselves out as married a couple even though they weren’t in love, or had some plutonic relationship they wanted to consummate by marriage – whatever the alternate reason may be – it may be valid defense.

This is why it’s some important to not make any statements and seek the assistance of an experienced military defense attorney before making any statements.  Because words matter and valid defenses may be just around the corner.

So stay quiet and get a good lawyer!

Attorney and Navy JAG Veteran Patrick Korody was certified as a Specialist in Military Justice Litigation by the Judge Advocate General of the Navy.  He has a law practice in Jacksonville, FL and handles cases worldwide.  He offers a free consultation and can be reached at 904.383.7261.


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