RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:  15 April 2004
      DOCKET NUMBER:  AR2003090004


      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.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Ms. Joyce A. Wright               |     |Analyst              |


  The following members, a quorum, were present:

|     |Mr. John N. Slone                 |     |Chairperson          |
|     |Mr. John P. Infante               |     |Member               |
|     |Ms. Regan K. Smith                |     |Member               |

      The applicant and counsel if any, did not appear before the Board.

      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 compensation for Basic Allowance
for Housing (BAH) from 26 February to 8 August 2002.

2.  The applicant states that he was alerted for an emergency 24-hour
permanent change of station (PCS) by order of the United States Army
Special Operations Command (USASOC) for Operation Enduring Freedom (OEF)
and was never assigned quarters.  He also states that as a member of the
160th Special Operations Aviation Regiment (Airborne) at Fort Campbell,
Kentucky, he was immediately assigned to take command of the 160th's SOC
Pacific (SOCPAC) located in Taegu, Korea upon the tragic death of the
current commander supporting OEF in the Philippines.  This directive was
from the USASOC Commander.  He received orders on 25 February 2002 and
PCS'd on 26 February 2002 in less than 24 hours from receipt of official
orders.

3.  The applicant provides copies of his:  PCS orders, dated 25 February
2002 and 22 July 2002; an email from the Office of the Deputy Chief of
Staff, G-1 (ODCS, G-1), dated 19 April 2002; six memorandums; and a copy of
his DA Form 1559 Inspector General (AG) Action Request, dated 12 September
2002.

4.  The applicant provides a letter of explanation about the extenuating
circumstances concerning his compensation for BAH entitlements under
emergency PCS conditions and wartime operations.  He also provided a list
of contacts and a timeline concerning his BAH recovery.

5.  In his letter of explanation, he states that on an average, BAH of
$799.00 was paid to him based on his dependents location.  An average of
$239.83 in OHA was paid to him to reside in the Bamberg, Germany suburbs
due to nonavailability of barracks space.  His basic rent without utilities
was $322.00; however, based on OHA computation, he should have been
authorized $595.24 which was a mere difference of $355.41 in entitlements
not received due to the BAH allowance.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military records show he was commissioned on
31 December 1991, as a second lieutenant (2LT/0-1), with prior military
service.

2.  The applicant provided a copy of PCS orders, dated 25 February 2002,
that show he was reassigned to the SOCPAC in Korea.




3.  The applicant provided a copy of an email from the ODCS, G-1, dated
19 April 2002.  The ODCS, G-1 informed the installation that the applicant
needed to submit a memorandum stating what he was requesting an exception
for and what information was needed to accompany his request for BAH.

4.  On 24 April 2002, the Regimental Commander prepared a memorandum,
Subject:  Exception to Policy for BAH to the ODCSPER.  He concurred with
the applicant's request for exception to policy due to emergency conditions
that caused his PCS that was a direct result of forces supporting OEF.  He
stated that the applicant was given 4 days between notification that he
would be assuming the command of Company E and the execution of his PCS
with return to Fort Campbell in August 2002.

5.  On 25 April 2002, the applicant requested an Exception to Policy for
BAH.  He requested that he maintain his BAH during his emergency PCS move
to Company E, 160th Special Operations Aviation Regiment (SOAR) (A) in
Korea.  He stated that the previous commander was killed supporting OEF-
Philippines on 22 February 2002.  His Regimental Commander notified him
that night that he would assume command of Company E, SOAR (A) Korea.  He
received his PCS orders on 22 February 2002 and cleared post the best that
he could in three hours time.  He departed for Korea the next day and
arrived on 28 February 2002 and assumed command that day.  His change of
command was conducted on 17 August 2002 with orders returning him to his
parent unit at Fort Campbell, Kentucky.  During his departure for Korea he
did not have time to sell his home and continued to make his mortgage
payments while reassigned in support of OEF.  He is now asking
reinstatement of BAH upon his return from Korea.  He will occupy the same
home upon his return to Fort Campbell, Kentucky.

6.  On 4 June 2002, the Chief, Customer Service, informed housing that the
applicant's request was valid and that the determination would be made by
the ODCS, G-1.

7.  On 17 June 2002, the Chief, Housing Division, Fort Campbell, Kentucky
submitted an Exception to Policy for BAH to the ODCS, G-1.  He concurred
with the applicant's request and requested that he be granted an exception
to policy to continue to receive BAH due to mission requirements.

8. On 22 July 2002, orders were published on the applicant with a reporting
date of 9 September 2002 to his parent unit.






9.  On 12 September 2002, the 101st Airborne Division (Air Assault) faxed
the applicant's request to the USASOC IG's office.  On that same day, an IG
Action Request form was prepared.  It stated that the applicant had
prepared a packet justifying his entitlement to BAH and provided all
required documents to the ODCS, G-1.  The ODCS, G-1 stated that there was
legal authority to pay the applicant BAH at Fort Campbell and was seeking
the IG's assistance in resolving his complaint.

10.  In the processing of this case a staff advisory opinion was provided
by the Chief, Compensation and Entitlements Division, Office of the Deputy
Chief of Staff, G-1. The opinion stated that the applicant’s request had
been reviewed.  Title 37, United States Code (USC), Chapter 7, Section 403,
states that a soldier's BAH is based on grade, dependency status, and the
PCS (geographic location) assigned.  Soldiers may be entitled to BAH at
their previous duty location upon a PCS under certain conditions.  A
soldier without dependents may receive BAH at the previous duty location
when the PCS assignment is a no cost/low cost move within the geographical
location of the previous duty station.  Additionally, the law does not
entitle BAH to a single soldier who has performed a PCS and was immediately
assigned to field duty.  The opinion also states that regrettably, there is
no legislative authority to compensate a soldier without dependents an
allowance to maintain a household at a previous duty location.  However, in
the light of the unusual circumstances of the applicant (to include his
return to his previous duty station upon completion of this mission), this
office would support paying BAH.  The applicant's circumstances mirror the
intent of Congress and the BAH statute that allows paying a single Reserve
soldier ordered to participate in a contingency operation.

11.  The applicant was provided a copy of the favorable opinion for
possible comment prior to consideration of this case.  The applicant
responded within the timeframe allotted and concurred on 7 October 2003.

12.  On 31 January 2004, the applicant was placed on the Army of the United
States Retired List, in the rank of major.

13.  Title 37, USC section 403, states that except as otherwise provided by
law, a member of a uniform service who is entitled to basic pay is entitled
to BAH at the monthly rates prescribed under this section or another
provision of law with regard to the applicable component of the BAH.  The
amount of BAH for a member will vary according to the pay grade in which
the member is assigned or distributed for basic pay purposes, the
dependency status, and the geographical location of the member.  Soldiers
without dependents may receive BAH at the previous duty location when the
PCS assignment is a no cost/low cost move



within geographical location of the previous duty station.  Members without
dependents who make a PCS for assignment to a unit conducting field
operations are not entitled to BAH while on that initial field duty unless
the commanding officer of the member certifies that the member was
necessarily required to procure quarters at his own expense.

DISCUSSION AND CONCLUSIONS:

1.  The evidence confirms that the applicant was alerted for an emergency
PCS by his command in support of OEF and was never assigned quarters.  He
was immediately reassigned to take command of SOCPAC in Korea due to the
tragic death of the former commander.

2.  The evidence of record shows that the applicant submitted a request for
an exception to policy for BAH compensation entitlements under emergency
PCS conditions, prior to his reassignment, through the appropriate
channels.  The Chief, Compensation and Entitlements Division, ODCS, G-1
reviewed his request and supported paying him BAH for the period in
question.  Based on the aforementioned regulatory authority, his BAH was
based on grade, dependency status, and the PCS assigned.

3.  Based on the preponderance of evidence, the applicant's case was an
unusual circumstance that mirrored the intent of Congress and the BAH
statute that allowed paying a single Reserve soldier ordered to participate
in a contingency operation.  Therefore, in the interest of equity and
justice, the Board concludes that it would be appropriate at this time to
support payment of BAH at the rate for Fort Campbell, Kentucky for the
applicant for the period 26 February to 8 August 2002.

BOARD VOTE:

__js___  __ji____  ___rs___  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION










BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant
a recommendation for relief.  As a result, the Board recommends that all
Department of the Army records of the individual concerned be corrected, as
an exception to policy, to show that he was entitled to BAH at the rate for
Fort Campbell, Kentucky for the period 26 February to 8 August 2002.




            __John N. Slone__
                    CHAIRPERSON


                                    INDEX

|CASE ID                 |AR203090004                             |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040415                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |295                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |