RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        13 September 2005
      DOCKET NUMBER:  AR20040011062


      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             |
|     |Mr. John J. Wendland, Jr.         |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Shirley L. Powell             |     |Chairperson          |
|     |Mr. Robert L. Duecaster           |     |Member               |
|     |Ms. Jeanette R. McCants           |     |Member               |

      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, in effect, allocation of a higher overseas
housing allowance (OHA) and cost of living allowance (COLA).

2.  The applicant states, in effect, that the supporting finance office
entered incorrect data into the Defense Finance Accounting Service, which
resulted in payment of lower OHA and COLA rates than were actually due.

3.  The applicant provides copies of his DD Form 2367 (Individual Overseas
Housing Allowance (OHA) Report), dated 9 January 2003, and his lease
agreement (written in Germany), dated 31 July 2002.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on
1 September 2002, the effective date of his entitlement to OHA and COLA.
The application submitted in this case is dated 16 August 2004.

2.  The applicant's military personnel records show that, on 28 May 1980,
he was appointed as a second lieutenant in the Regular Army at West Point,
New York.  During the course of his military career, the applicant achieved
the rank of lieutenant colonel, served honorably, and retired from active
duty, effective
1 October 2004.

3.  The applicant provides a copy of his request for OHA and lease
agreement in support of his application. These documents show that the
applicant entered into a lease for housing in Muenster (NRW), Germany,
effective 1 September 2002.  He submitted an OHA request and his
entitlement to OHA was approved by the Housing Officer of the local Housing
Referral Office on 9 January 2003.

4.  A review of the applicant's records show that, during this time period,
he was assigned as Chief, Current Deep Operations of the North Atlantic
Treaty Organization (NATO) High Readiness German-Netherlands Corps,
Muenster, Germany.






5.  In the processing of this case, an advisory opinion was obtained from
the Compensation and Entitlements Division, Office of the Deputy Chief of
Staff G-1, Washington, DC, dated 1 March 2005, which states that the
applicant’s claim for OHA at the Muenster Hessen (H) rate is warranted from
the date on the lease, which was 1 September 2002, through 15 December
2003.  The opinion states that, "This authorization will enable the
supporting finance office to correct the injustice described below".  The
opinion furthers states that ,"No action is required by the ABCMR to
address cost of living allowance (COLA) because payment of COLA at the
proper "other NRW" rate from date of arrival thru
15 December 2003 has already been made".

6.  The advisory opinion also offers that the Joint Federal Travel
Regulation (JFTR) prescribes rates for COLA and OHA.  The per diem
committee manages these rates.  Based on previous comptroller general
decisions, the per diem committee cannot retroactively prescribe rates for
COLA and OHA.

7.  On 7 March 2005, this agency referred the advisory opinion to the
applicant for his review and comments within 15 days of the date of the
letter; however, the applicant failed to respond.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his supporting finance office
input data into the system that identified incorrect location codes for his
entitlement to OHA and COLA.  He asserts that the average finance clerk is
not knowledgeable about the complex geo-political linkage issues associated
with OHA and COLA in Germany.  He contends, in effect, that allocation of
higher OHA and COLA rates, from the date of his arrival through 30 November
2003, will correct this injustice.

2.  Evidence of record shows that the applicant arrived in "Muenster NRW"
on
7 August 2002 and entered into a lease on 1 September 2002.  At that time,
there was no specific rate for COLA or OHA at "Muenster NRW".  The
appropriate rate of COLA and OHA at that time was the "other NRW" rate.
However, the applicant's supporting finance office incorrectly input
transactional data at the "Muenster H" rate.  The "Muenster H" OHA rate was
higher than the "other NRW" OHA rate.  Since finance paid the applicant a
higher "Muenster H" OHA rate, he based his lease on the higher "Muenster H"
OHA rate.  When the error was corrected and finance began paying the
applicant the lower (correct) "other NRW" rate, the applicant found himself
in an adverse financial situation through no fault of his own because he
obligated himself to a lease based on the higher "Muenster H" rate that he
believed proper at the time.

3.  The advisory opinion shows that, on 16 December 2003, the per diem
committee established a specific COLA and OHA rate for "Muenster NRW".
This new rate matched the "Muenster H" rate for OHA.  However, as the
advisory opinion states, the per diem committee cannot establish rates
retroactively and no authorization is available at the higher "Muenster H"
rate for OHA during the period of the applicant's lease.

4.  The evidence of record confirms the applicant was originally authorized
to receive OHA at a higher rate than actually authorized due to an
administrative error on the part of his local finance office.  Further, the
evidence confirms that higher rate was ultimately authorized for the
applicant's area by the Per Diem committee on 16 December 2003.  In view of
the facts of this case, it would be appropriate to correct the applicant's
record to show he was authorized a higher OHA rate from the date of his
lease, which was 1 September 2002, through
15 December 2003.

5.  As stated in the advisory opinion, no action is required to address the
applicant's COLA because payment of COLA at the proper "other NRW" rate has
already been made.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

__SLP __  ___RLD _  __JRM___  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation of partial relief.  As a result, the Board
recommends that all Department of the Army records of the individual
concerned be corrected by showing he was authorized the higher OHA rate,
effective the date he entered into his lease, on 1 September 2002, through
15 December 2003, and by reimbursing him any OHA overpayment that may have
already been collected.




2.  The Board further determined that the evidence presented is
insufficient to warrant a portion of the requested relief.  As a result,
the Board recommends denial of so much of the application that pertains to
payment of a higher rate of COLA to the applicant.




                                  _____Shirley L. Powell________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040011062                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050913                                |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |20040930                                |
|DISCHARGE AUTHORITY     |AR 635-100                              |
|DISCHARGE REASON        |Retirement                              |
|BOARD DECISION          |GRANT PARTIAL                           |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |128.1400.0000                           |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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