RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            4 May 2004
      DOCKET NUMBER:   AR2004100094


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


  The following members, a quorum, were present:

|     |Mr. Stanley Kelley                |     |Chairperson          |
|     |Mr. Joe R. Schroeder              |     |Member               |
|     |Mr. William D. Powers             |     |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 his basic allowance for housing (BAH) while
assigned to the Army War College (AWC) be adjusted to be consistent with
that paid to Navy and Air Force students at the AWC.

2.  The applicant states that when he made a permanent change of station
(PCS) move to the AWC at Carlisle Barracks, PA in July 2002, he elected to
leave his family in Springfield, VA where they had been living prior to his
receiving his AWC PCS orders.  As it would be a short duration PCS of less
than 12 months, allowing them to remain in Virginia was in the best
interest of their family.

3.  The applicant states that upon arrival at the AWC he learned that
fellow Navy and Air Force students who had also elected to leave their
families in the Washington, D.C. area were authorized by their respective
services to retain BAH at the higher rate based on their family's location,
not their present duty station.  Army officers attending the AWC received
BAH based on their new duty location regardless of where their families
resided.

4.  The applicant states that extensive research by the affected Army AWC
students concluded that Title 37, U. S. Code, section 403 grants the
Service Secretary the authority to grant BAH waivers for two general
categories:  (1) when duty at the member's permanent duty station (PDS), or
the circumstances of assignment to the PDS, require the member's dependents
to reside at a different location, and (2) the member is assigned to a PDS
under conditions of a low/no cost move.  However, the Services and their
respective legal counsels interpret the section differently, resulting in
entitlement differences among military Services personnel assigned to the
same duty stations for periods of short duration.  This difference in
interpretation resulted in lower BAH paid to Army officers than to Air
Force and Navy students assigned as AWC students whose family members
resided in the Washington, D.C. area.

5.  The applicant states that in June 2001 the Office of the Secretary of
Defense (OSD) BAH Working Group reached consensus on the payment of BAH for
PCS personnel attending professional military education (PME).  They
concluded that it was in the best interest of both the Department and the
service members to make PME eligible for the Secretary waiver, thus
permitting BAH to be paid at the higher rate when the service member and
family resided separately.  OSD Office of The General Counsel informally
approved the BAH Working Group's decision.  The Navy and the Air Force
thereupon implemented the new policy.  The Army, however, did not agree
with this consensus and chose not to implement a policy consistent with the
other two Services.

6.  The applicant states that informal discussions with the Army action
officers indicated that the Army was unwilling to change its policy in the
students' favor without a statutory change to Title 37, U. S. Code,
regardless of the other Services' BAH policies.  In May 2003, three AWC
students wrote to the Secretary of Defense to seek his assistance in
resolving the differences between the OSD and the Army positions.  On 26
June 2003, the Principal Deputy, Under Secretary of Defense (Personnel and
Readiness) signed a memorandum allowing Service Secretaries to grant BAH
waivers for service members attending PME for 12 months or less.  The
waivers would authorize BAH at a rate other than the new PME duty station
when the soldier resides separately from his or her dependents.  As a
result, a new Army policy was announced on 25 July 2003 that is consistent
with both Air Force and Navy BAH policies.

7.  The applicant states that the Army's policy caused an unfair hardship
to the officers hand-picked as future leaders who chose, in good faith and
in the best interest of their families, to PCS unaccompanied.  When the
Army reversed its decision and made a change to be consistent with the
other Services, it raised doubts that the officers and families were
considered in the overall training investment equation.

8.  On 19 August 2003, the Army responded on behalf of the AWC student's
 28 May 2003 request.  The students were informed of the new OSD policy and
further stated that the Army would consider future waiver requests and that
retroactive payments were not authorized.  Since the change in Army policy,
    46 waivers have been approved for soldiers at various schools,
including the AWC.  The Army could have used waiver authority consistent
with the Air Force and Navy earlier but declined to approve any waivers
without statutory change.  In the joint service senior service school
environment, a clear inequity on BAH payments existed.  As a result, each
of the 25 affected AWC students lost approximately $12,000 in BAH
allowances.

9.  The applicant provides the documents listed as Tabs A through J of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant was commissioned a second lieutenant on 19 December 1980.
He was assigned to the Pentagon/Fort Meade, MD area around 1996.  He was
promoted to lieutenant colonel on 1 November 1997.  He was selected for
attendance at the AWC and received orders to attend the AWC class which
started on 30 July 2002.  He was promoted to colonel on 1 September 2003.

2.  The applicant provides a Department of the Air Force Staff Summary
Sheet.  That Summary Sheet noted that the Fiscal Year 2001 National Defense
Authorization Act, paragraph (b)(7) and (d)(3) of the new Title 37, U. S.
Code, section 403, added Service Secretary authority to base housing
allowances on old PDS rate in situations involving no cost or low cost
moves within the United States where the member and dependents reside
separately.  OSD entitlement policy change effective 1 July 2001 authorized
selection of BAH rate (previous duty station, new duty station, or
dependent location) for no cost or low cost PCS.

3.  In a 4 March 2002 memorandum to the Defense Finance and Accounting
Service (DFAS), the Assistant Secretary of the Air Force (Manpower and
Reserve Affairs) notified DFAS that a member could request selection of the
with dependent rate BAH at dependent location, previous duty station, or
current duty station, whichever was more equitable, provided PCS
entitlements were limited.  For the BAH entitlement at higher rate, the
member must agree to PCS entitlements at low or no cost to the government
and without dependent dislocation allowance and temporary lodging expense.
The change was effective the date of the memorandum.

4.  The applicant provided a sample Navy BAH waiver approval letter dated
   29 July 2002.  The Navy officer had been assigned to the Naval District
of Washington, Washington, D.C. when he was placed on orders to attend the
AWC starting 15 July 2002 (the same class as the applicant).  That Navy
officer stated his wife had recently been appointed as a department head of
a school in Fairfax, VA and his daughter was attending college in Northern
Virginia and they did not wish to move to Carlisle, PA.  That officer's
request to have his BAH based on his dependent's location was authorized.

5.  The applicant provided his BAH waiver request and denial letter.  By
memorandum dated 23 July 2002, the Chief, Compensation and Entitlements
Division, Office of the Deputy Chief of Staff, G-1, disapproved the
request.  The memorandum noted that the information provided by the officer
did not support the determination that circumstances at his PDS required
his dependents to reside at a different location.  The memorandum noted his
orders authorized the shipment of household goods and movement of
dependents at government expense.

6.  By memorandum dated 29 August 2002, the applicant and 24 of his
classmates requested support from the Army Deputy Chief of Staff, G-1 in
obtaining Service Secretary waiver to receive BAH at a rate other than
their new PDS.  They noted that the Air Force had already taken action to
remedy the inequity for their Air Force classmates.  They noted they all
had to make decisions on whether their families would accompany them to
Carlisle, PA and accepted the consequences; however, they stated that
providing a low cost PCS option for PME of 12 months or less would empower
families to make the right decisions without financial penalty.  They
respectfully urged the Army to immediately adopt a policy, consistent with
the Air Force, which would address the BAH issued for that year's AWC
class.  The Commandant of the AWC supported their request by memorandum
dated 10 September 2002.
7.  The Army Deputy Chief of Staff, G-1 apparently did not respond to the
applicant's joint letter.  By memorandum to the Secretary of Defense dated
     28 May 2003, three of the applicant's classmates requested his
assistance
in remedying the inconsistency between the Services in payment of BAH to
members attending PME of 12 months or less in duration.

8.  On 7 June 2003, the applicant completed the AWC and was reassigned to
the Washington, D. C., area.

9.  In a memorandum dated 26 June 2003 from the Office of the Under
Secretary of Defense (Personnel and Readiness) to the appropriate Assistant
Service Secretaries and DFAS, OSD noted that the circumstances of an
assignment where a member receives a PCS assignment of 12 months duration
or less for purposes of participating in PME are unusual.  In such cases,
the Secretary concerned may determine that, under the circumstances of a
short-term assignment for purposes of participating in PME or training, the
member's BAH should be based on the area in which the dependents reside or
the member's last duty station, whichever the Secretary concerned
determines to be most equitable.  The memorandum noted that the Secretary
concerned should consider the factors set forth above in making
determinations with respect to members assigned to PME or training for the
upcoming academic year (emphasis added).

10.  Headquarters, Department of the Army implemented the 23 June 2003 OSD
guidance in a message to the field date time group 302201Z July 2003.  The
message stated that soldiers could request selection of the with-dependent
BAH rate at the dependent's location or previous duty station if they agree
to limited PCS entitlements.

11.  The Deputy Chief of Staff, G-1 responded to the applicant's three AWC
classmates' inquiry to the Secretary of Defense by memorandum dated
    19 August 2003.  He stated that OSD established a new policy effective
26 June 2003 which standardized Service interpretation of BAH regulations,
directives, and federal laws.  He stated that an exception to the normal
BAH policy could be granted if the Service Secretary determines it is
inequitable to base the allowance on the soldier's assigned housing rates.
He stated the BAH policy was to benefit students attending school/training
effective on and after 26 June 2003, the date of the authorization by OSD,
and that there is no authorization for retroactive payments.

12.  In the processing of this case, an advisory opinion was obtained from
the Director, Plans and Resources, Office of the Deputy Chief of Staff, G-
1.  That office noted that the law states the Secretary concerned
determines if circumstances of an assignment "require" a member's
dependents to reside separately from the member.  Prior to the publication
of the new OSD policy, the Army's position was that soldiers are entitled
to a BAH rate applicable to their PDS locations unless the Army forces the
soldiers to reside separately from their dependents (such as restricted
tours).  If the soldier's PCS orders allowed movement of dependents and
shipment of household goods at government expense, there was no required
separation even though the soldier may have elected to reside separately
from his/her dependents for personal reasons.

13.  The advisory opinion went on to note that the Office of the Under
Secretary of Defense published a policy on 26 June 2003 allowing the
Service Secretaries a more flexible BAH policy when the members received
PCS assignments of    12 months of less for PME.  As a result, the Army
implemented its new PME BAH waiver policy.  The advisory opinion noted that
the Army historically has defined BAH waiver requirements more narrowly
than some of the other services.  After the publication of the new OSD PME
BAH policy, the Army agreed to loosen its definition of "required."  OSD's
policy asks the Service Secretaries to consider factors set forth in the
new policy with respect to members assigned to PME or training for the
upcoming academic year.  Therefore, that office opined that the applicant
and his colleagues received the correct BAH entitlement while attending the
AWC.

14.  A copy of the advisory opinion was provided to the applicant for
comment or rebuttal.  He responded by noting that the advisory opinion did
not explain why the Army was unwilling to loosen its definition of when a
BAH waiver could be granted even when the other Services had established
the legal precedent to approve such waivers.  He noted that the waiver
request was strongly endorsed by the Commandant of the AWC.  Their intent
in applying for the BAH location waiver was to ensure an equitable policy
existed regardless of service.  He stated that, in order to achieve family
stability, he chose to drive daily from Northern Virginia to Carlisle, PA
(approximately 250 miles per day).  In addition, during critical course
periods and exercises he was required to stay in the Carlisle, PA area at
his own expense.  Since he chose this path, the government saved the
expense of two full PCS moves plus any additional claims as a result of
damage incurred during these moves.  He should not be penalized by the
Army's unwillingness to act promptly and consistently with OSD intent to
grant BAH location waivers to service members living separately from their
families for periods of one year or less while fulfilling their military
duties.

DISCUSSION AND CONCLUSIONS:

1.  The OSD 26 June 2003 memorandum stated that the Secretary concerned may
determine that, under the circumstances of a short-term assignment for
purposes of participating in PME, the member's BAH should be based on the
area in which the dependents reside or the member's last duty station.  The
Secretary of Defense did not take away the Secretary of the Army's
discretion to use this authority.
2.  In addition, the memorandum noted that the Secretary concerned should
consider the factors set forth above in making determinations with respect
to members assigned to PME or training for the upcoming academic year
(after the applicant completed the AWC).

3.  When not required to conform by statute, the Services often differ in
personnel or budgetary policies/priorities.  As examples:  The Air Force
has a greater need for senior grade officers; therefore, an Air Force
lieutenant colonel will be promoted to colonel sooner than would an Army
lieutenant colonel with the same date of rank (or vice versa); the Navy
chooses to make a particular overseas area a dependent-restricted
assignment; the Army authorizes dependents; the Air Force chooses to
concentrate its resources this year on personnel and family issues; the
Army chooses to concentrate its resources this year on restructuring its
combat forces.

4.  As the advisory opinion noted, the Army historically defined BAH waiver
authority differently than some of the other Services.  It was within its
authority to do so and OSD did not change that authority.

5.  The applicant knew prior to departing to attend the AWC that he would
not receive BAH at the higher rate if his family did not PCS with him.  He
freely chose to leave his family in Virginia.  The Army's rules were clear
and fairly applied.  He has provided no evidence to show he was treated
inequitably in comparison with other Army personnel, whether his Army
classmates at the AWC or Army personnel attending other types of PME in the
same academic year.

BOARD VOTE:

________  ________  ________  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

__sk____  __jrs___  __wdp___  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.



            __Stanley Kelley______
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR2004100094                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040504                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |128.12                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |