RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           27 September 2005
      DOCKET NUMBER:   AR20050001513


      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. Ronald E. Blakely             |     |Chairperson          |
|     |Mr. Lawrence Foster               |     |Member               |
|     |Ms. Laverne M. Douglas            |     |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 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 he made a permanent change of station (PCS) move
to  attend the AWC at Carlisle Barracks, PA in July 2002.  He elected to
leave his family in Alexandria, VA.

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 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 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 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 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.  On 28 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 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 informed the Army would consider future waiver requests and
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 17 May 1980.  He
was promoted to lieutenant colonel on 1 January 1997.  He was assigned to
the  Office of the Deputy Chief of Staff for Logistics, Pentagon on or
about 27 July 2000.  He was ordered to proceed on PCS to Carlisle Barracks,
PA to attend the AWC, which started on 30 July 2002.  He was promoted to
colonel on 1 October 2002.

2.  The applicant provides a Department of the Air Force Staff Summary
Sheet.  That Summary Sheet noted 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 a sample Army BAH waiver denial letter.  An
unidentified officer (attending the applicant's same AWC class) requested a
BAH waiver.  By memorandum dated 22 July 2002, the Chief, Compensation and
Entitlements Division, Office of the Deputy Chief of Staff, G-1,
disapproved the request.  The memorandum noted 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 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 classmates of the applicant requested the
Secretary's 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
Korea.

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 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 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 OSD established a new policy effective 26
June
2003 which standardized Service interpretation of BAH regulations,
directives, and federal laws.  He stated 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 there is no authorization for retroactive payments.

DISCUSSION AND CONCLUSIONS:

1.  The OSD 26 June 2003 memorandum stated 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.  The memorandum also noted 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.  The Army has 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 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 FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__reb___  __lf____  _lmd____  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.




            __Ronald E. Blakely___
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050001513                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050927                                |
|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.                      |                                        |


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