IN THE CASE OF:	  

		BOARD DATE:	        5 August 2008

		DOCKET NUMBER:  AR20080008973 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests reconsideration of his earlier request for correction of his records to show he was entitled to payment of Cost of Living Allowance (COLA) with an index of "0" (COLA Without Dependents) vice an index of "9" (COLA Barracks), from 25 April 2002 to 31 July 2004. 

2.  The applicant states that:

	a.  during the period in question, he was assigned to B Company, 1st Military Intelligence Battalion, Wiesbaden, Germany.  However, due to the nature of his unit’s mission, he did not work at the Wiesbaden Army Airfield, where his unit was located.  The intelligence mission was conducted at a remote cite, known as the Integrated Processing Facility (IPF), located approximately 30 minutes from the Airfield.  In addition to working at the IPF, he also performed a large amount of shift work.  Prior to working at the IPF, he resided in the unit’s barracks and received COLA Barracks at an index of “9.”  However, once he obtained the necessary clearance to work at the remote site, his commander authorized him standard Basic Allowance for Subsistence (BAS).  This should have triggered a payment of COLA Without Dependents at an index of “0” which is higher than the one he was receiving;

	b.  once the error was realized, his chain of command attempted to solve the problem, albeit at a slow pace.  When he was released from active duty in June 2005, his unit still had not resolved the issue.  Shortly after his separation, his former battalion commander issued a memorandum to the servicing Finance Office authorizing a by-name list of those Soldiers who performed shift work and were entitled to BAS, to receive the higher COLA rate.  This memorandum did not list his name because he had already departed the unit and was separated from the Army; 

	c.  he subsequently contacted a claims examiner at the Defense Finance and Accounting Service (DFAS), and worked with the DFAS official during the period April through October 2006 in order to correct this problem.  He states that to the best of his knowledge, this DFAS official was informed by someone from the Wiesbaden Finance Office that he was entitled to the difference in COLA; however, DFAS was unable to process the paperwork required to pay him because he did not have a memorandum authorizing such an action.  After contacting the finance department and requesting a memorandum on the applicant's behalf, the DFAS official was informed that an investigation would be conducted to determine the applicant’s entitlement to the COLA rate with an index of "0."  The investigation concluded the applicant was in fact entitled to the higher allocated COLA rate and a memorandum was provided authorizing a COLA rate with the index of "0" for the period of August 2004 through March 2005, for which the applicant had already been paid the higher COLA rate during his out processing.  However, the period April 2002 to July 2004 remains unpaid; and 

	d.  concludes that if the ABCMR denies his application, he would like a detailed response as to why his situation differs from others in his former unit who received the higher rate. 

3.  The applicant provides a self-authored statement, dated 22 May 2008; a memorandum, dated 11 May 2008, from his former commander; and a copy of his June 2002 Leave and Earnings Statement (LES), in support of his application.  

4.  On 15 July 2008, the applicant submitted copies of his 2002, 2003, and 2004 LES; and a copy of a DD Form 2367 (Individual Overseas Housing Allowance (OHA) Report), dated 11 March 2005, in support of his application.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20060016093 on 23 August 2007.


2.  The applicant submitted a copy of a memorandum, dated 11 May 2008, by his former company commander, certifying the applicant’s entitlement to the higher COLA, which was not previously reviewed by the ABCMR; therefore, it is considered new evidence and as such warrants consideration by the Board.

3.  The applicant's records show he enlisted in the Regular Army on 8 June 2001 and held military occupational specialty (MOS) 98C (Signal Intelligence Analyst). He was promoted to private first class (PFC)/E-3 on 1 May 2002, specialist (SPC)/E-4 on 1 January 2003, and sergeant (SGT)/E-5 on 1 March 2004.  He was honorably released from active duty and transferred to the U.S. Army Reserve Control Group (Reinforcement) on 7 June 2005.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he completed 4 years of active service.

4.  On 3 November 2005, the Rear Detachment Commander, 1st Military Intelligence Battalion, submitted a memorandum through the Commander, 205th Military Intelligence Group, to the Commander of Bravo Detachment, 8th Finance Battalion, Germany, in which he requested a change of COLA rate from “9” to “0” for a by-name list of Soldiers who performed shift work, effective 1 April 2005. The applicant's name was not included on the list of Soldiers authorized this COLA rate change.  The Rear Detachment Commander stated that:

	a.  the listed Soldiers were entitled to full BAS and COLA change due to shift work and that their COLA should be adjusted from “9” to “0,” during the time they resided in the barracks;

	b.  the listed Soldiers no longer resided in the barracks; and 

	c.  the requests were late due the command having to thoroughly research each legitimate case to verify if the Soldier was entitled.   

5.  On 8 November 2005, the Commander, 205th Military Intelligence Group concurred with the request, and on 17 November 2005, she submitted a Letter of Lateness for COLA Change to the Commander, Bravo Detachment, 8th Finance Battalion, Germany, in which she stated she was requesting a change to the COLA index rate from "9" to "0" for the Soldiers who were receiving full BAS due to shift work.  She stated that they were uncertain at the time about the requirements to submit a separate request to change the Soldiers' COLA rate.  




6.  On 20 September 2006, the 1st Military Intelligence Battalion, Senior Human Resources Sergeant prepared a memorandum informing the DFAS that the applicant was single and living in Off-Post Housing during the period 31 August 2004 through 31 March 2005, and was therefore authorized COLA at the “0” rate. 

7.  On 10 October 2006, the DFAS Claims Examiner responded to the applicant's inquiry regarding his claim for full rations and COLA at the without dependents rate vice COLA at the barracks rate.  This official stated that it had been verified with his Army unit in Germany that he was authorized BAS and that he had received BAS without meal deductions during the period 26 April 2002 through 7 June 2005, the date of his separation.  He also stated the applicant received COLA at the barracks rate from 5 February 2002 through 31 July 2004, and the without dependents rate from 1 August 2004 through 18 March 2005.  He concluded by informing the applicant that if he believed he was entitled to COLA at the without dependents rate vice the barracks rate for the period 26 April 2002 through 31 July 2004, he should apply to this Board.

8.  The applicant submitted a copy of a memorandum, dated 11 May 2008, authored by the former rear Detachment Commander who stated that:

	a.  upon assuming his position as Rear Detachment Commander, he was presented a packet by the Battalion Executive Officer of Soldiers who had requested an increase in their COLA from index “9” (Barracks Rate) to index “0” (No Dependents Rate).  These Soldiers had been paid their BAS, but not the higher COLA rate; 

	b.  it took nearly six months to sort out the issue, going back and forth with the serving Finance Office, the Judge Advocate general (JAG), and the Inspector General (IG), regarding back payment since the justification used to pay the Soldier BAS was insufficient by U.S. Army, Europe (USAREUR) standards.  When the paperwork was filed with the Finance Office, some Soldiers had been owed up to 2 years of COLA and BAS back pay.  The “1 April 2005” date was the date he (the Rear Detachment Commander) ordered all Soldiers to draw meal cards (stop BAS) and resume meal deductions; and

	c.  [Applicant] was assigned to the unit at the time this issue was ongoing and worked at the IPF.  It appears that his name was either left off the initial packet sent to Finance or was misplaced due to an administrative oversight as he had separated prior to the resolution of this issue.  Nevertheless, he was entitled to COLA at the index “0” (No Dependents Rate) from the date he began receiving BAS through 1 April 2005 (erroneously shown as 2008) or his expiration of term of service (ETS) date, whichever was sooner.  

9.  An electronic mail (email) to a DFAS Claims Examiner, dated 15 July 2008, was not answered.  A follow-up email, dated 18 July 2008, was also not answered.

10.  Army Regulation 37-104-4 (Military Pay and Allowances Policy) defines Army-unique military pay policy for entitlements, allotments, and deductions outlined in the Department of Defense Financial Management Regulation Military Pay, Policy, and Procedures, Volume 7A (DODFMR, Volume 7A) and DOD Instruction 7000.14-R.  Chapter 14 provides the policy and entitlement provisions for station allowances.  The regulation states, in effect, that proper authorization and documentation for COLA will be submitted by the appropriate unit commander.  

11.  Army Regulation 37-104-4 states that COLA is a tax free allowance given to active duty military members living in high cost areas outside of the CONUS.  It is intended to help the service member maintain the same level of purchasing power they would have in a stateside duty assignment.  The amount of COLA is determined by pay grade and time in service.  COLA can change as often as every 15 days due to changes in foreign currency.  There are three different types of COLA: COLA Barracks, COLA without dependents, and COLA with dependents.  

	a.  COLA with dependents: Soldiers who have command sponsored dependent(s) residing at or around the duty location are entitled to this rate.  The numeric annotation represents the number of command sponsored dependents the Soldier has (not to exceed 5);

	b.  COLA without dependents: Soldiers who reside in single-type economy housing and have no command sponsored dependent(s) residing with them are authorized the without dependent rate commonly known as “0” rate COLA.  In addition, Soldiers who reside in the Barracks, Bachelor Enlisted/Officer Quarters (BEQ/BOQ) who are authorized to mess separately due to mission constraints or the unavailability of a dining facility are also entitled to the “0” rate.  It should be noted that members in the rank of E-7 and above are automatically allowed to mess separately regardless of the availability of dining facilities.  However this does not automatically entitle the E-7 and above "0" rate COLA.  For an E7 and above, assigned to the barracks, BEQ, or BOQ and have a dining facility available to get COLA at the "0" rate mess has to be deemed impractical by the commander; and 

	c.  COLA Barracks: Single or unaccompanied members residing in the barracks who have messing available are entitled to COLA Barracks, also known as "9" rate COLA.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant worked shift work at a facility that did not have a dining facility, during his service in Germany.  Accordingly, his immediate commander authorized him entitlement to payment of BAS, as shown on his LES.  This authorization should have triggered payment of COLA at the index rate of "0" vice "9" (Without Dependents).  It did not.

2.  The evidence of record further shows that the applicant's chain of command submitted a memorandum to the servicing finance office to authorize selected personnel the higher COLA rate, albeit much later.  However, having departed the unit and separated from the Army, the applicant's name was not included on that list.  After discharge, the applicant attempted to resolve the issue through a claims officer at DFAS.  The DFAS official stated that the applicant was paid Barracks COLA from 5 February 2002 to 31 July 2004 and Without Dependents COLA from 1 August 2004 through 18 March 2005.  

3.  The applicant contacted his former company commander who submitted a memorandum on 11 May 2008, certifying the applicant's entitlement to COLA at the Without Dependent rate during the period in question.  Therefore, there is sufficient evidence to show the applicant should have received COLA at an index of "0" (COLA Without Dependents) vice an index of "9" (COLA Barracks), from 25 April 2002 to 31 July 2004.

BOARD VOTE:

__xxx___  __xxx___  __xxx___  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant amendment of the ABCMR’s decision in Docket Number AR20060016093, dated 23 August 2007.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  showing the applicant's commander certified his (the applicant's) entitlement to COLA at the Without Dependent rate during the period 25 April 2002 to 31 July 2004; and

	b.  paying the applicant the difference in COLA between index rate "9" and index rate "0" for the period in question.


															XXX
      ______________________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080008973



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ABCMR Record of Proceedings (cont)                                         AR20080008973



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