IN THE CASE OF:	

		BOARD DATE:	  26 March 2009

		DOCKET NUMBER:  AR20090002909 


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 the Board's denial of his request for payment of Basic Allowance for Housing (BAH) from January through June 2008 at the Washington, D.C. rate vice the Fayetteville, NC rate.

2.  The applicant states that he was told by what he believed to be proper authority (his Personnel, Policy, and Training Office of the Office of The Judge Advocate General, or PPTO, OTJAG) that he could leave his family in the Washington, D.C. area and continue to receive BAH at the Washington, D.C. rates.  He adds that his Permanent Change of Station (PCS) orders stated that "Officer is authorized to have family members remain at current location."  Based on those assurances, he signed a lease on a house in the Washington, D.C. geographical area.

3.  When it was discovered that the orders were in error, he was told that he was not entitled to BAH at Washington D.C. rates because he had a PCS move to Fayetteville, NC.  As a result, collection action was taken on the difference in BAH between the two geographical locations.  This caused his family financial hardship since he could not terminate the lease (he had signed the lease after he was given his PCS orders, which precludes any protection under the Servicemembers Civil Relief Act (Title 50, US. Code, sections 501 through 596)).  In addition, even if he could have broken the lease, he had other contracts he had signed which he could not terminate.  These contracts were for preschool, taekwondo, and gymnastics in the Washington, D.C. area for his four children.  This would have posed a financial hardship for him and his family and degraded his family's quality of life.
4.  The applicant chronicles his efforts to rectify the situation which resulted in the debt he incurred as a result of the higher BAH being paid to him being forgiven.  However, he was not given BAH at the Washington D.C. rate for the remainder of the year.  That was based on the fact that his situation did not meet the regulatory provisions for an exception to policy.

5.  The applicant provides his dwelling house lease; a statement from a colonel which confirms that the applicant paid his rent for his leased house in the Washington D.C. area until June 2006; a LexisNexis printout of Title 50, U.S. Code, section 535 and Virginia Code, Annotated, Section 55-248.21:1; a memorandum from OTJAG, Washington, D.C., subject: Review of BAH Issue and Possible Solutions (applicant's name), dated 7 January 2006; a letter to the applicant from the Defense Finance and Accounting Service (DFAS), Denver, CO, dated 17 April 2006; a letter from the Office of the Deputy Chief of Staff (ODCS), G-1, Washington, D.C., subject:  BAH Policy Waiver (applicant's name and SSN), dated 23 March 2006; and a picture of his five children.

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 AR20060006796 on 5 October 2006.

2.  The lease agreement and the applicant's explanation of why he could not terminate his lease are new evidence and argument which require the Board to reconsider his case.

3.  In the Board's first consideration of his case, the Board found, in pertinent part:

	a.  In March 2005, the applicant's Branch Manager from the PPTO, OTJAG requested that the applicant voluntarily accept an assignment to XVIII Airborne Corps at Fort Bragg with a report date of July 2005, and immediate deployment to Iraq for a period of one year.

	b.  In April 2005, PPTO requested the applicant advance his report date to mid-June 2005.  In order to avoid disruption to his family, the applicant requested he be issued Temporary Change of Station (TCS) orders vice Permanent Change of Station (PCS) authorizing him to maintain BAH at the Washington, D.C. rate in order to leave his family in place during his one-year deployment to Iraq.  Based on the PPTO's approval of maintaining the BAH rate for the Washington, D.C. area the applicant signed a lease for a year allowing his family members to stay in the area during his deployment to Iraq.

	c.  Office of the Administrative Assistant to the Secretary, United States Army Resources and Programs Agency, Permanent Orders Number 109-30, dated 
19 April 2005, directed the applicant's reassignment to Headquarters and Headquarters Company (HHC), XVIII Airborne Corps, Fort Bragg, with a reporting date of 14 June 2005.  The additional instructions of these orders authorized the applicant to leave his family members at his current location, which was Washington, D.C.  

	d.  The applicant reported to Fort Bragg and his TCS, or reassignment to the United States Central Command (CENTCOM) Area of Responsibility (AOR) in support of Operation Iraqi Freedom, effective 27 June 2005, was directed in XVIII Airborne Corps Orders Number 160-068, dated 9 June 2005.   

	e.  In November 2005, the applicant was redeployed to Fort Bragg prior to his original scheduled return date of 27 June 2006 in order to manage the prosecution in a capital murder case.  During his out-processing in Iraq, a local finance officer questioned the applicant's zip code of Washington, D.C., which was listed on his Leave and Earnings Statement (LES).  The applicant informed this official that PPTO authorized him to allow his family members to stay at his previous station of Washington, D.C., and his continued receipt of the BAH based on that rate through June 2006.

	f.  On 17 November 2005, the Finance Officer informed the applicant that the BAH payment he was receiving at the Washington, D.C. rate was in error and that PPTO had no authority to grant permission and to annotate this on his orders.

	g.  On 31 December 2005, the applicant's BAH was discontinued at the Washington, D.C. rate and was changed to the Fayetteville, which was a difference of $1,222 per month.

	h.  In January 2006, the applicant was informed at the Fort Bragg Finance Office that he had incurred a debt of $6,494.43 for the overpayment of BAH he received from June 2005 through December 2005.

	i.  On 17 January 2006, OTJAG informed the applicant that he should submit a waiver/remission of indebtedness through the finance office for the debt assessed for the BAH he collected and that he should submit a request for exception to policy from the ODCS, G-1 to receive the BAH difference he did not 
receive from January 2006 through June 2006.  The OTJAG further informed the applicant that if either of these were disapproved that he should file for relief through the ABCMR.

	j.  On 7 February 2006, the Assistant Chief, PPTO, confirmed that the applicant's debt was incurred through no fault of his own, and that there was no intent to defraud on the applicant's part.  He stated that the applicant relied on the assurances of PPTO that he was eligible to continue to receive the BAH at the Washington, D.C. rate.  This official also stated that the applicant's reliance on the orders he was issued caused a detriment to him and his family, and that OTJAG supported the applicant's request for reinstatement of BAH at the Washington, D.C. rate from January 2006 through June 2006, and a complete waiver of any debt incurred due to the error on the part of Government officials.   

	k.  On 23 March 2006, the Chief, Compensation and Entitlement Division, ODCS, G-1, the Army proponent for the payment of BAH, notified the applicant's command that the applicant's request for exception to policy to receive BAH based on his previous duty location of Arlington, Virginia, was denied.  He stated that the applicant's request for an exception to policy did not meet the criteria outlined in the Department of Defense Financial Management Regulation (DODFMR), Volume 7A, Chapter 26.  

	l.  The Chief, Compensation and Entitlement Division further stated that BAH is paid based on the provisions of law contained in Title 37, U.S. Code, section 403, which authorizes BAH payment based on the geographic location of a member.  This location is defined as a member's permanent duty station (PDS) by the Office of the Secretary of Defense (OSD).  He further stated that based on this requirement of law, there were no circumstances of the applicant's assignment to Fort Bragg which would have required his family to continue to live in the Washington, D.C. Military Housing Area (MHA) through June 2006.  Further, he stated that the applicant's personal election to have his family continue to reside in Washington, D.C. was not covered in the governing law, and payment was prohibited by DODFMR, Volume 7A, Chapter 26, Table 26-9, note (f).

	m.  On 17 April 2006, DFAS granted the applicant's request for a waiver of the $6,494.43 debt he incurred for the overpayment of BAH during the period June 2005 through December 2005.

	n.  Title 37, U.S. Code, section 403 states in effect that the rate of BAH is based on the geographic location which is defined as the PDS of assignment.  

	o.  DODFMR, Volume 7a, Chapter 26, Table 26-9 (f), states in pertinent part that a member assigned to a PDS in the United States is entitled to BAH at the rate applicable to the location where their dependents maintain a permanent residence or the member's old duty station if the service Secretary, or a designated representative, determines it is necessary for dependents to reside in a military housing area other than the one in which the PDS is located when a member is assigned to indeterminate temporary duty, or temporary duty pending further orders.  

	p.  DODFMR, Volume 7a, Chapter 26, Table 26-9 (f) further indicates that In addition the Secretary or designated representative may issue a determination if circumstances or conditions at the new PDS require the dependents to reside at a separate location.  This determination is made only in cases where the necessity to reside separately is caused by conditions at the duty station.  This does not cover a personal election of either a member or dependents as the reason for residing separately.

4.  The lease submitted by the applicant shows that he had to give his landlord a minimum of thirty days advance written notice to terminate his lease due to Government orders.  There were no other provisions to terminate his lease.  The applicant's last lease extension was for an amount of $2,250.00 a month for the period 1 July 2005 to 30 June 2006.

DISCUSSION AND CONCLUSIONS:

1.  There is no doubt that the applicant signed his lease in the Washington, D.C. area based on both verbal assurances by PPTO, OTJAG and the special instructions added to his PCS orders that authorized him to leave him family members in the Washington, D.C. area (i.e., that he would receive BAH at the Washington, D.C. rate.

2.  The fact that the applicant's overpayment of BAH was forgiven by DFAS gives weight to this conclusion.

3.  The Board denied the applicant's prior request because the applicant had not submitted a copy of his lease agreement and had not said what he had done to try to break the lease agreement.

4.  The applicant has now submitted a copy of his lease agreement which shows that there were no provisions to terminate the lease since his orders were published prior to him signing the lease extension (the Servicemembers Civil Relief Act only applies to leases signed prior to orders being issued).  The applicant has also shown that even if he had been able to terminate the lease, he would have still been liable for other contracts he had signed, predominantly contracts providing his children with various services.  As such, even if he had been able to terminate his lease he still would have experienced a significant financial loss.

5.  As such, it would appear that the applicant and his family were placed at a financial disadvantage based on the errors of individuals whom he considered to be competent authority.  Because BAH is based on the PDS location of a Soldier, and a PDS is based on the last PCS order, the only way to provide relief in this case is to correct his PCS orders to show that they were TCS orders.  The governing directives state that a PCS order cannot be canceled after all the travel and transportation activities required to complete the permanent move have been accomplished and the orders have been fully executed when there is no indication that the orders were materially in error when issued.  However, the Board can change the applicant's PCS orders to TCS orders based on its extraordinary authority as a matter of equity.

6.  As such, it would be appropriate to amend Office of the Administrative Assistant to the Secretary, U.S. Army Resources and Programs Agency, Washington, D.C. Orders 109-30, dated 19 April 2005, to show the applicant was ordered on a TCS move to HHC, XVIII Airborne Corps, Fort Bragg.  As a result of this correction, it will necessitate a second set of orders to show the applicant was ordered on a PCS move from the United States Army Legal Services Agency, Arlington, VA to HHC, XVIII Airborne Corps, effective 14 June 2006.  It will also be necessary to correct all orders and entries in the applicant's records to show that he was on TCS status to HHC, XVIII Airborne Corps from 14 June 2005 to 14 June 2006.  In addition, it would be appropriate to show that the period from 14 June 2005 to 14 June 2006 is credited towards completion of his tour (assignment) to HHC, XVIII Airborne Corps.

BOARD VOTE:

___X___  ___X____  ___X____  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 AR20060006796, dated 5 October 2006.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  amending Office of the Administrative Assistant to the Secretary, United States Army Resources and Programs Agency, Permanent Orders 109-30, dated 19 April 2005, to show it ordered the applicant on a TCS move to Headquarters and Headquarters Company, XVIII Airborne Corps, Fort Bragg, NC;

	b.  publishing a second set of orders which show that the applicant was ordered on a PCS move from the United States Army Legal Services Agency, Arlington, VA to Headquarters and Headquarters Company, XVIII Airborne Corps, Fort Bragg, NC, effective 14 June 2006;  

	c.  correcting all orders and entries in the applicant's records to show that he was on TCS status to Headquarters and Headquarters Company, XVIII Airborne Corps, Fort Bragg, NC, from 14 June 2005 to 14 June 2006;

	d.  paying to him the difference in BAH from January through June 2006; and

	e.  showing that the period from 14 June 2005 to 14 June 2006 is credited towards completion of his tour (assignment) to Headquarters and Headquarters Company, XVIII Airborne Corps, Fort Bragg, NC.



      _________X______________
               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)                                         AR20090002909



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ABCMR Record of Proceedings (cont)                                         AR20090002909



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