IN THE CASE OF:	  

		BOARD DATE:	  14 December 2010

		DOCKET NUMBER:  AR20100016278 


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 correction of the location used to calculate his Basic Allowance for Housing (BAH) for the period 16 June 2008 through 30 November 2009 in accordance with all Army activities (ALARACT) Message 021/2008.

2.  The applicant states he was ordered to a unit deploying within 12 months of his arrival to the unit.  As a result of the short period of time from the permanent change of station (PCS) for the purpose of deploying to the actual deployment, the circumstances required his family members to reside separately at the previous duty station.  He continues by stating that although his PCS occurred in June 2008, ALARACT Message 021/2008 and his deployment was from October 2008 to October 2009; however, the Tennessee Army National Guard (TNARNG) had not published business rules to the field.  As a result, he and his organization were unaware of the available waiver.  He further states he learned of ALARACT Message 021/2008 upon redeployment and he applied for a retroactive waiver but his request was denied by the Deputy Chief of Staff (DCS), G-1, Washington, D.C., who stated that BAH waivers are not retroactive and that the ABCMR was the only mechanism for recoupment of the lost allowances.

3.  The applicant provides a copy of the waiver request, ALARACT Message 021/2008, and email history.


CONSIDERATION OF EVIDENCE:

1.  The applicant’s military records show that on 29 July 2004 he entered active duty in the Active Guard Reserve (AGR) program as a major in the Military Police Corps of the TNARNG.  He had various assignments in the vicinity of Nashville, TN during the period 29 July 2004 to 15 June 2008.

2.  Joint Force Headquarters, Tennessee National Guard, Nashville, Orders
156-807, dated 4 June 2008, show the applicant was transferred from a position in Nashville to the S-3 position at Headquarters and Headquarters Detachment (HHD), 168th Military Police Battalion in Dyersburg, TN, effective 16 June 2008.

3.  The applicant provided copies of his Joint Uniform Military Pay System (JUMPS) Leave and Earnings Statements (LES) for the periods 1-30 April and
1-31 May 2008 show his Variable Housing Allowance zip code (VHA-ZIP) as 37132.  His LESs for the period 1-30 June and 1-31 July 2008 show his VHA-ZIP as 38024 with a lower BAH than VHA-ZIP 37132.

4.  Headquarters, First Army, Forrest Park, GA, Permanent Orders 
1A-08-277-002, dated 3 October 2008, show HHD, 168th Military Police Battalion and its members were ordered to active duty in support of Operation Iraqi Freedom (OIF) for a period of 400 days.

5.  Joint Force Headquarters Tennessee National Guard, Nashville, Orders
259-019, dated 15 September 2008, show the applicant was ordered to active duty in support of contingency Operation Iraqi Freedom (OIF), effective
22 October 2008.  Accordingly, the applicant was released from active duty in the AGR program, effective 21 October 2008, and he was ordered to active duty in support of OIF on the following day.

6.  Headquarters, Fort Dix, NJ, Orders 326-256, dated 21 November 2008, shows his unit was deployed in support of OIF on 24 November 2008.

7.  A Note showing his mortgage loan number and pertinent information indicates his property address was located in Lebanon, TN which is about 200 miles from his new permanent duty station.  The documents show the date of the mortgage was 15 September 2004.

8.  Army Headquarters, U.S. Army, Fort Dix, Orders 282-0047, dated 9 October 2009, show he was released from active duty and assigned to HHD, 168th Military Police Battalion, Dyersburg, TN 38024, effective 14 October 2009.  His DD Form 214 shows that he carried 13.5 days of leave over to his AGR status upon his release from active duty.
9.  Joint Force Headquarters, Tennessee National Guard, Nashville, Orders
022-805, dated 22 January 2010, show he was reassigned from the S-3 position to the executive officer position at HHD, 168th Military Police Battalion in Dyersburg, TN, effective 21 January 2010.

10.  An email from the TNARNG AGR Manager indicates that while the applicant met the ALARACT message criteria for BAH stabilization, the request was submitted to the National Guard Bureau (NGB) this fiscal year (FY) and the money from those FYs had been closed.

11.  A memorandum, subject: Request for BAH Waiver - Retroactive, dated 8 March 2010, shows the applicant requested a waiver for retroactive continuation of BAH at his previous duty station due to being ordered to deploy within 12 months of arrival at his new unit.  Retroactive BAH waiver was requested for the period 16 June 2008 through 13 November 2009 (his PCS date through mobilization plus 30 days).  The reason given for the retroactive nature of the request was that while the ALARACT message had already been published, this information was not known by the applicant or his unit.

12.  Joint Force Headquarters, Tennessee National Guard, memorandum, subject:  BAH Waiver Request (applicant's name), dated 29 March 2010, in support of the applicant's waiver request, shows the applicant was transferred from the Tennessee National Guard Joint Force Headquarters, Nashville, to the 168th Military Police Battalion, Dyersburg, for the purpose of serving as the battalion S-3 during the unit's upcoming deployment.

13.  An email from HQDA, Office of the Deputy Chief of Staff, G-1 indicates BAH waivers are not retroactive and as such his request for a BAH waiver was, in effect, disapproved.

14.  In the processing of this case, an advisory opinion obtained from the Chief, Personnel Division, NGB, reiterated the applicant's request.  The NGB official recommended approval.

	a.  The advisory official indicated that the Department of the Army Personnel Policy Guidance (PPG) stated, "Reserve Component (RC) Soldiers called to duty in support of a contingency operation entitled to BAH, based on their principal residence, in accordance with chapter 10 of the Joint Federal Travel Regulations (JFTR).  RC Soldiers whose residence changes while on active duty will continue to receive BAH and per diem entitlements based on their residence at the time of call to active duty."  The advisory official indicated the applicant is a Title 32 AGR Soldier who was transferred to a unit located over 3 hours away from his home of record in preparation for a deployment occurring within 12 months from the date of the transfer.  The advisory official indicates the applicant was then paid BAH at the (lower) rate appropriate to the new locality while his family continued to reside at the original home of record.

	b.  The advisory official continued by indicating that while regulatory policy supported granting the applicant's relief a retroactive waiver is not available through the appropriate channels.

15.  A copy of the advisory opinion was provided to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  He did not respond.

16.  ALARACT Message 021/2008, subject: Exception to Policy Guidance for Basic Allowance for Housing (BAH) Waivers, dated 5 February 2008, states circumstances requiring family members to reside separately from the member due to Soldiers receiving PCS orders to units deploying within 12 months of arrival qualify for a Secretary of the Army BAH waiver.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was reassigned from a permanent duty location in Nashville, TN to a permanent duty location in Dyersburg, TN, about 200 miles apart.  Evidence indicates the transfer was accomplished within 12 months of his new unit of assignment deploying in support of OIF.  As such, he was eligible to apply for a BAH waiver; however, he contends neither he nor his unit was aware of this waiver until his redeployment.

2.  He applied for a BAH waiver that was disapproved due to the request being retroactive.

3.  Based on the JUMPS LESs provided by the applicant, the BAH at the Dyersburg location was lower than it was at Nashville, TN; therefore, he received less money for the period 16 June 2008 to 30 November 2009 than he would have received had he been granted a BAH waiver.

4.  While there is no error, in the interest of equity and justice, it would be appropriate for the applicant’s military records to be corrected to show he was granted a BAH waiver prior to his transfer to the Dyersburg location, effective 16 June 2008, thereby allowing for continuation of his BAH based on the Nashville area zip code until 30 November 2009.


5.  In view of the foregoing, the applicant is entitled to have his records corrected as shown below.

BOARD VOTE:

____X____  ___X_____  ___X_____  GRANT FULL RELIEF 

________  ________  ________  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 for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing a BAH waiver was approved prior to the effective date of his PCS to Dyersburg, TN on 16 June 2008.

2.  The Board further recommends that based on the above correction, the Defense Finance and Accounting Service (DFAS) pay the applicant any difference in BAH due him for the period of 16 June 2008 to 30 November 2009.



      ___________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)                                         AR20100016278



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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