IN THE CASE OF:	  

		BOARD DATE:	  12 October 2010

		DOCKET NUMBER:  AR20100016844 


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 adjustment of her basic allowance for housing (BAH) to provide the New Orleans, LA, rate from 1 September 2006 to 17 July 2008.

2.  The applicant states that although she was authorized a permanent change of station (PCS) move to Gillis W. Long Center, Carville, LA, due to the relocation of the Louisiana Army National Guard (LAARNG) subsequent to the flooding of the Joint Force Headquarters, Jackson Barracks, New Orleans, during Hurricane Katrina, she elected not to move to Carville in anticipation of returning to Jackson Barracks within a few years.  Instead, she commuted 80 miles from her home of record to her duty location and back.  The suburban housing areas of New Orleans and southern Baton Rouge are geographically connected and service members with duty locations in those areas commonly commute across the disproportionate BAH zones.  Her BAH waiver request to receive BAH based on her previous duty location (New Orleans) was disapproved because her reassignment orders were PCS orders with authorization to move household goods (HHG).  The BAH waiver criteria states that the Soldier must have no/low cost orders.  The LAARNG refused to amend her orders because she was authorized movement of HHG under her previously-issued PCS orders.

3.  The applicant provides her original BAH waiver request, email correspondence, proof of residency, and regulatory guidance regarding BAH waiver criteria and PCS versus no cost/low cost move entitlements.



CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The record shows she is currently a lieutenant colonel with the LAARNG assigned to Jackson Barracks, New Orleans, serving in an Active Guard Reserve (AGR) status.

3.  LAARNG Orders 053-028, dated 22 February 2006, directed her PCS in an AGR status, with her consent and the consent of the Governor of the State of Louisiana, from New Orleans to Carville for an indefinite period.

4.  On 4 June 2009, she requested a Secretarial waiver to receive BAH at other than her duty location from 1 September 2006 through 17 July 2008.  She notes the following in her request:

	a.  She was a Title 32 AGR Soldier assigned to Jackson Barracks, New Orleans, prior to the time Hurricane Katrina flooded the post.

	b.  Her home in Belle Chasse, a suburb of New Orleans, suffered only minor damage from Hurricane Katrina.

	c.  All full-time LAARNG Soldiers who were previously assigned to Jackson Barracks, New Orleans, were initially issued temporary change of station (TCS) orders to the Gillis W. Long Center in Carville, approximately 80 miles from New Orleans.

	d.  The TCS orders expired on 1 September 2006 and full-time LAARNG Soldiers were authorized an option to PCS.  She was reassigned and authorized shipment of HHG to her new duty location at Carville.

	e.  She elected to continue to live at her HOR and did not move any HHG because she felt the likelihood of returning to Jackson Barracks, New Orleans, within a few years after the reconstruction was completed was high.

	f.   She rented an apartment on post until July 2007 when she deployed to Iraq for a year.  She maintained her house in Belle Chasse and received BAH (without dependents) at the lower Carville rate during her deployment.

	g.  Upon her return from Iraq, she was immediately reassigned to Jackson Barracks, New Orleans, effective 17 July 2008.

5.  She was reimbursed for one-time mileage costs for one trip to and from Carville, but she did not apply for any other reimbursement for expenditures as a result of her PCS move.

6.  On 24 July 2009, the Headquarters, Department of the Army, Deputy Chief of Staff, G-1, Compensation and Entitlements Division Chief disapproved her request for a BAH policy waiver.

7.  On 7 August 2009, the LAARNG denied her request to amend her PCS orders to show a no cost/low cost move.  The Joint Force Headquarters-Louisiana, J-1, stated, "a PCS is a legal entitlement that cannot be reversed.  As per Finance, the legal entitlement for a PCS for an O-4 from New Orleans to Carville is approximately $4000.00.  Estimated PCS costs include travel, dislocation allowance, and transportation of household goods.  This estimation exceeds the $500.00 no cost/low cost threshold."

8.  In support of her application, she provides previously-mentioned assignment orders, email correspondence, a sales agreement establishing her residency, her BAH policy waiver request, copies of her leave and earnings statements, and Department of the Army regulatory guidance regarding PCS entitlements and BAH waiver requirements.

9.  The Department of Defense Financial Management Regulation (DODFMR), volume 7a, chapter 26, table 26-9, note 1e, states that a member assigned to a permanent duty station (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 the PDS.

10.  The DODFMR further states that a waiver may be granted for the BAH rate at the member's old duty station if the Soldier has been disadvantaged as a result of reassignment for reasons of improving mission capability and readiness of the unit, in receipt of PCS orders between duty stations located in the same proximity, and disallowed movement of HHG.  The Secretary concerned must issue a determination that a decision to implement this policy is in the interest of correcting an inequity incurred due to movement of the individual for purposes of improving mission capability and unit readiness.

11.  The Fiscal Year 2001 National Defense Authorization Act provides policy guidance for Secretarial waiver to receive BAH at other than the Soldier's duty station location.  All Army Activities Message 021/2008, subject:  Exception to Policy Guidance for Basic Allowance for Housing Waivers, clarifies this policy and provides authority for the Service Secretaries to approve BAH waivers when:

	a.  the member is assigned to a PCS under the conditions of a no cost/low cost move;

	b.  duty at the member's PDS or circumstances of the assignment to the PDS requires the member's dependents to reside separately from the member; or

	c.  professional military education and training requires a PCS move of 12 months or less.

12.  The Fiscal Year 1995 National Defense Act approved the continental United States (CONUS) cost of living allowance (COLA) to provide compensation for variations in non-housing costs in CONUS.  The fundamental goal of CONUS COLA is to compensate for a high cost of living and is payable to uniformed service members based on duty stations in CONUS.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her BAH should be adjusted to provide the New Orleans rate from 1 September 2006 to 17 July 2008.

2.  The record shows she was reassigned to Carville after Hurricane Katrina flooded Jackson Barracks, New Orleans.  Her PCS orders authorized shipment of HHG, but she elected not to use this entitlement.  Instead, she continued to maintain her residence in New Orleans.  She rented an apartment in Carville until July 2007 when she was deployed to Iraq.  Upon her redeployment she was reassigned to Jackson Barracks, New Orleans, effective 17 July 2008.

3.  The governing regulation states that BAH is paid at the rate authorized for the member's PDS.  An exception to this policy is authorized by the Secretary of Defense for members who make a no cost/low cost move and are not authorized the shipment of HHG if there is evidence that the move has disadvantaged them.

4.  Although it is evident that the circumstances which caused her reassignment from New Orleans to Carville were an act of nature and beyond her control, there is insufficient evidence to definitively determine she was disadvantaged or that an inequity existed.  By her own admission, she did submit a claim for mileage cost for one trip between her old and new duty locations as authorized by her PCS orders and she rented an apartment in Carville until her deployment to Iraq in July 2007, indicating she did not continue to routinely commute from her residence in New Orleans to her new duty location.  That she did not use her full PCS entitlement and that she chose to maintain her residence in New Orleans while living in Carville were personal housing decisions and do not warrant a correction to her PCS orders to show a no/low cost move.

5.  In view of the foregoing, her request should be denied.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ____X___  ____X___  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.



      _____________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)                                         AR20100016844



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ABCMR Record of Proceedings (cont)                                         AR20100016844



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