IN THE CASE OF:	  

		BOARD DATE:	  12 July 2011

		DOCKET NUMBER:  AR20100018946 


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 January 2008 through April 2009 in accordance with All Army Activities (ALARACT) Message 021/2008.

2.  He states his permanent change of station (PCS) after completing basic combat training (BCT) and advanced individual training (AIT) was Fort Carson, CO.  He reported to his unit of assignment on 3 January 2008 and shortly afterward he was informed that his unit would be deploying in support of Operation Iraqi Freedom (OIF) in March 2008.  The short period from his PCS to the actual deployment required his family members to reside separately in the state of Florida.  He further states that his rear commander at the time indicated he could leave his family in Florida and receive BAH with dependents at the Florida rate.

3.  He states while deployed in Iraq he requested a BAH exception to policy through his unit on four occasions.  Through either neglect or not knowing how to process his request, it never made it past brigade level.  In the meantime, his situation put a hardship on his pregnant wife and two children.  At that time he was a private/pay grade E-2, his rent was $1,400.00 each month, and the difference between the BAH rate for Fort Carson of $909.00 compared to Florida of $1,629.00 would definitely have helped his situation had his BAH been calculated at the Florida rate.  After returning from his deployment in February 2009, he moved his family to Colorado.  He was subsequently reassigned to a new unit where he sought assistance from his chain of command and the Inspector General's Office at Fort Carson.  He was informed as to how to properly process a BAH exception to policy.  He further states he learned of ALARACT Message 021/2008 and applied for a retroactive waiver, but his request was denied by the Headquarters, Department of the Army (HQDA), Deputy Chief of Staff, G-1, who stated that BAH waivers are not retroactive and the Army Board for Correction of Military Records is the only mechanism for recoupment of the lost allowances.

4.  He provides:

* DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States)
* Orders 337-588, U.S. Army Maneuver Support Center and Fort Leonard Wood, Fort Leonard Wood, MO
* Orders 071-1004, Headquarters, Division West, First U.S. Army and Fort Carson, Fort Carson, CO
* memorandum for record from Commander, Hotel Company, 204th Brigade Support Battalion, 2nd Brigade Combat Team, 4th Infantry Division, Fort Carson, CO
* Commanding General's Hotline Inquiry Situation Report
* Real Estate Lease, dated 1 August 2006
* Rental Agreement, dated 27 February 2009
* ALARACT Message 021/2008
* email
* Enlisted Record Brief, dated 9 July 2010

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 20 August 2007.  He successfully completed BCT and AIT and was awarded military occupational specialty 88M (Motor Transport Operator).

2.  Orders 337-588 issued by U.S. Army Maneuver Support Center and Fort Leonard Wood, dated 3 December 2007, show he was to proceed on PCS to Fort Carson, CO, with a reporting date of 3 January 2008.

3.  His Enlisted Record Brief shows he reported to Fort Carson on 3 January 2008 and was assigned to the 64th Brigade Support Battalion, 3rd Brigade Combat Team, 4th Infantry Division.

4.  Orders 071-1004 issued by Headquarters, Division West, First U.S. Army and Fort Carson, dated 11 March 2008, amended Orders 250-707, changing his unit effective date for deployment in support of OIF to on or about 12 March 2008.

5.  His Joint Uniform Military Pay System (JUMPS) Leave and Earnings Statements (LES) for the period 1-30 April 2008 and 1-31 May 2008 show his BAH with dependents based on zip code 80913 [Fort Carson].

6.  He returned from Iraq on 3 February 2009 and relocated his family from Florida to Colorado.  A rental agreement, dated 27 February 2009, shows he and his spouse signed a lease for rental property in Colorado Springs, CO.

7.  On 22 December 2009, he was reassigned to Company H, 204th Brigade Support Battalion, 2nd Brigade, 4th Infantry Division, Fort Carson.

8.  A memorandum for record, Hotel Company, 204th Brigade Support Battalion, 2nd Brigade Combat Team, 4th Infantry Division, Fort Carson, dated 4 May 2010, subject:  Request Back Pay for BAH, shows the applicant's company commander requested BAH back pay in his behalf.  His commander stated the applicant arrived at Fort Carson in December 2007.  His family resided in the state of Florida during his BCT and AIT.  His commander further stated, "Soldier's unit was on orders to deploy to Iraq in March of 2008.  Soldier has repeatedly submitted this request for BAH waiver while deployed to Iraq during 2008.  He continued to receive BAH at the Colorado rate and not the rate authorized….This oversight is not the result of a lack of action on the part of the Soldier.  The Soldier's previous chain of command failed him and his family in correcting this."

9.  An email to HQDA, Office of the Deputy Chief of Staff, G-1, dated 7 May 2010, indicates a BAH waiver request was submitted on behalf of the applicant by his first sergeant.

10.  An email from HQDA, Office of the Deputy Chief of Staff, G-1, dated 21 June 2010, states deployment waivers are granted to Soldiers when they report to a new duty station after 30 January 2008 for the purpose of deploying and deploy within 12 months, and leave their dependents at their previous duty station, as BAH was based on duty station.  BAH waivers are not retroactive.

11.  In the processing of this case, an advisory opinion was obtained from HQDA, Office of the Deputy Chief of Staff, G-1.  The advisory official did not support granting administrative relief.

	a.  The advisory official stated that Title 37, section 403(d)(3)(A), allows the Secretary concerned to determine if circumstances of an assignment "require" a member's dependents to reside separately from the member.  The Army implemented its BAH waiver policy in ALARACT 021/2008 on 6 February 2008.  The policy enables Soldiers who meet the waiver guidance to receive BAH based on their previous duty station location or the area in which their dependents reside.

	b.  The advisory official continued that a Secretarial waiver authority did not exist at the time the applicant was seeking a BAH waiver based on his deployment.  Moreover, at the time her staff received the requests the applicant had already returned from deployment, executed his PCS entitlements authorized by law, and relocated his family to Fort Carson.

12.  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.

13.  On 18 December 2010, he was honorably retired by reason of permanent disability in the rank of specialist/pay grade E-4.

14.  ALARACT Message 021/2008, dated 5 February 2008, subject:  Exception to Policy Guidance for BAH Waivers, states that 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 to Fort Carson after completing BCT and AIT.  The evidence indicates the PCS was accomplished within 12 months of his new unit of assignment being deployed in support of OIF.  The waiver policy was authorized in February 2008; he was deployed in March 2008.  As such, he was eligible to apply for a BAH waiver.  His request for a BAH waiver that finally reached the appropriate office was disapproved based on being retroactive.

2.  While there is no error, it would be appropriate in the interest of equity and justice for the applicant's military records to be corrected to show he was granted a BAH waiver effective February 2008 prior to his deployment thereby allowing for continuation of his BAH based on the Florida area zip code until 3 February 2009.


BOARD VOTE:

__X_____  __X_____  ___X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is 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 for the Florida area zip code effective 5 February 2008.

2.  The Board further recommends that based on the above correction, the Defense Finance and Accounting Service pay the applicant any difference in BAH due him for the period 5 February 2008 through 3 February 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)                                         AR20100018946



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ABCMR Record of Proceedings (cont)                                         AR20100018946



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