IN THE CASE OF:	  

		BOARD DATE:	  2 June 2011

		DOCKET NUMBER:  AR20100020481 


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 compensation for Basic Allowance for Housing (BAH) for Pittsburgh, PA instead of Fort Stewart, GA and Fort Polk, LA.

2.  The applicant states:

* His wife and child lived in Pittsburgh, PA while he was deployed for 
      24 months in Iraq    
* BAH was given at a rate for Fort Stewart, GA and Fort Polk, LA instead of Pittsburgh, PA
* He was given orders to deploy very shortly after being assigned to these duty stations
* His wife stayed in her hometown to care for her aging mother who could not be alone
* No other relatives were available
* When he was deployed it was allowable to let his wife live in Pittsburgh, PA
* BAH rates were significantly different
* He applied for a waiver and was directed to apply to this Board since he was discharged
* His Leave and Earnings Statements history shows BAH for Fort Stewart, GA and Fort Polk, LA  




3.  The applicant provides:

* Permanent change of station (PCS) orders, dated 8 August 2006 and 
   11 February 2009
* Deployment orders, 10 June 2009
* Temporary change of station orders, dated 7 September 2006  

CONSIDERATION OF EVIDENCE:

1.  Having prior service in the U.S. Army Reserve, he enlisted in the Regular Army on 7 June 2006 for a period of 4 years.  He completed his training and was awarded military occupational specialty 21K (plumber).  

2.  He provided PCS orders, dated 8 August 2006, which show he was assigned to Fort Stewart, GA with reporting date of 20 August 2006.

3.  He provided temporary change of station orders, dated 7 September 2006, which show he was assigned to Iraq on or about 30 October 2006.  These orders state, in pertinent part, BAH for Regular active duty Soldiers is based upon their permanent duty station. 

4.  Defense Finance and Accounting Service records show he received hostile fire/imminent danger pay from 30 October 2006 to 28 October 2007. 

5.  He provided PCS orders, dated 11 February 2009, which show he was assigned to Fort Polk, LA with reporting date of 10 April 2009.

6.  He provided deployment orders, dated 10 June 2009, which show he was assigned to Iraq in support of Operation Iraqi Freedom on or about 12 June 2009.  These orders state, in pertinent part, for active duty Soldiers, including Active Guard Reserve, variable housing allowance (VHA) is based upon their permanent duty station.

7.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he served in Iraq from 11 June 2009 to 27 April 2010.  On 15 August 2010, he was honorably discharged. 

8.  In the processing of this case, an advisory opinion was obtained from the Chief, Compensation and Entitlements Division, Office of the Duty Chief of Staff, G-1, Washington, D.C.  The advisory opinion recommends disapproval of the applicant's request.  The opinion states:

	a.  the applicant was receiving the proper BAH entitlement for his permanent duty station locations, Fort Stewart, GA and Fort Polk, LA.

	b. 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
All Army Activities (ALARACT) Message 021/2008 on 6 February 2008.  The
policy enables Soldiers, who meet the waiver guidelines, to receive BAH based on their previous duty stations location or their dependent's designated location.

	c.  Secretarial waiver authority did not exist at the time he was assigned to
Fort Stewart in 2006.  Moreover, his dependent spouse chose to reside in PA to
care for her aging mother while he was deployed in 2009.  The choice
has no impact on the housing allowance.  In order to qualify for a waiver, the
applicant's spouse must have continued to reside at this previous duty station,
Fort Stewart, during his deployment from Fort Polk.   	    

9.  The advisory opinion was furnished to the applicant for his review and possible rebuttal.  On 17 April 2011, it appears his wife responded and stated:

* She was shocked the government would want the spouse of a deployed Solder in a combat zone to leave the comfort of familiar surroundings and an already-established support system
* She does understand the choice is up to the Soldier and his spouse
* She is shocked and deeply disappointed that a spouse who chooses to stay home caring for an aging mother, rather than moving to an Army base where she knows no one and is unable to care for her loved one, is financially penalized for choosing not to move
* She would think when a Soldier is deployed, the spouse, who is left behind, would be supported by the government in every way possible
* Why would she have moved to Fort Stewart, GA when her husband knew of his imminent deployment within days of arriving there?
* The same when he was relocated to Fort Polk, LA
* He was no sooner there when he was deployed weeks later
* Is it the intent of the military to penalize the spouse of a deployed Soldier for wanting to feel safe and secure with her family and all that is familiar?
* She is not asking for BAH for Pittsburgh, PA for the time her husband was not deployed
* She strongly feels she should not have been financially penalized for living in Pittsburgh, PA while her husband was fighting for freedom in Iraq
* The difference in BAH between Forts Stewart and Polk and Pittsburgh, PA is a small price to pay for her peace of mind while her husband was off defending our country   
10.  Title 37, U.S. Code, section 403(d)(3)(A) states if the member's assignment to duty in that area, or the circumstances of that assignment, require the member's dependents to reside in a different area, as determined by the Secretary concerned, the amount of the BAH for the member shall be based on the area in which the dependents reside or the member's last duty station, whichever the Secretary concerned determines to be most equitable. 

11.  ALARACT Message 021/2008, dated February 2008, provides policy guidance for Secretarial waivers to receive BAH at other than the Soldier's duty station location.  The message states a qualifying circumstance for BAH Secretarial waiver consideration is when circumstances require dependents to reside separately from the member for the following categories:  (1) Soldiers who receive PCS orders to units deploying within 12 months of arrival; (2) Soldiers who have dependents in educational programs they do not wish to disrupt; 
(3) Soldiers who wish to have their spouses continue employment at the old duty station; and (4) Soldiers who have dependents with medical considerations that warrant leaving them at the old duty station location.   

DISCUSSION AND CONCLUSIONS:

1.  PCS orders provided by the applicant show he was assigned to Fort Stewart, GA in August 2006.  Subsequently, he was deployed to Iraq and his temporary change of station orders, dated 7 September 2006, state BAH for Regular active duty Soldiers is based upon their permanent duty station.  In his case, it was Fort Stewart, GA.   

2.  He contends when he was deployed it was allowable to let his wife live in Pittsburgh.  However, Secretarial waiver authority did not exist during his first deployment in 2006/2007.  

3.  PCS orders provided by the applicant show he was assigned to Fort Polk, LA in April 2009.  Subsequently, he deployed a second time to Iraq and his deployment orders, dated 10 June 2009, state for active duty Soldiers VHA is based upon their permanent duty station.  In his case, it was Fort Polk, LA.  

4.  There is no evidence the Secretary concerned determined the circumstances of his assignment required his dependents to reside separately from him.  In order to qualify for a BAH Secretarial waiver in 2009/2010, his spouse must have continued to reside at his previous duty station, Fort Stewart, GA during his second deployment from Fort Polk, LA.  She chose to reside in PA to care for her aging mother while he was deployed.

5.  Since he received the proper BAH entitlement for his permanent duty station locations, there is insufficient evidence on which to grant his request.

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)                                         AR20100020481





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ABCMR Record of Proceedings (cont)                                         AR20100020481



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