IN THE CASE OF:	  

		BOARD DATE:	  21 October 2010

		DOCKET NUMBER:  AR20100023907 


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 his earlier request for correction of his military records to show that he was authorized to live off post and to receive basic allowance for housing (BAH).

2.  The applicant states, in effect, when he redeployed from Iraq to Fort Richardson, AK, in November 2007, the barracks were full.  He moved off post and paid rent in the amount of $1,350.00 per month.  His requests for exception to policy to reside off post were twice denied by the garrison commander based on the determination that the barracks were not at full capacity.  He contends this was an inaccurate determination because barracks occupancy rates were not reported to the garrison commander for at least 60 days after his unit redeployed.  The applicant also argues that the original Board's decision erroneously indicated he did not have permission from his unit first sergeant and company commander verifying the permission to move off post.  His 21 July 2008 memorandum to the garrison commander clearly shows the recommendations of his chain of command. 

3.  The applicant provides copies of his previously-submitted documents (a report of events; a memorandum, dated 11 July 2008, denying his request to reside off post; a memorandum from him to the garrison commander with a staff summary sheet, dated 21 July 2008, requesting an exception to policy; a memorandum from the garrison commander, dated 16 September 2008, denying his request; Congressional correspondence to the Secretary of the Army; copies of cancelled checks; and a copy of his Enlisted Record Brief).

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 AR20100000383 on 25 February 2010.

2.  The applicant did not submit any new documentary evidence; however, he submitted a new argument which was not previously reviewed by the ABCMR.  Therefore, it is considered new evidence and as such warrants consideration by the Board.

3.  The applicant's records show he enlisted in the Regular Army for a period of 4 years on 24 November 2004 and held military occupational specialty 25U (Signal Support Systems Specialist).  He served in various positions and/or locations and attained the rank/grade of sergeant (SGT)/E-5.

4.  He was honorably discharged on 23 November 2008, in the rank/grade of SGT/E-5 and he was transferred to the U.S. Army Reserve Control Group to complete his Reserve obligation.

5.  His records show he was assigned to Headquarters and Headquarters Company, 1st Battalion, 501st Infantry, Fort Richardson, AK.  He also served with this unit in Iraq from 26 September 2006 to 28 November 2007.

6.  In or around March 2008, he submitted an exception to policy request to reside off post.   

7.  On 11 July 2008, by memorandum, the garrison commander, denied his request for an exception to reside off post in accordance with the provisions of Army Regulation 420-1 (Army Facilities Management).  The denial cites paragraph 3-18d(5) which states: "Assignment and use of housing under a unit integrity concept is authorized provided the overall installation occupancy rate does not fall below 95 percent.  The denial also cites paragraph 3-18k(2)(a) which states: "Installation commanders may authorize single Soldiers in the grade of staff sergeant and below to reside off post when adequate housing is not available and military necessity is not a factor."  Therefore, the garrison commander disapproved his request.

8.  On 21 July 2008, by memorandum through his company commander and the Family Housing Office to the garrison commander, the applicant requested an exception to the policy concerning authority to reside off post.  He stated he had not been provided a room in the barracks since 28 November 2007 and had been paying out-of-pocket since then.  He also stated he had verbal permission from his first sergeant to live off post with his brother, who was a DOD civilian employee.  A coordination stamp at the bottom of this memorandum indicates that his first sergeant and company commander concurred with his request on 21 July 2008 and his battalion command sergeant major signed his name on 30 July 2008.

9.  On 16 September 2008, by memorandum, the garrison commander notified him he had reviewed his request to reside off post and disapproved it based on a 73% occupancy rate for the installation barracks.

10.  In October 2008, he started an inquiry through his Representative in Congress.  The inquiry was forwarded through the Army Office of the Chief of Legislative Liaison. 

11.  On 23 October 2008, the Chief, Congressional Affairs Division, Office of the Assistant Chief of Staff for Installation Management, responded to the applicant's Representative in Congress, concerning his request to reside off post and to receive BAH.  The response stated that the applicant's situation was being properly administered in accordance with Army Regulation 420-1 (Army Facilities Management).  This regulation provided that only the garrison commander could authorize single Soldiers in the rank of sergeant and below to live off post if adequate housing was not available on post.  On 28 November 2007, when the applicant redeployed, the occupancy rate was 42%.  There was room in barracks building 641 for the applicant.  The installation-wide barracks occupancy rate had remained below the Army's standard occupancy rate of 95%. The garrison commander cannot authorize BAH if barracks are, or were available and their size is/was commensurate with the Soldier's rank.  The applicant's chain of command did not have the authority to allow him to move from the barracks, which forced his loss of BAH.

12.  The applicant's Representative in Congress, in a letter to the Secretary of the Army, dated 20 November 2009, provided a time line of actions taken concerning the issue of the applicant's BAH.  The Representative in Congress states, in part, that the applicant submitted his request in April 2008 after returning from leave and subsequent completion of the Noncommissioned Officers Academy.  His request was disapproved in July 2008 and again in September 2008.  The Representative in Congress was informed in October 2008 that the applicant's chain of command did not have the authority to allow him to move from the barracks which caused his loss of BAH.  The Representative in Congress stated that the applicant contended he was never given a room in the barracks.  The Representative in Congress states that the applicant is out $16,764.00 due to the gross negligence in handling this decision-making process.

13.  Army Regulation 420-1 addresses the management of Army facilities. Specifically, it describes the management of public work activities, housing, and other facilities operations and management, military construction program development and execution, master planning, utilities services and energy management, and fire and emergency services.  Paragraph 3-18 (Eligibility, assignment, and termination of permanent party unaccompanied personnel housing defines the categories of permanent party unaccompanied housing.  Paragraph 3-18(k) (Authority to live off post) states Garrison commanders may authorize single Soldiers in the grade of sergeant (E5) and below to reside off post under the following conditions:  (1) when adequate housing is not available and military necessity is not a factor; (2) when the Soldier is pregnant, and (3) when the Soldier has purchased a home near the installation prior to notification of assignment to that installation.  Personnel who are authorized to reside in the civilian community shall receive HS counseling on the Equal Opportunity in Off-post Housing Program before negotiating a rental or lease agreement for community housing.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his records should be corrected to show that he was authorized to reside off post and to receive BAH.

2.  The evidence of record shows the applicant submitted a request for an exception to policy in or around March 2008 to reside off posy.  However, the approval authority, his garrison commander, denied his request on 11 July 2008 citing the availability of adequate housing.

3.  He resubmitted his request for the exception to policy to reside off post on 21 July 2008.  His unit first sergeant and company commander concurred with his request; however, their concurrence was simply a recommendation as neither had approval authority.  His request was again disapproved by the approval authority, the garrison commander on 16 September 2008.

4.  The applicant was never authorized to reside off post.  He made a personal decision to do so on his own.  As a sergeant and leader of Soldiers, he knew or should have known not to take action with obtaining proper authorization. Therefore, he is not entitled to the BAH. 



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 to amend the decision of the ABCMR set forth in Docket Number AR20100000383, dated 25 February 2010.



      _______ _   _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)                                         AR20100023907



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ABCMR Record of Proceedings (cont)                                         AR20100023907



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