IN THE CASE OF:	  

		BOARD DATE:	  4 October 2012

		DOCKET NUMBER:  AR20110015892 


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 his pay records be amended to reflect Basic Allowance for Quarters (BAQ)/Variable Housing Allowance (VHA) at the with-dependent rate for the period 18 December 1981 to 16 October 2004 and 6 April 2005 to 24 April 2007 and he receive back pay for these periods of service.

2.  The applicant states:

	a.  his BAQ/VHA issue covers two periods:  (1) the period from the birth of his first child on 18 December 1981 to the date of his activation for Operation Iraqi Freedom; and (2) the period when the BAQ/VHA at the with-dependent rate was inexplicably terminated midway during his Operation Iraqi Freedom tour on 
16 April 2005 until 24 April 2007 when his son was no longer eligible to be his dependent because he turned 24 years old.
 
	b.  after the birth of his first child he was entitled to BAQ/VHA at the with-dependent rate.  However, he only received BAQ/VHA at the single rate for the period 1981 through September 2004.  

	c.  in September 2004, he was mobilized for Operation Iraqi Freedom and his  BAQ/VHA at the with-dependent rate was initially uploaded in the pay system and then without notice part way through his tour on 6 April 2005, his BAQ/VHA at the with-dependent rate was discontinued.  He was on active duty until 
30 August 2008.  He should have been entitled to BAQ/VHA at the with-dependent rate until 24 April 2007 when his son turned 24 years old.
	d.  while he was in the Reserve on active duty over the past 28 years, every time his pay issue was going to be resolved, at the last minute either the unit administrator or he rotated out of the unit and the process had to start over again.  The extensive email correspondence from 2007 to 2009 corroborates the inability of the local unit administrator to fix his pay problems.  

	e.  in 1981 he went from active duty to the Army Reserve without a break in service.  He married in 1981 and his wife had their first child on 18 December 1981 and their second child on 24 April 1984.  He divorced in 1985.  

   f.  in 1981, he established to his unit administrator's satisfaction he was entitled to BAQ at the with-dependent rate but the Army Reserve never paid him BAQ at the with-dependent rate from 1981 through September 2004.  Over the years, he repeatedly submitted the request to adjust his pay through his unit administrator but the paperwork never went anywhere or it was lost.  He should have received BAQ/VHA at the with-dependent rate during his Desert Storm deployment from November 1990 to November 1991.  After his son finished high school in 2002 he came to live with him.    

	g.  he was mobilized for Operation Iraqi Freedom and went on active duty in September 2004.  Because his dependent son was living with him, he was entitled to BAQ/VHA at the with-dependent rate.  The finance paperwork for BAQ/VHA at the with-dependent rate was properly filed.  His son was in college and was still his dependent until 2007.  Halfway through his deployment, his BAQ/VHA at the with-dependent rate pay abruptly stopped.  His Leave and Earnings Statement (LES) shows his BAQ/VHA at the with-dependent rate entitlement was improperly terminated during his deployment between 1 April 2005 and 6 April 2005.  During demobilization back to the United States from Iraq in 2006, he was told that they could not resolve his BAQ/VHA 1981-2004 pay problem or his mobilization BAQ/VHA 2005-2007 because he was on active duty and he was to contact the Defense Finance and Accounting Service (DFAS) to resolve all his pay issues.  

	h.  in November 2006, per instructions from DFAS Indianapolis Pay Center, he sent pay statements to that office to try and resolve the BAQ/VHA at the with-dependent rate pay issue for the period 18 December 1981 to 16 October 2004.  In February 2007, he was informed by DFAS he should resolve his pay issues through his Reserve unit.  In March 2007, he provided the documentation to his unit administrator and the battalion unit administrator.  The battalion administrator requested he submit a pay inquiry on 15 August 2008 but he never received a response.     


3.  The applicant provides:

* Letter to unit commander, dated 16 March 2007, with four enclosures
* Correspondence between himself and his unit detachment/or battalion headquarters after 16 March 2007 to 5 February 2009
* Additional support documentation provided to his chain of command regarding eligibility for dependent BAQ/VHA from 6 April 2005 through 
      24 April 2007
* LESs
* Pay inquiry
* DA Form 4651 (Request for Reserve Component Assignment or Attachment) with retirement packet
* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 30 August 2008 
 
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.  Having prior commissioned service in the Regular Army, the applicant was appointed a captain in the U.S. Army Reserve on 13 August 1981.  

3.  On an unknown date in 1981, he married.  His daughter was born in December 1981 and his son was born on 24 April 1984.  He divorced on 
31 May 1985.

4.  On 17 November 1990, he was ordered to active duty in support of Operation Desert Shield/Storm.  He served in Southwest Asia from 14 April 1991 to 
27 September 1991.  He was released from active duty on 13 November 1991.  On 31 August 2002, he was promoted to colonel.  

5.  He was ordered to active duty on 17 October 2004 in support of Operation Iraqi Freedom.  He served in Iraq from 17 December 2004 to 22 February 2006.  On 30 August 2008, he was released from active duty.    

6.  In the processing of this case, a staff advisory opinion was obtained from the Chief, Systems Liaison and Procedures Division, Military Pay Operations, DFAS, Indianapolis, IN on 25 July 2012.  The opinion states a review of the applicant's official military pay records was conducted to determine eligibility for additional BAQ/Basic Allowance for Housing (BAH) for the period 18 December 1981 through 24 April 2007.  The opinion points out with the various legislative changes that occurred throughout the period in question, their findings are as follows:

	a.  for the period 18 December 1981 through 16 November 1990, DFAS is unable to validate whether or not BAQ at the with-dependent rate was paid.  During this period, periods of active duty were paid by check on manual pay vouchers (DA Form 2139).  The applicant must provide copies of the DA Forms 2139 and orders for all periods of active duty in order to determine what BAQ rate was paid.

	b.  for the period 17 November 1990 through 11 November 1991, he was paid BAQ at the with-dependent rate during his deployment.  This is reflected on his LES as "BAQPV" (with-dependent BAQ paying child support).  No entitlement is due.

	c.  for the period 11 November 1991 through 31 May 1993, DFAS is unable to validate whether or not BAQ at the with-dependent rate was paid.  During this period, periods of active duty were paid by check on manual pay vouchers.  He must provide copies of the DA Forms 2139 and orders for all periods of active duty in order to make a determination what BAQ rate was paid.  Effective December 1991, he would have been entitled to BAH-difference for periods of active duty.  Orders are essential to determine his quarters status.  Members without dependents performing active duty where quarters are directed/available are authorized either BAH-partial plus 1 day at the BAH II without rate or in his case BAH-difference plus one day at the BAH II without rate for the last day of active duty.             

	d.  for the period 1 June 1993 through 28 July 1999, he is entitled to BAH-difference less BAH-partial for all periods of active duty served.  He provided a notarized affidavit, dated 28 July 1999, signed by his ex-wife, validating he had paid monthly child support from the date of divorce to present.  DFAS identified all periods of active duty and calculated the difference in what was previously paid versus what he was due.  He is entitled to $493.41 for this period.
	e.  for the period 29 June 1999 through 23 April 2002, he has no documented proof that he was paying child support and therefore entitlement to BAH-difference is discontinued and no further entitlement exists.  If he is able to provide proof of support, he is entitled to BAH II without and BAH-difference (in the amount of $397.05) in accordance with official orders. 

	f.  in April 2002, his son turned 18 and he no longer paid child support.  A sworn affidavit, dated 16 February 2009, from the son, stated he moved to California to live with his father and enrolled in college in the summer of 2002.  For the period August 2002 through October 16 October 2004, the applicant would be entitled to BAH II with-dependent rate for all periods of active duty.  DFAS identified all periods of active duty and calculated the difference in what was previously paid versus what he was due.  He is entitled to $2,332.01 for this period.     

	g.  for the period 17 October 2004 through 23 April 2005, he was authorized and paid BAH with-dependent rate for California.  He was deployed in support of contingency operations and BAH was based on his home of record.

	h.  effective 24 April 2005, his son turned 21 years of age and his BAH with-dependent was stopped.  In accordance with established regulatory guidance, policy and procedures, he must complete and submit a DD Form 137-6 (Dependency Statement – Full Time Student 21-22 years of Age) to DFAS for each academic school year.  If he meets the 50% support threshold, BAH with-dependent rate would be authorized.  DFAS has no record of receiving a completed packet for the applicant.  BAH entitlement was changed from BAH with-dependent to BAH without dependent effective 24 April 2005.  It was noted a copy of a completed DD Form 137-6 was provided by the Army Board for Correction of Military Records in the documentation provided.  Upon review, the packet is missing a letter from the school registrar validating the son was enrolled as a full-time student.  As stated previously, individual DA Form 137-6 packets must be submitted for his academic school year and contain individual letters from the school registrar.  Once complete, DFAS will be able to render a dependency determination to authorize BAH.      

7.  On 12 September 2012, a copy of the advisory opinion was forwarded to the applicant for comment and possible rebuttal.  The applicant did not respond within the given time frame.

8.  The doctrine of laches is defined by Black’s Law Dictionary, sixth edition, as the neglect to assert a right or claim which, taken together with lapse of time and other circumstances causing prejudice to the adverse party, operates as a bar in a court of equity.
DISCUSSION AND CONCLUSIONS:

1.  The applicant requests his pay records be amended to reflect BAQ/VHA at the with-dependent rate for the period 18 December 1981 to 16 October 2004 and 6 April 2005 to 24 April 2007 and requests he receive back pay for these periods of service.

2.  Following a review of the applicant's official military pay records, the Chief, Systems Liaison and Procedures Division, Military Pay Operations, DFAS, Indianapolis, determined:

	a.  for the period 18 December 1981 through 16 November 1990, DFAS is unable to validate whether or not BAQ at the with-dependent rate was paid.  He must provide copies of the DA Forms 2139 and orders for all periods of active duty in order to make a determination what BAQ rate was paid.  No entitlement is due at this time.

	b.  for the period 17 November 1990 through 11 November 1991, he was paid BAQ at the with-dependent rate during his deployment.  No entitlement is due.

	c.  for the period 11 November 1991 through 31 May 1993, DFAS is unable to validate whether or not BAQ at the with-dependent rate was paid.  He must provide copies of the DA Forms 2139 and orders for all periods of active duty in order to make a determination what BAQ rate was paid.  No entitlement is due at this time.  

	d.  for the period 1 June 1993 through 28 July 1999, he is entitled to BAH-difference less BAH-partial for all periods of active duty served.  He is entitled to $493.41 for this period.

	e.  for the period 29 June 1999 through 23 April 2002, he has no documented proof that he was paying child support and therefore entitlement to BAH-difference is discontinued and no further entitlement exists.  If he is able to provide proof of support, he is entitled to BAH II without and BAH-difference (in the amount of $397.05) in accordance with official orders.  No entitlement is due at this time. 

	f.  for the period August 2002 through October 16 October 2004, the applicant would be entitled to BAH II with-dependent rate for all periods of active duty.  He is entitled to $2,332.01 for this period.     

	g.  for the period 17 October 2004 through 23 April 2005, he was authorized and paid BAH with-dependent rate for California.  He was deployed in support of contingency operations and BAH was based on his home of record.
	
	h.  effective 24 April 2005, his son turned 21 years of age and his BAH with-dependent was stopped.  He must complete and submit a DD Form 137-6 to DFAS for each academic school year.  If he meets the 50% support threshold, BAH with-dependent rate would be authorized.  BAH entitlement was changed from BAH with-dependent to BAH without dependent effective 24 April 2005.  Once complete, DFAS will be able to render a dependency determination to authorize BAH.  No entitlement is due at this time.      

3.  It appears that, for the period 1 June 1993 through 28 July 1999, he is entitled to BAH-difference less BAH-partial in the amount of $493.41 for this period.  In addition, for the period August 2002 through October 16 October 2004, he would be entitled to BAH II with-dependent rate in the amount of $2,332.01 for this period.  He should have received a total of $2,825.42; this did not happen.  In the interest of justice and equity, he should receive that pay now.

4.  The applicant’s reason that it has taken almost 30 years to resolve this pay issue (every time his pay issue was going to be resolved, at the last minute either the unit administrator or he rotated out of the unit) is noted.  However, other resources (e.g., the Inspector General) were available to assist him in resolving this issue in a timely manner.  Now, after that many intervening years, documentation confirming his pay entitlements is not available or not readily available.  An arbitrary ruling in his favor for those years with no verifying documents, without knowing what those documents would have shown, would cause prejudice to the Government.  In those cases where the applicant cannot provide the required documentation, the doctrine of laches is invoked.

5.  It is noted that if the applicant can provide additional documentation, as requested by DFAS, he might be entitled to additional compensation.  He should provide this documentation to DFAS.   

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____x___  ____x___  ____x___  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 partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his pay records to show:  

	a.  for the period 1 June 1993 through 28 July 1999, he is entitled to BAH-difference less BAH-partial in the amount of $493.41.

	b.  for the period August 2002 through October 16 October 2004, he is entitled to BAH II with-dependent rate in the amount of $2,332.01.         

	c.  as a result of these corrections, DFAS pay him these monies.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to any additional BAQ/VHA at this time.



      _______ _   _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)                                         AR20110015892





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ABCMR Record of Proceedings (cont)                                         AR20110015892



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