IN THE CASE OF:	  

		BOARD DATE:  10 April 2012

		DOCKET NUMBER:  AR20110019796 


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 payment of the basic allowance for housing differential (BAH-DIFF) rate.

2.  The applicant states that upon enlistment in the Army in May 1999, he was under a court order to provide support to his dependent son.  During his inprocessing at the reception station, no one informed him of this entitlement.  Upon arrival at his first permanent duty station, he was informed of the entitlement but he was never paid back pay for this entitlement.  He learned of this entitlement recently.

3.  The applicant provides his initial court order, dated 1 February 1999.

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 applicant's records show he enlisted in the Regular Army on 6 May 1999 and he held military occupational specialty 73C (Finance Specialist).

3.  Section VI (Remarks) of his DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United State) shows he had a son and he was paying child support.

4.  He served in a variety of stateside or overseas assignments and he was honorably released from active duty on 5 May 2003.

5.  The applicant provides a court order, dated 1 February 1999, that shows the Superior Court of Decatur County, GA, ordered him to pay child support in the amount of $30.00 per week.

6.  An advisory opinion was obtained from the Office of the Deputy Chief of Staff, G-1, on 28 November 2011 in the processing of this case.  An official recommended disapproval and stated in order to be considered for the BAH-DIFF, the applicant must prove he was paying adequate child support, verify the child was enrolled in the Defense Enrollment Eligibility Reporting System (DEERS), and state the time period and grades for the period shown on his DD Form 214 (Certificate of Release or Discharge from Active Duty) that show he was not married to another Soldier receiving the with-dependent rate for the same child.  Based on the preliminary look on the Defense Travel Management Office site, the amount of child support ordered may not have been sufficient to warrant this entitlement.

7.  He was provided with a copy of this advisory opinion but he failed to respond.

8.  The Defense Finance and Accounting Service official website provides the following definitions:

	a.  BAH is a U.S.-based allowance prescribed by geographic duty location, pay grade, and dependency status.  It provides military members equitable housing compensation based on housing costs in local civilian housing markets within the United States when government quarters are not provided.  A member assigned to permanent duty within the 50 United States who is not furnished government housing is eligible for a BAH based on the member's rank, dependency status, and permanent duty station zip code.

	b.  Although BAH distinguishes between with dependents and without dependents, the with-dependent compensation is based on comparable civilians using average family size.  The BAH allowance of a member who is divorced and has children depends on whether the member has legal and physical custody of the children, pays child support, and/or lives in single-type government quarters.  If the member has legal and physical custody of his/her children, then he/she is authorized BAH at the with-dependent rate if not assigned adequate family-type government quarters.  If the former spouse has custody and the member is paying adequate child support (at least in an amount of the member's BAH-DIFF rate), the member is authorized BAH at the with-dependent rate if not in government quarters or BAH-DIFF if assigned single-type government quarters.

	c.  BAH-DIFF is the housing allowance amount for a member who is assigned to single-type quarters and who is authorized a BAH solely by reason of the member's payment of child support.  A member is not authorized BAH-DIFF if the monthly rate of that child support is less than the BAH-DIFF amount.  The BAH-DIFF amounts, originally calculated in 1997, are updated annually based on changes in the basic pay tables (Joint Federal Travel Regulation (JFTR), paragraph U10008).

	d.  Military members who don't have custody and are paying child support are not authorized to reside in the barracks and receive full-rate BAH.  Instead, such members are paid an entitlement called BAH-DIFF.  BAH-DIFF is the difference between the full married rate and full single rate of BAH type II (Reserve Component/Transit), (which is a different allowance than BAH type I, the full active duty housing allowance).  In order to receive this allowance, however, the military member must or may have to prove (by support agreement or court order) that the amount of child support he or she provides equals or exceeds the amount of BAH-DIFF he or she is entitled to.  If the amount of support is less than the BAH-DIFF entitlement, the member receives nothing.  Single members who are authorized to reside off base at government expense who pay child support are entitled to the full with-dependent rate BAH.  BAH-DIFF rates are computed from the difference between the full rate and single rate for specific ranks, so it doesn't mean that one with more rank receives a greater BAH-DIFF amount.

9.  Paragraph U10008 of the JFTR states that BAH-DIFF is the difference between the with and without-dependent basic allowance for quarters rates.  There are limitations to the BAH payable amount for a member authorized BAH solely on the basis of child support.  If a member is assigned to single-type government quarters or a single-type housing facility under a Uniformed Service's jurisdiction and is authorized BAH solely by reason of the member's adequate child support payment, the member is authorized only BAH-DIFF.  A member is not authorized BAH-DIFF if the child support payment is less than the member's applicable pay grade BAH-DIFF amount.  A member not assigned to government quarters who is authorized BAH on behalf of a dependent solely on the basis of child support payment is authorized a with-dependent housing allowance.  A member is not authorized BAH solely on the basis of the member's child support payment when the child/children is/are in another active duty member's custody (including a former spouse) who is assigned to government- owned/leased family-type quarters (does not include privatized quarters) or is in receipt of a with-dependent housing allowance or on behalf of the child/children.

DISCUSSION AND CONCLUSIONS:

1.  The applicant enlisted in the Regular Army on 5 May 2003.  According to his court order, he had an obligation to pay child support at the time.  However, he provides insufficient information or documentation to support his request for retroactive pay for the BAH-DIFF.

2.  In the absence of additional evidence that conclusively shows he was paying adequate child support, his child was enrolled in DEERS, and the periods and grades for the period shown on his DD Form 214 that show he was not married to another Soldier receiving the with-dependent rate for the same child, there is insufficient evidence to grant him the requested relief.

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 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)                                         AR20110019796



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ABCMR Record of Proceedings (cont)                                         AR20110019796



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