BOARD DATE:	  19 April 2012

		DOCKET NUMBER:  AR20110023040 


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, in effect, payment for dual basic allowance for housing (BAH).

2.  The applicant states:

* in May 2010, he made a permanent change of station (PCS) move of his family from Wheat Ridge, CO to Texarkana, TX when he sold his house, packed household goods, and his family left
* 3 days later, he was to finish clearing, sign out, and join his family at the next assignment (TX), but was informed that he was being deferred
* about 3 months later, his orders were revoked
* he was put in a financial situation through no fault of his and in good faith to complete the orders
* he sought assistance from his commander and sergeant major to get his family and things back to him in CO, but he was told no
* for 13 months he was separated from his family and forced to pay for two residences
* it was not until November 2011 that he was advised by the Chief, Defense Finance Accounting Service (DFAS) that he could receive dual BAH
* even though  he had requested assistance both financially and to possibly move his family back to CO, he was forced into separation through no fault of his own
* there was nothing he could do to prevent the situation from happening
* he would not have been put into the situation if his command had knowledge of dual BAH or other things
 3.  The applicant provides:

* Orders Number 057-10, Headquarters, U.S. Army Recruiting Command (HQ USAREC), Fort Knox, KY, dated 26 February 2010
* Orders Number 260-01, HQ USAREC, Fort Knox, KY, dated
17 September 2010
* Orders Number 313-01, HQ USAREC, Fort Knox, KY, dated 9 November 2010

CONSIDERATION OF EVIDENCE:

1.  After having prior service, the applicant reenlisted on 2 March 2006 in the Regular Army under the Indefinite Reenlistment Program.   At the time of his reenlistment he had a total of 10 years, 6 months, and 24 days of active service.  The applicant is presently serving on active duty in the rank/grade of first sergeant/E-8.

2.  Orders Number 057-10, dated 26 February 2010, shows the following:

	a.  the applicant was ordered to PCS from a USAREC unit in Wheat Ridge, CO to a USAREC unit in Texarkana, TX.

	b.  his reporting date was 10 August 2010 with early reporting authorized.

	c.  he was authorized to move his dependents.

	d.  information regarding housing shows the USAREC Leased Housing Program is available to all Soldiers assigned to USAREC units in areas where housing costs are not fully supported by the BAH.  If you are interested in participating or have questions you can visit the USAREC website.

3.  Orders Number 260-01, dated 17 September amended Orders Number 
057-10, by changing the applicant's reporting date to 10 December 2010 with early report authorized not to exceed 60 days.  

4.  Orders Number 260-01 were published after the applicant's earlier reporting date of 10 August 2010.

5.  Orders Number 313-01, dated 9 November 2010, revoked Orders Number 057-10.


6.  Records show the applicant was part of an Army Regulation 15-6 investigation which concluded in August 2010.  As a result of the findings and recommendations of the investigations, the applicant received a reprimand.  In response to the reprimand, the applicant stated the 15-6 investigation began 3 days prior to his PCS and that in May 2010, he sold his home and his family left for the next assignment and had been there since.

7.  During the processing of this case, an advisory opinion was obtained from the Deputy Chief, Compensation and Entitlements Division, Office of the Deputy Chief of Staff G-1, Washington, D.C.  The advisory contained the following:

	a.  There is no authority to pay dual BAH when Soldiers are assigned to CONUS (Continental U.S.) tours.  The JFTR (Joint Federal Travel Regulation) clearly states that BAH is based on duty station upon reporting.

	b.  As the applicant did not report to Texarkana, TX, his BAH at the dependent rate, should have continued for Wheat Ridge, CO, until he reported to his next permanent duty station (PDS).

	c.  In cases where the BAH is higher at the next PDS, Soldiers can request advanced travel of dependents to start BAH when arriving ahead of the Soldier; however, when moving to a lower cost BAH area such as Texarkana, it would not be necessary, as only one BAH rate is authorized.

	d.  When dependents are moved on orders and then the order is revoked, the Army will pay to relocate the dependents to accompany the Soldier.

8.  On 10 February 2011, the applicant was provided a copy of the advisory opinion for information and to allow him the opportunity to submit comments or a rebuttal.  The applicant did not respond.

9.  The Department of Defense Financial Management Regulation (DODFMR), volume 7a, chapter 26, table 26-9, note 1e, states that a member assigned to a permanent duty station (PDS) in the United States is entitled to BAH at the rate applicable to the location where their dependents maintain a permanent residence or the member's old duty station if the Service Secretary or a designated representative determines it is necessary for dependents to reside in a military housing area other than the one in the PDS.

10.  The DODFMR further states that a waiver may be granted for the BAH rate at the member's old duty station if the Soldier has been disadvantaged as a 


result of reassignment for reasons of improving mission capability and readiness of the unit, in receipt of PCS orders between duty stations located in the same proximity, and disallowed movement of HHG.  The Secretary concerned must issue a determination that a decision to implement this policy is in the interest of correcting an inequity incurred due to movement of the individual for purposes of improving mission capability and unit readiness.

11.  The Fiscal Year 1995 National Defense Act approved the continental United States (CONUS) cost of living allowance (COLA) to provide compensation for variations in non-housing costs in CONUS.  The fundamental goal of CONUS COLA is to compensate for a high cost of living and is payable to uniformed service members based on duty stations in CONUS.

12.  The Fiscal Year 2001 National Defense Authorization Act provides policy guidance for Secretarial waiver to receive BAH at other than the Soldier's duty station location.  All Army Activities Message 021/2008, subject:  Exception to Policy Guidance for Basic Allowance for Housing Waivers, clarifies this policy and provides authority for the Service Secretaries to approve BAH waivers when:

	a.  the member is assigned to a PCS under the conditions of a no cost/low cost move;

	b.  duty at the member's PDS or circumstances of the assignment to the PDS requires the member's dependents to reside separately from the member; or

	c.  professional military education and training requires a PCS move of 12 months or less.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for dual BAH was carefully considered and determined to lack merit.

2.  PCS orders provided by the applicant show he was assigned to Wheat Ridge, CO, and he subsequently received orders to Texarkana, TX, with a reporting date of 10 August 2010.  These orders were amended to change the reporting date to 10 December 2010.  However, the applicant had already moved his family in anticipation of his earlier reporting date.  Nevertheless, the PCS orders were revoked on 9 November 2010. 

3.  Although the applicant acted in good faith by preparing and relocating his family to the new duty station based upon his original reporting date of 10 August 


2010, there is no evidence the Secretary concerned determined the circumstances of his assignment required his dependents to reside separately from him.  Further, when dependents are moved on orders, and then the orders are revoked, the Army will pay to relocate the dependents to accompany the Soldier.  The applicant has failed to provide sufficient evidence to the contrary.

4.  Since he received the proper BAH entitlement for his permanent duty station location, 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)                                         AR20110023040



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ABCMR Record of Proceedings (cont)                                         AR20110023040



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