IN THE CASE OF:	  

		BOARD DATE:	  13 September 2012

		DOCKET NUMBER:  AR20110024967 


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 correction of his military records to show he was granted a secretarial waiver to receive basic allowance for housing (BAH) based on his dependent's location, Korea, instead of his duty station, Fort Irwin, CA.

2.  The applicant states he requested a waiver for an exception to policy; however, his request was never sent to the Pentagon for final approval.

3.  The applicant provides:

* a copy of his permanent change of station (PCS) orders to Camp Casey, Korea with a report date of 30 July 2008
* a copy of his PCS orders to Weed Army Community Hospital, Warrior Transition Unit (WTU), Fort Irwin, CA with a report date of 22 March 2011 with a modification to these orders
* Notification of Medical Evaluation Board (MEB) Processing and Documents Required, dated 30 March 2011
* two DA Forms 4187 (Personnel Action) transferring him between units at Fort Irwin
* DA Forms 4187, dated 9 June and 19 July 2011, requesting a change of his BAH from CA to Korea and an additional request dated 21 June 2011
* a letter, dated 11 July 2011, subject: Exception to Policy for BAH, from his battalion commander
* three DD Forms 1172 (Application for Uniformed Services Identification Card Defense Enrollment Eligibility Reporting System (DEERS) Enrollment)
* five pages from his Army Knowledge Online account showing his current DEERS family coverage
* three certificates of education and student status, translated by the applicant
* his marriage certificate (illegible)
* four pages concerning his application for his son's Consular Report of Birth Abroad
* five pages of a Soldier's Personal Data Sheet, dated 11 April 2011

CONSIDERATION OF EVIDENCE:

1.  On 11 April 2008, he enlisted in the Regular Army.  

2.  On 10 July 2008, he received PCS orders to Camp Casey, Korea with a report date of 30 July 2008.  On 14 October 2009, he immediately reenlisted in the Regular Army to remain in Korea.  

3.  He got married on 18 June 2010.  The DD Forms 1172 he submitted shows he has a spouse and three children with him in Korea.

4.  On 3 March 2011, he received PCS orders for Weed Army Community Hospital, WTU, with a report date of 22 March 2011 to continue medical treatment.  In the special instructions of the orders, dependents was shown as "No."

5.  On 11 March 2011, his PCS orders were modified to show in special instructions, dependents "Yes."

6.  On 30 March 2011, he was notified he had been referred to an MEB.  Effective 8 April 2011, he was reassigned to the 1916th Support Battalion at Fort Irwin and further assigned to the 916th Support Brigade at Fort Irwin effective 
11 April 2011.  

7.  He submitted three certificates of education and student status, which was translated by him on 4 May 2011, that show:

* his 4 year old son was enrolled in Ye Won Art pre-school
* his 7 year old son was a first year student at the Seoul Dock San Elementary School
* his wife had studied the Korean language to take Korean citizenship

8.  A DA Form 4187, dated 9 June 2011, and a memorandum, dated 21 June 2011, were provided to the Defense Finance and Accounting Service (DFAS) Headquarters, requesting a change of his BAH from Fort Irwin, CA with dependents rate to Seoul, Korea based on the location of his spouse and other dependents. 

	a.  He requested an exception to policy in accordance with All Army Action (ALARACT) message 021/2008 (Exception to Policy Guidance for BAH Waivers), section 4, subparagraph C2.  His two children and his wife were enrolled in school in Seoul, Korea.

	b.  His son was not granted a Visa by the U.S. State Department.  They were requesting additional proof of paternity.  His son could not leave Korea while this issue was unresolved.

9.  His battalion commander submitted a memorandum, dated 11 July 2011, to DFAS Headquarters requesting approval of the applicant's request for this exception policy.  

	a.  The commander stated the applicant had three dependents, two children and his spouse, enrolled in educational programs in Seoul, Korea.  His children spoke only limited English.  His wife was enrolled in a Korean college program designed to earn her Korean citizenship.

	b.  The applicant has an extraordinary issue that is not covered by ALARACT 021/2008, but it is pertinent to this request.  The U.S. State Department would not grant the Soldier's new baby a Visa until further paternity proof can be provided.  The baby was born in a military hospital and is the applicant's dependent.  The baby, the mother, and the other children could not leave Korea until the matter is resolved.

	c.  The applicant's household was established on 23 June 2010.

10.  A DA Form 4187, dated 19 July 2011, requested that his BAH be changed from Fort Irwin, CA with dependents rate to Seoul, Korea based on the location of his spouse and other dependents.  His brigade commander recommended approval of this request.

	a.  The applicant was transferred on PCS orders from Korea to the United States in March 2011 for medical treatment at the Fort Irwin WTU.  He left his family in Korea, traveling on PCS orders without dependents.  


	b.  He was subsequently referred to an MEB and was completing that process.  The applicant is entitled BAH for Korea in accordance with current guidance.

11.  On 7 September 2011, he was discharged by reason of disability.  He received non-combat related severance pay.  He was assigned a 10 percent disability rating.

12.  An advisory opinion, dated 13 February 2012, was received from the Office of the Deputy Chief of Staff - G1.

	a.  The applicant's entitlement was BAH at the with dependent rate for Fort Irwin, CA.

	b.  BAH waivers are considered for BAH locations only, unless delayed travel is requested, under certain circumstances, and for a temporary period of time.  

	c.  Visas are the responsibility of the Soldier and not considered for a waiver.  The inability to speak English and seeking citizenship in a foreign country are not considered for a waiver, which is the reason these situations are not found in the ALARACT message.  

	d.  If the applicant's request for a waiver had been received at G-1 it would have been disapproved.

13.  ALARACT Message 021-2008 prescribes the policy for Secretarial waivers for BAH at other than the Soldier’s duty station location.  
	a.  Paragraph 4C provides four distinct categories for consideration when circumstances require dependents to reside separately from the member.

* Soldiers who receive PCS orders to units deploying within 12 months of arrival
* Soldiers who have dependents in educational programs they do not wish to disrupt
* Soldiers who wish to have their spouses continue employment at the old duty station
* Soldiers who have dependents with medical considerations that warrant leaving them at the old duty station's location


	b.  Requests are to be submitted to the Department of the Army, Office of the Deputy Chief of Staff, G-1 for determination.

DISCUSSION AND CONCLUSIONS:

1.  He received PCS orders to Fort Irwin and was authorized to move his dependents from Korea to Fort Irwin.  His dependents remained in Korea due to two of his children only speaking limited English, his wife was enrolled in a Korean college program designed to earn her Korean citizenship, and the issue of a Visa for his youngest son.

2.  His request for an exception policy to receive BAH based on his dependents location in Korea was not forwarded beyond his brigade commander to the Army G-1.

3.  ALARACT Message 021-2008 provides only for consideration of such requests and does not provide specific criteria for approval.  

4.  The Army G-1 advisory opinion states that if the applicant's request had been received it would have been disapproved.  G-1's determination that Visa's are the responsibility of the Soldier and are not considered for a waiver appears to be valid.  The limited English skills of his children and his wife seeking citizenship in a foreign country do not fall within the circumstances listed in the ALARACT message for consideration for exception to policy.

5.  In view of the above, there is an insufficient basis on which to base relief in this case.

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)                                         AR20110024967



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ABCMR Record of Proceedings (cont)                                         AR20110024967



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