IN THE CASE OF:	   

		BOARD DATE:	  17 May 2012

		DOCKET NUMBER:  AR20120004737 


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 records to show a Basic Allowance for Housing (BAH) waiver was granted to change the location used to calculate his BAH based upon the 20783 zip code, effective 30 August 2011.

2.  The applicant states effective 21 April 2011, he was transferred to Headquarters and Headquarters Company (HHC), 29th Combat Aviation Brigade, Aberdeen Proving Ground (APG), MD, 21010-5420, with duty location at Adelphi, MD, 20783, to fill a vacant position in a mobilizing unit.  The order was amended on the same day to place him in the correct duty position.  This was an involuntary, command-directed, transfer as a no/low cost move for the purpose of improving mission capability and readiness of a mobilizing unit. 

3.  Three days prior to the effective date of his transfer, Headquarters, 29th Combat Aviation Brigade received its first Army mobilization order, effective 
18 April 2011, with subsequent mobilization on 30 August 2011, four and a half months from his date of transfer. 

4.  He applied for a BAH waiver on 6 October 2011 via email to Headquarters, Department of the Army, Office of the Deputy Chief of Staff, G-1, in accordance with (IAW) All Army Activities (ALARACT) Message Number 021/2008.  On the same day he received disapproval via email which stated waivers are not granted retroactively, they are approved from the date of receipt. 

5.  He requests, in the interest of equity and justice, that his military records be corrected to show a BAH waiver was granted, based upon the 20783 zip code, effective 30 August 2011.  Additionally, there appears to be a precedent established in granting relief as exhibited in Army Board for Correction of Military Records (ABCMR) Docket Number AR20100016278.

6.  The applicant provides:

* Email, dated 6 October 2011
* Memorandum, dated 6 October 2011
* Orders Number 339-061, dated 4 December 2008
* Special Orders Number 307-AR, dated 18 December 2009
* Orders Number 157-992, dated 23 December 2009
* Memorandum, dated 6 July 2010
* Permanent Orders Number 1A-11-108-044, dated 18 April 2011
* Orders Number 111-085, dated 21 April 2011
* Orders Number 151-031, dated 31 May 2011
* Two Leave and Earnings Statements (LES)
* Two BAH queries
* Memorandum, dated 28 February 2011

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed as a Reserve commissioned officer in the Maryland Army National Guard (MDARNG) on 27 June 1999, and was ordered to active duty on 23 May 2006.  He currently holds the military specialty 90A (Logistics) and is serving in the rank/grade of major/O-4.

2.  His records contain a DD Form 93 (Record of Emergency Data) completed on 28 Septembr 2011, which shows his home address is located in Hagerstown, MD, 21740.

3.  His records contain Orders Number 309-005, issued by MDARNG, Fifth Regiment Amory, Baltimore, MD, on 4 November 2008.  These orders show, effective 1 September 2008, he was assigned to the S-1, 58th Troop Command, Reisterstown, MD, with duty at Adelphi, MD, 20783.

4.  His records contain Orders Number 339-061, issued by the MDARNG, Fifth Regiment Armory, Baltimore, MD, on 4 December 2008.  These orders show, effective 23 May 2009, he was ordered to full-time National Guard duty in an Active Guard Reserve (AGR) status.  The orders directed him to report to his assigned duty station in Adelphi, MD, 20783.

5.  His records contain Orders Number 357-092, issued by MDARNG, Fifth Regiment Amory, Baltimore, MD, on 23 December 2009.  These orders were issued as a No/Low cost move and show, effective 1 January 2010, he was reassigned as the Executive Officer, 581st Troop Command, Reisterstown, MD, with duty at Hagerstown, MD, 21740.

6.  His records contain Orders Number 051-005, issued by MDARNG, Fifth Regiment Amory, Baltimore, MD, on 20 February 2010.  These orders show, effective 17 February 2010, he was reassigned as the Engineer Officer, 581st Troop Command, Reisterstown, MD, with duty at Hagerstown, MD, 21740.

7.  He requested a BAH waiver at some point, and provided a memorandum from the Army G-1, dated 6 July 2010, showing his request was approved.  The approval states his request for an exception to policy to receive a BAH waiver based on his previous duty location (Adelphi, MD, 20783) was approved. However, if the applicant decided to move his household goods, dependents, or received PCS entitlements, the waiver would be void at which point he would be authorized BAH at the with dependent rate for Hagerstown, MD, 21740 only.

8.  He provided a memorandum from the National Guard Bureau (NGB), dated 28 February 2011.  The intent of this memorandum was to inform ARNG Soldiers that in accordance with the Joint Federal Travel Regulation (JFTR), volume 1, chapter 10 (Housing Allowances), dated December 2010, and the Personnel Policy Guidance (PPG), chapter 8 (Entitlements and Compensation), dated 
4 February 2011:

	a.  effective 4 February 2011, an AGR Soldier deploying in support of a contingency operation must be paid BAH based on their primary residence as provided by the JFTR; 

	b.  BAH for AGR Soldiers is to be paid based on the rules provided in chapter 10, paragraph U1042, B (Contingency Operations) which states, "a Reserve Component (RC) member called/ordered to active duty in support of a contingency operation is authorized BAH/Overseas Housing Allowance (OHA) for the duration of the tour.  If the RC member receives a PCS order authorizing Household Good (HHG) transportation, BAH/OHA is based on the new Permanent Duty Station (PDS).  However, if the member is called or ordered to active duty and a PCS order is not issued, BAH/OHA rate is based (paid) on the primary residence location at the time called/ordered to active duty"; and 

	c.  there is no distinction made in the PPG or JFTR for AGR BAH when the AGR Soldier is mobilizing in support of a contingency operation as the Title 32 AGR Soldier's orders are curtailed.  If the AGR Soldier is not released from active duty to be mobilized but placed on Temporary Change of Station (TCS) orders, then BAH would be based on the PDS.

9.  His records contain Orders Number 111-085, issued by MDARNG, Fifth Regiment Amory, Baltimore, MD, on 21 April 2011, which authorized a No/Low cost move.  These orders show, effective 21 April 2011, he was reassigned as the Strength Manager, Headquarters and Headquarters Company (HHC), 29th Combat Aviation Command, Edgewood Area, APG, MD, with duty at Adelphi, MD, 20783.

10.  His records contain Amendment Orders Number 111-099, issued by MDARNG, Fifth Regiment Amory, Baltimore, MD, on 21 April 2011.  These orders amend Orders Number 111-085 to show his duty title as S-1 versus Strength Manager.

11.  His records contain Orders Number 151-031, issued by the MDARNG, Fifth Regiment Armory, Baltimore, MD, on 31 May 2011 ordering him as a member of his Reserve unit to active duty in Iraq, effective 30 August 2011, in support of Operation Noble Dawn.

12.  His records contain Orders Number 228-206, issued by the MDARNG, Fifth Regiment Armory, Baltimore, MD, on 16 August 2011.  These orders revoke the unexecuted portion of Orders Number 339-061, effective 29 August 2011, and separate him from AGR status to allow him to mobilize and deploy with his unit.

13.  He was honorably released from active duty on 29 August 2011.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 5 years, 3 months, and 7 days of net active service.

14.  He provided two LES’s for the months of August 2011 and September 2011 and two BAH rate queries using 2011 with dependent BAH rates for an O-4:

* Hagerstown, MD, 21740 - $1,866.00
* Adelphi, MD, 20783 - $2,739.00

15.  On 6 October 2011, he sent a memorandum to the Army G-1 requesting a Secretarial waiver to receive BAH at his former PDS due to a Low/No cost PCS and relief through "other circumstances" where the Secretarial process could be used to authorize/approve individual cases.  He stated:

	a.  he is a Title 32 AGR Soldier mobilized in support of overseas contingency operations, and requests a Secretarial BAH waiver based upon his previously approved exception to policy to receive BAH at his last duty station of (Adelphi, MD, 20783) due to his command directed No/Low cost move, effective 21 April 2011, to a unit mobilizing within 12 months of his assignment on 30 August 2011;
	b.  effective 21 April 2011, he was transferred to HHC, 29th Combat Aviation Brigade, Edgewood Area, APG, MD, with duty at Adelphi, MD, 20783.  This was an involuntary, command-directed move;

	c.  three days prior to the effective date of his transfer, Headquarters, 29th  Combat Aviation Brigade received mobilization orders directing them to mobilize on 30 August 2011, four and a half months from his date of transfer;

	d.  absent this command-directed transfer to a mobilizing unit, he would still be assigned in Adelphi, MD, 20783.  This command-directed transfer to a mobilizing unit resulted in a monthly BAH reduction of $873.00 with a total loss of $10,476.00 for the duration of the deployment, based upon 2011 BAH rates;

	e.  in 2006 a policy change occurred that resulted in AGR Soldiers having their BAH changed to the primary residence when mobilized as opposed to the PDS.  This policy was not consistently interpreted or implemented across Reserve components.  An example of this is the recent NGB memorandum, "BAH for AGR Soldiers Mobilizing in Support of Contingency Operations (11-084)" dated 28 February 2011.  This memorandum attempted to clarify that no distinction is made in the PPG or JFTR for Title 32 AGR Soldiers, where a distinction was made in the PPG up until early 2011.  It appears that specific verbiage was left out that resulted in some Active Duty Title 32 AGR Soldiers suffering from a negative financial impact, solely as a result of this change in status as a result of mobilization; 

	f.  the BAH for a Regular Active Duty Soldier is based upon permanent PDS.  The end result is disparate treatment between Regular Active Duty Soldiers and Active Duty Title 32 AGR Soldiers once mobilized.  The only conclusion which can be drawn is that upon mobilization Title 32 Active Duty Soldiers lose their 
previous status and are treated the same as the traditional guardsman whose BAH is always based upon their primary residence and are, therefore, not impacted by this policy; and 

	g.  he supports his request with the following excerpt from the JFTR,
volume 1, chapter 10, part E, section 2, which states “location rate changes [are] routinely authorized/approved [when Soldiers are] disadvantaged as a result of reassignment for reasons of improving mission capability and readiness of the unit, in receipt of a PCS authorization/order between PDSs located in the same proximity, and disallowed HHG movement.  The Secretarial Process 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.  [Other circumstances exist where] the Secretary concerned may determine that circumstances require the dependent(s) to reside separately and authorize/approve a housing allowance payment based on either the dependent’s location or the old PDS.  The Secretary concerned may determine an additional reason for a BAH waiver is acceptable and the Secretarial Process may then be used to authorize/approve individual cases based on that determination."

16.  The Army G-1 disapproved his request on 6 October 2011 in an email which stated:

	a.  his request for a BAH waiver had been reviewed and disapproved, waivers are not granted retroactively, they are approved from the date the Army G-1 receives them;

	b.  the Army G-1 stated the applicant was authorized BAH for his primary residence for the period of his mobilization and deployment;

	c.  due to the change in status from Title 32 to Title 10 and the way in which the ARNG issues mobilization orders, the applicant did not have a previous duty station.  The ARNG ended his assignment in MD and released him back to the state on another set of orders to deploy with his unit; and 

	d.  the G-1 stated it is recognized that when AGR Soldiers deploy, even under Title 32 authority, they should still receive the same entitlements as their Title 10 Active Duty counterparts.  As a result, the Army G-1 is supporting the ARNG request to change the law to that end.  The G-1 stated they expected that change to occur in Fiscal Year 2012.

17.  The applicant’s case is different from that reviewed in AR20100016278 because the applicant in that case was a Title 32 AGR Soldier who was transferred to a unit located over 3 hours away from his home of record in preparation for a deployment occurring within 12 months from the date of the transfer.  The circumstances required his family members to reside separately at the previous duty station, which was located 200 miles away from his new PDS.  The applicant was paid BAH at the (lower) rate of his new PDS while his family continued to reside at the original home of record.

18.  In accordance with ALARACT message 021/2008, dated 14 February 2008, the following circumstances qualify for BAH Secretarial waiver consideration: 

	a.  Low/No cost PCS waiver example: a member is assigned to Washington, DC and reassigned to Quantico, VA under a Low cost or No cost PCS.  The member made a housing decision based on the BAH in effect at the member's permanent duty station (PDS) [Washington, DC].  The member may continue receiving the higher Washington, DC rate when the member's assignment orders state, "this is a No/Low cost move and shipment of household goods and movement of dependents are not authorized," the movement designator code in the order identifies a Low/No cost move, and the member established his/her household while assigned to the old PDS; 

	b.  when circumstances require dependents to reside separately from the member.  The Secretary of the Army has approved four distinct categories for consideration under this authority for Soldiers who receive PCS orders to units deploying within 12 months of arrival, (a copy of the order must accompany the request), and 

	c.  Soldiers may submit requests electronically to Headquarters Department of the Army, Office of the Deputy Chief of Staff, G-1.  The request must include a memorandum stating the reason for the request and when the member's household was established, orders assigning the member to the new PDS, orders assigning the member to the old PDS request for orders (RFO) is not acceptable, and current LES.  If the member is below the grade of E-7 or an officer is below the grade of O-4, the request must be endorsed by the first field grade officer in the member's chain of command. 

19.  The JFTR, chapter 10, paragraph U1042, B (Contingency Operations) states a Reserve Component (RC) member called/ordered to active duty in support of a contingency operation is authorized BAH/Overseas Housing Allowance (OHA) for the duration of the tour.  If the RC member receives a PCS order authorizing HHG transportation, BAH/OHA is based on the new PDS.  However, if the member is called or ordered to active duty and a PCS order is not issued, BAH/OHA rate is based (paid) on the primary residence location at the time called/ordered to active duty.

DISCUSSION AND CONCLUSIONS:

1.  The applicant is an AGR Soldier whose residence is in Hagerstown, MD, 21740.  On 21 April 2011, he was transferred to HHC, 29th Combat Aviation Command, with duty at Adelphi, MD, 20783 as a No/Low cost move.

2.  On 30 August 2011, approximately four months after being assigned to his new PDS, his unit deployed to Iraq and his BAH rate reverted to the lower Hagerstown, MD, 21740 rate because that is where his permanent residence was located.  



3.  He cited the ABCMR’s decision in AR20100016278 stating that it served as precedence in granting retroactive BAH waivers.  It is the ABCMR policy that each case must stand on its own merit, and while the two cases do contain some similarities they are undeniably different in that the applicant in the cited case PCS'd over 200 miles away from the address of residence and had to leave dependents in preparation for a deployment, at the old duty location.  This Soldier would have been disadvantaged by having to absorb the costs of supporting two households.

4.  The ABCMR has the responsibility to treat similar cases in a similar manner unless it can prove a legitimate reason for failing to do so.  In the current case, the applicant did transfer, but to a location within the local commuting area and was not forced to leave his dependents at a distant location.  Nor was he disadvantaged by absorbing the costs of supporting two separate households.

5.  ALARACT Message 021/2008 is quite clear in stating that BAH waivers are approved when circumstances require family members to reside separately from the member due to Soldiers receiving PCS orders to units deploying within 12 months of arrival qualify for a Secretary of the Army BAH waiver.  

6.  Additionally, he is not entitled to receive a BAH waiver simply because he was granted one while he was serving as a Title 32 AGR Soldier.  The JFTR states that when RC Soldiers are ordered to active duty and a PCS order is not issued, BAH rate is based on the primary residence location at the time the Soldier was ordered to active duty.  Therefore, his BAH properly reverted to his primary residence.

7.  In view of the foregoing, there is no basis for granting relief to the applicant 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)                                         AR20120004737



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ABCMR Record of Proceedings (cont)                                         AR20120004737



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