IN THE CASE OF:	 

		BOARD DATE:	  8 January 2013

		DOCKET NUMBER:  AR20120008288 


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, a basic allowance for housing (BAH) waiver to correct the location used to calculate his BAH for the period 20 May 2010 through 25 June 2011,  in accordance with All Army Activities (ALARACT) Message 021/2008.

2.  The applicant states:

* he was reassigned to the 3rd Special Forces Group (Airborne), Fort Bragg, NC, on 25 May 2010
* immediately after he arrived at Fort Bragg, NC, on or about 1 July 2010, his unit deployed to Afghanistan in support of Operation Enduring Freedom (OEF)
* due to his rapid deployment, he wasn't able to relocate his family from the New York (Long Island) area in which they lived
* his wife was new in the United States and had limited language abilities, could not drive, and had no alternate means of transportation
* in New York, he had family, friends, and a support network to assist his wife and children while he was deployed
* since he was drawing BAH based on his Fort Bragg, NC location, a financial hardship was created since the amount of his BAH did not equal the amount of his family's rent in New York 
* he relocated his family upon his return from deployment on 25 March 2011

3.  The applicant provides:

* ALARACT Message 021/2008, dated 5 February 2008
* Orders 112-0439, issued by U.S. Army Installation Management Command, Headquarters, U.S. Army Garrison Command, Fort Knox,   Fort Knox, KY, dated 22 April 2010
* DA Form 4187 (Personnel Action), Request for Intra-Group Reassignment, dated 25 May 2010
* Lease Agreement, dated 1 June 2010
* Orders 06-023, issued by Headquarters, 3rd Special Forces Group (Airborne), Fort Bragg, NC, dated 23 June 2010
* Memorandum for Record, Headquarters, 3rd Special Forces Group  (Airborne), Fort Bragg, NC, dated 26 January 2012, subject: Assumption of Command
* Memorandum, Headquarters, 3rd Special Forces Group  (Airborne), Fort Bragg, NC, dated 29 February 2012, subject: Request for Policy Guidance for BAH Waiver – Specialist (SPC) [Applicant], 9979
* Memorandum, Headquarters, 3rd Special Forces Group  (Airborne), Fort Bragg, NC, dated 2 April 2012, subject: Request for Policy Guidance for BAH Waiver – SPC [Applicant], 9979
* Memorandum, Headquarters, 3rd Special Forces Group  (Airborne), Fort Bragg, NC, dated 3 April 2012, subject: Request for Policy Guidance for BAH Waiver – SPC [Applicant], 9979
* Memorandum, Headquarters, 3rd Special Forces Group  (Airborne), Fort Bragg, NC, dated 17 April 2012, subject: Request for Policy Guidance for BAH Waiver – SPC [Applicant], 9979
* Army Knowledge Online (AKO) e-mail traffic, dated 5 March 2012
* AKO e-mail traffic, dated 13 March 2012
* Travel Voucher Number T9187299, paid by Defense Finance and Accounting Service (DFAS) – Indianapolis (DFAS-IN), dated 20 October 2010
* Travel Voucher Number 800986, paid by DFAS-IN, dated 26 April 2011
* Travel Voucher Number T8605047, paid by DFAS-IN, dated 5 May 2011
* Travel Voucher Number 802749, paid by DFAS-IN, dated 10 May 2011
* DFAS Form 702 (DFAS Military Leave and Earnings Statement (LES)), covering the period 1 through 31 March 2012
* Army Board for Correction of Military Records (ABCMR) Docket Number AR20100018946, dated 12 July 2011 

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 10 November 2009.  Item         3 (Home of Record (HOR)) of his DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States) show his HOR at the time he enlisted was Queens Village, NY (within the New York City borough of Queens).

2.  On 19 May 2010, he completed his initial entry training and was awarded military occupational specialty (MOS) 91M (Bradley Fighting Vehicle System Maintainer).  Upon completion of his MOS training, he was assigned to the 3rd Special Forces Group (Airborne), Fort Bragg, NC, effective 20 May 2010.

3.  On 25 May 2010, he was reassigned from Headquarters and Headquarters Company (HHC), 3rd Special Forces Group (Airborne), to 4th Battalion, 3rd Special Forces Group (Airborne).

4.  On 1 June 2010, he signed an agreement to lease a property in Floral Park, NY (zip code 11001), for a period of 12 months commencing on 1 June 2010.

5.  Orders 06-023, issued by Headquarters, 3rd Special Forces Group (Airborne), Fort Bragg, NC, dated 23 June 2010, ordered he proceed on deployment to Afghanistan, on or about 1 July 2010. 

6.  In a memorandum to Headquarters, Department of the Army, Office of the Deputy Chief of Staff, G-1, Washington, DC, the applicant's commander stated the applicant returned from deployment on 25 March 2011.

7.  On 29 February 2012 and 3 April 2012, his commander requested exceptions to policy from Office of the Deputy Chief of Staff, G-1, for a BAH waiver for the period 20 May 2010 through 25 June 2011.  Follow-up emails from the applicant to an official at Army G-1, dated 5 March 2012 and 13 March 2012, indicate those requests were disapproved.

8.  It appears, based on the LES he submitted, that he currently resides in government-provided quarters at Fort Bragg, NC; however, the exact date he signed for government quarters, or the date he relocated his family from Floral Park, NY to Fort Bragg, NC, is unknown.

9.  On 7 September 2012, in the processing of this case, an advisory opinion was obtained from the Office of the Deputy Chief of Staff, G-1.  The advisory official did not support granting administrative relief.  In the stated opinion, the advisory official noted that "a lease signed after an order is issued verifies movement of dependents and negates the purpose of the waiver."

10.  On 27 September 2012, a copy of the advisory opinion was provided to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  
11.  On 2 October 2012, the applicant responded with a rebuttal of the opinion provided by the Office of the Deputy Chief of Staff, G-1.  In his rebuttal, he states:

* he entered the Army in New York City and Army policy prohibited his family from accompanying him to his Advanced Individual Training (AIT) location at Fort Knox, KY – as such, his family remained at his HOR
* he had planned to move his family upon the completion of AIT; however, he was unable to do so due to the short timeframe in which he deployed
* he moved his family to Fort Bragg, NC in May 2011, immediately following his redeployment from Afghanistan in March 2011
* the ABCMR has granted relief in previous similar cases

12.  ALARACT Message 021/2008, dated 5 February 2008, subject:  Exception to Policy Guidance for BAH Waivers, states that circumstances requiring 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was reassigned to Fort Bragg after completing his initial entry training.  The evidence indicates the PCS was accomplished within 12 months of his new unit of assignment being deployed in support of OEF.  The waiver policy was authorized in February 2008; he was deployed in July 2010.  As such, he was eligible to apply for a BAH waiver.  His request for a BAH waiver that finally reached the appropriate office was disapproved based on being retroactive.

2.  While there is no error, it would be appropriate in the interest of equity and justice for the applicant's military records to be corrected to show he was granted a BAH waiver effective 25 May 2010, prior to his deployment thereby allowing for continuation of his BAH based on the New York City area zip code until 31 May 2011, the date he relocated his family to Fort Bragg, NC.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____x___  ____x___  ____x___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is 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 showing a BAH waiver was approved for the New York City area zip code, from  25 May 2010 through 31 May 2011.  The Board further recommends that, based on the above correction, DFAS pay him any difference in BAH due him for the period 25 May 2010 through 31 May 2011.

2.  The Board further determined 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 granting him a BAH waiver for the period 20 May 2011 through 25 June 2011.








      _______ _  __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)                                         AR20100018946



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ABCMR Record of Proceedings (cont)                                         AR20120008288



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