IN THE CASE OF:	   

		BOARD DATE:	  27 February 2014

		DOCKET NUMBER:  AR20130008379 


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 he was granted an exception to the basic allowance for housing (BAH) policy to provide payment based on Mountain View, CA rates vice Fort Bragg, NC rates for the period 
25 April - 5 July 2011.

2.  The applicant states:

	a.  His permanent change of station (PCS) in April 2011 caused great financial hardship to his family and it left him no alternative other than to pay out of his pocket the substantial difference in BAH between California and North Carolina as well as temporary lodging even though provision is made to protect families from this burden.

	b.  He was given erroneous information directly from the Joint Base Lewis-McChord (JBLM) finance office because they indicated there was no such policy.

	c.  After discussing with other personnel after his PCS, he discovered that the program does exist.  He then submitted his request for a waiver.

	d.  His request was disapproved by the Army G-1 who told him there were no provisions to request a change after the fact other than to apply to this Board.

	e.  As an Active Guard Reserve (AGR) Soldier assigned to a non-military installation, all finance support came from JBLM by telephone or email and he took at face value the information he received indicating there were no provisions authorizing him to maintain BAH at his prior domicile's rate.

	f.  His promotion to colonel (COL)/O-6 was predicated on being in an 
O-6 billet.  Additionally, his predecessor had retired and the position was vacant. There was an expedient need for him to depart California and arrive at his new duty station in North Carolina by April 2013 regardless of the potential negative impact.

	g.  The housing situation was managed by a civilian agency on behalf of the military and he was required to pay 100 percent of the authorized BAH.  The BAH rate at his old permanent duty station (PDS) in 2011 was $3,375 and the BAH rate for Fort Bragg, NC in 2011 was $1,689 resulting in significant loss to his family.

	h.  He has executed two PCSs since and has served two consecutive O-6 assignments where he had difficulty creating the time to submit this action for personal reasons.  He believes he was improperly denied the opportunity to receive the benefit and he feels as well that it occurred in a manner that reflects poorly on ensuring Soldiers are properly advised and supported.

3.  The applicant provides:

* reassignment and promotion orders 
* letter from his children's former elementary school 
* letter from a child and adolescent psychiatry doctor
* residential rental contract 
* email messages
* All Army Activities (ALARACT) Message 021/2008, subject:  Exception to Policy Guidance for BAH Waivers
* memoranda from his former unit's human resources personnel 
* memorandum from the Command Surgeon, Civil Affairs and Psychological Operations Command, Fort Bragg, NC

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently serving in an AGR status in the rank of COL/O-6.

2.  On 9 March 2011, the U.S. Army Human Resources Command published Orders Number R-03-183759 directing the applicant's PCS from Mountain View, CA to Fort Bragg, NC with a reporting date of 25 April 2011.

3.  He provides a residential rental contract that shows his rental lease of a property in Southern Pines, NC began on 5 July 2011.

4.  In the processing of this case, an advisory opinion was obtained from the Department of the Army, Office of the Deputy Chief of Staff G-1, Compensation and Entitlements Division.  This office recommended disapproval of the applicant's request for a retroactive BAH waiver and stated:

	a.  The applicant was paid his proper entitlements.

	b.  Waivers are not considered for financial hardship; waivers may be used to request relief of a collection action, with verification.

	c.  There is nothing included in the packet to support the claim that improper information concerning application for a BAH waiver was given.  Waivers based on delayed travel of dependents have been in the Joint Federal Travel Regulations (JFTR) since 2005.

	d.  Waivers in consideration of an exceptional family member require that the dependent be enrolled in the program [Exceptional Family Member Program (EFMP)] in accordance with Army regulation.  There was no indication that this was done.

	e.  Waivers are considered to continue a rate; a promotion in conjunction with the report date to the new PDS does not equate to BAH at the old PDS at the rate of the higher rank.

	f.  The applicant's request was also for the dependents to complete state testing, which was through 13 May 2011, with the end of the school year date of 10 June 2011, not 5 July 2011.  For such a short period of time, Soldiers may also request a later report date through their assignment officer.

5.  The advisory opinion was provided to the applicant for comments and/or a rebuttal.  He responded and stated:

	a.  He is providing memoranda from the personnel directly responsible for the handling of full-time support for administrative and financial issues during his tenure in Mountain View, CA which provide the factual support regarding improper information provided by the military pay office at JBLM.

	b.  He does not concur with the statement that EFMP enrollment is a mandatory condition for approval of his request.  He states emphatically that the treatment his daughter was receiving was initiated shortly prior to his PCS date making a request for admission to the program a difficult proposition because he did not know then and does not know now who the EFMP coordinator would be at a remote duty station.  Additionally, it was a conscious decision to ensure there was a full diagnosis before making any decision on applying for special medical and educational programs.

	c.  He felt then and he still feels that his daughter was at a risk of being labeled inappropriately and therefore she ran the potential of being negatively impacted in her continuing education as they so often transition from geographic region and school district.

	d.  He understands that if his request is approved, he will receive the BAH rate at his previous rank of lieutenant colonel (LTC).

	e.  He confirms that standardized testing was completed on 13 May 2011 and that the school year ended on 10 June 2011.  He continues to contend that it would have been detrimental to move his children before the end of the school year and that the June 2011 date only allowed his children to complete the full school calendar.  It does not account for the additional treatment that his daughter was completing through 26 June 2011 nor does it realistically approach additional considerations of the coordination and execution of household goods pick up and the clearing of his quarters.

	f.  The through date chosen for the request for the BAH exception to policy is based upon the contracted move-in date for his family to a rental property in North Carolina.  The date is consistent with the arrival date of his family in the area and it is the date he would have arrived with his family had his PCS been done in conjunction with them.

	g.  The advisory opinion argues as if there was no urgency in his requirement to begin duties in his new PDS.  His original submission of this request makes it clear that his assignment was nominative, that his predecessor had departed unexpectedly, and that he had no real option other than to report earlier than his family could be accommodated.  It is unrealistic that he could or would have asked for a delay when the commanding general was expectant of having an operations officer on duty immediately.

	h.  He cannot make clear enough that though the advisory opinion states the program has been in the JFTR since 2005 and he was finally able to see the ALARACT message in the August/September 2011 time frame, he has executed five PCSs since 2005 and he has never been apprised of the availability of the program.

	i.  He can clearly tell the Board that he has found only one Soldier out of more than 75 Soldiers he has queried who has been able to tell him they were aware of the provisions within ALARACT Message 021/2008.

	j.  This submission represents the additional evidence requested that inquiries were made on his behalf to the servicing military personnel office (MILPO) that denied the existence of a program that most certainly did exist.  He cannot explain why the MILPO provided the erroneous information but because of the erroneous information he was denied the opportunity to ask for adjudication prior to his PCS.

	k.  The documentation also substantiates that significant school and medical issues existed with his children that a request, even after the fact, is warranted to adjust his BAH to the previous PDS of Mountain View, CA after his departure in April 2011 through July 2011.

6.  He provides a letter from his daughter's former physician in which the physician indicates the applicant's daughter was a patient in his clinic from 
29 April 2010 to 26 June 2011 for treatment of attention deficit hyperactivity disorder (ADHD), primarily inattentive type.  He recommended that her family allow her to stay in California until the completion of the school year to allow her to be properly treated for her newly-diagnosed ADHD.  If she had been forced to move to another school district, it would have severely interrupted and undone important school adjustments that are essential to the treatment of her disorder.

7.  He provides memoranda from his former unit's human resources personnel indicating they made telephonic requests for information on BAH exceptions on behalf of the applicant and that the response received from JBLM finance personnel was that no such provisions existed.

8.  He provides a memorandum from the Command Surgeon, Civil Affairs and Psychological Operations Command, Fort Bragg, NC in which the Command Surgeon indicates that upon review of medical records, he concurs with the medical providers that interruption of the evaluation process and formulation of an educational/treatment program by forcing her [the applicant's daughter] to relocate would have had a substantially detrimental effect and delayed treatment necessary to the best possible outcome of her ADHD condition.  With the initiation of his daughter's treatment beginning within the months prior to the applicant's PCS date, and the lack of a final diagnosis, it is also his opinion that any request for entry into the EFMP would have been premature and therefore not a factor to the request for medical consideration as outlined in ALARACT Message 021/2008.

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 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.  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 2001 National Defense Authorization Act provides policy guidance for Secretarial waiver to receive BAH at other than the Soldier's duty station location.  ALARACT Message 021/2008, Subject:  Exception to Policy Guidance for BAH Waivers, clarifies this policy and provides authority for the Service Secretaries to approve BAH waivers when:

	a.  the Soldier has dependents in educational programs they do not wish to disrupt;

	b.  the Soldier has dependents with medical considerations that warrant leaving them at the old duty station location.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his BAH should be adjusted to provide the Mountain View, CA rate from 25 April to 5 July 2011.

2.  The governing regulations provide that BAH is paid at the rate authorized for the member's PDS.  Exceptions to this policy may be authorized by the Secretary of the Army for Soldiers who have dependents in educational programs they do not wish to disrupt or for Soldiers who have dependents with medical considerations that warrant leaving them at the old duty station location.

3.  The evidence shows the applicant was reassigned to Fort Bragg, NC with a report date of 25 April 2011.  Evidence also suggests that through his unit's personnel channels, he attempted to obtain prior to his departure a BAH waiver based on the medical/educational needs of his children.
4.  Based on his children's medical and educational needs, as evidenced by the medical statements provided, his request for an exception to policy to retain BAH at the Mountain View, CA rate was reasonable.

5.  Based on the foregoing and notwithstanding the advisory opinion, it would be appropriate to correct the applicant's records to show he was granted an exception to policy to receive BAH for the period 25 April - 5 July 2011 at the Mountain View, CA rates.

BOARD VOTE:

___x____  ____x___  ____x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  showing he was granted a timely waiver to receive BAH at the rate for Mountain View, CA from 25 April to 5 July 2011; and

	b.  auditing his pay records for the period 25 April to 5 July 2011 and paying him any monies due as a result of this correction.



      _______ _   __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)                                         AR20130008379



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ABCMR Record of Proceedings (cont)                                         AR20130008379



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