BOARD DATE:	  5 November 2013

		DOCKET NUMBER:  AR20130009768 


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 record to show a Basic Allowance for Housing (BAH) waiver was approved.  

2.  He states he is requesting assistance in correcting an injustice regarding the disapproval of his BAH waiver submitted to Headquarters, Department of the Army (HQDA), Deputy Chief of Staff (DCS) G-1, on 22 March 2013.  Mr. L___, Chief, Compensation and Entitlements, HQDA, DCS G-1, recommended that he contact this Board to seek approval of his BAH waiver. 

	a.  In May 1996, he was assigned to the Pennsylvania Army National Guard (PAARNG) as a Title 32 Active Guard Reserve (AGR) Soldier.  The National Guard Bureau (NGB) contacted him in June 2006 to inquire if he would accept a Title 10 AGR assignment at Fort Bragg, NC.  NGB informed him that the position required an infantry officer who was both airborne and ranger qualified to serve as a Plans Officer on the Corps staff.  He stated he could make a permanent change of station (PCS) move to Fort Bragg in November 2006, once he completed his civilian master’s degree.  Prior to his PCS move to Fort Bragg, he spoke to his future supervisor who informed him that XVIII Airborne Corps was slated for a 12-month deployment to Iraq in late summer 2007.  Due to his unit’s pending deployment in less than 12 months upon his arrival at Fort Bragg and as authorized in an All Army Activities (ALARACT) message, he and his wife considered it prudent to leave their children in their current school system.  


	b.  In August 2007, the XVIII Airborne Corps Commander informed the officers of the Corps staff that the Corps would be tasked to serve a 15-month deployment.  The postponement of the deployment and the extra 3 months of service in Iraq caused him to be away from his wife and children for a total of 30 months.  

	c.  His next assignment was at NGB, Arlington, VA, in May 2009.  His oldest son was then a junior in high school; his middle son was a freshman in high school; and his youngest son was in eighth grade.  His supervisor at NGB, COL A____, informed him he could expect to serve as the Combat Training Centers Branch Chief for one year.  COL A____ then identified the 174th Infantry Brigade Executive officer position at Joint Base McGuire-Dix-Lakehurst (JB MDL) as his follow-on assignment.  Duty at JB MDL would provide the opportunity to reestablish his relationship with his family after the long separation.  Once he was notified he would only be on station at NGB for 1 year, it was not feasible to transfer his children into a new school system.  Additionally, it would have cost the Army a full PCS move to the District of Columbia area; followed by a subsequent move back to his home of record (HOR) [in Royersford, PA] just 12 months later.  In late April 2010, he signed in with the 174th Infantry Brigade and moved back in with his family at their HOR. 

	d.  On 11 December 2012, the Director, ARNG, notified him he had been selected to attend the U.S. Army War College.  Upon receipt of PCS orders to Carlisle Barracks, PA, dated 4 March 2013, he prepared a request for a BAH waiver based on ALARACT Message 021, issued on 5 February 2008 (ALARACT 021/2008), subject:  Exception to Policy Guidance for BAH Waivers, and NGB-issued Instructions to Obtain a BAH Waiver for PCS.  

	e.  ALARACT 021/2008 provides three conditions for issuance of a BAH waiver.  They are: 

* low/no cost PCS waiver
* Professional Military Education (PME)
* when circumstances require dependents to reside separately from the member

	f.  There are four additional conditions identified when dependents reside separately from the member.  They are: 

* 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 location 

	g.  He states ALARACT 021/2008 confirms that he meets two of the four criteria for a BAH waiver, both PME and having a dependent child in his senior year of high school.  The reason for denial as stated by Lieutenant Colonel (LTC) G_____, an HQDA G-1 staff member, was, “As your dependents are not in the vicinity of your PDS [permanent duty station], you are ineligible to be considered for a waiver.”  This statement is incorrect.  He resided with his family over the past 3 years and commuted to JB MDL.  He replied to LTC G_____, “Based on the response below, stating that my dependents are not in the vicinity of my PDS; I conferred with legal counsel for an opinion regarding my ineligibility for a BAH waiver to attend PME.  Hence, I was advised to request the specific [Army regulation] and authority proponent that governs the waiver policy.  Based on the findings as stated in ALARACT 021/2008, I meet two of the four criteria for the PME waiver.”  LTC G_____ replied, “This is DoD [Department of Defense], not Army; Title 37, the JFTR [Joint Federal Travel Regulation], and the ALARACT are the references.  This is Secretarial authority, delegated to this office.”  

	h.  LTC G_____ provided him ALARACT Message 324, issued on 
14 November 2012 (ALARACT 324/2012), subject:  Exception to Policy Guidance for BAH Waiver, which supersedes ALARACT 021/2008.  Upon receipt, he requested that legal counsel review ALARACT 324/2012 and the JFTR to determine his eligibility requirements.  The legal opinion he received was that PME and dependent education applied to his situation.  Legal counsel recommended that he submit the dependent education waiver separately from the PME waiver.  He resubmitted his BAH waiver request for his youngest son who was entering his senior year of high school.  LTC G_____’s reply was, “This request has already been reviewed and disapproved.  Please see e-mail below.  As your dependents are not in the vicinity of your PDS, you are ineligible to be considered for a waiver.”  

	i.  He did not move his family to Fort Bragg due to a pending deployment – this option was authorized in the ALARACT message.  By serving at Fort Bragg and NGB without his dependents, he saved the U.S. Army the cost of three PCS moves.  In addition, he and his family had to incur the expenses of a second residence at each of his duty assignments without compensation.  

	j.  ALARACT 324/2012, paragraph 3, states, “This policy is intended to provide temporary assistance to Soldiers and their families to ease the transition 


of a PCS move to the new permanent duty station in CONUS [continental United States].”  He has lived with his family for the past 3 years and he firmly believes that his situation meets the spirit and intent of ALARACT 324/2012.  Due to the unique circumstances surrounding this matter, Mr. L___ stated that he may in fact support a waiver request when queried by the ABCMR.  

	k.  He wishes to receive the BAH rate at JB MDL for the duration of his assignment to the U.S. Army War College for PME.  He meets two of the criteria specified in ALARACT 324/2012.  Not receiving the BAH rate at JB MDL would be an injustice and financial hardship.  The course lasts approximately 
10 months, beginning in August 2013 and concluding the first week of June 2014.

3.  He provides:

* self-authored memoranda, subject:  [Applicant], Request for BAH Waiver to Retain BAH at Current Duty Location, dated 20 March 2013 and 10 April 2013
* e-mail correspondence
* BAH waiver request template
* document entitled Instructions to Obtain a BAH Waiver for PCS
* ALARACT 021/2008
* ALARACT 324/2012
* letter, dated 11 March 2013, regarding his son's standing as a student
* Officer Record Brief (ORB)
* orders
* Military Leave and Earnings Statement

CONSIDERATION OF EVIDENCE:

1.  With prior enlisted service in the Regular Army and prior commissioned service in the U.S. Army Reserve, effective 2 May 1996, the applicant was appointed as a captain/O-3 in the PAARNG.  On the same date, he was ordered to full-time National Guard duty in an AGR status.  He has served in an AGR status since that date.  

2.  Section IX (Assignment Information) of the ORB he provides shows his assignments from 1 November 2006 forward as follows – 

* XVIII Airborne Corps, Fort Bragg, NC, from 1 November 2006 to 16 January 2008


* Multi-National Corps - Iraq from 17 January 2008 to 30 April 2009
* U.S. ARNG Readiness Center, Arlington, VA, from 1 May 2009 to 29 April 2010
* Headquarters, 174th Infantry Brigade, Fort Dix, NJ, from 30 April 2010 to 18 July 2011
* Headquarters, 2nd Battalion, 312th Regiment, Coraopolis, PA, from 19 July 2011 to 30 April 2012
* Security Forces Advisory Team 25, Kandahar, Afghanistan, from 1 May to 8 December 2012
* Headquarters, 174th Infantry Brigade, Fort Dix, NJ, from 9 December 2012 

3.  On 4 March 2013, NGB issued Orders 63-5 releasing him from his assignment at Fort Dix, NJ, and ordering him to proceed on PCS to the U.S. Army War College, Carlisle Barracks, Carlisle, PA, with a reporting date of 2 August 2013.  The orders show he was to be assigned to Carlisle Barracks from 2 August 2013 to 7 June 2014.  

4.  On 22 July 2013, NGB issued Orders 203-2 amending Orders 63-5 by changing the period of assignment to Carlisle Barracks to 22 July 2013 to June 2014 (10 months and 16 days).   

5.  He provides, in part:

	a.  two self-authored memoranda, dated 20 March 2013 and 10 April 2013, showing he requested a waiver to retain BAH at his current duty location because he would be attending PME and because his son would be completing his senior year of high school at his current duty location; 

	b.  e-mail correspondence confirming the details of the statement he provided in his application pertaining to his interactions with HQDA with regard to denial of his BAH waiver request; 

	c.  his Military Leave and Earnings Statement for the period 1 - 28 February 2013 showing he received BAH at the with-dependents rate for zip code 08640 (Fort Dix, NJ); and

	d.  a letter, dated 11 March 2013, confirming his son is a student in good standing and scheduled to graduate from high school in June 2014.

6.  On 2 July 2013, Mr. L___, the Chief, Compensation and Entitlements Division, Office of the DCS, G-1, provided an advisory opinion.  


	a.  The advisory official states the applicant's request is outside the intent and scope of the BAH waiver policy, and his office stands by their disapproval of his BAH waiver request for PME and high school senior stabilization.  The Army's current BAH waiver policy, announced in ALARACT 324/2012, states the waiver policy applies to active duty Soldiers with dependents who resided with them at the previous duty station.

	b.  The advisory official states that, because the distance between the applicant's HOR and his previous duty station (Fort Dix, NJ) is approximately 
73 miles, his dependents were not considered as being at or in the vicinity of the PDS.  Although Soldiers may choose where they live, it is unreasonable for the Army to expect the applicant to commute from his HOR in Royersford, PA, to Fort Dix and return daily.

7.  On 26 August 2013, the applicant responded to the advisory opinion.  

	a.  He states that, upon receipt of PCS orders assigning him to Fort Dix, NJ, he moved back into his HOR in Royersford, PA.  The distance to post is 62 miles.  He notes there is no published mileage policy that restricts a Soldier from residing with his family.  

	b.  Based on the needs of the Army, he was separated from his family for 42 months.  When presented with the opportunity to live with his family again, he took it.

	c.  The spirit and intent of ALARACT 324/2012 authorizes a Soldier attending PME or who has a child in his senior year of high school to maintain BAH at the current duty station.  He met both of these criteria.

8.  A Primer on the Basic Allowance for Housing (BAH) for the Uniformed Services, published by the Defense Travel Management Office in October 2013, explains to members how their housing allowances are determined.  The Frequently Asked Questions section of this publication states:

BAH compensates members for typical housing costs surrounding their duty station.  Once the duty station is known, the BAH is fixed, regardless of where the member chooses to live.  If the location of the member's residence were used as a basis for the entitlement, members who commute from lower cost areas would have lower BAH rates, even though their commuting expenses were higher.  The BAH rate is determined by the duty station so that members may live near their duty location, but they remain free to live where they choose.  Actual member choices, remember, do not influence the calculation of rates.
9.  The Joint Federal Travel Regulations do not contain provisions specifically limiting the distance a Soldier may live from his or her PDS.  

10.  ALARACT 324/2012 states its purpose is to clarify Secretarial waiver guidance for Soldiers to receive BAH at other than the PDS location under certain circumstances.  The purpose of the policy is to stabilize the Soldier's dependents for a relatively short period of time when circumstances require dependents to reside separately.  The policy is applicable to active duty Soldiers authorized BAH at the with-dependent rate whose dependents reside with them at the previous duty station prior to departing on PCS or at a Government-approved designated location.  

	a.  To be eligible for consideration of a waiver, the Soldier's dependents must continue to reside at the previous duty station or Government-approved designated place.  The previous duty station is defined as the location of the last duty station to which shipment of household goods at Government expense was authorized.

	b.  The circumstances qualifying for consideration of a Secretarial BAH waiver include AGR Soldiers attending PME or training courses not more than 12 months in length.  A waiver is authorized for the BAH location only in this circumstance.  PCS orders must state the course title and start and end dates.

	c.  A waiver may also be considered when circumstances require a dependent to reside separately from the Soldier due to the dependent being in an educational program they do not wish to disrupt.  Under this category, dependent children will be considered in order to allow them to complete the current grade school year, or junior and senior high school graduation requirements.  A letter from the educational institution verifying enrollment, end of the school year, and anticipated graduation date must accompany the request.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence supports the applicant's request for correction of his record to show a BAH waiver was approved.  

2.  While assigned to Fort Dix, NJ, the applicant made the reasonable decision to reside with his family in Royersford, PA.  While he had a lengthy commute from his home to Fort Dix, there is no regulatory provision prohibiting such a commute.  There is no evidence indicating the length of his commute affected his ability to perform his duties satisfactorily.  He provides a Military Leave and Earnings Statement showing he received the BAH rate for Fort Dix.


3.  He requested a BAH waiver to allow him to continue to receive BAH at the Fort Dix rate for two reasons:

* he was ordered to PME for a period of less than 12 months
* his son was entering his senior year of high school

4.  ALARACT 324/2012 authorizes a waiver to retain BAH at the rate for the previous duty station in both of these circumstances.

5.  The Compensation and Entitlements Division, Office of the DCS, G-1, disapproved a BAH waiver allowing the applicant to receive BAH at the Fort Dix rate while attending PME on the basis that his dependents were not considered as being at or in the vicinity of the PDS.  The advisory official stands by his office's decision to deny a waiver.

6.  Notwithstanding the Compensation and Entitlements Division's decision, it is inherently unfair to say that a Soldier who lived with his dependents while serving at his PDS is not entitled to a waiver to retain the PDS's BAH rate on the basis that his dependents were not in the vicinity of the PDS.  Further, considering the circumstances of the applicant's assignments over the past several years, it is not in the best interest of the Army to place additional stress on him and his family by denying a BAH waiver.

7.  In view of the foregoing, it would be appropriate to correct the applicant's record to show a BAH waiver allowing him to retain the Fort Dix BAH rate while attending PME was approved.  He should be paid any additional BAH he is due as a result of this correction.  

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 for 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 allowing him to retain the Fort Dix BAH rate while attending PME was approved and paying him any BAH he is 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)                                         AR20130009768



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ABCMR Record of Proceedings (cont)                                         AR20130009768



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