IN THE CASE OF:	   

		BOARD DATE:	  24 July 2014

		DOCKET NUMBER:  AR20130015179 


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 reconsideration of his earlier request for 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.  He states:

	a.  arguments presented in the original case were not addressed by the Army Board for Correction of Military Records (ABCMR) and additional information was not previously considered.  

	b.  he cites statements from the previous case in the DISCUSSIONS AND CONCLUSIONS section:

   (1)  "The applicant is an Active Guard Reserve (AGR) Soldier whose 
residence is in Hagerstown, MD, 21740.  On 21 April 2011, he was transferred to Headquarters and Headquarters Company (HHC), 29th Combat Aviation Command, with duty at Adelphi, MD, 20783 as a No/Low cost move."  He states this accurately reflects what occurred on 21 April 2011.  

		(2)  "On 30 August 2011, approximately 4 months after being assigned to his new Permanent Duty Station (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."  He states this accurately reflects what occurred on 30 August 2011.
   c.  He cited the ABCMR's decision in AR20100016278 stating that it served as precedence in granting retroactive BAH waivers.  It is the ABCMR's policy that each case must stand on its own merit.  While the two cases do contain some similarities they are undeniably different in that the applicant in the cited case had a permanent change of station (PCS) over 20 miles away from the address of residence and had to leave dependents in preparation for a deployment at the old duty location.  He claims the other Soldier would have been disadvantaged by having to absorb the costs of supporting two households.  

   d.  There are significant similarities that existed in his case and in the ABCMR's decision in AR20100016278.  He stated:
   
* both were AGR Soldiers ordered to mobilize
* both were given short notice mobilizations within 12 months
* the primary justification under which the waiver request was denied in both instances was that waivers are not granted retroactively
* here was an acknowledgement of Titles 10 and 32 disparity that was not considered by the Board
* the subjective criteria and standard used in the other case was not considered in his case

e.  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.

f.  In the current case, it states 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.

	g.  The ABCMR accurately states he was not disadvantaged by absorbing the costs of two separate households, the point that he transferred to a location within the local commuting distance is not accurate.  

	h.  The orders do state he was transferred to HHC, 29th Combat Aviation Brigade in Aberdeen Proving Ground (APG), MD, with duty at Adelphi.  This action was taken so he wouldn't be required to make the daily one-way 102-mile commute required if his duty station was Edgewood, which could not be considered a "local commuting area."  Also to preserve his current BAH rate, since this was not a permanent duty assignment.  

	i.  This transfer was solely for the purpose of deployment and much of his time was spent working with the National Guard Bureau to fill vacancies across the brigade that spanned over 20 states.
	j.  Many days the daily commute to the Aviation Brigade Headquarters did occur, but having the transfer reflect that his duty assignment was at APG would have required a PCS that was not in his best interest nor was it in the best interests of the organization.  He was programmed to return (and he did return) to the assignment he held prior to his mobilization.  

	k.  Upon his return, he was reinstated, which meant his BAH upon return reflected the approved BAH waiver in place prior to his mobilization.  

3.  He cites additional statements from the previous case in the DISCUSSIONS AND CONCLUSIONS section:

	a.  "All Army Activities (ALARACT) Message 021/2008 is quite clear in stating that BAH waivers are approved when circumstances require 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.  This accurately reflects ALARACT 021-028, but does not address the following in Joint Federal Travel Regulations (JFTR) Volume 1, Change 297, 09/1/11.  He referenced:

   (1)  Chapter 10, Part E, Section 2:  Member with Dependent, U10402, B. 
Location Rate, 5e., Examples of Location Rate Changes Authorized/Approved.
   
   (2)  Chapter 10, Part E, Section 2:  Member with Dependent, U10402, B. 
Location Rate, 6.  Other Circumstances:

	b.  "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 Reserve Component (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."

   (1)  It was never his intention that he should be granted a BAH waiver 
simply because he was granted one previously.  
   
   (2)  It was his contention that he was disadvantaged for purposes of 
mobilizing to improve "mission capabilities and readiness" of a unit that he was ordered to transfer, mobilize, and deploy to serve in a theater of war within approximately 120 days of mobilization and just after the unit received its First Army Mobilization Order.

	c.  "In view of the foregoing, there is no basis for granting relief to the applicant in this case."

		(1)  The final point in the conclusions that no basis for granting relief failed to consider some of the points listed above and also did not consider the following:

* the inequity between regular active duty and Title 32 AGR
* similarities between cases were that both waiver requests were denied because waivers are not granted retroactively
* while there was no procedural error, in the interest of equity and justice the record should show a waiver was granted
* policy creates winners and losers and fails to offer a remedy to losers
* did not consider the extract from JFTR on location rates routinely authorized/approved 
* didn't consider when AGR Soldiers deploy under Title 32 authority, they should receive the same entitlements as their Title 10 Active Duty counterparts
* active duty BAH is based upon duty station; RC is based upon HOR - Title 32 AGR BAH is based upon duty station, but only until mobilized

4.  He also states two separate pay systems exist for Active Component (AC) and RC Soldiers, which are the Defense Joint Military Pay System (DJMS–AC) and the DJMS–RC.  

   a.  Title 32 AGR Soldiers are paid from DJMS-AC while on their AGR tour.  Once mobilized, they remain in DJMS-AC and the only transaction that occurs to reflect they are mobilized and to ensure they continue to receive pay is a simple code change within that system.  
   
   b.  Traditional Army National Guard (ARNG) Soldiers are paid from DJMS-RC in their traditional drilling status and remain in this pay system once mobilized; however, significant transactional entries must occur to bring them on active duty as opposed to a simple code change for Title 32 AGR.  All these transactions in DJMS-AC occurred without a break-in-service.

	c.  As AGR Soldiers mobilize and demobilize, they constantly have to identify themselves as AGR and annotate they are AGR on various paperwork during the mobilization and demobilization process.  Since they are handled and processed in different pay systems than traditional ARNG Soldiers, they are treated the same.

	d.  The Army cannot have it both ways in that they are not AGR Soldiers solely for BAH while mobilized, but they are processed differently through Finance processing during both the mobilization and demobilization processing.  

   e.  Lastly, any transactional finance related processing for AGR Soldiers, while mobilized and deployed, is processed through DJMS-AC.  This further demonstrates a "difference" in that AGR Soldiers are considered traditional AGR Soldiers when mobilized, but are consistently handled and processed differently, except in the case of BAH.  
   
   f.  After significant turbulence caused by the change for Title 32 AGR Soldiers that BAH is based upon primary residence as opposed to PDS (until 2011), a change occurred on 3 April 2013 that reverts to the previous policy where AGR Soldiers were treated the same as their active duty counterparts in that BAH is based upon PDS.  However, there is no provision or consideration for retroactively applying this policy to those who were disadvantaged as a result of the policy anomaly that changes BAH for AGR Soldiers during the previous period.  
   
   g.  The circumstances under which he was selected to mobilize, transfer, and mobilize in support of Operation New Dawn and the 29th Combat Aviation Brigade did not get the proper consideration.  He was hand-selected by the Brigade Commander of the Aviation Brigade to serve as his S-1 on this deployment.  This is reflected in the OER he received from the date of transfer to the day prior to mobilization.  
   
	h.  He was an individual augmentee because the expertise did not exist within the Aviation Brigade to fill this position.  He had a prior relationship with the Brigade commander while he served as the G-1 for the Maryland (MDARNG).  He was transferred from an assignment, after only 16 months, for the sole purpose of improving "mission capability and readiness" of a mobilizing unit.  This is clearly identified as an example of location rate changes authorized/approved as cited in Chapter 10, Part E, Section 2: Member with Dependent, U10402.

3.  He provides:

* Google driving directions to Major General (MG) Warren D. Hodges Armory in Gunpowder, MD, 21010
* Google driving directions to an address in Hyattsville, MD, 20783
* Orders 235-008, dated 22 August 2012
* memorandum, dated 3 April 2013, showing changes to JFTR, Volume 1 and Joint Travel Regulations, Volume 2
* document obtained from the G-1 ARNG website announcing Change for an AGR Member to Continue BAH at PDS Rate During Transition from AGR Duty to Active Duty"
* DA Form 67-9 (Officer Evaluation Report (OER)) for the period ending 28 August 2011
* ABCMR Record of Proceedings, Docket Number AR20120004737, dated 17 May 2012

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20120004737, dated 17 May 2012.

2.  The applicant provided new arguments and evidence that will be considered by the Board.

3.  The applicant was appointed as a Reserve commissioned officer in the MDARNG on 27 June 1999 and was ordered to active duty on 23 May 2006 in an AGR status under Title 32.  He currently holds the military specialty 90A (Logistics) and is serving in the rank/pay grade of major/O-4.

4.  His service record contains the following documents/orders:

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

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

   c.  Orders Number 357-092, dated 23 December 2009, issued by MDARNG, Fifth Regiment Amory, Baltimore, MD, show 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.
   
   
   d.  Orders Number 051-005, dated 20 February 2010, issued by MDARNG, Fifth Regiment Amory, Baltimore, MD, show, effective 17 February 2010, he was reassigned as the Engineer Officer, 581st Troop Command, Reisterstown, MD, with duty at Hagerstown, MD, 21740.
   
	e.  DD Form 93 (Record of Emergency Data) completed on 28 September 2011, which shows his home address is located in Hagerstown, MD, 21740.

5.  On an unknown date, he requested a BAH waiver 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 (HHG), 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.

6.  A memorandum from the National Guard Bureau (NGB), dated 28 February 2011, informed ARNG Soldiers that in accordance with the 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, "an 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 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.

7.  His service record also contains the following orders:

	a.  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, HHC, 29th Combat Aviation Command, Edgewood Area, APG, MD, with duty at Adelphi, MD, 20783.

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

   c.  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.

   d.  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 separated him from an AGR status to allow him to mobilize and deploy with his unit.

8.  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.

9.  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.  

10.  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 Maryland 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.

11.  He provided the following documents in support of his claim:

	a.  Google driving instructions from an address in Hagerstown, MD, 21740 to MG Warren D. Hodges Armory, MDARNG, Gunpowder, MD 21010.  The commute is 102 miles (about 1 hour and 51 minutes).

	b.  Google driving instructions from an address in Hagerstown, MD, 21740 to Hyattsville, MD, 20783.  The commute is 67.5 miles (1 hour and 14 minutes).  

	c.  OER covering the period 21 April through 29 August 2011 is a Senior Rater option report which rated him as a Brigade S-1/Adjutant.  His rater evaluated him as "Outstanding Performance, Must Promote" and his senior rater assessed him as "Best Qualified"/Center of Mass.  

	d.  Orders 235-008, dated 22 August 2012, issued by the State of Maryland, Military Department, Fifth Regiment Armory, show he was ordered to 
full-time National Guard duty in an AGR status, effective 2 September 2012.  These orders show he was assigned to the 581st Troop Command Detachment, Hagerstown, MD, 21740 to serve as an executive officer for the purpose of continuation of an AGR tour prior to mobilization.  Also, the orders show BAH was authorized at the with dependent rate, his home of record (HOR) was listed as Hagerstown, MD, 21740, and travel was by privately owned vehicle (POV) from HOR (Hagerstown, MD) to duty station (Hagerstown, MD) and return to HOR where order to AGR duty is authorized as more advantageous to the Government.

	e.  Memorandum, dated 3 April 2013, which provides a synopsis of proposed changes to JFTR, Volume 1 and JTR, Volume 2.  The proposed revisions to section U10428(C) (AGR), effective 3 April 2013 stated:

An AGR member's BAH/OHA is based on the PDS, even when the member is mobilized for active duty other than AGR duty provided the member does not have a break in service.  The PDS rate applies for the duration of the tour.  If the AGR member receives a PCS order authorizing HHG transportation, BAH/Overseas Housing Allowance (OHA) is based on the new PDS.  However, if the member is called or ordered to active duty without a break in service and a PCS order authorizing HHG transportation is not issued, BAH/OHA rate is based (paid) on the PDS location at the time called/ordered to active duty.

	f.  A document obtained from the G-1 ARNG website announced:

All Title 10/Title 32 AGR and full-time National Guard Duty Soldiers should be aware of the approved changes to the JFTR.  The change requires BAH to remain at the PDS rate when a Soldier transitions from AGR to active duty, without a break in service.  

12.  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 HOR 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.

13.  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, D.C. 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 PDS [Washington, DC].  The member may continue receiving the higher Washington, D.C. rate when the member's assignment orders state, "this is a No/Low cost move and shipment of HHG 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. 

14.  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.

15.  The JFTR, chapter 10, paragraph U1042, B (Contingency Operations) states an 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 evidence of record shows the applicant was ordered to full-time National Guard duty in an AGR status, effective 23 May 2009.  At that time, his residence was Hagerstown, MD, 21740.

2.  The applicant's contentions were carefully considered.  However, there is no evidence of record that supports an error or injustice exists in this case.  

3.  The applicant contends:

   a.  The arguments presented in the original case were not addressed by the ABCMR and additional information was not previously considered.  However, his service record is void of evidence to substantiate his claims.  The ABCMR properly evaluated his case and determined the available evidence did not support granting him a BAH waiver.
   
   b.  The ABCMR's decision in AR20100016278 served as precedence in granting retroactive BAH waivers and he stated 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.  However, the ABCMR reviews each case individually and is presented before the Board based on its own merit and evidence presented.  There are no cases that set the standards on how the Board should always vote.  

   c.  The ABCMR accurately states he was not disadvantaged by absorbing the costs of two separate households; however, the point that he transferred to a location within the local commuting distance is not accurate.  
   
   (1)  The evidence of record shows 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)  In May 2011, he was ordered to active duty as a member of his 
Reserve unit to active duty in Iraq, effective 30 August 2011 (Noble Dawn).  Orders were later published which released him from AGR status to allow him to mobilize and deploy with his unit.  His BAH rate reverted to the lower Hagerstown, MD, 21740 rate.  


   (3)  Although he submitted a request to the Army G-1 for a Secretarial 
waiver to receive BAH at his former PDS due to a Low/No cost PCS, his request was disapproved based on the policies in effect at that time. He applied for a BAH waiver that was disapproved due to the request being retroactive.  They are approved from the date the Army G-1 receives them.

   (4)  In April 2013, changes were made to JFTR, Volume 1 and JTR, 
Volume 2 which authorized BAH/OHA based on the new PDS.  Therefore, this policy was not in effect at the time he was deployed so he was properly authorized BAH/OHA based on his PDS.

	d.  Upon his return, he was reinstated, which meant his BAH upon return reflected the approved BAH waiver in place prior to his mobilization.  

4.  Since he received the proper BAH entitlement for his PDS location, there is insufficient evidence on which to grant his request.

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 to amend the decision of the ABCMR set forth in Docket Number AR20120004737 dated 17 May 2012.



      ___________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)                                         AR20130015179





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ABCMR Record of Proceedings (cont)                                         AR20130015179



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