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ARMY | BCMR | CY2013 | 20130018479
Original file (20130018479.txt) Auto-classification: Approved

		IN THE CASE OF:	  

		BOARD DATE:	  27 February 2014

		DOCKET NUMBER:  AR20130018479 


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 retroactive payment of the basic allowance for housing (BAH) from November 2010 through April 2011 in the amount of $4,832.00.

2.  The applicant states his unit was deployed to Afghanistan when he arrived at his first duty station at Fort Polk, LA.  His spouse remained in Miami, FL, while he was deployed.  He submitted a BAH waiver request to be paid BAH at the Miami, FL, rate in November 2010.  The request was approved by his company and brigade commanders, but it never received approval from the approval authority.  He was granted the waiver when he re-filed in May 2011, but only from May through September 2011; they did not grant him a retroactive waiver.

3.  The applicant provides seven memoranda; two pages of email; six Defense Finance and Accounting Service (DFAS) Forms 702 (DFAS Military Leave and Earnings Statement (LES)); a document showing BAH rates for Fort Polk, LA, and Miami, FL; a Standard Form 95 (Claim for Damage, Injury, or Death); a letter; and a document titled, "U.S. Postal Service Track and Confirm email Restoration."

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 22 January 2010.  He completed basic combat training and advanced individual training at Fort Leonard Wood, MO.  On 8 November 2010, he was assigned to the 2nd Battalion, 4th Infantry Regiment, Fort Polk, LA.

2.  The applicant provided the following documents in support of his application:

	a.  A memorandum, undated and unsigned, subject:  Request for Exception to BAH, indicates he requested a waiver to receive BAH at the rate for Miami, FL.  He stated that while assigned to Fort Leonard Wood he was receiving BAH for Miami, FL, where his spouse resided.  He would be deploying in support of Operation Enduring Freedom in December 2010 and his spouse would be staying in Miami during his deployment.

	b.  A memorandum for record, dated 23 November 2010, subject:  Waiver for BAH, shows his immediate commander recommended approval of the applicant's request and verified the applicant had been assigned to the unit on 8 November 2010.

	c.  A memorandum for Department of the Army Deputy Chief of Staff, G-1, dated 30 November 2010, subject:  Request for Exception to Policy for Housing (BAH) Waiver, shows his senior commander recommended approval of the applicant's request.  He stated the applicant had been married on 4 November 2007, had been assigned to the unit since 8 November 2010, and would be deploying by the end of the year.

	d.  A memorandum from the Chief, Compensation and Entitlements Division, Department of the Army Office of the Deputy Chief of Staff, G-1, dated 14 July 2011, subject:  BAH Policy Waiver – (Applicant), states his request for a policy waiver to receive BAH based on his spouse's location, Miami Beach, FL, was approved for the period 2 May 2011 through 30 days after redeployment only.  This memorandum stated, in part, his request met the guidelines for a policy waiver to receive BAH at the with-dependents rate based on his previous duty station while assigned to Fort Polk for the purpose of deploying in support of Operation Enduring Freedom.

3.  The applicant also provided six LES's for the period November 2010 through April 2011.  These LES's show he received $1012.80 in BAH for November 2010 and $852.00 in BAH per month from December 2010 to April 2011.  He provided a chart that shows he should have received BAH at the Miami, FL, rate in the amount of $1,656.00 per month for November and December 2010 and $1,698.00 per month from January to April 2011 (or $4,831.20 more than he received).

4.  A review of the DFAS website confirms the BAH rate for Fort Polk, LA, was $852.00 a month for 2010 and 2011 and $1,656.00 a month for 2010 and $1,698.00 a month for 2011 for Miami, FL.

5.  On 30 July 2011, he was medically evacuated from Afghanistan and assigned to Brooke Army Medical Center, Fort Sam Houston, TX.

6.  In the processing of this case, an advisory opinion was obtained from the Chief, Compensation and Entitlements Division, Office of the Deputy Chief of Staff G-1, dated 30 December 2013.  The advisory official recommended disapproval of the applicant's request and opined:

	a.  The applicant was paid his proper entitlements, as BAH is payable at the permanent duty station until the Soldier sends a waiver request to that office.  BAH waivers are not retroactive.  Since 2008, deployment BAH waivers could be authorized through the Secretarial process.  It is the responsibility of the Soldier to submit a packet requesting the waiver with all applicable documents, such as a dated and signed request.

	b.  Statements such as "I was told" and "documents were lost" are not considered when determining the date of the waiver.  In the applicant's case, there is no record of a BAH waiver request for the applicant prior to 2 May 2011.

7.  In a response to the advisory opinion, dated 14 January 2014, the applicant stated:

	a.  When he arrived at Fort Polk, LA, in November 2010, he was assigned to the Rear Detachment, 2nd Battalion, 4th Infantry Regiment, and he began the process of requesting a BAH waiver 6 weeks prior to deploying.  As instructed by his chain of command, he collected the signatures of his company and battalion commanders and submitted the packet through his battalion S-1.  He was told it might take awhile to process and to check his LES monthly.

	b.  Each month his BAH remained the same, he let his chain of command know and each time he was instructed to be patient.  After 3 months, his chain of command contacted the approving authority and was told the waiver request was never received and he needed to rebuild the packet and resubmit it.  It was resubmitted in April 2011 and approved in July 2011, but he was only paid from May 2011 to the redeployment date.

	c.  On 30 July 2011, he was medically evacuated from theater due to a fractured neck and back and sent to Fort Sam Houston, TX.  Once he was released from the hospital to the Warrior Transition Unit, he was instructed to contact the approving authority reference not being paid the Miami, FL, BAH rate from November 2010 to April 2011.  He was told waivers were approved the date the packet reached the approving authority and are not paid retroactively.

	d.  As a new service member, he followed the instructions he was given by his chain of command.  He is not trying to place blame, but the underpayment in BAH caused serious financial hardships on his family.  He submitted the packet on time and should not be penalized because the packet was lost through no fault of his own.

8.  With his response he provided two statements of support, dated 13 and 14 January 2014.  In one statement, Sergeant First Class (SFC) 
T____ R. Z____, his platoon sergeant, stated the applicant initiated a waiver for BAH (at the Miami, FL, rate) on 23 November 2010 and it was approved by the battalion commander and mailed by the S-1.  While deployed, the applicant continually tracked the progress of his packet and it was brought to SFC T____ R. Z____'s attention that his packet had been lost and needed to be resubmitted.  The applicant is an outstanding Soldier who was injured while deployed, only to continually serve his unit in garrison.  He took all the proper steps and it is only right to grant him relief.

DISCUSSION AND CONCLUSIONS:

1.  It appears the applicant’s initial request for a BAH waiver, submitted in November 2010, was lost.  However, the evidence of record confirms his chain of command recommended approval of the request in November 2010. The request was resubmitted in April 2011 while he was deployed.

2.  The approving authority subsequently approved the request from 2 May 2011 through 30 days after his redeployment and stated his request met the guidelines for a policy waiver to receive BAH at the Miami, FL, rate but could not be granted retroactively.

3.  The applicant was a new Soldier and, as such, he relied on his chain of command for guidance and to process his waiver in a timely manner.  He acted in good faith and should not be penalized for errors he had no control over.  Therefore, as a matter of equity and justice, he should be granted the requested relief.









BOARD VOTE:

____X____  ___X_____  ___X_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is 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 his request for a BAH waiver was submitted and received in a timely manner and approved for Miami, FL, effective 1 November 2010
* paying him the difference between BAH at the Miami, FL, rate from November 2010 through April 2011 and the BAH he was paid during that time frame




      ______________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)                                         AR20130011364



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)                                         AR20130018479



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

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