IN THE CASE OF:	 

		BOARD DATE:	   7 May 2014 

		DOCKET NUMBER:  AR20130020933


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, from Fort Irwin, CA to Queens, NY, beginning in November 2012 for an unspecified period of time.

2.  The applicant states:

* he was given Permanent Change of Station (PCS) orders to Camp Stanley, South Korea
* he was allowed to move his dependents to New York where he and his wife have family
* he was stationed at Fort Story, VA for 3 years prior to his PCS move to Korea
* at the end of his unaccompanied tour at Camp Stanley, he received orders to Fort Irwin, CA
* his wife was hired as a teacher prior to him receiving PCS orders to Fort Irwin, CA
* when he arrived at Fort Irwin, CA, he submitted a BAH exception to policy [waiver] packet so his dependents could remain in New York during his wife's period of employment (September 2012 to August 2013)
* he arrived at Fort Irwin in November 2012 and submitted her BAH waiver packet that same month
* per All Army Activities (ALARACT) Message number 324/2012 (Exception to Policy Guidance for BAH Waivers), he met the prerequisites for a BAH waiver
* he contacted the point of contact listed in the ALARACT message to ensure he qualified; however, he needed his battalion commander's endorsement in order to officially submit and receive the waiver
* his battalion commander did not want to endorse his BAH waiver request; he initially stated he did not have enough Time in Service (TIS) remaining on his contract to receive the waiver
* ALARACT 324/2012 does not mention TIS as a prerequisite to qualify for the waiver
* later, after his second attempt to obtain his battalion commander's endorsement, his battalion commander questioned how his dependents ended up in New York when his last duty station was Fort Story, VA
* he showed his battalion commander that his last duty station was actually Camp Stanley, Korea and his orders stated his dependents were authorized to reside in New York
* his 3rd attempt to get his battalion commander's endorsement resulted in his battalion commander coordinating with the U.S. Army Criminal Investigation Command (CID) to have him investigated for BAH fraud
* the case was open for almost 9 months and was closed on or about          5 September 2013
* he then contacted the ALARACT message point of contact; the point of contact recommended he submit a request for relief to the Army Board for Correction of Military Records (ABCMR)
* if his battalion commander had endorsed his waiver he would have received the temporary BAH for his dependents' location

3.  The applicant provides:

* his marriage license
* Orders 213-50, U.S. Army Garrison, Fort Monroe, VA, dated 1 August 2011
* a copy of his wife's teaching contract with New Beginnings Charter School, Bedford – Stuyvesant, Brooklyn, New York, dated 15 August 2012
* Orders 271-1008, Installation Management Command (IMCOM) – Pacific Region, Military Personnel Division, Republic of Korea on 27 September 2012
* a lease agreement for a residence in Queens, NY
* a memorandum for record (MFR), signed by the applicant on 12 February 2013, subject: PME BAH Waiver
* an unsigned MFR, dated 12 February 2013, subject: PME BAH Waiver
* DD Form 1172-2 (Application for Identification Card/Defense Enrollment Eligibility Reporting System (DEERS) Enrollment)
* Defense Finance and Accounting Service (DFAS) Forms 702 (DFAS Military Leave and Earnings Statement (LES)), for October 2012 and February 2013

CONSIDERATION OF EVIDENCE:

1.  BAH is a United States based allowance prescribed by geographic duty location, pay grade, and dependency status.  It provides uniformed Service members equitable housing compensation based on housing costs in local civilian housing markets within the United States when government quarters are not provided.

2.  On 4 March 2008, the applicant enlisted in the Regular Army.  He completed his initial entry training and was awarded military occupational specialty 88M (Motor Transport Operator).

3.  On or about 7 August 2008, following the completion of his initial entry training, he was reassigned to the 7th Sustainment Brigade, Fort Eustis, VA.

4.  On or about 14 November 2008, he was reassigned to the 368th Transportation Company (Terminal Service), Fort Story, VA.

5.  On 19 December 2008, he married his spouse, Althea.

6.  On or about 10 November 2011, he received PCS orders to Camp Stanley, Republic of Korea.  His assignment orders authorize his dependents to accompany him; however, he elected a 12-month unaccompanied tour instead.

7.  On 15 August 2012, his spouse signed a teaching contract with the New Beginnings Charter School in Bedford-Stuyvesant, a neighborhood in Brooklyn, New York.  Her contract covered the 2012-13 school year, beginning 14 August 2012 and terminating on 30 June 2013.

8.  On 27 September 2012, he received PCS orders to Fort Irwin, CA, effective 10 December 2012.

9.  On 15 November 2012, his spouse signed a 1-year lease agreement for a residence in Queens, NY.  The property address specified in the lease is the same address cited in his PCS orders to Korea, indicating his dependents may have resided at that address prior to the date of the lease agreement.

10.  On 10 December 2012, he was assigned to the 1916th Support Battalion at Fort Irwin, CA.
11.  On 25 October 2013, he was honorably released from active duty and transferred to a unit of the California Army National Guard (CAARNG).

12.  He provides:

   a. A signed MFR, dated 12 February 2013, in which he requests a PME (Professional Military Education) BAH waiver to receive BAH at the with-dependents rate, and cost of living allowance (COLA), based on his previous duty station.  Neither this MFR nor any document of record confirms his attendance at a PME training course.   

   b. LESs for October 2012 and February 2013.  His October 2012 LES shows he received BAH at the with dependents rate, based on zip code 11436 (Jamaica, New York).  His February 2013 LES shows he received BAH at the with dependents rate, based on zip code 92310 (Fort Irwin, CA).

13.  On 22 January 2014, 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, Headquarters, Department of the Army.  This official did not support granting administrative relief, stating:

* the applicant was entitled to BAH at the with-dependent rate for Fort Irwin, CA, as of 10 December 2012 or upon his actual arrival date
* he sent his BAH waiver request to the Office of the Deputy Chief of Staff, G-1 on 6 March 2013; however, BAH waivers are not retroactive
* the timelines in the applicant's request are not consistent:

* he was ordered to report to the Republic of Korea on 10 November 2011 for a 12-month unaccompanied tour
* his spouse's teaching contract is from 15 August 2012 through     30 June 2013, entered into as he was about to receive his PCS orders back to the continental United States (CONUS)
* his spouse signed a lease on 15 November 2012, after he had received PCS orders to Fort Irwin, CA

* waivers are consistently disapproved based on employment obligations that exceed the Date Eligible to Return from Overseas (DEROS) date when the DEROS date is known
* when Soldiers reside separately from dependents as a personal choice, waivers are not considered 

14.  On 19 February 2014, a copy of the advisory opinion was provided to the applicant for information and/or comment and possible rebuttal; however, he did not respond.  

15.  ALARACT Message 324/2012 (Exception to Policy Guidance for BAH Waiver) cancels and replaces three previous ALARACT messages and provides implementation guidance for all Soldiers who desire to receive BAH at other than the Permanent Duty Station (PDS) location when circumstances require the dependents to reside separately.  The policies in this message apply to all Soldiers regardless of component.  It states when circumstances require dependents to reside separately from the member, the Secretary of the Army has approved four distinct categories for consideration:  deployment, dependent education, spouse employment, and exceptional family member program.

   a. The intent of this message is to provide temporary assistance to Soldiers and their families to ease transition of a PCS move to the new PDS in CONUS.  

   b. To be eligible for consideration of a waiver under this policy, the Soldier's dependents must reside with them prior to PCS unless the member is serving an unaccompanied tour.  The dependents must continue to reside at the previous duty station or a government-approved designated place.  Previous duty station is defined as the location of the last PDS in which shipment of household goods at government expense was authorized.  The designated place is defined as the location to which the government authorized movement of dependents.

   c. There are many circumstances that qualify for a Secretarial BAH waiver and include two main reasons: low/no cost PCS and professional military education or training.  Four additional distinct categories are authorized for consideration under this policy when circumstances require dependents to reside separately from the Soldier: deployment, dependent education, spouse employment (emphasis added), and/or exceptional family member program or medical considerations.  

   d. Specific to spousal employment, the ALARACT guidance specifies that BAH waivers may be granted in cases where spouses require a temporary delay to travel to the new PDS due to contractual obligation, professional license reciprocity agreements, or other circumstances that may cause additional financial penalties due to early termination.

   e. Soldiers do not lose their PCS entitlements under this policy.  However, waivers approved under this policy become void when Soldiers execute any portion of their PCS entitlements during the waiver period.  The Soldier's housing allowance will be based on the PDS.  An approved waiver does not entitle Soldiers to any additional allowance such as family separation allowance or family separation housing.  Soldiers must be eligible to receive the allowance based on the circumstances of the assignment.  

   f. The Soldier must submit a memorandum requesting the waiver with the stated reason.  Soldiers cannot apply for their dependent's location unless previously receiving that dependent's location BAH rate or they activate an approved family care plan (if applicable). 

16.  Chapter 10 of the Joint Federal Travel Regulation (JFTR) covers housing allowances. 

   a. Paragraph U10412B (Housing allowance based on dependent's location or old Permanent Duty Station (PDS)).  Unless otherwise authorized/approved, a member’s housing allowance is based on the PDS.  A member may be authorized a housing allowance based on the location at which the dependents maintain a permanent residence, or the old PDS, if authorized/approved through the Secretarial Process.  Examples of separation situations that are routinely authorized and/or approved at a lower level than the Service Secretary include:

* the member is assigned to a PDS in an area in which sufficient housing quantities do not exist
* the member is disadvantaged as a result of reassignment for reasons of improving mission capability and readiness of the unit, in receipt of a PCS authorization/order between PDSs located in the same proximity, and disallowed household goods transportation
* the member is assigned to indeterminate TDY or TDY pending further orders
* the member is assigned to a Professional Military Education or a training course that is scheduled for a duration of 1 year or less

   b. Paragraph U10412C (Secretarial Determination).  The Secretary Concerned may determine that circumstances, not listed in paragraphs 
U10412-B1 through U10412-B7, require the dependents to reside separately and authorize/approve a housing allowance payment based either on the dependent’s location or the old PDS.  The Secretary may determine an additional reason for a BAH waiver is acceptable and the Secretarial Process may then be used to authorize/approve individual cases based on that determination.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was reassigned to Camp Stanley, Republic of Korea, effective 10 November 2011.  He was reassigned to CONUS, at Fort Irwin, CA, effective 10 December 2012.  The evidence of record shows he was notified of PCS movement to CONUS on 27 September 2012.

2.  Prior to his receipt of PCS orders on 27 September 2012, his spouse accepted a teaching contract at a school in the area in which she was residing, Brooklyn, New York.  This contract required her to remain in Brooklyn for a 
12-month period, commencing 14 August 2012 and terminating on 30 June 2013.

3.  On 15 November 2012, after he had received PCS orders to Fort Irwin, CA, she signed a housing lease, indicating her contractual intent to remain in New York well after his PCS back to CONUS and arrival at Fort Irwin.

4.  On or about February 2013, he began receiving BAH at the with dependents, Fort Irwin rate instead of the rate he had been receiving, which was the with dependents, New York City rate.  

5.  The evidence of record suggests the applicant was eligible for a BAH waiver based on his spouse's teaching contract that required her employment with the New Beginnings Charter School in Bedford-Stuyvesant until at least 30 June 2013.  

6.  It appears he requested a BAH waiver based on an incorrect category or classification (PME attendance); however, his submission error does not negate his eligibility for a BAH waiver based on a legitimate situation that kept his spouse from joining him at Fort Irwin; namely, her teaching contract.

7.  On or about 6 March 2013, he submitted a BAH waiver request to the Army G-1.  It appears the Army G-1 disapproved his request, noting that BAH waiver awards are not retroactive.  The Army G-1 disapproval of his BAH waiver request does not appear to be in error.

8.  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 for the period 12 August 2012 through 30 June 2013, thereby allowing for the continued payment of his BAH based on the New York City area zip code until 30 June 2013, the termination date of his spouse's teaching contract.  






BOARD VOTE:

____x___  ___x____  ___x____  GRANT FULL RELIEF 

________  ________  ________  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 relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing he submitted a timely BAH waiver request and it was approved by the Army G-1 for the New York City area zip code, from 12 August 2012 through    30 June 2013.

2.  The Board further recommends that, based on the above correction, DFAS pay him any difference in BAH due him for the period 1 February 2013 through 30 June 2013.




      _______ _   _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)                                         AR20130020933



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