IN THE CASE OF:  	  

		BOARD DATE:  6 October 2015	  

		DOCKET NUMBER:  AR20150003879 


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 his current debt that resulted from overpayment of basic allowance for housing (BAH) be waived. 

2.  The applicant states, in effect:

* he received a letter from the Defense Finance and Accounting Service (DFAS) informing him of a $13,317.70 debt as a result of overpayment of BAH from 1 March 2004 to 30 January 2005
* DFAS assumed that he was not entitled to BAH at all when in fact he was deployed to Iraq during this period 
* During this period, he was paid BAH at the O-3 rate, with dependents, at zip code 27520, at $1,211.00 per month; this was the proper amount
* his records were updated with his marriage certificate and children’s birth certificate; this was required for deployment 
* he could not have passed the mobilization Soldier Readiness processing without updating all his records, including financial allowances
* he is supposed to receive BAH based on his home of record (HOR) immediately upon reporting to mobilization station (Fort Bragg, NC)
* he and his family lived in Clayton, NC for more than 2 years; this was his HOR while he was in the Active Guard Reserve (AGR), since April 2000
* his family remained at this address for the duration of his deployment and for several months afterwards 
* he did not move from this location until he received reassignment orders in the summer of 2005, after his deployment and he was never separated or divorced since his marriage in 1991
* he was not paid based on the wrong location; his duty station was his HOR
* but even if one were to consider the HOR as his mobilization station, Fort Bragg, the rate would have been $877 per month for 2004 and $1,035 per month for 2005; DFAS numbers do not add up 
* he has been making payments since November 2013 toward this debt; he has paid $4,489.51 since receiving the debt notification 
* he wants immediate release from this debt; he just wants to resume normal life, debt free, and put this nightmare behind him 

3.  The applicant provides:

* Mobilization orders (Orders 192-516), dated 3 October 2003
* Unit Permanent Orders 270-18, dated 27 September 2003
* Memorandum, dated 3 March 2003, Subject: Request for Policy Change, Title 32 AGR BAH During Periods of Mobilization
* Email, dated 8 Aril 2003, from a National Guard Bureau (NGB) Sergeant major (SGM) in regard to BAH Policy Exceptions for Mobilized AGR Soldiers
* Marriage certificate
* Leave and Earnings Statements (LES) from March 2004 to January 2005
* Letter, dated 14 January 2015, from DFAS 

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the North Carolina Army National Guard (NCARNG) on 22 May 1987.  He was honorably discharged on 5 August 1994 to accept a commission.  His HOR was identified as Raleigh, NC, 27607.

2.  He was appointed as a Reserve commissioned officer of the NCARNG and executed an oath of office on 6 August 1994.  He was assigned to 1st Battalion, 252nd Armor, Sanford, NC, 27331.  Sanford is about 30 miles north-west of Fayetteville/Fort Bragg.

3.  He entered active duty on 1 February 1996 and he served in a variety of assignments and attained the rank of captain (CPT)/O-3.  He was assigned to the 1st Battalion, 252nd Armor, Fayetteville, NC. 

4.  On 13 January 2003, NCARNG published Orders 008-246 ordering him to Full Time National Guard Duty (FTNGD) for an indefinite active duty commitment.  He was ordered to report on 18 January 2003 to the 1st Battalion, 252nd Armor, Fayetteville, NC.  This was considered a consecutive AGR tour renewal.  The orders listed his HOR as Clayton, NC 27520.  Clayton is about 55 miles east of Sanford, NC and about 60 miles north-east of Fayetteville/Fort Bragg, NC.

5.  He was honorably released from active duty on 30 September 2003 for the purpose of mobilization in support of Operation Iraqi Freedom (OIF).  His 
DD Form 214 (Certificate of Release or Discharge from Active Duty) listed his HOR as Clayton, NC.  His mailing address was also listed as Clayton, NC 27520. 

6.  On 3 October 2003, the NCARNG published Orders 192-516, ordering him to active duty from his address in Sanford, NC, in support of OIF for a period not to exceed 730 days (amended to 489 days).  He was ordered to report to his home station in Sanford, NC, and mobilization station at Fort Bragg, NC.  These orders listed his HOR as Clayton, NC 27520.

7.  He served in Iraq in support of OIF from 27 February 2004 to 6 January 2005. He was assigned to Company B, 1st Battalion, 252nd Armor.  It is unclear if he served in Iraq in a temporary duty (TDY) status or temporary change of station (TCS) status.

8.  During this period, his March 2003 through January 2005 LES show he was paid BAH at a monthly rate of O-3/with dependent at $1,211.00, based on zip code 27520 (Clayton, NC, his HOR).  

9.  He was honorably released from active duty on 31 January 2005.  His 
DD Form 214 listed his HOR as Clayton, NC; his mailing address was also listed as Clayton, NC; and the command he was transferred to was listed as Sanford, NC 27331.  

10.  On 21 January 2005, prior to his release from active duty, NCARNG published Orders 014-068 ordering him to FTNGD to perform AGR duties as S-1 and resume AGR status upon release from active duty.  He was ordered to report on 1 February 2005 to the 1st Battalion, 252nd Armor, Fayetteville, NC.  This was considered a consecutive AGR tour renewal.  The orders listed his HOR as Clayton, NC 27520.

11.  On 3 June 2005, NCARNG published Orders 089-002 rescinding the unexecuted portion of Orders 014-068, dated 21 January 2005.  He was further ordered to FTNGD for an indefinite period to perform AGR duties.  He was ordered to report to Appalachian State University, Boone, NC, 28605, effective 1 July 2005.  This was considered a PCS move.  The orders listed his HOR as Clayton, NC 27520.

12.  He was promoted to lieutenant colonel (LTC) in the ARNG on 12 February 2013. 

13. On 9 January 2014, the NCARNG published Orders 009-889 releasing him from active duty on 28 February 2014 and placing him on the retired list in his retired rank of LTC on 1 March 2015.  The orders listed his HOR as Cary, NC 27513. 

14.  He retired on 28 February 2014, by reason of sufficient service for retirement and he was placed on the retired list in his retired rank of LTC on 1 March 2014.  His DD Form 214 listed his HOR as Cary, NC and his mailing address and the address of nearest relative as Cary, NC 27513. 

15.  On 24 September 2014, he communicated with DFAS and protested the debt.  He requested an audit of this debt with specific information regarding the reason for the debt, all validation documents, and accounting of payments since the debt was originally assessed. 

16.  On 14 January 2015 by letter, DFAS responded to his inquiry and informed him that:

	a.  He was indebted to the U.S. Government in the amount of $13,317.70 for overpayment of BAH from 1 March 2004 to 30 January 2005, that was not fully deducted from his pay account at the time of separation in February 2014.  Of the total overpayment due, the amount of $3,569.76 was collected from his pay account prior to and at the time of discharge, leaving a balance of $9,747.94 that caused the debt.  A breakdown of this debt is as follows; 

* 1 to 30 January 2005, $1,210.70 x 1 month = $1,210.70 
* 1 March 2004 to 30 December 2004, $1,210.70 x 10 months
  = $12,107.00
* Total is $ 13,317,70, less $2,969.70 credit = $10,348.70

	b.  DFAS considered this a valid debt and provided him with summary calculation breaking down the debt.  He was advised if he disagreed with the information or felt it was wholly or partially in error, he should forward his documentation to DFAS for evaluation.  However, there is no evidence he did so.

17.  He provides a memorandum dated 3 March 20013, from the NGB to the Office of the Deputy Chief of Staff for Personnel, requesting a "Policy Change- Title 32 AGR BAH During Periods of Mobilization."  An official at the NGB Comptroller Division stated: 

	a.  Request the G-1 initiate a review to change current regulatory guidance which states BAH for Title 32 AGR Soldiers during periods of mobilization will be based on the Soldiers home of residence.  The Department of Defense (DOD) Financial Management Regulation, Volume 7A, Table 26-9, states that BAH for active duty Soldiers stationed within the continental United States-(CONUS) will be based on the permanent duty station (PDS).  This rule applies to Title 32 AGR Soldiers in a normal duty status.  Table 26-11 states that the BAH for Soldiers called or ordered to active duty in support of a contingency operation is based on the home of residence.  This rule applies to traditional ARNG Soldiers that are mobilized.  Currently, when a Title 32 AGR Soldier is mobilized, they are administratively separated from the Title 32 AGR program in order to mobilize with their unit.  This results in Table 26-11 applying to the mobilized Title 32 AGR Soldier.

	b.  Title 32 AGR Soldiers are sometimes required to mobilize with their unit of assignment.  Based on current regulatory guidance, their BAH is changed from the PDS to the home of residence during the period of mobilization, and reverts to the PDS upon demobilization.  In some cases, this change in BAH causes severe financial hardship.

	c.  A policy change is requested to allow Title 32 AGR Soldiers to request an exception to policy for the period of mobilization, allowing BAH to be based on the Soldiers AGR PDS.  Movement of household goods are not authorized during mobilization.

18.  He also provides an email from an NGB SGM sent on 8 April 2003 in regard to the BAH policy exceptions for mobilized AGR Soldiers.  He requested this be forwarded to all AGR managers.  It reads: 

	a.  With the current Operational tempo we have been receiving a large number of BAH Exception to Policy requests for mobilized AGR Soldiers to be allowed to continue to receive BAH based on the AGR PDS during periods of mobilization.  DOD Financial Management Regulation, Volume 7A, table 26-9 states that BAH for active duty Soldiers stationed within CONUS will be based on the PDS.  This rule applies to Title 32 AGR Soldiers in a normal duty status. Table 26-11 states the BAH for Soldiers called or ordered to active duty in support of contingency operation is based on the home of residence.  This rule applies to M-Day Soldiers.

	b.  Currently, when a Title 32 AGR Soldier is mobilized, the same rules apply to them as M-Day Soldiers when it comes to BAH entitlement.  In other words, mobilized Title 32 AGR Soldiers will have their BAH changed from their PDS to the Home of Residence during the period of mobilization.  Normally, Title 32 AGR Soldiers can apply for an exception to policy for BAH based on a variety of reasons, such as a unit move, low cost/no cost move, etc.  Currently, there is no provision to provide an exception to policy for mobilized Title 32 AGR Soldiers allowing them to retain BAH based off the PDS during periods of mobilization.

	c.  The NGB has sent a formal request to the Army G-1 requesting a review of this policy, and a change to allow this type of exception to policy.  Army G1 has forwarded our request to Office of the Secretary of Defense and DFAS for a review.  Unless the policy is changed, all requests for BAH exceptions to policy for mobilized AGR Soldiers will be denied by Army G-1.  Therefore, the NGB will return all request to the originator without action.  Once a determination is made about possible policy changes, the NGB will disseminate.

19.  The DFAS official website makes the following definitions:

	a.  BAH is a U.S. based allowance prescribed by geographic duty location, pay grade, and dependency status.  It provides military members equitable housing compensation based on housing costs in local civilian housing markets within the United States when government quarters are not provided.  A member assigned to permanent duty within the 50 United States, who is not furnished government housing, is eligible for a BAH, based on the member's rank, dependency status, and permanent duty station ZIP Code. 

	b.  BAH rates for zip codes 27520/Clayton (his home), 28306/Fayetteville (his PDS), and 27331/Sanford (his PDS), for an O-3, are as follows:
2003
2004
2005

With
Without
With
Without
With
Without
27520
$1,211/$1,033
1,211/$1,033
1,211/$1,033
27331
$837/$768
$837/$768
$837/$768
28306
$837/$768
$887/$826
$1,035/917
20.  A Primer on the 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.

21.  The Joint Federal Travel Regulations do not contain provisions specifically limiting the distance a Soldier may live from his or her PDS.  

22.  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 permanent change of station (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 professional military education 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 applicant was assigned to 1st Battalion, 252nd Armor, Sanford, NC 27331 (PDS) in FTNGD status and residing with his spouse at Clayton, NC 27520 (Home).  It appears he was collecting BAH at the "with dependent rate" based on zip code 27520, his home.  His BAH should have been based on his PDS, not his home. 

2.  On 18 January 2003, the NCARNG published Orders ordering him to FTNGD in an AGR status for an indefinite period.  He was ordered to report on 18 January 2003 to his unit (Headquarters and Headquarters Company, 1st Battalion, 252nd Armor) in Fayetteville, NC 28306.  He and his spouse continued to reside in Clayton, NC 27520.  However, he was released from active duty on 30 September 2003 for the purpose of mobilization in support of OIF. 

3.  On 1 October 2003, he was ordered to active duty as a member of his Reserve unit, Company B, 1st Battalion, 252nd Armor, Sanford, NC 27331, to deploy to Iraq.  He was ordered to report on 1 October 2003 to home station (Sanford, NC 27331) and on 6 October 2003 to mobilization station (Fayetteville/Fort Bragg, NC 28306).  

4.  He was eligible for BAH based on his PDS (Sanford, NC 27331) but received BAH from March 2004 to January 2005 based on his home (Clayton, NC 27520). 

5.  DFAS audited his records and identified an overpayment in BAH, albeit some 10 years later.  DFAS considered the entire BAH monthly amount from March 2004 to January 2005 as an unauthorized BAH overpayment.  This resulted in his debt.  DFAS considers this debt a valid debt.  The applicant has been making monthly payments towards this debt since November 2013. 

6.  The applicant was eligible to receive BAH from 1 March 2004 to 31 January 2005, based on his marital status (married), rank (CPT at the time), and PDS (Sanford, NC 27331).  He meets the criteria to be authorized BAH from 1 March 2004 to 31 January 2005 and for potential payment of authorized BAH which could reduce his current debt.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ____X___  ____X___ GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by authorizing him Basic Allowance for Housing from 1 March 2004 to 31 January 2005 based on pay grade O-3, married/with dependents, zip code 27331. 

2.  DFAS should adjust his debt based on the above correction.

3.  The Board further determined that the evidence presented was insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to cancellation or remission of his debt.



      _______ _   _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)                                         AR20150003879



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ABCMR Record of Proceedings (cont)                                         AR20150003879



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