RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2016-01107

 						COUNSEL:  NONE

						HEARING DESIRED:  NO 

APPLICANT REQUESTS THAT:

He be granted a Basic Allowance for Housing (BAH) Waiver for the period of 22 August 2009 to 11 November 2013.  

His DD Form 1172, Application for Identification/DEERS Enrollment, show his spouse’s correct address in New York, NY.   

AF Form 594, Application to Start, Stop or Change Basic Allowance for Quarters, show his spouse’s correct address in New York, NY.    

APPLICANT CONTENDS THAT:

He requests a BAH Waiver to receive the with dependent rate BAH and Continental United States (CONUS) Cost of Living Allowance (COLA) for New York as his wife resided in New York during this period.  He pursued a BAH waiver which was denied.  On 17 November 2015, he was advised to petition the AFBCMR for his requests.  

His spouse retained her pre-marital residence due to education, contractual employment and licensing constraints which required him to support two households.  He was unaware he could request a BAH waiver based on acquiring a dependent’s residence.  Had he been properly informed of the BAH entitlement, he would have requested a timely waiver.  It is unjust to punish him for his ignorance.  Furthermore, the original DD Form 1172 he completed upon acquiring a dependent lists an incorrect address for his spouse.  This error is directly attributable to the miscounseling he received from subject matter experts at Creech AFB, NV who advised him to substitute his address for hers due to the temporary nature of his spouse’s student housing.  

He was unaware until 20 October 2015 the Joint Travel Regulation (JTR) permits members, through the Secretarial Process, to request a BAH waiver based on an acquired dependent’s location.  On this day, his wife lunched with a fellow military spouse who told her about the entitlement.  

The AFBCMR previously acknowledged that it is unreasonable to expect service members to fully comprehend their housing entitlements.  In BC-2013-01907, the AFBCMR found it was not reasonable to expect that an applicant in the grade of Senior Airman (SrA, E-4) to know he was being overpaid BAH and Overseas Housing Allowance (OHA).  Likewise, it would be unreasonable to expect the applicant, a pilot whose job has no connection to personnel regulations to have known he was entitled to request a BAH at a level other than the prescribed standard rate.  The JTR is voluminous and the entitlement rules are so complicated that even trained Military Personnel Flight (MPF)_ specialists are unaware that service members may request a BAH rate based on a dependent’s location.  

In accordance with the JTR, when a member is assigned to a CONUS Permanent Duty Station (PDS) and acquires a dependent, he may request a BAH rate based on the dependent’s residence location.  The JTR also provides that a member assigned to a CONUS PDS may request CONUS COLA based on the dependent’s location.  These provisions are separate and distinct from the JTR paragraphs governing housing allowances for members with dependents, and recognize that newly acquired dependents cannot always abandon personal and professional obligations that predate military life.  

On 14 May 2009, he received orders from Columbus AFB, MS to Creech AFB, NV.  He in-processed on 15 July 2009 and married on 22 August 2009.  Unfortunately, due to circumstances beyond her control, his spouse could not join him at Creech AFB and remained in New York.    At the time, she was a full-time student at Columbia Law School.  She qualified as a dependent in the last year of a certificate/degree program, thus satisfying Air Force requirements for an education-based BAH waiver.  She also paid her tuition for the fall 2009 semester and would have forfeited $27,173.75 had she left school early to join him at Creech AFB following their wedding.  She also had a signed lease which was a binding legal contract.  Based on this, he qualifies for a BAH waiver based on dependent education.    

It is not unprecedented for military boards to determine that a residential lease may serve as a basis of a BAH waiver.  In 2009, the Army BCMR granted a retroactive BAH waiver after the applicant’s family remained at a prior PDS.  The Army BCMR found that since the applicant had entered into a residential lease based on erroneous information provided by his personnel office, it was appropriate to reward relief based on the term of the lease.  Like the Army applicant, he was severely disadvantaged by the existence of the lease that precluded his spouse from joining him at his PDS.  

As a licensed and barred New York attorney, his spouse would have faced significant barriers to employment had she joined him in Nevada.  Due to licensing requirements, she had little choice but to remain in New York during his tenure at Creech.  She had accumulated $172,500 in education debt and monthly payments exceeded $2,100 per month.  Acutely aware they would not pay off her student loans on his salary alone, they made the difficult decision for her to remain in New York where she had secured gainful employment.  It is unreasonable to expect newly married dependents with such overwhelming debt to uproot their lives, turn down gainful employment and relocate to the service member’s PDS.  

In 2014, the AFBCMR (BC-2014-00903) found in favor of an applicant seeking a retroactive BAH waiver for a low cost reassignment although he did not request it prior to the consummation of the assignment.  The Board believed that had the applicant been properly informed of the entitlement, he would have requested the entitlement.  He is in an analogous situation since at the time of his marriage, he was unaware he could request a BAH waiver.  He promptly updated his military records to reflect his marital status.  When he sought guidance as to how to report his spouse’s temporary student address, he was advised to use his address since her address was temporary. This inaccuracy continued until 4 March 2013, when he submitted a new DD Form 1172 in order to obtain a new dependent identification card for his spouse.   

The applicant’s complete submission, with attachments, is at Exhibit A.

STATEMENT OF FACTS:

The applicant entered the Regular Air Force on 30 May 2007 and is currently serving in the grade of major (O-4) at the Pentagon, Washington DC.  

The parties were married on 22 August 2009.  

According to AF Form 899, Request and Authorization for Permanent Change of Station-Military, Special Order AC-072896 dated 14 May 2009, the applicant was reassigned to Creech AFB, NV with a report not later than date of 5 September 2009.  

The applicant provides a copy of his BAH Waiver application dated 9 November 2015 which includes copies of leases his spouse signed for the periods of 1 June 2009 to 31 May 2010 (university housing), 1 January 2011 to 31 December 2012 and 17 December 2012 to 31 December 2013.  

According to the Defense Travel DOD Military website, the 2013 monthly BAH rate for a captain (O-3) with dependent for New York, NY was $3,480 while the rate for Creech, NV was $1,396.00.  The CONUS COLA rate for a captain with six years of service for New York, NY was $468.00 monthly.  

The remaining relevant facts pertaining to this application are contained in the memorandums prepared by the Air Force offices of primary responsibility (OPR), which are attached at Exhibits C, D and E.    

AIR FORCE EVALUATION:

AFPC/DP3SA states the Defense Eligibility Enrollment Reporting System (DEERS) is a repository of both personnel and dependent family member information.  However, DEERS does not maintain historical data regarding addresses such as residence or mailing.  DEERS maintains current address information, and if an address change is reported, the former address is overlaid with the most current address.  The applicant should have pursued determination of dependent rate entitlements with the Defense Finance and Accounting Service (DFAS).

A complete copy of the AFPC/DP3SA evaluation is at Exhibit C.  

DFAS/IN recommends partial approval for the period of 22 August 2009 to 31 May 2010 in which the applicant’s dependent was attending school since movement would have been a confirmable hardship.  A lease agreement was signed for the period of 1 June 2009 to 31 May 2010.  Additional lease agreements were provided to cover through 31 December 2013, without proof of employment there is no way to confirm a financial hardship beyond 31 May 2010. 

There are contingencies available for the payment of CONUS COLA and BAH for the location of dependents separate from the location of the applicant.  These are available via the JTR.  The stipulation is that prior to any change of station, the command be notified of the situation and that orders reflect that the applicant will not be traveling with the servicemember.   A waiver for BAH and COLA for the location of dependents is granted when travel is deemed a hardship.  This would be true for the period the dependent was attending school.  

A complete copy of the DFAS/IN evaluation is at Exhibit D.

AF/A1PA recommends denial.  Elective adult education and spouse employment do not constitute circumstances identified for which a BAH waiver is granted via the Secretarial process.

The applicant requests BAH to be paid at the rate for the location of the dependent in accordance with JTR, paragraph U10404, Acquired Dependents.  The correction would entitle him to the BAH and CONUS COLA for the location the dependent resided.  In May 2009, the applicant was issued AF Form 899, Permanent Change of Station (PCS) Order, Special Order Number AC-07289 dated 14 May 2009 to PCS from Columbus AFB, MS to Creech AFB, NV.  In July, he performed PCS travel to Creech and on 26 August 2009 he and his spouse were married.  

The basic eligibility criteria for requesting a BAH waiver is that the member must have a dependent and the assignment requires the member and dependent to reside separately.  In this case, the member acquired a dependent who resides in a different location.  However, elective adult education and spousal employment do not constitute circumstances identified for which a BAH waiver is granted via the Secretarial Process.  AF/A1PA provides JTR paragraph U10404, Acquired Dependents, which states when a member, living off post, acquires a dependent, a with dependent housing allowance is authorized based on the PDS if the member is assigned at a PDS in CONUS.  A member assigned at a PDS in the CONUS may request a housing allowance based on the dependent’s location through the Secretarial Process. Part E, Assignment Situations/Section 3: Acquired Dependents, states for members assigned in CONUS, Start BAH at the with dependent rate based on the PDS as of the date acquired should government quarters not be available for the member.  Note 1, In unusual circumstances, the member may request BAH/OHA based on the dependent location through the Secretarial Process.  

A complete copy of the AF/A1PA evaluation, with attachments, is at Exhibit E.  

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

While his petition is based on his acquired dependent’s employment and education obligations, he also advanced other theories in support of his request.  Furthermore, the differing advisory opinions makes clear that headquarters fails to understand the regulatory framework governing the applicant’s request and unjustly overlooks the military’s treatment of similarly situated individuals.  

The JTR states “Ordinarily a housing allowance is paid based on the member’s PDS.  However, the Service may determine that a member’s assignment to a PDS or the circumstances of that assignment requires the dependent to reside separately.  The Secretary Concerned or the Secretarial Process, at Service discretion, may authorize/approve a housing allowance based on the dependent’s location or old PDS.  It further states under Other Circumstances, the Secretary Concerned may determine the circumstances not listed which require the dependent to reside separately and authorize/approve a housing allowance payment based on either the dependent’s location or the old PDS.  The Secretary concerned may determine an additional reason for a BAH or OHA waiver is acceptable and the Secretarial Process may then be used to authorize/approve individual cases based on that determination. 

A complete copy of the applicant’s submission, with attachments, is at Exhibit G. 

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing law or regulations.

2.  The application was timely filed.

3.  Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice to grant the requested relief.  The applicant requests he be granted a BAH waiver for the period of 22 August 2009 to 11 November 2013 and provides documentation to show that his spouse was committed to remaining in New York after their marriage and that he was unaware he could apply for a BAH waiver.  However, we find the evidence insufficient to warrant a BAH waiver for the requested period.  In this respect, while the applicant’s spouse was attending law school and was committed to a lease at the time of their marriage, we note the lease was through 31 May 2010.  At this point, it is our opinion the applicant and his spouse determined it was in their best interest for her to continue to remain in New York rather than relocate to Creech AFB NV, in essence it was a personal decision.  While we understand the financial and employment challenges the applicant’s spouse may have faced had she relocated from New York to Creech AFB, these challenges are not unique to the applicant and his spouse and we are unable to grant the applicant special consideration not provided to other similarly situated Air Force members.  Therefore, we agree with the opinions and recommendations of the Air Force offices of primary responsibility (OPR) and adopt the rationale expressed as the basis for our conclusion the applicant has not sustained his burden of proof to warrant a BAH waiver for the requested period.  With respect to the applicant’s requests that his DD Form 1172 and AF Form 594 be amended to reflect his spouse’s address in New York at the time, we find no reason to amend these documents which are not permanent records retained in the applicant’s Automated Records Management (ARMS) record.  The applicant also asserts relief is warranted based on precedence and cites several AFBCMR and Army BCMR cases he believes supports his requests.  However, we disagree.  Every case before this Board is considered on its own merit since the circumstances of each case are seldom identical.  We note the cases cited by the applicant reference BAH entitlements but are distinguishable from the applicant’s request and are not comparable.   Accordingly, we find the applicant has not sustained his burden of proof that he has been the victim of an error or an injustice.  Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the requested relief.

3.  Notwithstanding the above, sufficient relevant evidence has been presented to demonstrate the existence of an error or injustice to warrant partial relief.  In this respect, we note the applicant’s spouse was attending law school in New York and was under a lease agreement for her place of residence at the time of their marriage.  In view of this, we are persuaded it would have been undue hardship for his spouse to relocate from New York to Creech AFB prior to 31 May 2010.  Accordingly, we agree with the opinion and recommendation of DFAS/IN that the applicant’s request for a BAH waiver be approved for the period of 22 August 2009 to 31 May 2010, which includes the lease agreement in effect at the time of their marriage.  Therefore, we recommend the applicant's records be corrected to the extent indicated below.	

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show that his Basic Allowance for Housing (BAH) Waiver application dated 9 November 2015 was approved for the period of 22 August 2009 to 31 May 2010 in accordance with the JTR, paragraph U10404, Acquired Dependents. 

The following members of the Board considered AFBCMR Docket Number BC-2016-01107 in Executive Session on 1 June 2017 under the provisions of AFI 36-2603:

	 , Panel Chair
	 , Member
	 , Member

All members voted to correct the records as recommended.  The following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 7 March 2016, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFPC/DP3SA, dated 7 September 2016.  
	Exhibit D.  Memorandum, DFAS/IN, dated 19 October 2016.  
	Exhibit E.  Memorandum, USAF/A1PA, dated 31 October 2016,
			  w/atchs.
	Exhibit F.  Letter, AFBCMR dated 17 November 2016.
	Exhibit G.  Letter, Applicant, undated.  

Pursuant to paragraph 1 of AFI 36-2603 (Title 32 Code of Federal Regulations, Part 865.1), it is certified that a quorum was present at the Board's review and deliberations, and that the foregoing is a true and complete record of the Board's proceedings in the above entitled matter.