BOARD DATE: 28 November 2017 DOCKET NUMBER: AR20170001571 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x____ ____x____ _____x___ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 28 November 2017 DOCKET NUMBER: AR20170001571 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. _____________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. BOARD DATE: 28 November 2017 DOCKET NUMBER: AR20170001571 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 correction of his military records by showing he was granted an exception to policy (ETP) for Basic Allowance for Housing (BAH) and for Cost of Living Allowance (COLA). 2. The applicant states he is requesting financial compensation for his previous ETP for BAH and COLA that he filed in September 2016. He contends that ALARACT Message 014, dated 15 January 2015, provide for BAH waivers allowing him to continue receipt of the higher BAH rate when his assignment orders authorized a no cost/low cost move and shipment of household goods and movement of his dependents were not authorized. However, his request was disapproved due to a wrongful determination that the location of his home of record and his duty station now placed him outside of the intent of the program. This reasoning contradicts the ALARACT message and the Massachusetts National Guard Local Commuting Areas Policy 16-01, signed by the Massachusetts Adjutant General. Also, this policy was reviewed and approved by the Per Diem, Travel and Transportation Allowance Committee Staff. 3. The applicant provides: a. ETP Packet for BAH with financial and policy information: * Orders 202-2209, Fort Benning, Georgia, dated 21 July 1999 * DD Form 2648 (Pre-separation Counseling Checklist) dated 26 July 1999 * 1st Endorsement, Transition Orders, Amendment, dated 2 August 1999 * DD Form 214 (Certificate of Release or discharge from Active Duty), ending 8 September 1999 * DD Form 214, ending 1 September 2003 * Orders 200-190, MA National Guard, dated 19 July 2006 * Orders 269-186, MA National Guard, dated 26 September 2006 * Orders A-10-626446, U.S. Army Human Resources Command (HRC), dated 18 October 2006 * Orders A-10-626446A01, HRC, dated 4 April 2007 * DD Form 214, ending 22 December 2007 * DD Form 214, ending 28 April 2011 * Orders 163-022, MA National Guard, dated 12 June 2014 * ALARACT Message 014/2015, dated 15 January 2015 * MA Mandatory Licensee-Consumer Relationship Disclosure, dated 4 April 2015 * An Amendatory Clause and Real Estate Certification pertaining to a Sales Contract dated 15 June 2015 * Real Estate Purchase and Sale Agreement, dated 16 June 2015 (only 8 of 9 pages) * Real Estate Election to have a home inspection, dated 16 June 2015 * Property Representation Disclosure, dated 16 June 2015 * Seller’s Statement of Property Condition, dated 16 June 2015 (4 pages) * Settlement Statement, dated 6 August 2015 (4 pages) * MA National Guard Policy 16-1, Local Commuting Areas, dated 1 December 2016 * Orders 210-038, MA National Guard, dated 28 July 2016 * DA Form 4187 (Personnel Action), Permanent change of station (PCS), dated 28 July 2016 * Defense Finance and Accounting Service (DFAS) Form 702 (Military Leave and Earnings Statement) for the month of July 2016 * DA Form 5960 (Authorization to Start, Stop, or Change Basic Allowance for Quarters and/or Variable Housing Allowance, dated 11 August 2016 * Memorandum for the applicant from MA National Guard, subject: BAH ETP Request, dated 19 December 2016 * Memorandum for the Active Guard/Reserve (AGR), Hanscom Air Force Base, dated 3 January 2017 b. BAH and COLA Difference Forms: * BAH Rate Query Results for Boston, MA * BAH Rate Query Results for Hampden County, MA * COLA for Calendar Year 2016 for Boston, MA CONSIDERATION OF EVIDENCE: 1. The applicant’s DD Form 214 ending on 8 September 1999 reports that he enlisted in the Regular Army on 20 May 1997 in Springfield, MA. He served as a fighting vehicle infantryman and attained the rank of specialist, pay grade E-4. He was released from active duty (REFRAD) and transferred to the 1st Battalion, 104th Infantry in Pittsfield, MA. 2. The applicant’s DD Form 214 ending on 1 September 2003 reports that he was ordered to active duty as a member of the 1st Battalion, 104th Infantry on 3 September 2002 as a sergeant, pay grade E-5. He was REFRAD and transferred to the 1st Battalion, 104th Infantry in Pittsfield, MA. 3. In 2006 the applicant was mobilized as a staff sergeant, pay grade E-6 for duty in Europe with the 181st Infantry. On 22 December 2007, he was REFRAD and transferred with his unit back to Massachusetts. 4. On 16 April 2009, the applicant was commissioned as a second lieutenant, pay grade O-1. His branch was infantry. He was ordered to active duty for training (ADT) from 9 January 2011 until 28 April 2011. 5. Orders 163-022, Massachusetts National Guard, dated 12 June 2014, ordered the applicant to full time National Guard duty in the Active Guard/Reserve (AGR) status in the rank of captain, pay grade O-3E. He was assigned to the 1st Battalion, 182nd Infantry Regiment with duty in Melrose, MA, effective 11 June 2014. 6. On or about 16 June 2015, the applicant entered into an agreement to purchase residential property in West Springfield, MA. 7. Orders 210-038, Massachusetts National Guard, dated 28 July 2016, announced the applicant’s reassignment from the 182nd Infantry Regiment located in Melrose, MA, to Detachment 1, Recruiting and Retention Battalion, located at Westover AFRB, MA. This PCS was a low cost/no cost move and did not authorize dependent travel or shipment/storage of household goods. The applicant’s current residence was within the established commuting distance to his new duty station. The orders indicate that the applicant had given his consent for this PCS. 8. DA Form 5960, as provided by the applicant, dated 11 August 2016, shows he requested a change to his housing allowance. He listed his duty location as Westover AFRB, MA, and his current residence as in West Springfield, MA. 9. A memorandum from the AGR Branch Manager, dated 19 December 2016, to the applicant, informed him that his request for an ETP concerning his BAH based on his previous duty location of Melrose, MA, was disapproved. The basis given for the denial was the fact that the commuting time from his residence to duty station was about 10 minutes. His trying to retain a higher BAH based on his previous duty station in Melrose that receives the Boston rate, is outside of the intent of the ETP program. 10. In the processing of this case, an advisory opinion was received from the Chief, Compensation and Entitlements Division, Office of the Deputy Chief of Staff, G-1 (Personnel Officer), Headquarters, Department of the Army. a. Based on a careful review of the facts surrounding the applicant’s situation, the opinion recommended disapproval of his request for administrative relief. The facts of the case supported the previous G-1 decision to disapprove his continued receipt of BAH based on his prior duty station in Melrose, MA, in lieu of the rate for his current duty station in Westover, MA. It is noted that the applicant’s residence in West Springfield, MA, is located within 10 minutes travel time of his current duty station and is in the same BAH area. Therefore, it is equitable to pay him the current housing rate for his assigned duty station. b. The BAH rate for Melrose, MA, is based on Boston, which is the highest BAH rate in the state of MA. The applicant purchased a residence in West Springfield and moved from his prior home in Agawam, MA. Both his prior and current residence are located in BAH areas with rates lower than for Melrose. The applicant made personal choices to live in a lower BAH rated area and to benefit financially. In this case, it is inequitable to grant an ETP to continue to pay him a higher BAH rate. 11. On 15 June 2017, a copy of the advisory opinion was sent to the applicant for his information and opportunity to respond. No response was received. REFERENCES: 1. The Joint Travel Regulation, Chapter 10, states a member on active duty entitled to basic pay is authorized a housing allowance based on the member’s grade, dependency status and location. The location determines the rate which is based on the median housing costs and is paid independently of a member’s actual housing cost. BAH rates are determined based on adequate housing costs in a military housing area for all members authorized BAH. A military housing area is defined geographically by Zip Code(s) within the United States. Permanent duty station housing allowance eligibility starts on the member’s reporting date to a new permanent duty station. BAH stops on the day before the member departs in compliance with a PCS order. 2. ALARACT Message 014/2015, date/time group 151705Z January 2015, provided BAH waivers for the purpose of stabilizing the Soldier’s dependents for a relatively short period of time when circumstances require dependents to reside separately. The intent is to provide temporary assistance to Soldiers and their families to ease the transition of a PCS move to the new permanent duty station. DISCUSSION: 1. The available evidence shows that the applicant, while assigned for duty in Melrose, MA, purchased a residence in West Springfield, which was outside of the BAH area for Melrose. He subsequently consented to be reassigned to a duty station which included his current residence for BAH. In doing so he no longer qualified for BAH based on his previous higher rate while at Melrose. 2. The applicant’s desire to retain the higher BAH rate as an ETP does not meet the intent of the program in that it appears that his family was not required to reside separately from him, or that they were in need of temporary assistance due to a PCS transition. 3. The advisory official found no evidence of error or injustice in this case. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20170001571 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20170001571 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2