RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 27 September 2005 DOCKET NUMBER: AR20050001513 I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual. Mr. Carl W. S. Chun Director Mrs. Nancy L. Amos Analyst The following members, a quorum, were present: Mr. Ronald E. Blakely Chairperson Mr. Lawrence Foster Member Ms. Laverne M. Douglas Member The Board considered the following evidence: Exhibit A - Application for correction of military records. Exhibit B - Military Personnel Records (including advisory opinion, if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests that his basic allowance for housing (BAH) while assigned to the Army War College (AWC) be adjusted to be consistent with that paid to Navy and Air Force students at the AWC. 2. The applicant states he made a permanent change of station (PCS) move to attend the AWC at Carlisle Barracks, PA in July 2002. He elected to leave his family in Alexandria, VA. 3. The applicant states that, upon arrival at the AWC, he learned that fellow Navy and Air Force students who had also elected to leave their families in the Washington, D.C. area were authorized by their respective services to retain BAH at the higher rate based on their family's location, not their present duty station. Army officers attending the AWC received BAH based on their new duty location regardless of where their families resided. 4. The applicant states extensive research by the affected Army AWC students concluded that Title 37, U. S. Code, section 403 grants the Service Secretary the authority to grant BAH waivers for two general categories: (1) when duty at the member's permanent duty station (PDS), or the circumstances of assignment to the PDS, require the member's dependents to reside at a different location, and (2) the member is assigned to a PDS under conditions of a low/no cost move. However, the Services and their respective legal counsels interpret the section differently, resulting in entitlement differences among military Services personnel assigned to the same duty stations for periods of short duration. This difference in interpretation resulted in lower BAH paid to Army officers than to Air Force and Navy students assigned as AWC students whose family members resided in the Washington, D.C. area. 5. The applicant states in June 2001 the Office of the Secretary of Defense (OSD) BAH Working Group reached consensus on the payment of BAH for PCS personnel attending professional military education (PME). They concluded it was in the best interest of both the Department and the service members to make PME eligible for the Secretary waiver, thus permitting BAH to be paid at the higher rate when the service member and family resided separately. OSD Office of The General Counsel informally approved the BAH Working Group's decision. The Navy and the Air Force thereupon implemented the new policy. The Army, however, did not agree with this consensus and chose not to implement a policy consistent with the other two Services. 6. The applicant states informal discussions with the Army action officers indicated that the Army was unwilling to change its policy in the students' favor without a statutory change to Title 37, U. S. Code, regardless of the other Services' BAH policies. On 28 May 2003, three AWC students wrote to the Secretary of Defense to seek his assistance in resolving the differences between the OSD and the Army positions. On 26 June 2003, the Principal Deputy, Under Secretary of Defense (Personnel and Readiness) signed a memorandum allowing Service Secretaries to grant BAH waivers for service members attending PME for 12 months or less. The waivers would authorize BAH at a rate other than the new PME duty station when the soldier resides separately from his or her dependents. As a result, a new Army policy was announced on 25 July 2003 that is consistent with both Air Force and Navy BAH policies. 7. The applicant states the Army's policy caused an unfair hardship to the officers hand-picked as future leaders who chose, in good faith and in the best interest of their families, to PCS unaccompanied. When the Army reversed its decision and made a change to be consistent with the other Services, it raised doubts that the officers and families were considered in the overall training investment equation. 8. On 19 August 2003, the Army responded on behalf of the AWC student's 28 May 2003 request. The students were informed of the new OSD policy and further informed the Army would consider future waiver requests and retroactive payments were not authorized. Since the change in Army policy, 46 waivers have been approved for Soldiers at various schools, including the AWC. The Army could have used waiver authority consistent with the Air Force and Navy earlier but declined to approve any waivers without statutory change. In the joint service senior service school environment, a clear inequity on BAH payments existed. As a result, each of the 25 affected AWC students lost approximately $12,000 in BAH allowances. 9. The applicant provides the documents listed as Tabs A through J of his application. CONSIDERATION OF EVIDENCE: 1. The applicant was commissioned a second lieutenant on 17 May 1980. He was promoted to lieutenant colonel on 1 January 1997. He was assigned to the Office of the Deputy Chief of Staff for Logistics, Pentagon on or about 27 July 2000. He was ordered to proceed on PCS to Carlisle Barracks, PA to attend the AWC, which started on 30 July 2002. He was promoted to colonel on 1 October 2002. 2. The applicant provides a Department of the Air Force Staff Summary Sheet. That Summary Sheet noted the Fiscal Year 2001 National Defense Authorization Act, paragraph (b)(7) and (d)(3) of the new Title 37, U. S. Code, section 403, added Service Secretary authority to base housing allowances on old PDS rate in situations involving no cost or low cost moves within the United States where the member and dependents reside separately. OSD entitlement policy change effective 1 July 2001 authorized selection of BAH rate (previous duty station, new duty station, or dependent location) for no cost or low cost PCS. 3. In a 4 March 2002 memorandum to the Defense Finance and Accounting Service (DFAS), the Assistant Secretary of the Air Force (Manpower and Reserve Affairs) notified DFAS that a member could request selection of the with dependent rate BAH at dependent location, previous duty station, or current duty station, whichever was more equitable, provided PCS entitlements were limited. For the BAH entitlement at higher rate, the member must agree to PCS entitlements at low or no cost to the government and without dependent dislocation allowance and temporary lodging expense. The change was effective the date of the memorandum. 4. The applicant provided a sample Navy BAH waiver approval letter dated 29 July 2002. The Navy officer had been assigned to the Naval District of Washington, Washington, D.C. when he was placed on orders to attend the AWC starting 15 July 2002 (the same class as the applicant). That Navy officer stated his wife had recently been appointed as a department head of a school in Fairfax, VA and his daughter was attending college in Northern Virginia and they did not wish to move to Carlisle, PA. That officer's request to have his BAH based on his dependent's location was authorized. 5. The applicant provided a sample Army BAH waiver denial letter. An unidentified officer (attending the applicant's same AWC class) requested a BAH waiver. By memorandum dated 22 July 2002, the Chief, Compensation and Entitlements Division, Office of the Deputy Chief of Staff, G-1, disapproved the request. The memorandum noted the information provided by the officer did not support the determination that circumstances at his PDS required his dependents to reside at a different location. The memorandum noted his orders authorized the shipment of household goods and movement of dependents at government expense. 6. By memorandum dated 29 August 2002, the applicant and 24 of his classmates requested support from the Army Deputy Chief of Staff, G-1 in obtaining Service Secretary waiver to receive BAH at a rate other than their new PDS. They noted the Air Force had already taken action to remedy the inequity for their Air Force classmates. They noted they all had to make decisions on whether their families would accompany them to Carlisle, PA and accepted the consequences; however, they stated that providing a low cost PCS option for PME of 12 months or less would empower families to make the right decisions without financial penalty. They respectfully urged the Army to immediately adopt a policy, consistent with the Air Force, which would address the BAH issued for that year's AWC class. The Commandant of the AWC supported their request by memorandum dated 10 September 2002. 7. The Army Deputy Chief of Staff, G-1 apparently did not respond to the applicant's joint letter. By memorandum to the Secretary of Defense dated 28 May 2003, three classmates of the applicant requested the Secretary's assistance in remedying the inconsistency between the Services in payment of BAH to members attending PME of 12 months or less in duration. 8. On 7 June 2003, the applicant completed the AWC and was reassigned to Korea. 9. In a memorandum dated 26 June 2003 from the Office of the Under Secretary of Defense (Personnel and Readiness) to the appropriate Assistant Service Secretaries and DFAS, OSD noted the circumstances of an assignment where a member receives a PCS assignment of 12 months duration or less for purposes of participating in PME are unusual. In such cases, the Secretary concerned may determine that, under the circumstances of a short-term assignment for purposes of participating in PME or training, the member's BAH should be based on the area in which the dependents reside or the member's last duty station, whichever the Secretary concerned determines to be most equitable. The memorandum noted the Secretary concerned should consider the factors set forth above in making determinations with respect to members assigned to PME or training for the upcoming academic year (emphasis added). 10. Headquarters, Department of the Army implemented the 23 June 2003 OSD guidance in a message to the field date time group 302201Z July 2003. The message stated that Soldiers could request selection of the with-dependent BAH rate at the dependent's location or previous duty station if they agree to limited PCS entitlements. 11. The Deputy Chief of Staff, G-1 responded to the applicant's three AWC classmates' inquiry to the Secretary of Defense by memorandum dated 19 August 2003. He stated OSD established a new policy effective 26 June 2003 which standardized Service interpretation of BAH regulations, directives, and federal laws. He stated an exception to the normal BAH policy could be granted if the Service Secretary determines it is inequitable to base the allowance on the Soldier's assigned housing rates. He stated the BAH policy was to benefit students attending school/training effective on and after 26 June 2003, the date of the authorization by OSD, and there is no authorization for retroactive payments. DISCUSSION AND CONCLUSIONS: 1. The OSD 26 June 2003 memorandum stated the Secretary concerned may determine that, under the circumstances of a short-term assignment for purposes of participating in PME, the member's BAH should be based on the area in which the dependents reside or the member's last duty station. The Secretary of Defense did not take away the Secretary of the Army's discretion to use this authority. 2. The memorandum also noted the Secretary concerned should consider the factors set forth above in making determinations with respect to members assigned to PME or training for the upcoming academic year (after the applicant completed the AWC). 3. When not required to conform by statute, the Services often differ in personnel or budgetary policies/priorities. As examples: The Air Force has a greater need for senior grade officers; therefore, an Air Force lieutenant colonel will be promoted to colonel sooner than would an Army lieutenant colonel with the same date of rank (or vice versa); the Navy chooses to make a particular overseas area a dependent-restricted assignment; the Army authorizes dependents; the Air Force chooses to concentrate its resources this year on personnel and family issues; the Army chooses to concentrate its resources this year on restructuring its combat forces. 4. The Army has historically defined BAH waiver authority differently than some of the other Services. It was within its authority to do so and OSD did not change that authority. 5. The applicant knew prior to departing to attend the AWC he would not receive BAH at the higher rate if his family did not PCS with him. He freely chose to leave his family in Virginia. The Army's rules were clear and fairly applied. He has provided no evidence to show he was treated inequitably in comparison with other Army personnel, whether his Army classmates at the AWC or Army personnel attending other types of PME in the same academic year. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING __reb___ __lf____ _lmd____ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. __Ronald E. Blakely___ CHAIRPERSON INDEX CASE ID AR20050001513 SUFFIX RECON DATE BOARDED 20050927 TYPE OF DISCHARGE DATE OF DISCHARGE DISCHARGE AUTHORITY DISCHARGE REASON BOARD DECISION DENY REVIEW AUTHORITY Mr. Chun ISSUES 1. 128.12 2. 3. 4. 5. 6.