BOARD DATE: 8 June 2017 DOCKET NUMBER: AR20160000736 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: 8 June 2017 DOCKET NUMBER: AR20160000736 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: 8 June 2017 DOCKET NUMBER: AR20160000736 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 back pay for basic allowance for housing (BAH) for the period January 2003 to April 2004. 2. He states he received BAH Type II at the rate of $4.35 per month during his deployment, but he should have received BAH based on his permanent place of residence when ordered to active duty, Middlesex, PA. 3. He provides: * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Defense Finance and Accounting Service (DFAS) documents * Orders M-021-0066, dated 21 January 2003 * Orders 0710-002, dated 11 March 2003 * Orders 03-180-00080, dated 29 June 2003 CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant enlisted in the U.S. Army Reserve (USAR) on 14 August 2001. 3. Headquarters, 99th Regional Support Command, Orders M-021-0066, dated 21 January 2003, ordered him to active duty in support of Operation Enduring Freedom (OEF). He was instructed to report to the 744th Military Police (MP) Battalion. The period of active duty was listed as 365 days. His home of record and place ordered to active duty were listed as Middlesex, PA. 4. Headquarters, U.S. Army Fort Dix, Orders 070-002, dated 11 March 2003, directed the unit deployment outside the continental United States and return of the 744th MP Battalion in support of OEF. Paragraph k of the additional instructions stated, "For reserves and retired members ordered to active duty for more than 139 days in support of the operation, BAH is based on their permanent place of residence when ordered to active duty if denied movement of dependents and HHG [household goods]." 5. On 1 July 2003, the applicant was promoted to sergeant (SGT)/E-5. 6. On 23 April 2004, he was released from active duty and credited with completing 1 year, 3 months, and 3 days of active duty service. His DD Form 214 shows he served in Kuwait and Iraq from 23 March 2003 to 23 March 2004. 7. The applicant is currently serving as a major in the USAR Active Guard Reserve Program. 8. An advisory opinion was obtained from Chief, Compensation and Entitlements Division, Office of the Deputy Chief of Staff, G-1, in the processing of this case. The advisory official recommends denial of the applicant's request. He states the Department of Defense (DOD) policy for BAH resided in the DOD Financial Management Regulation (DODFMR) at the time the applicant was ordered to active duty in support of OEF in 2003. Volume 7A, chapter 57, paragraph 570502-E required Reserve Component (RC) Soldiers without dependents to either own their primary residence or be responsible for paying rent. Since the applicant did not provide a valid lease or mortgage agreement to the servicing finance office, he is not authorized to receive a housing allowance based on West Middlesex, PA. 9. On 4 November 2016, the advisory opinion was forwarded to the applicant for his acknowledgement and/or response. No response was received. REFERENCES: 1. DODFMR, Volume 7A, chapter 57, paragraph 570502-E, in effect at the time, stated that BAH is authorized to Reserve members without dependents under terms and conditions of chapter 26 of this volume when called or ordered to active duty in connection with a contingency operation as defined in Title 10, U.S. Code, section 101(a)(13) (reference (c)), who, because of the call or order, are unable to continue to occupy their primary residence that is owned by the member or for which the member remains responsible for rent payment. The rate payable is based on the locality rate at the permanent duty station of the member. 2. Volume 7A, chapter 26, paragraph 260203, in effect at the time, states an RC member without dependents, who is called or ordered to active duty on or after 5 December 1991 in support of a contingency operation (other than a member who is authorized transportation of household goods as a part of the call or order), is entitled to BAH at the without-dependent rate if the member is unable to continue to occupy his/her primary residence because of the call or order to active duty. This applies when the residence is maintained as the primary residence of the member when called or ordered to active duty and is owned by the member or for which the member is responsible for rental payments. 3. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION: The evidence of record shows he was an RC Soldier without dependents at the time he was ordered to active duty in support of OEF in 2003. As specified by regulation and confirmed by the advisory opinion, he was entitled to BAH based on his permanent residence when he was ordered to active duty in 2003. However, he was required to provide a copy of his lease/mortgage agreement to his servicing finance office for verification of entitlement to BAH which he apparently failed to do so. Therefore, in the absence of a copy of a lease/mortgage agreement and documentation confirming he paid rent and/or mortgage during this period of deployment, the presumption of administrative regularity should be applied. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160000736 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160000736 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2