BOARD DATE: 12 July 2016 DOCKET NUMBER: AR20160002772 BOARD VOTE: __x_______ __x_____ ____x____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 12 July 2016 DOCKET NUMBER: AR20160002772 BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: * showing he timely submitted a DA Form 4187 requesting a Secretarial Waiver for continuation of cost of living allowance (COLA) from 10 July 2015 to 9 October 2015 * showing the Office of the Deputy Chief of Staff, G-1, timely received and approved his waiver request * paying any retroactive COLA based on the above correction ____________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: 12 July 2016 DOCKET NUMBER: AR20160002772 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, in effect, Secretarial approval of retroactive cost of living allowance (COLA), from 10 July 2015 to 9 October 2015, based on his assignment to Hawaii (HI). 2. The applicant states: * he traveled from HI to Fort Knox, KY, in a temporary duty status (TDY) to attend the Career Counselor Course; he took 30 days of permanent change of station (PCS) leave in HI * he had follow-on instructions to report to Fort Bragg, NC, after the course * he requested to be in TDY and return status to help his family move from HI * he was told he had to go TDY enroute, so he left his family in HI while he went TDY * his COLA was turned off when he left HI * after the TDY, he returned to HI on 10 September 2015 to assist with his family's move * he did not know he needed to request a Secretarial waiver to continue to receive COLA; yet, before he left HI, he made sure he submitted the proper paperwork * his servicing personnel office routed the paperwork to finance where it sat for 50 days before it was forwarded to the Army G-1 3. The applicant provides: * Memorandum for Record (MFR) from his former commander * DA Form 4187 (Personnel Action) * Enlisted Record Brief * July through December 2015 Leave and Earnings Statements * PCS Orders C1-156-030 * DD Form 1610 (Request and Authorization for TDY Travel of Department of Defense (DOD) Personnel) * command sponsorship memorandum * household goods inventory * certificate of marriage CONSIDERATION OF EVIDENCE: 1. Having had prior service in the Army National Guard, he enlisted in the Regular Army on 27 May 2009. He holds military occupational specialty 25Q (Multichannel Transmission Systems Operator/Maintainer). 2. He served through multiple reenlistments and he arrived in HI on or around 15 October 2012. He was assigned to Headquarters and Headquarters Company, 311th Signal Command, Fort Shafter, HI. 3. He was promoted to staff sergeant/E-6 in October 2012. He married his spouse on 10 January 2013 and he immediately applied for a change to his basic allowance for housing (BAH) rate from BAH without to the BAH with dependents rate, to be effective on his date of marriage. 4. On 9 October 2013, the U.S. Army Installation Management Command, Schofield Barracks, HI, issued a memorandum of approval for command sponsorship effective 7 October 2013. 5. On 5 June 2015, the U.S. Army Installation Management Command, Schofield Barracks, published Orders C1-156-030 ordering him on a PCS move to the 18th Field Artillery Augmentation Fire Brigade at Fort Bragg, NC, effective 10 October 2015. He was also ordered to proceed in a TDY enroute status to Fort Knox, KY, to attend the Career Counselor Course from 13 July 2015 to 9 September 2015. 6. He started his PCS on 10 July 2015 and he attended the Career Counselor Course at Fort Knox from 13 July 2015 to 9 September 2015. He continued to receive BAH at the with dependents rate, based on zip code 96858 (Mililani, HI). 7. He took leave from 12 September 2015 to 10 October 2015. He also received Family Separation Allowance from 10 July to 9 September 2015. He began receiving BAH at the With Dependents rate, based on zip code 28310 (Fort Bragg, NC, area), beginning on or about 10 October 2015. 8. He provides: a. An unsigned/unapproved DD Form 1610, dated 24 June 2015, that shows he was to proceed in a TDY and return status from Hawaii to Fort Knox, KY, and back to Hawaii for 63 days starting on 10 July 2015. b. LES from July 2015 through December 2015. His July 2015 LES shows he started "PCS on 10 July 2015." He received COLA for July 2015 but not for August through December 2015. c. An MFR from his former company commander who erroneously addresses the issue as a request for BAH. He states that the applicant submitted an exception to policy DA Form 4187, which was erroneously routed to the finance office where it sat for 50 days. d. A DA Form 4187, dated 29 June 2015, initiated by the applicant. He requested to receive BAH at the with dependent rate based on his previous duty station or Government-approved dependent's location. He indicated that the reason for his request was family stabilization, to prevent his family from moving twice in one year. He indicated the period in question as 10 July 2015 to 10 October 2015 (the period of his military school). His immediate and senior commanders recommended approval on 7 July and 8 July 2015 respectively. e. An email from his commander that reads "I have attached the MFR I wrote as well as the packet that was processed for [the applicant]. My understanding is that the exception to policy SHOULD have been requested for COLA but was mistakenly requested for BAH. I approved the action requesting exception to policy for BAH." 9. The Board requested and the Army G-1 provided an advisory opinion on 5 April 2016. A representative at the Compensation and Entitlements Division recommended disapproval of the applicant's request. He stated: a. The applicant failed to take the proper action prior to his departure from HI to ensure his exception to policy request was properly submitted and processed. Moreover, upon recognizing that the COLA for HI stopped while on leave, the applicant did not contact his leadership to find out why the allowance stopped. b. The Joint Travel Regulation (JTR), chapter 9, paragraph 9105 requires a Soldier's COLA stop the day before the member departs his/her duty station in compliance with a PCS order unless a Secretarial waiver is granted to continue the allowance. According to his July 2015 LES, the applicant's supporting finance office stopped the COLA as required. 10. The applicant responded to the advisory opinion. He stated: * he did not fail to take proper actions prior to his departure from HI to ensure the exception to policy request was properly submitted and processed * every effort was made to submit the exception to policy request within a reasonable time, he also followed up weekly while he was in a TDY status REFERENCE: The JTR pertains to per diem, travel and transportation allowances, relocation allowances, and certain other allowances of Uniformed Service Active Duty members, Uniformed Service Reserve Component members, DOD civilian employees, and civilians who travel using DOD funding. Chapter 9 pertains to outside continental United States (OCONUS) COLA. COLA is authorized to assist a member in maintaining the purchasing power of the discretionary portion of spendable income while assigned OCONUS at a permanent duty station (PDS). a. Paragraph 9105 (COLA start and stop) states: (1) Start. COLA generally starts on the day a member reports to a new PDS or the day a dependent arrives prior to the sponsor, as specified in paragraph 9220. COLA starts on the day after the member’s reporting day if, on the reporting day, a member is authorized Monetary Allowance in Lieu of Transportation plus per diem. (2) Stop. COLA stops the day before the member departs in compliance with a PCS order, or the day before the home port change effective date (from OCONUS) of the ship or unit to which the member is assigned (item 3 below for the exception), unless: (1) an extension is authorized through the Secretarial Process under paragraph 9220; (2) COLA is authorized during a PCS between PDSs in close proximity under paragraph. 9110, or (3) member without dependent(s) undergoing a home port change. b. Paragraph 9220, station allowance when dependents travel before (in advance of) or after (delayed) the member travels or for other circumstances. (1) Advance Travel. When dependents are command sponsored and authorized to travel before the member and arrive at the new OCONUS PDS before the member, Secretarial (by either the Secretary Concerned or the Secretarial Process at Service discretion) authorization/approval of housing allowance changes based on the advance arrival at the OCONUS PDS can be made under paragraph 10412. (2) Delayed Travel. When dependents are authorized (or required) to travel after the member and arrive at the new OCONUS PDS after the member, Secretarial (by either the Secretary Concerned or the Secretarial Process at Service discretion) authorization/approval of housing allowance continuation based on delayed dependents’ travel from an (the old) OCONUS PDS under par. 10412 also authorizes continuation of COLA for the same time period without separate action. Paragraph 9220 applies whether the member’s new PDS is in CONUS or OCONUS. DISCUSSION: 1. The applicant was stationed in HI when he received PCS orders sending him to Fort Bragg with TDY enroute at Fort Knox, KY, to attend the Career Counselor Course. While TDY, his family stayed behind. His family was not technically required to stay behind. However, his family was not authorized to travel with him to Fort Knox. Additionally, it was impractical for his family to proceed to Fort Bragg using the PCS orders while he was attending the Career Counselor Course at Fort Knox. 2. According to the JTR, when the dependents are authorized or required to travel after the member and arrive at the new OCONUS PDS after the member, Secretarial Process authorization/approval of continuation of COLA for the same time period without separate action may be appropriate. 3. The applicant provided evidence in the form of a DA Form 4187, with favorable recommendations by his chain of command, and an MFR from his commander that shows he sought relief through the Secretarial Process but that failed because personnel officials at his unit routed his request to the wrong office and the finance office simply failed to act on his request for over 50 days. 4. Notwithstanding the unfavorable advisory opinion and the fact his commander inadvertently requested an exception to BAH policy, it appears the applicant and his chain of command exercised due diligence in seeking a waiver. The failure to process his waiver was not his fault and he should not be penalized for other individuals' failure to act on the request. As a matter of equity, it would be appropriate to show his waiver was approved and timely processed. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160002772 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160002772 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2