ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 1 May 2019 DOCKET NUMBER: AR20160017251 APPLICANT REQUESTS: backpay for Basic Allowance for Housing (BAH) at the with dependents rate from 1 October 2013 through 1 February 2016. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DA Form 1559 (Inspector General (IG) Action Request) with information sheet pertaining to request * BAH rate query results calendar year 13 through calendar year 15 for zip codes (01760, 01731, and 02769) * Enlisted Record Brief * DD Form 1172-2 (Application for Identification Card/DEERS Enrollment) * Map quest results * Authorization for use memorandum * Memorandum for Sergeant First Class (SFC) JF * Permanent change of station (PCS) orders for SFC XX * Waiver for BAH, dated 2 August 2011 * Memorandum requesting Exception to Policy (ETP), dated 11 September 2013 * DA Form 4187 (Personnel Action), dated 18 September 2013 (reassignment) * DA Form 5960 (Authorization to start, stop, or change basic allowance for quarters and/or variable housing allowance), dated 18 September 2013 * Email, dated 27 December 2013 * BAH ETP approval, dated 2 January 2014 * Memorandum for noncommissioned officer (NCO) reassignments, dated 25 February 2014 * DA Form 4187, dated 26 February 2014 (reassignment) * DA Form 5960, dated 27 February 2014 * Memorandum requesting ETP for BAH, dated 27 February 2014 * Memorandum recommending approval, dated 25 March 2014 * Email, dated 10 April 2014 * Disapproval memorandum to BAH ETP, dated 15 April 2014 * Memorandum for The Adjutant General of Massachusetts requesting reconsideration of ETP for BAH, dated 5 May 2014 * Email, dated 14 September 2014 * Memorandum for The Adjutant General of Massachusetts requesting reconsideration of ETP for BAH, dated 14 September 2014 * Excerpt of email, dated 14 October 2015 * Comptroller information bulletin, dated 1 November 2012 * All Army Activities (ALARACT) 014/2015, dated 15 January 2015 subject – BAH waivers * DFAS Form 702 (Defense Finance and Accounting Service Military Leave and Earnings Statement) September 2013, February 2014, April 2014, May 2014, and October 2015 * DD Form 2058 (State of legal residence certificate) * Loan repayment and security agreement * DD Form 214 (Certificate of Release or Discharge From Active Duty) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states she should be paid backpay for BAH with dependent rate from 1 October 2013 through 1 February 2016. She has enclosed a timeline as well as an IG request for appeal to the G-1 disapproval. She has gone through the IG office to clarify this error. She feels that the G-1 at the National Guard Bureau (NGB) picks and chooses who receives ETPs for BAH. Other Soldiers have been approved waivers for the same reassignment location. 3. The applicant provides: * DA Form 1559 with information sheet pertaining to request * BAH rate query for three different zip codes showing the difference of allowance * Enlisted record brief showing service data * DD Form 1172-2 showing dependency to X * Map quest directions from residence to Hanscom Air Force Base (AFB) * Authorization for use memo for a service member with similar situation * Approval memo for SFC X * PCS orders 093-039 for SFC X reassignment * Approval memo for BAH ETP dated 2 August 2011 * Initial request for BAH ETP dated 11 September 2013 * Command directed Active Guard/Reserve (AGR) transfer from Headquarters and Headquarters Detachment (HHD) 79th Troop Command (TC), Rehoboth, MA to HHD Joint Forces Head Quarters (JFHQ), Hanscom AFB * DA Form 5960, dated 19 September 2013 for recertification * Email, dated 27 December 2013 summarizing why request should be disapproved * Memorandum, dated 2 January 2014 disapproving BAH ETP request * Memorandum, dated 25 February 2014 reassigning the applicant from JFHQ to 79th TC effective 1 May 2014 * DA Form 4187, dated 26 February 2014 reassigning the applicant from JFHQ to 79th TC effective 1 May 2014 * DA Form 5960, dated 27 February 2014 for recertification * Memorandum requesting ETP for BAH, dated 27 February 2014 * Memorandum recommending approval for BAH ETP to retain BAH rate based on previous duty location Natick, MA 01760 * Email, dated 10 April 2014 summarizing why request should be disapproved due to applicant should have been authorized a full cost move. She is ineligible to be considered for a no/low cost BAH waiver * Disapproval memorandum to BAH ETP, dated 15 April 2014 stating the unit she was transferred to is more than 50 miles from her current duty location she is authorized a paid PCS move * Memorandum for The Adjutant General of Massachusetts requesting reconsideration of ETP for BAH, dated 5 May 2014 * Email dated 14 September 2015 instructing applicant to construct memo for reconsideration in alignment with the ALARACT message * Memorandum for The Adjutant General of Massachusetts requesting reconsideration of ETP for BAH, dated 14 September 2014 * Excerpt of email, dated 14 October 2015 * Comptroller information bulletin, dated 1 November 2012 describing permanent duty station commuting distance policy * ALARACT 014/2015, dated 15 January 2015 subject – BAH waivers * Leave and earnings statement showing BAH rate paid for the months of September 2013, February 2014, April 2014, May 2014, and October 2015 * DD Form 2058 the purpose of this certificate is to obtain information with respect to the applicant’s legal residence/domicile for the purpose determining the State for which income taxes are to be withheld from her wages * Loan repayment and security agreement for mortgage * DD Form 214 showing applicant was discharged 31 July 2016 due to retirement with an honorable character of service 4. A review of the applicant’s service record shows the following: a. She enlisted in the Massachusetts Army National Guard (MAARNG) on 24 April 1985. She entered active duty on 5 April 1991. She served through multiple extensions in a variety of assignments. She was promoted to sergeant major (SGM)/E-9. b. On 2 August 2011, her request for an ETP to receive BAH based on the previous duty station (Natick, MA 01760) was approved as of her reporting date. Cost of Living Allowance (COLA) for MA 120 was not authorized. ALARACT message 021/2008 outlines ETP guidance for BAH waivers. She purchased her current residence while assigned to a previous duty station, Natick, MA 01760, in an adjacent military housing area. This waiver is in effect as she commuted daily to Rehoboth, MA from her current residence in Middleboro, MA 02346. c. Orders number 004-103, dated 4 January 2012, ordered her to full time National Guard duty in AGR status reporting to HHD 79th TC on 5 April 2012 to 4 April 2018, unless sooner released or extended by proper authority. d. On 11 September 2013, she submitted an ETP–BAH/COLA. Her request states she will be command directed to the Joint Force Headquarters, MAARNG, and be assigned to the S3 as the Joint Operation Center (JOC) operations sergeant major. This is an involuntary reassignment and is mission essential that best fits the needs of the organization. She requested to retain her current BAH and COLA rate based off the previous exception to policy approval dated 2 August 2011. She was approved to receive BAH based on the purchase of her current residence while assigned to a previous duty station, Natick, MA 01760. Upon reassignment, her monthly costs to maintain her residence and support her dependents would remain unchanged as she was the bread winner for her household. Any substantial decreases in BAH/COLA rates will impact her family and will cause significant financial hardship. She respectfully asked a favorable look upon this request as she would like to continue to support her family without undue financial hardship. (1) DA Form 4187, dated 18 September 2013 directed the reassignment from HHD 79th TC, 13 Firetower Road, Rehoboth, MA 02769 to HHD JFHQ, 2 Randolph Road, Hanscom AFB, 03731, effective 1 October 2013. (2) Memorandum, dated 2 January 2014, states her request for an ETP to retain BAH rate based on her previous approved waiver dated 2 August 2011 for Natick, MA 01760 is disapproved. The main reason for disapproval was based on the commute driven daily from her current home of record (Middleboro) to duty locale (Hanscom AFB). Based on her distance driven per day, she is authorized a paid permanent change of station (PCS) move. The disapproval determination was made by the Department of the Army G-1. e. Orders number 262-091, dated 19 September 2013, ordered her to proceed on PCS reporting to JFHQ Massachusetts, 2 Randolph Road, building 1505, Hanscom AFB, Bedford, MA 01731 on 1 October 2013. This order states the provisions of The Adjutant General Order (TAGO) Number 68-6 this HQs dated 5 Apr 91 as affected by this order continue in force. Dependents travel and shipment/storage of household goods are not authorized (this is a low cost, no cost move). Current residence is within established commuting distance to new duty station. This order continues member on active duty. Payment of accrued leave is not authorized. Minimum period of assignment at new PDS is 12 months. Any reassignment within a 12 month period will only be for the convenience of the government. Units are not required to submit with TAGO Form 3815. f. On 25 February 2014, memorandum reassigning noncommissioned officers command directed the applicant from JFHQ to 79th TC effective 1 May 2014. g. On 26 February 2014, DA Form 4187 for reassignment released the applicant from JFHQ as J3 SGM, 2 Randolph Road, Hanscom AFB, Bedford, MA 01731 and reassigned her to 79th TC as Operations SGM, effective 1 May 2014. h. Orders number 058-021, dated 27 February 2014, ordered her to proceed on PCS reporting to HHD 79th TC, Rehoboth, MA on 1 May 2014 to 4 April 2018. This order states the provisions of TAGO Number 68-6 this HQs dated 5 April 1991 as affected by this order continue in force. Dependents travel and shipment/storage of household goods are not authorized (this is a low cost, no cost move). Current residence is within established commuting distance to new duty station. This order continues member on active duty. Payment of accrued leave is not authorized. Minimum period of assignment at new PDS is 12 months. Any reassignment within a 12 month period will only be for the convenience of the government. Units are not required to submit with TAGO Form 3815. i. On 27 February 2014, she submitted an ETP–BAH/COLA. Her request states effective 1 May 2014, she is being command directed back to 79th TC (HLS), Rehoboth, Massachusetts assigned to the S3 as the Operations SGM. This is an involuntary reassignment and is mission essential that best fit the needs of the organization. She requested to retain her current BAH and COLA rate based off the previously approved exception to policy dated 2 August 2011. The approval was based on the purchase of her current residence while assigned to a previous duty station, Natick, MA 01760. Upon reassignment, her monthly costs to maintain her residence and support her dependents will remain unchanged as she is the bread winner for her household. The reassignment causes a substantial decrease of BAH and COLA. She will lose $993.00 of her monthly net income which will impact her family and will cause significant financial hardship. She respectfully asked a favorable look upon this request as she would like to continue to support her family without undue financial hardship. j. On 25 March 2014, AGR branch recommended approval request for an ETP for the applicant to retain BAH rate based on previous duty location Natick, MA 01760. The service member established her home of record based on that rate and was not authorized shipment of household goods. k. On 10 April 2014, email traffic commencing with a phone conversation with HQDA G-1 and AGR branch MA guidance, the applicant should have been authorized a full cost move, due to the distance between duty stations. She in ineligible to be considered for a no/low cost BAH waiver. l. On 15 April 2014, AGR branch disapproved the request stating: the applicant’s request for an ETP to retain BAH rate based on her previous duty location of Natick, MA 01760 is disapproved. The main reason for disapproval was based on the distance of her new duty location effective 1 May 2014. Since the unit she is being transferred to is more than 50 miles from her current duty location, she is authorized a paid PCS move. The disapproval determination was made by the G-1. m. On 5 May 2014, the applicant submitted a request for reconsideration of ETP for BAH. Her request states that she requests reconsideration of the ETP for BAH/COLA disapproval, dated 15 April 2014. Below outlines a brief timeline of her reassignment history as it pertains to her prior approval of BAH ETPs. It is important to make known personal contributing factors which make it unrealistic to relocate after being involuntarily reassigned in order to improve the capabilities and readiness of her unit. Her current residence, custodial and financial situation remain unchanged. She is the bread winner for her household. She is aware that she was authorized a paid PCS, however, she has a court ordered guardianship of her disabled dependent. Her dependent requires frequent medical evaluations and physical therapy both locally and in Boston. A PCS would not be conducive with the care her dependent requires. She requested reconsideration based on her current financial/family situation and the short duration (6 months) of the last assignment. She wished to retain her previous BAH ETP approval, to receive BAH authorized from a previous duty assignment, Natick, MA 01760. Another denial will cause significant financial hardship and unnecessarily cause additional family stressors. As a second course of action, if the request to receive BAH for Natick, MA is denied, she requests consideration of the continued rate of her last duty assignment of Hanscom AFB, MA 01731 as her BAH/COLA rate. (1) 1 February 2011: Reassigned from JFHQ-MA (W8A6AA/101), Milford, MA 01757 to HHD 79th TC (W77NAA/161), Rehoboth, MA 02769. A BAH ETP was approved to receive BAH based on the purchase of her current residence while assigned to a previous duty station, Natick, MA 01760 (memorandum dated 2 August 2011). (2) 1 October 2013: Command directed from HHD 79th TC (W77NAA/161), Rehoboth, MA 02769 to JFHQ-MA (W8A6AA/101), Hanscom AFB, MA 01731. She was disapproved to receive an ETP as the reassignment was a paid PCS (memorandum dated 2 January 2014). (3) 1 May 2014: 6 months later, she was command directed from JFHQ-MA (W8A6AA/101), Hanscom AFB, MA 01731 back to HHD 79th TC (W77NAA/161), Rehoboth, MA 02769. Once again, disapproved to receive an ETP as this reassignment/command direct was also a paid PCS (memorandum dated 15 April 2014). n. On 14 September 2014, the applicant received an email from AGR branch stating in communication with the Army G-1, they will relook the ETP, however the applicant needs to provide specifics, exactly in line with the ALARACT, to the letter. The applicant resubmitted the reconsideration for BAH ETP stating to accept this memorandum as a vehicle to provide additional supporting documentation to her original reconsideration request of 5 May 2014. In accordance with ALARACT 014/2014, she requested reconsideration to receive the higher BAH rate for a secretarial BAH waiver based on items below. She requests reconsideration based on the above cited reference and based on her current financial/family situation. If approved, she further requests that the effective date of approval be retroactively applied. Another denial would cause significant financial hardship and will unnecessarily cause additional family stressors. (1) Low/No Cost PCS: On 1 May 2014 she was reassigned under a "low·cost, no cost move" (Orders Number 058-021) to the HHD 79th TC, Rehoboth, MA 02769. (2) Established Residence: she had established her residence at a higher BAH prior to her reassignment to Rehoboth, MA 02769 and has subsequently refinanced her home in 2007, also at the higher BAH rate. Additionally, she has continued to commute from the same residence to all her assignments since the original purchase. (3) Medical Considerations: she has a court ordered guardianship of her disabled dependent. ·Her dependent requires frequent medical evaluations and physical therapy both locally and in Boston. A PCS would not be conducive with the medical care her dependent requires. o. On 23 October 2015, she obtained authorization to use SFC JF’s personal file that contains his BAH waiver request approval. The approval memorandum for SFC JF, dated 14 September 2015, states effective 8 September 2015 his request for an ETP to receive BAH based on his previous duty station (Hanscomb AFB, MA, 01731) is approved. ALARACT Message 014/2015 outlines ETP guidance for BAH waivers. His PCS from the previous duty station at Hanscomb AFB, MA, 01731, to the current duty location, at Rehoboth, MA 02769 authorized a no cost/low cost move (PCS Order Number 093-039, dated 3 April 2015). Therefore, an inequity exists that would warrant BAH based on the previous duty location. The Service Secretary or designee may grant waivers to Soldiers who made a housing decision based on the BAH in effect at the Soldier's PDS and continue to commute from the same residence (Fall River, MA). If he decides to move his household goods, his dependents (If applicable), or if he receives PCS entitlements, this waiver is void at which point he will be authorized BAH at the current "with" dependent rate for Rehoboth, MA. p. On 24 May 2016, the applicant received correspondence from Office of the IG which states this letter is in response to her October 26, 2015 request for assistance to review the validity of BAH waiver disapproval. Reconsideration was disapproved stating the ETP was reviewed and disapproved on three separate occasions, there was no further appeal authority to the G-1 ETP decision process. The Office of the lG conducted a thorough inquiry into her request for assistance. Army G-1 indicated the ETP was reviewed and disapproved on three separate occasions, there is no further appeal authority to the G-1 ETP decision process. The IG office recommends she seek assistance through the Army Board for Correction of Military Records (ABCMR) the highest administrative level for review of personnel actions. Per Army Regulation 15-185 (ABCMR), dated 31 March 2016, applicants must file the application within 3 years after the alleged error or injustice is discovered or reasonably should have been discovered. q. On 20 November 2018, an advisory opinion was received from the Army G-1 in the processing of this case. An Army G-1 official recommended disapproval of the applicant's request. The official stated: (1) Based on a careful review of the facts surrounding this situation, the Army G-1 recommend the Army Review Boards Agency disapprove the applicant's request. Based on review of the facts, there is no new evidence submitted that warrants changing the Army G-1 decision to disapprove her request for a waiver based on a no cost PCS move. The decision was equitable and fair. (2) She was reassigned from Hanscomb AFB, MA to Rehoboth, MA. According to the Defense Table of Official Distance, Rehoboth is over 50 miles from Hanscomb. The Army G-1’s position remains, the distance between the duty stations is excessive and did not warrant an ETP waiver. Because Soldiers should not be burdened with excessive commutes to perform their military duties, the Army G-1 directed the MA ARNG to issue full cost PCS orders to all Soldiers placed in excessive commuting situations. (3) The MAARNG submitted their local commuting policy to the Army G-1 for review and subsequent approval by the Defense Travel Management Office, the proponent of the Joint Travel Regulation, as required by policy. The approval of local commute policy was to determine whether it was within the intent of the regulation. The approval did not equate to a blanket approval of no cost PCS waivers. r. The applicant was provided with a copy of this advisory opinion on 30 November 2018 to give her an opportunity to submit a response. She did not respond. 5. By joint travel regulation, unless otherwise authorized/approved, a member’s housing allowance is based on the PDS. A member may be authorized a housing allowance based on the location at which the dependents maintain a permanent residence, or the old PDS, if authorized/approved through the Secretarial Process. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was not warranted. Based upon the HQDA G1 advisory opinion’s finding and the applicant failing to respond to those findings, the Board concluded that there was no error or injustice which would warrant making a change to the BAH entitlement of the applicant. For that reason, the Board recommended denying the applicant’s request for relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING X X X DENY APPLICATION 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. 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. REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. ALARACT Message number 014/2015, dated 15 January 2015, clarifies secretarial waiver guidance for Soldiers to receive Basic Allowance for Housing (BAH) at other than the Permanent Duty Station (PDS) location under certain circumstances. a. The purpose of the guidance was to stabilize the Soldier’s dependents for a relatively short period of time when circumstances require dependent’s to reside separately. It is intended to provide temporary assistance to Soldier’s and their families to ease the transition of a Permanent Change of Station (PCS) move to the new PDS in the Continental United States (CONUS). The guidance applies to Active Duty (AD) Soldiers (United States Code (USC) Title 10 and Title 32) authorized BAH at the with-dependent rate. The guidance applies to AD Soldiers with dependents whose dependents reside with them at the previous duty station prior to departing on PCS or at Government approved designated locations. b. A low/no cost PCS qualifies for consideration of a secretarial BAH waiver. Soldiers who request a waiver under this category must be reassigned under a low/no cost PCS. Soldiers may continue to receive the higher BAH rate when the assignment orders authorize a low/no cost move and shipment of household goods (HHG) and movement of dependents are not authorized, the movement designator code in the order identifies a low/no cost move, and the member established the residence while assigned to the previous duty station. Soldiers must have made their housing decision based on the previous assignment, must not move HHG or dependents during the waiver period, and must continue to commute from the same residence. Supporting documentation such as the Housing and Urban Development settlement statement or the original lease agreement must be submitted. 3. The Joint Travel Regulation, chapter 10 states unless otherwise authorized/approved, a member’s housing allowance is based on the PDS. A member may be authorized a housing allowance based on the location at which the dependents maintain a permanent residence, or the old PDS, if authorized/approved through the Secretarial Process. a. Low/no cost moves: the Secretarial Process determines if it is inequitable to pay BAH based on the new PDS. When a member is ordered on a PCS between PDSs located in proximity and, at the new PDS, the member continues to commute from the residence occupied while at the old PDS, BAH continues for the time between the member’s detachment from the old PDS and reporting to the new PDS, unless otherwise prohibited in this chapter. b. Effective 3 April 2013: An Active Guard/Reserve (AGR) member’s BAH is based on the PDS, even when the member is mobilized for active duty other than AGR duty provided the member does not have a break in service. The PDS rate applies for the duration of the tour. If the AGR member receives a PCS order authorizing HHG transportation, BAH is based on the new PDS. However, if the member is called or ordered to active duty without a break in service and a PCS order authorizing HHG transportation is not issued, BAH rate is based (paid) on the PDS location at the time called/ordered to active duty. ABCMR Record of Proceedings (cont) AR20160017251 9 1