ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 13 February 2020 DOCKET NUMBER: AR20170000324 APPLICANT REQUESTS: Payment of Family Separation Allowance (FSA) for two mobilizations. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Statement to Substantiate Payment of FSA for 2007 mobilization * Marriage Certificate * Statement to Substantiate Payment of FSA for 2010 mobilization * Servicemembers' Group Life Insurance (SGLI) Election and Certificate FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, 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: * he should be paid FSA for two separate mobilizations * he was mobilized from 1 October 2007 through 10 October 2008 * his second mobilization was from 15 April 2010 through 27 April 2011 3. The applicant's service records contain the following documents for the Board's consideration: a. Permanent Orders 277-601, Published by Headquarters, United States Army Garrison, Personnel Division, dated 4 October 2007 which show: * he was assigned or deployed to Riverside, California * it was a Temporary Change of Station in support of Operation Enduring Freedom * his report date was 5 October 2007 * the number of days was 360 b. Orders A-07-716920 Published by US Army Human Resources Command (HRC), dated 31 July 2007, which show: * he was ordered to Active Duty for operational support * he was to report to Riverside, California * his report date was 1 October 2007 * the period of active duty was 11 months and 29 days c. Orders A-07-716920A02, published by HRC, dated 2 April 2008 amending the applicant's address. d. A DD Form 214 (Certificate of Release or Discharge from Active Duty), which shows: * the applicant had duty at Fort Lewis, Washington * he was transferred to Riverside, California * he entered active duty on 1 October 2007 * he was separated on 10 October 2008 * his net service was 1 year and 10 days * he was activated in support of Operation Enduring Freedom effective 1 October 2007 * he was released from active duty for completion of his required active service e. Orders 10-082-00010, published by 95th Training Division (IET), dated 23 March 2010, which show: * the applicant was ordered to active duty * he was to report to Salt Lake City, Utah with further assignment at Fort Sill, Oklahoma * his report date was 15 April 2010 * the period of active duty was 360 days * the purpose of the mobilization was for Enduring Freedom f. Orders 096-1311, published by US Army Installation Management Command, dated 6 April 2011, which show: * the applicant was released from active duty on 27 April 2011 * he was assigned to a unit in Salt Lake City, Utah g. A DD Form 214, which shows: * his place of entry into active duty was Salt Lake City, Utah * the station he was when he was released was Fort Sill, Oklahoma * he entered active duty on 15 May 2009 * he separated from active duty on 27 April 2011 * he served 1 year, 11 months, and 27 days on active duty * he was ordered to active duty in support of Operation Enduring Freedom * he was released from active duty for completion of required active service 4. The applicant provides the following documents for the Board's consideration: a. A DD Form 1561 (Statement to Substantiate Payment of FSA), dated 7 November 2017, which shows: * the applicant is requesting FSA-Temporary * he certified he was not divorced or legally separated * his dependent children were not in the legal custody of another person when he received his military orders * the location of his assignment was March Air Reserve Base, Riverside CA * he was mobilized from 1 October 2007 through 10 October 2008 a period of 375 days * there is not a signature of a certifying officer b. A County of Riverside Certificate of Marriage, showing the applicant was married on 7 July 1999. c. A DD Form 1561, dated 7 November 2017, which shows: * the applicant is requesting FSA-Temporary * he certified he was not divorced or legally separated * his dependent children were not in the legal custody of another person when he received his military orders * the location of his assignment was Fort Sill, Oklahoma * he was mobilized from 15 April 2010 through 27 April 2010 a period of 378 days * there is not a signature of a certifying officer d. A County of Riverside Certificate of Marriage, showing the applicant was remarried on 14 November 2008. e. An SGLV-8286 (E) (SGLI Election and Certificate), dated 19 May 2009 showing the name of his second wife as the principal beneficiary. 5. In the processing of this case, an advisory opinion was obtained on 8 April 2019, from the Office of the Deputy Chief of Staff, G-1. The advisory official stated after reviewing the case, they could not provide an opinion because they did not have enough information. The applicant needed to provide a copy of his divorce decree from 2007 and any additional records that shows the address or addresses of his dependents during his periods of active duty. [A copy of the complete advisory opinion has been provided to the Board for their review and consideration]. 6. The applicant was provided a copy of this advisory opinion on 19 April 2019, to provide him an opportunity to comment and/or submit a rebuttal. He responded on 24 April 2019, and stated, in part: * he and his three dependents moved to Malibu, California in June 2007 * he was mobilized on 1 October 2007 * his mobilization orders listed his previous address * he had to send HRC his residential tenancy agreement, dated 13 June 2007 * HRC corrected the error on 2 April 2008 and amended his orders to the correct address * his divorce was final on 3 October 2007 * as the respondent in the case, he was awarded primary physical custody of his three children * he was remarried on 14 November 2008 * he remained in his residence in Malibu, California * he completed a corrected DD Form 1561 concerning his first mobilization from 1 October 2007 to 10 October 2008 * when he left his residence on 1 October 2007, he was not divorced or legally separated * in the state of California, certain documents must be filed to be considered legally separated * neither he nor his ex-wife filed the documents 7. The applicant provided a corrected DD Form 1561, dated 24 April 2019 and the following documents with his response for the Board's Consideration: a. A Residential Tenancy Agreement, dated 13 June 2007, which shows his address in California. b. His active duty orders, dated 31 July 2007 and the amendment showing his correct address. c. His Notice of Entry of Judgment, which shows: his address in California and the date of his divorce, 3 October 2007, and that he would have primary physical custody of his children 8. See below for applicable references. BOARD DISCUSSION: After a careful reviewing the application and all supporting documents, the Board found that relief is warranted. The documentary evidence is sufficient to show that the applicant is eligible for FSA on two mobilizations, 1 October 2007 through 10 October 2008, and 15 April 2010 through 27 April 2011, and should be paid for this FSA. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined that the evidence presented was 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 paying him family separation allowance (FSA) for two mobilizations: * 1 October 2007 through 10 October 2008 * 15 April 2010 through 27 April 2011 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, 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. 2. DoD Financial Management Regulation (Basic Allowance for Housing (BAH)) volume 7a, Chapter 26 states family Separation Allowance (FSA) is payable only to members with dependents. FSA is payable in addition to any other allowance or per diem to which a member may be entitled. The purpose of FSA and the conditions of entitlement are set out in this chapter. a. The term ’’dependents” is defined as spouse or children or parents as. b. Household, this term means the same as “home” or “family.” It applies to a collection of persons living under one roof, having one head or manager who controls and supervises the affairs of the family. c. FSA is payable to each member with dependents who is on permanent duty outside the United States or in Alaska who meets all of the following conditions: (1) Transportation of dependents to the permanent duty station or to a place near that station is not authorized at Government expense; (2) Dependents do not live at or near the permanent duty station; and (3) Adequate government quarters or housing facilities are not available for assignment to a member and inadequate Government quarters or housing facilities are not assigned. d. Divorced or Legally Separated Members. Treat FSA-I cases involving a divorced or legally separated member, or such a member with a child in the legal custody of a former spouse or another person, the same as FSA-II cases. e. FSA-II This FSA provides compensation for added expenses incurred because of an enforced family separation. It is payable to qualified members serving inside or outside the United States. It is not authorized when a member performs duty at any station under permissive orders. (1) Effective 1 October 1980, FSA-II is payable to a member serving in any grade as a member with dependents. A member must meet all general requirements and one of the following conditions. (2) Transportation of the dependents is not authorized at Government expense and the dependents do not live in the vicinity of the member’s home port/permanent duty station. //Nothing Follows// ABCMR Record of Proceedings (cont) AR20170000324 6 1