IN THE CASE OF: BOARD DATE: 6 February 2020 DOCKET NUMBER: AR20180000147 APPLICANT REQUESTS: Correction of his record to show amendment of Orders Number 36-268-0005 to authorize Basic Allowance for Housing (BAH) based upon his Permanent Duty Station (PDS), Camp Smith, NY zip code 10567. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Orders Number 309-009, dated 5 November 2009 * Orders Number 169-034, dated 18 June 2010 * Orders Number 196-034, dated 15 July 2010 * Orders Number 271-103, dated 28 September 2011 * Orders Number 271-106, dated 27 September 2012 * Orders Number 070-013, dated 11 March 2013 * Orders Number 269-067, dated 26 September 2014 * Orders Number 211-034, dated 29 July 2016 * Orders Number 236-035, dated 23 August 2016 * Orders Number 268-060, dated 25 September 2016 * Orders Number 039-031, dated 8 February 2017 * Orders Number 215-036, dated 3 August 2017 * Memorandum, Subject: BAH Waiver Request In Accordance With (IAW) All Army Activity (ALARACT) 097-2016 Section 6.C.1, dated 4 August 2017 * Memorandum, Subject: Request Secretarial Waiver for BAH, dated 12 September 2017 * Orders Number 36-268-0005, dated 25 September 2017 * Orders Number 278-066, dated 5 October 2017 * Orders Number BL-303-0174, dated 30 October 2017 * North Atlantic Treaty Organization (NATO) Orders Number BL-303-0174, dated 30 October 2017 * Leave and Earnings Statements, dated 29 September and 15 November 2017 * Email correspondence FACTS: 1. The applicant states: a. His current Orders Number 36-268-005 have zero days break in service from Orders Number 039-031. He has been on active duty continuously without a break in service since 22 November 2009. While his chain of command in New York and the U.S. Property and Fiscal Office, and Headquarters Department of the Army have been supportive and helpful, they cannot authorize BAH based on a PDS or approve a waiver do to the verbiage of his orders. b. His prior orders for the last 9 years were under the authority of Title 32 United States Code (USC), section 502(f) in support of National Guard (NG) Counterdrug (CD) support, Title 32 USC, section 112, Full Time NG (FTNG). His current Orders Number 36-268-005 are under Title 10 USC, section 12304b and are Temporary Change of Station (TCS) orders to Fort Bliss, TX with follow on Temporary Duty (TDY) orders to Ukraine under Orders Number BL-303-0174. These orders change his BAH to Home of Record (HOR) and decreases his authorized BAH of $2,553.00 a month. c. He believes that since there are no breaks in his orders, and he will be returning to his PDS upon his return from his current mission under Orders Number 278-066, that it is unjust to change his BAH rate to his HOR. Currently the Joint Travel Regulation (JTR) allows Active Guard/Reserve (AGR) Soldiers to keep their PDS BAH when deployed. This definition references Title 10 USC, section 101(d)(6), which excludes CD from being considered FTNG. This is an error in the JTR. d. The definition that should be used is found in Title 32 USC, section 101 which does not exclude CD from its definition; this definition is nested with Title 37 USC which defines uniformed service member pay. Title 10 USC, section 101(d)(6) was added in 1994 for the purpose of excluding CD personnel for end-strength numbers. Counter- drug's end-strength is separately reported from the other uniformed services as part of Title 32 USC, section 112(e)(2). He only mentions this because the intent of the JTR change was to negate financial difficulty to FTNG when they deploy, excluding CD on FTNG orders does not meet this intent. FTNG CD is a career program, exempt from the 1095 rule. Permanent change of station on CD is authorized; he has moved twice. 2. A review of the applicant’s official records show the following on: a. On 17 May 2002, the applicant was appointed as Reserve commissioned officer and executed an oath of office. DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant’s home of record at time of entry as. b. On 18 November 2009, Orders Number 322-012, issued by the Office of the Adjutant General, Hartford, CT, ordered the applicant to Active Duty for Training (ADT) for the period 15 November 2009 – 28 March 2010. c. On 11 March 2010, Orders Number 070-013, issued by the Office of the Adjutant General, again ordered the applicant to ADT for the period 29 March – 30 September 2010. d. On 18 June 2010, Orders Number 169-034, issued by the Office of the Adjutant General, ordered the applicant to FTNG CD for the period 15 June 2010 – 30 September 2011. His unit when ordered to FTNG was Headquarters, 106th Regiment, Cortland Manor, NY 10567. The applicant’s duty location was New York City Region Headquarters, New York, NY 10037. This was a Title 32 USC, section 502 order. Household goods shipment/storage was authorized for one year, and he was married with one dependent. e. On 27 September 2012, Orders Number 271-106, issued by the Office of the Adjutant General, again ordered the applicant to FTNG CD for the period 1 October 2012-30 September 2013. f. On 7 October 2013, Orders Number 280-043, issued by the Office of the Adjutant General, continued the applicant in a FTNG CD for the period 30 September 2013 – 30 September 2014. His unit was now CD Headquarters, Scotia, NY 12302. g. On 1 August 2016, Orders Number 214-043, issued by the Office of the Adjutant General, continued the applicant in a FTNG CD status for the period 1 September 2016 – 30 September 2017. He was assigned to NYNG CD Task Force, Scotia, NY. h. On 8 February 2017, Orders Number 039-031, issued by the Office of the Adjutant General, amended Orders Number 214-043 and reassigned the applicant from the NYNG CD Task Force, Scotia, NY to Camp Smith, Cortland Manor, NY i. On 3 August 2017, Orders Number 215-036, issued by the Office of the Adjutant General, amended Orders Number 214-043 insomuch as converting the applicant from Title 32 USC to Title 10 USC deployment to overseas and would revert to Title 32 USC upon return from overseas. j. On 25 September 2017, Orders Number 36-268-0005, issued by the Office of the Adjutant General, ordered the applicant to active duty to report to the Fort Bliss mobilization station with onward movement in support of the Atlantic Resolve – European Reassurance Initiative. Movement of household goods and dependents was not authorized. He was ordered to active duty in a TCS status. This was a Title 10 USC mobilization. His HOR was. k. On 30 September 2017, the applicant was honorably released from active duty. He completed 7 years, 10 months, and 1 day of net active service. Item 18 (Remarks) shows he was released from active duty to continue on active duty in another status. l. On 30 October 2017, Orders Number BL-303-0174, issued by Headquarters, U.S. Army Garrison, Fort Bliss, Texas deployed the applicant in a TDY status in support of Atlantic Resolve – European Reassurance Initiative (Ukraine). m. On 24 August 2018, the applicant was honorably released from active duty and returned to his ARNG unit. He completed 10 months and 24 days of net active service this period with 12 years and 3 months of prior active service. n. The applicant did not provide evidence of completing a permanent change of station with his dependents during any period covered by orders. 3. The applicant provides: * Orders Number 309-009, ordered the applicant to ADT for the period 15 November 2009 – 28 March 2010 * Orders Number 196-034, amended Orders Number 070-013 insomuch as changing the period of TDY from 29 March 2010 – 30 September 2010 to 29 March 2010 – 15 June 2010 * Orders Number 271-103, ordered the applicant to FTNG CD Region Headquarters, NY 10037 for the period 1 October 2011 – 30 September 2012 * Orders Number 268-060, ordered the applicant to FTNG CD for the period 1 October 2013 – 30 September 2014 * Orders Number 269-067, amended Orders Number 280-043 insomuch as changing the period of permanent change of station from 30 September 2013 – 30 September 2014 to 30 September 2013 – 30 September 2015 * Orders Number 211-034, amended Orders Number 280-043 insomuch as changing his end date from 30 September 2015 to 31 August 2016 * Orders Number 236-035, amended Orders Number 214-043 insomuch as changing his assignment dates to the CD mission to 1 September 2016 – 30 September 2017 * Memorandum, Subject: BAH Waiver Request IAW ALARACT 097-2016 Section 6.C.1 wherein the applicant requests a BAH waiver based on his current PDS at Camp Smith, NY because a reduction in BAH based on New Milford, CT would cause a financial hardship for his family * Memorandum, Subject: Request Secretarial Waiver for BAH wherein a National Guard Bureau (NGB) official submitted the applicant’s waiver request for review * Orders Number 278-066, ordered the applicant to FTNG CD at Camp Smith, NY for the period 1 September 2018 – 30 September 2019 * NATO Orders Number BL-303-0174 showing the applicant’s date of departure from the U.S. was 3 November 2017 and date of expected return 30 September 2018 * LES’s showing the applicant’s BAH rate on 29 September 2017 was $2,560.00 per month and on 15 November 2017 it was $1,284.00 * Email correspondence wherein the applicant was informed by a, NGB official his BAH changed because he was called to active duty from his home in Milford, CT 4. ALARACT Message Number 097/2016, dated 4 November 2016 (Expired on 4 November 2017), clarifies secretarial waiver guidance for Soldiers to receive BAH at other than the 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 PCS move to the new PDS in the Continental United States (CONUS) or OCONUS. The guidance applies to Active Duty (AD) Soldiers (Title 10 and Title 32 USC) 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. To be eligible for consideration of a waiver, Soldiers’ dependents must reside with them prior to PCS unless the member is serving an unaccompanied tour. The dependents must continue to reside at the previous duty station. Previous duty station is defined as the location of the last duty station in which shipment of household goods at Government expense was authorized. c. The following circumstances qualify for consideration of a Secretarial BAH waiver: * Low/no cost permanent change of station * Professional military education * Deployment – Soldiers who receive permanent change of station orders to units deploying within 12 months of their arrival to the new duty station * Dependent education * Spouse employment – spouses who require a temporary delay to travel to the new duty station due to contractual obligation, professional license reciprocity agreements, or other circumstances that may cause additional financial penalties due to early termination * Exceptional family member program * Advance travel of dependents * Acquired dependent * Soldiers assigned to Korea 5. Joint Travel Regulations (JTR) chapter 10, table 10A-1/3 (Housing Allowance) and (Dates to Start and Stop BAH) states BAH will start at the with-dependent rate at the time the member enters on active duty and will stop at 2400 hours the day the member is discharged or released from active duty. The home of record is the place recorded as the individual’s home when ordered into a tour of active duty. 6. Title 32 USC, and Title 10, sections 101 provides definitions to various titles in the Armed Forces. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents and evidence in the records. The Board considered the applicant’s statement, his record of service, the series of orders issued to him, the location of his dependents, the specific instructions on the orders he requests changed and his location when ordered to active duty by the subject orders. The Board considered the criteria for BAH as stated in Joint Travel Regulations, the applicant’s assertion of an error in the JTR pertaining to CD operations and his BAH waiver requests. Based on a preponderance of evidence, the Board determined that the applicant’s BAH change was not in error or unjust. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : 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. ADMINISTRATIVE NOTE(S): Title 32 USC, and Title 10, sections 101 provides definitions to various titles in the Armed Forces. ? REFERENCES: 1. ALARACT Message Number 097/2016, dated 4 November 2016 (Expired on 4 November 2017), clarifies secretarial waiver guidance for Soldiers to receive BAH at other than the 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 PCS move to the new PDS in the Continental United States (CONUS) or OCONUS. The guidance applies to Active Duty (AD) Soldiers (Title 10 and title 32 USC) 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. To be eligible for consideration of a waiver, Soldiers’ dependents must reside with them prior to PCS unless the member is serving an unaccompanied tour. The dependents must continue to reside at the previous duty station. Previous duty station is defined as the location of the last duty station in which shipment of household goods at Government expense was authorized. c. The following circumstances qualify for consideration of a Secretarial BAH waiver: * Low/no cost permanent change of station * Professional military education * Deployment – Soldiers who receive permanent change of station orders to units deploying within 12 months of their arrival to the new duty station * Dependent education * Spouse employment – spouses who require a temporary delay to travel to the new duty station due to contractual obligation, professional license reciprocity agreements, or other circumstances that may cause additional financial penalties due to early termination * Exceptional family member program * Advance travel of dependents * Acquired dependent * Soldiers assigned to Korea 2. JTR chapter 10, table 10A-1/3 (Housing Allowance) and (Dates to Start and Stop BAH) states BAH will start at the with-dependent rate at the time the member enters on active duty and will stop at 2400 hours the day the member is discharged or released from active duty. The home of record is the place recorded as the individual’s home when ordered into a tour of active duty. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180000147 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1