IN THE CASE OF: BOARD DATE: 29 July 2019 DOCKET NUMBER: AR20190009184 APPLICANT REQUESTS: On 12 July 2019, the applicant contacted a staff member of the Case Management Division, Army Review Boards Agency, stating that his response/rebuttal to the advisory opinion, dated 2 April 2019, was not addressed in the Army Board for Correction of Military Records (ABCMR) Docket Number AR20160012024 on 15 May 2019. APPLICANT’s SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * ABCMR Docket Number AR20160012024 * Compensation and Entitlements Division Advisory Opinion * ARBA Ex-Parte Letter * Applicant’s Response to Advisory Opinion * eleven LESs, dated from March April 2015 to January 2016 * Defense Finance and Accounting Service (DFAS) Special Leave Accrual (SLA) Information Paper and Message, October 2014 * two Exception to Policy Request memoranda, dated 17 November and 15 December 2014 * Transportation Officer Memorandum For Record * Dependable Auto Shippers Invoice, dated 29 December 2014 * Travel voucher FACTS: Paragraphs 1 through 6 are incorporated in the previous Record of Proceedings. 7. At the time of the decision of the ABCMR in Docket Number AR20160012024, dated 15 May 2019, it was the intent of the ABCMR to determine if the applicant was eligible for correction of his military record to recoup benefits, entitlements and expenses associated with a permanent change of station (PCS) and a deployment. 8. The ABCMR's decision in Docket Number AR20160012024, dated 15 May 2019, provides that, based upon the documentary evidence presented by the applicant and found in the military service record, to include the G1 advisory, the Board determined that granting partial relief was warranted. The Board found that G1 advisory opinion’s recommendation compelling and convincing. For that reason, the Board recommended that the applicant should have received the BAH with dependent rate for the Winchester, VA rate from 18 June 2014 to 24 June 2015; then receive the BAH with dependent rate for Arlington, VA (Pentagon) starting on 25 June 2015. 9. The ABCMR's decision in Docket Number AR20160012024, failed to show a second advisory opinion was received from the Chief, Compensation and Entitlements Division on 2 April 2019 and the applicant submitted a rebuttal to this second advisory opinion on 30 April 2019. a. The applicant was appointed as a Reserve commissioned officer on 20 August 1994. He entered active duty on 1 October 1994. He served in a variety of stateside or overseas assignment and he was advanced to lieutenant colonel in October 2011 and colonel in February 2017. He served as battalion commander, 1st Battalion, 361st Engineer Regiment, at Fort Bliss, TX, from May 2012 to May 2014. b. On 7 April 2014, Headquarters, Fort Bliss published Orders 097-62 reassigning him on a PCS move from Fort Bliss, TX to U.S. Army Engineers Division, Winchester, VA 22601, with duty in Afghanistan, and with a report date of 18 June 2014. Shipment of Household Goods (HHG) and family travel was authorized. The orders stated: * his next programmed Homebase and Advanced (sequential) Assignment Program (HAAP) duty station had been approved to be Office of the Chief of Engineers, Pentagon, VA 20319 * he was authorized to relocate family members to Fairfax, VA 22032 * he was authorize shipment of household goods and movement of dependents to a designated location c. On 28 October 2014, Headquarters, U.S. Army Garrison, Fort Belvoir, published Orders 301-11 reassigning him on a PCS move from the U.S. Army Engineers Division, Winchester, VA 22601, to Office of the Chief of Engineers, Pentagon, VA 20319 with a report date of 15 August 2015. Shipment of HHG and family travel was authorized. d. He served in Afghanistan from on or about 22 June 2014 to on or about 22 June 2015. On return, he served with the Office of the Chief of Engineers at the Pentagon to around July 2017 before he was transferred to Atlanta, GA. e. An advisory opinion was received from the Chief, Compensation and Entitlements Division, on 3 October 2016, in the processing of this case. The G1 official stated: (1) Because of the issuance of improper PCS order (Order Number 097-62) improperly designating Afghanistan as a PCS location, approving a HAAP to Washington, DC, and establishing a designated place in Fairfax, VA, the G-1 believed it was in the best interest of fairness and equity to partially approve the applicant’s request for administrative relief by cancelling the remaining BAH debt. (2) The applicant received a housing allowance from 2 June 2014 to 20 April 2015, based on his dependent location, Fairfax, VA 22302 instead of Winchester, VA 22601. The initial BAH debt was $8,999.10. As of April 2015, his remaining debt balance was $6,376.59. (3) Annual leave days could only be credited when it was an error. The 6 days of leave that the applicant lost were not protected leave days. There was no indication that he could not take annual leave from 1 October 2013 leading up to deployment in 2014. d. The Army G-1 did not recommend approving the full reimbursement for the shipment of his second privately owned vehicle (POV) or to restore his lost leave. e. The applicant was provided with a copy of this advisory opinion for acknowledgement and/or rebuttal. In his rebuttal, dated 30 November 2016, the applicant stated: (1) The stress of the PCS, the yearlong deployment, the entitlement issues and the financial consequences have been difficult on his family. The U.S. Army Human Resources Command deployed him to Afghanistan and ordered his family to move Northern VA as part of a HAAP sequential assignment to the Pentagon. His family and he did as they were ordered, without hesitation; however, the response by the Army has been utterly disappointing. (2) He has issues with the G-1’s advisory opinion. Their opinion constitutes at least the fifth documented BAH determination and would likely demand an additional $6000 debt on top of the $7,000.00 debt taken back in 2015. The 2015 debt was taken without explanation. Contrary to the advisory opinion, on 18 June 2014, he did not PCS from Fort Bliss, TX to Winchester, VA. He deployed from Fort Bliss to Afghanistan. The Fort Belvoir Military Processing Station reviewed the 7 April 2014 PCS orders, deemed them acceptable, and refused to cut TCS orders. His orders sent him to Afghanistan where he served in a 1 year joint billet with the Transatlantic Afghanistan District. Neither his family nor he ever went to Winchester nor did they ever have a requirement or expectation to go to Winchester. (3) His orders included a HAAP sequential assignment and stated his dependents and HHGs were only authorized to move to the NCR as they did. The Army's failure to pay the appropriate entitlements for the NCR where his family was ordered (by name) to move is a violation of federal law. The Army had the legal responsibility to care for Soldiers and their Families appropriately. Moving his family to one location and then paying the Soldier for a completely different location resulting in a $14,000.00 decrement on BAH is at least unethical, but is clearly a violation of the Financial Management Regulation and the HAAP policy on sequential moves. The HAAP provides the justification the Army needs to authorize the appropriate entitlements. In phone and email conversations the G1 Compensation and Entitlements Division admits they don't know much about the HAAP. (4) Temporary duties are generally less than 180 days. His deployment was for 1 year. Stating he should be on TDY for 1 year violates policy and would assume there was a permanent position in Winchester, VA, which there was not. The TCS may be the appropriate status for the 1 year deployment. (5) He is extremely disappointed he has had to spend countless hours, sleepless nights, and deal with unexplained debt due to no fault of his own. Attached is a letter from Brigadier General X_., who was responsible for helping him deploy. His explanation covers in detail what happened and that there was clearly no position for him in Winchester. 11. A second opinion was received from the Chief, Compensation and Entitlements Division, on 2 April 2019, in the processing of this case. The G1 official stated: a. This was in response for a second opinion regarding the applicant’s PCS orders, POV shipment, and Special Leave Accrual inquiry. Because of the issuance of improper PCS order under order number 097-62, improperly designating Afghanistan as a PCS location, approving the HAAP to Washington, DC, and establishing a designated place in Fairfax, VA, the G1 believed it was in the best interest of fairness and equity to partially approve the applicant’s request for administrative relief by cancelling the remaining outstanding BAH debt. However, the G1 did not recommend approving the full reimbursement for the shipment of his second POV or to restore his lost leave. b. According to official finance records received from DFAS, the applicant received a housing allowance for the period of 2 June 2014 to 20 April 2015, based on his dependents location, Fairfax, VA 22302 instead of Winchester, VA 22601. The initial BAH debt was $8,999.10. As of April 2015, his remaining debt balance was $6,376.59. c. The applicant’s request for shipment of a second POV was reviewed and disapproved by Headquarters, Department of Army (HQDA) G4 prior to him shipping it at personal expense. The applicant was reimbursed for the mileage of two vehicles. The G1 believed that was fair and no further reimbursement should be made. d. Annual leave days could only be credited when it was an error. The 6 days of leave that the applicant lost were not protected leave days. There was no indication that he could not take annual leave from 1 October 2013 leading up to deployment in 2014. e. The applicant was provided with a copy of this advisory opinion for acknowledgement and/or rebuttal. In his response, dated 30 April 2019, the applicant stated: (1) Although the advisory opinion had factual errors, inconsistencies, and inaccurate assumptions, he still believed they could come to a swift resolution. Regardless of how the orders were prepared and interpreted, the facts remained he was ordered to deploy in June 2014 for one year from Fort Bliss, TX to Afghanistan and his family was ordered to move from Fort Bliss, TX to Fairfax, VA. The Army G1 acknowledged his family was legally authorized and listed on PCS orders to move to and reside in Fairfax, VA during his 2014-2015 deployment and prior to his June 2015 PCS to the Pentagon. The advisory opinion provided some relief and authorized the requisite pay and allowances for his family and him to move to and reside in the National Capital Region (NCR) as part of the established HAAP. (2) BAH: In the advisory opinion, the G1 official recommended cancelling the remaining debt balance of $6,376.59. That was appreciated, but without access to the financial databases he is unsure of that amount of restitution was the appropriate relief. The debt was actually part of a larger unexplained $8,999.10 debt which had been paid in full. The $6,376.59 was no longer outstanding as it was paid through monthly debt collection between April 2015 and January 2016. The entire amount was paid off in January 2016 (see table below and Leave and Earnings Statements (LESs). Debt Re-Payment Table: (MIL PAY/ ALLOW DEBT BAL) (3) POV: Regarding their two POVs, he was deployed and physically unable to drive a POV during the 2014 PCS. The solution given by the DA G4 and G1 was for his spouse to drive one POV 1900 miles from Fort Bliss, TX to Fairfax, VA, then procure her own plane ticket to El Paso, TX and then make another trip driving the second POV 1900 miles from Fort Bliss, TX to Fairfax, VA. With the Army's plan, he would get mileage for both POVs but would have to find extended child care for their three children, would not be reimbursed for the Washington D.C. to El Paso, TX plane ticket or receive funded storage for the second POV. A spouse of a deployed Soldier who was conducting a PCS during a deployment must always receive more empathy than what was provided by the HQDA team. He was deployed and was not physically able to drive his POV from Fort Bliss, TX to Fairfax, VA and therefore he was entitled to a government procured move of the POV per regulations. Furthermore, he was unable to move the POV before the deployment due to pre-deployment training, battalion command obligations whereas he was responsible for deploying hundreds of Soldiers to overseas contingency operations and no time to take a 3 day’s drive, one way, to drop off a POV. The Army must make this right and repay the difference between what DFAS paid and the actual cost to ship the POV which was $446.91. Enclosed is the request to have the government ship the second POV, an endorsement from MG X_., the shipping invoice and MALT payment information. (4) Travel voucher, incidental expenses and DLA: DA G1 would not allow him to file a travel voucher for the 2015 PCS which would have entitled him to travel expenses, to include a $3240.32 dislocation allowance at the without dependent 2015 0-5 rate. DFAS was prepared to pay the entitlement, but the DA G1 stopped the action stating that by doing so would complicate the process until a full audit was complete. The audit was never done and the payment was never made. It was unclear what the total dollar figure would be with the other entitlements included. The completed DA 1151, signed on 3 September 2015, is enclosed. (5) Lost Leave: The 2 April 2019 advisory opinion stated he had time to take leave between October 2013 and June 2014 in his final 6 months of battalion command. Not only did he take leave during battalion command he was informed repeatedly his leave balance would be protected for 3 years after the deployment. On his July and August 2015 LESs he had Combat Zone Leave Carryover Balance of 108.5 days. The leave was to be protected until 30 September 2018. A 23 September 2015 DFAS email stated “Service Members who had special leave accrual (SLA) with an expiration date of FY2016 and great and a leave balance of 60. 5 to 75 days should retain that leave, although currently the military pay system will reduce the leave balance to 60 days effective October 2015. This will result in your September LES showing a leave balance of 60 days rather than the potential full amount of SLA leave you have earned and may be allowed to carry forward.” (see enclosure) That situation applied to him; however, he lost 6 days of leave. Enclosed is correspondence regarding the SLA and leave forms depicting the protected leave and expiration date. This was a policy issue and it appears how it was applied disproportionately impacted deployed or recently deployed Soldiers who did not have time to react but were always told their leave was protected. He did indeed take 50 days of leave in FY15 (July-August 2015) and had to receive special permission to do so. Taking any more leave than that was not feasible, unrealistic and not required in accordance with policy. To this day, he has never received an official explanation as to why he lost 6 days of leave. Leave Balance and Correspondence Table: (7) Additional Information: He had been away from his family for 3 of the past 5 years. His spouse was a DA civilian in 2017, but was unable to secure a job in Atlanta, GA at his 2017-2019 duty station. She had since left DA to work for another government agency. He is on orders to return to the NCR this summer. For the third PCS in a row he will not use household good benefits thus saving the government tens of thousands of dollars. He has continued to pay for two households much of which is out of pocket since he is receiving BAH at a much lower rate than where his primary residence was located. For as long as this case drags on it continues to negatively impact his family's health, welfare and financial situation while saving the Government at least $75,000. (8) Recommendations: * BAH: Adjust the record to reflect his spouse did exactly as she was authorized and that was to move from Fort Bliss, TX to Fairfax, VA and pay the appropriate BAH for these two locations. Cost to Government: $6376.59. * Second POV: Pay the difference between personally procuring a POV shipment and the MALT. Cost to Government: $446.91. * Incidentals and DLA: Reimburse $3,240.32 to settle the 3 September 2015 travel voucher to include partial DLA payment. Lost Leave: Credit 6 days. (9) Advocate: Assign a HAAP specialist to advise Soldiers with a HAAP to insure appropriate arrangements, entitlements are provided. (10) ARBA POC: Provide a POC who will contact him with monthly updates until the case is resolved. This case has taken nearly 3 years, even longer including time spend working this with HQ DA. Providing a POC would go a long way to insure all parties were kept abreast of the current status. (11) Counsel Support: For future cases, appoint counsel to represent Soldiers in instances such as this where the government had admitted to making significant mistakes. Soldiers who are charged with a crime are appointed counsel; however, when Soldiers require support to correct no fault administrative errors the Soldier is unsupported. (12) Summary: The HAAP’s intent is to conserve PCS funds and to minimize family turbulence. Instead the program and the subsequent process to recoup missed entitlements escalated turbulence, consumed a significant amount of time, placed an emotional and financial strain on him and his family. A swift resolution and outcome was desired. BOARD DISCUSSION: After review of the application and evidence, the Board determined some relief is warranted. The applicant’s contentions, the advisory opinion, and his rebuttal were carefully considered. Based upon the preponderance of evidence, the Board agreed to grant the reimbursement of his BAH debt and the payment of his PCS move after he properly submits a travel voucher, with DFAS determining the amounts in question. The Board agreed there was no error or injustice when he lost 6 days of leave and was not authorized payment for the additional POV mileage. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF X X X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing he was authorized basic allowance for housing at the Fairfax, Virginia rate during the period in question, and reimbursement all monies already recouped, and authorize payment for permanent change of station travel expenses after he prepares a properly constituted permanent change of station travel voucher. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to authorizing mileage payment for an additional privately owned vehicle, and restoration of 6 days of lost leave. 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. The DOD Financial Management Regulation states BAH is based on geographic duty location, pay grade, and dependency status. The intent of BAH is to provide Soldiers accurate and equitable housing compensation based on housing costs in local civilian housing markets, and is payable when Government quarters are not provided. A Soldier with permanent duty within the 50 United States, who is not furnished Government housing, is eligible for BAH based on the dependency status at the permanent duty ZIP Code. 3. Title 10, U.S. Code, section, 2774, permits waiver of collection of erroneous payments of pay and allowances if collection would be against equity and good conscience. //NOTHING FOLLOWS// ABCMR Supplemental Record of Proceedings (cont) AR20190009184 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1