IN THE CASE OF: BOARD DATE: 16 March 2022 DOCKET NUMBER: AR20210009220 APPLICANT REQUESTS: * reinstatement of entitlement to Basic Allowance Housing (BAH) with dependents for the period of time that he was assigned to inadequate quarters * a personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Memorandum – Subject: Army Board for Correction of Military Records (ABCMR) Appeal of Denial of Application for BAH, dated 28 March 2021 * Orders Number 330-01, dated 26 November 2019 * Divorce Decree, dated 15 October 2019 * Leave and Earnings Statements (LES) * Memorandum – Subject: Temporary Roommate While Stationed in Turkey, dated 28 March 2021 * DA Form 1559 (Inspector General (IG) Action Request), dated 3 April 2020 * U.S. Army Europe, Office of the IG letter, dated 3 June 2020 FACTS: 1. The applicant states in pertinent part that he proceeded on a Permanent Change of Station (PCS) to a remote location. He contests that while assigned, his entitlement to BAH with dependents was terminated. He argues that prior to his reassignment, he resided off-post and has joint custody of his daughter. He adds that adequate housing was not available and his daughter has attended a private school since 2020; he remains as an active figure in his daughter's life. He also provides that he shouldn't be treated any different than a married Soldier. The housing situation at his duty station required the sharing of restrooms by 20 or more Soldiers and there was no potable water. In memorandum format, the applicant further provides the following information in support of his request: a. In November 2019, the applicant was reassigned to Turkey. The published orders indicated he did have a dependent; his divorce decree awards joint custody to he and his former spouse effective 15 October 2019. As ordered by his decree, he was required to pay $550.00 per month in child support. b. He reported to Turkey on 10 December 2019 and was assigned to inadequate living quarters i.e. he was assigned to a 149 square foot room that he shared with another Soldier. He also shared a restroom with 20 other Soldiers on the floor. c. He argues that BAH is authorized in cases where assigned quarters are inadequate. Specifically, in the Department of Defense Financial Management Regulation provides that "if a Service member continues to occupy Government quarters with a dependent after the quarters are declared inadequate" then BAH at the "with dependent" rate begins on the date the quarters are designated inadequate." He further inserts that a Service Member with a dependent is entitled to BAH at the with dependent rate when adequate government quarters are not furnished for the Service members dependent or not all service members dependents are authorized to occupy Government quarters assigned to the service member. d. With regard to Joint Custody, he provides that when a Service member is divorced from a person who is not a Service member, they share joint legal custody of a child, and the former spouse is awarded primary physical custody, then the Service member is a non-custodial parent for housing allowance. Further, when the Service member's court-ordered child support is less than the applicable BAH (Differential – Diff) rate and the Service member is not residing in, or assigned to, Government quarters, the Service member is only authorized a housing allowance at the without-dependent rate. He further argues that in accordance with Army Regulation (AR) 420-1 (Army Facilities Management), he was entitled to a private room with at least 135 square feet, and a bathroom shared with no more than one other person. e. He adds that at no period during this assignment was his entitlement to BAH correct. His BAH was terminated and restarted in March 2020. His BAH was terminated and restarted in March 2021. Despite his request for the correction of his BAH entitlement during that period, he never received the full entitlement. He initiated a request for assistance through the IG's office in April 2020. He argues their response provided in June 2020, wrongfully concluded the regulatory guidance pertaining to adequate housing did not apply to him and further noted he was not the custodial parent of his dependent daughter and therefore not entitled to BAH at the "with dependent" rate for the period of his assignment to Turkey. 2. A review of the applicant's available service records reflects the following: a. On 4 August 2009, the applicant enlisted in the Regular Army. b. On 26 January 2013, the applicant married Ms. . Subsequently, the applicant submitted his request for entitlement to BAH with dependents. c. On 13 October 2014, the applicant's dependent daughter was born. d. On 13 November 2017, Headquarters, U.S. Army Garrison, Fort Leonard Wood, MO, issued Orders Number 317-152 reassigning the applicant, with dependents, from Fort Leonard Wood, to Fort Belvoir, Virginia with a reporting date of 10 February 2018. e. On 26 November 2019, Headquarters, U.S. Army Garrison, Fort Belvoir, issued Orders Number 330-01, reassigning the applicant on PCS to Kurecik, Turkey with a reporting date of 10 December 2019. These orders further provide that the applicant's dependent daughter would relocate to the state of ; the applicant elected to serve a tour of 12 months in an "all others" status. f. On 27 July 2020, the U.S. Army Garrison Rheinland-Pfalz issued Orders Number 209-109 reassigning the applicant from Kurecik, Turkey back to Fort Belvoir, VA with a report no later than date of 10 January 2021. Movement of the applicant's dependent daughter was not permitted due to the departing assignment being an "all others/non- command sponsored" tour. 3. The applicant provides the following a: a. Divorce Decree, dated 15 October 2019, reflective of the applicant's court ordered divorce from Ms. . The applicant was ordered to pay child support in the amount of $550.00 per month beginning on 1 November 2019. The applicant and his former spouse also entered into a joint parenting plan i.e. joint custody of their daughter. The applicant's daughter has resided with his former spouse since September 2017 (date of separation), subject to periods of time when the applicant exercised his parenting time. With regard to custody, the applicant and his former spouse shared "joint physical custody" of their daughter, with her residence for educational and mailing purposes being with Ms. . b. LES reflective of the applicant's pay and entitlements from March 2020 – March 2021. During this period the applicant received "BAH-Diff" at a rate of $331.80 per month and was listed as "Single w/ no dependents." In March 2021, the applicant began receiving "BAH with dependents." c. Memorandum – Subject: Temporary Roommate While Stationed in Turkey, dated 28 March 2021, reflective of Staff Sergeant (SSG)/E-6 , the applicant's roommate for approximately 45 days, while assigned in Turkey. SSG corroborates the applicant's statement regarding the living conditions. He adds that his entitlement to BAH with dependents continued during his assignment as it did for any other married personnel. d. DA Form 1559, dated 3 April 2020, reflective of the applicant's submitted request for assistance concerning his entitlement to BAH with dependents. The applicant cites the basis for his contention is based on the inadequacy and lack of Government quarters. e. U.S. Army Europe, Office of the IG letter, dated 3 June 2020, reflective of their response to the applicants submitted request whereby the applicant was advised his court order did not specifically state that at any time, he would have custody of his dependent for a period of 91 or more consecutive days. As such, his status of custody was temporary thereby making him the noncustodial parent for housing purposes. Further the applicant was advised he may be entitled to BAH-Diff. With regard to his living condition, the applicant was advised any inadequacies associated with his living accommodations was not justification to receive BAH. The applicants living conditions were not subject to the requirements of AR 420-1, but instead the local policy. Due to the austere facilities and or living conditions at that location, service members assigned to that location for 30 days or more were authorized Hardship Duty Pay-Location. 4. On 15 February 2022, Department of the Army, Office of the Deputy Chief of Staff, G-1, Lead, Military Pay Branch provided an advisory opinion recommending disapproval of the applicant's requested relief citing that because the applicant's divorce decree does not specifically state the applicant has custody of his dependent daughter for 91 or more consecutive days, he is a noncustodial parent for housing allowance purposes. However, because he was assigned to the barracks and paying child support in an amount, at least the BAH-Diff amount for his grade, he was being paid BAH-Diff as authorized. 5. On 24 February 2022, the applicant was provided a copy of the advisory opinion and afforded 14 days to provide comments. 6. On 8 March 2022, the applicant responded to the advisory opinion providing that had he been assigned to a location during this period where he could have had his daughter, she would have been with him for more than 91 consecutive days; information further supported by a statement from his former spouse, Ms. . He again challenges the living conditions and their compliance with the previously cited references. The applicant adds that he initiated a congressional inquiry concerning the living conditions and his BAH entitlements. In response, the applicant's commander provided clarification of the applicant's received entitlements and living conditions. This communication is further provided for the Boards review in its entirety. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation. Upon review of the applicant’s petition, available military records, and the Office of the Deputy Chief of Staff, G-1 advisory opinion, the Board concurred with the advising official recommendation of denial. The Board agreed the applicant’s court order does not specifically state the applicant has custody of his dependent child for a period for 91 or more consecutive days, he is a noncustodial parent for housing allowance purposes. The Board found the applicant was assigned to the barracks and paying child support in at least the BAH-DIFF amount for his grade, he was being paid BAH-Difference as authorized. Based on this, the Board denied relief. 2. The applicant’s request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 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. AR 420-1 (Army Facilities Management), Personnel will not be required to occupy housing that does not meet adequacy standards except for military necessity. Mandatory assignment to inadequate housing solely to limit payment of BAH is not authorized. 2. Joint Travel Regulation, Chapter 10 (Housing Allowances) provides that a Service member on active duty entitled to basic pay is authorized a housing allowance based on his or her grade, rank, location, and whether he or she has any dependents. BAH Differential (Diff) is paid to a Service member assigned to single-type Government quarters and who qualifies for a BAH solely due to paying sufficient child support. A single or divorced Service member who maintains legal and physical custody of a child before receipt of a PCS authorization or order to an unaccompanied tour may continue to be paid BAH at the with-dependent rate for the last Permanent Duty Station (PDS), or designated place. The divorce decree must state the specific period during which the Service member has legal and physical custody. BAH at the with-dependent rate is authorized only for the period the Service member would have the custody of the child if not serving on the unaccompanied tour. The Service member must, for military necessity, place the child in the physical custody of a relative or caregiver designated by the Service member, to be authorized BAH at the with-dependent rate. 5. A Service member, classified as with-dependent for housing purposes solely because the Service member is paying child support, is not authorized a housing allowance other than BAH-Diff if he or she is assigned to Government quarters. 3. Department of Defense 7000.14-R (Financial Management Regulation), Chapter 26 (Housing Allowance) provides that when a Service member is divorced from a person who is not a Service member, they share joint legal custody of a child, and the former spouse is awarded primary physical custody, then the Service member is a non- custodial parent for housing allowance purposes. Termination of BAH with dependents entitlement occurs at midnight on the effective date of the divorce. Joint Legal Custody - a. When the Service member's court-ordered child support is less than the applicable BAH-Diff rate and the Service member is not residing in, or assigned to, Government quarters, the Service member is only authorized a housing allowance at the without-dependent rate. When there is a court order or legal separation agreement stating the support amount, a Service member must contribute to the dependent's support the amount specified. In no case may the support payments be less than the applicable BAH-Diff rate. b. When a Service member not assigned to Government quarters pays additional support to the former spouse who has primary custody of the child so that the total child support provided is equal to or more than the BAH-Diff rate, he or she is authorized a housing allowance at the with-dependent rate. Temporary Custody – When a Service member has temporary custody of a child and they reside in a private-sector residence, the cost of maintaining the residence is not a factor in determining authority for the with-dependent housing allowance rate and may not be used instead of, or in addition to, child support to qualify for increased allowances. The dependent child must reside with the Service member on a non-temporary basis, which is a period of 91 or more consecutive days, for the Service member to qualify for the with-dependent housing allowance rate for the temporary period. The cost of maintaining a home may not be added to the amount of child support to qualify for the increased allowances. BAH Differential (BAH-Diff) A Service member assigned to single-type Government quarters or a single-type housing facility under a uniformed Service's jurisdiction is not usually authorized more than BAH Partial. However, if the Service member is authorized BAH solely due to paying child support and the Service member is paying an amount equal to or greater than BAH-Diff, then he or she is authorized BAH-Diff. A Service member is not authorized BAH-Diff if the child support payment is less than the Service member's applicable pay grade BAH-Diff amount. 4. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210009220 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1