IN THE CASE OF: BOARD DATE: 22 August 2022 DOCKET NUMBER: AR20210015569 APPLICANT REQUESTS: to receive Basic Allowance for Housing (BAH) during his Basic Combat Training (BCT) and Advanced Individual Training (AIT). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * ACTS Application Summary, dated 1 October 2021 * Orders Number 9173006 issued by the Military Entrance Processing Station, dated 22 June 2009 * Orders Number 225-0426 issued by U.S. Army Installation Management Command, Headquarters, U.S. Garrison Command, Fort Knox, dated 13 August 2009 * DA Form 4187 (Personnel Action), dated 1 September 2009 * DD Form 214 (Certificate of Release or Discharge from Active Duty), ending on 26 November 2009 * Headquarters, U.S. Army Reserve Command Information Paper, Subject: BAH for Reserve Component Members on Active Duty Training Orders for 140 Days or More, dated 2 August 2021 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 (ABCMR) 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: a. On 30 June 2009, he was sent to Fort Knox, KY to complete BCT, followed by AIT at Fort Jackson, SC. He served a total of 145 days but did not receive BAH without dependent rate. As a Reservist, he had to maintain his place of residency/Home of Record (HOR) during his training assignment to return to upon completion of his training. b. On 29 October 2020, the Director of Military Compensation Policy issued clarification on Department of Defense (DoD) interpretation of Title 37, United States Code (USC), Section 403(g) which reiterated that full BAH would be paid to U.S. Army Reserve Soldiers at the primary residence location while serving 31 days or more of active duty. c. While attending BCT and AIT, he was informed by the administrative staff that he was not allowed to receive any BAH allowance since he was assigned to the barracks. The lack of BAH allowance caused an extreme hardship with his landlord at the time, which led to incredible debt. 3. The applicant's service record shows: a. On 3 April 2009, the applicant enlisted in the U.S. Army Reserve (USAR). DD Form 4 (Enlistment/Reenlistment Document Armed Forces of the United States), item 3 (HOR) shows. Reserve Annex (Certificate and Acknowledgement, U.S. Army Reserve Service Requirements and Methods of Fulfillment) shows the applicant reported to the Military Entrance Processing Station on 30 June 2009. He attended BCT at Fort Knox and AIT at Fort Jackson for military occupational specialty (MOS) 27D (Paralegal Specialist). He was assigned to Headquarters and Headquarters Company (HHC), 841st Engineer Battalion. b. DD Form 214, ending on 26 November 2009, shows the applicant was honorably released from active duty training. (1) Block 8a (Last Duty Assignment and Major Command) – A Company, 369th Adjutant General Battalion Soldier Support Institute Training Center. (2) Block 8b (Station Where Separated) – Fort Jackson, SC 29207. (3) Block 9 (Command to Which Transferred) – HHC, 841st Engineer Battalion, U.S. Army Reserve Command. (4) Block 12a (Date Entered Active Duty This Period) – 30 June 2009. (5) Block 12c (Net Active Service This Period) – 0 years, 4 months, and 27 days. (6) Block 12e (Total Prior Inactive Service) – 0 years, 2 months, and 27 days. (7) Block 14 (Military Education) – Paralegal Specialist, 10 weeks. c. The applicant remains in the USAR. 4. The applicant provides: a. Orders Number 9173006 issued by the Military Entrance Processing Station dated 22 June 2009, which ordered the applicant to initial active duty training, effective 30 June 2009. He was attached to the 46th Adjutant General Battalion, Fort Knox. b. Orders Number 225-0426 issued by the U.S. Army Installation Management Command, Headquarters, U.S. Garrison Command, Fort Knox, dated 13 August 2009, ordered the applicant to MOS training, effective 11 September 2009. He was attached to A Company, 396th Adjutant General Battalion, Fort Jackson. c. DA Form 4187 dated 1 September 2009, shows the applicant was promoted to Private/E-2, effective 10 September 2009. d. Headquarters, U.S. Army Reserve Command Information Paper, Subject: BAH for Reserve Component Members on Active Duty Training Orders for 140 Days or More, dated 2 August 2021, states that Department of Defense (DOD) Financial Management Regulation (FMR) provisions on providing BAH for Reserve Component members without dependents on active duty training orders for 140 days or more is in conflict with Title 37, USC, section 403. (1) U.S. Army Reserve Soldiers on orders for 140 days or more, for training, are in a permanent change of station status (PCS), not temporary duty (TDY) status for the duration of the course under Joint Travel Regulations (JTR) and DODFMR. When attending training schools meets this 140 days or longer threshold, USAR Soldiers are generally provided government billeting/quarters and subsequently denied BAH compensation for their original HOR. Specifically, the FMR states that Overseas Housing Allowance (OHA) or BAH is not authorized for a Reserve Component member assigned adequate government quarters to his or her grade and dependency status at the permanent duty station (PDS). (2) It is common practice for Troop Program Unit (TPU) Soldiers to maintain their HOR while mobilized since this is where they will immediately return to upon conclusion of their training. Based on the FMR, TPU Soldiers must expend their base pay to maintain payments on their HOR when carrying out active duty training of 140 days or longer. Shortly after the Gulf War, Congress prohibited BAH denial for Reserve Component members without dependents if mobilized for a period greater than 30 days and no longer able to occupy their primary residence in accordance with Title 37, USC, section 403(g). (3) The DODFMR provisions denying BAH to Reserve Component members without dependents when government quarters are provided at the mobilized locations appear to contradict Title 37, USC, section 403. 5. In the processing of this case, an advisory opinion was obtained from the Office of the Deputy Chief of Staff, G-1, Military Pay Branch. The advisory official opined denial of the applicant's request. It states: a. DOD policy provides the authority for Reserve Component members without a dependent attending accession training to receive a housing allowance based on their primary residence at the time called to active duty if the member maintains a residence and continues to be responsible for rent or owns the residence. The applicant did not provide a lease or mortgage agreement in his application to prove he owned or rented his residence at the time he was called to attend active duty training. b. The clarification that the applicant referenced in his application does not apply to his case. At the time he attended training, it was Army Policy that household goods shipment was authorized to a training location when that training course is 20 or more weeks in length. Since household good shipment was authorized, the housing allowance was paid based on the training location. The applicant was only authorized to received BAH-Partial since he did not have a qualifying dependent and was assigned to the barracks. 6. The advisory opinion was provided to the applicant to afford him the opportunity to respond to its content. He did not respond. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board determined that relief was not warranted. The Board carefully considered applicant’s contentions, military record, regulatory guidance and the advisory. The Board concurred with the advisory finding that although the applicant references a residence, he provided no supporting documentation for consideration by the Board. Based on the preponderance of evidence available for review, the Board determined the evidence presented insufficient to warrant a recommendation 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 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. Title 37, USC, section 403 (BAH) states that a member of a uniformed service who is entitled to basic pay is entitled to a BAH at the monthly rates prescribed under this section or another provision of law with regard to the applicable component of the BAH. The amount of the BAH for a member will vary according to the pay grade in which the member is assigned or distributed for basic pay purposes, the dependency status of the member, and the geographic location of the member. a. Paragraph (d) (BAH when dependents do not accompany member.): (1) A member of a uniformed service with dependents who is on permanent duty at a location may be paid a family separation BAH under this subsection at a monthly rate equal to the rate of BAH or OHA, whichever applies to that location, for members in the same grade at that location without dependents. (2) A permanent duty location is a location to which the movement of the member's dependents is not authorized at the expense of the U.S. and the member's dependents do not reside at or near the location; and at which quarters of the U.S. are not available for assignment to the member. b. Paragraph (e) (Effect of assignment to quarters.): (1) Except as otherwise provided by law, a member of a uniformed service who is assigned to quarters of the U.S. or a housing facility under the jurisdiction of a uniformed service appropriate to the grade, rank, or rating of the member and adequate for the member and dependents of the member, if with dependents, is not entitled to a BAH. (2) A member without dependents who is in a pay grade above pay grade E-6 and who is assigned to quarters in the U.S. or a housing facility under the jurisdiction of a uniformed service, appropriate to the grade or rank of the member and adequate for the member, may elect not to occupy those quarters and instead to receive BAH prescribed for the member's pay grade by this section. (3) A member without dependents who is in pay grade E-6 and who is assigned to quarters of the U.S. that do not meet the minimum adequacy standards established by the Secretary of Defense for members in such pay grade, or to a housing facility under the jurisdiction of a uniformed service that does not meet such standards, may elect not to occupy such quarters or facility and instead to receive the BAH prescribed for the member's pay grade under this section. c. Paragraph (g) (Reserve members.): (1) A member of a Reserve Component without dependents who is called or ordered to active duty to attend accession training, in support of a contingency operation, or for a period of more than 30 days, or a retired member without dependents who is ordered to active duty in support of a contingency operation or for a period of more than 30 days, may not be denied BAH if, because of that call or order, the member is unable to continue to occupy a residence – * Which is maintained as the primary residence of the member at the time of the call or order; and * Which is owned by the member or for which the member is responsible for rental payments (2) The Secretary concerned may provide BAH to a member described in subparagraph (1) at a monthly rate equal to the rate of BAH established under subsection (b), whichever applies to the location at which the member is serving, for members in the same grade at that location without dependents. The member may receive both BAH under paragraph (1) and under this paragraph for the same month, but may not receive the portion of the allowance authorized under section 474 of this title, if any, for lodging expenses if a BAH is provided under this paragraph. (3) Paragraphs (1) and (2) shall not apply if the member is authorized transportation of household goods under Section 476 of this title as part of the call or order to active duty. (4) The rate of BAH to be paid to the following members of a Reserve Component shall be equal to the rate in effect for similarly situated members of a regular component of the uniformed services: * A member who is called or ordered to active duty for a period of more than 30 days. * A member who is called or ordered to active duty for a period of 30 days or less in support of a contingency operation. (5) The Secretary of Defense shall establish a rate of BAH to be paid to a member of a Reserve Component while the member serves on active duty under a call or order to active duty specifying a period of 30 days or less, unless the call or order to active duty is in support of a contingency operation. 3. DODFMR, Volume 7A, Chapter 26 (Housing Allowance), Section 261005 (Reserve Component Member, Paragraph 10.5.1.(Order Duration) states that a service member called or ordered to active duty for 31 or more days, except a service member without a dependent during initial entry training, is authorized BAH or OHA. 4. JTR implements policy and laws establishing travel and transportation allowances of Uniformed Service members and DoD civilian travelers. It also implements station and certain other allowances. a. Paragraph 032201 (Courses of Instruction at a School or Installation): (1) A service member on active duty attending instructional courses at a school or installation may be eligible for travel allowances, based upon PCS or TDY Status. * Courses with a scheduled duration of 139 or fewer days (less than 20 weeks) are TDY * Courses with a scheduled duration of 140 or more days (20 weeks) are PCSs, and the course location is the service member's PDS * The scheduled duration is the actual period a service member receives instruction, including weekends, but not counting holiday periods when the service member is not attending classes, or incidental time spent at the duty station before classes begin or after they end * A PCS order to a course of instruction cannot be changed to a TDY order after the service member's arrival at the new PDS unless the travel authorization was issued in error b. Paragraph 032301 (Reserve Component Member Called or Ordered to Active Duty for Training) states that a Reserve Component member called or ordered to active duty training with pay may be eligible for travel allowances. The Reserve Component member's travel allowances depend on where he or she resides, whether he or she commutes daily, and the length of the duty. Travel and transportation allowances for a Reserve Component member who commutes to the active duty training location are in Table 3-6. Allowances for a Reserve Component member who does not commute are in Table 3-7. A Reserve Component member training at one location for 140 or more days (20 weeks) is in a PCS status. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210015569 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1