IN THE CASE OF: BOARD DATE: 28 September 2023 DOCKET NUMBER: AR20220009551 APPLICANT REQUESTS: correction of his Army National Guard pay records to show entitlement to Basic Allowance for Housing (BAH) rate adjustment due to his unit’s relocation from, , to, . APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * Online DD Form 149 (Application for Correction of Military Record) * Email Exchange with Army G-1 * Multiple Full Time National Guard Duty (FTNGD) Orders * Multiple Active Guard Reserve Orders * Multiple Leave and Earnings Statements * Unit Redesignation Chart * Request for BAH Waiver, 13 April 2017 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 (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 he wants his BAH rate corrected from the date when the unit moved from, to, , for the duration of time that he was located at D Company, 1st Battalion, 184th Infantry, when he requested a BAH waiver. His BAH rate was never corrected when the unit moved from, to, . a. He contends that he was eligible for a BAH waiver due to his unit relocation. However, his request was not processed accordingly. He further notes neither his initial AGR (Active Guard Reserve) tour nor his continuation orders allowed for PCS (permanent change of station) and that he should have received BAH rate for HOR (home of record) since no PCS was allowed. b. He believes he should receive the correct BAH rate based off the unit as an AGR Soldier. He feels that his BAH waiver was never processed by the proper channels when submitted. When he submitted the request, he was told that he could not commute from his home of record because it was over 50 miles to his duty station, but he never received an official denial. He also attempted to correct the AGR order through California's AGR branch, but the waiver was never moved any farther along in the process. 3. Review of the applicant’s service record shows: a. He enlisted in the California Army National Guard (CAARNG) on 6 July 2006 and extended his enlistment multiple times. He served in a variety of assignments. b. On 1 November 2012, he was ordered to Full Time National Guard Duty for 2 years, 11 months, and 31 days (extended in 2015 and 2016). He was assigned to 1st Battalion, 184th Infantry in Auburn, CA 95604. c. On 26 March 2017, CAARNG published Orders 85-6000 stating he was on active duty in Active Guard/Reserve (AGR) status and will proceed on permanent change of station as shown for the period indicated below. * Report to 1-184TH IN BN, OAKDALE CA 95361, 1 APRIL 2017 * Assigned to: CO D l-184TH IN BN, OAKDALE CA 95361 * Period (active duty commitment): 01 YRS 03 MTHS 05 DYS (01 APR 2017 - 05 JUL 2018) d. On 13 April 2017, he submitted a memorandum for record requesting a PCS waiver based upon a Low/No Cost PCS. He stated he had agreed to a Low/No Cost PCS move and understood that he was not authorized shipment of household goods or movement of dependents. He did not intend to move from the aforementioned address due to the following reasons: (1) His dependent child and spouse will continue to reside within their residence. He had bought his current residence 9 months ago based on his duty location of, . He is currently remodeling the residence so if he sells his house to move to, , he would not be able to break even with the sale of primary residence. (2) Due to the location of his new duty station, he intends to commute to and from his residence daily. The new duty station is [Number and Street], , . His family will continue to reside in their current residence. He is asking for a BAH waiver at this time. e. It is unclear if this request was submitted through any channels or to any office or if it was acted upon by any authority. f. On 19 June 2017, CAARNG published Orders 170-05 redesignating certain units with the 1st Battalion 184th Infantry. Company C that was in Sacramento, CA 95828 is now in, (Change of Station). Company D remained in, . 4. The National Guard Bureau (NGB) provided an advisory opinion on 19 September 2023 in the processing of this case. An NGB official restated the applicant’s request for correction of his Basic Housing Allowance (BAH) in reason of the duty location change of his unit of assignment from to, , and recommended partial approval. a. Soldier reports he previously requested a BAH waiver for the duration of his assignment at D Company (Co) 1-184 IN. He notes that following his request, he was advised that he could not commute from his home of record (HOR) due to being over 50 miles from his duty location. Soldier indicates that he attempted to correct his Active Guard Reserve (AGR) orders through his State AGR Branch. Yet, his efforts were unsuccessful. Soldier further informs that he also attempted to correct his BAH rate through sending his pay document transmittal letters (TL). Instead, he was advised to submit an ABCMR claim for the correction of his records. Soldier alleges that his BAH waiver request was not processed appropriately. He believes he is entitled to the correct BAH rate based off his unit location. b. Soldier is an active Member of the CAARNG. On 15 December 2009, he was transferred to C Co, 1st Battalion, 184th Infantry Regiment (Co C 1-184 IN). Effective 1 November 2012, he became an AGR Member with the CAARNG. His initial active duty (AD) tour (orders 307-1018) was from 1 November 2012 to 31 October 2015 in C Co, 1- 184, Auburn, CA, 95603. Soldier’s tour renewal (orders 294-1031) was from 1 November 2015 to 31 May 2016 with duty at the same location. Subsequently, he renewed his active duty commitment (orders 122-6299) from 1 June 2016 to 31 August 2016 with assignment still in C Co, 1-184, Auburn, CA, 95603. His following AD tour (orders 227-4616) was from 1 September 2016 to 5 July 2018 at the same duty location. Meanwhile, permanent assignment modification order 0001530712.01 shows assignment to, effective 1 April 2017. In conjunction with Soldier’s permanent assignment modification, his new active duty assignment (order 85-6000) for the period of 1 April 2017 to 5 July 2018 was in D Co, 1- 184th in Oakdale, CA 95361. As such, the orders authorize Soldier a Low Cost Permanent Change of Station (PCS) from his current HOR to the new duty station. However, he is not authorized to move his dependents. As a result of his duty location change, Soldier requested a BAH waiver based upon Low/No cost PCS. Upon review of his request, an official at Headquarters, Department of the Army [HQDA DCS] G-1, informed Soldier that a Full Cost PCS was required due to the distance between his old and new duty locations being over 100 miles. After further communication, Soldier was referred to the National Guard Bureau (NGB) for additional assistance. c. In accordance with (IAW) the Department of Defense (DOD) Financial Management Regulation (FMR) 7000.14-R, Volume 7A, Chapter 26, Table 26-8, Rule 1, if a member is assigned to a duty location within the U.S, and dependents reside with or separately from the Member, then the payable BAH rate is based on the Member’s permanent duty station unless Member has a secretarial waiver. Furthermore, pursuant to Executive Order (EO) 111157 (dtd June 22, 1964) Part IV, Section 401, Para (d), the term "permanent station" shall mean the place on shore where a member is assigned to duty, or the home yard or the home port of a ship in which a member is required to perform duty, under orders in each case which do not in terms provide for the termination thereof; and any station on shore or any receiving ship where a member is assigned and in fact occupies, with his dependents, if any, quarters under the jurisdiction of any of the uniformed services shall also be deemed during such occupancy to be his permanent station: Provided, That in the case of members of the National Guard, the Air National Guard or reserve components of any of the uniformed services on active duty for training, the place where the training duty is being performed shall be deemed to be the permanent station of such members for the purposes of these regulations. d. Soldier’s previous AD tour continuation with C Co (1 Sep 16 – 5 Jul 18) indicates duty location in,. Nevertheless, a part of this assignment was performed in,. This can be explained by Permanent Order 170-05 reflecting a change of station of C Co, 1-184th IN from, to,. Subsequently, he was reassigned to D Co, 1-184th in Oakdale, CA 95361, effective 1 April 2017. Based on the above provision, it follows that Soldier would be entitled to a BAH rate based on his changed duty location (,) and his new duty assignment (,). Meanwhile, in reviewing the leave and earnings statements (LES) provided (1 Jan 16 – 31 Mar 17), it appears that Soldier’s BAH during the affected period (Dec 16 – Mar 31) reflects his duty location zip code of. e. In response to our office’s inquiry on this matter, the CAARNG provided a comprehensive timeline of events as well as discussed potential outcomes. The State first illustrated Soldier’s past duty assignments. Besides, it noted that the unit location changed to an address in, on 28 November 2016. Additionally, the State indicated that it does not have any records pertaining to a BAH waiver request submitted thorough its channels for approval. Therefore, it is unable to make a specific determination on this matter. Furthermore, the State pointed out that because the unit change of station was published after Soldier’s reassignment to, it is unable to determine the status of his duty location at the time of the unit move. Yet, the State opined that Soldier would be entitled to BAH entitlements for instead of provided that he had physically worked at the Okinawa Armory in Sacramento upon his unit relocation. The months of entitlements would then be from December 2016 through March 2017. Lastly, the State highlighted various discrepancies in Soldier’s BAH waiver request while noting his eligibility for a waiver request under Provision 6a (Low Cost/No Cost Orders) IAW ALARACT 097/2016. f. From the above, it appears that Soldier lacked adequate guidance and support in getting his BAH entitlement corrected. While Soldier was initially authorized a full cost PCS move with dependents (order 94-1025), it appears he was subsequently authorized for a Low-Cost PCS only (order 85-6000), which does not include a move of his dependents. Based on a review of ALARACT 097/2016, it is clear that he meets the BAH waiver eligibility under the Low/No Cost PCS option. However, unlike his allegation of a house ownership in, , there is no supporting documentation provided that reflect as such. Per BAH waiver guidance, Soldier must also provide HUD settlement or original lease agreement. g. This office finds that there is sufficient evidence to show that Soldier is entitled to a BAH adjustment based on his duty assignment in, . The alleged entitlement would be from the period of 1 December 2016 to 31 March 2017. Based on a BAH rate lookup for duty zip code using the Defense Travel Management Office tool, the with-dependents rate for E-6 during Calendar Year 2016 is $ 2,061.00. On the other hand, the with- dependents rate for E-6 during Calendar Year 2017 is $2,250.00. This opinion was coordinated with the CAARNG. 5. The applicant was provided with a copy of this advisory opinion to give him an opportunity to submit additional comments and/or a rebuttal. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found partial relief is warranted. 2. The Board concurred with the conclusion of the advisory official that the applicant is authorized a BAH adjustment based on his duty assignment in, (duty zip code), during the period 1 December 2016 through 31 March 2017. The Board determined the applicant’s record should be corrected to show he was authorized to receive BAH at the applicable rate for the aforementioned zip code during the aforementioned period. 3. The Board found insufficient evidence to support any relief beyond that addressed above. 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 and Army National Guard records of the individual concerned be corrected by showing he was authorized BAH at the applicable rate for zip code during the period 1 December 2016 through 31 March 2017. He should be paid any additional BAH he is due as a result of this correction. 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 any relief in excess of that described above. 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 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. Department of Defense (DOD) Financial Management Regulation (FMR) 7000.14-R, Volume 7A, Chapter 26, Table 26-8, Rule 1, if a Member is assigned to a duty location within the U.S., and dependents reside with or separately from the Member, then the payable BAH rate is based on the Member’s permanent duty station unless Member has a secretarial waiver. Furthermore, pursuant to Executive Order (EO) 111157 (dated June 22, 1964) Part IV, Section 401, Para (d), the term "permanent station" shall mean the place on shore where a member is assigned to duty, or the home yard or the home port of a ship in which a member is required to perform duty, under orders in each case which do not in terms provide for the termination thereof; and any station on shore or any receiving ship where a member is assigned and in fact occupies, with his dependents, if any, quarters under the jurisdiction of any of the uniformed services shall also be deemed during such occupancy to be his permanent station: Provided, That in the case of members of the National Guard, the Air National Guard or reserve components of any of the uniformed services on active duty for training, the place where the training duty is being performed shall be deemed to be the permanent station of such members for the purposes of these regulations. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220009551 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1