IN THE CASE OF: BOARD DATE: 29 November 2022 DOCKET NUMBER: AR20220001718 APPLICANT REQUESTS: entitlement to back payment of 6-months of Basic Allowance Housing (BAH) at the without dependent rate. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Memorandum – Subject: Barracks Occupancy Release, 9 February 2022 * DD Form 214 (Certificate of Release or Discharge from Active Duty), 6 May 2022 * Final Decree of Divorce, 3 August 2021 * Leave and Earnings Statements * Orders Number 305-11, 1 November 2019 * DA Form 2142 (Pay Inquiry) * BAH Offer Memorandum, 11 February 2022 * Memorandum – Subject: Certificate of Non-Availability (CNA) and Authorization for BAH, 14 February 2022 * DA Form 5960 (Authorization to Start, Stop or Change Basic Allowance for Quarters (BAQ) and/or Variable Housing Allowance (VHA), 26 October 2021 * Extension of Residential Lease, 11 December 2020 FACTS: 1. The applicant states in pertinent part that after finalizing his divorce, he was informed by his leadership that he would be authorized BAH at the without dependent rate. He contests that he was only required to complete a DA Form 5960. He was never directed to move into the barracks and continued to pay his rent accordingly. Months later, the finance office advised his unit that he was required to obtain a CNA in order to receive BAH. His unit was further advised that back dating the CNA to the date of his divorce was not possible. 2. A review of the applicant's available service records reflects the following: a. On 4 August 2014, the applicant enlisted in the Regular Army. b. On 6 November 2017, the applicant was legally married to Mr c. On 1 November 2019, Headquarters, U.S. Army Installation Management Command issued Orders Number 305-11 reassigning the applicant to Joint Base San Antonio/Lackland Air Force Base, TX, effective 10 January 2020. The applicant was a specialist (SPC)/E-4 at the time of assignment. d. On 1 June 2021, the applicant was promoted to sergeant (SGT)/E-5. e. On 6 May 2022, the applicant was honorably discharged from active duty and transferred into the U.S. Army Reserve (USAR) Control Group (Reinforcement). f. On 17 May 2022, the U.S. Army Human Resources Command issued Orders Number D-05-212444 discharging the applicant from the USAR. 3. The applicant provides the following a: a. Memorandum – Subject: Barracks Occupancy Release dated 9 February 2022, reflective of the applicant being approved to reside off-post by his Battalion Command Sergeant Major, effective 3 August 2021. b. Final Decree of Divorce dated 3 August 2021, reflective of the applicant being legally divorced from Mr c. Leave and Earnings Statements reflective of the applicant's pay and entitlements from July 2021 – February 2022. In November 2021, the applicant's entitlement to BAH with dependents was changed to "partial' BAH. This change was effective 3 August 2021 resulting in a $5,140.08 debt. d. DA Form 2142 (Pay Inquiry) reflective of the applicant's inquiry concerning the termination of his BAH entitlement rather than a change from "with" to "without dependents" rate. e. BAH Offer Memorandum dated 11 February 2022, reflective of the applicant's request for entitlement to BAH. The reason for the offer is not reflected on this document and the document does not reflect approval by the Installation Housing Representative. f. Memorandum – Subject: CNA and Authorization for BAH dated 14 February 2022, reflective of the applicant's request for a CNA to reside of post with authorization for BAH at the without dependent rate being approved on 11 February 2022. g. DA Form 5960 dated 26 October 2021, reflective of the applicant's request to change his BAH entitlement to the without dependent rate. h. Extension of Residential Lease dated 11 December 2020, reflective of the applicant's lease being changed to reflect an expiration date of 10 December 2021. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The applicant's contentions, the military record, and regulatory guidance were carefully considered. The applicant was married on 6 November 2017, and he was divorced on 3 August 2021. He was holding the rank of sergeant/E-5 at the time. He provides a memorandum, dated 9 February 2022, approving him to reside off-post by his Battalion Command Sergeant Major, effective 3 August 2021. However, for unknown reasons, he did not request or receive a Certificate of Non-Availability (CNA) at that time. It wasn’t until 14 February 2022 when he requested for a CNA to reside of post with authorization for BAH at the without dependent rate being approved on 11 February 2022. Regulatory guidance provides that Garrison commanders may authorize single Soldiers in the grade of E-5 and below within the continental U.S. to reside off post under the following conditions when adequate housing is not available and military necessity is not a factor. He ultimately received one authorizing him BAH at the without dependent rate on 11 February 2022. The Board determine that possible administrative errors by his unit and the local Hosing Office may have prevented him for receiving a timely CNA and voted to grant relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 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 of the individual concerned be corrected by showing he was issued a Certificate of Non-Availability (CNA) on 3 August 2021 authorizing him to reside off post and receive the without dependent BAH rate. 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. Army Regulation 420-1 (Army Facilities Management), Paragraph 3-20 (Eligibility, assignment, and termination of permanent party unaccompanied personnel housing) provides that the authority to live off post may be denied if it would adversely affect a training mission, military discipline, or military readiness. (Installation Management Command (IMCOM) region directors may not grant exceptions). Garrison commanders may authorize single Soldiers in the grade of E-5 and below within the continental U.S. to reside off post under the following conditions: * When adequate housing is not available and military necessity is not a factor * When the Soldier is pregnant * When the Soldier has purchased a home near the installation prior to notification of assignment to that installation a. If a Soldier refuses to occupy Government housing, he or she will be advised in writing that their BAH will be forfeited if housing adequate for their grade is available. b. Garrison commanders are the authority for issuance and control of CNA for BAH at the without dependent rate. 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. Section 100103 (Housing Allowance Rates and Applicable Dates) provides that when a Service Member entitled to BAH based upon marriage (on behalf of the spouse, with no other dependents) is divorced, entitlement to BAH at the "with dependent" rate is terminated at midnight on the day of the final decree of divorce. Table 10-17 (Conditions of BAH Partial) provides that if a Service member in the grade E-6 or below without a dependent is offered an assignment of adequate Government quarters or is assigned Government quarters but elects not to occupy such quarters and resides in private quarters at own expense, then the service member is not authorized BAH; without a dependent, is single and assigned to family-type quarters is not authorized "BAH- Partial." 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220001718 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1