IN THE CASE OF: BOARD DATE: 16 August 2023 DOCKET NUMBER: AR20230001267 APPLICANT REQUESTS: repayment of monies collected for overpayment of Basic Allowance for Housing (BAH) in the amount of $8,884.50. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Memorandum for Record from the applicant * Office of the Deputy Chief of Staff, G1 Memorandum, Subject: Basic Allowance for Housing (BAH) Secretarial Waiver – Sergeant First Class (SFC) (the applicant) * Leave and Earnings Statement (LES) for period 1 through 30 September 2022 * DA Form 3508 (Application for Remission or Cancellation of Indebtedness) * statement from spouse FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. 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 in effect, since 2010 he was receiving $2,775.00 in BAH for zip code (,) and according to the Joint Travel Regulation (JTR) dated 20 January 2014, if the BAH drops and the service member did not Permanent Change of Station (PCS), the rate will maintain the rate from December of the prior year. In 2012, he was assigned to, , which was under the BAH rate for, the same as his previous duty location, therefore, he did not have a change in his BAH. He continued to receive $2,775.00 for BAH per month. The BAH rate protection policy states the monthly BAH rate paid must not be reduced as a result of changes in the housing costs, changes in the national monthly housing cost, or a member's promotion. The current BAH rate at the current duty location becomes the member's new protected BAH rate. He provides a screenshot of the BAH rate for zip code () as $2,433.00 per month. In January 2014, the BAH rate for zip code changed the area group from to Cost and decreased to the rate of $1,968.00. When he reenlisted in December 2014, he remained at the duty location of, , which was the same duty location he was located at in October 2012. At this time, the amount he was paid changed from $2,774.00 to $1,968.00, however, it should not have as he was grandfathered at the higher rate. b. On 2 August 2016, Office of the Duty Chief of Staff, G1 Memorandum, Subject: BAH Secretarial Waiver – SFC - - (the applicant) stated effective 14 April 2015 the applicant's request for an Exception to Policy (ETP) to continue to receive the BAH rate for his previous duty station for, , was approved as outlined in All Army Activities (ALARACT) Message Number. The applicant's PCS from, to, authorized a no cost/low cost move, therefore, an inequity existed that would warrant a BAH based on his previous duty station. The applicant continued to commute from the same residence located in, , 18330. He was advised if he decided to move his household goods, his dependents, or if he received his PCS entitlement, the waiver would be void at which point he would be authorized BAH at the current with dependent rate for, , only. The applicant request the Board grant him relief and pay him the debt which was deducted from his final pay while he was on active duty. 3. A review of the applicant's service record shows: a. The applicant enlisted in the Army National Guard (ARNG) on 7 June 1996 and had continuous service through reenlistments and extensions. b. The applicant's Enlisted Record Brief shows his mailing address at,. c. On 21 June 1996, Orders Number 118-032, issued by the Military Entrance Processing Station (MEPS), the applicant was ordered to Initial Active Duty for Training (IADT), effective 3 July 1996 to attend Basic Combat Training (BCT). d. The applicant was released from active duty on 30 August 1996. DD Form 220 (Active-Duty Report) shows the applicant completed 1-month and 28-days of active service upon graduating from BCT. e. On 26 September 1996, Orders Number 182-015, issued by the MEPS, the applicant was ordered to IADT, effective 2 July 1997, to attend Military Occupational Specialty (MOS) training. f. On 24 July 1997, Orders Number 205-00009, issued by Headquarters (HQs), U.S. Army Armor Center and Fort Knox, the applicant was awarded MOS 19K (Armor Crewman), effective 29 August 1997. g. The applicant was released from active duty on 29 August 1997 with an uncharacterized character of service. DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant completed 1-month and 28-days of active service and was awarded MOS 19K. h. On 9 October 2001, Orders Number 282-411, issued by the State of () Department of Military and Veterans Affairs, the applicant was ordered to active duty for special work, effective 3 October 2001. i. On 30 April 2002, Orders Number 120-084, issued by HQs, NJ ARNG Department of Military and Veterans Affairs, the applicant was ordered to Full Time National Guard Duty (FTNGD) in an Active Guard/Reserve (AGR) status, effective 16 May 2002. The additional instruction states the applicant was authorized BAH at the zip code 07865 and his Home of Record (HOR) was at,. j. The applicant was honorably released from active duty on 15 May 2002. DD Form 214 shows the applicant completed 7-months and 13-days of active service. Item 7b (HOR) shows,. k. On 11 April 2005, Orders Number 101-097, issued by HQs, NJ ARNG Department of Military and Veterans Affairs, the applicant was ordered to FTNGD in an AGR status, effective 16 May 2005. The additional instructions stated availability of adequate Government quarters and Government meals will be determined by The Adjutant General upon your reporting to Port, and his HOR was,. l. On 30 May 2008, Orders Number 151-087, issued by HQs, NJ ARNG Department of Military and Veterans Affairs, continued the in an AGR status, effective 7 June 2008. The additional instructions stated availability of adequate Government quarters and Government meals will be determined by The Adjutant General upon your reporting to, and his HOR was,. m. The applicant was honorably released from active duty on 19 June 2008. DD Form 214, item 12b shows,. n. DD Form 214 shows the applicant was ordered to active duty in support of Operation Iraqi Freedom on 20 June 2008. He was honorably released from active duty on 17 June 2009. Item 12b shows,. o. On 9 July 2009, Orders Number 190-425, issued by the State of Department of Military and Veterans Affairs, the applicant was ordered to active duty in an AGR status, effective 18 June 2009, to report to,. The additional instructions stated the applicant's HOR was, and start BAH without dependents, effective 18 June 2009 at. p. On 7 December 2009, Orders Number 341-342, issued by the State of Department of Military and Veterans Affairs, the applicant was continued in an AGR status and was ordered to PCS, effective 30 November 2009, and to report to, ,. The additional instruction stated change BAH and Continental U. S. (CONUS) Cost of Living Allowance (COLA), effective 30 December 2009 to 07090. q. On 3 October 2012, Orders Number 277-371, issued by the State of Department of Military and Veterans Affairs, the applicant was continued in an AGR status and ordered to PCS, effective 1 October 2012, to report to, ,. The additional instructions stated no change to BAH. r. On 19 November 2014, Orders Number 323-326, issued by the State of Department of Military and Veterans Affairs, the applicant was continued in an AGR status and directed to report to, , effective 7 December 2014. Additional instructions stated he was authorized BAH with dependent at, effective 7 December 2014 and his HOR was,. s. On 16 November 2017, Orders Number 320-364, issued by the State of Department of Military and Veterans Affairs, the applicant was continued in an AGR status, effective 7 December 2017. The additional instruction stated BAH waiver at was effective 14 April 2015 and he was authorized BAH with dependents at, effective 7 December 2017, and his HOR was,. t. On 9 December 2018, Orders Number 33-343-0146, issued by the State of Department of Military and Veterans Affairs, the applicant was ordered to active duty in support of Operation Enduring Freedom, effective 4 February 2019. u. The applicant was honorably released from active duty on 3 February 2019. DD Form 214 shows the applicant completed 9-years, 2-months, and 3-days of active service. Item 12b shows Effort, PA. v. On 25 November 2019, Orders Number 329-085, issued by the State of Department of Military and Veterans Affairs, the applicant was ordered to active duty in an AGR status to report to, , , effective 1 December 2019. The additional instructions stated he was authorized BAH and COLA with dependents at effective 1 December 2019 and his HOR was,. w. The applicant was honorably released from active duty on 30 November 2019. DD Form 214, item 12b shows,. x. On 20 December 2021, Orders Number 1580103, issued by the ARNG Army Element Joint Force HQs, the applicant was reassigned to, , effective 17 December 2021. y. The applicant was honorably retired from active duty on 30 September 2022. DD Form 214, item 12b shows,. z. On 14 August 2023, the Defense Finance and Accounting Service provided the applicant's master military pay account showing BAH payments that were collected from the applicant when he retired on 30 September 2022, totaling $8, 884.50. 4. The applicant provides: a. Memorandum for Record dated 3 March 2015, which reiterates his opening statement to the Board. b. On 2 August 2016, Office of the Duty Chief of Staff, G1 Memorandum, Subject: BAH Secretarial Waiver – SFC - (the applicant) stated effective 14 April 2015 the applicant's request for an ETP to continue to receive the BAH rate for his previous duty station for, was approved as outlined in ALARACT Message Number . The applicant's PCS from, to, authorized a no cost/low cost move, therefore, an inequity existed that would warrant a BAH based on his previous duty station. The applicant continued to commute from the same residence located in,. He was advised if he decided to move his household goods, his dependents, or if he received his PCS entitlement, the waiver would be void at which point he would be authorized BAH at the current with dependent rate for, only. c. LES for period of 1 through 30 September 2022 shows in deductions there was a deduction of pay in the amount of $4,131.24 for a status determination. In the remarks there was a status determination held pay balance of $4,131.24 with a total indebtedness in the amount of $8,884.50. He was receiving BAH with dependent for zip code. The start date for the held pay status was 10 September 2022. d. DA Form 3508 dated 20 October 2022, the applicant applied for remission or cancellation of indebtedness in the amount of $8,884.50 for BAH due to injustice while he was assigned in,. The form reiterates his opening statement to the Board. e. Statement from the applicant's spouse wherein she stated in 2012 her husband was reassigned from, , to, , and his BAH rate remained the same. However, when he reenlisted in 2014 and he received an order, his BAH rate changed and the amount was drastically reduced because the rate for Hackettstown was reassessed to a different BAH rate group which lowered the rate. Upon the reduction in the BAH rate, her husband requested a BAH waiver. Unfortunately, the process for the waiver was a long process which caused a significant financial hardship which was a constant topic of discussion with her husband. Finally, the waiver was approved, and he received backpay and at that time they believed this issue was resolved. However, the debt was brought up again at the time of his retirement processing and was deducted from his final paycheck without warning. 5. Defense Finance and Accounting Service advised the applicant had a debt which began in April 2015 which he paid with his final pay upon separation from the Army. It appeared his final pay was in the amount of $1,962.03 which was released in 2022. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was 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 Duty Chief of Staff, G1 Memorandum, the Board agreed with the G-1 memorandum -BAH Secretarial Waiver recommendation for approval based on the exception to policy to continue receiving the BAH rate for his previous duty station for, as outlined in ALARACT Message Number . The Board determined there was sufficient evidence to support repayment of monies collected for overpayment of Basic Allowance for Housing (BAH) in the amount of $8,884.50. Based on the preponderance of evidence and the Chief of Staff G1 waiver approval, the Board agreed relief is warranted. Therefore, the Board granted full relief for repayment of funds erroneously collected at the time of his retirement. 2. Prior to closing the case, the Board did note the analyst of record administrative notes below, and recommended the correction is completed to more accurately depict the military service of the applicant. ? 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: In addition to the administrative notes annotated by the Analyst of Record (below the signature), the Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by notifying DFAS that the applicant’s debt in the amount of $8,884.50 has been relieved and that he is entitled to retroactive backpay of Basic Allowance for Housing (BAH) in the amount of $8,884.50. 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. ADMINISTRATIVE NOTE(S): 1. Reference the enclosed request for correction of military records from the subject individual to correct his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending August 29, 1997, by: a. Delete: * Item 24 (Character of Service): Uncharacterized * Item 14 (Military Education): None b. Add: * Add: Item 24: Honorable * Item 14: Armor Crewman Course, 8-weeks, 1997 2. A review of the records listed below (enclosed) is sufficient to substantiate correction of the DD Form 214 without action by the Board. * DD Form 214 service ending August 29, 1997 * Military Entrance Processing Station Orders Number 118-032 * DD Form 220 (Active-Duty Report) service ending August 30, 1996 * Military Entrance Processing Station Orders Number 182-015 * Headquarters, U. S. Army Armor Center and Fort Knox Orders Number 205-00009 * Army Regulation 635-8 3. Please correct the applicant's DD Form 214 by correcting character of service and military education shown in paragraph 1 above. Provide the applicant a copy of the corrections. Please ensure that the corrections are recorded in the applicant's official military personnel record. REFERENCES: 1. Title 10, USC, 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 Financial Management Regulation (DoD FMR) 7000.14-R, Volume 7a, Chapter 26 (Housing Allowances), establishes policy pertaining to housing allowances. Housing allowances include Basic Allowance for Housing (BAH). a. Paragraph 2602, a service member on Active Duty (AD) 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. b. Paragraph 260501 (BAH Rate Protection), the monthly BAH amount paid to a service member must not be reduced due to changes in housing costs in the Military Housing Area (MHA), changes in the national monthly housing cost, or a service member's promotion. The BAH rate for an Reserve component (RC) member is also protected, provided the RC member does not have a break in active service of 1 or more calendar days. This includes transitions in service status from AGR duty to other AD and back to AGR duty or beginning a new AD order or order extension without a break in active service. If the Service member is demoted or loses authority for BAH, then the Service member's BAH rate protection at the current amount stops when the eligibility to BAH for a given MHA or County Cost Group ends. The current BAH rate at the current duty location becomes the Service member's new protected BAH rate. c. Paragraph 10.1.4 (PCS Between PDSs in Proximity), ordinarily a housing allowance is paid based on the service member's Permanent Duty Station (PDS). The Service may instead pay a housing allowance based on the old PDS rate in a situation involving a low or no-cost move. The determination of whether to base the housing allowance on the old PDS because it is inequitable to base it on the new PDS, is made by the Secretary concerned or through the Secretarial Process. When a service member is ordered on a PCS between PDSs located in proximity to each other, housing allowances continue when the service member continues to commute from the residence occupied while at the old PDS. The housing allowance continues from the time between the service member's detachment from the old PDS and reporting to the new PDS, unless otherwise prohibited. If a Service member is reassigned under the conditions of a low-cost or no-cost PCS and is not authorized a household goods (HHG) move, the housing allowance is based on the old PDS under the following conditions: the service member requested the old PDS housing allowance; and the service- selected decision process determines that it would be inequitable to base the service member's allowances on the housing cost in the service member's new PDS area. d. Paragraph 10.2.2.1 (Low or No-Cost Moves), a service may pay BAH based on the old PDS rate in situations involving low or no-cost moves and for situations in which the service member and dependent are residing separately. The determination of whether it is inequitable to pay BAH based on the new PDS is through the Secretarial process. When a service member is ordered on a PCS between PDSs located in proximity to each other and continues to commute from the residence occupied while at the old PDS, BAH continues from the time between the service member's detachment from the old PDS and reporting to the new PDS, unless otherwise prohibited in this Chapter. If a service member is reassigned under the conditions of a low-cost or no-cost PCS and is not authorized an HHG move, BAH or OHA may be based on the rate for the old PDS if both the following conditions are met: it was requested by the service member; and the decision of whether it would be inequitable or not to base the allowance on the housing cost in the new PDS area to which the service member is reassigned, is determined through the Secretarial Process. 3. ALARACT Message Number 014-2015 (Basic Allowance for Housing (BAH) Waivers), clarifies secretarial waiver guidance for Soldiers to receive BAH at other than the PDS location under certain circumstances. The purpose of this guidance is to stabilize the Soldier's dependents for a relatively short period of time when circumstances require dependents to reside separately. This guidance applies to AD Soldiers (Title 10 and Title 32 United States Code (USC)) authorized BAH at the with- dependent rate. This guidance applies to AD Soldiers with dependents whose dependents reside with them at the previous duty station prior to departing on PCS or at a government approved designated location. Soldiers without dependents may only apply for a waiver under a no/low cost move. Soldiers may continue to receive the higher BAH rate when the assignment orders authorize a no/low cost move and shipment of household goods and movement of dependents are not authorized, the movement designator code in the order identifies a low/no cost move, and the member established the residence while assigned to the previous duty station. Soldiers must have made their housing decision based on the previous assignment, must not move HHG or dependents during the waiver period, and must continue to commute from the same residence. Soldiers do not lose their PCS entitlements under this guidance. However, waivers approved under this guidance become void when Soldiers execute any portion of their PCS entitlements during the waiver period. The Soldier's housing allowance will then be based on the PDS. Soldiers must provide a copy of their approved waiver to their orders issuing authority to have the orders published/amended to reflect the restrictions noted in the approval memorandum. Soldiers must also provide a copy to the servicing finance office. Waivers approved under this guidance are based on the date requests are received at HQDA, DCS G1 or the date specified in the approval memorandum. Waivers will expire one year from the approval date unless otherwise specified in the approval memorandum. 4. Title 10, USC, section 1552 states the Secretary of a military department may correct any military record of the Secretary's department when the Secretary considers it necessary to correct an error or remove an injustice. The Secretary concerned may pay, from applicable current appropriations, a claim for the loss of pay, allowances, compensation, emoluments, or other pecuniary benefits, or for the repayment of a fine or forfeiture, if, as a result of correcting a record under this section, the amount is found to be due the claimant on account of his or another’s service in the Army. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230001267 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1