IN THE CASE OF: BOARD DATE: 3 January 2024 DOCKET NUMBER: AR20230007267 APPLICANT REQUESTS: * to be paid the difference in Basic Allowance for Housing (BAH) between Hawaii and Fort Polk, Louisiana from 10 December 2010 through May 2013 * to be paid Family Separation Allowance (FSA) from 10 December 2010 through May 2013 * recoupment of Cost-of-Living Allowance (COLA) paid in July 2012 APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Orders Number 241-412 Permanent Change of Station (PCS) Orders * All Army Activities (ALARACT) Message Number 021/2008 Exception to Policy (ETP) Guidance for BAH Waivers * Letter from University of Hawaii * DD Form 4 (Enlistment/Reenlistment Document Armed Forces of the United States) * Orders Number 158-020 PCS Orders * DD Form 1172 (Application for Uniformed Services Identification Card) * Memorandums, Subject: Request ETP regarding BAH, 28 March 2011 and 29 March 2011 * Leave and Earning Statement (LES) 1-31 March 2011 * Memorandum, Subject: Request ETP regarding BAH, 18 April 2011 * Document Titled Graduate Assistant Tuition Exception * Letter from Defense Finance Accounting Service (DFAS) * Letter to DFAS 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: a. He is requesting to be paid the difference in BAH between Hawaii and Fort Polk, LA, as well as get FSA between 10 December 2010 and May 2013. Additionally, he asks DFAS to recoup his COLA that he was paid in July 2012 as DFAS erroneously paid him due to a Congressional he had filed. b. On 7 June 2010, he received PCS orders, which authorized his dependents to remain in Hawaii. He initially received BAH and FSA; however, he was later denied the payments by the Army G-1. c. He filed a Secretarial Waiver for BAH based on the guidance in ALARACT Message Number 021/2008 at the guidance of DFAS, Fort Polk. This was denied in 2017. d. He submitted his BAH waiver packet to legal for review and legal determined he was in compliance with BAH ALARACT Message Number 021/2008 and requested to have his BAH pay to reflect Hawaii BAH rather than Fort Polk BAH. e. In a memorandum provided by Mr. , director of DFAS, in response to his Congressional, was that the applicant's request for a BAH waiver for PCS reasons was not authorized as he was allegedly not on Title 10 or Title 32, at the time of his request. He attached his DD Form 4, dated 4 June 2010 for consideration. f. He forwarded the legal review to DFAS and the G-1. DFAS was prepared to reimburse him; however, the Army G-1 refused to comply. He has been continuously working on getting compensated for the past 12 years; however, the Army G-1 continues to deny him although DFAS is still willing to reimburse him pending G-1 authorization. g. DFAS erroneously paid him COLA in the amount of $3,290.41 in response to his Congressional. He was already paid COLA when he was on Temporary Duty (TDY). 3. The applicant's service record contains the following documents: a. DD Forms 4 show the applicant enlisted/reenlisted in the Army on: * 14 April 2005, for a period of 4 years * 26 April 2007, for a period of 4 years * 4 June 2010, for a period of 4 years * 1 October 2012, for a period of 6 years * 6 April 2016, indefinitely b. Orders Number 158-020, published by Headquarters, Tripler Army Medical Center (TAMC), dated 7 June 2010 ordered the applicant to PCS from TAMC, Hawaii, to Fort Polk, with a report date of 10 December 2010 with TDY at Fort Leonard Wood, MO, from 5 July 2010 through 20 October 2010. The orders state his command sponsored dependents were authorized to remain at current location (Honolulu, Hawaii). c. Memorandum, Subject: COLA ETP for the applicant, states in effect: (1) The applicant's request for ETP to retain COLA for TAMC, Hawaii, for the period of 5 July 2010 through 30 November 2010 was approved. This exception is in effect as the applicant's dependents would remain in Hawaii, while the applicant was on TDY. (2) PCS Orders Number 158-020 dated 7 June 2010 assigned the applicant to Fort Polk, with TDY enroute to Fort Leonard Wood, to attend Apprentice Special Agent Course. (3) The applicant's exception was based on Joint Federal Travel Regulation paragraph U9220, which allowed COLA extensions thru the Secretarial process after the Soldier departed the Permanent Duty Station (PDS) for a new PDS. During the exception period the applicant was not authorized family separation housing (FSH) or FSA. d. Orders Number 018-308, published by Headquarters, Joint Readiness Training Center and Fort Polk, dated 18 January 2013, ordered the applicant to PCS from Fort Polk, to Camp Zama, Japan, with a report date of 10 May 2013. The orders did not allow for family travel. The applicant was authorized household good shipment and movement of dependents to a designated location stateside. The applicant's dependents resided in Honolulu, Hawaii. e. DA Form 5960 (Authorization to Start, Stop, or Change Basic Allowance for Quarters (BAQ) and/or Variable Housing Allowance (VHA)), dated 9 April 2013, shows the applicant's duty location was Camp Zama, Japan. He had dependents who were living in Honolulu, Hawaii. f. DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings), dated 4 February 2022 shows the applicant was found physically unfit and the board recommended a rating of 100 percent and that he be placed on the Temporary Disability Retired List (TDRL) with a reexamination in November 2022. The applicant concurred with the findings and waived a formal hearing in his case. He did not request reconsideration of his Department of Veterans Affairs ratings. g. DD Form 214 (Certificate of Release or Discharge from Active Duty) honorably transferred the applicant to U.S. Army Reserve Control Group (Retired) on 7 June 2022. He completed 17 years, 1 month, and 24 days of active service with 4 months and 24 days of prior active service and 5 years, 10 months, and 28 days of prior inactive duty service. He was transferred due to disability combat related. h. DA Form 199, dated 11 July 2023, shows the PEB found the applicant physically unfit and recommended a rating of 100 percent and that he be permanently retired for disability. The applicant concurred with the findings and waived a formal hearing in his case. i. Orders Number D206-0023, published by Headquarters, United States Army Physical Disability Agency, dated 25 July 2023, removed the applicant from the TDRL and permanently retired him due to disability on 25 July 2023. 4. The applicant provides the following documents, not previously considered: a. Orders Number 241-412, published by the United States Army Installation Management Command Europe, dated 29 August 2007, ordered the applicant to PCS to TAMC, Hawaii, with a report date of 10 March 2008. b. ALARACT Message Number 021/2008 (Exception to Policy Guidance for BAH Waivers), dated 5 February 2008, states, in pertinent part, when circumstances require dependents to reside separately from the member the Secretary of the Army has approved four distinct categories for consideration under this authority: (a) Soldiers who receive PCS orders to units deploying within 12 months of arrival; (b) Soldiers who have dependents in educational programs they do not wish to disrupt; (c) Soldiers who wish to have their spouses continue employment at the old duty station; and (d) Soldiers who have dependents with medical considerations that warrant leaving them at the old duty station. Applicability for the policies applied to Active Duty Soldiers (Title 10 and Title 32 USC) authorized BAH. The entire ALARACT Message is available for the Board's consideration. c. Letter from University of Hawaii, to the applicant's wife, dated 8 April 2010 states the applicant's wife had been admitted for the fall 2010 semester to the Nutrition-PhD program. d. DD Form 1172 dated 17 March 2011, shows the applicant's dependents as his wife and son and their address was in Honolulu, Hawaii. e. Memorandum, Subject: ETP regarding BAH for the applicant, dated 28 March 2011, states: (1) The applicant requests consideration for an ETP in order to collect BAH with the locality of his two dependents, his wife and son, in Honolulu, Hawaii. (2) The applicant's wife was enrolled in the PhD Program in Nutrition at the University of Hawaii. She received her letter of acceptance on 8 April 2010, prior to the applicant receiving notification to PCS. The applicant attempted to be stationed in Hawaii following his training; however, it was not granted. The applicant asked the financial hardships and education impediment this PCS would cause he and his family be considered if the ETP was not authorized. (3) The initial ETP was intended to support the exception for both the TDY and PCS time frames; however, after further review, the ETP only extended to the TDY time frame. The applicant asked the ETP be dated to 21 July 2010, the initially intended time frame of the original request. If the COLA was also authorized, he asked it to be included in the ETP memorandum. The Defense Military Pay Office approved the BAH and COLA based on his orders. If the exception was not authorized, he owed $7,353.17 in back pay. f. Memorandum from the applicant's commander, Subject: Request ETP regarding BAH for the applicant, dated 29 March 2011, states: (1) The commander fully supported the request and approval of the applicant's request for an ETP in order to collect BAH with the locality of his two dependents in Honolulu, Hawaii. (2) ALARACT Message Number 021/2008 provided policy guidance for secretarial waivers for BAH in support of the Chief of Staff of the Army initiative number 2 providing greater flexibility to Soldiers and their families. The applicant's spouse entered into an education program prior to him receiving military orders and could not transfer her credits to another institutional program. There was no opportunity to complete the doctorial degree online and the applicant's spouse was forced to remain in Hawaii or forfeit the time/money already invested. (3) The initial ETP approved, prior to the applicant leaving his prior duty station, was intended to cover the timeframe until his spouse completed the educational program; however, it only cited the TDY time while the applicant attended the Criminal Investigation Division Basic Special Agent Course at Fort Leonard Wood. (4) The applicant in-processed his unit at Fort Polk, and it took several months before finance discovered the BAH and other entities were not covered in the ETP. His company commander requested the ETP have an effective date of 21 July 2010 to cover the applicant from the timeframe of the prior submitted ETP. If the ETP was not authorized, the applicant would owe $7,353.17 to the U.S. Government. g. LES from 1-31 March 2011, which shows the applicant received a debt for BAH in the amount of $2,320.50, COLA in the amount of $1,396.58, and FSH in the amount of $1,966.67. His total indebtedness was $7,353.17. h. Memorandum from the applicant's battalion commander Subject: Request ETP regarding BAH for applicant, dated 18 April 2011, supported the applicant's request for ETP. The memorandum mirrored the memorandum from the applicant's commander and is available for the Board's consideration. i. Document Titled Graduate Assistant Tuition Exemption, which was used to request graduate assistant tuition exemption. The document includes payment history for the applicant's spouse. Both documents are available for the Board's consideration. j. Letter from DFAS to the applicant's Senator, dated 13 September 2012, states: (1) The letter was in response to the Senator's inquiry on behalf of the applicant concerning his request for an ETP to receive BAH and COLA for his wife and child living in Hawaii while he was on TDY orders. (2) The applicant's request to receive BAH was disapproved by Department of the Army, Deputy Chief of Staff, G-1, under provisions outlined in ALARACT Message Number 021/2008 which states that exceptions apply to active-duty Soldiers under Title 10 and Title 32 USC Orders. This message was included with the Senator's inquiry. The applicant's TDY orders did not fall under this category; therefore, the requested exception was disapproved. (3) Regarding the applicant's request for ETP to receive COLA, the exception was approved per memorandum, dated 21 July 2010 only for the period of TDY of 5 July 2010 through 30 November 2010 as the applicant's dependents were not authorized to travel with him. On 28 August 2012, the applicant was paid COLA for the approved period in the amount of $3,290.41 and the funds would be sent via electronic funds transfer to his bank account on 30 September 2012. k. Letter from a legal assistance attorney to Department of the Army, Office of the Chief of Staff G-1 and DFAS, dated 11 October 2017, states: (1) The legal assistance attorney was writing on behalf of the applicant. On 7 June 2010, the applicant received PCS orders from TAMC, Hawaii to Fort Polk. Before PCSing to Fort Polk, the applicant was required to do TDY at Fort Leonard Wood. On his orders, it authorized his command sponsored dependents to remain at their current location of Honolulu, Hawaii. The applicant was initially granted an ETP for BAH waiver based on the 2008 ALARACT Message. This authorization was due to his spouse's enrollment into the University of Hawaii PhD program. Unfortunately, his authorization was short lived. By November 2010, the applicant's waiver was rescinded, and the applicant was forced to foot the expense of keeping his family in Hawaii, while he moved to Fort Polk. (2) Based on the 2008 ALARACT Message, it appeared the applicant met the requirements to fulfil the ETP for his BAH waiver. In the summer of 2010, the applicant was an active duty Soldier. He provided a written request for ETP. The request was endorsed by a Field Grade Officer. He provided documentation showing his spouse's acceptance and enrollment into the PhD program at the University of Hawaii. Finally, he provided proof of payment for his spouse's tuition. (3) Based on the applicant's 7 June 2010 PCS orders, it appears that this ETP was intended to cover the timeframe until the applicant's spouse completed her PhD program, not just the applicant's TDY. Therefore, the legal assistant attorney respectfully requested G-1 and DFAS reconsider the issue and adjust the applicant's BAH pay to reflect the income he should have been afforded. 5. On 8 September 2023, the Chief, Military Pay Branch, Office of the Deputy Chief of Staff, G-1 provided an advisory opinion, which states: a. After careful review of the information provided in the application, G-1 recommended the Board disapprove the applicant's application for administrative relief to receive BAH and FSA. b. The applicant received a Secretarial waiver from G-1, dated 21 July 2010, to continue to receive COLA while he was reassigned on PCS with TDY to attend training at Fort Leonard Wood. The Secretarial waiver authorized the applicant to continue to receive COLA for his dependents from 5 July 2010 through 30 November 2010 based on his previous assignment at TAMC, Hawaii. c. The Army's Compensation Chief disapproved the applicant's request to continue to receive BAH and COLA based on TAMC. Since his reassignment date to return to the States was preestablished, leaving his dependent spouse in place after being notified of his change in station was outside the scope and intent of the Army's waiver program. Therefore, the applicant is only authorized to receive a with-dependent BAH based on Fort Polk, effective his report date. 6. On 15 September 2023, the advisory opinion was provided to the applicant to allow him the opportunity to respond. He did not respond. ? 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 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- Military Pay Branch advisory opinion, the Board concurred with the advising official finding the applicant’s reassignment date to return to the states was preestablished, whereas leaving his dependent spouse in place after being notified of his change in station was outside the scope and intent of the Army’s waiver program. The Board determined based on the guidelines set forth, the applicant is only authorized to receive a with-dependent BAH rate based on his duty station of Ft. Polk effective his report date. The Board found insufficient evidence to support the applicant’s contentions for recoupment of Cost-of-Living Allowance (COLA) paid in July 2012, be paid Family Separation Allowance (FSA) from 10 December 2010 through May 2013 and be paid the difference in Basic Allowance for Housing (BAH) between Hawaii and Fort Polk, Louisiana from 10 December 2010 through May 2013. Based on this, the Board denied relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION ? OARD 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 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, Volume 7A states 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. This is referred to as BAH. Ordinarily housing allowance is based on the Service member's PDS. However, the Service may determine that a Service member's assignment to a PDS, or the circumstances of that assignment, requires a dependent to reside separately. Authorization or approval of a housing allowance based on the dependent's location or old PDS is through the Service Secretary or through the Secretarial Process. The Secretary concerned may determine that other circumstances may require a dependent to reside separately from the Service member and authorize or approve a housing allowance payment based on either the dependent's location or the old PDS. If the Secretary concerned determined that an additional reason for a BAH or Overseas Housing Allowance (OHA) waiver was acceptable, the Secretarial Process may then be used to authorize or approve individual cases based on that determination. BAH or OHA is based on the old PDS in a situation in which the Service member is making a PCS to a dependent-restricted or unaccompanied assignment OCONUS and the dependent remains at the Service member's old PDS. If the dependent of a Service member assigned to an unaccompanied tour moves to a designated place, the Service member is authorized BAH or OHA based on the dependent's location. Payment based on the old PDS is not authorized. Service Member With-dependent Serves Unaccompanied or Dependent-Restricted Tour or "Unusually Arduous Sea Duty" is authorized a with-dependent housing allowance based on the dependent's location. The housing allowance may be based on the old PDS if the dependent remained in the residence shared with the Service member before the permanent change of station, did not relocate, and is not in Government quarters. The housing allowance for the dependent's location may be authorized or approved to be effective on the date of the lease. a. Chapter 68 (Cost of Living Allowance Outside the Continental United States (OCONUS COLA) and Temporary Lodging Allowance (TLA) provides that OCONUS COLA is a non-taxable allowance that offsets the higher prices of goods and services, excluding housing, in foreign countries, U.S. territories, Alaska, and Hawaii. OCONUS COLA equalizes purchasing power so that a Service member can purchase the same level of goods and services OCONUS as he or she could if stationed inside the continental United States (CONUS). To be eligible for OCONUS COLA, the dependent must be command sponsored. b. A Service member with a dependent is authorized OCONUS COLA based on the number of command sponsored dependents at the PDS vicinity, regardless of Government dining facility availability. c. Generally, OCONUS COLA starts on the day a Service member reports to a new PDS; the effective day of a home port change, or the day his or her dependent arrives before the Service member at the PDS. d. OCONUS COLA stops the day before a Service member departs from OCONUS on a PCS order unless an extension occurs. 3. Family Separation Allowance (FSA) or Family Separation Housing (FSH) allowance is payable when dependent transportation to the PDS is not authorized at the governments expense, the dependent does not reside within the vicinity of the PDS or when government quarters are not available for assignment of the Service member. There are two types of FSH: FSH B and FSH O. a. FSH-B is payable for an assignment at a PDS in Alaska or Hawaii or to a PDS in the CONUS to which concurrent travel has been denied. FSH-B is payable in a monthly amount equal to the without-dependent BAH rate applicable to the Service member's grade and PDS. b. FSH-O is payable for an assignment at a PDS outside the United States. FSH-O is payable in a monthly amount up to, and under the same conditions as, the without- dependent OHA rate applicable to the Service member's grade and PDS. 4. Joint Travel Regulation, chapter 10 (Housing Allowances), part E (Assignment Situations), section 5 (Member with Dependents Serves an unaccompanied/Dependent­ Restricted Tour or Unusually Arduous Sea Duty Tour-Members Only), paragraph 10408 (Member with a Dependent Serves an Unaccompanied/ Dependent Restricted Tour or Unusually Arduous Sea Duty Tour) subparagraph A (General Rules): a. Subparagraph 1 provides that a member with a dependent who serves an unaccompanied/dependent restricted tour (see Department of Defense Instruction 1315.18 (Procedures for Military Personnel Assignments)) OCONUS or unusually arduous sea duty outside the U.S. is authorized a dependent's location-based with- dependent housing allowance, or an old PDS-based with-dependent housing allowance if the dependent remained in the residence shared with the member before permanent change of station, did not relocate, and is not in Government quarters. b. Subparagraph 2 provides that if single-type Government quarters are not available for assignment to the member at the PDS OCONUS, and the dependent does not reside at or near the PDS, then FSH-O/FSH-B is also authorized. A member assigned to unusually arduous sea duty is not authorized FSH since Government quarters are available for assignment. 5. ALARACT Message Number 021/2008 (Exception to Policy Guidance for BAH Waivers), dated 5 February 2008, states when circumstances require dependents to reside separately from the member the Secretary of the Army has approved four distinct categories for consideration under this authority: (a) Soldiers who receive PCS orders to units deploying within 12 months of arrival; (b) Soldiers who have dependents in educational programs they do not wish to disrupt; (c) soldiers who wish to have their spouses continue employment at the old duty station; and (d) soldiers who have dependents with medical considerations that warrant leaving them at the old duty station. Applicability for the policies applied to Active Duty Soldiers (Title 10 and Title 32 USC) authorized BAH. 6. Title 31, USC, section 3702, is the 6-year barring statute for payment of claims by the government. In essence, if an individual brings a claim against the government for monetary relief, the barring statute says that the government is only obligated to pay the individual 6 years from the date of approval of the claim. Attacks to the barring statute have resulted in litigation in the U.S. Court of Federal Claims. In the case of Pride versus the United States, the court held that the Board for Correction of Military Records (BCMR) is not bound by the barring act, that the BCMR decision creates a new entitlement to payment and the 6 years starts running over again, and that payment is automatic and not discretionary when a BCMR decision creates an entitlement. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230007267 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1