IN THE CASE OF: BOARD DATE: 10 August 2021 DOCKET NUMBER: AR20200006642 COUNSEL FOR THE APPLICANT REQUESTS: This case comes before the Army Board for Correction of Military Records (ABCMR) on a remand from the U.S. Court of Federal Claims in v. United States, case number. The Court directs the ABCMR to consider the applicant's request for correction of his records as follows: a. Issue a letter of apology to the applicant's family at the Headquarters Department of the Army (HQDA) level. Acknowledge that the Army was both negligent in its treatment of his pay and untruthful in its October 2018 Motion to Dismiss. b. Show he was authorized payments of primary residence-based Basic Allowance for Housing (BAH) at the with-dependent rate for his Florida primary residence and Overseas Housing Allowance (OHA) at the without dependent rate for his housing in the Wiesbaden civilian community. He requests that this change be effective from the date that he occupied private sector housing on 5 December 2016 through his final Leave Earning Statement (LES) period on 1 October 2019. c. Show he is entitled to primary residence-based BAH for his tour duration, as his orders allowed him to maintain a primary residence in situations where the Army declines to authorize Household Good (HHG) shipment for overseas missions of less than a year. He is also authorized a housing allowance for the civilian community because the Army declined to assign him Government quarters. In the alternative, amend the orders assigning him to duty in Germany to show he was in a temporary change of station (TCS) status [and thereby authorized per diem for the duration of his tour], which would provide a higher monetary entitlement. d. If the Board declines a TCS solution, authorize him per diem for the period 17 May 2019 through 22 September 2019 in addition to reinstatement of his primary residence BAH. Payment of per diem would compensate him for additional expenses he incurred when his orders were extended due being under investigation after he had relinquished his off-post housing and sold his vehicle. e. Compensate him in the amount of $540.70 for his June 2019 flight to and from the United States which he would not have had to pay for out of his own pocket but for the investigation that delayed his departure from Germany. f. Promote him to lieutenant colonel (LTC) when he becomes eligible for that grade in August 2021. g. Assist him in gaining a Joint Professional Military Education (JPME) slot at the Naval Postgraduate School (NPS) in Monterey, CA, so he may simultaneously complete his Intermediate Level Education (ILE) and his Master of Arts degree. h. Grant him assignment of choice in the form of acceptance into the U.S. Army Funded Legal Education Program (FLEP) or a 3-year Advanced Civil Schooling (ACS) assignment. j. Fully investigate the unlawful and retaliatory actions of those within the Army as cited in his statement. h. Expunge any and all traces of records having accused the applicant of wrongdoing. COUNSEL'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) (Not available for viewing) * In The United States Court of Federal Claims, Plaintiffs, v. The United States, dated 19 October 2018 and 29 August 2019 * Patriots Law Group Legal Brief with Exhibits 1 thru 93 * Exhibit 1: U.S. Army Human Resources Command (HRC) Orders Number HR- 6273-00013, dated 29 September 2016 * Exhibit 2: Memorandum for Record, issued by U.S. Army Garrison Wiesbaden, Subject: Permission to Reside Off-Post, dated 13 October 2016 * Exhibit 3: DD Form 2367 (Individual Overseas Housing Allowance (OHA) Report), signed on 8 November 2016 * Exhibit 4: Defense Finance and Accounting Service (DFAS) Leave and Earnings Statements (LES) for the period ending 30 December 2016 and 5 April 2017 * Exhibit 5: Headquarters, Department of the Army (HQDA). Pay Inquiry Response to [applicant] from Chief, Military Pay, dated 16 September 2019 * Exhibit 6: Memorandum for Record, issued by 266th Financial Management Support Center, Subject: Housing Allowance Entitlements for Federal Case, dated 18 October 2018 * Exhibit 7: Email from U.S. Army Reserve Command (USARC) to applicant, subject: RE: Attached for a policy review [applicant], dated 30 March 2017 * Exhibit 8: Various emails * Exhibit 9: In The United States Court of Federal Claims, Plaintiffs, v. The United States, Defendant, Motion to Dismiss for Lack of Subject Matter Jurisdiction or in the Alternative, Motion to Remand with Appendix, dated 19 October 2018 * Exhibit 10: 266th Financial Management Support Center: Pay Entitlements Overview * Exhibit 11: HQDA Response to Pay Inquiry 1909003 from USARC * Exhibit 12: USAREUR: Common Questions for Reserve Components (RC) Permanent Change of Station (PCS) to USAREUR * Exhibit 13: Recorded conversations between applicant and dated 21 February 2017 * Exhibit 14: HQDA Response to Pay Inquiry, dated May 2019 * Exhibit 15: Memorandum for Record, issued by the 266th Financial Management Support Center, Subject: Statement of Understanding for Army Reserve or National Guard Personnel on Unaccompanied Orders Regarding Entitlement of BAH, Family Separation Housing – Overseas (FSH-O) and Family Separation Allowance (FSA), dated 22 January 2018 * Exhibit 16: Memorandum, issued by Headquarters Battalion, USAREUR, Subject: Pay Inquiry and Entitlements Update Request, dated 16 October 2018 * Exhibit 17: Emails from applicant to dated March 2017 * Exhibit 18: Email from USAREUR to applicant, Subject: Entitlement Clarification, dated 31 January 2018 * Exhibit 19: LES, dated 16 August 2019 * Exhibit 20: Office of the Inspector General (IG) – Europe Response, dated 29 March 2019 * Exhibit 21: USAREUR IG emails concerning pay determination from May thru July 2019 * Exhibits 22, 23, and 24: DA Forms 2142 (Pay Inquiry), dated 3 September 2019, 9 September 2019, and 12 September 2019 * Exhibit 25: Memorandum, issued by the U.S. Property and Fiscal Office, Subject: Request for Pay Inquiry Adjudication or Elevation, Applicant, dated 14 October 2019 * Exhibit 26: In The United States Court of Federal Claims, Plaintiffs, v. The United States, Defendant, filed 9 October 2018 * Exhibit 27: DFAS LES for the period ending 15 January 2019 * Exhibit 28: Reserve Pay Entitlements Regulations * Exhibit 29: Office of the General Counsel Letter to the Honorable 2006 and the Honorable dated 3 April 2006 * Exhibit 30: USAREUR, Common Questions for RC Soldiers PCS'ing to USAREUR * Exhibit 31: Memorandum, Office of the Deputy Chief of Staff (CoS) G-1, Subject: Request for Regulatory Review Regarding Title 37, United States Code (USC), section 403 (g), RC without Dependents, dated 29 May 2019 * Exhibit 32: Memorandum Thru: USAREUR, Subject: Pay Inquiry of behalf of [Applicant] Requesting Definitive Guidance Regulatory Justification, and Change Directive (if applicable), dated 20 February 2017 * Exhibit 33: All Army Activity (ALARACT) Message Number 384/2011, dated 17 October 2011 * Exhibit 34: Audio File (audio file was not found; however, counsel quoted the conversation in his legal brief) * Exhibit 35: Handwritten notes/letter, undated * Exhibit 36: General Courts-Martial of the United States U.S. Army Trial Judiciary, Fifth Judicial Circuit, dated 28 May 2019 and 10 June 2019 * Exhibit 37: Email from USAREUR to applicant, dated 24 February 2020 * Exhibit 38: Office of the Deputy CoS, G-1, Compensation and Entitlements Division to the Honorable dated 24 October 2017 * Exhibit 39: DFAS letter to Colonel dated 21 March 2018 * Exhibit 40: US Army Installation Management Command (USAIMC) Orders and Amendments BL-120-0007 (A1-A3), dated 30 April 2014. 13 September 2014, 13 March 2015, and 12 September 2015 * Exhibit 41: LES * Exhibit 42: DA Form 2823 (Sworn Statement), dated 23 May 2019 * Exhibit 43: Email from USAREUR to the Applicant * Exhibit 44: DA Form 2142, dated 11 December 2018 * Exhibit 45: Email from the Garrison Support Officer to the Applicant, undated * Exhibit 46: DA Form 5960 (Authorization to Start, Stop, or Change Basic Allowance for Quarters (BAQ) (now BAH) and/or Variable Housing Allowance, dated 25 October 2017 * Exhibit 47: In The United States Court of Federal Claims, Plaintiffs, v. The United States, Defendant, filed on 4 January 2019 * Exhibit 48: Criminal Investigation Division (CID) Form 94 (Agent's Investigation Report), dated 25 March 2019 * Exhibit 49: DA Form 2823, dated 13 May 2019 * Exhibit 50: Email, dated 8 February 2019 * Exhibit 51: DD Form 1351-2 (Travel Voucher or Subvoucher) for the period of 1 October to 17 December * Exhibit 52: Applicant's Defense Travel System (DTS) Authorizations from May 2017 to February 2019 * Exhibit 53: Memorandum, issued by USAREUR, Subject: Appointment as Investigating Officer, dated 7 May 2019 * Exhibit 54: DA Form 2823, dated 13 May 2019 * Exhibit 55: Memorandum Thru, issued by USAREUR, Subject: Request for Command Redress; and Submission of Prior Protected Communications on Behalf of the Accused (Applicant), dated 26 May 2019 * Exhibit 56: Email from USAREUR to Applicant, dated 30 May 2019 * Exhibit 57: Office of the IG, Assistance Division, to the Applicant, dated 1 July 2019 * Exhibit 58: DA Form 1574-1 (Report of Proceeding by Investigating Officer), dated 7 May 2019 * Exhibit 59: Emails * Exhibit 60: Memorandum, issued by USAREUR, Subject: Filing Determination Response to General Officer Memorandum of Record (GOMOR) (Applicant), dated 9 August 2019 * Exhibit 61: Memorandum for Applicant, issued by USAREUR, Subject: Referral of Report of Investigation, dated 12 August 2019 * Exhibits 62 thru 66: Emails * Exhibit 67: Memorandum for Deputy Commanding General, Subject: Request for Redress Under Title 10, USC, section 938, Article 138 (Applicant), dated 5 September 2019 * Exhibit 68: Email * Exhibit 69: DA Form 1574-1, dated 13 September 2019 * Exhibit 70: Memorandum for Applicant, issued by USAREUR, Subject: Memorandum of Admonishment, dated 16 September 2019 * Exhibit 71: Memorandum, Subject: Findings and Recommendations for Army Regulation (AR) 15-6 (Procedures for Administrative Investigations and Board of Officers) Investigation into Applicant Improperly Approving Authorizations and Vouchers in DTS, undated * Exhibit 72: DA Form 638 (Recommendation for Award), dated 4 October 2019 * Exhibit 73: DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)), dated 17 September 2019 * Exhibit 74: DA Forms 67-10-2 (Field Grade Plate Officer Evaluation Report (OER)) * Exhibit 75: General Court-Martial of the United States U.S. Army Trial Judiciary, Fifth Judicial Circuit, dated 8 July 2019 * Exhibit 76: DA Form 2142, dated 27 August 2019 * Exhibit 77: Email * Exhibit 78: DD Form 1351-2 * Exhibit 79 and 80: Emails * Exhibit 81: DD Form 1610 (Request and Authorization for Temporary Duty (TDY) Travel of Department of Defense (DOD) Personnel), dated 22 February 2019 * Exhibit 82: Email * Exhibit 83: Memorandum for See Distribution, issued by U.S. Army CID, Subject: CID Report – Crime Prevention Flyer, dated 24 January 2017 * Exhibit 84: Memorandum for See Distribution, issued by U.S. Army CID, Subject: Crime Prevention Survey, dated 24 August 2017 * Exhibit 85: Memorandum for See Distribution, issued by U.S. Army CID, Subject: Crime Prevention Flyer, dated 7 January 2020 * Exhibit 86 thru 89: Emails * Exhibit 90: Office of the IG – Europe Letter, to Applicant, dated 24 March 2020 * Exhibit 91: Affidavit from Applicant, dated 17 March 2020 * Exhibit 92: Defense Office of Hearings and Appeals Claims Appeals Board Decision, undated * Exhibit 93: Case File Worksheet, generated on 31 March 2020 FACTS: 1. The applicant defers to counsel. 2. Counsel for the applicant states: a. The Army's decision to deny his client BAH is contrary to law and regulation and is otherwise unjust, as expressed in detail in the accompanying memorandum, with exhibits. b. A material error and injustice exists based on an incorrect and unlawful decision to deny his client, and all other current and prospective plaintiffs with dependents in W-, their full BAH entitlements, pursuant to Title 37, USC, section 403 and the applicable Joint Travel Regulation (JTR) in effect during the relevant time. In 2017, the applicant was subjected to a retroactive recoupment based upon the Army's sudden decision to employ an unlawful cost-savings measure, creating an extreme financial hardship for the applicant and Soldiers like him. In addition to the recoupment, he was thereafter improperly denied his full BAH entitlements through the duration of his tour of duty, which was from 11 October 2016 through 6 November 2018. c. The applicant is among six Soldiers who are plaintiffs in the above-named lawsuit that had dependents when they were mobilized for a Contingency Operation (CONOP) and sent to Europe. This submission will serve as the basis for why relief is warranted for all six of these similarly-situated Soldiers, because they were all improperly denied their full BAH entitlements for the same reasoning. Additional submissions on behalf of the five other Soldiers with dependents are forthcoming and will identify the specific corrections requested for each of those individuals. However, the arguments for why they were subjected to a material error and injustice will remain the same. d. This Board has already received an application for correction on behalf of a Soldier without dependents, Major This and all other submissions produced pursuant to the Court of Federal Claims remand in case number hereby incorporate submission by reference. In that submission, it was brought to this Board's attention that at the urging of the DOD in 2006, Congress amended Title 37, USC, section 403. This change was designed to permit the military services to pay a second BAH entitlement to RC members without dependents because at the time, the services had been paying a far costlier per diem due to DOD's belief that the statute did not authorize them a second BAH entitlement. However, such a change for RC members with dependents was unnecessary in the DOD's view, because payment of a second BAH entitlement was already accounted for and being paid. e. The crux of the issue here revolves around when a RC member is mobilized on a CONOP, but is not authorized the shipment of HHGs. See exhibit 1 (noting HHG shipment not authorized). In such an instance, pursuant to a Reserve-specific provision of the JTR, i.e., paragraph 100906, the member shall be provided BAH for his primary residence. The JTR, Appendix A defines primary residence, stating, "For a RC member ordered to active duty, the primary residence is the dwelling (e.g.., house, townhouse, apartment, condominium, mobile home, houseboat, vessel) where the RC member resides before being ordered to active duty." For RC members serving on a CONOP, paragraph 100906.A.7 states, "A RC member called or ordered to active duty in support of a CONOP is authorized BAH or Overseas Housing Allowance (OHA) based on the primary residence beginning on the first day of active duty. This rate is authorized even for duty of 30 or fewer days. This rate continues for the duration of the tour unless the RC member is authorized PCS HHG transportation." (Note, that this paragraph does not differentiate between those with dependents and those without dependents. Meaning, this provision covers both circumstances, and the entitlement is paid regardless of a dependent's location because the primary residence location controls.). f. In addition, as here, when a RC member arrives to the mobilized location (i.e., the Permanent Duty Station (PDS)) and no Government-provided housing is available, a non-availability statement is issued, which authorizes the RC member to also receive an OHA for the PDS. This OHA covers the cost of the off-base housing that the member was forced to occupy in lieu of Government quarters. See applicant's statement of non- availability and DD Form 2367 – Request for OHA. In this instance, the RC member must receive two BAH entitlements, irrespective of whether the Soldier has dependents or not. g. In plain terms, because RC members are mobilized away from their primary residence, they are entitled to BAH to cover the costs of the home that they will eventually return to after their CONOP orders expire. This differentiates RC members from Active Component (AC) members who receive PCS orders that authorize shipment of HHGs. AC members do not have an expectation that they will return to their primary residence like RC members. Instead, AC members typically PCS from one place to the next, and their HHGs follow them from location to location. RC members are civilian Soldiers who eventually return to their civilian jobs located near their primary residences. h. As the RC member without dependents scenario makes clear, BAH entitlements for RC members are based on the need to maintain the primary residence because all the HHGs remain there, and the RC members expect to return there. This remains no different for RC members with dependents, except for the fact that the with-dependent rate is authorized in such an instance. However, the Army began to deny the applicant his primary residence BAH, retroactively in fact, when he notified the Army that his dependents joined him at their own expense in his off-base location near his PDS in Europe. The applicant's LES indicating assignment of debt due to alleged overpayment of BAH monies. Here, the Army has erroneously applied a "90 continuous day rule" from JTR, paragraph 100904, which is applicable only to AC members who receive BAH based on their dependents' locations versus RC members paid according to the location of their primary residences. In doing so, the Army has committed a material error and injustice by rendering the Reserve-specific section of the JTR, paragraph 100906, entirely meaningless. i. As explained in greater detail below, the location of one's dependents has no applicability to RC members who are not authorized HHG shipments. A review of the JTR shows that dependent-location BAH is regularly referenced as it pertains to AC members. However, primary residence BAH is only referenced with respect to RC members for the reasons set forth above. If a RC member's dependents choose to live with their parents in an entirely different location from their primary residence, or they choose to be with the RC member at their own expense, the continuing need for a primary residence BAH remains because HHG were not authorized for shipment to the mobilized location. j. The present situation where RC members without dependents receive Government quarters and also receive primary residence BAH demonstrates the material error and injustice that exists for RC members in the applicant's circumstances. For RC members that receive Government quarters, the Army does not dispute that it provides Government housing at no cost, in addition to a primary residence BAH to account for the home the RC member must maintain from where he was mobilized (i.e., the equivalent of two housing entitlements). This is true for both those RC members with and without dependents. However, the Army has taken the stance that for those unfortunate enough not to receive the free benefit of Government housing, i.e., those forced to live "on the economy," they must endure the incredible financial hardship of maintaining two households with only one housing entitlement. This is arbitrary and capricious. The only interpretation that can be reasonably ascertained--given the existence of Reserve-specific JTR provisions that focus on RC member primary residence locations (JTR paragraph 100906)--is that RC members who are forced to live off-base at the mobilized location are entitled to receive two BAH entitlements (i.e., a primary residence BAH and an OHA), and this must be irrespective of the dependents' location (if they exist) because of the unique circumstances faced by RC members. k. As stated in the applicant's submission and reiterated here, these "significant out- of-pocket costs are left at the whim of a coin flip. When someone arrives to the PDS and available Government quarters exist, this Soldier gets the no-cost Government housing and a primary residence BAH. Meaning, he bears no out-of-pocket costs to maintain his households. However, when someone else, like [the applicant], arrives to the PDS and Government quarters are not available, this Soldier is left having to pay the cost of one of his households out-of-pocket." This stance by the Army is untenable and must be corrected. l. In addition to the wrongful denial of monies owed to the applicant and the other Plaintiffs, many have been subjected to disciplinary and/or unwarranted administrative actions as a result of this JTR misinterpretation. Evidence of reprisal/retaliation, in violation of the MWPA under Title 10, USC, section 1034, also exists. If it is of any indication, during the time that these improper actions were taking place, the applicant was rated by his senior rater as "the best officer of this grade that I have ever senior rated. He displays unlimited potential." Administrative Record (OER) covering 8 February 2017 – 18 January 2018. As described in greater detail below, a material error and injustice occurred warranting the correction of records to make these plaintiffs whole. m. Counsel's complete brief (92 pages) was provided to the Board for review. 3. A review of the applicant's official records shows: a. A Memorandum for Applicant, issued by the Chief, Officer Accessions Branch, HRC, dated 8 May 2016, shows the applicant was appointed as a Reserve Commissioned Officer of the Army. b. Orders HR-6273-00013, issued by HRC, dated 29 September 2016 show the applicant was ordered to active duty to Headquarters, Headquarters Battalion, Wiesbaden Germany from his Place Entered Active Duty (PLEAD) for CONOP for Active Duty Operational Support (CO-ADOS) with a report date of 11 October 2016 for a period of approximately 355 days to end on 30 September 2017. This document also states, "This was an unaccompanied PCS assignment. Movement of HHG and dependents not authorized." c. A DA Form 5960 shows on 1 October 2017 the applicant submitted a request to receive a "with dependents" rate housing allowance in Germany. On this document, block 11 (Certification of Dependent Support) shows he initialed and acknowledged the following: * "I certify that I provide, or am willing to provide adequate support for the above named dependents. I am aware that failure to support the above named dependents may result in stopping BAQ for any prior periods/nonsupport." * "In accordance with service regulations, I certify that the dependency status of my primary dependents, on whose behalf I am receiving BAH, has not changed so as to affect my entitlement thereto for the period." This document was signed by the applicant and certified on 25 October 2017. d. The applicant's OER for the period ending 18 January 2018, at which time he was assigned to USAREUR, Wiesbaden, Germany, shows he was rated from 8 February 2017 to 18 January 2018 for a period of 12 months, and the reason for the submission for the evaluation was due to "change of duty." 4. Counsel for the applicant provides: a. A 92-page legal brief, which states in his argument: (1) As the RC member without dependents scenario makes clear, BAH entitlements for RC members are based on the need to maintain the primary residence because all the HHGs remain there, and the RC members expect to return there. This remains no different for RC members with dependents, except for the fact that the with- dependent rate is authorized in such an instance. However, the Army began to deny the applicant his primary residence BAH, retroactively in fact, when the applicant notified the Army that his dependents joined him at their own expense in his off-base location near his PDS in Europe. The Army has erroneously applied a "90 continuous days' rule" from JTR, section 100904, which is applicable only to AC members who receive BAH based on their dependents' locations versus RC members paid according to the location of their primary residences. (2) The present situation where RC members without dependents receive Government quarters and also receive primary residence BAH demonstrates the material error and injustice that exists for RC members in the applicant's circumstances. For RC members that receive Government quarters, the Army does not dispute that it provides Government housing at no cost, in addition to a primary residence BAH to account for the home the RC member must maintain from where he was mobilized (i.e., the equivalent of two housing entitlements). This is true for both those RC members with and without dependents. However, the Army has taken the stance that for those unfortunate enough not to receive the free benefit of Government housing, i.e., those forced to live "on the economy," they must endure the incredible financial hardship of maintaining two households with only one housing entitlement. This is arbitrary and capricious. (3) In addition to the wrongful denial of monies owed to the applicant and the other plaintiffs, many have been subjected to disciplinary and/or unwarranted administrative actions as a result of this JTR misinterpretation. Evidence of reprisal/retaliation, in violation of the MWPA under Title 10, USC, section 1034, also exists. (4) The entitlements at issue in this dispute are as follows: primary residence- based BAH, dependent location-based BAH, FSH-O, and OHA for the PDS. The following sub-paragraphs identify exactly where these terms are addressed and defined within applicable regulation: (a) OHA for a PDS is addressed in JTR Section 1005 and is described in the following way: (i) OHA is designed to cover actual rental costs for 80 percent of the assigned Service members. A Service member is reimbursed actual rental costs, limited to the maximum OHA rate for each locality and grade. There are two housing-allowance types paid under OHA—an upfront, lump sum Move in Housing Allowance (MIHA) for those who qualify and a monthly OHA, which includes a utility and recurring maintenance allowance. (ii) A Service member authorized to live in private-sector leased or owned housing is authorized OHA provided a DD Form 2367 is completed and approved. Payment of OHA requires a lease agreement or a verifiable purchase price. The reported housing must be the actual residence that the Service member occupies and from which the Service member commutes to and from work daily. (b) FSH-O is discussed in JTR sections 1006 and 100904. Generally, this entitlement is described in the following ways: (i) If the Service member is serving an unaccompanied or dependent- restricted tour and single-type Government quarters are not available for assignment at the PDS OCONUS, and the dependent does not reside at or near the PDS, then FSH-O or FSH-B is also authorized. (ii) 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. b. A written document in which an audio conversation was taped by the applicant between Mr. (The USAEUR Finance Chief for Wiesbaden, Germany), and the applicant. Counsel for the applicant states: "It is important to determine which entitlement the applicant received for his Florida address upon his arrival to Germany. Apparently, the Army has yet to reach a consensus on this. On 21 February 2017, the applicant met with the. (He is presently serving as the Subject Matter Expert (SME) witness for the Government in the lawsuit driving this ABCMR remand.). Well FSH is the stateside entitlement. When you are receiving dual entitlements, you have FSH BAH or FSH Allowance, OHA—depending on where the dependent-- where your orders originated from. So in your case, FSH-B, also known as BAH, is the entitlement you would be looking to stop if she is going to be here longer than the 90 days. Applicant: Right now I have FSH-O, right? No. See cause [it is] the way that you have a dual entitlement, and that is why the way you have two different ones. So you are receiving OHA for yourself, and then you are receiving the Stateside BAH entitlement--the FSH Allowance—for, the--back in the States at a zip code. Applicant: So the FSH is actually housing being paid for the Stateside BAH. Mm Hm [(answering in the affirmative)]…for the family's separated housing. Applicant: Okay…It is not being paid to cover the housing here. No, that is your OHA—your OHA." (1) So in this instance, the Government's SME alleged that the applicant received "FSH-B" (FSH at a BAH rate) for his dependents' location in Florida. However, this conflicts with the JTR's definition of FSH, which states: There are two types of FSH: FSH-B and FSH-O. FSH-B is payable for an assignment at a PDS in Alaska or Hawaii or to a PDS in the Continental U.S (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. 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. (2) The JTR is clear that FSH is a PDS entitlement, and the Government agrees in its Motion to Dismiss: The FSH an eligible Soldier may receive is based on the 'without-dependent' BAH- or OHA-rate that applies to his duty station, Title 37, USC, section 403(d)(1)—the DOD JTR therefore refers to FSH as either "FSH-B" or "FSH-O." paragraph 10414(B). (3) This demonstrates that the Army has been applying a shifting interpretation, one which shows that even the Army is unsure of what is correct. This is an important consideration, because several of the plaintiffs in this lawsuit were punished for what the Army deemed was an intentional defrauding of Government monies. If these plaintiffs could not receive clear guidance on what the Army believed was the appropriate entitlement structure, how could they possibly be disciplined for their confusion over the same? In order to conclude (as the Army did) to discipline these service members, the actions of the plaintiffs who were disciplined must have been willful, and this unequivocally shows an impossibility of willfulness, a critical element in substantiating any discipline that was issued. Moreover, the guidance from the Army specifically identified that members with dependents could pay at their own expense to have their dependents join them at the PDS, and that their "dependents will not have to depart Germany every 90 days." In addition, these members were specifically advised when completing their DD Form 2367 to receive OHA that they remained entitled for it and need not identify that their dependents joined them at the PDS because they were not command-sponsored and the member remained entitled to a BAH for the primary residence. (4) In the end, the heart of this case can be traced back to an Army Europe finance employee, the Government's SME in the lawsuit—who has a known grudge against the applicant. The material errors and injustice that occurred here follow a logical and simple timeline: 1) Army employees initially lacked adequate familiarity with RC pay regulation; 2) they then attacked RC members in ignorance; 3) these employees later discovered that their interpretations were faulty, however, they had already briefed too many senior leaders and had already destroyed too many RC members' careers to admit having misled the Command; 4) rather than admit error and work toward a solution, those responsible ignored regulation, logic, and reason in an effort to mask their wrongdoing; 5) they attacked, ostracized, falsely accused, and ridiculed those that challenged them; 6) and many RC members suffered in the aftermath. The employees responsible sacrificed the careers and finances of Soldiers in exchange for self-preservation and the withholding of appropriated monies Congress intended to go to the benefit of their personnel. c. A Memorandum for Record, Subject: Permission to Reside Off-Post, dated 13 October 2016 shows on-post housing was not available for the applicant. d. An OHA Request for a lease in the amount of (in Euros) 2,261.00 for self only, dated 9 November 2019. e. An LES, for the period 30 December 2016, which shows the applicant was receiving BAH in the amount of $1018.50, FSA in the amount of $125.00, and that he was paid OHA with zero dependents starting on 16 December 2016. f. An LES which shows he had to repay BAH II/OHA with dependents from 22 November 2016 to 30 March 2017. g. A memorandum for record from the 266th Financial Management Support Center, dated 22 January 2018 states, "I understand that BAH is an entitlement for housing based on my dependents' primary residence in the U.S. or OHA if my primary residence is at an overseas location. My dependents must reside at that location to claim BAH or OHA entitlements associated with the respective location. Intentionally claiming a location other than my dependent's residence location is fraudulent and may result in overpayment. While on an unaccompanied tour, I understand that bringing my dependents to Germany with the intent for them to reside here will negate my housing entitlement for their primary residence and my FSA. I understand that I must take action to stop my previous dependents-based housing allowance and FSA with my servicing finance customer support team office with 10 days of the arrival of my dependent(s) to Germany." This document is unsigned. h. An email from HQDA, DCS, G-1 (Compensation and Entitlements Division), states, "I understand that you may not agree with our position. However, the interpretation is not solely an Army one. It is based on the interpretation we received from the Defense Travel Management Office, the proponent of the JTR. I agree that the members on the committee that make changes to the JTR take their positions seriously - I am one of the members that represent the Army on the committee…We do not expect Soldiers in the field to be able to interpret the JTR. While it is available for them to read, they are not the proponent. That is what the Compensation offices at each of the Service's HQ is expected to do - be the Service's proponent of the JTR." i. The applicant's LES for the period ending 16 August 2019, in which he states, "Finance recouped the BAH it paid me for zip code from November 2018 thru July 2019 ($15,966.00) and paid me $20,082.00 in BAH from my primary residence in Florida, retroactive from November 2018 forward. This reversed December 2018 decision to pay me for my dependent's new location in ." j. A Pay Inquiry Response to the Applicant, dated 16 September 2019, states, "Fort McCoy made the change to [applicant's] BAH in August 2019. He is currently receiving BAH for zip code. He was originally receiving BAH for zip code. Debts were created and the Service member was back paid for the collected time frame of 6 November 2018 – 4 August 2019. The back payment was not applied to the debts that were created and the Service member received the full back payment of around $20,000.00 on his 16 August 2019 LES. The new rate he is receiving is higher than the previous rate and debts have been paid in full as of the mid-month September LES (13 September 2019). BAH was corrected to be paid at the PLEAD address. This is the address stated on your orders. This is in accordance with JTR paragraph 100904, Table 10-34 Rule 6…HQDA G-1 Entitlements and Compensation Division provided the determination." k. Case, In the United States Court of Federal Claims The United States, which states: (1) The DOD JTR provide that a Reserve Soldier who is called to active duty in support of CONOPS is entitled to either BAH or OHA for the duration of his tour. Paragraph 11-12, paragraph 10002(A), paragraph 10428(B). Whether a Reserve Soldier receives BAH or OHA depends on his "primary residence location at the time called/ordered to active duty," paragraph 10428(B), which is sometimes shortened to "PLEAD", paragraph 10002(A). In addition to either BAH or OHA, a Soldier with dependents may be eligible to receive FSH to compensate him for additional housing expenses associated with being separated from his family (paragraph 10414(A)). As a general rule, a Soldier with dependents is eligible to receive FSH if he meets three requirements: (a) He is not authorized to transport his dependents to his duty station at Government expense (that is, he is on "unaccompanied orders"). (b) His dependents do not reside at his duty station. (c) Government quarters are not available at his duty station (that is, he is required to "live on the economy" (paragraph 10414(A)(4)). The FSH an eligible Soldier may receive is based on the "without-dependent" BAH- or OHA-rate that applies to his duty station, Title 37, USC, section 403(d)(1)—the DOD JTR therefore refers to FSH as either "FSH-B" or "FSH-O." Paragraph 10414(B)". (2) In addition to having monies recouped, some of the plaintiffs with dependents were targets of criminal investigations and were reprimanded. The Army CID investigated the plaintiffs for either fraud or theft due to their misrepresentations the Army concluded were made to obtain FSH-O for which they were ineligible. The Army also reprimanded ("punished") some of those plaintiffs for their misrepresentations. (3) The plaintiffs contend that they were entitled to both BAH and OHA because they were called to active duty in support of overseas CONOPS, were on unaccompanied orders, were required to live on the economy in Europe, and did not have authority to ship their HHGs to Europe at Government expense. (4) The plaintiffs also allege that DFAS "reviewed circumstances and concluded that the Army's decision to ignore JTR, chapter. 10, part E, section 13 and deny his primary residence location BAH entitlement [i.e., BAH as used in the DOD JTR] was erroneous." Presumably, the plaintiffs are referring to the memorandum appended hereto that is dated 17 July 2017, and that was prepared by a DFAS employee working in the Defense Military Pay Office (DMPO) located at. The plaintiffs contend that "this DFAS opinion is of great significance, because its analysis is applicable to virtually all of those affected by the Army's primary residence location BAH entitlement denial." As noted above, the Army recouped BAH because that amount was lower than the amount of FSH-O the Army determined he had dishonestly obtained. (5) The case was remanded to the ABCMR since it was never reviewed by the Agency. It was determined that ABCMR has the jurisdictional authority and subject matter expertise to handle this case first, prior to the Federal courts. l. Case, In the United States Court of Federal Claims, v The United States, Plaintiff's Opposition to Defendant's Motion to Dismiss for Lack of Subject-Matter Jurisdiction or, in the Alternative, Motion to Remand, counsel states, "Despite the fact that the Army is providing many RC members with both on-base housing and a primary residence-based BAH, the Army is simultaneously denying primary residence based BAH to other RC members, or requiring these RC members to choose between a primary residence- based BAH and mission location-based OHA. In effect, and in contravention with statutory and regulatory requirements, the Army is allowing some RC members to receive a dual entitlement (or its equivalent), while others are forced to maintain two households using a single housing allowance. These actions by the Army are arbitrary and capricious." m. A memorandum for [applicant], Subject: Memorandum of Admonishment, dated 16 September 2019 states, "You are admonished for failing to adhere to the letter and the spirit of the DOD financial regulations in the processing of financial and travel actions while assigned as the Budget Officer, USAREUR G-3 Manpower and Reserve Affairs Division". Note: These violations were not related to any BAH/OHA/FSH-O issue, however, it is related to the Tainted Claims Rule claim by the Office of the Deputy CoS (G-1) in their advisory opinion. n. Counsel provides the applicant's LES, which shows "Repay BAH II/OHA with Dependents 22 November 2016-30 March 2017." o. Memorandum for Record, Subject: Housing Allowance Entitlements for Federal case, issued by the 266th Financial Management Support Center, dated 18 October 2018 states: (1) "This office is aware of the lawsuit filed in Federal court by seven former and current officers in the RC of the Army…This office is aware that the plaintiffs are claiming entitlement to two basic allowances for housing authorized by Title 37, USC, section 403, which is administered through chapter 10 of the DOD JTR. The seven plaintiffs claim entitlement to both a BAH in the U.S. (BAH) and a BAH outside the U.S. (informally referred to as either "OHA"). The plaintiffs allege that they were denied both allowances by the Army without good reason while serving on overseas tours to Europe. This memorandum for record summarizes voluminous documentation concerning these officers' housing allowances. (2) Pursuant to the JTR, all of the officers were entitled to one housing allowance (either BAH or OHA) and the officers with dependents could be eligible to receive a second housing allowance (a FSH allowance for overseas housing, FSH-O). Depending on the place that a Reserve Soldier is located when they entered active duty (PLEAD), he receives either BAH (if he activates from within the U.S.) or OHA (if he activates from outside the U.S.). ln addition to this BAH or OHA, a Reserve Soldier with one or more dependents may receive FSH-O to compensate him for the costs associated with maintaining two residences if three conditions are met: (1) he is on unaccompanied orders, (2) he is required to live on the economy, and (3) his dependents do not relocate to the Soldier's duty station or remain at, or in the vicinity of, the duty station for more than 90 days. As to the six officers with dependents, based on their representations on DOD forms, all were eligible for FSH-O because they met the three requirements just stated. However, it was determined by the Army CID that each of these six officers moved their dependent(s) overseas and/or had dependents reside with them at their duty stations for more than 90 days (or entire tour lengths). We therefore determined that the Army had overpaid a housing allowance (specifically, FSH/O) to each of these six officers because the third requirement stated above was not met." p. A memorandum from the Office of the IG to the applicant, dated 29 March 2019, states: "This letter is in response to your request for assistance, dated 2 March 2019, to the USAREUR Office of the IG concerning the calculation of an entitlement, disparate treatment and conduct unbecoming of a federal employee. In accordance with the JTR, chapters 8-10, table 10-33 and 34, the calculations that were derived based upon your dependents NC residence were/are correct. The issue concerning the improper calculation of an entitlement was unfounded. There was no evidence to suggest the Wiesbaden Finance office addressed your case outside of the jurisprudence of the JTR. The issue concerning disparate treatment was unfounded. There was no evidence to suggest the Wiesbaden Finance office concealed, or communicated untruthful information to your chain of command concerning your entitlements. The issue concerning conduct unbecoming of a federal employee was unfounded." q. A memorandum from the applicant, to the U.S. Property and Fiscal Office, dated 14 October 2019, requesting for a Pay Inquiry Adjudication or Elevation. r. ALARACT Message Number 384/2011, Subject: RC Solders serving on active duty in excess of 180 days PCS Policy Implementation guidance, dated 17 October 2011 states, in part, (1) "Intent. to ensure continued mission success, and maximize efficiencies while balancing the needs of RC Soldiers and their families and; to implement new policy guidance regarding use of PCS for RC Soldiers serving on active duty in excess of 180 days. (2) Policy. PCS travel and transportation allowances must be paid to all RC Soldiers and retiree recall Soldiers on voluntary duty for more than 180 days at any one location. (3) Allowance. RC Soldiers issued PCS orders are authorized full PCS travel and transportation allowance in accordance with Joint Federal Travel Regulation, Chapter 5. Depending on the member's individual circumstance, these allowances include but are not limited to HHG transportation and storage/shipment." s. A memorandum for Deputy Commanding General from Applicant, Subject: Request for Redress, dated 5 September 2019, states the applicant requests reassignment of the approving authority of the investigation against him due to retaliation. t. Department of Hearing and Appeals (DOHA), Claims Appeal Board Decision regarding another case involving erroneous payments of pay and allowances for BAH and FSH. 5. An advisory was obtained from the Office of the Deputy, Chief of Staff, G1, dated 20 August 2020, which states: a. After a careful review of the facts surrounding this situation, we recommend the board disapprove the applicant's request. The recommendation is predicated with coordination and guidance from the Office of the Assistant Secretary of Defense (SECDEF) (Military Personnel Policy), the proponent of the Department of Defense Financial Management Regulation (DODFMR). Due to the fact the applicant's spouse actually lived at the duty station for a majority of his tour from 2017-2018, the situation does not constitute a temporary social visit. Therefore, he is not authorized a BAH and a FSH while assigned to Germany. However, he is eligible to receive an OHA based on his duty station, effective his report date to Germany, provided he has a lease agreement and a certified DD Form 2367. b. Per the DODFMR, Volume 7A, Chapter 26, paragraph 2607, the purpose of FSH is to partially cover the added housing expense resulting from separation from dependents while the member serves an unaccompanied overseas tour. Because the applicant's spouse lived at the duty station for over a year, she is considered to have relocated to Germany. The applicant violated paragraph 260703-B3 and, therefore, BAH and FSH is not payable. c. The 90-day rule is intended to allow dependents temporary social visits with the member during periods when dependents are on vacation. A temporary social visit is not intended to allow visits up to 89 days at the duty station, depart for a few days, then to restart the 90-day period. d. Moreover, while there is no report from the CID in Germany regarding his housing allowance entitlement, there is a CID report regarding applicant's conduct regarding the approval of travel vouchers. We recommend the board receive an advisory opinion from DFAS, Office of General Counsel to determine if the Tainted Claim Rule should be applied in this case. The law provides that if a person submits a fraudulent claim, the claim for that entitlement is forfeited. The person committing the fraud cannot subsequently collect on a corrected (i.e. non-fraudulent) claim for the same entitlement. DOHA, the DOD office with final authority to adjudicate all military pay and allowance claims, has consistently applied the rule, including to claims for housing allowances. In DOHA Claims Case Number DOHA ruled that a member's fraudulent submission for BAQ (BAH) on the basis of marriage eliminated any claim the member would have to BAH at the with-dependent rate for the same time period on the basis of his child support payments. 6. An advisory opinion from DFAS, Military Pay Operations, dated 8 February 2021, states: a. The ABCMR has requested an opinion and analysis from DFAS as to the potential application of the Tainted Claims Rule to the seven plaintiffs identified above. Our research did not indicate that any of those members have made outstanding claims for the BAH and OHA which they have filed suit for in the Federal Court of Claims. b. From information provided to this agency, it is our understanding that there are seven plaintiffs who have filed suit before the Court of Federal Claims, v. United States, who are claiming that they were incorrectly denied payment of BAH and OHA because they are Reserve members. c. Plaintiffs…while overseas were paid both BAH and FSH for Overseas Housing (FSH-O). FSH-O had been paid because all had claimed dependents who they specified were living in the United States. However, those dependents were actually co- located overseas in Germany living in proximity to the plaintiffs. The FSH-O paid to these members was clearly erroneous because their dependents were not separated from them as they had brought them overseas and were living in close proximity to the members. However, the Army did not indebt the FSH-O entitlements paid, instead a decision was made to collect only the BAH, because FSH-O was higher than the amount of BAH. The Government's Motion to Dismiss before the court, it is indicated that the Government does not dispute that the subject Reserve members would have been entitled to BAH. However, it is noted that the member's claims fail to mention that they were allowed to retain the erroneous payments of FSH-O which were higher than their calculated BAH entitlements, effectively constituting the BAH for which they are claiming in their lawsuit. d. For these plaintiffs, it does not appear the Rule applies to their claims for BAH since BAH was ready paid. However, the Army did not properly indebt the claimants for the amounts of FSH-O actually overpaid to each member. DFAS cannot advise with any certainty, whether the Board should consider the claims before the court for BAH as current outstanding claims associated with the prior claims involving fraud, when the overpayments have not been resolved. The Rule would seemingly be difficult to apply to the six members for whom the Army equitably allowed to retain the FSH-O to which they were not entitled. It is DFAS' view that Army is required to indebt these members for the improperly paid FSH-O. Since the BAH has conceivably already been paid, there would be no tainted claim left to consider since it was already paid because the Comptroller General has distinguished between claims paid and unpaid claims. The Rule does not address this type of situation in which claimants are allowed to keep the entitlements for which they engaged in fraud. However, since OHA has not been paid, the Board might consider those claims under the Rule. 7. On 16 April 2021, counsel responded to the G1 advisory and provides an exhibit, which is a letter from G-1 to the USAREUR Commanding General, dated 9 November 2020, which is available in its entirety for the Board's review. 8. On 16 April 2021, counsel also responded to the DFAS advisory, which includes exhibits 1 thru 3. Counsel's entire argument is available for the Board's review. 9. On 2 May 2021, counsel submitted a supplement to his client’s application, which includes exhibits 1 thru 14. Counsel’s entire argument is available for the Board’s review. 10. The Board also considered oral arguments provided by counsel and the applicant. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found partial relief is warranted. 2. The Board agreed that a careful reading of the JTR supports counsel's assertion that the applicant was, in fact, authorized to receive OHA and BAH during his tour of duty in in Germany that began in December 2016. The JTR provides for paying Reserve Component Soldiers BAH based on the location of their primary residence. While the location of the applicant's dependents was the key element that gave rise to the investigative actions taken against him, the Board found that these actions were erroneously executed and erroneously implemented. The Board determined that, for a Reserve Component Soldier, the JTR authorizes payment of BAH based on the location of the primary residence regardless of where the Soldier's dependents may be located. 3. Under the provisions of Title 10, United States Code, Section 1552, this Board is empowered to correct errors or remove injustices from a Soldier's record. In this case, the Board found error in the interpretation of the JTR that prevented a Reserve Component Soldier – serving overseas on orders that did not authorize shipment of household goods or travel of dependents and at a duty station where Government housing was not available – from receiving both BAH for his primary residence and OHA based on his duty station. The Board found the erroneous interpretation of the JTR led to the unjust recoupment of alleged overpayment of housing allowances and other related unjust actions. 4. The Board noted the applicant's proposed alternative, i.e., amend his orders to show he was in a TCS status, which would retroactively make him eligible for per diem for the duration of his tour. However, the Board determined this proposed relief is unnecessary having concurred with the assertion that he was authorized both OHA and BAH while serving in Germany. 5. Based on a preponderance of evidence, the Board determined the applicant's record should be corrected to show he was authorized to receive both OHA and primary residence BAH (at the with-dependents rate) during his period of service in Germany that began in December 2016. The Board further determined that any monies that were recouped should be returned to him and he should be paid both OHA and BAH for any periods during which one or the other entitlement was not paid. 6. As a result of this determination, the Board also determined: a. any records of a flag for adverse action related to this matter should be removed from his AMHRR; b. his name should be removed from the title block of the CID's investigation of this matter; c. any records of adverse information related to this matter in databases maintained by the Office of The Inspector General should be removed; and d. contingent upon the applicant providing any required documentation, he should receive per diem and any other authorized allowances for the period 17 May 2019 through 22 September 2019, the period he states he was required to live in a hotel while the Army performed an investigation. 7. This Board is not an investigative body. However, the Board granted the applicant’s counsel’s request to orally advocate the applicant’s case before the Board using video teleconference technology. The Board found that the applicant’s counsel provided a thorough presentation of the facts and circumstances of the applicant’s case. Consequently, the Board finds it unnecessary to direct or recommend additional investigations. If, however, the applicant or his counsel nonetheless believes additional investigations are necessary, they may direct those requests to the appropriate agencies responsible for investigating alleged governmental impropriety. Consequently, the Board denies the applicant's request to direct investigations. 8. The Board determined that a formal apology from the Army is not warranted. The ABCMR’s responsibility is to direct records corrections that are necessary to correct an error or to remove an injustice. An apology addressed to the applicant would neither correct an error nor remove an injustice. Nor is an apology necessary to implement the corrections the Board has otherwise granted in this case. Consequently, the Board denies this portion of the applicant's request. 9. The Board determined it would not be appropriate to grant the applicant his assignment of choice in the form of acceptance into the U.S. Army Funded Legal Education or an Advance Civil Schooling assignment. Directing his acceptance into the U.S. Army Funded Legal Education Program and / or Advance Civil Schooling is a form of relief unrelated to the errors the Board otherwise has identified in this case. He possibly may apply for these programs through normal channels to be considered for acceptance on his own merit. Consequently, the Board denies this portion of the applicant's request. 10. The Board determined it would not be appropriate to assist the applicant with gaining an exception to policy so that he can resume and complete his thesis with the NPS or help him expedite intermediate level education completion via a JPME slot at NPS. These forms of relief are not related to the errors the Board otherwise has identified in this case. The applicant may pursue these through appropriate channels. 11. The Board understands the applicant would not have had to pay out of pocket for airfare to attend his brother's wedding had his orders not been extended due to the investigation. However, the Board determined his expenditure does not constitute an error, injustice, or inequity for which this Board should provide relief. Consequently, the Board denies this portion of the applicant's request. 12. The applicant has requested to be promoted to LTC when he becomes eligible for that grade in August 2021. The available records contain no evidence indicating the applicant is now or has been in the zone to be considered for promotion to LTC by a promotion selection board. Further, this Board does not have the authority to appoint an officer to a higher grade. This portion of the applicant’s request is denied. The Board did find, however, that he lost time due to the investigation at the expense of his ability to complete ILE in a timely manner to be fully eligible for promotion to LTC. The Board determined that, if the applicant is in the zone of consideration for promotion to LTC prior to completing ILE, he may reference the Board’s findings in this regard, and reference the Board’s otherwise favorable determinations on his behalf, as rationale to consider him for promotion to the higher grade without having met the education requirement. This should not be construed, however, as the Board directing any promotion board or any promotion authority to waive ILE or any other educational requirements necessary for promotion. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 Mbr 4 Mbr 5 : : : : : GRANT FULL RELIEF :X :X :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 records of the individual concerned be corrected as follows: a. Show he was authorized to receive both OHA and primary residence BAH (at the with-dependents rate) during his period of service in Germany that began in December 2016; b. Return to him any monies that were recouped and pay him both OHA and BAH for any periods during which one or the other entitlement was not paid; c. contingent upon him providing any required documentation, pay him per diem and any other authorized allowances for the period 17 May 2019 through 22 September 2019; d. Remove any records of a flag for adverse action related to this matter from his AMHRR; e. Remove his name from the title block of the CID's investigation of this matter; and f. Remove any records of adverse information related to this matter in databases maintained by the Office of The Inspector General. ? 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. ALARACT Message 384/2011, states in paragraph: a. (4). Intent: To ensure continued mission success, and maximize efficiencies while balancing the needs of RC Soldiers and their families and, to implement new policy guidance regarding use of PCS for RC Soldiers serving on active duty in excess of 180 days. b. (5). Policy: References M and N established that effective 1 June 2011, RC Solders will no longer be authorized the option of contingency operations flat rate per diem (TCS-55 percent) tours. PCS travel and transportation allowances must be paid to all RC Soldiers and retiree recall Soldiers on voluntary duty for more than 180 days at any one location. 2. Title 37, USC, section 403c (BAH) Outside the United States, states: a. The Secretary of Defense (SECDEF) may prescribe an overseas BAH for a member of a uniformed service who is on duty outside of the United States. The Secretary shall establish the BAH under this subsection on the basis of housing costs in the overseas area in which the member is assigned. b. So long as a member of a uniformed service retains uninterrupted eligibility to receive a BAH in an overseas area and the actual monthly cost of housing for the member is not reduced, the monthly amount of the allowance in an area outside the United States may not be reduced as a result of changes in housing costs in the area or the promotion of the member. 3. Title 37, USC, section 403(a)(1) states, "a member of a uniformed service who is entitled to basic pay is entitled to a BAH." 4. Title 37, USC, section 403g(1) (Reserve Members) states, a member of a RC without dependents who is called or ordered to active duty , in support of a CONOP, or for a period of more than 30 days under Title 10, USC, section 688(a) in support of a CONOP for a period of more than 30 days, may not be denied a BAH if, because of that call or order, the member is unable to continue to occupy a residence: a. Which is maintained as the primary residence of the member at the time of the call or order; and b. Which is owned by the member or for which the member is responsible for rental payments. 5. Title 37, USC, section 403g(2) states, The Secretary concerned may provide a BAH to a member described in paragraph (1) at a monthly rate equal to the rate of the BAH established under subsection (b) or the overseas BAH established under subsection (c), 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 a 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 for housing is provided under this paragraph. 6. Title 37, USC, section 403g(4) states, the rate of BAH to be paid to the following members of a RC shall be equal to the rate in effect for similarly situated members of a regular component of the uniformed services: a. A member who is called or ordered to active duty for a period of more than 30 days. b. A member who is called or ordered to active duty for a period of 30 days or less in support of a contingency operation. 7. Title 37, USC, section 403g(5) states, the SECDEF shall establish a rate of BAH to be paid to a member of a RC 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 CONOP. 8. JTR, Section 1001, Table 10-1 states: 9. JTR, Chapter 10 1006 (FSH Allowance): Administration of FSH Allowance. a. Eligibility. For FSH to be payable, all of the following conditions must be met: * dependent transportation to the PDS is not authorized at Government expense under Title 37, USC, section 476 * dependent does not reside in the PDS vicinity * Government quarters are not available for assignment to the Service member b. Allowances: There are two types of FSH: FSH-B and FSH-O. (1) 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. Payment starts upon submission of proof that Government quarters are not available and that the Service member has obtained private-sector housing. (2) 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. OHA rules for determining monthly rent, utility or recurring maintenance allowance, MIHA, and advances apply to FSH-O. (3) FSH-O or FSH-B is not authorized if all of the Service member's dependents reside in the PDS vicinity. If some, but not all, of the dependents voluntarily reside near the PDS, FSH-O or FSH-B continues. (4) FSH-O or FSH-B continues uninterrupted while a Service member's dependent visits at or near the Service member's PDS, but not to exceed 90 continuous days. Circumstances must clearly show that the dependent is not changing residence and that the visit is temporary and not intended to exceed 90 days. 10. JTR, Chapter 10, Section 100904, states: a. A Service member with a dependent who serves an unaccompanied or dependent-restricted tour OCONUS or "unusually arduous sea duty" outside the United States 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 PCS, 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. b. FSH Authorization. If the Service member is serving an unaccompanied or dependent-restricted tour and single-type Government quarters are not available for assignment at the PDS OCONUS, and the dependent does not reside at or near the PDS, then FSH-O or FSH-B is also authorized. A Service member assigned to "unusually arduous sea duty" is not authorized FSH since Government quarters are available for assignment. c. Dependent Visit. If the Service member is outside the United States, then the allowance is either OHA or FSH-O, as applicable. If all of a Service member's dependents arrive at his or her PDS OCONUS and stay beyond 90 days, the Service member is not authorized OHA simply because the dependent is present. To be paid OHA the Service member must provide the required documentation—a completed and approved OHA report (DD Form 2367)—for private-sector leased or owned housing. 11. JTR, chapter 10, Section 100906(7). RC Member states, "Called or Ordered to Active Duty for Contingency: a. An RC member called or ordered to active duty in support of a CONOP is authorized BAH or OHA based on the primary residence beginning on the first day of active duty. This rate is authorized even for duty of 30 or fewer days. b. This rate continues for the duration of the tour unless the RC member is authorized PCS HHG transportation, in which case the rate for the PDS would apply on the day the RC member reports to the PDS." 12. JTR, Chapter 10, Section 12, paragraph 10428B states: a. CONOPS: An RC member called/ordered to active duty in support of a CONOP is authorized BAH/OHA for the duration of the tour. If the RC member receives a PDS order authorizing HHG transportation, BAH/OHA is based on the new PDS. However, if the member is called or ordered to active duty and the PCS order is not issued, BAH/OHA rate is based (paid) on the primary residence location at the time called/ordered to active duty except for an AGR as prescribed in paragraph 10428C. b. Called/Ordered to Active Duty for a Contingency. A member called/ordered to active duty in support of a CONOP is authorized primary residence-based BAH/OHA beginning on the first active duty day. This rate is authorized even for duty of fewer than 31 days. This rate continues for the duration of the tour unless the member is authorized PCS HHG transportation in which case the PDS rate would apply on the day the member reports to the PDS. 13. The JTR, Appendix A defines primary residence, states, "For an RC member ordered to active duty, the primary residence is the dwelling (e.g.., house, townhouse, apartment, condominium, mobile home, houseboat, vessel) where the RC member resides before being ordered to active duty." 14. JTR, Section 2809 Waiver of Indebtedness states: a. Paragraph 280901. Recovery of erroneous payments of pay and allowances to or on behalf of a member or former member of the Uniformed Services, may be waived if recovery is determined to be against equity and good conscience. (Erroneous payments of travel and transportation allowances, made prior to December 28, 1985, may not be waived.) Application for waiver must be received by the DOD within 3 years from the date the erroneous payment was discovered. The member must apply for a refund of any amount collected within 2 years from the date of waiver approval. A claim of the United States against a member or former member of the Uniformed Services, arising out of such erroneous payment, may be considered for waiver within 3 years from the date of discovery when collection of the erroneous payment would be against equity and good conscience and not in the best interest of the United States. Generally, these criteria are met by a finding that: (1) the erroneous payment occurred through administrative error; and (2) there is no indication of fraud, misrepresentation, fault, or lack of good faith on the part of the member or any other person having an interest in obtaining a waiver of the claim. Any significant unexplained increase in pay that would require a reasonable person to inquire about the correctness of pay would preclude a waiver when the member fails to bring the matter to the attention of the appropriate officials. Collection action may be suspended in certain cases pending action on an application for waiver. In determining, on a case-by-case basis, whether suspension of collection would be appropriate, consider whether: (1) There is a reasonable possibility that a waiver will be granted. (2) The Government's interest will be protected if suspension is granted by reasonable assurance that the erroneous payment could be recovered if waiver is not granted. (3) The collection of the debt will cause undue hardship. See procedural instructions of the Military Service concerned. 15. Army Regulation (AR) 420-1 (Army Facilities Management), paragraph 3-6.b. (1),states permanent party personnel are entitled to housing allowances to secure private housing in the civilian community if Government housing is not provided." 16. AR 600-4 (Remission or Cancellation of Indebtedness) provides policy and instructions for submitting and processing packets for remission or cancellation of indebtedness to the U.S. Army. Requests for remission or cancellation of indebtedness must be based on injustice, hardship, or both. A Soldier's debt to the U.S. Army may be remitted or canceled on the basis of this regulation in cases arising from debts incurred while serving on active duty or in an active status as a Soldier. 17. AR 15-6 (Procedures for Administrative Investigations and Boards of Officers) establishes procedures for conducting preliminary inquiries, administrative investigations, and boards of officers when such procedures are not established by other regulations or directives. Paragraph 5-2 states Investigating Officers may use whatever method they deem most efficient and effective for acquiring information. Although witnesses may be called to present formal testimony, information may also be obtained by personal interview, correspondence, telephone inquiry, or other informal means. 18. Army Regulation 600-8-104 (Army Military Human Resource Records Management) governs the composition of the Official Military Personnel File (OMPF) and states that the performance folder is used for filing performance, commendatory, and disciplinary data. Once placed in the OMPF, a document becomes a permanent part of that file. The document will not be removed from or moved to another part of the OMPF unless directed by certain agencies, to include this Board. 19. AR 600-37 (Unfavorable Information) sets forth policies and procedures to ensure the best interests of both the Army and Soldiers are served by authorizing unfavorable information to be placed in, transferred within, or removed from an individual's AMHRR. a. An administrative memorandum of reprimand may be issued by an individual's commander, by superiors in the chain of command, and by any general officer or officer exercising general court-martial jurisdiction over the Soldier. The memorandum must be referred to the recipient and the referral must include and list applicable portions of investigations, reports, or other documents that serve as a basis for the reprimand. Statements or other evidence furnished by the recipient must be reviewed and considered before a filing determination is made. b. A memorandum of reprimand may be filed in a Soldier's OMPF only upon the order of a general officer-level authority and is to be filed in the performance folder. The direction for filing is to be contained in an endorsement or addendum to the memorandum. If the reprimand is to be filed in the OMPF, the recipient's submissions are to be attached. Once filed in the OMPF, the reprimand and associated documents are permanent unless removed in accordance with chapter 7 (Appeals). a. Paragraph 7-2 (Policies and Standards) provides that once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority. Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF. b. Only letters of reprimand, admonition, or censure may be the subject of an appeal for transfer to the restricted folder of the OMPF. Such documents may be appealed on the basis of proof that their intended purpose has been served and that their transfer would be in the best interest of the Army. The burden of proof rests with the recipient to provide substantial evidence that these conditions have been met. 20. Title 10, USC, section 1034 (Military Whistleblowers Protection Act) states prohibits any person from taking, withholding, or threatening any personnel action against a member of the Armed Forces as reprisal for making or preparing any protected communications. A protected communication is any lawful communication to a Member of Congress or an Inspector General, as well as any communication made to a person or organization designated under competent regulations to receive such communications, which a member of the Armed Forces reasonably believes reports a violation of law or regulation (including sexual harassment, unlawful discrimination, gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial or specific danger to public health or safety). 21. Title 10, USC, section 1034, provides the law on protected communications and prohibition of retaliatory personnel actions. It states: a. No person may restrict a member of the armed forces in communicating with a Member of Congress or an Inspector General; this does not apply to a communication that is unlawful. b. No person may take (or threaten to take) an unfavorable personnel action, or withhold (or threaten to withhold) a favorable personnel action, as a reprisal against a member of the armed forces for making or preparing to being perceived as making or preparing: (1) A communication to a Member of Congress or an Inspector General that may not be restricted (2) A communication that is described in subsection (c)(2) and that is made (or prepared to be made to: * a Member of Congress * an Inspector General * a member of a Department of Defense audit, inspection, investigation, or law enforcement organization * any person or organization in the chain of command * a court-martial proceeding * any other person or organization designated pursuant to regulations or other established administrative procedures for such communications (3) Testimony, or otherwise participating in or assisting in an investigation or proceeding related to a communication under subparagraphs a or b (above), or filing, causing to be filed, participating in, or otherwise assisting in an action brought under this section. c. The actions considered for purposes of this section to be a personnel action prohibited by this subsection shall include the following actions: * the threat to take any unfavorable action * the withholding, or threat to withhold, any favorable action * the making of, or threat to make, a significant change in the duties or responsibilities of a member of the armed forces not commensurate with the member’s grade * the failure of a superior to respond to any retaliatory action or harassment (of which the superior had actual knowledge) taken by one or more subordinates against a member * the conducting of a retaliatory investigation of a member //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200006642 25 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1