DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No. 6374-19 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD OF Ref: (a) Title 10 U.S.C. §1552 (b) Joint Federal Travel Regulations (JFTR) March 2009 Encl: (1) DD Form 149 w/attachments (2) OPNAV memo 7220 Ser N130C3/19U1604 of 05 Sep 19 (3) Subject’s naval record 1. Pursuant to the provisions of reference (a) Subject, hereinafter referred to as Petitioner, filed enclosure (1) with this Board requesting, in effect, that the applicable naval record be corrected to waive $45,128 of an erroneous overpayment of $114,228.23 due to error made by Personnel Support Detachment ( in processing my benefits (Basic Allowance for Housing (BAH)) on March 3, 2009 for Active Duty Special Work (ADSW) orders for U.S. , . 2. The Board, consisting of , reviewed Petitioner’s allegations of error and injustice on November 8, 2019 and, pursuant to its regulations, determined that the corrective action indicated below should be taken on the available evidence of record. Documentary material considered by the Board consisted of the enclosures, relevant portions of Petitioner’s naval record, and applicable statutes, regulations and policies. 3. The Board, having reviewed all the facts of record pertaining to Petitioner’s allegations of error and injustice, finds as follows: a. Before applying to this Board, Petitioner exhausted all administrative remedies available under existing law and regulations within the Department of the Navy. b. On January 28, 2009, Petitioner released from mobilization active duty. c. Statement of Service reflects that Petitioner was back on active duty training from January 31, 2009 through February 27, 2009. d. On February 27, 2009, Petitioner was issued ADSW–BUPERS Orders which were not in support of a Contingency Operation. Place from which called [ordered] on active duty was [PLEAD]. Additionally, the movement of dependents to OCONUS location was not authorized unless orders exceed 730 days in length and meet PDS requirements for an accompanied tour in accordance with MILPERSMAN 1300–308 and Joint Federal Travel Regulations (JFTR), Appendix Q [ordered for a period 212 days March to September 2009]. e. On March 3, 2009, Petitioner enters active duty and reported to NMPS and joined by . NAVPERS 1070/602 certified dependent spouse address as . Local PSD reported BAH at the with dependent rate for zip code and Continental Cost of Living Allowance (CONUS COLA), and BAH without dependents for zip code and COLA. f. On March 4, 2009, Petitioner signed a month–to–month lease for . g. On January 7, 2010, Petitioner signed a lease for , with termination date of May 31, 2010. h. Petitioner provided copies of monthly payments [checks] in the amount of $800.00. These checks were written to the property–owner for the period of August 2011 through April 2012 [for #98–131-B ]. i. On May 1, 2012, Petitioner signed a lease for through October 31, 2012. j. On May 9, 2012, Petitioner receives statement of non-availability for housing from Regional Combined Bachelor Housing for the period of May 1, 2012 through September 30, 2012. k. On May 17, 2012, Petitioner notified by PSD Officer in Charge of erroneous payments of BAH and CONUS COLA for zip code and single BAH for zip code from March 3, 2009 thru January 31, 2012. l. On June 5, 2012, Petitioner submits waiver of indebtedness. m. On June 14, 2012, Petitioner’s NAVPERS 1070/602 reflects dependent spouse address changed to . n. On June 19, 2012, Petitioner issued modification to BUPERS ADSW orders amending end date from September 30, 2012 to June 30, 2012. o. On June 27, 2012, Petitioner ships vehicle from to port. p. On June 28, 2012, Petitioner is transferred from , , and joined for Temporary duty by on June 29, 2012. Petitioner issued NAVPERS 1070/613 directed to proceed to Navy Operational Support Center ( ) for final redeployment processing. q. On June 30, 2012, Petitioner was released from active duty [separated at ]. r. On March 13, 2014, DFAS notifies Petitioner that indebtedness [$117,228.23] and waiver and remissions department did not receive waiver packet as asserted by Petitioner. s. On May 23, 2019, DFAS notifies Petitioner with explanation of debt and state that Petitioner’s waiver request cannot adjudicated due to discrepancies in the debt computation. (1) Note: A Reserve Component member called to active duty for training for 140 days or more at one location, other than training for 181 days or more is authorized BAH or Overseas Housing Allowance (OHA) in the manner as a service member on active duty. BAH or OHA is based on the Permanent Duty Location (PDS) on the days he/she reports to that location. (2) Note: The PSD did not provide any supporting documentation, which would indicate that Petitioner was told to request a statement of non–availability from the housing office when he reported for duty in . (3) Note: The PSD made collections based on the entire period and did not make a determination as to what type of BAH Petitioner should have been paid. t. On October 16, 2019, Petitioner provided an email to the BCNR with the following information: (1) “In 2007, my spouse and I resided together in . On around 8 July 2007, I traveled from to to perform an 83–day ADT order at U.S. . On around 28 September 2007, I left and returned to .” (2) “On around 11 January 2008, I departed for volunteer IA mobilization orders with U.S. Central Command in .” (3) “On around June 2008 during my mobilization, my spouse relocated from to ( ) to attend medical school.” (4) “On 17 December 2008, I demobilized from then returned to and reunited with my spouse briefly.” (5) “On around 30 January 2009, I departed to to perform 29-day ADT orders at until 27 February 2009. During this time, I received an offer to perform ADSW orders with U.S. , which I accepted.” (6) “On 27 February 2009, my ADT orders ended. I also received my ADSW orders on the same day [5]. I decided to remain in due to the short period (about 4 days) until the start of my next ADSW orders on 3 March 2009.” (7) “On 3 March 2009, I reported for duty to , where I would remain on back-to-back orders until 30 June 2012. In July 2012, I left and returned to to seek IT employment, due to not having a strong IT job market.” u. The office having cognizance over the subject matter, Advisory Opinion (AO) enclosure (2), commented that Petitioner’s request has merit and warrants partial favorable action and recommended approval of family separation housing allowance for housing (FSH-B) for . The AO also assert Petitioner rates BAH at the with dependent rate of , vice , . CONCLUSION Upon review and consideration of all the evidence of record, and especially in light of the contents of enclosure (2), the Board finds the existence of an injustice warranting the following corrective action: The Board determined that the Petitioner was on continuous ADSW orders due to multiple back-to-back modifications effective March 3, 2009 through June 30, 2012 without a break in service. The Petitioner’s principle residence when order to active duty should have reflected , vice , . The Board made this determination base Petitioner’s statement that dependent spouse moved to in June 2008. Petitioner was released from active duty on January 28, 2009, return to active duty for training from January 31, 2009, and provided no evidence that he still maintained a residence in , at the time of being issued ADSW orders in February 2009. The Board concluded that the Petitioner is entitled FSH allowance at zip code [ , ] and COLA from March 3, 2009 through June 28, 2012, and BAH at the with dependent rate and CONUS COLA at zip code [ , ] and [ , ]. RECOMMENDATION That Petitioner’s naval record be corrected, where appropriate, to show that: BAH at the with dependents rate and CONUS COLA for zip code [ , ] effective March 3, 2009 through June 13, 2012 and BAH at the new dependent location of zip code [ , ] from June 14, 2012 until release from active duty on June 30, 2012. FSH-B and COLA at [ , from March 3, 2009 through June 28, 2012. Note: Defense Finance & Accounting Service (DFAS) will complete an audit of Petitioner’s records to determine if Petitioner is due any back pay and allowances. A copy of this Report of Proceedings will be filed in Petitioner’s naval record. 4. It is certified that quorum was present at the Board’s review and deliberations, and that the foregoing is a true and complete record of the Board’s proceedings in the above entitled matter. 5. Pursuant to the delegation of authority set out in Section 6(e) of the revised Procedures of the Board for Correction of Naval Records (32 Code of Federal Regulations, Section 723.6(e)) and having assured compliance with its provisions, it is hereby announced that the foregoing corrective action, taken under the authority of reference (a), has been approved by the Board on behalf of the Secretary of the Navy. 3/5/2020