The problem, according to Wolfing and seven other reserve component officers who served in Wiesbaden beginning in 2015, is that reservists are meant to receive BAH for their primary residences while deployed, and are also entitled to government-paid housing overseas ― but for reasons the Army has yet to disclose, they were forced to support two homes on one allowance.
In a class-action complaint filed April 9 in the U.S. Court of Federal Claims, the eight plaintiffs named are some of more than 300 who were either denied BAH while serving in Germany, or who had their BAH shut off and their wages garnished to pay it back mid-deployment.
“The Army’s denial of this entitlement has placed at least several hundred of its soldiers in a position of tremendous financial hardship during periods in which they were activated to support the defense of our nation,” according to the lawsuit. “These soldiers have been left with real concerns that they will be unable to pay their mortgage or rent while serving our country’s national security efforts overseas.”
Army Secretary Mark Esper, a former National Guardsman, told Army Times on Wednesday that he was not aware of the situation.
”We just need to investigate it and find the facts first, and we’ll go from there,” he said. “We’ll do the right thing.”
Two households, one housing allowance
Historically, and according to the Defense Deparment’s joint travel regulation, reserve component soldiers who serve abroad are entitled to BAH for their homes stateside.
And when there isn’t enough on-post housing to cover them at their deployed location, as there wasn’t for the soldiers named in the complaint, they must “live on the economy” ― by securing their own off-installation, civilian housing to be paid by the Defense Department.
This process is different, of course, for active duty soldiers who are stationed in places like Europe or Japan. They would forward-deploy as a permanent change-of-station move, bringing their families and household goods, then use their overseas housing allowance to pay expenses.
But reservists don’t bring their families to Germany, so Army policy says that they should be sufficiently compensated to house their families back home.
“…if the service member is called or ordered to active duty and a PCS order is not issued, BAH/OHA rate is based [paid] on the primary residence location at the time called/ ordered to active duty…,” according to the JTR.
And if, as it was for the complainants, there is no housing for them abroad, the Army can issue a certificate of non-availability that entitles the soldier to obtain non-government housing at the government’s expense.
But sometime in 2016, the lawsuit alleges, the Army decided to change its interpretation of that policy, ceasing to issue primary residence BAH to reservists, recouping what had already been paid out, and charging the soldiers in question with fraud ― what amounted to tens of thousands of dollars each.
“Despite plaintiffs’ repeated efforts up the chain of command to have this issue corrected, the Army has willfully chosen to disregard these governing provisions, thus elevating its conduct to the level of gross negligence,” according to the claim.
And once the policy changed, the claim alleges, the Army forced soldiers to pay back what they had received during the entirety of their deployments, despite previously being in compliance.
“Worse yet, the Army applied its decision retroactively, and, in some cases, took disciplinary action against RC members pursuant to this ex post facto decision (e.g., subjecting RC members to large recoupments, and in some cases, adverse paperwork and the threat of more serious actions under the Uniform Code of Military Justice),” according to the complaint.
Further, the complaint alleges, Army Criminal Investigation Command in 2016 confirmed at least 140 soldiers affected by the BAH policy change, and at least 350 in fiscal 2017.
Many of these were also subject to fraud investigations and adverse administrative action, the lawsuit alleges.
Wolfing, for his part, decided to retire after being punished for fraud. But a Grade Determination Board found he had served honorably as an O-6, calling the BAH denial erroneous, according to the claim.
Maj. James Copas, a Kentucky National Guardsman at the time of the deployment in question, was activated from the Reserve in November 2015, then immediately placed on special orders, pending court-martial, at the end of September 2016, forcing him to stay in Germany while CID investigated.
That lasted until March 2017. In the meantime, the Army garnished about $26,000 of his wages, including one deduction of about $7,500 ― his entire paycheck.
“Because of the continued recoupments through on or about March 17, 2017, MAJ Copas was forced to move out of his primary duty station residence and was unable to send money to his wife and children,” according to the claim.
Reserve officers Maj. Ryan Mirabal, Maj. Louis Morelli, Capt. Alex Gardiner, and Capt. William Schneck, along with Capt. Timothy Kibodeaux, who is currently on active duty, are also named in the suit.
Together, they allege garnishments or withheld allowances totaling approximately $340,000, on top of investigations and punishments that have adversely affected their careers.
Citing the ongoing litigation, Army spokeswoman Lt. Col. Nina Hill declined to comment on the issue.