In the United States Court of Federal Claims

FOR PUBLICATION

Nos. 18-523C & 21-1825C 

(Filed: December 2, 2022) 

BRADLEY T. WOLFING, et al., 

 Plaintiffs,

RICHARD G. GULLEY, et al., 

 Consolidated Plaintiffs,

 v.

UNITED STATES,

 Defendant.

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 Military Pay: Housing Allowances

 under 37 U.S.C. § 403; Travel 

 and Transportation Allowances 

 under 37 U.S.C. § 474 (repealed

 and recodified at 37 U.S.C. § 452)

Patrick J. Hughes, Patriots Law Group of Lyons & Hughes, P.C., Suitland, MD, 

for plaintiffs. Michael E. Lyons, Patriots Law Group of Lyons & Hughes, P.C., 

Suitland, MD, Of Counsel.

Douglas G. Edelschick, Senior Trial Counsel, Commercial Litigation Branch, 

Civil Division, U.S. Department of Justice, Washington, DC, for defendant, 

with whom on the briefs were Brian M. Boynton, Assistant Attorney General, 

and Patricia M. McCarthy, Director, Douglas K. Mickle, Assistant Director, and 

Kyle S. Beckrich, Trial Attorney, Commercial Litigation Branch, Civil Division, 

U.S. Department of Justice, Washington, DC. Major Alane E. Ballweg and 

Christopher C. Cox, Litigation Attorneys, U.S. Army Legal Service Agency, 

Fort Belvoir, VA, Of Counsel.

OPINION AND ORDER

BONILLA, Judge.

The origins of the United States Army Reserve (USAR) date back over

100 years to the passage of the 1920 amendments to the National Defense Act of 

1916. See Pub. L. No. 66-242, 41 Stat. 759 (1920). Today, nearly 190,000 soldiers 

serve in the USAR, residing in all 50 states and five United States territories and

 CORRECTED ON 12.6.2022
2

deployed to 23 countries around the world. Despite providing “nearly half of the 

Army’s maneuver support and a quarter of its force mobilization capacity,” the 

USAR accounts for “only 6% of the total Army budget.”1 This military pay case

addresses the statutory and regulatory issues governing the claimed entitlement 

to dual housing allowances by members of the USAR during periods of mobilization 

and deployment. 

BACKGROUND2

Plaintiffs are current, retired, and former members of the USAR and the 

Army National Guard (ARNG) residing in various states throughout the continental 

United States.3 At some point relevant hereto, each plaintiff was called to active 

duty and deployed overseas in support of contingency operations (CONOPS) and/or

for Active Duty Operational Support (ADOS) for periods exceeding 30 days. 

Plaintiffs’ overseas primary duty stations (PDS) were not located near the domestic 

primary residences from which they were activated. Critical to the legal issues 

presented, plaintiffs’ mobilization and deployment orders did not provide for

military quarters at or near their overseas PDS, requiring plaintiffs to secure their 

1 See https://www.usar.army.mil/About-Us/ (last visited Nov. 28, 2022).

2 Due to the initial voluntary remand request by the government ultimately lasting two years 

(from August 2019 to August 2021), the parties’ subsequent joint request for a continued stay, and

the government’s current request for a second voluntary remand, discussed infra, this consolidated 

case remains in the early stages of litigation. Indeed, the record presented is limited to: the

complaints filed in each of the now-consolidated cases; plaintiffs’ proposed amended complaint;

the remand decisions of the Army Board for Correction of Military Records (ABCMR or Board) 

limited to the original Wolfing plaintiffs; and various documents attached to the parties’ briefs 

addressing a series of procedural motions, defendant’s motion to dismiss, and the supplemental 

briefing requested by the Court. The facts stated herein are derived from the filings to date. 

3 The initial 11 plaintiffs in this consolidated case include (by rank and alphabetically): Colonel

Richard G. Gulley (USAR-retired); Colonel Bradley T. Wolfing (USAR-retired); Lieutenant Colonel 

Sean Connelly (USAR); Major James B. Copas (USAR); Major Erika Erickson (USAR); Major Ryan 

P. Mirabal (USAR); Major Louis T. Morelli (USAR); Major William C. Schneck (USAR); Major

Jennifer Walters (USAR); Captain Alexander R. Gardiner (USAR); and Captain Timothy J. 

Kibodeaux (USAR). During oral argument conducted on November 30, 2022, by consent, the 

Court sanctioned the joinder of 22 additional plaintiffs named in the second amended complaint:

Lieutenant Colonel Oscar Quintero (ARNG); Lieutenant Colonel William Wahlfeld (USAR); Major 

Parker Chapman (USAR); Major Anthony Hirsch (USAR-resigned); Major Jonathan Judy (ARNG); 

Major Fred Keller (USAR-retired); Major Susan Lindsey (USAR); Major Shane Maher (USAR); 

Major Alexis Melendez (USAR); Major Christopher Moskoff (USAR); Major Freddy Munoz (ARNG); 

Major Daniel Nichols (USAR); Major Scott Slaugh (USAR); Major Scott Wyly (USAR); Captain 

Justin McGinley (USAR); Captain Matthew Silva (USAR); First Lieutenant Joseph Hoffman 

(ARNG); Chief Warrant Officer 4 Nicholas Capozzi (USAR-retired); Chief Warrant Officer 3 Timothy 

Brooks (USAR); Command Sergeant Major Erich Muehleisen (USAR); Sergeant First Class Carona 

Brown (USAR); and Sergeant First Class Danika Woodland (USAR). See ECF 106–107. For clarity, 

in summarizing the background of this case, the Court focuses on the experiences of the initial 

11 plaintiffs as representative of the growing number of parties to this litigation.
3

own housing; nor did plaintiffs’ CONOPS or ADOS orders authorize the 

transportation of household goods from their primary residences to their PDS at 

government expense. Mobilization and deployment orders for reservists with 

dependents further did not authorize the relocation of the members’ dependents to 

the members’ PDS at government expense.

During their periods of deployment, each plaintiff requested two housing 

allowances from the Army: a basic allowance for housing (BAH) to maintain their 

primary (domestic) residence and an overseas housing allowance (OHA) to subsidize

their PDS off-base housing. Unlike active duty service members, reservists

generally return to their primary residences at the conclusion of their deployments

to resume their civilian lives and part-time military duties. For nine (of the eleven) 

plaintiffs, the Army initially approved the requested dual housing allowances and 

remitted monthly BAH and OHA payments.

In October 2016, the U.S. Army Garrison Wiesbaden Finance Office 

identified approximately 140 USAR and National Guard members suspected of 

collecting excessive or unauthorized dual housing allowances and forwarded its 

findings to the Army Criminal Investigation Division (Army CID). See ECF 70 at 

32–34.4 Army CID, in turn, initiated criminal investigations of the identified

service members–including six (of the nine) plaintiffs receiving both BAH and 

OHA–for alleged housing allowance fraud, theft, and/or larceny.5 In Major Copas’

case, court-martial proceedings were commenced. At the conclusion of the

investigations, the six plaintiffs under investigation by Army CID received General

Officer Memoranda of Reprimand (GOMOR) from the Commanding General. 

All nine plaintiffs receiving BAH and OHA payments were ordered to repay the 

Army between $5,500 and $136,000, of which six plaintiffs were subject to wage

garnishments between $5,500 and $30,000, and an overlapping six plaintiffs 

forfeited BAH on their primary residences ranging from $12,500 and $30,000. As

for the two plaintiffs who were not initially approved for dual housing allowances,

Major Walters was instructed to elect either BAH or OHA, and Major Erickson 

was authorized to receive only BAH.

4 Unless otherwise noted, all ECF citations refer to Wolfing docket entries.

5 The six plaintiffs investigated by Army CID were Colonel Gulley, Colonel Wolfing, Major Copas, 

Major Mirabal, Captain Gardiner, and Captain Kibodeaux. Colonel Gulley was also the subject of 

a U.S. European Command Inspector General (USEUCOM-IG) investigation.
4

After a subset of plaintiffs pursued relief through their respective chains 

of command and administrative channels with limited success,6 on April 9, 2018, 

seven plaintiffs commenced this action by filing the Wolfing complaint.7 Thereafter, 

on September 9, 2021, two additional plaintiffs (now four) filed the related Gulley 

complaint.8 In both actions, the named plaintiffs seek to certify classes of similarly 

situated USAR members.9 In the interim, on August 29, 2019, the Court denied 

defendant’s motion to dismiss the Wolfing complaint for lack of subject matter

jurisdiction pursuant to Rule 12(b)(1) of the Rules of the United States Court of 

Federal Claims (RCFC); concomitantly, the Court granted defendant’s motion for a 

voluntary remand to the ABCMR. See Wolfing v. United States, 144 Fed. Cl. 516 

(2019) (Wolfing I).

On August 10, 2021, the ABCMR issued separate decisions granting 

administrative relief to the seven Wolfing plaintiffs. Specifically, the Board found 

the USAR members were authorized to receive dual housing allowances and, 

consequently, directed that the members’ military records be corrected to reflect 

their entitlement to: both BAH (for their primary residences) and OHA (for their 

PDS off-base housing during periods of overseas deployment); the refund of any 

garnishments; payment of any housing allowances forfeited; expunge of all adverse 

information related to the Army’s investigations into the alleged overpayments; and 

the convening of special selection boards (SSBs) for any plaintiffs non-selected 

for promotion during which time adverse information (now-purged) was included in 

their military personnel records. See ECF 52-1 to 52-7. On August 27, 2021, the

6 Colonel Wolfing, for example, was able to retire at his current grade and recoup his entitlement 

to BAH for his primary residence; the record is silent on whether the Army sought repayment of 

OHA remitted and whether Colonel Wolfing’s GOMOR was formally rescinded. Captain Kibodeaux’s 

GOMOR was removed from his permanent military personnel file but not formally rescinded; 

nevertheless, Captain Kibodeaux’s alleged OHA debt remained, and his garnishment continued. 

The record presented is unclear as to whether any other plaintiffs received administrative relief 

prior to filing this action.

7 The original Wolfing plaintiffs included Colonel Wolfing, Major Copas, Major Mirabal, 

Major Morelli, Major Schneck, Captain Gardiner, and Captain Kibodeaux.

8 The original Gulley plaintiffs included Colonel Gulley and Major Walters. By Order dated April 12, 

2022, the Court granted plaintiffs’ motion to add Lieutenant Colonel Connelly and Major Erickson.

See ECF 81.

9 Although both complaints were titled “Class Action Complaint,” the motions for class certification 

were not contemporaneously filed. Compare Wolfing ECF 1 (complaint filed Apr. 9, 2018) with 

Wolfing ECF 70 (motion to certify class filed Jan. 24, 2022); compare Gulley ECF 1 (complaint 

filed Aug. 9, 2021) with Gulley ECF 6 (motion to certify class filed Sept. 29, 2021). At the parties’ 

joint request, briefing on the class certification issue was stayed pending the Court’s resolution 

of the overarching statutory and regulatory issues addressed herein. See ECF 92. The Court 

thereafter denied the duplicative motion (filed in Gulley) as moot and, again at the parties’ joint 

request, continued the stay of the motion for class certification filed in Wolfing pending conclusion 

of the remand proceedings directed in this Opinion and Order. See ECF 106.
5

Secretary of the Army formally approved the ABCMR’s recommendations. The 

Army then transmitted the Wolfing plaintiffs’ corrected military records to the 

Department of Defense, Defense Finance and Accounting Service (DFAS), for 

evaluation, processing, and payment of backpay due.10

On January 27, 2022, DFAS issued a memorandum concluding that, based 

upon the factual records presented, none of the Wolfing plaintiffs save Major Morelli

(who had no dependents at any time relevant hereto) were entitled to the contested 

secondary housing allowances. DFAS explained that under the governing statute, 

37 U.S.C. § 403, all service members entitled to basic pay are entitled to one

housing allowance: either BAH or OHA, depending on the location of their primary 

residence (i.e., domestic or overseas). DFAS noted that § 403 provides only the 

following two exceptions to the one-housing-allowance limit.

First, § 403(d) permits the payment of a family separation housing allowance 

(FSH) to all services members (active duty and reserve component alike) with

dependents who do not accompany the member to their PDS or otherwise reside 

near the PDS. Known as FSH-B or FSH-O, depending on whether the deployment 

is domestic or overseas, FSH is paid at the same rate as BAH or OHA for the 

member’s PDS. Because the corrected military records transmitted to DFAS did not

conclusively document whether the six Wolfing plaintiffs with dependents were

in fact separated from their dependents during all or part of their overseas 

deployments, DFAS found that it lacked critical information to determine whether 

FSH-O was authorized.

Second, § 403(g) allows reservists without dependents to receive both BAH to 

maintain their primary residence and OHA to subsidize their PDS off-base housing 

during periods of overseas deployment. As the sole claimant without dependents, 

DFAS concluded Major Morelli was entitled to the dual housing allowances

requested. Accordingly, in early 2022, DFAS approved, processed, and remitted 

payment to Major Morelli in the aggregate amount of $19,618.71 in back pay. 

See ECF 85 at 46. 

10 By federal regulation governing the ABCMR:

(i) The ABCMR will furnish DFAS copies of decisions potentially affecting monetary 

entitlement or benefits. The DFAS will treat such decisions as claims for payment by 

or on behalf of the applicant.

(ii) The DFAS will settle claims on the basis of the corrected military record. The 

DFAS will compute the amount due, if any. The DFAS may require applicants to 

furnish additional information to establish their status as proper parties to the claim 

and to aid in deciding amounts due. . . . The applicant’s acceptance of a settlement 

fully satisfies the claim concerned.

32 C.F.R. § 581.3(h)(2)(i)–(ii) (emphasis added).
6

Pending before the Court is defendant’s motion for a second voluntary 

remand to the ABCMR to determine: whether the relief awarded Major Morelli 

during the initial remand constituted an appropriate exercise of discretion by 

the Secretary of the Army; and whether the six Wolfing plaintiffs with dependents 

are statutorily permitted to receive FSH-O for some or all of their periods of 

overseas deployment (i.e., whether they and their dependents were in fact separated

during the deployment). Concomitantly, defendant seeks to have the ABCMR 

assess whether the military records of the four Gulley plaintiffs and the 22 newly 

joined plaintiffs–with and without dependents–should be corrected to reflect their 

entitlement and award of dual housing allowances: BAH and OHA for service 

members without dependents, and BAH and FSH-O for service members with 

dependents.11 In turn, plaintiffs seek to file an amended complaint to assert an 

alternative theory of monetary relief for service members with dependents that 

were deemed ineligible (in whole or in part) to recover OHA or the equivalent FSHO. Plaintiffs proffered alternative theory is based on the Travel and Transportation 

Allowances (Per Diem) statute, 37 U.S.C. § 474 (2016) (repealed and recodified at 

37 U.S.C. § 452 (2021)), and the implementing United States Department of 

Defense (DOD) regulations.

The parties agree a second remand is warranted to address the issues 

outlined above. So does the Court. In addressing reservists with dependents’

entitlement to FSH-O, the Secretary of the Army should also consider whether a 

dependent residency waiver is appropriate given the general need for reservists 

to return to their primary residence following their deployment. The purpose of 

this Opinion and Order is to resolve the contested statutory and regulatory issues 

governing reservists’ housing allowance entitlements during periods of deployment. 

For the reasons set forth herein, plaintiffs’ motion to file an amended complaint 

to assert an alternative theory of monetary relief (ECF 96) is GRANTED, and 

defendant’s motion to remand this matter to the ABCMR (ECF 72) is GRANTED

with the instructions specified herein.

11 The Gulley plaintiffs with dependents include Colonel Gulley and Lieutenant Colonel Connelly. 

Major Erickson and Major Walters did not have dependents at any time relevant hereto. The newly 

joined 22 plaintiffs similarly include current and former reservists, presumably with and without 

dependents.
7

ANALYSIS

I. Housing Allowance Entitlement 

A. Basic Allowance for Housing12

BAH is a military allowance intended to subsidize the cost of domestic 

housing for service members (active duty and reserve component alike) who do 

not receive government-provided housing. The amount of the monthly stipend 

generally depends on where the service member resides, their pay grade, and 

whether they have dependents.13 Title 37, United States Code, Section 403(a) 

establishes a “[g]eneral entitlement” for members of the uniformed services to be 

paid BAH if they are authorized to receive basic pay.14 Although there are specified 

exemptions and limitations to the housing allowance entitlement,15 § 403(a) is 

a money-mandating statute. Wolfing I, 144 Fed. Cl. at 520 (quoting 37 U.S.C. 

§ 403(a)); see Deggins v. United States, 178 F.3d 1308, No. 98-5057, 1998 WL 

804563, *3 (Fed. Cir. 2000) (per curiam) (table) (contrasting discretionary nature 

of variable housing allowance statute, 37 U.S.C. § 403a (repealed 1998), with 

entitlement under BAH statute, id. § 403(a)). OHA is the basic allowance for 

housing generally applicable to service members on active duty outside the 

United States. Compare 37 U.S.C. § 403(b) with id. § 403(c); see JTR Ch. 10, Part A, 

¶ 10002(A) (ECF 85 at 74–75).

Generally, under the BAH/OHA entitlement structure, service members of 

the same rank, dependency status, and PDS location receive housing allowances 

at the same rate. As detailed infra, however, applicable laws and implementing 

regulations augment the general one-housing-allowance limit, reflecting 

congressional and secretarial intent to accommodate the diverse circumstances 

12 Throughout this Opinion and Order, the Court purposely uses “basic allowance for housing” 

(spelled out) to refer generally to a military housing allowance without regard to location or rate. 

The Court uses the acronym “BAH” to refer specifically to a United States-based housing allowance

as opposed to “OHA,” which refers to the basic allowance for housing typically paid to service 

members deployed overseas.

13 See https://militarypay.defense.gov/pay/allowances/bah.aspx (last visited Nov. 28, 2022).

14 The basic pay entitlement statutes for active duty service members, reservists, and members of 

the National Guard are found at 37 U.S.C. §§ 204 & 206.

15 Statutory exceptions to the BAH general entitlement include instances where: a service member 

is assigned adequate government housing, see 37 U.S.C. § 403(e)(1); a service member without 

dependents initially deploys “for assignment to a unit conducting field operations,” id. § 403(f)(1); 

and a service member below a certain rank without dependents “is assigned to sea duty,” id. 

§ 403(f)(2). Like the general entitlement codified at § 403(a), these exceptions are similarly nuanced 

and are not absolute. 
8

in which the United States’ over two million service members find themselves. 

For example, Congress and the Secretary of Defense have devised special housing 

allowance rules for reservists and active duty service members whose deployments 

prevent them from residing with their dependents. At the same time, Congress and 

the Secretary have implemented strict housing allowance eligibility requirements 

designed to prevent housing allowance fraud, waste, and abuse. As highlighted 

herein, the regulations enacted to meet service members’ nuanced housing needs 

do not always align with the rules enacted to prevent housing allowance fraud.

While the rate of a service member’s BAH or OHA entitlement is typically 

based on the service member’s PDS location, federal law creates two exceptions 

relevant here. First, § 403(d) provides: “If a [service] member [(active duty or 

reserve component)] with dependents is assigned to duty in an area that is different 

from the area in which the member’s dependents reside,” the service member’s 

BAH or OHA rate shall be based “on the area in which the dependents reside or

the member’s last duty station, whichever the Secretary concerned determines to 

be most equitable.”16, 17 37 U.S.C. § 403(d)(3)(A) (emphasis added). Thus, while 

the payment of BAH or OHA remains an entitlement, the military Secretaries are 

vested with discretion to determine the most appropriate BAH/OHA rate where a 

service member and their dependents reside separately due to the member’s active 

duty deployment.18 The Secretary of Defense elected to base the affected service 

16 Reservists, unlike their active duty counterparts, often do not have a “last duty station” because 

they are typically deployed from their primary residence rather than from a duty station. The 

Secretary of Defense accordingly determined, for housing allowance purposes, a reservist’s “last duty 

station” is their primary residence (i.e., residence from which they were deployed). See ECF 85 at 41.

17 Section 403(d)(3) provides the Secretary with similar discretion in situations where the service 

member’s new assignment is “under the conditions of a low-cost or no-cost permanent change of 

station or permanent change of assignment,” see id. § 403(d)(3)(B), or “for a period of not more than 

one year for the purpose of participating in professional military education or training classes,” 

see id. at § 403(d)(3)(C).

18 37 U.S.C. § 403 confers some discretionary authority in “the Secretary concerned,” see, e.g., id.

§ 403(d)(3)(A), but vests general rulemaking authority under this section in the Secretary of Defense. 

See id. § 403(k)(1). In this case, “the Secretary concerned” is the Secretary of the Army. See id.

§ 101(5). However, for the times relevant hereto, the Secretary of the Army deferred “[c]onditions 

of entitlements and rates payable” for housing allowances to the Secretary of Defense. See Army 

Regulation (AR) 37-104-4, Ch. 12, §§ 12–1 & 13–1 (2005) (superseded by AR 637–1 (July 2021)). 

In turn, the Secretary of Defense promulgated the Financial Management Regulations (FMR) and 

Joint Federal Travel Regulations (JFTR), which merged with the Joint Travel Regulations (JTR) in 

October 2014. See https://www.travel.dod.mil/Policy-Regulations/Joint-Travel-Regulations/Archive/

(last visited Nov. 16, 2022). Since the causes of action in this case began accruing in or about 

October 2016, the bulk of the regulations relevant hereto are found in the October 1, 2016 edition of 

the JTR. The “Housing Allowances” chapter (Chapter 10) of the October 1, 2016 edition of the JTR 

was appended to plaintiffs’ supplemental brief. See ECF 85 at 65–166.
9

members’ BAH or OHA entitlement on the location where the member’s dependents 

reside.19 See, e.g., JTR Ch. 10, Part E, Table 10E-3, Rule 4 (ECF 85 at 122).

The second exception is found in the DOD Joint Travel Regulations, which 

provide:

A[ reserve component] member called/ ordered [sic] to active duty 

for more than 30 days, except a member without dependents during 

initial entry training, is authorized primary residence-based BAH/OHA 

beginning on the first active duty day. This rate continues for the 

tour duration except as noted . . . .

JTR Ch. 10, Part E, ¶ 10428(E)(1) (ECF 85 at 164) (emphasis added).20 In turn, 

the regulations state that “primary residence” as understood in “Primary Residence 

of Reserve Component (RC) Member . . . ordered to active duty” is defined as the

“dwelling . . . where the RC member resides before being ordered to active duty.” 

See JTR App. A, Part 1 at A1-37 (ECF 85 at 173). Accordingly, this DOD regulation 

provides another means by which a service member’s BAH or OHA rate may be 

based on a location other than their PDS.

B. Dual Housing Allowances

Plaintiffs claim entitlement to two housing allowances during their periods 

of deployment: BAH for their primary residence (from which they were deployed) 

and OHA for their overseas (non-military) housing. To assess plaintiffs’ claims, the 

Court proceeds from the longstanding tenet that “[a] soldier’s entitlement to pay is 

dependent upon statutory right.” Bell v. United States, 366 U.S. 393, 401 (1961). 

The applicable statute in this case generally entitles a service member to one

housing allowance:

19 Even though these members’ statutory housing entitlement is not based on their PDS, they are 

generally eligible to also receive a statutorily discretionary PDS-based allowance in the form of the 

“family separation basic allowance for housing” (FSH), see 37 U.S.C. § 403(d)(1), discussed infra.

20 However, if a reservist called to active duty training (ADT) for at least 140 days is authorized to 

transport their household goods from their primary residence to their PDS at government expense, 

their housing allowance will be based on the location of their PDS. See JTR Ch. 10, Part E, 

¶ 10428(E)(1)(a) (ECF 85 at 164). Likewise, if a reservist called to active duty for something other 

than ADT for at least 180 days is authorized to transport their household goods at government 

expense, their housing allowance will be based on the location of their PDS. See id. ¶ 10428(E)(1)(c) 

(ECF 85 at 164).
10

General entitlement. . . . Except as otherwise provided by law, 

a member of a uniformed service who is entitled to basic pay is 

entitled to a basic allowance for housing . . . . The amount of 

the basic allowance for housing for a member will vary . . . . 

The basic allowance for housing may be paid in advance.

37 U.S.C. § 403(a) (bold in original; italics added). Where the statute permits 

dual housing allowances the language is clear. See, e.g., id. § 403(d)(4) (“A family 

separation basic allowance for housing paid to a member under this subsection is 

in addition to any other allowance or per diem that the member receives under this 

title. A member may receive a basic allowance for housing under both paragraphs 

(1) and (3).” (emphasis added)); id. § 403(g)(2) (“The member may receive both a 

basic allowance for housing under paragraph (1) and under this paragraph for the 

same month . . . .” (emphasis added)).

Plaintiffs’ claimed dual housing allowance entitlements must be analyzed 

under different statutory and regulatory schemes depending on whether or not the 

reservist had dependents during the time of their deployment. Plaintiffs without 

dependents include Major Erickson, Major Morelli, and Major Walters. Plaintiffs 

with dependents include Colonel Gulley, Colonel Wolfing, Lieutenant Colonel 

Connelly, Major Copas, Major Mirabal, Major Schneck, Captain Gardiner, and 

Captain Kibodeaux.

i. Reservists Without Dependents

As with all service members entitled to basic pay, reservists without 

dependents are statutorily entitled to one BAH/OHA. Section 403(g)(1) provides:

A member of a reserve component without dependents who is called 

or ordered to active duty to attend accession training, in support of a 

contingency operation, or for a period of more than 30 days . . . may not 

be denied a basic allowance for housing if, because of that call or order, 

the member is unable to continue to occupy . . . [their] primary 

residence . . . [if] owned by the member or for which the member 

is responsible for rental payments.

37 U.S.C. § 403(g)(1) (emphasis added). The phrase “may not be denied” in

§ 403(g)(1) unequivocally denotes an entitlement. While the governing statute is 

silent as to the rate of the housing allowance, the DOD Joint Travel Regulations 

specify the entitlement is typically based on the location of the service member’s 

primary residence. See JTR Ch. 10, Part E, ¶ 10428(E) (ECF 85 at 164). An 

exception applies where the reservist is authorized transportation of household 

goods from their primary residence to their PDS at government expense; in that 
11

case, PDS rather than primary residence sets the applicable rate. See id.

¶ 10428(E)(1)(a) & (c) (ECF 85 at 164).

Section 403(g) also permits–but does not require–military Secretaries to 

remit a second housing allowance to reservists without dependents so long as they 

are not authorized transportation of household goods:

The Secretary concerned may provide a basic allowance for housing to 

a [reserve component member without dependents] at a monthly rate 

equal to the rate of [BAH] or [OHA], 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 basic 

allowance for housing under [§ 403(g)](1) and under this paragraph for 

the same month, but may not receive [per diem] for lodging expenses if 

a basic allowance for housing is provided under this paragraph.

37 U.S.C. § 403(g)(2) (emphasis added). 

Read together, the statutory provisions indicate that a reservist without 

dependents (and not authorized transportation of household goods) may receive 

dual BAH/OHA: the first (mandatory) housing allowance is based on their primary 

residence under § 403(g)(1); and the second (discretionary) housing allowance

is based on their PDS under § 403(g)(2). If a reservist without dependents is

authorized transportation of household goods, they are entitled to (and permitted) 

only one housing allowance based on their PDS. See 37 U.S.C. § 403(a), (g)(3); JTR

Ch. 10, Part E, ¶ 10428(E)(1)(a), (c) (ECF 85 at 164). The rationale is presumably 

that the movement of all personal belongings to the PDS obviates the need to 

maintain a primary residence in the location from which the reservist was deployed.

Further, where, as here, the Secretary of Defense is statutorily vested with

the discretion to convert the discretionary (second) housing allowance into an

entitlement, see 37 U.S.C. § 403(k) (“The Secretary of Defense shall prescribe 

regulations for the administration of this section.”), the record must document the 

affirmative act establishing the entitlement. The DOD Joint Travel Regulations 

do not create a second housing allowance entitlement for otherwise qualified 

reservists. To the contrary, the Decision Logic Table for Reserve Component 

Members explains: when a reservist is deployed on active duty away from their 

primary residence (and not authorized transportation of household goods), they 

will receive “primary residence-based BAH/OHA.” See JTR Ch. 10, Part E, ¶ G at 

Table 10E-16, Rules 1–2, 5–6 (ECF 85 at 165). The table makes no mention of an 

additional housing allowance based on PDS or otherwise. The “primary residencebased BAH/OHA” to which the table refers is the same allowance reservists without

dependents are entitled to receive under § 403(g)(1). 
12

Moreover, “NOTE 5” cited in Rule 5, referenced supra, provides: 

A[ reserve component (RC)] member without dependents authorized 

[permanent change of station (PCS)] allowances to an OCONUS 

location, but not authorized [household goods] transportation, and 

Gov’t Qtrs are not available, receives BAH/OHA based on the primary 

residence rate, unless the Secretarial Process authorizes/approves the 

PDS rate . . . . 

JTR Ch. 10, Part E, ¶ G at Table 10E-16 n.5 (ECF 85 at 166). By reserving 

the right to authorize or approve a discretionary PDS-based housing allowance 

instead of a primary residence-based housing allowance, the implementing 

regulation impliedly does not mandate the payment of a PDS-based (or second) 

housing allowance.21

To be clear, the DOD Joint Travel Regulations are consistent with § 403. 

As demonstrated by this case, however, the statute and implementing regulations 

can generate inequitable results. For example, when called to active duty and 

deployed, a reservist not provided PDS government housing and not authorized 

transportation of household goods is entitled to only one housing allowance despite 

having to maintain two households (i.e., primary residence and PDS housing). 

Meanwhile, a reservist provided PDS government housing is entitled to the same 

primary residence-based allowance while living rent free at their PDS. Similarly, 

a reservist authorized transportation of household goods will receive a PDS-based 

housing allowance, which obviates their need to maintain the now-empty primary 

residence. In other words, reservists who need to maintain two residences are

entitled to the same or even a lesser housing allowance than similarly situated 

reservists who need to maintain only one.22

21 As noted supra, the Secretary of the Army, through the ABCMR, authorized and approved the 

payment of both BAH and OHA to Major Morelli. The Court remains agnostic on whether the 

discretionary OHA payment was proper and whether Major Erickson and Major Walters should 

similarly receive a second housing allowance.

22 As noted supra, military Secretaries may authorize a housing allowance based on a reservist’s 

PDS rather than the location of their primary residence where a primary residence-based housing 

allowance would be inequitable. See JTR Ch. 10, Part E, ¶ 10428(E)(1)(e) (ECF 85 at 164–65). This 

may provide some relief, as PDS-based allowances tend to be higher than primary residence-based 

housing allowances, particularly if overseas; however, this difference will rarely, if ever, account for 

the cost of maintaining two residences rather than one.
13

ii. Reservists With Dependents

1. Dependents Not Residing At or Near PDS

By statute, a service member (active duty or reserve component) with 

dependents “assigned to duty in an area that is different from the area in which the 

member’s dependents reside . . . is entitled to [BAH or OHA], whichever applies to 

the member, . . . based on the area in which the dependents reside or the member’s 

last duty station, whichever the Secretary concerned determines to be most 

equitable.” See 37 U.S.C. § 403(d)(3)–(d)(3)(A) (referencing 37 U.S.C. § 403(b) & (c)). 

As explained supra, a reservist’s “last duty station” refers to the member’s primary 

residence from which they were activated. Moreover, as codified in the governing 

statute, this basic housing allowance is an “entitle[ment].” See id. § 403(d)(3). 

Like § 403(g), § 403(d) also permits–but does not require–military Secretaries 

to remit a second housing allowance to active duty service members and reservists 

with dependents, subject to the following conditions: dependent relocation is not 

authorized at government expense; “the member’s dependents do not reside at or 

near the [PDS]”; and the member is not assigned government quarters. 37 U.S.C. 

§ 403(d)(1)–(2). Indeed, § 403(d)(4) provides: 

A family separation basic allowance for housing paid to a member 

under this subsection is in addition to any other allowance or per diem 

that the member receives under this title. A member may receive a 

basic allowance for housing under both paragraphs (1) [i.e., FSH] and

(3) [i.e., BAH or OHA]. 

Id. § 403(d)(4) (referencing 37 U.S.C. § 403(d)(4)(1) & (3)) (emphasis added). In 

accordance with § 403(d), discussed supra, a qualifying service member necessarily 

receives BAH or OHA based on either their dependents’ location or their last duty 

station (or primary residence in the case of a reservist). The discretionary FSH, 

in turn, is paid at the same rate as BAH/OHA for members without dependents 

at the qualifying service member’s PDS.23 37 U.S.C. § 403(d)(1) (referencing 

37 U.S.C. § 403(b) & (c)).

In promulgating the DOD Joint Travel Regulations, the Secretary of Defense 

converted the discretionary FSH into an entitlement for qualifying members. 

Specifically, the regulations provide:

23 Military Secretaries may authorize FSH-B or FSH-O for qualifying members stationed

domestically or overseas, respectively. See JTR Ch. 10, Part A, ¶ 10002(B)(3) (ECF 85 at 75).
14

3. FSH is payable to a member, with dependents, for added housing 

expenses resulting from separation from the dependents when a 

member is assigned to a/an

a. OCONUS PDS on an unaccompanied/dependent restricted 

tour, or

b. PDS in CONUS to which concurrent travel has been denied.

4. General conditions are:

a. Dependent transportation to the PDS is not authorized at 

Gov’t expense under 37 USC §[]476;

b. Dependents do not reside in the PDS vicinity; and

c. Gov’t Qtrs are not available for assignment to the member.

JTR Ch. 10, Part E, ¶ 10414(A)(3)–(4) (ECF 85 at 143) (emphasis added). The 

phrase “is payable” denotes an entitlement. See, e.g., Eastman v. United States,

33 Fed. Cl. 293, 297–98 (1995) (finding payment mandated by a Federal Travel 

Regulation that provided: “travel and transportation expenses . . . are payable”) 

(emphasis added; citations omitted); see also Payable (adj.), Black’s Law Dictionary

(11th ed. 2019) (defining “payable” as “([o]f a sum of money or a negotiable 

instrument) that is to be paid.”) (emphasis added). This interpretation is reinforced 

by the language in JTR Ch. 10, Part E, ¶ 10404(A)(2)(b), which provides: “If singletype Gov’t Qtrs are not available for a member assigned to an OCONUS PDS, and 

the dependent does not reside in the PDS vicinity, then FSH is also authorized.” 

Id. (ECF 85 at 121) (emphasis added); see also JTR Ch. 10, Part E, ¶ 10404(B) 

Table 10E-3, Rules 4 & 8 (ECF 85 at 122) (authorizing BAH/OHA and FSH-B/FSHO to eligible members); JTR App A, Part 1 at A1-424 (defining “AUTHORIZE(D)” 

as “[t]he giving, through these regulations, of an allowance to an eligible individual 

requiring no other action”).

In addition to creating an entitlement to FSH for qualifying service members, 

the DOD Joint Travel Regulations clarify two issues on which § 403 is silent: (1) the 

statutory BAH/OHA entitlement is to be paid to FSH-qualifying members at the 

with-dependent rate for the area in which the service member’s dependents reside; 

and (2) the regulatory FSH entitlement is to be paid at the without-dependent 

24 Not all DOD Joint Travel Regulations provisions were appended to the parties’ briefs. A complete 

October 2016 edition is available at https://www.travel.dod.mil/Policy-Regulations/Joint-TravelRegulations/Archive/ (last visited Nov. 28, 2022).
15

BAH/OHA rate for the member’s PDS. See JTR Ch. 10, Part E, ¶ 10404(B) 

Table 10E-3, Rules 4 & 8 (ECF 85 at 122).

2. Dependents Residing “At or Near” PDS

Service members whose dependents reside “at or near” their PDS are 

generally barred from receiving dual BAH/OHA and FSH allowances under 

both § 403 and the implementing DOD Joint Travel Regulations. See 37 U.S.C. 

§ 403(d)(2)(A) (conditioning entitlement to FSH upon whether, inter alia, “the 

member’s dependents do not reside at or near the [PDS] location”); JTR Ch. 10, 

Part E, ¶ 10414(A)(4)(b) (ECF 85 at 143) (conditioning entitlement to FSH upon, 

inter alia, whether “[d]ependents do not reside in the PDS vicinity”). The DOD 

Joint Travel Regulations qualify this general prohibition by quantifying the 

disqualifying dependents’ living situations and by specifying the necessary 

residency requirements. 

First, addressing the number of dependents which cause disqualification or 

discontinuation of an otherwise qualified service member’s entitlement to FSH, 

the DOD Joint Travel Regulations provide:

Dependents Reside in the Member’s PDS Vicinity. FSH-O/FSH-B is 

not authorized if all of the member’s dependents reside in the PDS 

vicinity. If some (but not all) of the dependents voluntarily reside near 

the PDS, FSH-O/FSH-B continues. See par. 10000-C for definition of 

vicinity.

JTR Ch. 10, Part E, ¶ 10414(E) (ECF 85 at 144) (underline in original; italics 

added). By conditioning FSH disallowance (or discontinuance) on the requirement 

that “all” dependents effectively reside with the service member (i.e., “at or near” 

or “in the vicinity of” the PDS), the regulation accommodates the realities of diverse

family relationships and living arrangements.25 The regulation further reflects 

secretarial understanding that the need to maintain two residences does not 

disappear when some, but not all, of a service member’s dependents reside with 

them.

Second, the DOD Joint Travel Regulations establish a 90-day limit on 

dependents’ visits with service members before automatically converting the visit 

to formal residency for purposes of discontinuing FSH eligibility. The “Temporary 

Social Visits by Dependent” provision of the governing regulation provides that a 

25 A service member disqualified for FSH because all of their dependents reside at or near the 

PDS is still subject to the default rule under § 403(a), which entitles them to BAH/OHA at the 

with-dependent rate for their PDS if they are not provided adequate government housing at the 

PDS. See 37 U.S.C. § 403(a).
16

dependent effectively establishes residency “at or near the member’s PDS” for FSH

purposes if the dependent: visits the PDS intending to relocate there or otherwise 

stays beyond 90 continuous days, see JTR Ch. 10, Part E, ¶ 10414(D)(1) (ECF 85 at 

144); or stays at the PDS for longer than 90 continuous days regardless of intent, 

see JTR Ch. 10, Part E, ¶ 10414(D)(2) (ECF 85 at 144). 

Plaintiffs argue the 90-day rule is intended to prevent housing allowance 

fraud by active duty service members. According to plaintiffs, the 90-day rule 

prevents an active duty service member from collecting two allowances–one 

for their PDS residence (where they are permanently stationed) and one for their 

dependents’ purported residence (when the service member’s dependents actually 

reside with the member at the PDS) and there is no military-based need for the 

member to maintain two households. Considering the proffered intent of the 90-day 

rule, plaintiffs submit it should not apply to the reserve component since reservists–

assuming they have not been provided government housing at the PDS and have 

not been authorized transportation of household goods at government expense–

inherently need to maintain two residences: a secondary residence at the PDS to 

serve while deployed and a primary residence to return to once their active duty 

service is complete, regardless of whether they reside with their dependents.

This concern is addressed by the DOD Joint Travel Regulations’ third 

qualification to the general requirement that FSH-eligible service members live 

apart from their dependents. Using the vernacular “in the member’s PDS vicinity” 

in place of the statutory language “at or near,” as referenced above, the DOD Joint 

Travel Regulations define “vicinity” as follows: 

When a member resides with the dependent and commutes daily 

to the PDS, the dependent resides in the PDS vicinity regardless of 

distance even if at a place in an adjacent country or state. A dependent 

is residing in the PDS vicinity if residing in the same country, state 

(when in Alaska or Hawaii), or U.S. territory or possession within 

which the member’s PDS is located. However, if the member has to 

maintain separate households, a dependent is not residing in the PDS 

vicinity for FSH purposes if maintaining two households is authorized/ 

approved through the Secretarial Process. . . . 

JTR Ch. 10, Part A, ¶ 10000(C) (Oct. 1, 2016) (ECF 85 at 73) (emphasis added). 

Rather than select an arbitrary measure of distance and draw an imaginary 

boundary around the PDS to distinguish dependents who reside “near” the PDS 

from those who do not, this definition draws upon the practical realities faced by 

service members and their dependents.26 As a result, service members who need to 

26 During oral argument, government counsel suggested that more recent versions of the FMR 

modify the above-quoted definition of vicinity. In examining the language of the December 2019 

and August 2021 versions of the FMR, the Court finds no material changes in substance from the 
17

maintain two households remain eligible–but are not necessarily entitled–to receive 

FSH, whereas those who, for example, commute daily to their PDS from a home 

they share with their dependents no matter the distance may forfeit their eligibility 

to receive FSH.27

The Court recognizes the discretionary nature of the above-highlighted 

needs-based targeted exception: “[I]f the member has to maintain separate 

households, a dependent is not residing in the PDS vicinity for FSH purposes 

if maintaining two households is authorized/approved through the Secretarial 

Process.” See JTR Ch. 10, Part A, ¶ 10000(C) (ECF 85 at 73) (emphasis added). 

The affected plaintiffs concede they did not seek authorization or approval to

maintain two separate households through the Secretarial Process identified in 

JTR Ch. 10, Part A, ¶ 10000(C) (ECF 85 at 73). Rightly so, plaintiffs maintain that 

since they were initially paid (improperly as it turns out) BAH and OHA (rather 

than BAH/OHA and FSH-O/FHS-B), they could not have known they needed to 

utilize the Secretarial Process for FSH eligibility. Indeed, as of the publication of 

this decision, DOD’s Military Compensation website continues to erroneously state 

that service members on unaccompanied tours may receive both BAH and OHA:

If a member is serving an UNACCOMPANIED overseas tour, 

the member is eligible for BAH at the “with dependents” rate, 

based on the dependent’s US residence ZIP Code, plus OHA at 

the “without dependents” rate, if the member is not furnished 

government housing overseas.

See https://militarypay.defense.gov/pay/allowances/bah_types.aspx (last visited 

Dec. 2, 2022). Through this action, plaintiffs seek retroactive and, in certain cases, 

prospective secretarial authorization and approval to maintain separate households 

and, consequently, retain entitlement to BAH/OHA and FSH-B/FSH-O (depending 

upon their PDS and the location of their primary residence). 

October 2016 JTR. Although the first and second sentences in the cited versions of the FMR are 

flipped from the October 2016 JTR, all three definitions focus on the service member’s personal 

(subjective) choice of commute rather than an arbitrary (objective) measure of distance. All three 

definitions similarly include the discretionary needs-based exception emphasized herein.

27 Addressing “Family Separation Allowance,” the Army’s Military Pay and Allowances Policy in

effect during the timeframe relevant here similarly provided:

The purpose of FSH is to pay a member for added housing expenses resulting from 

enforced separation from dependents. This includes soldiers at a duty station within 

50 miles of their family who are restricted to remain on base twenty-four hours a day, 

seven days a week, in excess of thirty consecutive days. 

AR 37-104-4 Ch. 13, § 13-2(a) (2005) (superseded by AR 637–1 (July 2021)).
18

The Court agrees with the government that plaintiffs’ requests for 

secretarial authorization and approval under this provision of the DOD Joint Travel 

Regulations–particularly with regard to retroactive requests–fall within the 

exclusive providence of the Secretary of the Army through the ABCMR. The Court 

further agrees the assessments should be made on a case-by-case basis, taking into 

account: whether the service member’s dependents (one, some, or all) reside(d) at or 

near the PDS; the intended purpose of any dependent visits (i.e., visit or relocation); 

the duration of the cohabitation regardless of intent (i.e., more or less than 

90 consecutive days); and whether the member in fact had/has to maintain separate 

households. Alternatively, the Secretary may decide that a blanket waiver or 

exception, in some form, should be adopted by the Army to account for the general 

need for reservists with dependents to maintain two households regardless of 

where their dependents reside. Either way, this issue must be resolved in the 

first instance by the Army on remand. 

While the Secretary must adhere to the DOD Joint Travel Regulations, as 

highlighted above, the regulations vest considerable discretion in the Secretary to 

authorize or approve FSH in situations where the maintenance of two households 

is deemed necessary regardless of the established living arrangements between a 

service member and their dependents. See JTR Ch. 10, Part A, ¶ 10000(C) (ECF 85 

at 73) (quoted above). The Court leaves to the Secretary of the Army or their 

designee (i.e., ABCMR) to make individualized determinations, grant a blanket 

waiver or exception, or work with the DOD to amend the Joint Travel Regulations

to establish a general FSH entitlement for members of the reserve component

with dependents based upon the presumption that reservists must maintain 

dual households to accommodate their hybrid military service and civilian 

responsibilities. However those issues are ultimately resolved, authorization 

or approval of a second housing allowance under this regulatory scheme is 

discretionary and, thus, effectively nonjusticiable.28 See Voge v. United States, 

844 F.2d 776, 779 (Fed. Cir. 1988) (“Judicial deference must be ‘at its apogee’ in 

matters pertaining to the military and national defense.”) (quoting Rostker v. 

Goldberg, 453 U.S. 57, 70 (1981)). “[J]udges are not given the task of running the 

Army.” Orloff v. Willoughby, 345 U.S. 83, 93 (1953), quoted in Voge, 844 F.2d at 

779.

28 But see Antonellis v. United States, 723 F.3d 1328, 1332 (Fed. Cir. 2013) (“[A]lthough the merits 

of a decision committed wholly to the discretion of the military are not subject to judicial review, 

a challenge to the particular procedure followed in rendering a military decision may present a 

justiciable controversy.”) (quoting Adkins v. United States, 68 F.3d 1317, 1323 (Fed.Cir.1995)).
19

II. Amended Complaint

A. Standard of Review

Under RCFC 15(a)(2), “a party may amend its pleading only with the 

opposing party’s written consent or the court’s leave.” Consistent with the 

governing rule’s directive that leave should be “freely give[n] when justice 

so requires,” this language is “liberally construed.” See 3rd Eye Surveillance, LLC 

v. United States, 140 Fed. Cl. 39, 52 (2018) (citing cases). Nevertheless, the Court 

may deny a party’s request to file an amended pleading where there is evidence of 

undue delay or the proffered amendment would be futile. See A&D Auto Sales, Inc. 

v. United States, 748 F.3d 1142, 1158 (Fed. Cir. 2014).

“In cases in which proceedings have not concluded in the trial court, ‘mere 

delay, without some showing of prejudice, bad faith, or futility [has been found to 

be] insufficient to deny a motion to amend a complaint.’” California ex rel. Yee v. 

United States, 145 Fed. Cl. 802, 811 (2019) (alteration in original) (quoting Alaska v. 

United States, 15 Cl. Ct. 276, 280 (1988)). Here, as explained in supra note 2, 

despite the age of this case, litigation remains in the early stages due in large part

to the government’s first request for a voluntary remand lasting two years. 

Moreover, plaintiffs’ proposed amendment–proffering an alternative theory of 

recovery–was not necessary or even reasonably contemplated until DFAS declared 

that the dual housing allowance payments initially authorized and paid by the 

Army and thereafter sanctioned by the ABCMR were not lawful and, thus, could not 

be remitted. Plaintiffs cannot be penalized for the passage of time stemming from 

the voluntary remand or the time needed to litigate these issues of first impression; 

nor can the government make a credible argument of prejudice or bad faith. 

Accordingly, the sole potential ground upon which to deny the requested 

amendment is futility. 

“A motion to amend may be deemed futile if a claim added by the amendment 

would not withstand a motion to dismiss.” Shoshone Indian Tribe of the Wind River 

Rsrv., Wyo. v. United States, 71 Fed. Cl. 172, 176 (2006) (citing cases); see also 

Kemin Foods, L.C. v. Pigmentos Vegetales Del Centro S.A. de C.V., 464 F.3d 1339, 

1354–55 (Fed. Cir. 2006) (“When a party faces the possibility of being denied leave 

to amend on the ground of futility, that party must demonstrate that its pleading 

states a claim on which relief could be granted, and it must proffer sufficient facts 

supporting the amended pleading that the claim could survive a dispositive pretrial 

motion.”) (citing cases). To survive a motion to dismiss, plaintiffs’ proposed claim 

and supporting factual allegations must at least “plausibly give rise to an 

entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
20

In evaluating futility, courts generally do not engage in an exhaustive 

assessment of the merits of the proffered amendment; rather, review is routinely

limited to “whether a party’s proposed amendment is facially meritless and 

frivolous . . . .” St. Paul Fire & Marine Ins. Co. v. United States, 31 Fed. Cl. 151, 

155 (1994), quoted in Yee, 145 Fed. Cl. at 812. Here, the complex statutory and 

regulatory scheme at play in this case–combined with the critical need for legal 

clarity regarding the issues to be considered on remand–nevertheless warrant 

more extensive analysis of plaintiffs’ proffered alternative theory of recovery. 

B. Futility Analysis: Travel and Transportation Allowances 

(Per Diem) Statute

As a preliminary matter, the Court has subject matter jurisdiction over 

plaintiffs’ alternative claim to monetary relief under the Travel and Transportation 

Allowances (Per Diem) statute, 37 U.S.C. § 474 (2016) (repealed and recodified at 

37 U.S.C. § 452). Indeed, the pre-2021 version of the statute mandates the payment 

of per diem to service members, stating in relevant part:

(a) Except as provided [below] and under regulations prescribed by the 

Secretaries concerned, a member of a uniformed service is entitled to

travel and transportation allowances for travel performed or to be 

performed under orders . . . .

(1) upon a change of permanent station, or otherwise, or when 

away from his designated post of duty regardless of the length 

of time he is away from that post;

(2) upon appointment, call to active duty, enlistment, or 

induction, from his home or from the place from which called or 

ordered to active duty to his first station;

. . .

(d)(1) The travel and transportation allowances authorized for each 

kind of travel may not be more than one of the following:

(2) Under regulations prescribed by the Secretaries concerned, 

a member of a uniformed service entitled to travel and 

transportation allowances under subsection (a) is entitled to

any of the following:

(A) A per diem allowance at a rate not to exceed that 

established by the Secretaries concerned.
21

(B) Reimbursement for the actual and necessary expenses 

of official travel not to exceed an amount established by 

the Secretaries concerned.

(C) A combination of payments described in 

subparagraphs (A) and (B).

37 U.S.C. § 474(a) & (d) (emphasis added)29; see 28 U.S.C. § 1491(a)(1) (granting 

Court of Federal Claims “jurisdiction to render judgment upon any claim against 

the United States founded . . . upon . . . any Act of Congress”), cited in United States 

v. Testan, 424 U.S. 392, 400–01 (1976) (Court of Federal Claims’ jurisdiction is 

limited to claims arising under money-mandating federal statutes).

The futility assessment of plaintiffs’ proposed claim turns on whether 

plaintiffs are plausibly among the group of service members entitled to per diem 

under § 474. Since the military Secretaries are charged with administering 

regulations concerning “the conditions under which travel and transportation 

allowances are authorized,” 37 U.S.C. § 474(b)(1)(A), plaintiffs’ potential 

entitlement to per diem is determined by the DOD Joint Travel Regulations. 

Under the regulations, if plaintiffs’ activation orders are temporary duty (TDY) 

orders rather than permanent change of station (PCS) orders, they are generally 

entitled to the claimed per diem. See JTR Ch. 4, Part B, ¶ 4050(A)(5) (“Per diem is 

applicable for all TDY and [permanent duty travel (PDT)] periods; except when an 

[Actual Expense Authorization (AEA)] is authorized/approved.”) (emphasis added). 

The relevant portions of plaintiffs’ activation orders directed plaintiffs to 

return to their homes at the end of their deployments. See, e.g., ECF 96 at 16 

(“Upon completion of this duty, unless sooner released, you will return to your home 

and upon arrival be released from active duty.”). Critical to the plausibility of 

plaintiffs’ proposed claim, TDY orders may command a member to return to their 

last duty station, while PCS orders may not. Compare JTR App. A, Part 1 at A1-43 

(defining “Temporary Duty (TDY)” as including: “Duty at one or more locations, 

away from the PDS, under an order providing for further assignment, or pending 

further assignment, to return to the old PDS or to proceed to a new PDS.”)

(emphasis added) with id. at A1-32 (defining “Permanent Change of Station (PCS)

as: “The assignment, detail, or transfer of an employee, member, or unit to a 

different PDS under a competent travel order that does not specify the duty as 

29 The current version of the per diem statute, in contrast, is permissive. See 37 U.S.C. § 452(a) 

(“Except as otherwise prohibited by law, a member of the uniformed services or other authorized 

traveler may be provided transportation, lodging, or meals-in-kind, or actual and necessary expenses 

of travel and transportation, for, or in connection with, official travel under circumstances as 

specified in regulations prescribed under section 464 of this title.”) (emphasis added).
22

temporary, provide for further assignment to a new PDS, or direct return to the 

old PDS.”) (emphasis added).

Since a reservist’s home is considered their last (or old) PDS for housing 

allowance purposes, see supra note 16, it is plausible that a reservist’s home is

similarly considered their last (or old) PDS for purposes of interpreting or 

categorizing activation orders. Accordingly, in directing plaintiffs to return their 

homes, plaintiffs’ activation orders may have effectively directed plaintiffs to their 

last (or old) PDS. If this argument succeeds, plaintiffs’ orders would fit the 

regulatory definition of TDY orders rather than PCS orders.

In contradistinction, the government cites the DOD Joint Travel Regulations

addressing “Special Circumstances Travel and Transportation” and, in particular, 

“Reserve Component (RC) Travel,” in support of defendant’s position that valid 

PCS orders may direct a reservist to “return to [their] primary residence or [Place 

Entered Active Duty (PLEAD)]” without necessarily converting them to TDY orders. 

See JTR Ch. 7, Part K ¶ 7355(A); e.g., id. ¶ 7355(F) (distinguishing between 

TDY and PCS orders in discussing per diem and AEA payments). Although the 

government’s position may ultimately prevail, at this juncture, the Court cannot

conclude that plaintiffs’ proposed alternative claim for relief is “facially meritless 

and frivolous.” See St. Paul Fire & Marine Ins., 31 Fed. Cl. at 155, quoted in Yee, 

145 Fed. Cl. at 812.

That TDY orders are usually limited to 180 days, see JTR Ch. 2, Part C, 

¶ 2230(B)(1), is similarly not fatal to plaintiffs’ claimed entitlement to per diem as 

an alternative to FSH. While plaintiffs’ activation orders provide for deployment 

exceeding 180 days, JTR Ch. 2, Part C, ¶ 2230(C) provides a procedure for 

authorizing extended TDY periods and, thus, extended per diem eligibility. The 

Court is unaware of any regulation or statute forbidding retroactive authorization. 

To the contrary, JTR Ch. 2, Part C, ¶ 2205 provides that “[a]n order . . . [m]ay be 

retroactively corrected to show the original intent . . . .” Id. (citation omitted). 

Moreover, plaintiffs’ allegation that their activation orders are TDY orders 

entitling them to per diem coheres with statements made by DOD leaders in 

seeking congressional passage of subsection (g) to 37 U.S.C. § 403. In a 2006 letter 

to congressional leaders, DOD’s then-Acting General Counsel explained: “current 

law and Departmental policy is such that Reservists are paid BAH based on the 

location of their civilian residence and temporary duty entitlements (i.e., per diem) 

at their duty location (even though they are permanently attached to the assigned 

command).” See ECF 100 at 16 (italics in original). To be clear, the impetus for 

the proposed statutory amendment to § 403 was to authorize the more cost-efficient 

alternative of paying reservists without dependents either two BAHs or a BAH and 

OHA. See id. at 15–16. Nonetheless, reservists with dependents should be afforded 
23

the opportunity to address the potential merits of any analogous application or 

extension of DOD’s expressed understanding and implementation.

Although it is unclear whether plaintiffs may recover under the Travel and 

Transportation Allowances (Per Diem) statute and the implementing regulations, 

these issues should not be decided by the Court in the first instance; rather, on 

remand, the ABCMR should consider whether any of the plaintiffs’ activation orders 

were effectively TDY orders entitling them to per diem as an alternative recovery

to FSH with regard to reservists with dependents or a second BAH/OHA with 

regard to reservists without dependents. As highlighted by the government during 

oral argument, there is already some confusion in the record involving Major 

Schneck. During the first remand, the ABCMR seemingly rejected Major Schneck’s 

constructive temporary change of station (TCS) status theory of recovery, stating: 

“the Board determined this proposed relief is unnecessary having concurred with 

the assertion that [Major Schneck] was authorized both OHA and BAH while 

serving in Germany.” See ECF 52-6 at 22. Nonetheless, the ABCMR recommended 

that Major Schneck receive per diem for the four-month period from May 17, 2019 

through September 22, 2019, coinciding with the extension of his deployment orders 

to facilitate the Army’s then-pending investigation. See ECF 52-6 at 23, 25.

III. Voluntary Remand

A. Legal Standard

“The Tucker Act gives the Court of Federal Claims the authority ‘to remand 

appropriate matters to any administrative or executive body or official with such 

direction as it may deem proper and just.’” Wolfing I, 144 Fed. Cl. at 521 (quoting 

28 U.S.C. § 1491(a)(2)). Under RCFC 52.2, remand may be directed on motion filed 

by one or more parties or sua sponte. Trace Sys. Inc. v. United States, No. 22-404, 

2022 WL 2963486, at *2 (Fed. Cl. July 26, 2022) (citation omitted). Similar to a 

motion to file an amended complaint, addressed supra, a request for a voluntary 

remand should be denied if the Court determines it is frivolous or made in 

bad faith. See id. As recently stated by this Court:

[T]he true inquiry in deciding a motion to remand is if “the agency 

intends to take further action with respect to the original agency 

decision on review.” Limnia, Inc. v. United States Dep’t of Energy, 

857 F.3d 379, 386 (D.C. Cir. 2017). An agency need not “confess error 

or impropriety in order to obtain a voluntary remand. But the agency 

ordinarily does at least need to profess intention to reconsider, 

re-review, or modify the original agency decision that is the subject 

of the legal challenge.” Id. at 387; see also Keltner v. United States, 

148 Fed. Cl. 552, 563 (2020) (“The case law thus makes clear that 

where an agency requests a remand without confessing error, the 

agency must express some intent to reconsider the original agency 
24

decision that is the subject of the legal challenge, after which the court 

has discretion to grant or deny the motion.”).

Trace Sys., 2022 WL 2963486, at *2. 

As found in Wolfing I, a (second) voluntary remand is appropriate to afford 

the Secretary of the Army and the ABCMR an opportunity to consider in the first 

instance the legal conclusions outlined in this decision regarding reservists’ 

entitlement and eligibility to receive housing allowances in the forms of BAH, OHA, 

FSH-B, and FSH-O. See Wolfing I, 144 Fed. Cl. at 521–22. The overarching policy 

decisions and implications falling within the province of the Secretaries of Defense 

and the Army, and the individualized circumstances of each service member not yet 

fully developed, will play a critical role in determining whether plaintiffs (and other 

similarly situated service members) are entitled or otherwise eligible to receive 

dual housing allowances. If such relief is warranted, the ABCMR will be poised 

to simultaneously correct affected military personnel records and coordinate with 

DFAS to provide the requisite monetary relief.

B. Instructions for Remand 

Pursuant to RCFC 52.2(a) and (b)(1)(a), and at the request of the parties, 

this military pay case is voluntarily remanded to the Secretary of the Army and 

the ABCMR for a period of six months to consider whether plaintiffs are entitled 

or otherwise authorized and approved to receive (retroactively and prospectively,

where applicable) housing allowances in the form of BAH, OHA, FSH-B, and 

FSH-O or, in the alternative, per diem, consistent with this decision. As part of 

the assessment of reservists with dependents and their entitlement and eligibility 

to receive FSH, the Secretary of the Army should consider whether a dependent 

residency exception or waiver is appropriate given the general need for reservists 

to return to their primary residence after completing their deployment. Depending 

upon how these issues are resolved, the Board should consider whether additional 

corrections to plaintiffs’ military personnel records are warranted to remove 

information related to internal investigations and proceedings. The Board should 

also consider other relief such as the return of repayments or garnishments and

convening SSBs, as necessary. 

To facilitate the ABCMR’s remand proceedings, as agreed by the parties 

during oral argument, within 60 days of this decision, plaintiffs and similarly

affected reservists seeking administrative relief shall begin submitting applications 

to the ABCMR specifying the relief they seek under this decision as well as the 

factual basis for their claimed entitlement and eligibility. The Court leaves to the 

parties to determine the exact form and substance of the applications submitted on 

remand. To this end, absent good cause, plaintiffs and other service members

seeking similar relief from the Board during the pendency of the second remand, 
25

shall respond within 30 days to any reasonable requests by the Board for additional 

information regarding their actual living arrangements as well as the residency and 

whereabouts of their dependents, if any, during any period of the service member’s 

deployment for which dual housing allowances are sought or accepted. At plaintiffs’ 

request, and by consent, leave is hereby granted for plaintiffs to file successive 

amended complaints joining additional (similarly situated) plaintiffs during the 

remand period to allay any statute of limitations concerns.

Concomitantly, as requested by the government during oral argument, 

the ABCMR shall immediately seek an advisory opinion from the DOD Office of 

Assistant Secretary of Defense for Manpower and Reserve Affairs addressing the 

discretion vested in the Secretary of the Army to grant dual housing allowances 

under 37 U.S.C. § 403(g) and the implementing DOD regulations. To the extent the 

DOD is of the opinion the Secretary lacks such authority, or that the discretion 

has evolved since the passage of § 403(g)–and, more particularly, between October 

2016 and the present–the advisory opinion must include a timeline of the evolution 

of the nature and scope of the discretion vested in the Secretary of the Army and the 

basis for the opined evolution. Additionally, the ABCMR must also immediately 

seek an advisory opinion from the Defense Human Resources Activity (DHRA) on 

whether per diem is (or ever was) authorized for reserve component members while 

serving on active duty under the Travel and Transportation Allowances statute, 

37 U.S.C. § 474 (2016) (repealed and recodified at 37 U.S.C. § 452 (2021)), and the 

implementing DOD regulations. To the extent the DHRA is of the opinion that the 

authorization evolved between October 2016 and the present, the advisory opinion 

must include a timeline of the evolution of the per diem authorization and the basis 

for the opined evolution. As further requested by the government, the ABCMR 

must also clarify whether and, if so, to what extent, the Board construed Major 

Schneck’s deployment orders as placing him in TCS status, entitling him to recover 

per diem. 

In accordance with RCFC 52.2(b)(1)(B), the ABCMR shall complete its review 

and assessment within 180 days of this decision, subject to extension as provided in 

RCFC 52.2(c). Pursuant to RCFC 52.2(b)(1)(C), the Clerk will stay all proceedings 

in this matter until further order of the Court. The Court will retain jurisdiction 

over this case during the remand period. As required by RCFC 52.2(b)(1)(D), the 

defendant shall file a status report every 90 days during the remand period

updating the Court on the progress of the remand proceedings. 

In accordance with RCFC 52.2(d), within 30 days of the conclusion of the 

voluntary remand proceedings before the ABCMR, the ABCMR shall send to the 

Court the required copies of the final decision(s) reached by the Board. Within 

30 days thereafter, pursuant to RCFC 52.2(e)(1), the parties shall file a joint status 

report setting forth the parties’ position(s) regarding whether further litigation of 
26

this matter is necessary. If requesting further proceedings before the Court to 

resolve this case, then the parties shall include a proposed schedule going forward.

CONCLUSION

For the reasons stated above:

(1) Plaintiffs’ Second Motion for Leave to File an Amended Complaint (ECF 96) 

is GRANTED.

(2) Plaintiffs’ proffered Amended Complaint (ECF 96-2) is deemed FILED

by leave of the Court.

(3) Defendant’s Motion for a Second Voluntary Remand to the ABCMR (ECF 72) 

is GRANTED consistent with the instructions specified herein.

(4) Pursuant to RCFC 52.2(a), this military pay case is REMANDED to the 

Secretary of the Army and the ABCMR to consider whether plaintiffs are 

entitled or otherwise authorized and approved to receive housing allowances 

or other subsidies consistent with this Opinion and Order as well as other 

relief specified herein. During the requested remand:

a. Pursuant to RCFC 52.2(b)(1)(A):

i. Within 10 days of this Opinion and Order, the ABCMR shall 

request an advisory opinion from the DOD Office of Assistant 

Secretary of Defense for Manpower and Reserve Affairs 

addressing the discretion vested in the Secretary of the Army 

to grant dual housing allowances under 37 U.S.C. § 403(g) and 

implementing DOD regulations. To the extent the DOD is of the 

opinion the Secretary lacks such authority, or that the discretion 

has evolved since the passage of § 403(g)–and, more particularly, 

between October 2016 and the present–the advisory opinion 

must include a timeline of the evolution of the nature and scope 

of the discretion vested in the Secretary of the Army and the 

basis for the opined evolution. 

ii. Within 10 days of this Opinion and Order, the ABCMR shall 

request an advisory opinion from the Defense Human Resources 

Activity (DHRA) on whether per diem is (or was) authorized for 

reserve component members while serving on active duty under 

the Travel and Transportation Allowances statute, 37 U.S.C. 

§ 474 (2016) (repealed and recodified at 37 U.S.C. § 452 (2021)), 

and the implementing DOD regulations. To the extent the 

DHRA is of the opinion that the authorization evolved between 
27

October 2016 and the present, the advisory opinion must include 

a timeline of the evolution of the per diem authorization and the 

basis for the opined evolution.

iii. Within 60 days of this Opinion and Order, plaintiffs and any 

similarly affected reservists seeking administrative relief shall 

begin submitting applications to the ABCMR specifying the 

relief they seek under the Court’s decision as well as the factual 

basis for their claimed entitlement and eligibility.

iv. Absent good cause, plaintiffs and any similarly affected 

reservists seeking administrative relief shall respond to 

the Board’s requests for relevant information within 30 days

of such requests.

b. Pursuant to RCFC 52.2(b)(1)(B), the ABCMR shall complete its review 

within 180 days.

c. Pursuant to RCFC 52.2(b)(1)(C), the Clerk is directed to STAY

all proceedings in this matter until further order of the Court. The 

Court will retain jurisdiction over this case during the remand period.

d. Pursuant to RCFC 52.2(b)(1)(D), the defendant shall FILE a Status

Report every 90 days during the remand period updating the Court 

on the status of the remand proceedings.

e. During the remand period, by consent, plaintiffs’ request for leave 

to file successive amended complaints joining additional (similarly 

situated) plaintiffs is GRANTED.

f. Pursuant to RCFC 52.2(d), within 30 days of the conclusion of the 

voluntary remand proceedings before the ABCMR, the ABCMR 

shall send the Court the required copies of the final decision(s) reached 

by the Board. 

g. Pursuant to RCFC 52.2(e)(1), the parties shall FILE a Joint Status 

Report within 30 days of the filing of the ABCMR’s final decision(s) or 

other action on remand setting forth the parties’ position(s) regarding 

whether further litigation of this matter is necessary. If requesting 

further proceedings from the Court, then the parties shall include a 

proposed schedule to govern this case going forward.
28

(5) The Clerk shall SERVE a copy of this Order to the Secretary of the Army and 

the ABCMR:

Hon. Christine Wormuth

Secretary of the Army

Office of the Secretary of the Army

101 Army Pentagon

Washington, DC 20310-0101

and

Dennis W. Dingle

Director, Army Board for the Correction of Military Records

Army Review Board Agency

251 18th Street South – Suite 385

Arlington, VA 22202-3531

It is so ORDERED.