RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-02409 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ THE APPLICANT REQUESTS THAT: He receives a retroactive 180-day per diem waiver for the period 29 April 2010 to 31 May 2010. ________________________________________________________________ THE APPLICANT CONTENDS THAT: His Home of Record (HOR) is outside of the commuting distance and should have been in a “non-commute” status with authorized per diem and lodging. A per diem waiver was needed to continue his order, from 29 April – 30 September 2010, in this status for more than 180 days. A waiver was submitted in May 2010 based on the guidance from NGB A1; however, the orders were changed to “will commute” until a waiver was approved through 31 May 2010. In support of his appeal, the applicant provides copies of his orders; a letter of support from his detachment commander, with attachments; SAF/MRM policy guidance memorandum, with attachments, and a copy of the Wing Instruction 65-101, Financial Management Office – Commuting Distance. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant is currently serving as a master sergeant (E-7) in the Air National Guard (ANG) at Otis Air National Guard Base (ANGB), Massachusetts. The remaining relevant facts pertaining to this application, extracted from the applicant’s military records, are contained in the letter prepared by the appropriate office of the Air Force. ________________________________________________________________ THE AIR FORCE EVALUATION: NGB/A1PS (Benefits and Entitlements) recommends denial of retroactive 180 days per diem waiver for the period 29 April 2010 to 31 May 2010. NGB/A1 notes their guidance is in accordance with that of SAF/MR and HAF/A1, in that per diem waiver requests will accompany the current/last order of the service member. A future order should never be submitted because that is the purpose of the per diem waiver. NGB/A1 further notes the applicant incurred a financial loss; however, his commander has processed numerous per diem waivers in the past for many members in the unit. The commander and his staff are aware of the current SAF/MR policy and criteria, as well as the importance of submitting waiver packages in a timely fashion to allow for processing. The complete NGB/A1PS evaluation, with attachment, is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on 27 August 2010 for review and comment within 30 days. As of this date, no response has been received by this office (Exhibit D). ________________________________________________________________ ADDITIONAL AIR FORCE EVALUATION: SAF/MRM recommends denial. MRM states that per JFTR, Volume I, paragraph U7150 A4b(3), a member called to active duty away from home for more than 180 days, for other than training purposes, may be authorized per diem for the entire period if the call to active duty/extension is required by unusual circumstances, emergency circumstances, contingency operations, or exigencies of the service concerned as determined by the Secretarial process. As of 22 March 2007, the Secretary of the Air Force delegated to SAF/MRM those certain decision authorities under the JFTR and JTR. Commanders must obtain the per diem waiver before orders are issued or amended since the JFTR does not provide for retroactive approval. Members without an approved waiver or Permanent Change of Station (PCS) assignment should be returned to their old station and not be allowed to continue work at the current location without Temporary Duty (TDY) and transportation allowances. SAF/MRM Policy Memos of 19 August 2009 and 11 February 2011, both indicate that commanders must obtain per diem waivers (over 179 days) before orders are issued or amended. The complete SAF/MRM evaluation is at Exhibit E. ________________________________________________________________ APPLICANT'S REVIEW OF THE ADDITIONAL AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on 4 April 2011 for review and comment within 30 days. As of this date, no response has been received by this office (Exhibit F). ________________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was timely filed. 3. Sufficient relevant evidence has been presented to demonstrate the existence of an injustice warranting corrective action. After reviewing the applicant’s submission and the evidence of record, it appears the applicant’s unit erroneously prepared and amended orders before obtaining the required per diem waiver. NGB/A1PS and SAF/MRM indicates the applicant’s unit should have been aware of the policy and criteria as well as the importance of submitting the waiver package in a timely manner. Notwithstanding this, it appears the applicant is being held accountable for actions beyond his control. It is not clear that the applicant understood when his orders were amended to state that he would commute, he would not be paid per diem. As such, no complicity on the part of the applicant to erroneously extend his TDY has been established. In view of the foregoing, and to preclude the possibility of injustice to the applicant, we believe any doubt in this matter should be resolved in his favor. Accordingly, we recommend his records be corrected as indicated below. ______________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show that he applied for per diem waiver for the period of 29 April 2010 to 31 May 2010 and his request was approved by competent authority. The following members of the Board considered AFBCMR Docket Number BC-2010-02409 in Executive Session on 16 June 2011, under the provisions of AFI 36-2603: All members voted to correct the records, as recommended. The following documentary evidence was considered: Exhibit A. DD Form 149, dated 21 Jun 10, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, NGB/A1PS, dated 23 Aug 10, w/atch. Exhibit D. Letter, SAF/MRBR, dated 27 Aug 10. Exhibit E. Letter, SAF/MRM, dated 1 Apr 11. Exhibit F. Letter, AFBCMR, dated 4 Apr 11, w/atch. Panel Chair