PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           7 November 2002                   
	DOCKET NUMBER:   AR2002081136

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Mr. Joseph A. Adriance		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’ Connor, Jr.		Chairperson	
	Mr. Thomas B. Redfern, III		Member	
	Mr. Donald P. Hupman, Jr.		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A -  Application for correction of military 
                             records
	Exhibit B -  Military Personnel Records (including
	                  advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests, in effect, that authorization for the return shipment of a privately owned vehicle (POV) be granted.   

3.  The applicant states, in effect, upon mobilization entitlement was granted to ship a POV from home of record to Camp South, Hawaii, in the mobilization orders issued.  A subsequent determination was made that this shipment was not authorized and return shipment of the POV is now being denied.  The mistaken authorization to ship the vehicle was through no fault of the individual, and denying the return shipment is unjust and results in an undue hardship on the applicant.  

4.  The applicant’s military records show that Orders Number M-10-100785, dated 24 October 2001, issued by the Army Reserve Personnel Command (ARPERSCOM), authorized the applicant’s mobilization in support of Operation Enduring Freedom for a period not to exceed 365 days.  

5.  The additional instructions contained in the applicant’s mobilization orders authorized travel by POV as more advantageous to the government, and as a result the POV was shipped to Hawaii at government expense.  

6.  Subsequent to the arrival of the POV in Hawaii, it was determined that the authorization to ship it was not in compliance with Title 10 of the United States Code, section 2634 (10 USC 2634).  As a result return shipment was denied.  

7.  The Chief of Staff, United States Army Pacific (US PACOM), a major general, has provided a memorandum in support this application.  It indicates that the US PACOM strongly recommends approval of the application to this Board in order to rectify the injustice and financial hardships placed upon the soldier.  It further indicates that the mobilization orders authorized the shipment of the POV, but the Army is now denying the soldier the option to return the POV to the Continental United States (CONUS).  It further states that the soldier was ordered to active duty by the President of the United States to support the Global War on Terrorism (GWOT), and volunteered to support our country during this crisis.  The soldier served selflessly and professionally for the command and the Department of the Army (DA), and the right solution for this issue is to approve the return shipment of the POV.  

8.  Title 10 of the United States Code, section 2634 provides the legal authority for the transportation or storage of motor vehicles for members on a change of permanent station or extended deployment.  Sub-paragraph (c) states, in pertinent part, that when there has been a shipping error, or when orders directing a change of permanent station have been canceled, revoked, or modified after receipt by the member, a motor vehicle transported pursuant to this section may also be reshipped or transshipped in accordance with this section. 
CONCLUSIONS:

1.  The Board notes the applicant’s contention that the failure to authorize the return shipment of the POV would be unjust because the error was through no fault of the applicant and would result in an undue hardship.  Thus, it finds this claim has merit.  

2.  The specific facts and circumstances surrounding the denial of the return shipment of the POV in question were not made available to the Board.  However, the evidence of record clearly shows that the applicant is free of any culpability in the error that allowed the original shipment of the POV.  Therefore, the Board concludes that it would serve the interest of equity and justice to grant the requested relief.  

3.  10 USC 2634 provides the legal authority to ship or store a motor vehicle upon a permanent change of station or extended mobilization.  Sub-paragraph 
(c) states, in pertinent part, that when there has been a shipping error, a motor vehicle transported may also be reshipped or transshipped.  It is clear that the original shipment of the POV in question was not authorized because the applicant’s move was not a permanent change of station or an extended deployment as defined in the law. 

4.   However, although in error, it is clear the POV was originally shipped under 10 USC 2634.  Therefore, the Board finds it would be appropriate to use the provisions of sub-paragraph (c) as the legal basis to authorize the return shipment of the POV based on the original shipping error, and the obvious injustice that will result if relief is not provided.  

5.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by authorizing the return shipment of the POV of the individual concerned from Hawaii; by return shipping the POV in question at government expense upon the departure of the individual from Hawaii; or by reimbursing the individual concerned if the POV in question has already been return shipped at the individual’s own expense.  

BOARD VOTE:  

__RVO__  __TBR__  __DPH__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		___Raymond V. O’Connor, Jr.__
		        CHAIRPERSON

INDEX

CASE ID	AR2002081136	
SUFFIX		
RECON		
DATE BOARDED	2002/11/07	
TYPE OF DISCHARGE	N/A	
DATE OF DISCHARGE	N/A	
DISCHARGE AUTHORITY	N/A	
DISCHARGE REASON	N/A	
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  283	128.0000	
2.		
3.		
4.		
5.		
6.