PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 10 April 2003
         DOCKET NUMBER: AR2003087118


         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
Mrs. Nancy L. Amos		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Mr. Lester Echols		Member
Ms. Marla J. N. Troup		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.

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2. The applicant requests, in effect, that his convalescent leave status during the period his unit was ordered to active duty be changed to reduced duty so as not to be charged with a debt resulting from this leave. He also requests that the debt to the Government which resulted from taking ordinary leave during this period of active duty be waived.

3. That portion of the applicant's request pertaining to waiver of his debt resulting from ordinary leave will be addressed by separate correspondence. As a result, this portion of his request will not be discussed further in these Proceedings.

4. The applicant states, in effect, that he was assigned to the 157th Military Police Company of the West Virginia Army National Guard (WVARNG) when the unit was mobilized and assigned to Fort Benning, GA for duty during the period 1 October 2001 to 24 September 2002. He states they received per diem for the period they were mobilized because Government lodging was not available on Fort Benning so local commercial lodging was arranged for all the unit members. The applicant further states that unit members were required to sign leases for this lodging for the duration of the mobilization period and that the cost of the lodging was close to or at the maximum daily per diem rate for the Fort Benning area. The applicant contends that, when he was placed on convalescent leave, he was taken off travel status and, therefore, was no longer entitled to per diem even though he remained at the temporary duty (TDY) location. He points out that he still had to pay for the lodging and that this problem was not identified until after he submitted his final settlement travel voucher.

5. The applicant’s military records are not available. Information contained herein was obtained from alternate sources.

6. The applicant was assigned to the 157th Military Police Company, WVARNG, when it was mobilized and assigned to Fort Benning, GA for duty during the period 1 October 2001 to 24 September 2002.

7. At one point during this period, the applicant became ill or injured. The local military physician recommended he be placed on reduced duty or convalescent leave. The unit commander made the decision to place the applicant on convalescent leave for 5 days using a DA Form 31 (Request Authority for Leave). The exact dates of convalescent leave are unknown. The DA Form 31 is not available and the Defense Finance and Accounting Service has stated that they only have the total period on record, not the dates.

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8. The unit commander verified that the applicant remained at his TDY location during his convalescent leave period. There is no evidence to show that this illness or injury was not incurred in the line of duty.

9. Upon the applicant's submission of a request for reimbursement for TDY/travel expenses related to his active duty service at Fort Benning, he was notified that he was not entitled to payment of per diem for the period of his convalescent leave.

10. The Joint Federal Travel Regulation (JFTR), paragraph 4100, states that per diem is designed to offset the cost of lodging, meals, and incidental expenses incurred by a member while performing travel and/or TDY away from the member's permanent duty station. The JFTR also states that the per diem rate is determined based on the traveler's TDY location. Paragraph U4102B of the JFTR states that a member is not entitled to per diem on any day classified as leave or proceed time.

11. Army Regulation 600-8-10 (Leaves and Passes) states that convalescent leave is a nonchargeable absence from duty granted to expedite a soldier's
return to full duty. The unit commander is the approval authority for up to 30 days convalescent leave. The DA Form 31 will be used for requesting leave and the unit will complete the DA Form 31.

CONCLUSIONS:

1. The evidence shows that the applicant was mobilized with his unit and assigned to Fort Benning during the period 1 October 2001 to 24 September 2002.

2. The Board notes that, because Government lodging was not available at Fort Benning, the Government required the applicant to sign a long-term lease for off-post lodging and paid him per diem to reimburse him, in part, for his lodging costs.

3. The evidence shows that the applicant became ill or injured while at his TDY station. The local military physician recommended he be placed on reduced duty or placed on convalescent leave. His unit commander made the decision to place the applicant on 5 days convalescent leave. However, in accordance with the JFTR, placing the applicant in a convalescent leave status effectively removed him from a travel status, thereby halting payment of per diem for this 5-day period.

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4. The Board notes that, even though the applicant remained at Fort Benning during his period of convalescent leave, his per diem was suspended. However, he still had to pay for his lodging as required by the long-term lease.

5. Based on the foregoing, the Board has determined that the applicant has been unjustly treated for the following reasons:

a. The Army ordered the applicant to active duty, placed him in a TDY status, and assigned him to duties at Fort Benning, GA, based on the needs of the Service.

b. The applicant was not provided Government lodging at his TDY duty station and, as a result, he was required to enter into a long-term lease for lodging which in part was offset by payment of per diem by the Government.

c. When the applicant became ill or injured and was placed on convalescent leave at while at Fort Benning, the JFTR required payment of his per diem to cease even though he remained at his TDY station and was still obligated to pay for his off-post lodging.

7. The Government had an obligation to house the applicant and properly did so through a long-term lease and payment of per diem. However, the Government unjustly treated the applicant by halting his per diem during the period he was ill or injured in the line of duty and by subsequently requiring him to reimburse the Government for lodging costs during his 5 days of convalescent leave.

8. Therefore, it would be equitable to show that the applicant was not placed on convalescent leave but instead was placed on reduced duty.

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

RECOMMENDATION:

1. That all of the Department of the Army records related to this case be corrected by showing that the applicant was never placed on convalescent leave at any time during the period of his mobilization from 1 October 2001 to 24 September 2002.

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2. That any debt owed as a result of the applicant being placed on convalescent leave during the period from 1 October 2001 to 24 September 2002, if recouped by the Government, be refunded to the applicant as a result of the above correction.

BOARD VOTE:

__fne___ __le____ _mjnt ___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  ___Fred N. Eichorn__
                  CHAIRPERSON

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INDEX

CASE ID	AR2003087118
SUFFIX
RECON
DATE BOARDED	20030410
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY	Mr. Schneider
ISSUES 1.	128.00
2.
3.
4.
5.
6.