RECORD OF PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: JANUARY 27, 2004
         DOCKET NUMBER: AR2003087978


         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. Luis Almodova		Analyst

The following members, a quorum, were present:

Mr. Arthur A. Omartian		Chairperson
Ms. Yolanda Maldonado		Member
Mr. Lester Echols		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).

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THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1. The applicant requests that he be given travel orders with an effective date prior to the relocation of his dependents and household goods.

2. The applicant states, in effect, that he has spoken to officials at Fort Gordon and the Defense Finance and Accounting Service (DFAS) and individuals at both locations agree that he should get paid for the relocation of his dependents and household goods from Clarksville, Tennessee, to Fort Gordon, Georgia; however, he needs orders issued with an effective date prior to the relocation of his dependents and household goods to Fort Gordon.

3. The applicant provides a copy of a Memorandum he wrote to the Defense Military Pay Office, Subject: Request Reimbursement for Do-It-Yourself Move and Family Dislocation Allowances from Fort Campbell, Kentucky, to Fort Gordon, Georgia; a copy of Orders 281-350, published by the U.S. Army Combined Arms Center and Fort Leavenworth, Fort Leavenworth, Kansas, dated 8 October 2002; a copy of Orders 269-1 and 269-2, published by the United States Disciplinary Barracks, Combined Arms Center and Fort Leavenworth, Fort Leavenworth, Kansas, dated 25 September 2002; a copy of General Court Martial-Order Number 80, United States Disciplinary Barracks, Combined Arms Center and Fort Leavenworth, Fort Leavenworth, Kansas; a copy of an Unclassified Message, Subject: Travel Authorization for Return of Dependents to CONUS [Continental United States] (Advance Return), prepared by the Commander, US Army South, Fort Clayton, Panama; a copy of Orders 177-01, published by Headquarters, United States Army South, dated 26 June 1998; a copy of a DD Form 1351-2, Travel Voucher or Subvoucher, dated 17 October 2002; a copy of a DA Form 31, Request and Authority for Leave, Control Number 0135; and a copy of two decisions rendered by the Comptroller General of the United States in 1978 and in 1996.

CONSIDERATION OF EVIDENCE:

1. The applicant was assigned to Headquarters and Headquarters Company, 5th Battalion, 87th Infantry, Fort Kobbe, Panama. On 25 June 1998, he was convicted by a general court-martial. He was sentenced to reduction to the rank and pay grade, Private, E-1, forfeiture of all pay and allowances, confinement for three years, and a dishonorable discharge.

2. On 27 June 1998, the applicant was reassigned to the Regional Confinement Facility, Fort Knox, Kentucky, to serve the sentence that had been imposed.

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3. Authorization for the travel of dependents, shipment of household goods, and POV (privately owned vehicle), at government expense, was given by the Commander, US Army South, Fort Clayton, Panama, in the Unclassified Message, Subject: Travel Authorization for Return of Dependents to CONUS (Advance Return). The applicant's dependents were relocated from Panama to Clarksville, Tennessee. The applicant's dependents and household goods were relocated to the vicinity of Fort Campbell, Kentucky, because this had been the applicant's last permanent duty station prior to their going to Panama.

4. The applicant completed his sentence and upon release was placed on excess leave status. While in this excess leave status, on about 31 August 2000, he moved himself and his dependents, in what he terms, "a do it yourself move (DITY move)," from the vicinity of Fort Campbell, Kentucky, to Martinez, Georgia, at his own expense.

5. There is no evidence, and the applicant has provided none, that he was given the authority to make a DITY move and that he was provided a DD Form 2278, Application for Do-It-Yourself Move and Counseling Checklist, before moving his dependent and household good to the vicinity of Fort Gordon, Georgia.

6. The US Army Court of Military Appeals set aside the finding of guilty, the sentence of reduction to the grade of Private E-1, forfeiture of all pay and allowances, confinement for three years and a dishonorable discharge and dismissed the charge. All rights, privileges and property were ordered restored. The decision of the US Army Court of Military Appeals was announced in General Court-Martial Order Number 80, United States Disciplinary Barracks, Combined Arms Center and Fort Leavenworth, Fort Leavenworth, Kansas, dated 30 August 2002.

7. When the general court-martial and its resultant sentence were set aside and the charges were dismissed, the applicant was released from excess leave and ordered to return to duty at Fort Leavenworth. After completing his processing, he was given permanent change of station orders to the US Army Signal Corps and Fort Gordon, Georgia, with a reporting date of 20 October 2002.

8. Orders 281-350, published by the U.S. Army Combined Arms Center and Fort Leavenworth, Fort Leavenworth, Kansas, dated 8 October 2002, authorized shipment of his household goods to the vicinity of his new duty station. The applicant was given instructions in these orders that he must submit a travel voucher for this travel to the custodian of his finance records within 15 days after completion of his travel.

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9. On 10 October 2002, the applicant submitted a DD Form 1351-2, as he had been instructed in the above orders. The applicant had received no advance government payment for this travel and in Item 10d (Computations), the indication is that the applicant received no travel pay or dislocation allowances.

10. Because the servicing finance office at Fort Gordon disallowed payment of dislocation allowances, travel pay, and reimbursement for the movement of his household goods, on 11 November 2002, the applicant submitted his request for reimbursement to the Defense Military Pay Office, Indianapolis, Indiana.

11. On 27 February 2003, the DFAS responded to his request and in their response, opined that they believed that his request for reimbursement had merit, but the Joint Federal Travel Regulations, paragraph U2100, prohibited the payment since the travel was performed before valid travel orders were issued. The DFAS provided the applicant two Comptroller General decisions and advised the applicant to petition this Board for relief.

12. Paragraph U2100 in the Joint Federal Travel Regulation states: "A travel order used for reimbursement of travel and transportation expenses is a written document issued or approved by the Secretarial Process directing a member or a group of members to travel between designated points. The travel order establishes the conditions for official travel and transportation at Government expense, and provides the basis for the traveler's reimbursement. A travel order should be issued (emphasis added) before the travel is performed. Reimbursement for travel isn’t authorized when the travel is performed before receipt of written or oral orders."

DISCUSSION AND CONCLUSIONS:

1. There is an absence of guidance in the Joint Federal Travel Regulations relating to cases of this nature.

2. The applicant was convicted by a general court martial and was returned to the United States to serve his sentence to confinement. His dependents were relocated from the Canal Zone to the vicinity of Fort Campbell at government expense.

3. After the applicant completed his sentence to confinement, he was released from confinement and put on excess leave pending appellate review of his sentence.

4. While in this excess leave status, the applicant moved himself and his dependents, in a DITY move from the vicinity of Fort Campbell, Kentucky, to

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Martinez, Georgia, at his own expense. The applicant was not reimbursed for this DITY move because he moved himself and his family before orders were published to authorize the move.

5. The US Court of Military Appeals set the applicant's sentence aside. All rights, privileges, and property of which he had been deprived by virtue of the finding of guilty, and the sentence were ordered restored.

6. The DFAS determined that there was no legal authority to approve a DITY move after the fact. DFAS representatives advised the applicant that he could appeal to this Board for relief. In addition to providing this advice, the DFAS gave the applicant two Comptroller General decisions, which contain some similarities to this case.

7. Since the sentence was set aside by the US Court of Military Appeals and all rights, privileges, and property of which he had been deprived by virtue of the findings of guilty, and the sentence was set aside, the applicant should be treated as being entitled to all of the benefits otherwise available to a member in pay grade E-7 for travel, transportation and dislocation allowances, and therefore, authority should be given to allow the applicant to claim payment for a DITY move from Fort Campbell, Kentucky, to Fort Gordon, Georgia.

8. After being in-processed back into the Army, the applicant was provided reassignment orders to Fort Gordon, Georgia, and was authorized shipment of his household goods to the vicinity of his new duty station, Fort Gordon, Georgia, where he had moved himself and his family.

BOARD VOTE:

aao_____ le _____ ym _____ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all
Department of the Army records of the individual concerned be corrected by:

         a. showing that the applicant was issued a DD Form 2278 on 28 August 2000 and was authorized to make a DITY move from Fort Campbell, Kentucky, to the vicinity of Fort Gordon, Georgia;

         b. authorizing the applicant reimbursement for a DITY move, family dislocation and travel allowances, up to, but not to exceed that which would be authorized other soldiers in his same pay grade with the same family structure, as determined by the DFAS, during the period in question;

         c. in the absence of orders, ordering the acceptance of this Record of Proceedings in lieu of order (and thus, orders in kind); and

         d. paying all appropriate dislocation, travel, and transportation entitlements, at the rates in effect at the time the travel occurred in 2000, as determined by DFAS, from current change of station appropriations, in accordance with 10 USC Section 1552.





                  ___Arthur A. Omartian____
                  CHAIRPERSON

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INDEX

CASE ID	AR2003087978
SUFFIX
RECON
DATE BOARDED	20040127
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1. 283	128.0000
2. 286	128.0300
3. 297	128.0000
4.
5.
6.