RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         23 SEPTEMBER 2004
      DOCKET NUMBER:  AR2004100113


      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             |
|     |Ms. Deborah L. Brantley           |     |Senior Analyst       |


      The following members, a quorum, were present:

|     |Mr. Raymond Wagner                |     |Chairperson          |
|     |Mr. Roger Able                    |     |Member               |
|     |Mr. Eloise Prendergast            |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests reimbursement of $2887.00 incurred as a result
of shipping a second car to Hawaii.

2.  The applicant states he requested, and was authorized by his assignment
branch, to ship a second car to Hawaii “due to an exceptional family
member.”  He states his reassignment orders were amended to allow shipment
of the second car.

3.  The applicant states that at no time was he “informed of the contrary”
and would not have shipped the second car if his orders did not authorize
him to do so.

4.  The applicant provides copies of his reassignment orders, including the
amendment authorizing shipment of a second car, copies of documents denying
him reimbursement for the shipping expense, and a copy of a pay adjustment
authorization document.

CONSIDERATION OF EVIDENCE:

1.  Records available to the Board indicate that the applicant has been on
active duty since June 1986 and is currently serving in the grade of
lieutenant colonel at a duty station in Hawaii.

2.  In November 2001, while assigned to an air defense artillery unit at
Fort Drum, New York, orders were issued reassigning the applicant to
Hawaii.  His reassignment orders included authorization to ship “household
goods and privately owned vehicle.”

3.  In May 2002 those orders were amended to add an additional instruction
authorizing the applicant to “ship one additional POV [privately own
vehicle]” because of “exceptional family member circumstances.”

4.  In a statement, provided to the Board by the applicant’s then
assignment manager, the assignment manager noted that the applicant’s child
had been diagnosed with severe asthma and as such, was enrolled in the
Exceptional Family Member Program (EFMP).  Based on his review of the
applicant’s circumstances, the assignment officer authorized him (the
applicant) to ship a second “privately owned vehicle on his orders.”  The
assignment manager noted


that his decision made sense and “helped insure his family was adequately
cared for in his unique circumstances.”  He indicated that he did not “want
to set soldiers and families up for potential failure by not adequately
meeting their needs at their next duty location.”  The applicant was
provided an opportunity to comment on the statement.  In October 2002 the
applicant concurred with the statement but noted that with the
authorization to ship a second vehicle he did so, but would not have
purchased a new vehicle and incurred a debt to the government had he known
that shipping a second vehicle at government expense was unauthorized.

5.  In July 2002, after the applicant shipped a second POV from New
York/New Jersey to Hawaii, a Department of Defense Form 139 (Pay Adjustment
Authorization) was executed and submitted to the Defense Finance and
Accounting Service (DFAS) in Indianapolis, Indiana, authorizing DFAS to
charge the applicant’s pay account in the amount of $2887.00.  The form
noted that the applicant shipped the second vehicle “based on counseling
from the Army transportation Office.”

6.  In July 2003 the applicant’s request for reimbursement for the vehicle
shipment was denied by the Office of the Deputy Chief of Staff, G-4.  In
their denial it was noted that under the “Joint Federal Travel
Regulation…which has the same effect as law,” only one vehicle may be
transported.  The denial stated that the addition to his reassignment
orders, permitting him to ship a second vehicle, was “an erroneous
additional instruction” and while the office would “like to assist” the
applicant, there were no provisions for doing so.

7.  Title 10, United States Code, Section 2634, states that “when a member
of an armed force is ordered to make a change of permanent station, one
motor vehicle that is owned or leased by the member (or a dependent of the
member) and is for the personal use of the member or his dependents may,
unless a motor vehicle owned or leased by him (or a dependent of his) was
transported in advance of that change of permanent station…be transported,
at the expense of the United States, to his new station or such other place
as the Secretary concerned may authorize.”

8.  The Joint Federal Travel Regulation, Volume 1, pertains to per diem,
travel and transportation allowances, relocation allowances, and certain
other allowances of Uniformed Service members.  It restates the information
contained in Title 10, United States Code, regarding the shipment of a
single vehicle.  It

also notes that a Uniformed Service may supplement these regulations by
administrative regulations, but may not prescribe allowances that differ in
amount or type from those authorized by these regulations, unless
specifically permitted.

9.  Title 10, United States Code, Section 1552, the law which provides for
the Board states that “The Secretary may pay, from applicable current
appropriations, a claim for the loss of pay, allowances, compensation,
emoluments, or other pecuniary benefits, or the repayment of a fine or
forfeiture, if, as a result of correcting a record under this Section, the
amount is found to be due the claimant on account of his or another’s
service in the Army, Navy, Air Force, Marine Corps or Coast Guard, as the
case may be.”

DISCUSSION AND CONCLUSIONS:

1.  The evidence indicates that the applicant acted in good faith when he
shipped a second vehicle to Hawaii as a result of his permanent change of
station to that location.  He requested, and was granted that authorization
via an amendment to his original reassignment orders.  He should not be
penalized for trusting the information contained in an appropriate, albeit
erroneous, reassignment order.  To deny him reimbursement for the expense
of shipping a second vehicle to Hawaii would not be fair or equitable.

2.  To correct this injustice, the applicant’s reassignment order to Hawaii
should be corrected to include the statement “If the service member’s
second vehicle is accepted by officials for transportation to Hawaii based
on this order, and the service member is subsequently deemed to be held
liable for payment of that shipment, the ABCMR may reimburse the service
member the cost of that shipment, at its sole discretion, in accordance
with Title 10, United States Code, Section 1552.”  Invoking this provision
allows the Board to reimburse the applicant the amount he paid ($2887.00)
for shipment of the second vehicle.

BOARD VOTE:

___RW  _  ___RA___  ___EP __  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL 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:

      a.  by further amending his reassignment order to Hawaii to include
the sentence “If the service member’s second vehicle is accepted by
officials for transportation to Hawaii based on this order, and the service
member is subsequently deemed to be held liable for payment of that
shipment, the ABCMR may reimburse the service member the cost of that
shipment, at its sole discretion, in accordance with Title 10, United
States Code, Section 1552;” and


      b.  by directing that as result of the foregoing correction, and in
accordance with Title 10, United States Code, Section 1152, the Defense
Finance and Accounting Service shall remit payment to the applicant the
amount of $2887.00.




                                  ____Raymond Wagner____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR2004100113                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20040923                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |128.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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