RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           30 September 2004
      DOCKET NUMBER:  AR20040003635


      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. John N. Slone                 |     |Chairperson          |
|     |Mr. Lester Echols                 |     |Member               |
|     |Mr. Melvin H. Meyer               |     |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, in effect, that his records be corrected to
allow him to be paid for the temporary duty (TDY) expenses he incurred
while TDY at Fort Benning, GA.

2.  The applicant states he received orders assigning him from Germany to
Fort Benning, GA after first attending the Advanced Noncommissioned Officer
Course (ANCOC) at Fort Benning.  Because he was to be TDY while attending
the ANCOC course, the installation refused to allow him to sign in as
permanent party personnel.  That prevented him from obtaining Government
quarters for his family.  However, by virtue of being TDY at his permanent
duty station (PDS) he was prohibited from being entitled to TDY expenses.

3.  The applicant provides a DA Form 2823 (Sworn Statement) with attached
timeline of events; his permanent change of station (PCS) orders with
amendments; a 17 September 2003 document from the Defense Finance and
Accounting Service (DFAS) indicating DFAS needed orders that contained the
fund cited to pay his claim; a DA Form 3508-R (Application for Remission or
Cancellation of Indebtedness) with his commander's recommendation for
approval, the local finance officer's 25 June 2004 recommendation for
approval, and a U. S. Army Human Resources Command's (USAHRC) memorandum
dated 7 July 2004; six letters from his Members of Congress dated 19 April
2004 (two), 20 April 2004, 3 May 2004, and 21 May 2004 (two); and one
letter from Chief of Legislative Liaison dated 26 April 2004.

4.  The applicant also provides a memorandum dated 5 December 2003 from his
commander; a memorandum dated 20 January 2004 from his local finance
office; a memorandum dated 22 February 2004 from his regimental commander;
an undated memorandum from the Commanding General, U. S. Army Infantry
Center; three emails dated 6 January 2004, 13 January 2004, and 14 January
2004; a letter from Bank of America dated 11 December 2003; an extract from
"MTSA Handbook" (Military Training Specific Allotment Handbook), office of
origin unknown; an extract from the Joint Federal Travel (JFTR); and a
letter dated 17 May 2004 from the Office of the Deputy Chief of Staff, G-1.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military records are not available to the Board.  This
case is being considered using reconstructed records, which primarily
consist of the documents noted above and additional information provided by
DFAS as noted below.
2.  The applicant's PCS orders dated 15 April 2003 show he was to PCS from
Germany for assignment to the U. S. Army Infantry Center Adjutant General
Replacement Detachment, Enlisted, Fort Benning, GA.  He was given a report
date of 20 September 2003 after first attending ANCOC at Fort Benning, GA
in a TDY status with a reporting date to his TDY station of 23 June 2003.
His spouse and three children were authorized travel at government expense.


3.  The applicant departed Germany on 6 June 2003.  He arrived at Fort
Benning, GA on 19 June 2003 and on 20 June 2003 he attempted to sign in as
permanent party personnel.  The installation refused to let him sign in as
he was to attend ANCOC in a TDY status first.  That required him to
establish his family off post first in a civilian hotel, then in on-post
lodging, and then in a rental house.  His deputy regimental commander has
stated that the applicant could have been assigned to on-post quarters
immediately had he been allowed to sign in as permanent party.

4.  As a result of having to establish his family off post, the applicant
requested that his unit in Germany amend his orders to authorize a rental
car.  His unit so amended his orders on 23 June 2003.

5.  On 28 July 2003, the applicant submitted an initial 30-day travel
voucher.  His TDY travel claim was denied by DFAS due to provisions in the
Joint Financial Travel Regulation (JFTR) that prohibit per diem
entitlements for soldiers TDY at their PDS.

6.  On 4 September 2003, the applicant graduated from ANCOC and went on
leave.  He returned from leave and signed in to Fort Benning, GA as
permanent party on 19 September 2003.

7.  In December 2003, Bank of America notified the applicant that his
Government Travel Charge Card account would be cancelled if payment of
$2,848.09 (possibly "49") were not received within 5 days.

8.  On 25 June 2004, the applicant submitted an application for remission
or cancellation of indebtedness in the amount of $8,260.90.  In his
application, he listed his out-of-pocket expenses as this amount.  (The
total of those expenses actually comes out to $8,695.95.)  Those expenses
included lodging ($3,291.46) and food ($2,664.00).  Those expenses did not
include a rental car.  He also acknowledged that he received certain [PCS]
entitlements, to include basic allowance for housing ($2191.16), and
Temporary Lodging Allowance (TLA) ($784.98).

9.  By memorandum dated 25 June 2004, the Chief, Defense Military Pay
Office, Fort Benning, GA recommended the applicant be reimbursed $8,260.90
for his TDY travel expenses.

10.  By memorandum dated 7 July 2004, the Chief, Special Actions Branch,
USAHRC stated the applicant's application for remission or cancellation of
indebtedness did not fall under the guidelines of Army Regulation 600-4 and
referred the application to the Office of the Deputy Chief of Staff for
Personnel, G-1, Entitlements Branch.

11.  In response to a request for information, DFAS provided the Board
amounts of entitlements that would have been due the applicant under
different circumstances (had he been properly allowed to sign in to Fort
Benning as permanent party or had he actually been TDY at Fort Benning
enroute to a different PDS).  DFAS also noted that he had been paid
$1,878.50 in TDY entitlements (for a rental car) and that he had a salary
offset to pay his Bank of America indebtedness.  DFAS later clarified that
he should not have been paid the $1,878.50 for his rental car.  That
payment has been made a debt, but the debt is being held in abeyance
pending the outcome of this Board action.

12.  A copy of DFAS's response was provided to the applicant.  He responded
that he believed the figures provided by DFAS were too low because they did
not have a statement of nonavailability.  He provided that statement of
nonavailability and DFAS recalculated their figures.

13.  The applicant also stated that he recalculated the amount of expenses
he paid out of his own pocket.  He increased the amount of expenses due to
an increase in the amount of garnished wages (i.e., salary offset for
payment of the Bank of America debt).  The total amount was now $9,242.89.
However, he acknowledged that he should not claim $435.05 for lodging in
June as he had been paid $784.98 in TLA.  Therefore, his total out of
pocket expenses were $8,815.90.

14.  By memorandum dated 13 September 2004, DFAS provided revised
calculations.  Had the applicant actually been in a TDY enroute status, his
TDY entitlements would have been $9,573.50, plus an additional amount for
member and dependent per diem and dislocation allowance, for a total of
$11,520.24.

15.  DFAS's revised calculations were provide to the applicant and, on
          22 September 2004, he concurred with DFAS's new calculations.

16.  Title 37, U. S. Code, section 404 provides in pertinent part that
under regulations prescribed by the Secretaries concerned members of the
uniformed services are entitled to travel and transportation allowances
upon a change of permanent station, or otherwise, or when away from their
designated post of duty.

17.  The Joint Federal Travel Regulation, paragraph U4100 states that a per
diem allowance 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 PDS.   Paragraph U4102D states that a member is
not authorized per diem for travel or TDY performed within the limits of
the PDS.

18.  Title 10, U. S. 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 applicant was reassigned from Germany to Fort Benning GA with TDY
enroute at Fort Benning to attend ANCOC.  Fort Benning, by not allowing him
to sign in as permanent party when he arrived in June 2003 to attend ANCOC,
clearly created an injustice and a financial hardship on the applicant.  He
was forced to obtain off-post quarters for his family when he could have
obtained Government quarters.  He was forced to pay for utilities, travel-
type meals, and other expenses for his family that he need not have paid
for had he been allowed to move into Government quarters.

2.  Because the applicant used his Bank of America card to pay some of his
TDY expenses, and then was not entitled to be reimbursed for those expenses
because he was TDY at his PDS station, his credit was hurt and his salary
was offset to pay for those Bank of America expenses.

3.  The applicant's revised calculations of his out-of-pocket totaled
$9,242.89.

4.  The applicant's calculations of his out-of-pocket expenses did not
include the $1,878.50 for his rental car because DFAS reimbursed him for
that particular TDY expense.  However, DFAS informed the Board analyst that
he should not have been reimbursed that expense.  It is now a valid debt
that must be collected, but the debt is on hold pending the outcome of this
Board action.  This expense is accepted as a valid TDY expense.  Therefore,
knowing that DFAS will collect it once this Board action is complete, it
should be included as part of the applicant's valid TDY expenses.

5.  During the period of his TDY, the applicant received $2,191.16 in BAH
and $784.98 in TLA (for a total of $2,076.14).  This amount should have
been used to partially offset his out-of-pocket expenses.

6.  Subtracting the above noted offsets, the applicant still had $6,266.78
in out-of-pocket TDY expenses.  In addition, he should be paid an
additional $1,878.50 in rental car expenses.  The applicant should
understand that DFAS will collect one of the payments of $1,878.50 as a
debt once this Board action is completed.  Therefore, in the interest of
justice and equity, it would be appropriate to reimburse the applicant
$8,145.28 in TDY expenses.

7.  The applicant’s military records may be corrected to show his PCS and
TDY orders were amended to include the sentence “If officials at Fort
Benning, GA fail to allow you to sign in to your permanent duty station
(i.e., Fort Benning, GA) prior to attending and completing your TDY
assignment at Fort Benning, GA and such failure results in the nonpayment
of reasonably incurred TDY expenses, the Army Board for Correction of
Military Records may pay the expenses, at its sole discretion, in
accordance with Title 10, U.S. Code, section 1552.”  This would allow the
Board to invoke that provision and pay him the amount that he reasonably
incurred, after reasonable offsets, due to Government error (determined to
be $8,145.28).

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

__jns___  __le____  _mhm____  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for partial relief.  As a result, the Board
recommends that the PCS and TDY orders of the individual concerned be
amended to add the sentence “If officials at Fort Benning, GA fail to allow
you to sign in to your permanent duty station (i.e., Fort Benning, GA)
prior to attending and completing your TDY assignment at Fort Benning, GA
and such failure results in the nonpayment of reasonably incurred TDY
expenses, the Army Board for Correction of Military Records may pay the
expenses, at its sole discretion, in accordance with Title 10, U.S. Code,
section 1552.”

2.  That as a result of the foregoing correction DFAS shall remit in
payment to the applicant the amount of $8,145.28, with the understanding
that DFAS will thereupon collect $1,878.50 of this amount as a debt (one-
half of a double payment of his rental car expenses).

3.  That, further, DFAS and/or the Office of the Deputy Chief of Staff, G-
1, Compensation and Entitlements shall ensure the Bank of America and all
credit report agencies are notified that his credit problem was due to
Government error.

4.  The Board further determined that the evidence presented is
insufficient to warrant a portion of the requested relief.  As a result,
the Board recommends denial of so much of the application that pertains to
so much of the applicant's claim for reimbursement of his TDY expenses in
excess of $6,266.78 ($8,145.28 minus $1,878.50).




            __John N. Slone_________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040003635                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040930                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.       |128.14                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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