RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        1 March 2007
      DOCKET NUMBER:  AR20060011055


      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. Gerard W. Schwartz            |     |Acting Director      |
|     |Ms. Deyon D. Battle               |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Thomas Ray                    |     |Chairperson          |
|     |Mr. Jeffrey Redmann               |     |Member               |
|     |Mr. James Hastie                  |     |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 that his permanent change of station (PCS)
orders number 142-101, issued on 21 May 2004, be amended to show his
entitlement to consecutive overseas tour (COT) travel benefits.

2.  The applicant states that his COT travel benefits were never used as
authorized on his orders and therefore, his orders should be amended to
state that his COT travel benefits are still authorized.  He states that he
PCS'd from Germany to Alaska in July 2004 and as part of his travel
briefings, he was informed that his COT travel benefits may be deferred, as
authorized on his orders, as long as the travel was completed within a 1
year period after his PCS date.  He states that he was also informed and
encouraged by the travel section that he may stop over in the Continental
United States (CONUS) en route from Germany to Alaska without using his COT
travel benefits as long as the ticket price was the same or less than what
it would cost the Government to fly him and his family from Germany to
Alaska.  He states that the scheduled airline ticket office was able to
find the tickets meeting the requirements, thus he and his family stopped
in California from 14 July until 28 July 2004.  He states that in December
2004, he went to the travel office to request COT travel and he was
informed that his COT travel benefits had been forfeited by stopping over
in California for more than 10 days.  He states that during his travel
briefing in Germany he was never briefed on this critical information
because rather than to lose his COT, he would have stayed in California
less than 10 days or he would have stayed in California longer to fully
utilize his COT travel benefits.

3.  The applicant provides in support of his application, a copy of
Permanent Change of Station orders dated 21 May 2004; a memorandum from
Headquarters, United States Army Medial Department Activity, Deputy Command
for Clinical Services dated 31 January 2005; and a memorandum from Bravo
Detachment, 203d Personnel Service Battalion, Chief, Personnel Officer
dated 18 September 2005.

CONSIDERATION OF EVIDENCE:

1.  On 21 May 2004, while serving in the rank of major, orders were
published, which directed the PCS of the applicant and his family from
Germany to Alaska, with a reporting date of 4 October 2004.  His orders
authorized him COT leave travel entitlements.  He was also approved for
deferred COT entitlements.



2.  On 31 January 2005, the Deputy Command for Clinical Services at
Headquarters, United States Army Medical Department Activity, Fort
Wainwright, Alaska, authored a memorandum to the Commander, Human Resources
Command, Alexandria, Virginia, indicating that the applicant, having
elected to serve in COT, moved from Germany to Alaska in July 2004.  The
Deputy Command for Clinical Services states that the applicant out-
processed through many offices and was never briefed on the fact that the
COT entitlement would be forfeited if he were to travel through CONUS for
more than 10 days.  He states that during the PCS, he traversed through
CONUS from 14 July through 28 July 2004, exceeding the maximum duration by
4 days.  He states that the regulation was pointed out to the applicant
only after he inquired about procedures to utilize his COT entitlement
through the Fort Richardson travel office in December 2004.  The Deputy
Command for Clinical Services states that given the fact that critical
information was not briefed to the service member prior to his travel, he
strongly recommends an exception to policy for COT entitlement for the
applicant.

3.  On 13 December 2006, in the processing of this case, a staff advisory
opinion was obtained from the Deputy Chief, Medical Corps Branch, Army
Human Resource Command, who opined that the applicant's orders state
"Soldier is authorized leave travel in conjunction with COT under the
provisions of the Joint Federal Travel Regulation (JFTR) and HQDA DAPC-NPR-
C message COT.  Officer is approved for deferred COT entitlements."  The
Deputy Chief further opined that in accordance with Title 37 United States
Code 41B(A)(2), JFTR paragraph U7200 and Army Regulation 614-30, sufficient
justification for deferral of COT entitlements did not exist; and the
action was not supported by the loosing or gaining commanders.  The
advisory opinion indicates that in accordance with Department of the Army
Message dated 26 February 1999 with Subject: COT and In-Place Consecutive
Overseas Tour (IPCOT) – Travel Entitlements/Funding Update, the applicant
is not authorized to exceed 10 days of leave between his old and new
permanent duty station; and that this requirement was clearly violated
during 14 July through 28 July 2004, when he stopped over in California,
his home of record, for more than 10 days.  The advisory opinion further
indicates that the procedures outlined in Army Regulation 600-8-10
paragraph 4-17/18 or Army Regulation 600-8-105 paragraph 4-6 and paragraph
4-9 were not adhered to as required.  The Chief, Medical Corps Branch
opined that the applicant traversed the CONUS and coordinated to effect his
government funded travel so that he could take an extended leave (14 days)
at his home of record.  The Chief, Medical Corps Branch opined that the
applicant has been afforded his entitlements of COT home travel in
accordance with the appropriate policies, statues and regulations.

4.  On 19 September 2006, a copy of the advisory opinion was provided to
the applicant for comment and/or possible rebuttal.  To date there has been
no response from the applicant regarding the advisory opinion

5.  Army Regulation 600-8-10 prescribes the policies, operating tasks and
steps governing military absences.  Paragraph 4-17 of that regulation
provides, in pertinent part, that leave together with COT is a chargeable
leave granted together with Army funded transoceanic travel and
transportation per section 411b, Title 37, United States Code.  COT leave
is normally used between two tours of duty or it may be deferred for
personal reasons or military necessity.  It must be used between the two
tours of duty when the Soldier's PCS requires Soldier or dependents to
traverse through the CONUS, unless the losing or gaining commander defers
COT leave due to military necessity.  For Soldiers authorized a deferred
COT leave, the orders and DA Form 31 (Authorization for Leave) will contain
the instructions that the leave must be taken within 1 year from the date
the soldier reports to their new duty station.  Paragraph 4-18 provides the
steps for Soldiers to request to take or defer a COT leave.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requested that his PCS orders be corrected to state that
his COT travel benefits are still authorized.  The question in this case is
whether there was an error made during the preparation of his orders.  A
review of the available records indicates that there was no error made to
his PCS orders at the time that they were prepared.

2.  The applicant's orders indicate that he was authorized leave travel in
conjunction with his COT.  His orders also indicate that he was approved
for deferred COT entitlements.  However, his orders do not provide the
justification for deferral of COT entitlements as required by laws and
regulations and the action was not supported by the loosing or gaining
commanders.

3.  The applicant's contentions regarding his COT briefing or lack thereof
have been noted.  Nevertheless, he did not forfeit his COT entitlement.  He
was in fact afforded his COT entitlement.  Although he only stayed at his
home of record for 14 days, he utilized his COT entitlement when he
exceeded the 10 days of leave between his old duty station and his new
permanent duty station, violating the procedures outlined in the applicable
regulations.




4.  The fact that he contends he would have stayed at his home of record
for less than 10 days had he known that he was utilizing his COT
entitlements is not a basis for amending his PCS orders.  His PCS orders
appropriately reflect that he was authorized travel leave in conjunction
with COT and that he was approved for deferred COT entitlements.

5.  In order to justify correction of a military record the applicant must
show or it must otherwise satisfactorily appear, that the record is in
error or unjust.  The applicant has failed to submit evidence that would
satisfy this requirement.

6.  In view of the foregoing, there is no basis for granting the
applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___TR___  __JR   __  __JH____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis for correction of the
records of the individual concerned.




                                  ______Thomas Ray_________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060011055                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070301                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  252  |121.0000/COT LEAVE                      |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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