IN THE CASE OF:	  

	BOARD DATE:	 

	DOCKET NUMBER:  AR20070016262 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests in effect, amendment of orders A-08-517637 to read “movement of dependents not authorized” for entitlement of Family Separation Allowance (FSA). 

2.  The applicant states in effect, that orders (A-08-517637) be amended to read “movement of dependents not authorized,” so that he can claim lost family separation pay for the time period from 1 October 2005 to 31 May 2006.  The applicant states, that DFAS requires a determination from the ABCMR to allow the pay of lost family separation allowance before DFAS can pay his lost benefit. Between 1 October 2005 and 31 May 2006, he was on extended active duty orders which assigned him to Wiesbaden, Germany.  His orders stated that he was authorized “movement of dependents,” so according to finance, he was not eligible for family separation pay.  However, when he tried to move his family, he was told that those orders as written do not allow movement of family members because the orders needed to read 3 years in length; his dependents needed to be listed on the orders, and the orders needed to state Command Sponsorship was authorized.  Effectively he was authorized to move dependents according to the orders, but he was not permitted to move his dependents.  He was separated from his family and not receiving family separation allowance.   

3.  The applicant provides a copy of Order A-08-517637 dated 23 August 2005 in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s available military records show he entered active duty on 
1 October 2005 in pay grade Chief Warrant Officer 3 (WO3).  He continues to serve on active duty in the rank of Chief Warrant Officer 4.  

2.  On 23 August 2005, travel orders were published ordering the applicant to active duty to Germany with an active duty commitment of 1 year with movement of dependents authorized. 

3.  The applicant’s available military record also indicates that the applicant’s family did not accompany him because the orders granting dependent travel were in error.

4.  A Memorandum from the Office of the Inspector General dated 19 September 2007 was obtained from Deputy Inspector General.  This official stated in effect, that after careful review of the facts concerning retroactive receipt of FSA for the period of August 2005 through September 2006.  The orders (A-08-517637), dated 23 August 2005, bringing the applicant to Germany did allow for “Movement of Dependents,” however, they were not properly formatted.  The orders should have listed the names of his family members and the length of the tour should have been adjusted according to the transportation office at Fort Sam Houston, Texas and consequently the applicant’s family stayed behind.  It further stated that there was confusion on the part of the Transportation Office and the Joint Federal Travel regulation was interpreted incorrectly, as to how the orders should read considering the length of the assignment.  At that time the applicant’s orders should have been modified with an accompanying explanation of the special program that accessed him onto active duty.  This modification should have come from the office that cut the original orders.  Clearly, the gaining command, intended for the applicant’s family to join him on this initial assignment in Germany.  Human Resource Command, Alexandria should have made the needed correction or explained to the transportation office at Fort Sam Houston, that family travel was authorized.  This Office concluded that the applicant was entitled to FSA for the time that he was on active duty in Germany without his dependents.  It was also determined that DFAS will pay this entitlement only after orders are modified to show this period of time as unaccompanied.  Because of the length of time that has passed since the orders were originally published the applicant’s only option at this point is to apply for correction with the ABCMR.       

5.  In connection with the processing of this case, an advisory opinion dated 
22 January 2008, was obtained from the Chief, Compensation & Entitlements Division, Deputy from the Chief, of Staff, G-1, Washington D.C.  This official indicated after careful review of the facts surrounding the applicant’s case it was recommended that the applicant be authorized payment of FSA for 8 months of service from 1 October 2005 thru 31 May 2006.  Although his orders granted dependent travel, they were in error as there is no 1 year tour in Europe.  Family travel should have been denied or the tour lengthened.  Additionally, HRC does not have authority to grant command sponsorship.      

6.  Chapter 27, Paragraph 2701 states that FSA is payable only to members with dependents.  Two types of FSA are authorized:  Type I and II.  Both are payable in addition to any other allowance or per diem to which a member may be entitled.  A member may qualify for FSA-I and FSA-II for the same period.  In that case, concurrent payments of both are authorized.  A member, however, may not receive more than one payment of FSA-II for the same period, even though qualified for several types of FSA.  FSA-I applies to a location outside the contiguous 48 states, the District of Columbia, and Hawaii.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that orders (A-08-517637), dated 23 August 2005 did allow for “movement of dependents.”  Although his orders granted dependent travel, they were in error because there is no 1 year tour in Germany. Family travel should have been denied or the tour lengthened.  

2.  The applicant’s orders were in error and as a result the applicant was denied an entitlement that was clearly due him.  Based on the preponderance of evidence, it is apparent that an error was made.  

3.  Therefore, in the interest of equity and justice, the Board recommends amendment of the Orders (A-08-317637) dated 23 August 2005 from the U.S. Army Human Resource Command to show “Movement of Dependents Not Authorized.”  This would allow DFAS to pay the applicant FSA for the time he was on active duty in Germany.

BOARD VOTE:

___x____  ___x____  __x_____  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 by amending orders A-08517637 dated 23 August 2005 to read “Movement of Dependents Not Authorized,” for payment of Family Separation Allowance from 
1 October 2005 thru 31 May 2006.



      ___________x____________
      	CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20070016262



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ABCMR Record of Proceedings (cont)                                         AR20070016262



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