RECORD OF PROCEEDINGS


	IN THE CASE OF:	


	BOARD DATE:	  
	DOCKET NUMBER:  AR20070018501 


	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.  


	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 Army Human Resources Command (AHRC) Orders Number A-05-712758, dated 29 May 2007, be bridged or amended to cover the period 26 June 2007 to 10 July 2007.  

2.  The applicant states that he suffered a financial hardship during the above period and that a correction of his order would cover his break in service and the cost of his contracted lodging while being forced to be released from active duty (REFRAD).  

3.  The applicant states, in effect, that he was mobilized in February 2006 to Fort McPherson, Georgia, before applying for a Contingency Operations Temporary Tour of Active Duty (COTTAD) position in February 2007.  While on Temporary Change of Stations (TCS) orders, at his place of applied COTTAD [Worldwide Individual Augmentation System] (WIAS) position, he received an email from the Individual Augmentation (IA) Division to be REFRAD, or removed from the 3rd Army Augmentation’s books, so that he would not hold two positions.

4.  The applicant also states that during the time of his REFRAD, a second DA Form 1058 (Application for Active Duty for Training, Active Duty for Special Work, Temporary Tour of Active Duty, and Annual Training for Soldiers of the Army National Guard and US Army Reserve) was required and not completed by the time he was forcibly REFRAD.  He took the available leave time before his REFRAD date in an attempt to avoid a break in service anticipating orders before the effective REFRAD date.  He was unaware of the problems and he did not remove his property or close the contracted apartment in Tampa, Florida.  He was forced to go 2 1/2 weeks without pay before new orders were processed.  The new orders were dated 3 days after he was REFRAD and 2 1/2 weeks before being effective. 

5.  The applicant provides several documents from his Official Military Personnel File (OMPF) such as orders for active duty, reassignment, and amended orders, several memorandums, lodging cost, and additional documents in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military records show he was appointed as a Reserve commissioned officer in the rank of second lieutenant (2LT/O-1) on 12 April 1985, with prior service.  He was promoted to lieutenant colonel (LTC/O-5) effective 4 April 2005.
2.  On 24 January 2006, the 81st Regional Readiness Command (RRC), Birmingham, Alabama, published orders ordering the applicant to active duty, effective 16 February 2006, for 538 days, in support of Operation Enduring Freedom (OEF).  He was ordered to report to Fort McPherson, Georgia, on 16 February 2006 and to Fort Benning, Georgia, on 18 February 2006. 

3.  On 23 February 2006, Headquarters, United States Army Infantry Center (USAIC), Fort Benning, published orders assigning the applicant to 3rd Army Augmentation Detachment 13, Kuwait in support of OEF with a will proceed date of 24 February 2006.  Orders indicated that this was a TCS and that he would be attached to a TCS duty station.  Normal PCS entitlements, allowances, and relocation of family members were not authorized.   

4.  On 28 August 2006, the applicant's orders were amended to show he was assigned to the 3rd Army Augmentation Detachment 13, Fort McPherson with onward movement to Kuwait, on or about 19 August 2006.

5.  On 27 November 2006, the Commander, 6th Service Squadron, MacDill Air Force Base (AFB), Florida, prepared a Statement of Non-Availability for the applicant which indicates that government quarters were not available on the installation during the period covered from 12 April 2007 to 4 June 2007 and from 5 June 2007 to 6 December 2007.  

6.  On 22 February 2007, the 81st RRC published orders ordering the applicant to active duty for a period of 387 days.  Orders were amended, by the 81st RRC, on 23 February 2007, to change the period to 437 days.

7.  On 12 April 2007, Headquarters, Fort McPherson, published orders reassigning the applicant to the United States Army Forces Central Command (USCENTCOM), Tampa, Florida, in support of OEF for a period of 41 days or until mission completion or otherwise directed by AHRC-Alexandria.  

8.  On 25 April 2007, the Headquarters, 81st RRC, published orders reassigning the applicant from a TPU to a TPU within the command, effective 29 April 2007.  

9.  On 30 April 2007, the 81st RRC, published orders ordering the applicant to active duty in support of OEF for 179 days.  He was advised to report to Fort McPherson on 29 April 2007 and to Fort Benning on 2 May 2007.



10.  On 2 May 2007, by email, the applicant was informed by the IA Division that they were attempting to get clarification concerning his orders.  The IA spoke to the 81st RRC to get some understanding and to try to get his orders changed to reflect duty at MacDill AFB.  Unfortunatley, the route that had to be taken was that the applicant had to report to Fort Benning as soon as possible (ASAP) to be REFRAD.  The IA Division stated he was transferred to the 3rd Army under Detachment 13 for the time specified for that Detachment, which ended on 28 April 2007.  

11.  The IA Division also stated that they had been informed the applicant never belonged to the 3rd Army Augmentation, but that he was transferred for the purpose of Detachment 13.  So in order to get him the proper order, he must REFRAD ASAP and get an O-6 memorandum signed from his Reserve command in Florida.  

12.  On 21 May 2007, the Chief, Mobilization Support Branch, AHRC, prepared a memorandum for the 3rd Army, United States Central Command Coalition Forces Land Component Command, Fort McPherson, Subject:  Request for Early REFRAD of the applicant.  The Chief, Mobilization Support Branch stated that the applicant’s request was reviewed in accordance with the regulation and was approved.  The REFRAD was to be no later than 26 May 2007.  This date was calculated to include terminal leave and administrative processing. 

13.  On 22 May 2007, an invoice was prepared by the Nika Corporate Housing, LLC (Limited Liability Company), pertaining to the applicant.  The invoice indicated that the lodging room charge was for 31 days at $88.00 per day for a total amount of $2,728.00. 

14.  The applicant was released from active duty on 26 May 2007 and was assigned to Headquarters, 3rd Army USAR Augmentation Detachment 13, Fort McPherson. 

15.  On 29 May 2007, AHRC-Alexandria published Orders Number A-05-712758 ordering the applicant to active duty on 11 June 2007 in support of OEF with duty at MacDill AFB, Florida.  His period of active duty was for 5 months and 26 days, with an end date of 6 December 2007.  Orders indicated that Government Quarters/Mess would be used if available when travel was to a military installation or that he must obtain a statement of non-availability. 



16.  On 28 June 2007, HQ, 81st RRC, published orders reassigning the applicant to a TPU within the Command, 3220 Adjutant General (AG) Garrison, West Palm Beach, Florida, effective 28 June 2007.  On that same day, these orders were revoked.

17.  On 3 July 2007, an invoice was prepared by the Nika Corporate Housing, LLC, pertaining to the applicant.  The invoice indicated that the lodging room charge was for 30 days at $88.00 per day for a total amount of $2,640.00. 

18.  On 5 July 2007, the applicant provided a letter to the Defense Finance and Accounting Service (DFAS) regarding his payment for contracted lodging.  He stated, in effect, that during the period 22-26 May 2007, he was forcibly REFRAD in order to be removed from the 3rd Army Augmentation Company’s books.  A packet was submitted to AHRC-Alexandria for a WIAS position earlier in the year before he left on TCS Orders to MacDill AFB.  He reported to Headquarters, USCENTCOM, and after arriving he was sent to attend a course at the Defense Institute of Security Assistance Management (DISAM) at Wright Patterson AFB, Ohio.  While at DISAM, he was advised by personnel at 3rd Army in Atlanta, Georgia, handling the WIAS program that he needed to report to Fort Benning to be REFRAD.

19.  The applicant stated that after completing the course on 11 May 2007, he proceeded back to Tampa and West Palm Beach, Florida to retrieve equipment for the equipment turn-in at Fort Benning on 13 May 2007.  AHRC was contacted in reference to his situation and advised they would expedite his WIAS packet and publish orders for the position at MacDill AFB.  During his time at Fort Benning, he had to REFRAD and took terminal leave, while awaiting this WIAS Orders.  Meanwhile, he was still maintaining the contracted apartment in Tampa, Florida.  He stated that the Nika Corporation which rents apartments to military personnel advised him that they would be charging him the full month's rent for June 2007 even though he was not on orders at that point and not living in the apartment due to his REFRAD/terminal leave.  

20.  The WIAS Orders (A-O5-712758) did arrive but were dated for his report date of 1 June 2007, even though the orders were dated 29 May 2007.  This absence from the apartment was no fault of his own but the US Government and the lodging bill of $2,640.00 should be paid in full.  He returned back to Tampa on 10 June 2007 and to his duty station at MacDill AFB on 11 June 2007.

21.  The applicant provided several copies of his DD Form 1351-2 (Travel Voucher or Subvoucher) which shows his total lodging cost of $2,640.00.

22.  On 25 September 2007, the applicant appealed to DFAS regarding payment of contracted lodging from 12 May to 9 June 2007.  He elaborated once again on the events that occurred in his previous letter.  He concluded that he submitted his lodging expenses with his travel voucher but was denied claims for the period of 12 May to 9 June 2007 for $2,552.  He requested that DFAS favorably consider his appeal for payment of his denied claim for lodging.

23.  On 17 October 2007, the Deputy Director, Travel Missions Areas, Standards and Compliance, DFAS, prepared a letter in response to the applicant’s request for reimbursement for lodging during the period 12 May 2007 to 9 June 2007.  DFAS stated that after reviewing his claims it had been determined that there was no further travel entitlements due for lodging incurred by him for the period the 12 May 2007 to 9 June 2007.  He had not provided valid orders that would cover that time period for official duty in Tampa that would authorize reimbursement of lodging expenses.  Without valid orders there was no entitlement for any further travel reimbursement.  

24.  DFAS stated although orders were promised, this did not create an entitlement.  A written order confirming the verbal promise (called a confirmatory order) was required.  Once a valid confirmatory order was issued, he could submit a supplemental DD Form 1351-2 for reconsideration of reimbursement for his lodging expensed.  At this time no confirmatory written orders were available for this time period.  It was recommended that he apply to this Board and request confirmatory orders for this period.  The confirmatory order must contain specific language authorizing him to retain lodging in Tampa, Florida.  DFAS concluded that if he did not agree with these finding and wished to appeal to the Defense Office of Hearings and Appeal (DOHA), he had 30 days to appeal.   

25.  On 12 December 2007, the DFAS forwarded the applicant’s claim to DOHA for a determination.  DFAS informed DOHA that the applicant did not provide valid orders covering the period 12 May 2007 to 9 June 2007, as official duty in Tampa, Florida.  The applicant was advised to contact this Board to request confirmatory orders.  He was advised that confirmatory orders must specifically state that retaining lodging in Tampa was authorized.  As of 7 December 2007, no confirmatory orders had been received.  Without valid orders there was no entitlement for any further travel reimbursement.

26.  On 23 January 2008, AHRC-Alexandria, amended Orders Number A-05-712758, dated 29 May 2007, to add additional instructions, "You are directed to contact installation housing.  If lodging is not available or you are not assigned to an installation, call lodging success at 1-866-363-5771 to obtain housing or statement of non-availability to reside on the economy."

27.  On 31 January 2008, a Claims Adjudicator, Defense Legal Service Agency, Defense Office of Hearing and Appeals, considered the applicant’s claim for lodging for the period 12 May 2007 through 9 June 2007, under Title 31, United States Code, section 3702(a).  The Claims Adjudicator explained the reason for the disallowance of his claim in the letter.  The Claims Adjudicator described, in chronological order, those events that had occurred and for which valid orders were available.  He conclude that payment could not be made because there were no valid orders covering the period at issue and quoted the below regulatory cites to support his conclusions. 

28.  Volume 1, Joint Federal Travel Regulations (JFTR) paragraph U2100, states in part; "The travel order established the conditions for official travel and transportation at Government expense, and provides the basis for the traveler’s reimbursement."  At 1 JFTR U2115-A, the regulations follow with this rule: "A written order issued by competent authority is required for reimbursement for expenses incident to official travel."  Without travel order, a claim will be disallowed.  

29.  JFTR paragraph U2200-A states that "A member is authorized travel and transportation allowances only while in a travel status.  Travel status exists while performing travel away from the PDS [permanent duty station] on public business under competent travel orders, including necessary delay en route.  Travel status begins when the member leaves residence, officer, or other departure point and ends upon return to the residence, officer, or other arrival point at the trip conclusion."

DISCUSSION AND CONCLUSIONS:

1.  The applicant was ordered to active duty on 16 February 2006 in support of OEF and to report to Fort McPherson and to Fort Benning, Georgia.  He was later assigned to 3rd Army Augmentation Detachment 13 which was a TCS and he was informed that he would be attached to a TCS duty station.  Orders were amended to show assignment to Fort McPherson, with duty in Kuwait.

2.  The evidence shows the applicant was informed by the Commander, 6th Services Squadron, MacDill AFB, that government quarters were not available on the installation during the period from 12 April 2007 to 4 June 2007 and from 5 June 2007 to 6 December 2007.  

3.  The 81st RRC published orders ordering the applicant to active duty for a period of 387 days which were amended to change the period to 437 days.  Fort McPherson published orders reassigning him to USCENTCOM, in support of OEF, for 41 days or until the mission was complete.  While, at USCENTCOM, he was sent to a course at DISAM, at Wright Patterson AFB.  

4.  The applicant was informed by email by the IA Division that clarification of his orders was being sought to reflect duty at MacDill AFB.  However, he was informed that he must report to Fort Benning to be REFRAD.  The IA Division indicated that he was transferred to 3rd Army under Detachment 13 only for a specific time, which ended on 28 April 2007.  He was informed that he never belonged to 3rd Army but was transferred for the purpose of Detachment 13.  In order to provide the proper orders, he must be REFRAD ASAP and get an O-6 memorandum signed from his Reserve command in Florida.

5.  A request for REFRAD was submitted and approved to include terminal leave and administrative processing.  He was released from active duty on 26 May 2007 and was assigned to Hqs, 3rd Army USAR Aug Det 13, Fort McPherson.

6.  An invoice was prepared by the Nika Corporate Housing informing the applicant of the lodging room charge of $88.00 per day for 31 days in the amount of $2,728.00 and for 30 days in the amount of $2,640.00.

7.  The applicant submitted a voucher, DD Form 1351-2, for payment of his contracted lodging in the amount of $2,640.00, which covered the period 12 May to 31 May 2007 and from 1 June to 9 June 2007.

8.  The evidence shows that the applicant had no active duty service from 27 May to 10 June 2007.  

9.  The applicant was ordered to active on 11 June in support of OEF with duty at MacDill AFB, Florida, for a period of 5 months and 26 days, with an end date of 6 December 2007.  Orders indicated that Government/Mess would be use if available when travel was to a military installation or he must obtain a statement of non-availability.

10.  The applicant requests that AHRC Orders Number A-05-712758, dated 29 May 2007, in effect, be bridged or amended to cover the period 26 June 2007 to 10 July 2007; however, these orders already cover the period from 11 June 2007 through 6 December 2007.  The evidence shows that these orders were later amended to add additional instructions for the applicant to contact installation housing.  If lodging was not available and he was not assigned to an installation, a phone number was provided for him to call to obtain housing or a statement of non-availability to reside on the economy.  Orders failed to show specific language authorizing him to retain lodging in Tampa, Florida.  
11.  The applicant appealed to DFAS regarding payment of contract lodging from 12 May to 9 June 2007 and his claim was denied.  He elaborated on the events that occurred leading up to his claim.  DFAS determined that there was no further travel entitlement due for lodging incurred by him regarding the period covered from 12 May to 9 June 2007.  He failed to provide orders that would cover that time period for official duty in Tampa that would authorize reimbursement of lodging expenses.  Without valid orders, which show that retaining lodging in Tampa was authorized, there was no entitlement for any further travel reimbursement.  

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

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____x___  ___x____  ____x___  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.




      __________x____________
                CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.























ABCMR Record of Proceedings (cont)                                         AR20070018501



4


DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET, 2ND FLOOR
ARLINGTON, VA  22202-4508