RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  15 April 2008
	DOCKET NUMBER:  AR20080003208 


	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.




Director



Analyst
      The following members, a quorum, were present:


M

Chairperson

M

Member

M

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, payment for the remainder of a Do It Yourself Move (DITY) in July 1998, and an exception to the time limitation on the shipping of property at government expense. 

2.  The applicant states, in effect, that he did not receive full payment for a DITY move to Fort Myer, Virginia (VA), in July 1998.  He contends that the finance officer advised him that he could wait to process his travel voucher until after his Department of Veterans Affairs (DVA) disability claim was processed.  The DVA took 8 years to process his claim and because of that he was not able to finalize his travel claims for the DITY move and his retirement move. 

3.  The applicant provides a copy of his DITY move and associated expenses; a copy of the documents of his final retirement and associated documents; a copy of a DVA Rating Decision, dated 5 September 2006; and copies of his retirement orders.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant was a sergeant first class (SFC)/E-7 serving in the Regular Army at Camp Shelby, Mississippi.

3.  Orders Number 061-0507, Department of the Army (DA), Headquarters (HQ), U.S. Army Aviation Center and Fort Rucker, Fort Rucker, Alabama (AL), dated
2 March 1998, ordered the applicant to travel to the U.S. Army Transportation Center, Walter Reed Army Medical Center (WRAMC), Washington, D.C., for the purpose of retirement.  His reporting date was 27 July 1998, with an established retirement date of 30 September 1998.  These orders indicated that the "Soldier has pre-selected a location for retirement/separation.  Soldier has been advised that this selection constitutes the place he or she intends to reside immediately after military service for the purpose of transportation and travel allowances.  No additional fully funded move to another home of selection after retirement/ separation will be authorized.  Final travel settlement will be made after separation when Soldier arrives at home of selection, home of record (HOR), or place entered active duty."  The applicant's HOR is shown as Washington, D.C.  He entered active duty in Baltimore, Maryland (MD).

4.  On 24 March 1998, Fort Rucker amended the applicant's retirement order (with Orders Number 083-0504) changing his reassignment to the Transition Center, Fort Myer, VA.

5.  On 9 July 1998, the applicant completed a DD Form 2278 (Application for DITY Move and Counseling Checklist).  This form indicates that he was provided $1752.00 in advance operating allowance.  In Item 4d (New Duty Assignment) of this form, the applicant indicated "Retirement." 

6.  Orders 153-0002, DA, HQ, Fort Myer Military Community, Arlington, VA, dated 2 June 1999, released the applicant from active duty and placed him on the retired list, effective 31 October 1999.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he retired on
31 October 1999.

7.  On 26 November 2007, the applicant completed a DD Form 1351-2 (Travel Voucher or Subvoucher) for his 19 July 1998 move to Washington, D.C..  He also completed the DITY Checklist and Certification of Expenses, indicating that he incurred $1,293.51 in expenses for his DITY move.  

8.  The applicant also submitted a DD Form 1351-2 for his 24 July 2007 move from Washington, D.C. to Calabash, North Carolina (NC) through the Fort Belvoir, VA Transportation Office.  He also completed an application for a DITY move to Calabash, NC. 

9.  The applicant provided a copy of a DVA Rating Decision, dated 5 September 2006, showing that he is rated as 100 percent disabled effective 2 February 2006.

10.  In processing this case, an advisory opinion was obtained from the Deputy Chief of Staff, G-4 Office, The Pentagon, Washington, D.C. who recommended denial of the applicant's request.  The Joint Travel Regulations (JFTR), paragraphs U5130, U5365, and U5012-I, authorize an extension of travel and transportation entitlements for a retiree when an unexpected event has occurred which prevented that retiree from moving to a home of selection within the 1-year time period.  This period may be extended for 1-year increments up to a total of
6 years from date of retirement.  These annual extension requests are required prior to the anniversary date of the retirement and were not submitted by the applicant each year to either the Fort Belvoir, VA or Henderson Hall Transportation Offices.  

11.  The G-4 also advised that the U.S. Comptroller General and Department of Defense (DoD) General Council ruled that an extension may not be granted to accommodate personal preference or convenience, or if it extends entitlements for more than 6 years from the date of retirement unless a certified on-going medical emergency prevents that relocation.  Examples of a medical emergency would be a retiree confined to a hospital undergoing chemotherapy or recent death of an immediate family member back in September 2004.  The 100 percent compensation/disability claim with DVA could have been processed from any retirement home of selection in the U.S. during the 1998-2004 6-year period.

12.  On 19 February 2008, the applicant was provided with a copy of the advisory opinion for comment and/or rebuttal.  To date, the applicant has not responded.

13.  JFTR, paragraph U5130 provides, in pertinent part, a member may select a home any place in the U.S.  Travel must be completed within one year after active duty termination.  The Secretarial Process may approve an extension of the 1-year time limit when an unexpected event beyond the member's control prevents the member from moving to the home within the specified time limit.
  
14.  The 36 Comptroller General 781 established the precedent that 5 years is the maximum reasonable time period to entitled military personnel for payment of travel, after the initial year.  

DISCUSSION AND CONCLUSIONS:

1.  Based on the available evidence, it does not appear that the applicant is entitled to additional payment on his DITY move in July 1998 nor to an exception to the time limitation on the shipping of property at government expense.  He has not shown error or injustice for the relief he is requesting.

2.  Ostensibly, the applicant was ordered to the Transition Center at Fort Myer on 27 July 1998 for the sole purpose of retirement on 30 September 1998.  He pre-selected this location as the place he intended to reside immediately after military service for the purpose of transportation and travel allowances.  He was on notice that no additional fully funded move to another home of selection after retirement/separation would be authorized.  He was also on notice to report to the transportation office for final travel settlement. 

3.  The applicant initiated a DITY move application on 9 July 1998 and he appears to have received $1,752.00 in an advance operating allowance.  However, the record shows he did not retire until 31 October 1999, nearly a year and 4 months after his retirement move.  There is no evidence available and the applicant did not provide any evidence explaining why he did not retire on his established retirement date of 30 September 1998.  There are no additional assignment orders available to another unit in the Military District of Washington and his initial retirement orders were not permanent change of station (PCS) orders to another assignment.  Further, the applicant was entitled to one funded move to his home of selection, and he selected Fort Myer, VA.  Therefore, it appears that he would not have been entitled to another fully funded move to NC in July 2004 as his retirement or home of selection move.  Since there is no evidence of the applicant's location for more than a year, presumption of administrative regularity attaches in his case.

4.  The applicant contends that he was never fully paid for his DITY move in July 1998; however, the documentation he furnished shows that he received $1,752.00 in an advance operating allowance, and that the total cost of his move was only $1,293.51.  He also contends that the finance officer advised him not to settle his travel voucher until his DVA disability claim was completed.  This contention is not credible, inasmuch as Army finance operations are not related to disability claims processed through the DVA.  Further, since he did not retire until more than a year after his July 1998 DITY move, the DVA could not have been taking action on his disability claim because he was still on active duty.  Finally, it is not a usual Army practice to authorize a Soldier to retire when he or she still has an unsettled travel and/or financial claim pending.  

5.  The applicant's contention that the DVA took 8 years to act on his disability claim is also without merit.  The rating decision the applicant submitted from the DVA shows that he was granted an increased rating for his initial service-connected disabilities, effective 2 February 2006.  As such, the DVA would have adjudicated the applicant's original disability claim sometime before 2 February 2006.  Since the applicant did not provide evidence of his initial DVA rating, that date is unknown.





6.  For all the reasons noted above, the applicant has failed to provide sufficient evidence to show that there is an error or injustice in his record.  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 did not submit any evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__tsk___  __jlp___  __dwt___  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.



							TSK
      ______________________
                CHAIRPERSON


ABCMR Record of Proceedings (cont)                                         AR20080003208



6


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