IN THE CASE OF:	  

		BOARD DATE:	        27 JANUARY 2009

		DOCKET NUMBER:  AR20080006506 


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, reinstatement of his eligibility to store and move his household goods (HHG) and family back to his home of selection (HOS).  He further requests reimbursement related to his original shipping entitlement amounts and time with an effective date that will allow him to complete his upcoming move in a reasonable amount of time.

2.  The applicant states that he was released from active duty (REFRAD) due to a mandatory release date of June 2007.  He states that his orders show HOS and that a transportation officer confirmed that the wording indicated he had 1 year eligibility.  He states that he initiated a request to extend his eligibility date 60 days prior to the expiration date and that he was informed that his eligibility had expired 180 days from the date of his REFRAD.  He states that he requested reinstatement of his eligibility and that his request for reinstatement was denied.  He states that his original orders were wrong; the information that he was provided by the transportation officer relating to his orders was wrong; and the 180-day time frame that was used to support denial of his request was inaccurate.  He states that his duty station house was on the market for over 1 year and finally sold in April 2008.  He states that he had to sell the house listed as his home of record (HOR) in February 2008, and that he is actively looking to return to Louisiana which has always been his intended HOR.

3.  The applicant provides in support of his application a copy of his request for reinstatement of his entitlement to move his HHG to his HOS dated 27 March 2008; a copy of his request for extension of his entitlement to move his HHG to his HOS dated 25 March 2008; a copy of the letter from the United States Army Installation Management Command Transportation Division Chief dated 7 April 2008, notifying him that his request for extension of his transportation and shipping entitlements was disapproved; a copy of electronic mail (email) between officials at the Logistics Division, Installation Management Command and Headquarters, Department of the Army, Office of the Deputy Chief of Staff, G-4, pertaining to his request for an extension of his shipping entitlements; a copy of U.S. Army Reserve Medical Command Orders              07-293-00168 dated 20 October 2007; a copy of U.S. Army Human Resources Command, St. Louis (AHRC-STL) Orders C-03-790167 dated 8 March 2007; a copy of AHRC Orders C-03-707437 dated 7 March 2007; a copy of AHRC-STL 
Orders R-06-684697 dated 28 June 2006; a copy of U.S. Army Reserve Personnel Center Orders R-03-002001 dated 21 March 1995; a copy of a settlement statement; and a copy of page 2 of a residential listing.

CONSIDERATION OF EVIDENCE:

1.  AHRC-STL Orders C-03-790167, dated 8 March 2007, authorized the applicant's REFRAD and assignment to the U.S. Army Reserve Control Group (Reinforcement) effective 4 June 2007.  These orders also authorized him travel to an HOS in accordance with paragraph U5130 of the Joint Federal Travel Regulation (JFTR), selection of a home any place within the United States, and movement of his dependents and HHG to his HOS.  These orders do not specify whether he had 6 months or 1 year to complete travel in connection with his REFRAD.

2.  On 4 June 2007, the applicant, a member of the U.S. Army Reserve Active Guard Reserve, was REFRAD and transferred to the U.S. Army Reserve Control Group (Reinforcement).

3.  U.S. Army Reserve Medical Command Orders 07-293-00168, dated 20 October 2007, ordered the applicant to active duty in support of Operation Enduring Freedom as a member of his Reserve component unit for 365 days, unless sooner released or unless extended.  Under these orders, movement      of his HHG and dependents were not authorized.  (He was REFRAD on            26 September 2008; however, his REFRAD orders are not available.)

4.  In a memorandum dated 25 March 2008, the applicant submitted a request for extension of his entitlement to move his HHG to his HOS.  In his request he stated that he had a permanent change of station (PCS) move from San Antonio, Texas, under Department of the Army Orders R-06-684697 8 months earlier to St. Peters, Missouri, with the intention of deploying in support of Operation Enduring Freedom in the summer of 2007.  He stated that he did not execute a complete movement of his family or HHG at the time of his PCS as he had anticipated continuation in an active status and subsequent deployment.  He stated that due to his unexpected REFRAD and the lack of civilian employment, he had to put his HOR up for sale/rent since the one in San Antonio, Texas, was not selling.  He stated that two house payments without steady income became too difficult to maintain.  He stated that he had entered into a rental contract with an option to buy for his HOR and that the renter had exercised his option to buy.  He stated that he honored the rental contract on 15 February 2008 and that he was trying to obtain another house in Louisiana in order to relocate his family and HHG to his HOS.  He stated that he had yet to find anything suitable and that his house in San Antonio, Texas, was still on the market.  He concluded his memorandum by requesting an extension to his entitlement to move his HHG to his HOS so he would not lose his benefit.

5.  Email provided by the applicant shows that he was advised that he did not have an entitlement to extend since he only had 180 days to ship his HHG upon REFRAD since he did not retire and did not receive any type of severance/ separation pay.

6.  On 27 March 2007, the applicant requested reinstatement of his entitlement to move his HHG to his HOS.  He based his request on incorrect information contained in AHRC Orders C-03-707437 and erroneous information that he obtained from a transportation officer.  In his request, the applicant stated that he had just received an offer to buy his house in San Antonio, Texas, and that he was ready to move his family to his HOR in Louisiana.

7.  In an email dated 1 April 2008, a member of the Office of the Deputy Chief of Staff, G-4, disapproved reinstatement of the applicant's travel and transportation shipping entitlement, as he let his travel and transportation entitlement expire in August 2007.  This email also states, in pertinent part, that their office did not have the authority to reinstate an expired entitlement and essentially recommended that the applicant apply to the Army Board for Correction of Military Records.

8.  On 21 April 2008, the applicant contacted his state Senator's office explaining the events that occurred surrounding his request for an extension of his entitlement to move his HHG to his HOS and requested assistance in this matter. His request was forwarded to a Department of the Army Congressional Coordinator for appropriate distribution.

9.  In an undated letter, the Office of the Deputy Chief of Staff, G-4, notified the Senator's office that under the JFTR, the authorization for transportation and storage of HHG expires on the 181st day following REFRAD.  The letters reads that the storage of HHG in conjunction with a contingency is covered in the Personnel Policy Guidance (PPG); the PPG limits the storage of HHG to a Soldier married to another service member when both are deployed, a Soldier married to another service member residing at different permanent duty stations, and Soldiers who are single parents with a childcare plan that requires the dependent to leave the residence.  The letter reads that married Soldiers in the same circumstances are not authorized continued storage at Government expense and that if a married Soldier wants to keep the HHG in storage during the deployment, the cost of storage is at the Soldier's expense.

10.  The letter to the Senator's office further reads that the applicant's orders erroneously authorized the transportation of HHG to an HOS instead of his HOR or place of entry on active duty and that the transportation office incorrectly advised the applicant that the time limit was 1 year.  The Senator's office was informed that unfortunately the Office of the Deputy Chief of Staff, G-4, cannot authorize allowance beyond the authority in the JFTR, and the decisions by the Comptroller General and the Defense Office of Hearings and Appeals have long upheld that the Government is not bound by the erroneous advice or unauthorized acts of its officers, agents, or employees, even though committed in the performance of their official duties.  The Senator's office was informed that since the Office of the Deputy Chief of Staff, G-4, is unable to reimburse or reinstate the applicant's entitlements for the transportation and storage of his HHG, his application was being referred the Army Board for Correction of Military Records.  The Senator's office was informed by the Office of the Deputy Chief of Staff, G-4, that if requested by the Army Board for Correction of Military Records, they will support the applicant's request for reimbursement.

11.  Volume 1 (Uniformed Service Personnel) of the JFTR contains basic statutory regulations concerning official travel and transportation of members of the Uniformed Services.  Paragraphs U5130, U5230, and U5365-F contain the policy and procedure pertaining to the shipment of HHG to an HOS by uniformed service personnel upon retirement.  In effect, these paragraphs authorize a member travel and transportation allowances to an HOS selected by the member from his last permanent duty station (PDS) upon retirement.  They state, in pertinent part, that a member on active duty is entitled to travel and transportation allowances to a home selected by the member from the last PDS upon retirement.  They also establish time limitations for shipment of HHG and state, in pertinent part, that travel must be completed within 1 year from the active service termination date.


12.  Extension provisions to the 1-year time limit are also provided for deserving cases under the Secretarial Process.  This process allows for extensions based on an unexpected event beyond the member's control that prevents movement to an HOS within the specified time limit.  An extension of the time limit may be authorized by the Secretarial Process if it is in the best interest of the service, or substantially to the benefit of the member, and not costly or otherwise adverse to the service.  These extensions are approved for the specific period of time that the member anticipates is needed to complete the move and if additional time is required, the member may request a further extension.  Paragraph U5012-I of Volume 1 of the JFTR provides the policy on restrictions to time limit extensions and states, in pertinent part, that a written time limit extension that includes an explanation of the circumstances justifying the extension may be approved for a specific additional time period using the Secretarial Process.  However, extensions under this process will not be authorized if it extends travel and transportation allowances for more than 6 years from the separation/retirement date.

13.  Volume 1 of the JFTR, paragraph U5360 contains guidance on the HHG transportation entitlements of members separated from the service or relieved from active duty except for discharge with severance or separation pay.  Subparagraph G states that authorization for HHG transportation terminates on the 181st day following separation from the Service or relief from active duty unless a written application for HHG transportation is turned in to a transportation officer or a designated representative before the expiration of the 180th day.  When a HHG transportation application is made within 180 days, HHG must be turned over for transportation as soon as practicable after the submission.  The transportation officer or designated representative determines "practicability" based on the facts and circumstances in each case.  In hardship cases, a time limit extension may be authorized/approved for a specific additional period of time through the Secretarial Process.  

14.  Subparagraph G continues by stating that the time limit extension for transportation in no way extends the Government's obligation for storage costs for longer than the period authorized/approved under paragraph U5360-B (i.e., at the expiration of the 180th day).

DISCUSSION AND CONCLUSIONS:

1.  It is clear that errors were made during the preparation of AHRC-STL Orders  C-03-790167 which resulted in the applicant being erroneously informed regarding his entitled to the shipment of his HHG.

2.  The applicant was released from active duty on 4 June 2007.  The available documentation shows that he was informed by AHRC-STL Orders                     
C-03-790167 and the transportation office that travel to his HOS was authorized in accordance with the JFTR, paragraph U5130, and that movement of his dependents and HHG to his HOS was authorized.  However, when he submitted a request for an extension of his entitlement to move his HHG to his HOS, which was not quite 10 months after his REFRAD, he was told that his orders were incorrect and that he only had 6 months from the date of his REFRAD to move his HHG to his HOR.

3.  JFTR, paragraph U5130, states that transportation to a selected home must be completed within 1 year of active duty termination upon retirement and that a written time limit extension may be authorized/approved using the Secretarial Process.  However, travel or transportation of HHG to a HOS is authorized only for retirees.  The applicant was being released from active duty but not for retirement purposes.  He was only authorized transportation to his HOR, and it had to be completed in 6 months.

4.  The applicant submitted a request for extension of his entitlement to move his HHG to his HOS in accordance with the information contained in AHRC-STL Orders C-03-790167 and the information provided to him by the transportation office.  While it is clear that the information contained in the orders regarding the move of his HHG to his HOS is incorrect, the orders were prepared by AHRC-STL.  Therefore, it would be an injustice for him to lose his entitlements as a result of errors that were made which are no fault of the applicant.

5.  Paragraph U5360-G of the JFTR states that the time limit extension for transportation in no way extends the Government's obligation for storage costs for longer than the period authorized/approved under paragraph U5360-B (i.e., at the expiration of the 180th day).  However, the JFTR does not prohibit the Government from paying for storage costs.

6.  The applicant stated that he is actively looking to return to Louisiana, which has always been his intended HOR.  

7.  It is noted that the applicant returned to active duty again on or about            20 October 2007 and was REFRAD on 26 September 2008.  His REFRAD orders from this period of active duty are not available.  However, if he shipped 

his HHG from the previous period of active duty under consideration and the Army paid for the shipment of his HHG based on these September 2008 orders, he is not entitled to further reimbursement.

8.  In view of the foregoing, it would now be in the interest of justice to correct the applicant's records as recommended below.

BOARD VOTE:

___X_____  ___X_____  ___X_____  GRANT FULL RELIEF 

________  ________  ________  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 relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

     a.  showing that he submitted for and was granted the necessary extension(s) of his entitlement to move his household goods through 3 June 2009 in order to allow him a move to his HOR at Government expense or by reimbursing him the authorized amount if his move has already been accomplished at his own expense.  If the move has not been accomplished, the applicant is cautioned that he must submit a future 180-day extension request if he plans to relocate after 3 June 2009 through normal transportation office channels.  Barring unusual circumstances that would warrant a return to this Board for further correction, only one additional 180-day extension is authorized after 3 June 2009; and 

     b.  showing that he was/is authorized reimbursement for any costs incurred in storing his HHG during the period from 4 June 2007 through the date he moves his HHG to his HOR.

2.  The applicant's records should be audited to ensure he did not ship his HHG entitlement from his REFRAD of June 2007 based upon his September 2008 

REFRAD orders.  If he did so, he is not entitled to further shipment reimbursement (as opposed to storage reimbursement) based upon the above corrections.




      _________XXX________________
        	      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)                                         AR20080006506



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ABCMR Record of Proceedings (cont)                                         AR20080006506



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