IN THE CASE OF:	  

		BOARD DATE:	  4 November 2008

		DOCKET NUMBER:  AR20080010774 


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, reimbursement for his DITY (Do It Yourself) move. 

2.  The applicant states, in effect, that while deployed in April 2005, he was informed by his commander that upon re-deployment to Fort Bragg, North Carolina, in October 2005, he would immediately receive orders to PCS (Permanent Change of Station) to Fort Campbell, Kentucky.  His commander agreed that it would be advisable to relocate his family to Fort Campbell prior to the 2005 school year.  His spouse relocated his family in June 2005.  Upon submitting his voucher to be reimbursed, he was informed that the US Army would not do so because his orders were not issued prior to the move.  

3.  The applicant states that despite the fact that his orders were not issued until November 2005, he was informed by his commander that he would relocate to      Fort Campbell immediately upon re-deployment in October 2005, and he was in agreement that his family should relocate prior to that time so that his children could begin the school year at Fort Campbell.  His commander states in his affidavit that this directive was not tentative, but clearly an order and, in relocating his family in preparation for complying with the order, he was acting reasonably and it is unfair and unjust that he is not being reimbursed for moving expenses despite the fact that the orders followed the move. 



4.  The applicant provides a copy of his travel claim to DFAS (Defense Finance and Accounting Service); a copy of his DFAS decision letter; a copy of his DFAS appeal; a copy of an affidavit from his commander; and a copy of his DOHA  (Defense Office of Hearings and Appeals) letter in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently serving on active duty as a first sergeant at Fort Campbell, Kentucky. 

2.  On 11 November 2004, the applicant's unit, Headquarters and Headquarters Troop (HHT), 1st Squadron, 17th Cavalry Regiment, 82nd Airborne Division, was deployed in support of Operation Iraqi Freedom (OIF) with a reporting date of 11 November 2004.

3.  On 1 November 2005, Headquarters, XVIIIth Airborne Corps and Fort Bragg, published Orders Number 305-164 pertaining to the applicant’s reassignment from Fort Bragg to Fort Campbell.  The orders authorized shipment of HHG (household goods) with dependents in accordance with the Joint Federal Travel Regulation (JFTR) and advised him to contact his local transportation office to arrange for shipment.  

4.  The applicant provided a copy of his travel claim, with supporting documents. 

5.  The applicant's former commander provided a copy of an affidavit, dated 28 November 2006.  The commander states that in approximately late April, early May, 2005, he was the Commander of 1st Squadron, 17th Cavalry, Fort Bragg, North Carolina and deployed to Iraq.  The applicant was a Platoon Sergeant and under his command at the time.  Prior to this time, he was aware that the 1st Squadron, 17th Cavalry, would be relocated (pursuant to DA [Department of the Army] Directive) to Fort Campbell sometime following the redeployment back to Fort Bragg.  (The 1st Squadron, 17th Cavalry, ultimately was relocated and designated as the 7th Squadron, 17th Cavalry).  In fact, upon redeployment in late October 2005, the unit's equipment was transported to Fort Campbell in preparation for arrival of unit personnel at a later date, after reuniting with families.  With the exception of advanced party personnel, the majority of the Soldiers relocated to Fort Campbell in March 2006.





6.  The commander states that as the unit's equipment was to be transported directly to Fort Campbell, Kentucky, upon redeployment, he felt that it would be necessary to have a representative of the unit on the ground at Fort Campbell, to ensure that the unit's equipment was in order prior to the arrival of unit personnel. He felt that the best person for the job would be the applicant and discussed this with the applicant in late April, early May 2005, while the unit was still deployed to Iraq.  In anticipation of the redeployment, he directed the applicant to proceed as follows:  he was to return to Fort Bragg and after completing reintegration training, he was to be issued orders to proceed directly to Fort Campbell in order to act as the unit's representative prior to the arrival of the advance party at a later date.  The Squadron Commander stated that this was not a discussion of ideas as to how to proceed.  It was a settled issue communicated to the applicant in an official manner.  He was the official with the authority to authorize the orders being issued to the applicant in the fashion indicated and he made clear the applicant would do so.  The Squadron Commander also discussed the applicant's family situation and it was decided that it would be advisable for the applicant's family to move to Fort Campbell prior to the beginning of the school year in the fall of 2005.  He fully supported the move of the applicant to Fort Campbell prior to the orders being issued.

7.  On 15 October 2007, the Legal Assistance Attorney, Headquarters, United States Army Garrison, Fort Campbell informed DFAS that he was writing on behalf of the applicant and his travel claim and attached supporting documentation pertaining to his claim.

8.  On 21 November 2007, the Director, Travel Mission Area Standards and Compliance, DFAS, provided a response to the Legal Assistance Attorney representing the applicant.  DFAS stated that based on the information provided by his office and the applicant that reimbursement for shipment of HHG and the travel and transportation of the applicant’s dependents to Fort Campbell prior to the issuance of his PCS orders was denied.  DFAS informed the applicant that he could appeal to the DOHA and that his appeal was required to be submitted in writing to DFAS within 30 days.

9.  On 20 December 2007, the Legal Assistance Attorney forwarded the applicant’s appeal to the DFAS decision, dated 21 November 2007.  The attorney stated that should the decision not be reversed, the applicant requested that his appeal be forwarded to DOHA.  

10.  On 5 February 2008, the DOHA disallowed the applicant's claim.  The DOHA cites the reasons for disallowing his claim and the regulatory authority to support their decision.

11.  On 19 February 2008, the Director, Travel Mission Areas/Standards and Compliance, DFAS, informed the applicant that this office had received an appeal decision from DOHA and that regrettably a more favorable determination could not be made.

12.  In the processing of this case, an advisory opinion was requested of the Chief, Compensation & Entitlements Division, G1. 

13.  An advisory opinion was provided on 19 August 2008.  The Chief, Compensation & Entitlements Division, G1, stated that based on a careful review of the facts surrounding this situation, they recommended the ABCMR (Army Board for Correction of Military Records) direct the applicant be reimbursed for the move he executed in good faith based on the verbal order to move his family issued by this Squadron Commander.  Although his Squadron Commander did not have the authority to issue an order to authorize the applicant to move his family, the applicant had no reason to doubt his commander's authority.  It was their opinion that if a valid order existed at the time, the applicant would have been reimbursed; however, once a PCS order was issued and executed, they had no authority to revoke such an order.  G1 concluded that they required the assistance of the ABCMR to correct this situation.

14.  The opinion was forwarded to the applicant for his acknowledgement on 21 August 2008 and he concurred with the opinion on 27 August 2008.

15.  The JFTR, paragraph U5203(c), Chapter 5, pertains to travel before an Authorized/Order (AO) is issued.  It states that a member authorized dependent travel and transportation allowances is authorized the allowances in paragraph  U5203-A for a dependent’s travel performed during the period before a PCS AO is issued and after the member is advised that such an AO would be issued.  General information furnished to the member concerning AO issuance before the determination is made to actually issue the AO (such as time of eventual release from active duty, time of service term expiration, retirement eligibility date, and expected rotation date from OCONUS [Outside Continental US] duty) is not advice that an AO is to be issued.  Any voucher must be supported by a statement by the PCS AO or a designated representative, that the member was advised IAW [in accordance with] the requirements of paragraph U5203-C. 

16.  The JFTR, paragraph U5330 pertains to HHG Transportation before an AO is issued.  It states that HHG transportation is authorized if the request for transportation is supported by a:



	a.  Statement from the PCS AO or a designated representative that the member was advised before such an AO was issued that it would be issued;

	b.  Written agreement signed by the member to pay any additional costs incurred for transportation to another point required because the new PDS (Permanent Duty Station) named in the AO is different than that named in a statement; and 

   c.  Written agreement to pay the entire transportation cost (if a PCS AO is not later issued to authorize the transportation) is signed by the member.  The length of time before the PCS AO is issued, during which a member may be advised that an AO is to be issued, may not exceed the relatively short period between the time when a determination is made to order the member to make a PCS and the date on which the AO is actually issued.  General information furnished to the member concerning order issuance before the determination is made to actually issue the AO (such as time of eventual release from active duty, time of service term expiration, eligibility date for retirement, expected rotation date from OCONUS duty) is not advice that the AO is to be issued.

DISCUSSION AND CONCLUSIONS:

1.  While the Board recognizes that the applicant effected his move of HHG and dependents before he was in receipt of orders and did so without contacting a transportation office before he did so, it appears he did so based on the directive he received from his commander in late April, early May 2005.  The commander stated that his directive was not tentative, but clearly an order, and was a settled issue communicated to the applicant in an official manner.  

2.  The applicant conducted his DITY move in June 2005, prior to the issuance of appropriate orders and prior to the beginning of the school year, without prior authorization and counseling regarding the correct procedures.  Upon submission of his voucher to be reimbursed, he was informed that the US Army would not do so because orders were not issued prior to the move.  Orders were published on 1 November 2005.  

3.  The applicant requested reimbursement, with the assistance of counsel, and was denied.  He appealed the decision from DFAS and his claim was disallowed based on regulatory authority.   

4.  The applicant's case was reviewed by the Office of the Deputy Chief of Staff, G1.  In an advisory opinion, the G1 recommended that, after a careful review of the facts and circumstances surrounding the situation, the ABCMR direct that the applicant be reimbursed for the DITY move he executed in good faith based on the verbal order issued by the Squadron Commander to move his family.

5.  The G1 indicated in the advisory opinion that had a valid order existed at the time of the applicant's DITY move, he would have been reimbursed; however, given the circumstances in this case he was not.

6.  The evidence shows that when orders were later published for the applicant's reassignment to Fort Campbell, he was authorized the shipment of his HHG and the movement of his dependents at government expense.  The evidence shows that the applicant relied, to his detriment, on the information and advice he was given by his commander at the time plans for redeployment were being made and he was denied benefits that he otherwise would have been entitled to receive had orders been issued on or before the time of his DITY move. 

7.  The eventual issuance of reassignment orders for the applicant to move to Fort Campbell confirms the applicant's commander's position that his reassignment to Fort Campbell was a settled issue and was communicated to the applicant in an official manner.

8.  Based on the evidence, and recommendations from the G1, it would now be fair and equitable to correct his records so as to reimburse the applicant for his DITY move upon presentation of necessary documents associated with his move.

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:

   a.  showing his PCS Authorization Order contained a statement confirming he had been advised that he was authorized early movement of family members and household goods; and

   b.  paying him monies to which he is entitled upon presentation of documentation required for such a claim under the provisions of the JFTR, paragraph U5203.




      _______ _   _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)                                         AR20080010774



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ABCMR Record of Proceedings (cont)                                         AR20080010774



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