IN THE CASE OF:	  

		BOARD DATE:	  16 December 2008

		DOCKET NUMBER:  AR20080011681 


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, that he be authorized to receive family separation allowance (FSA) for the period 10 February 2003 through 26 August 2004.   

2.  The applicant states, in effect, he was misinformed of his entitlements while in medical hold.  He claims he should receive FSA based on his daughter being in college during the time he was on active duty.   

3.  The applicant provides the following documents in support of his application:  Self-Authored Statement; Application for Arrears in Pay (DD Form 827); Retirement Orders; Retired Reserve Orders; Active Duty Orders with Amendments; Active Duty Separation Orders; Birth Certificate; College Transcripts and Enrollment Verification Letter (Daughter); Request for Recovery of FSA, dated 4 January 2008; Defense Finance and Accounting Service (DFAS) Denial of FSA, dated 9 June 2008; 4 November 1981 Leave and Earnings Statement (LES); and Army National Guard (ARNG) Separation Document (NGB Form 22E).

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.  Evidence provided by the applicant shows that his daughter, for which he is claiming FSA, began attending Alabama A&M University in the Fall 2000 semester and that she was still attending the same university when the applicant was ordered to active duty in February 2003.  A Verification of Enrollment by the Registrar, dated 9 September 2005 further her enrollment status as Full-Time for the Fall 2005 semester. 

3.  On 7 February 2003, while serving as a member of the Alabama ARNG, the applicant was ordered to active duty, for a period not to exceed 365 days, in support of Operation Enduring Freedom.  State Military Department, Personnel Service Branch, Montgomery, Alabama, Orders 038-179 provided the authority for this active duty service and directed the applicant to report to Fort Stewart, Georgia, not later than 10 February 2003.  

4.  On 6 February 2004, the applicant was honorably released from active duty (REFRAD) and returned to his ARNG unit by reason of completion of required service.  The separation document (DD Form 214) he was issued shows he completed 11 months and 27 days of active duty service during the period covered by the separation document (10 February 2003 - 6 February 2004).  The DD Form 214 shows he completed no overseas service during the period.  

5.  On 12 February 2004, United States Army Human Resources Command, 
St. Louis, Missouri (HRC-St. Louis) published Orders A-02-401351, which ordered the applicant to active duty on 7 February 2004, for a period of 120 days, for the purpose of an active duty medical extension (ADME).  These orders were subsequently amended by HRC-St. Louis Orders A-02-401351A01, dated
20 May 2004, which extended the active duty period to 180 days; and by 
HRC-St. Louis Orders A-02-401351A02, dated 14 July 2004, which extended the period of active duty to 210 days.  




6.  On 26 April 2004, the applicant was issued a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter), that indicated he had completed the required years of service and would be eligible for retired pay at age 60 upon application.  

7.  On 26 August 2004, the applicant was honorably REFRAD by reason of completion of required service.  The DD Form 214 he was issued at the time shows he completed 6 months and 20 days of active duty service during the period covered by the separation document (7 February 2004 - 26 August 2004). There is no overseas service documented on the DD Form 214.  

8.  On 1 October 2004, the applicant was honorably discharged from the ARNG and transferred to the Retired Reserve.

9.  On 3 April 2006, he was placed on the Retired List, in the grade of sergeant (SGT).  

10.  During the processing of this case, an advisory opinion was obtained from the Department of the Army (DA) Chief, Compensation & Entitlements Division, Office of the Deputy Chief of Staff, G-1.  This official states that after a careful review of the facts surrounding the applicant’s situation, there is no apparent error or injustice in the applicant’s record.  He states that FSA provides compensation for added expenses incurred because of an enforced family separation.  However, based on the documents provided by the applicant, his sole dependent was not living in his household at the time he was called to active duty; therefore, he was not entitled to FSA.  

11.  The applicant provided a rebuttal to the G-1 advisory opinion, in which he stated that his dependent daughter chose to attend college 100 miles away from home; however, her move was not permanent and he had to pay the first two years of her tuition and dorm living fees.  He further states his daughter was dependent on him for her support during this period.  He claims that while training at Fort Stewart, he was injured and placed in medical hold, which disallowed him from being deployed or REFRAD for several months.  He claims that while recovering from rotator cuff surgery, his unit declared him and others was not eligible for FSA, which led to DFAS collecting $1,200.00 of his pay.  He states this forced him to receive assistance from Army Emergency Relief to pay his bills.  He states his family separation was mandatory and that he was the sole support for his children when he left home to enter active duty.  



12.  The applicant provides college transcripts and an enrollment verification letter that confirms his daughter began attending Alabama A&M University in the Fall of 2000, and that she was still enrolled as a full time student in the Fall of 2005.  These documents also confirm her expected graduation date was May 2006.  

13.  The Department of Defense Financial Management Regulation (DODFMR), Volume 7, provides military pay policy.  Chapter 27 contains guidance on payment of FSA.  It states, in pertinent part, that FSA provides compensation for added expenses incurred because of an enforced family separation.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he should have been authorized to receive FSA because his daughter was attending Alabama A&M University was carefully considered.  However, by regulation, FSA is authorized to provide compensation for added expenses incurred because of an enforced family separation.  

2.  In this case, the evidence of record confirms the applicant’s daughter began attending Alabama A&M University in the Fall 2000 semester, and she was still attending that school when the applicant was ordered to active duty in February 2003.  As a result, it appears clear that the applicant did not incur additional expenses as a result of an enforced family separation based on his being ordered to active duty because his daughter continued to attend a school she had been enrolled in for more than 2 years at the time he was ordered to active duty.  Therefore, as indicated in the DA G-1 advisory opinion, there appears to be no error or injustice related to this matter.  

3.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily 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
      
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)                                         AR20080011681



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ABCMR Record of Proceedings (cont)                                         AR20080011681



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