IN THE CASE OF:	  

		BOARD DATE:	        24 MARCH 2009

		DOCKET NUMBER:  AR20080014305 


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 his leave to Guam from 20 December 2007 to 4 January 2008 be categorized as emergency leave, that he be reimbursed for this emergency leave travel, and that his time spent in emergency leave travel be changed from chargeable leave to non-chargeable leave. 

2.  The applicant states that his DA Form 31 (Request and Authority for Leave) should have been changed from ordinary leave to emergency leave because of American Red Cross Case Number 2187767, which was received and verified by his acting first sergeant.  He also states that his acting first sergeant called with the message of his mother's passing, but because of her lack of knowledge and laziness to research Army regulations, he had to pay for him, his wife, and one child to go to Guam to attend his mother's funeral.  He further states that his three other children were not able to go due to flight availability and seating during the holiday season.  

3.  The applicant provides his DA Form 31, dated 19 October 2007; a Space-Available Signup Fact Sheet, dated 22 December 2007; a Constituent Authorization form, dated 19 May 2008; a letter, dated 27 June 2008, from a Member of Congress to the Chief of Army Legislative Liaison; a letter, dated
9 July 2008, from the U.S. Army Installation Management Command, Fort Lee, Virginia, Director, Human Resources to the same Member of Congress; and an undated/unsigned self-authored letter in support of this application.



CONSIDERATION OF EVIDENCE:

1.  The applicant is currently a staff sergeant in the Regular Army.

2.  The applicant's military records show that he enlisted in the Army National Guard (ARNG) on 31 August 1994.  His enlistment contract into the ARNG was not among the documents in his military records, but his enlistment contract into the Regular Army on 18 December 1995 contained his birth certificate, which shows that his mother's first and middle names is Rosita Perez.  Item 3 (Home of Record) of his DD Form 4/1 (Enlistment/Reenlistment Document – Armed Forces of the United States) from his enlistment into the Regular Army shows that he was living at ___ Chalan Macasan, Agana Heights, Guam at the time.  Item 14 (Name, Relationship, and Address of Next of Kin) of his Standard Form 88 (Report of Medical Examination), dated 16 August 1994, also shows that his mother and father were also residing at ___ Chalan Macasan, Agana Heights, Guam.

3.  The applicant's DA Form 31 shows that he departed on ordinary leave from Fort Lee, Virginia on 20 December 2007.  In an undated/unsigned self-authored letter, the applicant stated that he signed out on ordinary leave on 20 December 2007 and proceeded to Tampa Bay, Florida for a 3-day stay at a relative's house. He also stated that he received a telephone call from his sister about 30 minutes from his destination, who informed him that his mother had passed away.  He then stated that he contacted his acting first sergeant, who informed him about a Red Cross message, but when he began making coordination with the Red Cross, Army Emergency Relief, and the airlines, they all informed him that the only way for him to get to Guam at the time was to get a loan for the plane tickets that cost $25,000.00.  He also contends that he explained that the Joint Federal Travel Regulation authorized travel at Government expense for his emergency leave outside the continental United States, and that he knew of this regulation because he had gone on emergency leave before when his brother passed away.  After being denied travel funding and authorization to change his DA Form 31 to emergency leave, the applicant then stated that he left three of his children with a relative in Florida and spent $438.62 for airline tickets for him, his wife, and their 1-year old son from Tampa, Florida to San Francisco, California.  They then caught a ride from a friend to Travis Air Force Base (AFB), California.  Additionally, he stated that they departed on a Military Airlift Command (MAC) flight from Travis AFB to Hickam AFB, Hawaii in a Category I (Emergency Leave) status the next day, but because the Guam MAC terminal was closed for a couple of weeks due to the holidays, they had to stay in a hotel for $129.00 and 

take a commercial flight to Guam the next day, which he paid for using his family's frequent flier miles.  He also stated that he rented a car for $43.00 to travel from the Hickam AFB MAC terminal to the Honolulu International Airport.

4.  In this self-authored letter, the applicant also stated that before departing Hawaii for Guam, he stopped at the Hickam AFB MAC terminal to be placed on the manifest lists for three return seats to the continental United States, but that because his emergency would have been over by the time he returned to the continental United States, he could not be considered as Category I any more, and instead Category III (Active Duty on Ordinary Leave).  Additionally, he stated that after returning to Hawaii from Guam on their commercial round-trip tickets, they rented a car for $39.46 and proceeded to the Hickam AFB MAC terminal, where they stayed overnight in military lodging for $56.00.  After catching a flight from Travis AFB to Kelly AFB, Texas, he stated that they caught a cab for $20.00 to the San Antonio Airport and purchased commercial airline tickets for $579.00 to Tampa Bay's airport.  He also stated that they proceeded home to Virginia after reuniting with their three children that stayed behind in Florida.  

5.  In a letter, dated 9 July 2008, the Director, Human Resources, Fort Lee, responded to a letter from a Member of Congress who wrote concerning reimbursement for the applicant's travel during an emergency situation.  In this letter, the Member of Congress was informed that the applicant's request for reimbursement could not be approved for several reasons.  According to the applicant's chain of command, he was originally on ordinary leave when he received a Red Cross notice, and that while he was in contact with his unit regarding the Red Cross message, he did not officially request emergency leave. It also stated that the applicant made this choice despite the fact that there was a battalion policy letter outlining procedures for emergency leave travel which clearly stated that emergency leave outside the continental United States required an official DA Form 31 with travel funding issued by Fort Lee's Resource Management Office and a copy of the Red Cross message.  It further stated that reimbursing the applicant for frequent flier miles is specifically prohibited, and the other expenses were not being reimbursed because the applicant elected to make the decision to travel without the authority to do so.

6.  During the processing of this case, an advisory opinion was obtained from the Compensation and Entitlements Division, Office of the Deputy Chief of Staff, G-1. That office opined that the applicant demonstrated that if space-available Government transportation would have been "reasonably available," he would have used it to the maximum extent possible.  That office also recommended that 


the Army Board for Correction of Military Records (ABCMR) direct the Defense Finance and Accounting Service to reimburse the applicant for the cost of his and his eligible family members' airline tickets from their authorized location in Tampa, Florida to their emergency leave location in Guam, and return back to Tampa, Florida, but that the reimbursement would only be for their actual air transportation costs, and could not exceed the cost of Government-procured commercial air transportation between authorized locations.  

7.  On 26 September 2008, a copy of this advisory opinion was forwarded to the applicant for his information and possible comment, but he did not provide a response.

8.  Additionally, during the processing of this case, the analyst for this Proceedings, who will simply be referred to as the analyst during the remainder of these proceedings, contacted the applicant and requested a copy of his mother's death certificate.  The applicant faxed a Certificate of Death to the analyst, and it was discovered that his "mother" was not actually his mother, but a woman named Isabel Baza "Becky" C_________ M____.  On 11 February 2009, the analyst e-mailed the applicant a sample statement for loco parentis, and cautioned him of the penalties for submitting a false claim, and the applicant subsequently faxed a signed loco parentis statement back to the analyst.  In this statement, the applicant requested that his leave to Guam be categorized as emergency leave for a family emergency, and that Becky M____ stood in loco parentis for more than 5 years (in place of parents 24 hours a day) before he became 21 years of age.  He also stated that neither of his parents lived at the same residence as Becky M____, and that his father lived on a different island, and that his mother was living in poverty at ___ Santa Cruz Drive, Chalan Pago, Guam.  He further stated that Becky M____ was his Catholic godmother who raised him during high school, and that he lived with her for about 7 years or more.  Additionally, he provided an obituary which essentially shows that he was listed as a child of Becky M____.

9.  Army Regulation 600-8-10 (Leaves and Passes) provides, in pertinent part, that Soldiers may request emergency leave with or without American Red Cross verification.  The unit commander is the approval authority.  Soldiers may be authorized emergency leave for up to 30 days for emergency situations within the immediate family.  For a person in loco parentis, the Soldier must sign a statement verifying loco parentis, which will include, in part, that:

	a.  the person stood in loco parentis for 5 years (in place of parents 24 hours a day) before he or she became 21 years of age; and

	b.  neither of his or her parents lived at the same residence as the person who stood in loco parentis during the qualifying period.

10.  This same regulation also provides, in pertinent part, that Soldiers are normally not charged leave for time spent in emergency leave travel.  Emergency leave begins the day after the Soldier arrives at the aerial port of debarkation, and chargeable leave ends the day prior to the day the Soldier returns to the aerial port of embarkation.

11.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his leave to Guam from 20 December 2007 to 
4 January 2008 should be categorized as emergency leave, that he should be reimbursed for this emergency leave travel, and that his time spent in emergency leave travel should be changed from chargeable leave to non-chargeable leave. 

2.  The underlying issue in this case is whether or not Becky M____ stood in loco parentis for more than 5 years before the applicant became 21 years of age.  She could only have stood in loco parentis if, in part, neither of his parents lived at the same residence as her and the applicant.  In his loco parentis statement, the applicant claimed that neither of his parents lived at the same address as Becky M____, his godmother, who lived at ___ Chalan Macajan, Agana Heights, Guam.  The fact that the applicant spelled Macasan as Macajan in his loco parentis statement was noted, as was the fact that his 16 August 1994 Standard Form 88 also showed that he spelled it as Macahan and Macajan.  Regardless of the spelling, it is clear that all of these documents refer to the same residence.  However, the evidence of record, specifically, item 14 the applicant's Standard Form 88, dated 16 August 1994, clearly shows that the applicant indicated that his parents also resided at ___ Chalan Macasan, Agana Heights, Guam .  This demonstrates that Becky M____ and his parents resided together with the applicant, and this fact questions the applicant's claim that Becky M____ stood in loco parentis for more than 5 years before he turned 21 years of age.



3.  The fact that the applicant did not divulge that the death he is now seeking reimbursement for travel expenses was not his mother, but his apparent 
godmother was also noted.  Nowhere in any of the information he provided to a Member of Congress did he clarify this important fact, but he should have been forthright with this relevant information.  The fact that the applicant provided an obituary which shows that he, his spouse, and children "Children and Families" of Becky M____ was noted.  However, it appears that his name is listed in the obituary only because he was a godson of hers, and not as proof that she was legally his mother.

4.  The fact that the applicant lost his godmother is truly unfortunate, as it is clear that she was instrumental in his upbringing and that she and the applicant shared a close bond.  However, 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.

5.  As the validity of the applicant's claim that Becky M____ stood in loco parentis for more than 5 years before he became 21 cannot be conclusively established, there is insufficient basis for correcting his military records to show that he was on emergency leave from 20 December 2007 to 4 January 2008.  As a result, there is also no basis for reimbursing him for travel expenses in relation to his overseas travel or changing a portion of his chargeable leave to non-chargeable leave.  

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.



      ________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)                                         AR20080014305



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ABCMR Record of Proceedings (cont)                                         AR20080014305



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