IN THE CASE OF:	  

		BOARD DATE:	  12 November 2009

		DOCKET NUMBER:  AR20090004702 


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 correction of his record to show his request for an exception to policy for storage of household goods (HHG) beyond 180 days was approved and that he be reimbursed the $2,200.00 he paid in storage fees.

2.  The applicant states that he submitted a request for an exception to policy for storage of HHG beyond 180 days through the Transportation Division located at Fort Leavenworth, Kansas, to the Department of the Army (DA) Office of the Deputy Chief of Staff (DCS), G-4.  The applicant contends that although a DA DCS, G-4, representative informed the Fort Leavenworth Transportation Division that his request was denied, no one informed him of the decision so he assumed it had been approved in April 2008.  The applicant continues that a year later, he received a bill from the storage company informing him that he owed them $2,200.00 for storage costs because the government refused to pay.  The applicant concludes that the Fort Leavenworth Transportation Division should have informed him that his request was denied in April 2008 and their failure to do so resulted in his receipt of a bill.

3.  The applicant provides copies of electronic mail (email) correspondence which was exchanged between himself and representatives of the Fort Leavenworth Transportation Division, Installation Management Command (IMCOM), and DA DCS, G-4.


CONSIDERATION OF EVIDENCE:

1.  The applicant is a Regular Army chief warrant officer four currently assigned to the Warrant Officer Career College located at Fort Rucker, Alabama.

2.  An email message, dated 1 February 2008, shows the applicant submitted a request for an exception to policy for a 90-day extension beyond the 180-day time limitation storage in transit (SIT) period for his HHG to the Chief of the Fort Leavenworth Transportation Division.  The applicant stated, in effect, that he was currently assigned to the Warrior Transition Battalion (WTB) located at Tripler Army Medical Center in Hawaii.  He continued that he was undergoing a medical board due to injuries sustained in combat and was preparing to medically retire after 22 years of service when he shipped his HHG to Fort Leavenworth.  The applicant also stated that in anticipation of retirement he had begun the process of having a house built, but due to the extreme winter weather that year (cold and early snowfall), the expected completion date of the house had been delayed until April 2008.

3.  Email messages, dated 4-6 February 2008, show the Chief of the Fort Leavenworth Transportation Division contacted the Chief of the Transportation Branch of IMCOM-West Region, noted the applicant's request was in contravention with the provisions of Joint Federal Travel Regulations (JFTR), and requested guidance.  The Chief of the Transportation Branch suggested forwarding the applicant's request through Headquarters, IMCOM, to the Department of the Army for a decision.

4.  An email message, dated 13 February 2008, shows the Chief of the Transportation Branch of IMCOM-West Region forwarded the applicant's request to Headquarters, IMCOM, for consideration.  He noted that the applicant had shipped his HHG to Leavenworth, Kansas, in July 2007 and they went into SIT on 16 August 2007 for an initial period of 90 days.  He also noted that on 7 November 2007, the applicant's spouse requested and obtained a 90-day extension of SIT with an expiration date of 10 February 2008.  The Chief of the Transportation Branch of IMCOM-West Region concluded that the applicant was requesting an additional 5 weeks of SIT at government expense due to delays on the home he was having built.  He recommended denial of the applicant's request based upon the provisions of JFTR, Volume I, paragraph U5375-B3b, which states additional SIT beyond the 180-day time limitation may not be authorized or approved when a member elects to have a home built while other housing is available.

5.  An email message, dated 25 March 2008, shows a representative of Headquarters, IMCOM, forwarded the applicant's request to DCS, G-4, for consideration along with a recommendation for approval.

6.  Email messages, dated 26 March 2008, show the applicant was still assigned to WTB in Hawaii pending a decision on whether the Army would allow him to remain on active duty or have him medically retired.  His home was still under construction in Leavenworth, Kansas, and the estimated completion date was mid-May 2008.  The construction delays were attributed to weather, not special customization of the house to accommodate a wounded warrior.

7.  An email message, dated 9 April 2008, shows a representative of DCS, G-4, informed representatives of Headquarters, IMCOM, that the applicant's request was denied in accordance with the provisions of JFTR, Volume I, paragraph U5375-B3b, because the basis for extensions was phrased for the convenience of having a house built and the request for extension was continually changing based on weather.  The DCS, G-4, representative asked that the applicant be advised that he could appeal this decision to the Army Board for Correction of Military Records (ABCMR) and that he should include a copy of this response in his appeal.

8.  An email message, dated 9 April 2008, shows a representative of Headquarters, IMCOM, asked the Chief of the Transportation Branch of IMCOM-West Region to inform the applicant that his request had been denied and to provide him detailed guidance on how to submit an appeal to the ABCMR.

9.  An email message, dated 10 April 2008, shows the Chief of the Transportation Branch of IMCOM-West Region informed the Chief of the Fort Leavenworth Transportation Division that the applicant's request had been denied and provided detailed guidance on how the applicant could submit an appeal to the ABCMR, if he so desired.  In closing, the Chief of the Transportation Branch of the IMCOM-West Region asked that the applicant be informed of this decision.

10.  An email message, dated 10 April 2008, shows the Chief of the Fort Leavenworth Transportation Division provided two members of her staff a copy of the disapproval of the applicant's request and asked that the applicant be informed of this decision.

11.  An email message, dated 11 February 2009, shows the applicant contacted the Chief of the Fort Leavenworth Transportation Division to inform her, in effect, that he had just received a bill from a civilian storage company for storage fees in the amount of $2,200.00.  The applicant cited the fact that he had submitted a written request for an exception to policy through her office the year prior.  The applicant also stated that he had been contacted by a gentleman from DCS, G-4, who asked him to provide proof of his assignment to WTB in Hawaii and a brief explanation of his situation.  The applicant further stated that the gentleman informed him that his request was approved and that the U.S. Government did not want to see its wounded warriors' HHG put out on the street.  The applicant continued that the gentleman at DCS, G-4, stated that he would contact the Fort Leavenworth Transportation Division to let them know the request was approved.  The applicant stated that soon after the approval of his extension and prior to the end of the extended timeline, he had his HHG delivered to his home.  On 12 February 2009, the applicant sent an email to a DCS, G-4, Personal Property Policy representative and shared these same concerns.  He also stated that had he known his request had been disapproved, he would have moved his HHG to his father-in-law's storage unit located in Bonner Springs, Kansas, rather than incur the expense of storage.

12.  An email message, dated 12 February 2009, shows DCS, G-4, Personal Property Policy tasked Headquarters, IMCOM, to provide him copies of the paper trail on this issue along with confirmation or denial of any telephonic approvals that had been provided to the applicant.  He also asked how Soldiers were generally notified of approval or disapproval for exceptions to policy by the Transportation Office.  An email message, dated 17 February 2009, shows the Chief of the Transportation Branch of the IMCOM-West Region tasked the Fort Leavenworth Transportation Division to provide a response to this inquiry.

13.  An email message, dated 10 April 2008, shows a response from the Chief of the Fort Leavenworth Transportation Division wherein she states that Soldiers are usually notified of approval or disapproval of exceptions to policy via email.  She also states that this procedure was not followed in the applicant's case because he was informed telephonically and the date of the conversation was annotated in his file.  A copy of an email message, dated 19 April 2008, contains the following handwritten annotation, "notified/21 APR 08."

14.  Chapter 5, section 10, paragraph U5375, of JFTR, Volume I, provides that "SIT is part of HHG transportation.  SIT is cumulative and may accrue at any combination of origin, transit, and destination.  SIT may be authorized or approved in the nearest available storage facility.  The actual SIT period governs, regardless of commercial billing practices."

	a.  "A member is authorized 90 days' SIT for any authorized HHG transportation.  If HHG are not removed from SIT before the first 90-day period expiration, storage charges accruing thereafter are the member's responsibility unless additional SIT is authorized/approved."

	b.  "When, because of conditions beyond the member's control, the HHG in SIT at government expense cannot be withdrawn during the first 90 days, a service-designated official may authorize/approve SIT for not more than an additional 90 days.  A statement of all the facts from the member must accompany an authorization and approval request for such additional SIT.  Among the reasons that additional SIT may be authorized/approved are:

		(1)  serious illness of the member;

		(2)  serious illness or death of a dependent;

		(3)  impending assignment to government or government-controlled quarters or privatized housing;

		(4)  directed temporary duty (TDY) after arrival at permanent duty station;

		(5)  non-availability of suitable civilian housing;

		(6)  awaiting completion of residence under construction; and

		(7)  Acts of God."

	c.  "Additional SIT after the first 180 days may be authorized and approved when a member is on TDY or deployed for more than 90 days or for an indefinite period while HHG are in SIT.  When, because of conditions beyond the member's control, the HHG in SIT at government expense cannot be withdrawn during the time limit…a service designated official may authorize and approve additional SIT.  This authority to extend the SIT time limit applies only to a member on TDY or deployed for a period in excess of 90 days or for an indefinite period."

	d.  "Additional SIT under circumstances beyond the member's control.  The Secretarial Process may authorize and approve SIT beyond the 180-day time limitation, when, for reasons deemed appropriate by the Service concerned which are beyond the member's control, the member is unable to take possession of the HHG within the 180-day time limitation.  For example, additional SIT may be authorized/approved when assignment to government quarters or privatized-housing is scheduled for a specific date after the 180-day limit…Additional SIT may not be authorized/approved when a member elects to have a home built while other housing is available.  Additional SIT must not be authorized/approved in situations in which a member elects to occupy private sector housing too small to accommodate all of the member's HHG."


DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his record should be corrected to show his request for an exception to policy for storage of HHG beyond 180 days was approved and that he be reimbursed the $2,200.00 he paid in storage fees was carefully considered.

2.  The applicant presents a persuasive argument and evidence.  He provided a paper trail of numerous email messages which confirm he submitted a written request for an exception to policy on 1 February 2008, prior to the expiration date of his SIT entitlement, to the Chief of the Fort Leavenworth Transportation Division and prior to the expiration date of his SIT entitlement.

3.  The evidence shows the decision to deny the applicant's request was not rendered by DCS, G-4, until 9 April 2008, over 2 months after the submission date.

4.  The evidence shows that although leaders at every echelon involved in this process provided written guidance to inform the applicant that his request had been denied, the Fort Leavenworth Transportation Division failed to do so in writing.  Therefore, the Fort Leavenworth Transportation Division is unable to positively confirm that the applicant was notified that his request was denied.

5.  Had the applicant been informed of the denial of his request and in light of the applicant's claim that his father-in-law had a storage unit located in the same state, it is not unreasonable to assume that he would have moved his HHG there rather than incur the expense for storage.

6.  Although the JFTR provides that additional SIT may not be authorized or approved beyond the 180-day time limitation when a member elects to have a home built while other housing is available, it does provides that SIT may be authorized when circumstances exist that are beyond the member's control.  Evidence shows the applicant was assigned to the WTB located in Hawaii pending a decision on the future of his Army career during the processing of his request and would not have been able to personally accept delivery of his HHG in Leavenworth, Kansas.

7.  Any reasonable doubt should be resolved in the applicant's favor.  His records should be corrected to show his request for an exception to policy for storage of HHG beyond 180 days was approved thereby making him eligible for reimbursement of the $2,200.00 he paid in storage fees.


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 to show his request for an exception to policy for storage of HHG beyond 180 days was approved thereby making him eligible for reimbursement of the $2,200.00 he paid in storage fees.



      ____________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)                                         AR20090004702



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ABCMR Record of Proceedings (cont)                                         AR20090004702



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