IN THE CASE OF:	  

		BOARD DATE:	  14 September 2010

		DOCKET NUMBER:  AR20090021629 


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 reimbursement of $854.00.

2.  The applicant states when she attended her personal property counseling on 4 December 2008, she was informed her NTS [non-temporary storage] entitlement expired on 31 July 2009.  She claims the DD Form 1299 (Application for Shipment and/or Storage of Personal Property), in the remarks section, contained a statement indicating her NTS entitlement expired on 31 July 2009 and she was required to initial this statement acknowledging she understood the statement.  She further indicates that after completing the required paperwork at the transportation office during her personal property counseling, the entitlement expiration date was further verified in personal property tracking e-mails.  She states her shipping destination was Guam.  When she requested the release of her household goods (HHG) out of NTS in Virginia, she was informed by the personal property office at the Naval Base Guam that the entitlement expiration date was incorrect and she was erroneously counseled.  She was further informed the correct expiration date of the entitlement should have been in April 2009.

3.  The applicant further states she waited for an answer on her entitlement until taking her case to small claims court and on 23 September 2009, she was informed by the Guam personal property office that she was required to pay $854.00 for the NTS costs incurred between April and September 2009, and that she would have to seek reimbursement from this Board.  


4.  The applicant provides the following documents:

* DA Form 1299 
* DD Form 1797 (Personal Property Counseling Checklist)
* Orders 165-0003, issued by Headquarters, Fort Myer Military Community, Arlington, VA, dated 13 June 2008
* Bill of Lading for Executive Moving Systems, Inc.
* copy of Bank of Guam Cashier's Check for $854.00, dated 22 September 2009 and forwarding letter, dated 5 October 2009
* Personal Property Shipment Tracking document
* service order NTS shipping document

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows Orders 165-0003, dated 12 June 2008, directed her release from active duty on 2 October 2008.  The additional instructions portion of these orders stated she was authorized movement of dependents and shipment of HHG at government expense up to 6 months subsequent to her expiration of term of service (ETS) date.

2.  In connection with the processing of this case, an advisory opinion was obtained from the Chief, Transportation Policy Division, Office of the Deputy Chief of Staff, G-4.  The advisory official stated that under the provisions of the Joint Federal Travel Regulations (JFTR), paragraph U5360, the applicant was authorized up to 180 days of NTS in the vicinity of her last duty station, Fort Myers, based on her separation orders.  The advisory official states the applicant's storage entitlement began on 2 October 2008 and ended on 1 April 2009.  He further states the Transportation Office clearly was in error in counseling the applicant that her 180 days of NTS began on the pack and pickup date in January 2009, and that the expiration date was 31 July 2009.  He further states the Government Accountability Office (GAO) determined in a 27 January 1997, Defense Office of Hearings and Appeals case that the Government cannot be bound by the erroneous act of its agents, even when committed in the performance of their official duties.  The Comptroller General has held that neither misrepresentation by a transportation officer nor misinformation provided by military officials provides a legal basis for reimbursement.

3.  A copy of the advisory opinion was furnished to the applicant for information and to allow her the opportunity to submit comments or a rebuttal.  On 9 July 2010, the applicant responded to the advisory opinion.  She stated that she disagreed with the opinion and outlined the facts of her case.  Records show she 


separated from the Army in October 2008 and during her separation processing she was informed by transportation officials at the Joint Personal Property Shipping Office (JPPSO) in Virginia that her NTS entitlement expiration date was 31 July 2009.  She claims she requested the shipment of her NTS goods from Virginia to Guam and she was informed by Guam transportation personnel she was required to pay for the shipment of her HHG because based on her orders, the expiration of her shipping entitlement was in April 2009.

4.  The applicant claims she was charged for this shipment through no fault of her own and she was only following the guidance given her by transportation personnel from the JPPSO in Virginia.   She further states that she was charged for the shipping costs and received her final response that she was accountable to pay the shipping and storage costs for August and September 2009, which is the period she was waiting for an answer on her entitlement.  She is requesting reimbursement in the amount of $854.00 she was required to pay for the shipment and storage based on the administrative error made by transportation officials at the JPPSO - Washington, Fort Belvoir, VA, who established her entitlement expiration date as 31 July 2009.

5.  The applicant provides a DD Form 1299 completed at the Joint Property Shipping Office-Washington, Fort Belvoir, dated 4 December 2008.  This document confirms she was informed her NTS shipping entitlement expired on 31 July 2009.

6.  A Bill of Lading provided by the applicant also shows the NTS goods were picked up on 19 January 2009 and that her entitlement expiration date was 
31 July 2009.

7.  A Personal Property Shipment Tracking document provided by the applicant also shows her NTS entitlement expiration date as 31 July 2009.  The applicant also provides a Cashier's Check for $854.00 she used to pay her NTS shipping costs.

8.  The JFTR, Volume 1, provides policy guidance on per diem, travel and transportation allowances, relocation allowances, and certain other allowances of Uniformed Service Active Duty and Reserve Component members.  Paragraph U5360 provides guidance on NTS storage.  It states a member who is authorized HHG transportation is authorized NTS.  The authorization begins on the date the order is issued and terminates at the expiration of the 180th day from the active duty termination date.


DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that she should be reimbursed the cost she incurred for NTS and shipping of her HHG has been carefully considered and found to have merit.  Although the governing regulation does establish a 180 day NTS limit from the date the order is issued, there are equity considerations in this case that support an exception to policy.

2.  The evidence of record clearly shows the responsible JPSO erroneously informed the applicant her NTS expiration date was 31 July 2009, and she complied with this guidance.  Because of this error, she was not successful in having her HHG released from storage until September 2009.  Notwithstanding the advisory opinion, it would be appropriate to correct her record to show she was granted an exception to policy and her NTS expiration date was in fact       30 September 2009; and by reimbursing her the $854.00 she paid for the shipping and storage costs of her NTS HHG.

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 correcting her record to show her NTS expiration date was 30 September 2009, and reimbursing her the $854.00 she already paid for the shipping and storage costs of her NTS HHG.



      ____________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)                                         AR20090021629



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ABCMR Record of Proceedings (cont)                                         AR20090021629



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