IN THE CASE OF:	  

		BOARD DATE:	    22 March 2012

		DOCKET NUMBER:  AR20110009311 


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 her military records to show she was authorized extension of non-temporary storage (NTS) of her household goods (HHG) at the military discount of $43.18 per month for more than 1 year.

2.  The applicant states:

	a.  her storage cost totals $3,459.00.

	b.  she calculates the NTS fee based on the quote from a Fort McPherson, GA transportation agent which was $43.18 per month (from December 2009 to March 2011 is 15 months (15 x $43.18 = $647.70)).  She was not given a quote for the conversion fee and she should not be forced to pay the additional amount due to an incorrect quote from the transportation agent.

	c.  she was informed that her NTS would convert to member expense on
30 September 2009 but she would get the military discount at $43.18 per month.  She agreed to this amount and continued to allow her HHG to remain in NTS.  She trusted that the amount quoted was correct.  She knew she could not find a storage facility with a better rate.  If she had been quoted a much higher rate, she would have removed her HHG from storage.

	d.  a representative where her HHG was located informed her that several other service members were not properly informed of their NTS eligibilities by the 


Fort McPherson transportation office.  The representative explained that several service members had expired storage at their location and the Fort McPherson office had not informed the service members of the expiration of their NTS.

	e.  she was never informed she would be charged for the NTS after the first year.  She was under the impression that her fee for storage would start in September 2009.  This was the message sent to her in the email from the transportation agent at Fort McPherson.  She was expecting to move her HHG this year (2011) using her NTS entitlements.  She should not be penalized because her transportation agent did not properly inform her of her entitlements.

3.  The applicant provides: 

* civilian contractor employee invitational travel orders
* emails with the transportation agent at Fort McPherson
* requests for NTS extension

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 5 August 1983.  She was promoted to master sergeant (MSG)/E-8 on 1 March 2001.  She retired by reason of sufficient service for retirement on 31 December 2003.

2.  She submitted a request for an exception to policy for cost on her NTS entitlement.  She states:

	a.  on 2 February 2011 she received an NTS expiration notice indicating her HHG entitlements expired in December 2009 and she owed $3759.20 in storage fees.

	b.  she moved to South Korea in October 2003 to serve as a civilian contractor.  Her contract is for 10 years.  Each year she remained in Korea she was approved for an extension of her NTS.

	c.  in April 2009, she was informed her HHG would be converted to the member expense at the military rate of $43.18 monthly.  She agreed to this rate and requested the fee be deducted from her military pay.  She was informed she would be billed when she had her HHG scheduled to be moved from storage.

	d.  per her calculation of her storage fee from December 2009 to February 2011, she owed $604.52 (14 months x $43.18 = $604.52).  The total $3,759.00 is 


well more than the expected fee.  She was never informed she would not be able to have her HHG relocated to her home of record.

	e.  if the transportation agent quoted her the wrong rate, she asks that she not be penalized for that error.  She only agreed to keep her HHG in the current storage facility at the rate of $43.18 per month.

	f.  she will be returning to the United States in May/June 2011.  She understands there are regulations that govern HHG entitlements but she expected her transportation coordinator to inform her of those regulations.  She was not provided the full details in order to make an informed decision regarding her HHG storage.  She agreed to pay $43.18 monthly for her storage fee.

3.  On 30 March 2011, her request was disapproved by the Chief, Transportation Division, Headquarters, 3d Infantry Division (Mechanized), Fort Stewart, GA.  Her excess storage cost was adjusted to the amount of $3,459.48.  The denial memorandum states:

* upon review of the applicant's file documents, that office found no evidence to support her statement she was not advised of the NTS rate
* she would be responsible for all outstanding storage charges
* her storage costs totals $3,459.48 through the month of March 2011
* she could appeal to the Army Board for Correction of Military Records

4.  She provided email correspondence, dated in April 2009, from Fort McPherson which states her storage fee is $43.18 monthly.

5.  In the processing of this case, on 23 January 2012, a staff advisory opinion was obtained from the Chief, Transportation Policy Division, Office of the Deputy Chief of Staff, G-4, Washington, D.C.  The advisory official states:

	a.  the applicant was authorized up to 1 year of NTS at Government expense in the vicinity of her last duty station, Fort McPherson, based on her retirement orders in conjunction with the Joint Federal Travel Regulations (JFTR), paragraph U5365 ( Retirement, Placement on the Temporary Disability Retired List (TDRL), Discharge With Severance or Separation Pay, or Involuntary Release From Active Duty With Readjustment or Separation Pay), F (Other Deserving Cases).  Any approved travel and transportation to her home of selection extension does not extend the Government's obligation for storage costs for longer than 1 year beyond the active duty termination date of 1 January 2004.  Her NTS storage entitlement began on 1 January 2004 and ended on


1 January 2005.  The JFTR contains basic statutory regulations concerning a uniformed service member's travel and transportation.  These regulations are interpreted to have the force and effect of law.  The JFTR is issued primarily under the authority of Title 37, U.S. Code, section 411 and chapter 7.  There are circumstances under which payment of certain allowances is prohibited in the JFTR.

	b.  on 17 October 2005, the Chief, Personal Property Branch, Fort McPherson Transportation Office informed the applicant via email that "you are responsible for all cost [sic] involved with storage beyond 1 year past your retirement date."  If the applicant misunderstood the exact amount of her debt since 1 January 2005, the Government Accountability Office 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.  The applicant is authorized a delivery out of storage to home of selection at Government expense upon payment of all storage charges owed to either the Government or the vendor.  This office will then request current funding for that delivery from the Army Budget office, since the funding on the retirement orders is beyond 5 years and expired.

6.  On 23 January 2012, a copy of the advisory opinion was forwarded to the applicant for information and to allow her the opportunity to submit comment or a rebuttal.  She did not respond.

7.  However, on 13 February 2012, the applicant appealed the advisory opinion to the Deputy, Chief of Staff, G-4.  An additional advisory opinion was obtained from the Office of the Deputy Chief of Staff, G-1, Compensation and Entitlements, Washington, D.C.  The advisory official states:

	a.  that office cannot support the applicant's request to waive her debt for continued storage of her property.

	b.  nothing provided by the applicant indicates nor suggests that continued storage would rest with anyone but the applicant.  Even the most cursory review of the JFTR, paragraph U5365-C (Storage), clearly states that the government's liability for NTS terminates 1 year from the date of retirement and that any extension of the storage is at the member's expense.  The fact the applicant has elected to seek civilian employment overseas does not constitute compelling circumstances and does not constitute a situation wherein continued payment of storage costs through use of MPA [Manpower Authorization]/Government funds is determined to be appropriate.
	c.  the applicant should be advised that, unlike service regulations, the JFTR is not merely a guide.  Rather, it is issued under the authority of Title 37, U.S. Code and has been interpreted to have the force and effect of law.

	d.  that office concurs with the G-4 response to the ABCMR.  The applicant was a master sergeant, who cannot insist that she did not understand or know what her retirement NTS or HOS [home of selection] entitlements were.   

8.  The additional advisory opinion from G-1 was forwarded to the applicant.

9.  On 15 February 2012, the applicant responded to the additional advisory opinion.  In summary, she stated:

* she objected to the tone of the opinion and was insulted by the comments
* it is apparent that her rebuttals were not reviewed thoroughly
* after 20 plus year of service to her country she would expect to be treated with more dignity and respect

10.  She further stated the following comments did not address her issue and the last comment is derogatory:

	a.  "Based on this review it is our position that we cannot support Ms. [applicant's last name] request to waive her debt for continued storage of her property."  At no time has she denied the responsibility for her storage expenses.  Her primary and only concern was the calculation of the expenses owed.  The official from the Fort McPherson transportation office provided her with a $43.18 cost per month and she accepted the responsibility to pay that amount.  She disputes any other calculation for her storage.

	b.  "Nothing provided by Ms. [applicant's last name] indicates nor suggests that continued storage would rest with anyone but Ms. [applicant's last name]."  At no time has she asked for a further extension.  In fact, her storage was transported to her home of record in June 2011 at her expense.  Since the board approved her transportation to her home of record, she would like to be reimbursed for that expense she has already incurred.  She was directed by the Fort Stewart transportation office that her storage was in jeopardy of being auctioned, so she took appropriate actions, paid the overdue storage fee, and arranged for her storage to be relocated.  

	c.  "The fact that Ms. [applicant's last name] has elected to seek civilian employment overseas does not constitute compelling circumstances and does 


NOT constitute a situation wherein continued payment of storage costs through use of MPA/Government funds is determined to be appropriate." and "Soldier was a MSG, who cannot insist that she did not understand or know what her retirement NTS or HOS entitlements were."  The fact that she is a retired MSG and chose to work overseas is irrelevant.  This comment implies that she is denying knowing about her NTS/HOS entitlements.  Her appeal has always stated she was given misleading and incorrect information regarding her NTS/HOS entitlements.  She admits she has not read the entire JFTR.  She expected to be given reliable and accurate information from the Fort McPherson transportation office because it was their job to know the regulations and provide her with that information.  She should have been provided the same courtesy as she would have given a private, not to assume that she knew anything about her retirement NTS or HOS entitlements.  She resents the personal attacks on her character as an MSG and a retiree.

	d.  in the future, she would expect a more professional response from members dealing with this case.  She respectfully requests that someone take the time to review her appeal letters more closely.  She has been dealing with this issue for over 1 year.  She would like the matter to be resolved so she can settle her debt.

11.  Volume 1 (Uniformed Service Personnel) of the Joint Federal Travel Regulation (JFTR) contains basic statutory regulations concerning official travel and transportation of members of the Uniformed Services.  Paragraph U5365-C(1) (Storage) states a member or a dependent authorized HHG transportation is authorized NTS.  The authority begins on the date the order is issued and terminates 1 year from the active duty termination date.

12.  The JFTR, paragraph U5365-F, states an extension of the 1-year time limit prescribed in paragraph U5365-A (HOS Authorized) may be authorized/approved through the Secretarial Process when an unexpected event beyond the member's control occurs which prevents the member from moving to the home of selection within the specified time limit.  A time limit extension also may be authorized/approved through the Secretarial Process, if in the Service’s best interest, or substantially to the member’s benefit and not more costly or adverse to the Service.  This includes cases where the 1-year time limit has already been extended under paragraphs U5365-D (Member Undergoing Hospitalization or Medical Treatment) and U5365-E (Member Undergoing Education or Training).  These extensions may be authorized/approved only for the specific period of time the member anticipates is needed to complete the move.  If, at the expiration of this extension period, additional time is required, the member may request a 


further extension through the Secretarial Process, citing the reasons for the extension.  An additional authorized period for a specific period of time may then be authorized/approved through the Secretarial Process.  These extensions do not extend the government’s obligation for storage costs for longer than a 1-year period from the active duty termination date.

DISCUSSION AND CONCLUSIONS:

1.  The applicant retired on 31 December 2003 and her NTS storage entitlement began on 1 January 2004 and ended on 1 January 2005.

2.  The applicant contends she was informed her NTS storage entitlement would convert to member expense on 30 September 2009.  However, the advisory opinion points out that on 17 October 2005, the Fort McPherson Transportation Office informed the applicant via email that she was responsible for all costs involved with storage beyond 1 year past her retirement date.  There is no evidence to show the applicant questioned the costs of storage between 
1 January 2005, where her storage entitlement ended, and April 2009 when she received the email wherein she was given erroneous information.

3.  Per the G-4 advisory opinion, if the applicant misunderstood the exact amount of her debt since 1 January 2005, the Government Accountability Office 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 proved by military officials provides a legal basis for reimbursement.

4.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20110009311



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ABCMR Record of Proceedings (cont)                                         AR20110009311



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