IN THE CASE OF:	  

		BOARD DATE:	  28 August 2012

		DOCKET NUMBER:  AR20110015369 


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:

   a.  Reimbursement of garnished wages and entitlements totaling $35,762.94; and 

   b.  Amendment of Orders 82-5015, dated 23 March 2006, to show:

* Camp Red Cloud is a dependent restricted permanent duty station (PDS)
* Command Sponsored Dependents "#S-0160" are authorized to remain in place at Seoul, Korea
* Name/Relationship/Date of Birth of his dependents

2.  He also requests that his DD Forms 2367 (Individual Overseas Housing Allowance (OHA) Report) for the period 2006 through 2010 be amended to show in:

* Block 2 – "Yes" and specify location as Seoul, Korea
* Block 3 – "Officers Quarters, Camp Red Cloud, Uijeongbu, Korea"

3.  The applicant states:

	a.  in 2006 when the error occurred he was assigned to the 35th Air Defense Artillery (ADA) Brigade at Osan Airbase, Korea.

	b.  He received assignment instructions for Camp Red Cloud.

	c.  Although previous applications for command sponsorship failed, he reapplied based on his future assignment in the ADA lieutenant colonel slot, which was a billet in the 2nd Infantry Division.

	d.  He was told he was approved for command sponsorship and he was given a sponsorship number.

	e.  Detachment 516th Personnel Services Battalion (PSB) scrapped his orders and issued him Orders 82-5015 on 23 March 2006.

	f.  There were some errors, which were exacerbated when the 2nd Infantry Division did not correctly account for him in the command sponsorship database.

	g.  He did not discover the error on his orders until 2008 when he was told by the Chief, Financial Policy in Korea, that he was claiming he was command sponsored; however, he was not listed in the database.

	h.  He was told all of his entitlements were being taken away as a result of claiming command sponsorship.

	i.  He went to his battalion commander who advised him to go to the Inspector General (IG).  The IG prevented further malicious action and advised him how to get his command sponsorship fixed.

	j.  His commander wrote a memorandum to the Commander, Eighth U.S. Army, stating that his command sponsorship had been approved since 23 March 2006.  His commander also requested that he be placed in another command sponsored billet because someone else had command sponsorship for the job he was doing.

	k.  When he tried to get Orders 82-5015 amended, he learned that the 516th PSB no longer existed.

	l.  The Military Personnel Division (MPD) suggested that Orders 154-5075 be amended to show command sponsorship.  The finance detachment in Korea concurred and accepted his commander's memorandum as documentation of the mistake.  As a result he began being reimbursed based on entitlements related to his command sponsorship.


	m.  After departing Korea and arriving at Fort Riley, Kansas, his leave and earnings statements (LES) began to show an enormous amount of debt.  When he enquired about the debt he was told the Defense Finance and Accounting Services (DFAS) closed his case because no one at finance in Korea would answer their questions.

	n.  He does not believe he has received the entire amount of money he is entitled to.

	o.  After filing an IG complaint at Fort Riley, on 18 September 2008, the Chief, Military Pay, sent an e-mail directing that he receive the pay he was requesting in his complaint.

	p.  The Finance Office at Fort Riley accepted his amended orders and the memorandum from his commander as sufficient evidence to support that he was command sponsored.

	q.  Due to the amount of debt that was created against him and the number of questions that were being asked it took Fort Riley until February 2010 to pay him. Additionally, the amount he was paid was so small he did not realize he was being paid.

	r.  The Defense Military Pay Office (DMPO) at Fort Leavenworth uncovered the payment he received from the Fort Riley Finance Office, but the total amount he received between March 2006 and February 2010 still seemed "too short."

	s.  He asked for an audit of his pay based on command sponsorship, but unlike the other finance offices, the DMPO would not accept his commander's memorandum as evidence of his command sponsorship.

	t.  He was told he also had errors on his DD Forms 2367 and that the MPD, Korea should be able to amend his order and DD Forms 2367; however, his attempts to have these corrections made were unsuccessful.  

	u.  The finance office suggested that he research some websites and do an audit of his own pay.

	v.  The total discrepancy between the entitlements he actually received and the entitlements he should have received is $35,762.94.

	w.  While he may never be able to determine the reason behind any or all of the debt, receiving the difference between what he actually was paid and the amount he is entitled to receive is a satisfactory resolution.
4.  The applicant provides:

* five DD Forms 149 (Application for Correction of Military Records)
* two DFAS Overseas Housing Allowance/Cost of Living Allowance (OHA/COLA) Entitlement Memoranda, dated 26 January 2011
* Orders 154-5075, dated 2 June 2008
* Orders 82-5015, dated 23 March 2006
* two Memoranda for the Army Board for Correction of Military Records, dated 18 July 2011
* Memorandum for Commander, Eighth U.S. Army, dated 21 April 2008
* Orders 013-603, dated 13 January 2009
* five Sworn Statements from Soldiers with whom he formerly served
* Copies of his LESs and a self-prepared audit of his pay
* Email between 2nd Infantry Division officials and the applicant

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.  On 16 May 1996, the applicant accepted an appointment as a second lieutenant in the U.S. Army Reserve.  

3.  Orders 138-28-A-767, dated 17 May 1996, ordered the applicant to active duty and assigned him to the 1st Adjutant General Replacement Detachment, Korea, effective 7 April 1997.

4.  He was promoted to first lieutenant effective 19 April 1998 and promoted to captain effective 1 May 2000.  

5.  On 23 March 2006, Detachment B, 516th PSB published Orders 82-5015 ordering the applicant to proceed to his permanent change of station (PCS), 2nd Infantry Division (Mechanized), Camp Red Cloud, Korea.  Item (o) on his orders state "travel from Korea to next duty station is authorized for the following DEPN(s)."  The names of his spouse and one child are listed in this item and it shows their dates of birth and El Paso, TX as their City and State.  There is no command sponsorship number shown in the orders.

6.  He was promoted to major, effective 1 July 2006.

7.  On 8 April 2008, the 2nd Infantry Division, Deputy G1 sent an e-mail to an official at Eighth U.S. Army G1 stating the applicant had requested command sponsorship in 2006 and he had been denied while assigned to the 35th ADA.  When he was placed on assignment instructions to Camp Red Cloud he again requested command sponsorship and he was approved. 

8.  Further, the Deputy G1 states that in February 2006 the applicant was placed in command sponsorship position number "S0161," Commander 5th Battalion, -5th ADA.  When he was given command sponsorship the MPD cut orders as accompanied with concurrent travel rather than command sponsored.  The command sponsorship position number was not put on the orders because they were told he could not fill the position (the applicant was an O4 and it was an O5 slot).  The Deputy G1 stated the applicant was put in a temporary position to correct the issue and no one could find the slot on the Personnel Information Management System, Korea (PIMS-K) or the approval paperwork. 

9.  Additionally, the Deputy G1 states he clearly remembers slotting the applicant because it was his first experience with command sponsorship and everybody else who was working command sponsorship at the time is now gone, so there is no help.  The Deputy G1 stated he thought he might have put him into command sponsorship number "S2879" when he did the increase because that was the Modified Table of Organization and Equipment position to which he was then assigned.  He stated that the applicant was told, after serving 2 years in the division, he would have to foot the bill for moving his family to Fort Leavenworth in June when he had a PCS.  The Deputy G1 asked if any assistance could be given to the applicant.

10.  E-mail between 2nd Infantry Division and Eighth U.S. Army personnel show that, on 17 April 2008, a request was made to look through the applicant's file because he was being told he was not command sponsored.  Transportation was telling him he had to pay to move his "stuff" back to the states.  Finance was telling him that he had to pay back all of the housing allowance he received for Yongsan where his family lived.  The applicant was told that he must ask for a memorandum through his chain of command and that the memorandum must address the following:

* his movement from Area IV to Area I
* was a command sponsorship offered to him by the 2nd Infantry Division
* did the command really approve a command sponsorship request
* did the command authorize him to move his dependants from Area IV to Area I
* was he offered command sponsorship and due to no fault of his own, the system failed to completely process the request

11.  The e-mail states that perhaps, the request was initiated but the applicant and the chain of command realized he had been in Korea over 6 years.  The     e-mail states the applicant spoke to finance personnel and informed them he was not command sponsored nor did he want it, which was contradictory information. In the email the question was asked "why was there someone else in the command sponsored position that belongs to the applicant?"

12.  On 21 April 2008, the Commander, Special Troops Battalion, 2nd Infantry Division prepared a memorandum for the Commander, Eighth U.S. Army G1 requesting command sponsorship for the applicant in command sponsorship number "S-2879" with an effective date of 23 March 2006.  The commander stated that the applicant was assigned to the division in command sponsorship number "S-0161" and that, due to no fault of his own, the record of his acceptance and assignment as a command sponsored billet had been lost.

13.  On 2 June 2008, Orders 154-5075 were published stating the applicant was to proceed on PCS on 26 March 2009.  He was assigned to 1st Infantry Brigade, 1st Bench Personnel (WAHDK3) APO AE KU (Kuwait).  Item (g) on the orders state "you and your command sponsored dependents are authorized travel to your home of record (Philadelphia, PA 18951) a place no further distant from your home of record in conjunction with two consecutive overseas assignments in accordance with paragraph U7200, Joint Federal Travel Regulation (JFTR).  Consecutive Overseas Tour travel will be taken between tours unless there is a valid operational reason for deferral."  Item (i) states "travel from Korea to next duty station is authorized" for his spouse and two children under command sponsorship number "S-0161."

14.  The applicant submits five sworn statements from individuals who were assigned with him attesting to the fact that they believe the applicant was in a command-sponsored position while he was in Korea.  These individuals request that this Board favorably consider the applicant's request to amend his orders and award him entitlements related to his command sponsorship.

15.  The applicant submits a memorandum from DFAS, dated 26 January 2011, informing him that the Fort Leavenworth DMPO is unable to make any changes to his OHA for the period 23 March 2006 through 22 June 2008.  He was told that the information he submitted did not have the substantiating documents that would validate any changes.  He was told:

* Orders 82-5015 dated 23 March 2006 left off his youngest child and reflects his duty assignment at Camp Red Cloud
* Family has been in Seoul since 2003 until approximately March 2010 (not at Camp Red Cloud as per orders)
* No corresponding DD Forms 2367 to authorize dependents OHA for any location in Korea (DD Form 2367, effective 25 May 2006, has block 2b marked and DD Form 2367 dated 1 July 2007 does not have block
2 marked at all)
* He was not entitled to any OHA while at Camp Red Cloud as he was in government billets

16.  The DFAS memorandum states that producing a certified copy of his child's birth certificate would provide proof of the number of dependents being increased to three and amendment of orders to reflect Camp Red Cloud as a dependent restricted area would take care of the duty assignment issue.  He was told the challenge was not having the DD Forms 2367 to obtain authorization for payment of OHA for his dependents for the Seoul location.  He was also told the JFTR, chapter 10, Part A, U10020A states "every member authorized to live in private sector leased/owned housing is authorized OHA, provided an individual OHA Report is completed by the member and approved by the senior officer…."

17.  On 27 March 2012, an advisory opinion was obtained from the Director, Human Resources Support who states that she has no records going back that far and the MPD has no records going back that far.  The applicant's family initially came to Korea noncommand sponsored.  He got his command sponsor number while assigned to the 35th ADA and it was a Seoul command sponsorship number which means they can live in Seoul and receive entitlements for Seoul.  All command sponsorship numbers are unique to units.  When reassigned, unit command sponsorship numbers do not transfer.  The gaining unit must issue a new command sponsorship number.  The applicant received an In-Place Consecutive Overseas Tour (IPCOT) to Camp Red Cloud, but he did not receive a command sponsorship number on his orders.  Because the orders he received did not have a command sponsorship number he would need to get a Seoul command sponsorship number so his family could remain command sponsored otherwise his IPCOT orders would also need to be used to ship his family to his home of record or designated place.  When his command sponsorship was denied he lost command sponsorship entitlements for Seoul.  His orders sending him to APO AE KU (Kuwait) used his first assignment command sponsorship number which was authorized while assigned to the 35th ADA from the original order, not the order assigning him to the 2nd Infantry Division.

18.  A copy of the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  In his rebuttal, dated 27 April 2012, he states:

   a.  His question concerning whether or not it was appropriate to amend his follow-on orders to Kuwait rather than his original assignment orders to the 2nd Infantry Division was not answered in the advisory opinion. 
   
   b.  It is important to note that regulations have changed since he was in Korea.  He states that current regulations may differ from regulations applicable at the time, and it is only fair that the Board consider regulations in effect at the time of the mistake, rather than regulations that have come into effect more recently.  

   c.  U.S. Forces Korea (USFK) Regulation 614-1, dated 12 November 2003, paragraph 9.d. states that temporary command sponsorship applies to sponsorship of an individual and family member(s), not a position.  Although some command sponsorship program numbers are unique to units, temporary command sponsorship numbers are approved through units, but are associated with individuals, even if they change jobs.

   d.  2nd Infantry Division said they slotted him in a temporary command sponsorship program number in February 2006.  Once the 2nd Infantry Division approved his initial application for command sponsorship, no one ever subsequently denied it.

	e.  Was his command sponsorship denied because he was transferred between dependent restricted tours?  According to JFTR U9205C1, his dependents' entitlement would still continue.  A member's command sponsored entitlements continue until the date of estimated return from overseas, to include any extensions.

	f.  His command sponsorship program number was for the orders assigning him to the 2nd Infantry Division, not the 35th ADA Brigade.

	g.  The MPD corrected the documentation problem through amending his follow-on orders.

	h.  The command sponsorship number recorded on his orders to Kuwait should have been recorded on his orders to 2nd Infantry Division.
	i.  According to Army Regulation 600-8-105, dated 28 October 1994, only the organization that published the original order may amend, rescind, or revoke the order.  Had the 516th PSB still existed, they would have amended his orders based on the documentation his commander provided.

	j.  Had he or any of his chain of command known the ABCMR may have been able to resolve his issues he would have applied to the Board many years ago.

	k.  If the Board believes those individuals who provided him with sworn statements attesting to the 2nd Infantry Division's command sponsorship of him and his family, should a command sponsorship number have been on those orders?

	l.  If the command sponsorship number is not on the 2nd Infantry Division orders, is it the fault of the Soldier?

	m.  He does not dispute that his command sponsorship number was not properly documented on orders 82-5015.  However, everyone was trying to do the right thing to fix that problem.

	n.  He should not be held responsible because no one could figure out the right way to fix his orders until now.

19.  With his rebuttal, he submitted two pages from USFK Regulation 614-1; one page from the JFTR, chapter 9 (Station Allowances); one page of a document entitled "How to determine when command sponsorship begins and ends"; page of Department of Defense Instruction 1315.18; Orders 82-5015; and e-mail written to him from Army officials stating they agree, if all is correct, that his command sponsorship program number should have been amended on the orders taking him to the 2nd Infantry Division from Osan and not the PCS orders moving him out of Korea.  He was told the question that could not be answered is what the financial breakdowns are for the money that finance took back.  He was told that it could be that finance took back something other than command sponsorship related benefits and unfortunately, the matter needed to be taken up with finance.

20.  USFK Regulation 614-1 (Military Command Sponsorship Program) applies to all commands, units, organizations, and activities that have command sponsored positions in Korea.  The USFK command sponsorship program provides a systematic method of allocating command sponsorship to enhance mission readiness throughout Korea and promote continuity, predictability, and stability.  It also supports tour length changes and incentives in the JFTR allowing more families the opportunity to PCS to Korea.  However, based on current infrastructure limitations, all USFK areas are at near command sponsorship capacity.  As a result, command sponsorship program allocations must be managed very closely and be synchronized with mission requirements, until full tour normalization as been achieved.  The regulation in effect at that time states:

	a.  Command sponsorship approval is valid for the service member's tour length.

	b.  Reassignments in Korea must receive the approval of the gaining Garrison/Installation commander to change command sponsorship from one Garrison/Installation to another.

	c.  When a service member has been granted command sponsorship and the service member is subsequently selected for an assignment within Korea (to a dependent-restricted tour) the service member has the option of requesting that his family members remain at the currently approved installation or request an early return of family members.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted and his supporting evidence was considered.

2.  There are no DD Forms 2367, IG Investigation Reports, amended orders, garnishment of pay documents, notifications of recoupment of pay, or any other finance documents contained in his official record verifying that a debt either existed in the past or currently exists.

3.  The only financial document the applicant submits is a memorandum from DFAS, dated 26 January 2011, informing him that the Fort Leavenworth Defense Military Pay Office is unable to make any changes to his OHA for the period 23 March 2006 through 22 June 2008.

4.  The available evidence suggests that the applicant received PCS orders on 23 March 2006 reassigning him from 35th ADA Brigade, Korea to the 2nd Infantry Division, Camp Red Cloud, Korea.  It appears that at some point prior to PCS to Camp Red Cloud, he had been approved for command sponsorship and received command sponsorship program number "S-0161," which is a Seoul command sponsorship number.  

5.  His PCS orders to Camp Red Cloud do not contain a command sponsorship program number.  There is no evidence showing that he was ever approved for command sponsorship for Camp Red Cloud prior to PCS.  In accordance with the applicable regulation, reassignments in Korea must receive the approval of the gaining Garrison/Installation commander to change command sponsorship from one Garrison/Installation to another.

6.  The 8 April 2008 e-mail indicates that in 2008 when the applicant was notified that his family had not been command sponsored since his PCS to Camp Red Cloud he was placed in a temporary position in an attempt to correct his situation; however, there are no records to confirm that statement.  

7.  His PCS orders, dated 23 March 2006, show his dependents were authorized travel from Korea to his next duty station.  This was not valid because Camp Red Cloud is a dependent restricted duty station.

8.  At the time that Orders 82-5015 were published the applicant was a captain in the U.S. Army and he knew that the information contained therein was incorrect.  He was promoted to major a couple of months later.  Although the unit that initially published the orders eventually was deactivated, the Board is not convinced that he did not have time for those orders to be corrected.

9.  It appears the applicant accepted a dependent-restricted assignment at Camp Red Cloud.  USFK Regulation 614-1 stated he had the option of requesting that his family members remain at the currently-approved installation; however,  there is no hard evidence to show that he requested that option and that it was approved.  Regrettably, there is insufficient evidence to grant the relief requested.

10.  In view of the foregoing, the applicant's request should be denied.

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)                                         AR20110015369



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ABCMR Record of Proceedings (cont)                                         AR20110015369



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