IN THE CASE OF:	  

		BOARD DATE:	  26 April 2012

		DOCKET NUMBER:  AR20110018302 


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 restoration of her retirement transportation entitlements.

2.  The applicant states:

* She was involved in an industrial accident and she sustained a traumatic brain injury (TBI) and has been under medical care since July 2006
* She was unaware of the requirement to apply for a yearly extension
* She is also involved in an on-going personal injury lawsuit and a worker's compensation lawsuit in California
* She was not considering relocation since she was a widow and was not married at the time of her accident
* After she remarried in July 2009 she was unable to relocate to Florida due to her on-going legal and medical problems
* After this is resolved she will be able to relocate
* She was not afforded the opportunity to use her retirement permanent change of station move due to her injury and treatment   

3.  In a self-authored letter, dated 29 August 2011, she states:

	a.  she requests an extension of her final retirement move and shipment rights due to extenuating circumstances since her retirement after 24 years of service.  She previously submitted a request on 24 November 2010 which was denied by Army G-4 on 9 December 2010.

	b.  she sustained a TBI on 11 July 2006 as a result of an industrial accident.  She was struck on the head by the lid of a computer enclosure that weighed
40 pounds.  Over the past 5 years she has been under constant medical care for post-concussion syndrome and neck vertebrae damage.

	c.  she has been under treatment in the California Worker's Compensation System and she has an on-going lawsuit for treatment mismanagement and initial misdiagnosis.  She is also a co-plaintiff in a personal injury lawsuit with her post-retirement employer against the manufacturer of the computer enclosure.  These factors prohibited her from relocating or seeking medical care in another location.  Under legal advice, she remained in California to continue employment and treatment to preclude compromising long-term treatment and long-term care for her injuries until these lawsuits are resolved in the State of California.  While the incident was not related to her active duty service in the Army, the long-term changes and personal disability directly affect which health insurance will be responsible for her life care and treatment.  She has TRICARE but does not believe these expenses should be covered by TRICARE.

	d.  she was not aware of the requirement to file for an extension prior to the end of the first year following her retirement.  Due to her head injury and need for immediate medical treatment, she failed to do so following her accident on 
11 July 2006 and before the anniversary of her retirement.

	e.  she has continued to live in California, geographically separated from her husband, to continue her medical treatment and await favorable consideration for her personal injury lawsuit and worker's compensation lawsuit against the State of California.  Both are expected to proceed to trial in the coming months, 6 years after her accident and injury. 

4.  The applicant provides:

* Letter from her physician, dated 10 August 2011
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Retirement orders
* Request for extension, dated 24 November 2010

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.  The applicant enlisted in the California Army National Guard (CAARNG) on
25 June 1981.  She was ordered to active duty in an Active Guard Reserve (AGR) status on 25 September 1985.  She was promoted to master sergeant on 28 July 2003.  She retired by reason of sufficient service for retirement on 31 August 2005.

3.  The applicant's retirement orders indicate she was authorized up to 1 year to complete selection of home and complete travel in connection with this action.

4.  In November 2010, the applicant submitted a request for extension of her expired transportation entitlement and she provided a favorable recommendation from the Personal Property Office at Travis Air Force Base.  Her request was disapproved by Headquarters, Department of the Army G-4 on 9 December 2010.  

5.  She provided a letter, dated 10 August 2011, from a doctor who attests:

* she received a TBI as a result of an industrial accident on 11 July 2006
* she has been under continuous care since her accident

6.  In the processing of this case 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:

* by law, a retired Soldier must request an extension of travel and transportation entitlements yearly
* her effective date of retirement is 31 August 2005
* she did not request an extension of her travel and transportation entitlements yearly beginning in August 2006
* the transportation of household goods is not authorized 

7.  On 9 November 2011, 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.  On 5 December 2011, she responded and stated:

* she requests the board reject the recommendation in the advisory opinion due to her extreme mitigating circumstances
* she recognizes her responsibility to request an extension and is not challenging the requirement
* what continues to be overlooked is the timing of her industrial accident
* on 11 July 2006 she sustained a TBI in an industrial accident while working as a Department of Defense contractor
* at the time of her accident she was a widow and had no support other than friends and coworkers to assist her
* the accident occurred less than 2 months prior to the requirement to request the travel and transportation extension
* she was not briefed on the requirement to file for the extension during her retirement outprocessing
* she is now married and would like to move from California where she has lived since 1986 to be with her husband in Florida
* the entitlement and benefit represents a significant financial expense for her if this entitlement is not favorably considered
* on 16 November 2011 she was certified by the State of California as permanently disabled because of the accident and will require lifetime medical treatment
* she sustained a debilitating injury she will live with for the rest of her life 

8.  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 U5130 states travel to a selected home must be completed within 1 year of active duty termination.  A written time limit extension may be authorized/approved using the Secretarial Process.  An explanation of the circumstances justifying the extension must include the specific additional time period; a description of the circumstances that prevent use within the prescribed time; and acknowledgement that the extension is not being granted merely to accommodate personal preferences or convenience.

9.  The JFTR, paragraph U5365, states that household goods must be turned over for transportation within 1 year following termination of active duty.  An extension of the 1-year time limit 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 best interest of the Service, or substantially to the member’s benefit and not more costly or adverse to the Service.  

10.  The JFTR states an extension must not be authorized/approved if it extends travel and transportation allowances for more than 6 years from the date of separation or release from active duty or retirement unless a member’s certified on-going medical condition prevents relocation of the member for longer than
6 years from the separation/retirement date.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant retired on 31 August 2005 and her retirement orders indicate she was authorized up to 1 year to complete selection of home and complete travel in connection with this action.

2.  By law, a retired Soldier must request an extension of travel and transportation entitlements yearly.

3.  The applicant contends she was unaware of the requirement to file for an extension to her transportation entitlements and she is requesting these entitlements be restored due to the extenuating circumstances of her injury, treatment, and on-going legal issues. 

4.  It is acknowledged she sustained a TBI almost 1 year after she retired.  However, she contends she was not considering relocation at the time of her accident on 11 July 2006.  She now wants to move from California where she has lived since 1986 to be with her husband in Florida.

5.  Although there are exceptions to the 1-year shipping requirement, the applicant has failed to show through the evidence she submitted and the evidence of record that an exception is warranted in her case at this time.

6.  In view of the foregoing, there is an insufficient evidentiary 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)                                         AR20110018302



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ABCMR Record of Proceedings (cont)                                         AR20110018302



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