IN THE CASE OF:	  

		BOARD DATE:	  12 July 2012

		DOCKET NUMBER:  AR20110020924 


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 amendment of his Permanent Change of Station (PCS) orders to Fort Huachuca, AZ to include Temporary Duty (TDY). 

2.  He states that due to an error on the part of the U.S. Army Human Resources Command (AHRC), he had to pay for 50 days of lodging expenses which has caused a financial burden on him and his family.  

3.  On 1 February 2010, the Fort Huachuca Exceptional Family Member Program (EFMP) office received notification of his nominative assignment to the area.  The action was disapproved and immediately returned to the reassignment branch at AHRC due to the lack of adequate medical support for his family member.  His branch manager acknowledged receipt of the disapproval; however, his PCS orders were never cancelled or rescinded.  

4.  He adds that due to lack of medical support at Fort Huachuca, he was forced to leave his family at his previous overseas duty location and he reported to his new duty station on 10 March 2010.  He immediately notified his new command of his situation and in an effort to assist the applicant, his command contacted AHRC.  His branch manager informed his command that his only option would be to request a compassionate reassignment.

5.  The applicant states the EFMP which is governed by Army Regulation 608-75 (EFMP) which permits AHRC to consider the special educational and medical needs of exceptional family members during the reassignment process.  Soldiers are reassigned to an area where the family member's needs can be accommodated, when mission readiness permits.

6.  He provides:

* Copies of email transmissions
* PCS orders
* His request for compassionate reassignment
* Lodging receipts
* Various memoranda
* An excerpt from Army Regulation 608-75

CONSIDERATION OF EVIDENCE:

1.  After having prior enlisted service in the U.S. Marine Corps, the applicant enlisted in the U.S. Army Reserve (USAR) on 20 August 2004.  Upon completion of training, he was awarded military occupational specialty 96B (Military Intelligence Analyst).  

2.  On 3 January 2007, he enlisted in the Regular Army under the provisions of the station of choice option for assignment to Hawaii.  He is currently serving on active duty in the grade of staff sergeant/E-6 and was recently selected by the March 2012 - Warrant Officer Selection Board. 

3.  A letter from the EFMP coordinator at Fort Huachuca, AZ addressed to the Commander, AHRC indicates that on 4 December 2009, his office received an official nominative assignment for the applicant.  Based on the limited information, he returned an approval on 7 December 2009.  On the same day he contacted the applicant and during the conversation, it was revealed that Fort Huachuca could not medically support his wife, who has Multiple Sclerosis (MS).

4.  On 1 February 2010, the applicant sent an email inquiry to his branch manager requesting reassignment to Fort Belvoir, VA, due to its close proximity to Walter Reed Army Medical Center (WRAMC).  He was informed there were no available positions at Fort Belvoir and that there were openings at Fort Drum, NY; Germany; Fort Irwin, CA; and Korea.

5.  The applicant was immediately informed to request an additional nominative assignment through his branch manager.  On 4 February 2010, the EFMP office received a second nominative inquiry from AHRC and immediately disapproved the request.  

6.  On 4 February 2010, the applicant responded to his branch manager's email, and stated he had just completed a 3-year overseas assignment and it would be very beneficial for his family to move back to the states.  He apologized for the constraints that his family member put on AHRC.  He also indicated that neither Fort Irwin nor Fort Drum had the medical facilities to support the needs of his wife. 

7.  The applicant also indicated to his branch manager that his brigade career counselor and S-1 informed him that a requisition was posted for a position at Fort Belvoir with a report date of March 2010.  He stated this duty location was near WRAMC and his family's needs would be taken care of. 

8.  The email transmission shows the applicant's branch manager informed him Fort Belvoir, VA was not available. 

9.  Headquarters, U.S Army Garrison, Hawaii, Orders CI-032-033, dated 
1 February 2010, show the applicant was reassigned to Fort Huachuca to be a Basic Officer Leadership Course (BOLC), Phase II Instructor.  He had a reporting date of 8 March 2010.  

10.  He provided a copy of a DA Form 3739 (Application for Compassionate Actions), dated 23 March 2010.  Item 27 (Remarks) of this form shows the assignment had forced the applicant to pay the $1300.00 difference in Basic Allowance for Housing (BAH) between Honolulu, HI (dependents location) and Sierra Vista, AZ.  In addition, he had to pay for his living quarters while assigned to Fort Huachuca.  

11.  The memorandum for record which accompanied his request stated, in part, that he had been married his entire military career.  The reassignment to Fort Huachuca was both an emotional and financial hardship on his family.  The only way that he and his wife could afford the medical treatment she required was through a major Army Medical Center.  He requested a compassionate reassignment within 50 miles of WRAMC.  His chain of command supported his request.  His brigade commander indicated that a compassionate reassignment was "a must" in order to take care of the Soldier and his family member. 

12.  On 7 April 2010, his request for a policy waiver to receive BAH and Cost of Living Allowance (COLA) based on his previous duty location was approved.  The waiver was granted based on the enrollment of his wife in the EFMP and the necessity to continue medical treatment for her condition. 

13.  On 6 May 2010, the U.S. Army Intelligence Center of Excellence, issued Orders 126-00040 which show the applicant had an approved compassionate reassignment to Fort Gordon, GA with a reporting date of 1 July 2010.   The additional instructions show early arrival of not more than 60 days was authorized. 

14.  He provided copies of lodging receipts for the period from 10 March through 12 May 2010.  These receipts show he resided at the Rodeway Inn and Suites, Sierra Vista, AZ during this period.  The total lodging expense was $5832.61 of which he had already paid.  

15.  In an advisory opinion, dated 4 February 2012, the Chief, Compensation and Entitlements Division, Office of the Deputy Chief of Staff, G-1, stated, in part:

   a.  The applicant's request for amendment of his permanent change of station (PCS) orders and request for reimbursement of $5832.18 in lodging expenses at Fort Huachuca, AZ was reviewed.  Based on their review of the documentation provided, they recommend that the ABCMR deny his request.

   b.  He was on a valid PCS order from Schofield Barracks, HI to Fort Huachuca, AZ.  There is no authority to change his PCS order to TDY order simply to provide him with travel per diem to pay lodging expenses while he was pursuing a different assignment or awaiting a determination on his request for a compassionate reassignment. 
   
   c.  Upon his arrival at his new duty station, the applicant was entitled to payment of 10 days of temporary lodging expense (TLE), a dislocation allowance (DLA), and Basic Allowance for Housing (BAH) for Fort Huachuca.  He requested a waiver to receive BAH at the Schofield Barracks, HI rate, which was approved.  

16.  On 23 February 2012, the applicant provided the following response to the advisory opinion:  

   a.  Army Regulation 608-75 establishes policies, responsibilities, and procedures for the Army EFMP.  This regulation states an objective of the EFMP program is the consideration of the medical needs of eligible family members during the assignment process.  This is a request for record correction and reimbursement based on an assignment consideration error on the part of AHRC.
   
   b.  The document directing his PCS from Schofield Barracks to Fort Huachuca was in breach of policy, regulations and procedures and should not be valid because assignment considerations outlined in Army Regulation 608-75 were not followed.  
   
   c.  Section 1-9 (Objectives of the Exceptional Family Member Program), Section 2-1 (Military Personnel), and Section 3-2 (Military Personnel Agencies) of Army Regulation 608-75 affirm that when a Soldier's family member is enrolled in the EFMP and the Soldier is nominated for assignment, the assignment managers will consider the documented special education and medical needs of the family member, as well as coordinating with the gaining command to determine if services are available.  When special education needs or medical services are not available, assignment managers will consider an alternative assignment location based on existing assignment priorities.

   d.  His orders to Fort Huachuca resulted in 50 days of personal lodging expense which he paid out of pocket.  His receipt of approved reassignment orders from AHRC validates that the necessary medical services required for the health and well-being of his wife were not available. 
   
   e.  His wife is still enrolled in the EFMP and continues to receive medical care for a chronic debilitating disease.  He was not afforded consideration under the EFMP during the initial processing of PCS orders.  This in turn caused a great financial hardship on him and his family by having to maintain a household where his wife's needs could be met and by fulfilling the needs of the Army as outlined in his PCS instructions.   

17.  Army Regulation 614-200 (Enlisted Assignments and Utilization Management) prescribes the reporting, selection, assignment, and utilization of Active Army enlisted Soldiers.  It provides general assignment policies and responsibilities for managing the enlisted force.  This regulation also prescribes, in part, procedures to be used by commanders to request stabilization for personnel within their organizations, certain approved positions within a unit, and units.

   a.  Paragraph 1-6 states the EFMP allows AHRC to consider the special education and medical needs of exceptional family members during the assignment process and reassigns Soldiers, when readiness does not require a specific reassignment, to an area where the family member's needs can be accommodated.
   
   b.  Paragraph 3-2i(2) states personnel decisions, including those related to the assignments of Soldiers, shall not be affected, favorably or adversely, by the employment, educational or volunteer service activities of a Soldier's spouse, or solely by reason of a Soldier's marital status, subject to the necessity to ameliorate the personal hardship of a Soldier or spouse upon the request of the Soldier concerned, such as when a family member requires specialized medical treatment or educational provisions.
   c.  Section III of chapter 5 governs the requests for compassionate reassignments.  It states Soldiers may be reassigned, deleted or deferred from assignment instructions (AI), or attached as a result of an approved compassionate request.  Soldiers requesting reassignment may be assigned to an area other than their requested geographical preference based on availability of medical services and the needs of the Army.  Compassionate consideration will be given for problems that cannot be resolved through the use of leave, correspondence, power of attorney, or the help of family members or other parties.
	
18.  Army Regulation 600-8-11 (Reassignment) publishes the reassignment processing policies.  

   a.  Paragraph 1-5 states the goal of the personnel assignment system is to place the right Soldier in the right job at the right time.  The personnel reassignment process ensures that the eligibility of Soldiers who receive AI is verified, travel assistance is provided, that Soldiers are prepared for movement, and their departure is verified. Reassignment processing begins upon receipt of AI, and ends with the issuance of PCS orders in accordance with Army Regulation 600-8-105 (Military Orders).
   
   b.  Paragraph 2-11 establishes the rules for managing assignment of overseas returnees.  It states, in part, that Enlisted Distribution and Assignment System (EDAS) managers will begin looking at Soldiers seven months prior to the Date Eligible for Return from Overseas (DEROS) to be certain they are properly categorized.  The assignment manager, AHRC will issue written AI at least 120 days prior to Soldier's DEROS.  If Outside the Continental United States (OCONUS) based Soldiers have not received AI by 85 days prior to their DEROS, overseas commanders will immediately call their liaison office or AHRC career management branch for assistance. 
   
   c.  Paragraph 2-15 states a compassionate deletion or deferment is defined as a request based on compassionate reasons or extreme family problems.  Requests based on compassionate reasons or extreme family problems will be submitted to arrive at AHRC within 45 days of the EDAS cycle date.  

19.  Army Regulation 600-8-105 states the general authority to issue travel orders is vested in the Chief of Staff, U.S. Army; and The Adjutant General and may be further delegated as appropriate.  

20.  Paragraph 2-9 (Additional Instructions) of the same regulation includes information that is needed by the Soldier named in the order.  Additional information will also be stated in the order because of an entitlement or obligation accruing from the action being taken or because it is essential to the purpose of the order.   

21.  Department of Defense Directive (DODD) 1342.17 implements family policy-making criteria in accordance with Executive Order 12606 (The Family), dated 
2 September 1987.  This directive ensures that the rights and autonomy of DOD families are considered in the formulation and implementation of DOD policies to the extent permitted by law.

   a.  Section 4.2 states that DOD personnel, which includes member of the U.S. Army and their families, be provided a quality of life that reflects the high standards and pride of the Nation they defend, and that this policy be achieved by working in partnership with DOD personnel and their families, recognizing their role in the readiness of the Total Force.
   
   b.  Section 4.3 states DoD personnel, both married and single, bear primary responsibility for the welfare of their families.  Nevertheless, the total commitment demanded by military service requires that they and their families be provided a comprehensive family support system.  In part, the extent and exact nature of this system shall be based on installation-specific requirements and shall address needs for pre-mobilization indoctrination, deployment support, relocation assistance, and special needs support.
   
   c.  Section E2.1.30 (Special Needs Support Program) uses a coordinated, multi-disciplinary approach in providing medical, educational, and community support; housing; and personnel services to families with special needs, to include Service members having a family member with a disability and due to their particular circumstances, may require some form of special assistance.  The program ensures that active duty Military Service members who require specialized types of support services are able to pursue a military career at levels of performance and readiness consistent with the Military Services' missions.

22.  Title 37, U. S. Code, section 404 states that under regulations prescribed by the Secretaries concerned, members of the uniformed services are entitled to travel and transportation allowances upon a change of permanent station, or otherwise, or when away from their designated post of duty.

23.  The Joint Federal Travel Regulation (JFTR) pertains to per diem, travel and transportation allowances, relocation allowances, and certain other allowances of Uniformed Service Active Duty and Reserve Component members.  Paragraph U4100 states a per diem allowance is designed to offset the cost of lodging, meals, and incidental expenses incurred by a member while performing travel, and/or TDY away from the member's Permanent Duty Station (PDS).
24.  Department of Defense (DOD) Pay Regulation, Volume 7A (Active Duty & Reserve Pay), Chapter 27 prescribes the conditions for entitlement to Family Separation Allowance (FSA).  For entitlement to FSA – Temporary (FSA-T) applies when a Soldier is on TDY continuously for more than 30 days away from their permanent duty station and their dependents are not residing at or near the TDY station.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant was reassigned from Hawaii to Fort Huachuca, AZ to fill a nominative position as a BOLC, Phase II Instructor.  Prior to departing Hawaii, he contacted his assignment manager to request his assignment be changed to a stateside location where the needs of his exceptional family member could be met.   

2.  Army Regulation 600-8-11 states the goal of the personnel assignment system is to place the right Soldier in the right job at the right time.  Army Regulation 614-200 states special considerations will be given during the reassignment process to ameliorate the personal hardship of a Soldier when a family member requires specialized medical treatment or educational provisions.

3.  It does not appear that the goal of the personnel assignment system was met in this case.  The applicant had just completed a 3-year overseas assignment in which he was authorized to take his exceptional family member.  Prior to the completion of his tour he was nominated for an assignment to become a BOLC, Phase II Instructor.  Only the most highly qualified Soldiers are selected to serve in this type of position. 

4.  His wife was diagnosed with a chronic debilitating disease which requires special medical treatment.  This treatment was not available at Fort Huachuca and the AHRC EFMP coordinator, as well as his branch manager, were aware of this prior to issuing the applicant's reassignment instructions.  

5.  The evidence shows the applicant complied with his assignment instructions and reported to Fort Huachuca as directed; however, he left his family in Hawaii due to his wife's enrollment in the EFMP and the medical care that was available.  This clearly created an injustice and financial hardship on the applicant, as he was forced to pay housing costs for his family in Hawaii and his living expenses in AZ.  

6.  The evidence also shows he was granted an exception to policy to receive BAH at the Hawaii rate to help off-set the cost of providing shelter for his family as he sought the compassionate reassignment.  The receipts he provided show that between 10 March and 11 May 2010, he paid $5832.61 for his living quarters using a personal credit card.  The advisory opinion shows he was authorized 10 days TLE for which he received payment.  This money should have been used to offset any living expenses he incurred for himself the first 
10 days of his duty at Fort Huachuca, AZ.  

7.  Army Regulation 608-75 requires assignment managers to consider the documented special education and medical needs of family members in the assignment of Soldiers.  The same consideration is found in Army Regulation 614-200.  The evidence of an error or injustice is not absolutely clear in this case; however, the conclusion that the assignment process did not fulfill the Army's policy can be supported. 

8.  The advisory opinion did not support making a change to his orders and therefore did not provide guidance on the financial impact of making any change.  The potential exists that any change could put the Soldier in a worse financial position than what currently exists.  Providing a specified amount is problematic without a thorough analysis and adjudication of entitlements.  

9.  Notwithstanding the advisory opinion, it would be equitable to amend Headquarters, U.S Army Garrison, Hawaii, Orders CI-032-033, dated 
1 February 2010, to show the applicant was in a TDY status during the period 
10 March through 12 May 2010.  

10.  As a result of this correction, the Defense Finance and Accounting Service (DFAS) should do a complete audit of his Military Master Pay Account (MMPA) and pay him all due entitlements as a result of being in a TDY status and make any necessary adjustments for PCS entitlements already received.  Since this change will require recoupment of any entitlements related to his PCS move, it would also be appropriate to waive any debt if one is incurred by this change.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X____  __X____  ___X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

     a.  amending Orders CI-032-033, dated 1 February 2010 to show the applicant was in a TDY status during the period 10 March through 12 May 2010; and

     b.  having DFAS do a complete audit of his MMPA and pay him all due TDY entitlements minus any previously paid PCS entitlements for this period; and

     c.  showing any incurred debt if one is incurred by this correction was waived. 

2.  The Board further determined that the evidence presented was insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to the specific amount of $5832.61.  


      _______ _   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)                                         AR20110020924





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ABCMR Record of Proceedings (cont)                                         AR20110020924



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