IN THE CASE OF:	  

		BOARD DATE:  9 October 2012

		DOCKET NUMBER:  AR20110022107 


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:

* reversal of the Defense Office of Hearings and Appeals (DOHA) decision in DOHA Claim Number 2010-CL-0XXX02
* reimbursement for his permanent change of station (PCS) travel by privately-owned vehicle (POV) between Tegucigalpa, Honduras, and Arlington, VA (Pentagon)

2.  In the alternative, the applicant requests amendment of Orders 035-707, U.S. Army Installation Management Command, Headquarters, U.S. Army Garrison, Fort Sam Houston, TX, dated 4 February 2009, to authorize travel by POV.

3.  The applicant states he was on an accompanied tour of duty assigned to Joint Task Force-Bravo (JTF-B), Soto Cano Air Base, Honduras.

	a.  He received assignment instructions reassigning him to the Pentagon and inquired about the possibility of traveling by POV from Tegucigalpa to Arlington, VA.  He was told he could do so and that his request for orders (RFO) did not require specific authorization for POV travel.

	b.  On 9 June 2009, the applicant's dependents returned to the United States by air.  On 12 June 2009, he departed Tegucigalpa by POV, arriving in Waunakee, WI, on 24 June 2009, and in Arlington, VA, on 29 June 2009.

	c.  He submitted a claim for reimbursement of his POV travel and it was disallowed by the Defense Finance and Accounting Service (DFAS).  He appealed the DFAS decision to DOHA and his appeal was denied.

4.  The applicant contends the DFAS and DOHA decisions are erroneous, unfair, and unjust for the following reasons:

* the decisions incorrectly classify Honduras to United States travel as "transoceanic"
* the decisions assume POV travel is more costly than POV shipment and air travel
* the DOHA decision dismisses the fact that a U.S. Air Force (USAF) member performed the same travel (Honduras to United States) at the same time and received reimbursement

5.  The applicant provides:

* DOHA Appeal Decision with supporting documents
* 3 January 2010 Determination for Reimbursement to DFAS with supporting documents
* Internet extracts on commercial transportation – Honduras to United States
* RFO Packet Worksheet – POV shipment
* email with USAF member concerning travel by POV
* email information on flat rate shipping of a POV from Norfolk, VA, to Honduras
* USAF member's travel orders (AF Form 899) (front of form only)
* USAF member's settlement voucher

CONSIDERATION OF EVIDENCE:

1.  The applicant is a Regular Army lieutenant colonel.  From on or about June 2007 to on or about June 2009, he was assigned as the joint staff liaison officer to the U.S. Embassy Tegucigalpa for the forward deployed JTF-B at Soto Cano Air Base.  This was an accompanied tour of duty.

2.  On 4 February 2009, U.S. Army Installation Management Command, Headquarters, U.S. Army Garrison, Fort Sam Houston, TX, Orders 035-707 directed the applicant’s permanent change of station (PCS) to U.S. Army Element Defense Intelligence Agency, Pentagon, Washington, DC.  The orders established an availability date of 6 June 2009 and a reporting date of 20 July 2009.

3.  The additional instructions in the PCS orders authorized shipment of POV.  The orders failed to identify that a mode of transportation was specified or directed and there was no authorization for POV travel.  The additional instructions did specify that official travel arrangements purchased through a commercial travel office not under contract to the government was not reimbursable.

4.  On 4 December 2009, the Director, Travel Functional Area, DFAS, forwarded a memorandum to the DFAS office, Rome, NY, informing them that after reviewing the documentation related to the applicant’s claim for reimbursement for mileage and per diem for travel from Honduras to Arlington, VA, it was determined reimbursement for POV travel was not authorized.

5.  On 14 April 2010 in response to an appeal request from the applicant, DOHA informed the applicant that his claim for reimbursement for mileage, per diem, and related expenses of POV travel incident to his PCS from Honduras to Washington, DC, in excess of the constructive cost of travel by air was disallowed for the reasons outlined in the memorandum.  DOHA also referred the applicant to decisions of the Comptroller General that disallowed claims based on lesser cost, on the basis that other service members in the same situation were reimbursed, and/or based on misinformation by military officials regarding reimbursement.

6.  An advisory opinion was obtained from the Chief, Compensation and Entitlements Division, Office of the Deputy Chief of Staff, G-1.  This official indicates their review of the documents provided by the applicant and the Joint Federal Travel Regulation (JFTR), G-1 found no justification to reverse the findings or decision of DOHA.  Therefore, G-1 recommended disapproval of the applicant’s request.

7.  On 13 March 2012, the applicant provided a rebuttal to the Office of the Deputy Chief of Staff, G-1, advisory opinion.  He asserts that the DFAS and DOHA rulings, as well as the G-1 advisory opinion regarding his appeal, should be rejected in whole and the Board should make a final determination in his favor.  He indicates he has provided sufficient evidence to refute DOHA’s characterization, based solely on Internet research, of surface and land travel by persons via road between Tegucigalpa, Honduras, and Arlington, VA, as problematic.  The applicant provides further information supporting the assertions in his rebuttal.  He concludes by stating equal application of Department of Defense regulations and Federal laws should prevail.  He claims the identical route has been characterized differently by different individuals at DFAS who processed two separate travel orders which is contrary to applying the JFTR uniformly to all service members.
8.  Volume 1 of the JFTR contains basic statutory guidance concerning official travel and transportation of members of the Uniformed Services and certain station allowances issued under the authority of Title 10, U.S. Code, sections 2631-2635, and Title 37, U.S. Code, chapter 7.  There may be circumstances when payment of certain allowances is prohibited.  Those circumstances are stated.  However, just because a prohibition is not stated does not mean that an entitlement exists or can be authorized.  All Regular and Reserve personnel, without regard to the Service to which they are assigned, are covered.

	a.  Paragraph U5105 states total reimbursement for privately owned conveyance and personally-procured commercial travel may not be more than than the maximum allowable total payable for the entire ordered travel distance less the cost of any government procured transportation used for a portion of the journey.

	b.  Paragraph 5116-B states, in part, that when land travel is involved, except as specifically provided in paragraph U5116-C, a member on PCS orders not involving transoceanic travel is entitled to the applicable allowances prescribed in paragraph U5105.

	c.  Paragraph 5116-C states, in part, that when transoceanic travel ordinarily would be involved, authorization for POV travel must be approved by the authorizing official.

9.  Comptroller General decisions in similar cased have held that disallowed claims based on lesser cost to the government, those based on other service members in the same situation being reimbursed, and/or misinformation by military officials regarding reimbursement do not support payment of a claim or approval of an appeal.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request to correct his records to show he was authorized reimbursement for PCS POV travel from Honduras to Arlington, VA, and the supporting evidence and argument he presented have been carefully considered.  However, there is insufficient evidence to support his claim.

2.  The evidence of record confirms no authorization for POV travel was included in the applicant’s PCS orders.  Further, his claim was properly considered and denied by the appropriate appellate officials.  The DOHA denial is supported by law and regulation and further reinforced with previous Comptroller General decisions in similar cases.  
3.  Absent evidence that there was any denial of rights during the DOHA appellate process, the evidence and argument presented by the applicant, while logical and well thought out and presented, is not sufficiently compelling to reverse the DOHA decision in this case in light of the historical precedent set in previous Comptroller General decisions in similar cases.

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 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)                                         AR20110022107



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110022107



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1