IN THE CASE OF:	

		BOARD DATE:	  6 September 2012

		DOCKET NUMBER:  AR20110024404 


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 authorization for payment of per diem at the full rate for 6 out of the 12 months he served in the Netherlands in an active duty status.

2.  The applicant states:

* He was a by-name retiree recall for a J3 Liaison Officer (LNO) position within the U.S. Central Command (USCENTCOM) in Brunssum, Netherlands for 1 year
* He arrived in the Netherlands on 26 June 2010 and he began submitting monthly travel vouchers that were processed by the finance office in Belgium
* In January 2011, his travel voucher was returned and he was told future travel vouchers would be processed by the Defense Finance and Accounting Service (DFAS) - Indianapolis
* His January 2011 travel voucher was paid in February 2011 at the rate of 55 percent (55%) although he had already paid full per diem for his lodging in January and February 2011
* LNOs that rented the apartment had been paid at the full per diem rate since 2006
* He called DFAS and someone informed him that he needed his orders amended to specify the full rate; therefore, he had his orders amended
* DFAS officials then told him the amendment was insufficient; he had to request an exception to policy from the Army G-1
* 
A request for an exception to policy was prepared, signed by a major general, and submitted to G-1
* The Army G-1 denied the request because it had not been requested and approved prior to the start date of his LNO duties
* He acted in good faith; there had never been a problem before or a requirement for an exception to policy
* He received per diem at the full rate for 6 months; but he was only reimbursed at the rate of 55% for the remaining 6 months

3.  The applicant provides:

* Request for exception to policy to the Army G-1
* Request for exception to policy to the Assistant Secretary of the Army (Manpower and Reserve Affairs) (ASA (M&RA))
* Request for Retiree Recall Status
* Orders for active duty
* Reassignment orders and amendments
* Statement of Non-Availability
* Two invoices

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed as a Reserve commissioned officer and executed an Oath of Office on 20 July 1981.  He served in a variety of assignments and attained the rank of colonel (COL).  He was placed on the retired list in his retired rank of COL on 1 January 2008, shortly after his 60th birthday. 

2.  On 6 June 2010, he was ordered to active duty for a period of 365 days under the retiree recall program.  His mobilization order, issued by the U.S. Army Human Resources Command, St. Louis, MO, stated "Authorized 55% Per Diem at Duty Station."

3.  Orders 167-016, issued by the U.S. Army Installation Management Command, MacDill Air Force Base (AFB), FL, dated 16 June 2010, reassigned and/or deployed the applicant from MacDill AFB to the Joint Forces Command (JFC), USCENTCOM LNO Office in Brunssum, Netherlands, effective on or about 25 June 2010.

4. On 23 February 2011, he was issued a Statement of Non-Availability that shows the U.S. Army Garrison, Schinnen had no government lodging, mess, or billeting facilities available in the JFC Brunssum, Netherlands area from June 2010 to June 2011.
5.  Orders 081-012, issued by the U.S. Army Installation Management Command, MacDill AFB, FL, dated 22 March 2011, amended Orders 167-016 authorizing him payment of full per diem.

6.  On 10 May 2011, his chain of command submitted an exception to policy request to ASA (M&RA) requesting an exception to the 55% per diem rate.

7.  On 13 May 2011, the applicant's chain of command submitted an exception to policy request to the Army G-1 requesting the applicant be paid at the 100% per diem rate from 6 June 2010 to 5 June 2011.

8.  On 20 June 2012, an advisory opinion was obtained from the Office of Compensation and Entitlement Division, Office of the Deputy Chief of Staff G-1.  The advisory official recommended disapproval of the applicant's request.  He stated:

	a.  Based on a review of the documentation contained in the applicant's packet, DFAS' decision to discontinue payment of full per diem without prior approval is consistent with Army policy.

	b.  In accordance with the Joint Federal Travel Regulation (JFTR), paragraph U4105-I, the Army's contingency operation flat per diem rate for a member assigned temporary duty in excess of 180 days at one location is 55% of the applicable maximum locality per diem rate.

	c.  The applicant signed a statement that informed him of his entitlement to receive the 55% flat per diem rate during his assignment.  Additionally, his May 2010 orders clearly state the 55% per diem rate was authorized while on active duty.  This Army reduced per diem rate policy established in 2007 should not be utilized to compare with other services' mobilization per diem policies in order to increase the prescribed rate.

	d.  Consequently, the applicant's order to Brunssum, Netherlands could not be amended to provide an increase in his per diem rate without approval from Headquarters, Department of the Army (HQDA).  The authority to approve any adjustment to the contingency operation flat per diem rate rests in this office and must be authorized before travel (JFTR, U4105E).

	e.  The official further stated that due to the error which resulted in him being paid full per diem for the period June to December 2011, this office is supportive of him submitting a request to DFAS for remission or cancellation of debt due to an erroneous payment for consideration.
9.  On 27 June 2012, the advisory opinion was furnished to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  On 5 July 2012, the applicant responded with a rebuttal, wherein he requested the Board refuse to accept the G-1's recommendation.  He stated:

* He had previously appealed to DFAS and others and the response simply quoted the same regulation
* He was asked to come out of retirement and USCENTCOM promised him the full rate
* JFC Brunssum is a NATO base with no government lodging, billets, or mess; everyone lives off the local economy
* The apartment he lived in was approved by USCENTCOM for such purposes
* Every LNO before him received the full rate

DISCUSSION AND CONCLUSIONS:

1.  The applicant was ordered to active duty in June 2010 as an LNO at USCENTCOM in Brunssum, Netherlands.  His mobilization orders clearly stated he was authorized per diem at the 55% rate.

2.  His higher headquarters amended his assignment orders to authorize him the 100% per diem rate for the duration of his active duty period without proper authorization from the appropriate office at HQDA.

3.  The applicant rented his apartment and paid his rent in good faith after having received per diem at the rate of 100%.  When the rate changed, he solicited help from his chain of command and received amendment orders authorizing him this rate.  Additionally, his chain of command supported his position and submitted the exception to policy to the appropriate office. 

4.  Although the JFTR is clear with respect to the authorized rate, it appears he may have suffered an injustice in that he was treated inequitably compared to previous LNOs, contracted for housing at a full per diem rate based upon existing guidance and he was initially reimbursed at the full per diem rate.

5.  Additionally, the G-1's opinion gives the appearance that if the applicant had requested the exception to policy prior to his arrival in the Netherlands, the approval authority could have granted him an approval.

6.  As such, as a matter of equity, he is entitled to correction of his records to show the exception to policy request, dated 13 May 2011, submitted to the G-1 was approved, and that the applicant be paid the full 100% rate for the duration of his temporary change of station.

BOARD VOTE:

____X____  ___X_____  ____X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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

* Showing the request, dated 13 May 2011, for an exception to policy submitted to the Army G-1 was approved
* Auditing his pay records and, if appropriate, paying him any per diem entitlement as a result of this correction



      ___________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)                                         AR20110017339



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)                                         AR20110024404



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