IN THE CASE OF: 

		BOARD DATE:	  6 December 2012

		DOCKET NUMBER:  AR20120009600 


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, in effect, payment of additional per diem for the period May through July 2004.

2.  The applicant states he deployed to Iraq with the 1st Armored Division in April 2003 for a 1-year period.  Within 1 week of redeploying, his unit was extended for a 3-month period; however, the extension did not yield him any extra per diem pay.  He adds that the Board should investigate this matter in the interests of those who served on this extension and may not have been correctly paid.

3.  The applicant provides copies of his deployment and redeployment orders and nine Defense Finance and Accounting Service (DFAS) Forms 702 (Military Leave and Earnings Statement) in support of his application.

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 Regular Army on 17 July 2001 for a period of 4 years.

	a.  He was awarded military occupational specialty 96H (Aerial Intelligence Specialist).

	b.  He was promoted to specialist/pay grade E-4 with a date of rank of 17 July 2003.

3.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was honorably released from active duty on 16 July 2005 based on completion of required active service and transferred to the U.S. Army Reserve Control Group (Reinforcement) to complete his Reserve obligation.  He completed 4 years of active service that included 3 years, 3 months, and 6 days of foreign service.

4.  In support of his application, the applicant provides the following documents:

	a.  Headquarters, 1st Armored Division, Orders 106-10, dated 16 April 2003, show personnel of the 501st Military Intelligence Battalion were ordered to move from Germany to Kuwait on or about 26 April 2003 for a period not to exceed 365 days (unless directed otherwise by the commander) to provide continued support to Operation Enduring Freedom.

	b.  Headquarters, 1st Armored Division, Orders 112-26, dated 21 April 2004, paragraph 1, revoked Headquarters, 1st Armored Division, Orders  06-10, dated 16 April 2003, and amendment "AETV-THA-ME (600)," dated 3 November 2003.

	c.  Headquarters, 1st Armored Division, Orders 112-26, dated 21 April 2004, paragraph 2 shows personnel of the 501st Military Intelligence Battalion were ordered to move from Germany to Iraq and Kuwait on or about 26 April 2003 until 30 September 2004 to provide continued support to Operation Enduring Freedom.

	d.  Nine LES's pertaining to the applicant for the periods shown below that do not show payment of per diem, but show, in part:

* April 2003 – "MEMBERS DEPLOYED TO COMBAT ZONES OR QUALIFIED HAZARDOUS DUTY AREAS HAVE UP TO 180 DAYS AFTER RETURNING HOME TO FILE FEDERAL TAXES WITH NO INTEREST OR PENALTIES"
* May 2003 – hostile fire pay (HFP) started 1 April 2003 with first payment for April-May 2003
* March, April, June, and July 2004 – HFP/imminent danger pay (IDP) was paid for these months
* August 2004 – HFP was stopped effective 31 July 2004
* April and May 2005 – no pay-related data for the issue under review

5.  During the processing of this case, the General Processing Branch, DFAS, Cleveland, OH, was asked to verify information relevant to the applicant's receipt of HFP/IDP.  DFAS confirmed the applicant received HFP/IDP from 27 April 2003 through 11 July 2004 for Kuwait.

6.  Department of Defense Financial Management Regulation, volume 7A (Military Pay):

	a.  Chapter 10 (Special Pay – Duty Subject to Hostile Fire or Imminent Danger), provides that a member may be paid special pay for duty subject to hostile fire or imminent danger for any month when the member, while entitled to basic pay for active duty or compensation for inactive duty, also meets the qualifying criteria of this chapter.  HFP/IDP is payable at a monthly rate of $225.00 and is payable in addition to all other pays or allowances.  In addition, it is payable in the full amount without being prorated or reduced for each month during any part of which a member qualifies.

	b.  Chapter 65 (High-Deployment Allowance), formerly designated as "high-deployment per diem," provides that the Secretary concerned may pay a high-deployment allowance to a member for each month during which the member is deployed and at any time during that month, has been deployed for 191 or more consecutive days, or has been deployed 401 or more days out of the preceding 730 days.

7.  Title 37, U.S. Code, section 436, provides that the high-deployment allowance may be paid to members who perform lengthy or numerous deployments or frequent mobilizations.

	a.  Pursuant to Title 10, U.S. Code, section 991(d), Service Secretaries may suspend the management of the Personnel Tempo program when such a suspension is in the "national security interests."  Invoking this suspension terminates the requirement to pay the high-deployment allowance under Title 37, U.S. Code, section 436.

	b.  In a memorandum, dated 8 October 2001, the Deputy Secretary of Defense indefinitely suspended the accumulation of deployment days for purposes of determining eligibility for high-deployment allowance due to national security issues.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that he should receive retroactive payment of the high-deployment allowance.

2.  The evidence of record shows the applicant deployed with his unit to Kuwait/Iraq on 27 April 2003 and served in the theater of operations through 11 July 2004.  Records also show the applicant received HFP/IDP pay for this period of service.

3.  The evidence of record shows the high-deployment allowance provides that the Secretary concerned may pay a high-deployment allowance to a member for each month during which the member is deployed and at any time during that month, has been deployed for 191 or more consecutive days, or has been deployed 401 or more days out of the preceding 730 days.  However, the Deputy Secretary of Defense indefinitely suspended the accumulation of deployment days on 8 October 2001 for purposes of determining eligibility for high-deployment allowance due to national security issues.  Thus, this suspension terminated the requirement to pay the high-deployment allowance under Title 37, U.S. Code, section 436.

4.  Therefore, based on the available evidence, there is no basis for granting the 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 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)                                         AR20120009600



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ABCMR Record of Proceedings (cont)                                         AR20120009600



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