IN THE CASE OF:	  

		BOARD DATE:	    5 December 2013

		DOCKET NUMBER:  AR20130010397


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 correction of his military records to show authorization of 50 days of Post Deployment Mobilization Respite Absence (PDMRA) based on his qualifying deployment/mobilization ending on 4 February 2012.

2.  The applicant states that on 5 October 2012 he received an email from the U.S. Army Human Resources Command (HRC) stating he might have PDMRA days due to him serving as a mobilized Reservist.  The notification stated that the benefits would expire on 1 October 2014.  He submitted his packet for consideration 24 January 2013 and requested a cash payment.  On 15 May 2013, he received a denial letter which stated he had accrued 50 PDMRA days; however, as he had not used them prior to starting his current set of orders (which goes through 3 February 2014) these days were no longer available.  He was not notified of the requirements for using the PDMRA days in sufficient time to use them; therefore, he requests restoration of his PDMRA days. 

3.  The applicant provides:

* self-authored statement, dated 28 May 2013
* DA Form 4187 (Personnel Action), dated 16 January 2013
* memorandum for record from the HRC PDMRA team, dated 9 May 2013
* Army National Guard (ARNG) PDMRA calculator
* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending on 26 November 2006
* Orders M-08-503282, dated 23 August 2005
* Orders M-08-50328A02, dated 7 September 2005
* Orders M-08-50328A03, dated 21 September 2005
* Orders A-09-623022, dated 6 September 2006
* Orders M-12-603644, dated 18 December 2006
* Orders A-09-623022A01, dated 4 January 2007
* Orders M-11-702940, dated 21 November 2007
* Orders M-11-702940A02, dated 7 March 2008
* Orders A-10-819733, dated 3 October 2008
* Orders A-10-819733A01, dated 3 November 2008
* Orders A-12-934189, dated 15 December 2009
* Orders M-11-000990, dated 19 November 2010
* Orders A-12-127227, dated 7 December 2011
* Orders A-01-300682, dated 14 January 2013
* Defense Joint Military Pay System-Reserve Component (RC) Master Military Pay Account, dated 15 December 2005
* 21 Defense Finance and Accounting Service (DFAS) Leave and Earnings Statements (LES), dated 13 January 2005-15 November 2006
* various email, dated 5 October 2012-15 May 2013

CONSIDERATION OF EVIDENCE:

1.  After having previous commissioned service in the Air National Guard, he was appointed as a Reserve commissioned officer of the Army on 13 September 1989.  He is currently serving in the U.S. Army Reserve (USAR) as a chaplain in the rank of lieutenant colonel (LTC).  

2.  He provided a DD Form 214 which shows he entered active duty on 8 September 2005 and had service in Kuwait from 9 November 2005 through 4 November 2006.  He was released from active duty (REFRAD) on 26 November 2006. 

3.  He provided a series of orders which show that since 6 February 2007 he has served on consecutive back-to-back active duty tours.

	a.  Orders M-12-603644, issued by HRC on 18 December 2006, show he was ordered to active duty in accordance with Title 10, U.S. Code (USC), section 12302, and was directed to report to Fort Myer, VA, not later than (NLT) 6 February 2007.  These orders further show he was scheduled for REFRAD NLT 5 February 2008.

	b.  Orders M-11-702940, issued by HRC on 21 November 2007, show he was ordered to active duty in accordance with Title 10, USC, section 12302, and was directed to report to the Arlington National Cemetery NLT 6 February 2008.  These orders further show he was scheduled for REFRAD NLT 4 February 2009.

	c.  Orders A-10-819733, issued by HRC on 3 October 2008, show he was ordered to active duty in accordance with Title 10, USC, section 12301(d), and was directed to report to Fort McNair, VA, NLT 5 February 2009.  These orders further show he was scheduled for REFRAD NLT 4 February 2010.

	d.  Orders A-12-934189, issued by HRC on 15 December 2009, show he was ordered to active duty in accordance with Title 10, USC, section 12301(d), and was directed to report to Fort McNair, VA, NLT 5 February 2010.  These orders further show he was scheduled for REFRAD NLT 4 February 2011.

	e.  Orders M-11-000990, issued by HRC on 19 November 2010, show he was ordered to active duty in accordance with Title 10, USC, section 12302, and was directed to report to Fort McNair, VA, NLT 5 February 2011.  These orders further show he was scheduled for REFRAD NLT 4 February 2012.

	f.  Orders A-12-127227, issued by HRC on 7 December 2011, show he was ordered to active duty in accordance with Title 10, USC, section 12301(d), and was directed to report to Fort McNair, VA, NLT 5 February 2012.  These orders further show he was scheduled for REFRAD NLT 3 February 2013.

	g.  Orders A-01-300682, issued by HRC on 14 January 2013, show he was ordered to active duty in accordance with Title 10, USC, section 12301(d), and was directed to report to Fort McNair, VA, NLT 3 February 2013.  These orders further show he was scheduled for REFRAD NLT 3 February 2014.

4.  His record is void of any documentary evidence to show he requested and was denied PDMRA during the 5 February 2011 through 4 February 2012 period of active duty in which it was earned, or that he requested to be extended on active duty to use the earned PDMRA.  

5.  He provided a DA Form 4187, dated 16 January 2013, which shows he requested PDMRA for Shadow Area 2 (SA2) and stated:

	a.  He had been counseled and understood his entitlement to elect either a PDMRA day for use at the end of this current mobilization or to carry that PDMRA day to a further period of Title 10 active duty.  He understood that if he did not have another period of active duty the PDMRA days he carried over would be lost.  He further understood that if he did not carry over the PDMRA days he could elect to receive a cash payment of $200.00 per PDMRA day.

	b.  He indicated that he had not used any of his PDMRA days during his current/most recent mobilization order and requested to receive a cash payment for his PDMRA days.

	c.  He acknowledged he had been counseled and understood that no payment would be made until 1 October 2012 and payment would only commence on that date if funds were available pursuant to the Appropriation Act enacted after 25 May 2012.

6.  He provided a memorandum for record issued by the HRC PDMRA team on 9 May 2013 which disapproved his request for cash payment of PDMRA for Gray Area (GA2) days and stated:

	a.  HRC validated his request for cash payment of PDMRA GA2 days for mobilization time during 5 February 2011 to 4 February 2012 using the PDMRA calculator in accordance with Department of the Army Personnel Policy Guidance (PPG) for Overseas Contingency Guidance, paragraph 8-10.  

	b.  In accordance with Public Law 112-120 (H.R. 4045), dated 25 May 2012, GA2 only applies to individual qualifying orders that commenced on or before 1 October 2011 and continued on or after 1 October 2011.  Additionally, GA2 was enacted to identify and correct errors specifically related to the calculation of PDMRA benefits that may have occurred or resulted from relevant changes that took effect on 1 October 2011.  Although the applicant's Title 10, USC, section 12302 (Orders M-11-000990) for the above period is a qualifying order for PDMAR GA2 consideration, he had remained on continuous back-to-back orders since 6 February 2007 and his qualifying service period(s) have never been adjudicated for PDMRA; therefore, there is no error to correct or adjust under GA2.

	c.  Adjudication of the applicant's PDMRA benefits should have occurred prior to the end of his most current qualifying period (4 February 2012), affording him the opportunity to expend any PDMRA days earned prior to the end of that specific order/period of service.  The applicant continued with follow-on Title 10, USC, section 12301(d) Continental United States (CONUS) based orders (Order Number A-12-127227), and remains on Title 10, USC, 12301(d) CONUS based orders (Order Number A-01-300682) through 3 February 2014.  In so doing, the applicant forfeited the PDMRA benefits earned during the subject mobilization.  In accordance with section 8, paragraph i(3), of the PPG:

		(1)  PDMRA days cannot be carried forward/rolled over to new mobilization orders.  PDMRA is a use or lose benefit for the mobilization period under which it is earned.

		(2)  PDMRA days earned during a mobilization to a qualifying foreign outside CONUS (OCONUS) country that is not officially "leave restricted" must be used during the mobilization orders period.  Soldiers will not be extended on contingency operation for active duty for operational support (CO-ADOS) (Title 10, USC, section 123012(d)) orders to use any accrued PDMRA days when the Soldier was eligible to use the PDMRA during the mobilization order period.  It is the Soldier's responsibility to schedule their usage of any PDMRA while at their mobilization permanent duty station (PDS) or return to the demobilization/
transition center/REFRAD point in sufficient time to use earned PDMRA days before the order end date.  Only Soldiers who are returning from theater deployments (leave restricted areas) will be extended on CO-ADOS orders to utilize earned PDMRA, as well as any accrued annual leave.

		(3)  PDMRA days earned cannot be cashed out.  PDMRA is intended to be used as a period of "administrative time-off/respite" to reintegrate with family after an arduous deployment or prolonged family separation.  If not used for that purpose, there is no option for selling unused PDMRA days at separation/REFRAD.

7.  During the processing of this case, an advisory opinion was obtained from the Office of the Deputy Chief of Staff, G-1, Compensation and Entitlements Division, on 29 August 2013.  The advisory official stated:

	a.  The applicant's request for reimbursement of PDMRA days earned during his 5 February 2011 through 4 February 2012 mobilization period was reviewed by this office and the HRC REFRAD team.  Based on those reviews the G-1 recommended the ABCMR deny the applicant's request for reimbursement of PDMRA days.

	b.  The applicant's Title 10, USC, section 12302 mobilization order period of 5 February 2011 through 4 February 2012 would be considered as a qualifying mobilization for PDMRA.  However, based on the 2007 PDMRA implementation policy guidance, Soldiers must use any earned PDMRA days at the conclusion of their current mobilization order, extension of their current mobilization order, or during a permanent change of station (PCS) travel between an old and new PDS.  Army PDMRA policy guidance specifically states that Soldiers cannot rollover PDMRA days earned during one mobilization order period to a new mobilization order period or to a new PDS since PDMRA is considered a "pass" and unlike annual leave usage, there is no PDMRA tracking mechanism to manage PDMRA day usage.  Since there is no tracking mechanism, it is impossible to determine whether the applicant used earned PDMRA days during or after his mobilization period in 2012.

	c.  Further, the applicant does not qualify for PDMRA cash reimbursement under GA2 legislative authority, which covers Soldiers who did not receive the correct number of PDMRA days due to the 1 October 2011 change in the PDMRA program.  The applicant also does not qualify for cash reimbursement under the Government Error legislative authority, which covers Soldiers who did not receive the correct number of PDMRA days due to a Government calculation error.  If the applicant failed to receive any PDMRA days he earned it is because he failed to utilize any earned PDMRA days in accordance with Army policy guidance in effect since 2007.  The PDMRA program was and continues to be a "use or lose" benefit during the mobilization period.

8.  The applicant was provided with a copy of this advisory opinion but he did not respond within the allotted time.

9.  The following governing authorities apply to PDMRA:

	a.  Secretary of Defense Memorandum, Utilization of the Total Force, dated 19 January 2007, directed a program be established to recognize members who are required to mobilize or deploy with a frequency beyond policy-established rotation goals;

	b.  Under Secretary of Defense Memorandum, Programs to Support Utilization of the Total Force, dated 18 April 2007, established the PDMRA program in response to the Secretary of Defense directive in his 19 January 2007 memorandum; and 

	c.  All Army Activities (ALARACT) Message 173/2007, dated August 2007, contained the Army's PDMRA implementation guidance.  

10.  The 2010 National Defense Authorization Act (NDAA), section 604, provided special authority to monetarily compensate Soldiers who were REFRAD and not able to use PDMRA during the period between PDMRA authorization by the Secretary of Defense on 19 January 2007, and publication of the Army's PDMRA  implementation guidance on 18 August 2007.  This authority expired on 28 October 2010.  

11.  The PPG discusses the PDMRA Program in paragraph 8-10i.  It states PDMRA is designed to give extra time off to Reservists and members of the National Guard to compensate them for too little dwell time at home between deployments.  PDMRA days are also available to Active Component (AC) Soldiers who have deployed to Afghanistan, Iraq, or with certain theater units and other areas as determined by the Secretary of the Army or his designated representative.

12.  The PPG also discusses RC creditable mobilizations/deployments.  These include involuntary mobilization/deployment under Title 10, USC, sections 12301(a), 12302, or 12304; or voluntary mobilizations under section 12301(d) if the duty is performed in Iraq, Afghanistan, or Kuwait.  To qualify a 12301(d) period of duty for PDMRA, the Soldier must provide an LES showing hostile fire/imminent danger pay to verify period of boots-on-the-ground (BOG) in Iraq, Afghanistan, or Kuwait.  

13.  PPG PDMRA usage states RC Soldiers may use accrued PDMRA during any authorized rest and relaxation leave period, or during current mobilization order/authorized extension of current mobilization order.  Soldiers unable to utilize accrued PDMRA days during their current mobilization order may be voluntarily retained on active duty under the provisions of Title 10, USC, section 12301(d), CO-ADOS orders, to utilize accrued PDMRA days.  No tax benefits accrue or are attached to days of PDMRA regardless of where they were earned or awarded. PDMRA cannot be sold back at discharge, REFRAD, or retirement.  There are no provisions allowing for carryover or monetary compensation for PDMRA days not used during the mobilization/deployment in which they were earned.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that 50 days of PDMRA should be authorized has been carefully considered.  However, the Army policy requires PDMRA to be used during the active duty period in which it was earned and there are no provisions to carry over or be monetarily compensated for PDMRA outside of the legal authority provided by the 2010 NDAA which expired on 28 October 2010. 

2.  The evidence of record and independent evidence provided by the applicant is void of any documentary evidence indicating the applicant requested and was denied PDMRA during the 5 February 2011 through 4 February 2012 period of active duty in which it was earned, or that the applicant requested to be extended on active duty to use the earned PDMRA.  

3.  Further, subsequent to the Army's implementation of PDMRA guidance published on 18 August 2007, the policy has been well published on the PPG and in numerous documents published by the Department of the Army Deputy Chief of Staff, G-1, the National Guard Bureau and U.S. Army Reserve Command.  As a result, the applicant either was or should have been aware of the PDMRA Program.  Therefore, there is an insufficient evidentiary basis to support 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 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)                                         AR20100016464



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ABCMR Record of Proceedings (cont)                                         AR20130010397



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