IN THE CASE OF:	  

		BOARD DATE:	  8 July 2014

		DOCKET NUMBER:  AR20130018020 


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, the spouse of an incapacitated and retired service member, requests reinstatement of his expired transportation entitlement.

2.  The applicant states the retired service member was injured [traumatic brain injury (TBI)] in Afghanistan in 2009.  As a result of his brain damage he was incapacitated and unable to inform the applicant [his power of attorney] that an extension needed to be filed to keep his transportation entitlements.  

3.  The applicant provides:

* Letter, dated 5 August 2013
* Memorandum for Record, dated 7 August 2013
* Memorandum, dated 12 September 2013
* Email transmissions
* Durable Power of Attorney

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 24 April 2002.  He held military occupational specialty (MOS) 15U (CH-47 Helicopter Repairer).

3.  His record contains a DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 20 April 2010.  The PEB considered him for the condition of headaches secondary to Arnold–Chiari Type I malformation.  The PEB stated the retired service member was discovered to have a congenital structural defect of the cerebellum in 2004 during work-up for an episode of idiopathic loss of consciousness.  Corrective surgery was attempted in 2004 and 2006, but he continued to have headaches that developed after surgery and interfered with the performance of his MOS.  This condition existed prior to service and was not considered service related or aggravated by service; however, the condition was compensable.  The PEB recommended he receive a 30 percent (%) disability and that he be retired from military service.

4.  Orders Number 124-0263, issued by U.S. Army Installation Management Command, Headquarters, U.S. Army Garrison, Fort Bragg, NC, on 4 May 2010, announced his retirement effective 22 July 2010.  These orders state, "You are authorized up to 1 year to complete selection of a home and complete travel in connection with this action."

5.  He was honorably retired on 22 July 2010 and was placed on the Retired List in the rank/grade of staff sergeant/E-6 on 23 July 2010.  His DD Form 214 shows he served in Afghanistan from 1 April to 25 June 2009 and was retired by reason of a permanent disability.

6.  The applicant provided a letter, issued by Ms. MLV, a Licensed Professional Counselor at Peace of Mind Incorporated, on 5 August 2013.  Ms. MLV stated the retired service member had been treated for post-traumatic stress disorder (PTSD) and TBI on a weekly basis since 19 July 2011.  His symptoms included short-term memory loss, depression, and high anxiety.  His spouse [applicant] had been involved in his treatment planning and therapy, as well as in his care and activities of daily living.  The retired service member's treatment has resulted in moderate improvement; however, Ms. MLV recommended that he and the applicant relocate to be closer to extended family in Iowa because the retired service member and the applicant recently had another child and needed increased social support and assistance.  Ms. MLV stated that due to the retired service member's cognitive impairments he forgot to notify the applicant she needed to request an extension for his transportation entitlement. 

7.  The applicant provided a memorandum, issued by the 406th Army Field Support Brigade, Directorate of Logistics, Fort Bragg, NC, dated 12 September 2013.  This memorandum stated the applicant's request for an extension of travel and transportation entitlements was forwarded to the Army Office of Personal Property (G-4), which disapproved the applicant's request.  An email was attached to this memorandum from the G-4 wherein the G-4 stated they had no Joint Federal Travel Regulation (JFTR) authority to retroactively reinstate an expired travel and transportation shipment entitlement or authorization, which [in this case] ended 23 July 2011.

8.  The applicant submitted a Memorandum for Record, entitled "Travel and Transportation Entitlement Extension Request," dated 7 August 2013.  

	a.  The retired service member and applicant requested an extension because the retired service member's doctor recommended he relocate.  The doctor felt relocation would allow the retired service member's family to help with his PTSD and TBI recovery.

	b.  The request for extension was provided after the entitlement expired because the retired service member was incapacitated due to PTSD and TBI and forgot to tell the applicant that she needed to request an extension.  

9.  Volume 1 (Uniformed Service Personnel) of the JFTR contains basic statutory regulations concerning official travel and transportation of members of the uniformed services.  Paragraphs U5130, U5230, and U5365-F contain the policy and procedures pertaining to the shipment of household goods (HHG) to a home of selection (HOS) by uniformed service personnel upon retirement.  In effect, these paragraphs authorize a member travel and transportation allowances to an HOS selected by the member from his last permanent duty station (PDS) upon retirement.  They state that a member on active duty is entitled to travel and transportation allowances to a home selected by the member from the last PDS upon retirement.  They also establish time limitations for shipment of HHG and state that travel must be completed within 1 year from the active service termination date.

10.  Extension provisions to the 1-year time limit are also provided for deserving cases under the Secretarial process.  This process allows for extensions based on an unexpected event beyond the member's control that prevents movement to a PDS within the specified time limit.  An extension of the time limit may be authorized by the Secretarial process if it is in the best interest of the service or substantially to the member's benefit and not costly or otherwise adverse to the service.  These extensions are approved for the specific period of time that the member anticipates is needed to complete the move, and if additional time is required, the member may request a further extension.  Paragraph U5012-I of Volume 1 of the JFTR provides the policy on restrictions to time limit extensions and states that a written time-limit extension that includes an explanation of the circumstances justifying the extension may be approved for a specific additional time period using the Secretarial process.  However, extensions under this process will not be authorized if it extends travel and transportation allowances for more than 6 years from the separation/retirement date.  These JFTR provisions and time limitations for the shipment of HHG were also in effect at the time of the applicant's retirement.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the retired service member was honorably retired on 22 July 2010.  His retirement orders stated that he was authorized up to 1 year to complete selection of a home and complete travel in connection with this action.

2.  The JFTR indicates that retirement transportation and travel entitlements will be used within 1 year of retirement; however, it also provides for extensions of this entitlement in 1-year increments up to 5 additional years, or a total of 6 years.  Extensions due to unforeseen medical reasons, education or training, and/or other deserving cases when an unexpected event beyond the retiree's control occurs which prevents the retiree from moving within the time limits may be granted under these extension provisions and it must be presumed that had the applicant filed her extension request on time, it would have been granted in this case.

3.  Although there is no evidence that he was not properly counseled, it is clear the only reason his transportation allowance expired was his failure to submit a request in a timely manner, and/or he attempted to rectify this oversight in a timely manner.

4.  However, given the applicant has explained the circumstances that led to the applicant's/retired service member's failure to submit the extension request on time, it would be appropriate and serve the interest of justice to correct the retired service member's record to show he submitted annual requests for extension and reinstatement of his HHG shipment entitlements and that his requests were approved through 21 July 2015 (5 years after his retirement).  This would, in effect, authorize the retired service member sufficient time to use the approved extension to complete his final move.  
5.  The applicant or retired service member should apply in writing for any further extensions through normal channels. (i.e., the installation transportation office), if applicable.

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 applicant, on behalf of her spouse, timely requested and received approval for annual extensions of the retired service member's retirement transportation entitlements through 21 July 2015.



      _______ _   __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)                                         AR20130018020



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ABCMR Record of Proceedings (cont)                                         AR20130018020



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