BOARD DATE:	  10 June 2014

		DOCKET NUMBER:  AR20130018512 


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 reimbursement of a $25,728.00 debt recouped from her pay as a result of overpayment of per diem during the period 26 December 2006 to 31 January 2008.

2.  The applicant states she was ordered to active duty from North Carolina where she resided in December 2006 to perform a contingency operations temporary tour of active duty (COTTAD) in support of Operation Noble Eagle with duty at the Pentagon.  Her orders reflected a Maryland address vice a North Carolina address.  She was directed by her superiors to file the travel claims and she was given regulatory guidance that her claim was valid.

	a.  As a Reserve Soldier assigned to the 1st Battalion, 323rd Regiment, 2nd Brigade, 108th Division (Institutional Training), in North Carolina, she was mobilized following a unit training assembly on 26 December 2006 for duty in the Office of the Secretary of Defense at the Pentagon.  Her husband was stationed at Fort Meade, Maryland, during that time period and they were geographically separated.  She resided in North Carolina and she was actively drilling/training with her Reserve unit of assignment.  During the contested per diem period, maintaining both the house in North Carolina and the residence in Maryland were causing a hardship.

	b.  She remained assigned to her North Carolina parent unit on her mobilization orders and would return to that unit upon completion of her mobilization.  Mobilized Soldiers performing COTTAD in support of Operation Noble Eagle were authorized per diem.  All documentation she provided shows she resided at XXX R____ Drive, Fayetteville, North Carolina.  The only per diem expenses she filed were for meals – not for housing – because her husband's orders authorized him housing for his assigned duty location.  The COTTAD orders she received reflect her husband's address, not hers.  Due to this oversight, she has undergone an extensive hardship caused by indebtedness for the per diem for meals to which she was entitled.

3.  The applicant provides a narrative statement and two memoranda with tabs A through M:

* Tab A – DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552)
* Tab B – letters from the Defense Finance and Accounting Service (DFAS) and notification of debt
* Tab C – Statement of Non-Availability for Mess
* Tab D – DD Form 1351-2 (Travel Voucher or Subvoucher)
* Tab E – regulatory guidance
* Tab F – active duty orders
* Tab G – mortgage statement and/or lease agreement
* Tab H – welcome letter from North Carolina unit of assignment
* Tab I – DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States)
* Tab J – U.S. Army Human Resources Command (HRC) retirement points detail printout
* Tab K – email related to her claim
* Tab L – application for and denial of remission and cancellation of debt memoranda
* Tab M – self-authored document tracking outline and email

CONSIDERATION OF EVIDENCE:

1.  After having had prior service in the Army National Guard and Regular Army, she enlisted in the U.S. Army Reserve (USAR) on 4 May 2005 and she reenlisted on 8 April 2006.  Her DD Form 4 for each period of USAR service shows her HOR as Fayetteville, North Carolina.

2.  Her records contain DA Forms 2166-8 (Noncommissioned Officer Evaluation Report) for the rating periods June 2005 through January 2006 and February 2006 through September 2006 showing she was assigned to the 6th Battalion, 3rd Brigade, 108th Division (Institutional Training), Fort Bragg, North Carolina.

3.  She held MOS 44C/36B (Finance Specialist) and MOS 15P (Aviation Operations Specialist).  She was promoted to sergeant first class/E-7 in MOS 44C on 1 September 2006 and to master sergeant/E-8 in MOS 42A (Human Resource Specialist) on 1 August 2011.

4.  HRC Orders A-12-630555, dated 14 December 2006, ordered her to COTTAD in support of Operation Noble Eagle from her residential address in Laurel, Maryland, for a period of 365 days effective 18 December 2006 and ending 17 December 2007.  She was assigned to the 1st Battalion, 323rd Regiment, 2nd Brigade, 108th Division (Institutional Training), Fort Bragg, North Carolina, and attached for duty to the U.S. Army Element, Office of the Secretary of Defense, Pentagon.  These orders show her HOR as the same as her residential address.

5.  HRC Orders A-12-630555A01, dated 19 December 2006, amended her active duty period from 365 days to 357 days.  These orders show her residential address as Laurel, Maryland.

6.  HRC Orders A-12-630555A02, dated 4 April 2007, amended her active duty period and purpose of active duty from 357 days and COTTAD to 11 months and 22 days for contingency-active duty for operational support (CO-ADOS).  These orders show her residential address as Laurel, Maryland.

7.  Her records contain DA Forms 2166-8 for the rating periods October 2006 through September 2007 and September 2007 through September 2008 showing she was assigned for duty to the Office of the Deputy Assistant Secretary of Defense for Reserve Affairs (Readiness, Training and Mobilization), Pentagon.

8.  HRC Orders A-12-630555A03, dated 3 January 2008, amended her active duty period from 11 months and 22 days ending 17 December 2007 to 1 year and 22 days ending 16 January 2008.  These orders show her residential address as Laurel, Maryland.

9.  HRC Orders A-01-801198, dated 18 January 2008, ordered her to 
CO-ADOS in support of Operation Enduring Freedom for a period of 11 months and 30 days effective 17 January 2008 and ending 15 January 2009.  These orders show she was assigned to the U.S. Army Element, Office of the Secretary of Defense, Pentagon.  These orders also show her residential address as Fort Meade, Maryland, and her HOR as the same as her residential address.

10.  During 2007 and 2008, she submitted a monthly DD Form 1351-2 indicating she resided at Fort Meade, Maryland, in a temporary duty (TDY) status and claiming hundreds of dollars worth of monthly meals.  She provided a Statement of Non-availability for Mess, dated 2 July 2008, with her monthly vouchers signed by the Acting Deputy Assistant Secretary of Defense for Reserve Affairs (Readiness, Training, and Mobilization).

11.  On 30 May 2008, DFAS notified the applicant that she received total entitlements and travel advances in the amount of $25,728.00.  During or upon completion of her temporary change of station (TCS) travel, she filed a claim with DFAS for reimbursement.  After computation of her claim, DFAS determined she was overpaid in her prior payments in the amount listed on her voucher.  Her claim for per diem for meals was not authorized since she resided within commuting distance to the Pentagon.  She was provided with a travel voucher and a travel voucher summary explaining the debt.

12.  On 27 June 2008, she corresponded with DFAS and acknowledged receipt of the letter advising her that her claim for per diem for meals was denied because her HOR is within commuting distance of the Pentagon.  She stated her HOR as recorded on her DA Form 2-1 (Enlisted Qualification Record – Part II) is actually in Florida.  She requested a review of her claim.

13.  On 1 July 2008, DFAS concluded a review of her claim and again stated the HOR indicated on her orders shown as Laurel, Maryland, is within commuting distance of her duty assignment.  No per diem was authorized.  If the applicant was mission essential, she needed to submit a mission-essential letter indicating she was required to stay on base (at the Pentagon) nightly as well as a valid statement of non-availability from the garrison commander.

14.  Beginning in May 2008 and continuing to the present, DFAS began a series of correspondence with her, at her unit address and her residential address in Bowie, Maryland, regarding a debt resulting from overpayment of per diem entitlements and travel advances related to her active duty orders.  DFAS's multiple letters stated her claim for per diem for meals was not authorized since she resided within commuting distance to the Pentagon.  With each notification letter, DFAS provided a Travel Voucher Summary, explained the debt, method of payment, penalty for non-payment, interest charges, and her rights.  The total debt was $25,728.00.

15.  On 31 March 2009, she submitted a DA Form 3508 (Application for Remission or Cancellation of Indebtedness).  She indicated she was notified of a debt in the amount of $25,728.00 and that her current mobilization ends on 16 March 2009.  She added that her unit of assignment was in North Carolina, but her duty location was at the Pentagon.  She also stated that she maintained two residences during the time of the per diem expenses.  The first residence is under a mortgage in North Carolina and the second residence is in Maryland which is a high-cost area.  With her application, she provided a statement from Brigadier General S____ W. T____, the Military Executive, Reserve Forces Policy Board, who stated:

	a.  The applicant was notified by DFAS on 2 June 2008 that her per diem claim for the period 26 December 2006 to 31 January 2008 was not valid.  Furthermore, the amount of $900.00 is being withdrawn from her pay every month to repay the $25,728.00 debt.  She requests relief of the debt due to a hardship and an injustice and has enclosed the required DA Form 3508 with a letter of relief.  Her HOR at the time of activation does not take into account her actual residence, XXX R____ Drive, Fayetteville, North Carolina, and her unit's location at Fort Bragg, North Carolina.  She maintained residency in both a local address – her HOR in Maryland – and the residence in North Carolina during the filing claim time period.

	b.  Her orders expire soon and the $900.00 monthly withdrawal of her pay will not be available through her wages.  Her spouse deploys for a second tour to Afghanistan with a projected boots-on-the-ground date of 28 April 2009.  Her spouse has less than 1 year between deployments.

	c.  The repayment would be unjust and a hardship for her and her family.  The indebtedness claim was not identified for over a year after payments were rendered to her and she was not given enough prior notification that the claim was not valid to take appropriate action.

16.  On 7 May 2009, she submitted a DD Form 2789 (Waiver/Remission of Indebtedness Application).  She requested relief from the debt due to financial hardship and injustice.  She indicated that although she submitted erroneous travel claims, she did not knowingly or willingly falsify or unjustly submit those claims.  She was instructed to file those claims by her superiors who also reviewed and endorsed the claims.  She added that she exercised due diligence by researching the regulations and directives to ensure she was not violating any rules.  She concluded that she was only given 30 days upon notification of the indebtedness to respond, collect documents, seek legal counsel, and explain her situation.

17.  She was honorably released from active duty on 13 August 2009.  Her DD Form 214 for the period 26 December 2006 through 13 August 2009 shows the entry "Fort Meade, Maryland" in item 7a (Place of Entry on Active Duty) and the entry "Glenn Dale, Maryland" item 7b (HOR).

18.  She enlisted in the Virginia Army National Guard (VAARNG) on 14 August 2009.  Her DD Form 4 shows her HOR as "Glenn Dale, Maryland" and place of enlistment as "Alexandria, Virginia."  National Guard Bureau orders, dated 18 August 2009, ordered her to active duty in an Active Guard Reserve status effective 14 August 2009 for a period of 3 years with assignment to the ARNG Readiness Center, Arlington, Virginia, with a reporting date of 17 August 2009.

19.  On 8 July 2010, DFAS responded by letter to her waiver request and stated:

	a.  She had applied for waiver consideration of a $25,728.00 indebtedness resulting from the overpayment of per diem during the period 26 December 2006 through 31 January 2008.  She was mobilized by Title 10 Orders A-12-630555, dated 14 December 2006, for 365 days in support of Operation Noble Eagle.  The orders show her residence as XXXX C____ Road, Apartment XXX, Laurel, Maryland  20708, with duty at the Pentagon.  The distance between the two locations is within commuting distance.  Due to an administrative error, she was paid per diem for meals during the mobilization for accrual vouchers according to her statement of non-availability for mess.  On her final travel voucher settlement, a determination was made that she was not authorized per diem for meals and the debt was established in her account.  DFAS verified the amount of the debt computation equals the amount being requested for waiver.

	b.  Title 10, U.S. Code, section 2774, and Title 32, U.S. Code, section 716, provide authority for waiving claims for erroneous payments of pay and allowances made to or on behalf of members or former members of the Uniformed Services or specified Federal employees or annuitants if collection of the claim would be against equity and good conscience and not in the best interest of the United States.  Generally, these criteria are met by a finding that there is no indication of fraud, fault, misrepresentation, or lack of good faith on the part of the claimant or any other person having an interest in obtaining a waiver of this claim.  Financial hardship cannot be considered for waiver under the law.

	c.  She stated that she became aware of the debt on 30 May 2008.  She also stated she did not knowingly or willingly falsify or unjustly submit a travel claim.  She further stated she was given the applicable regulations that govern these entitlements prior to filing the claims based on her duty status and orders.  When a member is erroneously authorized per diem, and it is later determined that he or she is not entitled to per diem, a waiver under the provisions of Title 10, U.S. Code, section 2774, is appropriate only for the amounts actually expended in reliance on the erroneous authorization.  She has not provided any receipts or other documents detailing the amounts actually expended for its intended purpose.  Accordingly, DFAS denied a waiver of $25,728.00.


	d.  Prior Comptroller General decisions have established precedents that are used in making waiver determinations.  Although the enclosed decision does not reflect her exact situation, it does have similar circumstances or events found in her case that reinforce the reason why her waiver was not favorably considered.  Her attention was invited to Claims Appeal Board Decision, Claims Case Number 07011710.  Her attention was also invited to the fact that she can request reconsideration of her case if she could provide new evidence.

20.  A memorandum for the Defense Military Pay Office from HRC, undated, subject:  Remission or Cancellation of Indebtedness – (Applicant), responded to a request regarding the applicant received by HRC on 31 August 2010.  The application for remission or cancellation of indebtedness was reviewed in accordance with Army Regulation 600-4 (Remission and Cancellation of Indebtedness).  The application was disapproved in the amount of $25,728.00.  The applicant had paid $13,952.25 to the Finance and Accounting Office on the balance of the original debt of $25,728.00.  She remains indebted for the balance and should contact DFAS for proration of the remaining debt of $11,775.75.

21.  She was honorably released from active duty on 7 August 2013 to the control of the New York ARNG (NYARNG).  Her DD Form 214 for the period 14 August 2009 through 7 August 2013 shows the entry "Fort Meade, Maryland" in item 7a and the entry "Glenn Dale, Maryland" in item 7b.

22.  Headquarters, III Corps and Fort Hood, Fort Hood, Texas, 
Orders HO-325-0075, dated 21 November 2013, ordered her deployment in a TCS status in support of Operation Enduring Freedom as a member of the NYARNG 42d Combat Aviation Brigade with duty in Kuwait effective on or about 13 December 2013 for a period not to exceed 327 days.

23.  She provided a statement from a retired colonel, dated 14 January 2010, who described the applicant as an exceptional leader of the highest ethical and moral character, whom he worked with during his tenure as Director, Training and Education Technologies, from December 2006 to January 2008.  He stated:

	a.  During that period, the applicant performed CO-ADOS in the Office of the Deputy Assistant Secretary of Defense for Reserve Affairs (OASD RA).  This was a temporary tour away from her Army Reserve permanent unit of assignment in North Carolina, where she also maintained a permanent residence prior to reporting to the Pentagon for duty.  During his tenure with OASD RA, members of the National Guard and the Reserve Components (RC's) (all Services) were routinely mobilized under either CO-ADOS or COTTAD to augment staff and administrative operations within the organization.  To the best of his knowledge, all of these service members were assigned in a TDY reimbursable status.  It was impractical for them to be assigned in any other status due to the high cost of local housing.

	b.  The RC temporary support staff at OASD RA consisted mostly of senior officers.  These individuals were supported by an internal administrative section and, to a limited extent, Washington Headquarters Services (WHS) with the preponderance of their RC pay and personnel administrative support coming from organizations external to WHS and the Pentagon.  This was a poorly orchestrated process, fraught with inconsistency and a genuine lack of accurate, clear, and concise guidance from WHS and the Services (in particular, the Department of the Army).  The situation was further complicated by the lack of standardized and effective interviewing, selection, assignment, and in-processing and out-processing policies and procedures tailored specifically for RC personnel selected to perform CO-ADOS or COTTAD in support of the OASD RA staff.  RC service members on CO-ADOS/COTTAD orders often struggled with poor pay and administrative support services and found themselves spending significant time resolving issues.  Such lack of proper guidance and support set conditions for avoidable problems that placed an unreasonable burden on RC service members who temporarily volunteered to answer the call to duty.

24.  Office of the Assistant Secretary of the Army for Manpower and Reserve Affairs memorandum, dated 28 January 2008, subject:  Policy Update for RC TDY/TCS Assignments in Excess of 180 Days, authorized Soldiers called to active duty for contingency operations for more than 180 days to be in a TDY or TCS status.  However, all TDY/TCS orders for more than 180 days would limit per diem reimbursement to an amount not to exceed 55 percent of the maximum authorized rate for the duty location.

25.  Joint Federal Travel Regulation, paragraph U4100, provides that the per diem allowance is designed to offset the cost of lodging, meals, and incidental expenses incurred by a member while performing travel and/or TDY away from the member's permanent duty station.  A per diem allowance is payable for whole days, except for the departure day from and the return day to the permanent duty station, in which case per diem is computed as prescribed in paragraph U4147.  The per diem rate is determined based on the member's TDY location, not the lodging location.

26.  Joint Federal Travel Regulation, paragraph U4101, provides that the per diem prescribed in this part applies for all TDY periods and travel in connection with periods of necessary delay awaiting further transportation, periods of delay at certain locations, TDY orders directed in permanent change of station orders, and delays to qualify for reduced travel fares.

DISCUSSION AND CONCLUSIONS:

1.  She enlisted in the USAR on 4 May 2005 and she reenlisted on 8 April 2006.  Her DD Form 4 for each term of service listed her HOR as Fayetteville, North Carolina.

2.  She entered CO-ADOS on 18 December 2006 and, although she remained assigned to a parent unit in North Carolina, she was attached for duty to a unit at the Pentagon.  At that time, her home address was listed as Laurel, Maryland, where it appears she resided.  Her CO-ADOS orders, together with multiple amendments, were sent to the Laurel, Maryland, address.

3.  It is clear that Maryland was her primary place of residence during the period under review.  It is equally clear that the distance between her primary residence and duty location was within commuting distance.  Although she received per diem, including meals, during the contested period, this was an erroneous payment that should have never been paid.  As such, DFAS established a debt against her.

4.  It is acknowledged that she was not given sufficient time to respond to this debt and further acknowledged that she may not have knowingly or willingly falsified her travel claims.  However, the fact remains that this payment was made in error and the debt remains valid.

5.  After a comprehensive review of the facts and circumstances and all the evidence she submitted, she not entitled to 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)                                         AR20130018512



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ABCMR Record of Proceedings (cont)                                         AR20130018512



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