IN THE CASE OF:	  

		BOARD DATE:	  16 June 2015

		DOCKET NUMBER:  AR20140014992 


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 remission or cancellation of her debt to the U.S. Government in the amount of $14,047.23 due to overpayment of basic allowance for housing (BAH).

2.  The applicant states:

	a.  She received a decision from the Chief, Operations Management, U.S. Army Human Resources Command (HRC), dated 23 July 2014, that stated there were no grounds to remit or cancel the remaining debt balance.

	b.  The decision showed a partial approval in the form of remitting $4,333.80 and left a balance of $14,047.23 without an explanation of financial calculations or the reason for remittance.

	c.  The debt placed on her account is incorrect and unjust because her duty location was Taunton, MA, until February 2013.

	d.  There was no BAH overpayment because permanent change of station (PCS) orders issued in September 2012 by Walson Medical Support Element (WMSE) were never recognized by HRC.

	e.  HRC issued her PCS orders in February 2013 after it became apparent that she would not return to duty in Taunton, MA.  She was receiving the proper entitlements based on existing orders placing her duty location in Taunton, MA.

	f.  She tried repeatedly to clarify and correct her records regarding both the PCS entitlements and the BAH allowance.

	g.  It does not appear that interest credit was given to the portion of the debt that was due to her for the PCS which is also unjust.

	h.  The debt is overly burdensome and will force her to request release from active duty in order to sell back accrued leave to satisfy the debt which is the last thing she wants to do since she has been found fit for duty and able to continue to serve.

3.  The applicant provides:

* HRC memorandum, dated 23 July 2014
* Email
* Defense Finance and Accounting Service (DFAS) memorandum, dated 2 May 2014
* self-authored memorandum, dated 13 May 2014
* DA Form 3508 (Application for Remission or Cancellation of Indebtedness), dated 6 May 2014
* DD Form 139 (Pay Adjustment Authorization), dated 1 May 2014
* Master Military Pay Account (MMPA) extracts
* Military Personnel Message Number 06-208, dated 26 July 2008, subject:  Remission or Cancellation of Indebtedness
* HRC Orders R-02-081755, dated 22 February 2010
* WMSE Warrior Transition Unit (WTU) Orders 197-001, dated 16 July 2012
* WMSE WTU Orders 257-001 and Orders 257-002, both dated 14 September 2012
* HRC Orders R-02-380803, dated 8 February 2013
* HRC Orders R-02-081755A01, dated 18 April 2013
* DD Form 1351-2 (Travel Voucher or Subvoucher), dated 4 October 2012
* DD Form 1351-5 (Government Quarters and/or Mess), dated 25 September 2012
* Days Inn, Virginia Beach, VA, hotel receipt, dated 26 September 2012
* travel query by social security number
* Joint Federal Travel Regulation (JFTR) extract of chapter 10 (Housing Allowances), in effect at the time


CONSIDERATION OF EVIDENCE:

1.  The applicant was commissioned as a Reserve officer in the rank/grade of second lieutenant on 25 April 1995.

2.  She was promoted to major effective 11 June 2007.

3.  HRC Orders R-02-081755, dated 22 February 2010, ordered her to active duty in an Active Guard Reserve (AGR) status and assigned her to Company B, 399th Support Hospital, Taunton, MA, with a reporting date of 1 June 2010 under the provisions of Title 10, U.S. Code, section 12301(d).  Her authorizations included shipment of household goods at the with-dependent rate and her home of record was shown as Mountain Top, PA.

4.  WMSE WTU Orders 197-001, dated 16 July 2012, attached her to the WTU, Fort Dix, NJ, for the purpose of medical care effective 16 July 2012.

5.  WMSE WTU Orders 257-001, dated 14 September 2012, released her from the Fort Dix WTU effective 24 September 2012.

6.  WMSE WTU Orders 257-002, dated 14 September 2012, assigned her to the Fort Eustis WTU, Fort Eustis, VA, effective 24 September 2012, reporting to the Community Based WTU Virginia (CBWTU-VA), Virginia Beach, VA, and further attached her to the CBWTU-VA with duty at her home of record in Mountain Top, PA.  These orders:

* authorized shipment of her household goods to the permanent duty station
* authorized travel of her dependents to the permanent duty station
* directed her continued treatment at a medical treatment facility (MTF)
* authorized the use of one or two privately-owned vehicles for travel to the permanent duty station
* authorized BAH for the PCS duty location

7.  On 4 October 2012, she submitted a DD Form 1351-2 for temporary duty (TDY) which shows:

* she departed Taunton, MA, on 16 July 2012 and arrived at Fort Dix, NJ, on the same date
* she arrived at the CBWTU-VA, Virginia Beach, VA, on 24 September 2012
* she arrived at her home of record, Mountain Top, PA, on 26 September 2012

8.  On 20 October 2012, her DD Form 1351-2 was returned with instructions indicating orders were required with the accounting line providing the code for payment of TDY at Virginia Beach, VA, and block 5 (Type of Payment) needed to be marked if she was claiming additional travel.

9.  Her DD Form 1351-5, dated 25 September 2012, shows quarters and meals were unavailable during the period 24 September 2012 through 26 September 2012.

10.  HRC Orders R-02-380803, dated 8 February 2013, released her from assignment to Company B, 399th Combat Support Hospital, Taunton, MA, and reassigned her to the Warrior Transition Battalion, Fort Eustis, VA, as a patient effective 8 February 2013.

11.  HRC Orders R-02-081755A01, dated 18 April 2013, amended HRC Orders R02-081755, dated 22 February 2010, to show:

* her active duty commitment as 3 years and 6 months
* her release from active duty date as 31 October 2013

12.  On 1 July 2013, she was promoted to lieutenant colonel.

13.  On 15 October 2013, HRC amended Orders R-02-081755, dated 22 February 2010, to extend her active duty service commitment to 31 May 2014 under the provisions of Title 10, U.S. Code, section 12301(d). 

14.  The applicant provided:

	a.  a Days Inn hotel receipt, dated 26 September 2012, that shows her lodging for the period 24 through 26 September 2012;

	b.  a travel query that shows her travels during the period 15 January 2000 through 1 June 2012;

	c.  extracts of her MMPA,

	d.  email between her, HRC, Medical Command (MEDCOM), and the U.S. Army Reserve Command which shows the attempts made to get her orders and pay corrected; and

	e.  an extract of JFTR, chapter 10, part E, section 13, which shows that effective 3 April 2013, an AGR member's BAH or overseas housing allowance (OAH) is based on the permanent duty station (PDS), even when the member is mobilized for active duty other than AGR duty provided the member does not have a break in service.  The PDS rate applies for the duration of the tour.  If the AGR member receives PCS orders authorizing HHG transportation, the BAH/OAH is based on the new PDS.  However, if the member is called or ordered to active duty without a break in service and PCS orders authorizing HHG transportation are not issued, the BAH/OAH rate is based (paid) on the PDS location at the time called or ordered to active duty.

15.  A DD Form 139 (Pay Adjustment Authorization), dated 1 May 2014, shows the applicant's BAH calculations for Taunton, MA, and Mountain Top, PA.

16.  The WTU Consolidated Guidance (Administration) provides ongoing policy and guidance for the care and management of Warriors in Transition (WT).

	a.  Paragraph 1-19l states HRC will develop procedures and conduct technical oversight and quality control of personnel actions, administrative processing, assignment, attachment, and transfer of warrior transition to ensure accountability and Soldier welfare.

	b.  Paragraph 2-13a(3) states if, at any time, an Army military medical authority determines the Soldier will not return to duty within 60 days of the time he or she is injured or becomes ill, he or she is offered the Medical Retention Program (MRP).  If the Soldier agrees to enter the MRP, he or she is assigned to the installation WTU on Title 10, U.S. Code, section 12301(h), orders.  If the Soldier declines the MRP, he or she is released from active duty to his or her respective Reserve Component. 

	c.  Chapter 3, paragraph 3-1 (Temporary Change of Station (TCS) Orders), states the primary purpose of TCS orders are to serve as a personnel accountability tool able to track personnel at various locations based on the movement designator code.  The secondary purpose is to authorize various travel entitlements; it provides the ability to move a Soldier from station to station as required by military necessity.  The format 401 orders are limited TCS orders which may be amended, revoked, or rescinded by the gaining command as required to reflect movement within the area of responsibility.  eMILPO is used to maintain and account for Soldiers serving on TCS orders and allows the supporting units to update the Soldiers' personnel files and facilitates accountability within the personnel system.  Movement to duty locations will be accomplished by the original TCS orders and any amendments (format 700) when a validated requirement is established as prescribed in the Personnel Policy Guidance found on the following Army G-1 web site:  http://www.armyg1.army.mil.

	d.  Paragraph 3-4 states backdating the reporting date on PCS orders for wounded or ill Soldiers admitted to major medical facilities is not authorized.  PCS and TCS orders may only be corrected by amendments, revocations, and rescissions.

	e.  Paragraph 3-12 (Categories of Assignment/Attachment) states when Soldiers are medically evacuated from the continental U.S. (CONUS)/outside CONUS (OCONUS) to the MTF or are inpatients at an MTF, civilian, Department of Veterans Affairs, or Department of Defense medical facility, the MTF commander attaches Soldiers to the MTF/WTU.  The MTF commander notifies Soldiers' unit commanders of Soldiers' statuses within 24 hours.  Soldiers are medically evaluated to determine if they meet the criteria per the WT definition.  If Soldiers meet the WT definition criteria, Soldiers are counseled regarding WTU assignment/attachment options.  Determinations are made for assignment/
attachment to the WTU.  A nomination packet is completed as appropriate and forwarded to the Triad of Leadership (senior commanders/command sergeants major, MTF commanders/command sergeants major, and WTU commanders/
command sergeants major/first sergeants).  Financial and benefit implications for assignment/ attachment can be found in the appropriate sections of this chapter.  The Triad of Leadership approves assignment/attachment orders for the Soldier.  If Soldier will be assigned, orders will be published by the MTF/WTU as soon as the decisions are made.  However, the reporting date can be no earlier than 90 days from the MTF/WTU commander's decision date (the decision date equates to the date the orders are published).  Early reporting should be authorized.  This will allow Soldiers time to clear housing, move families, and manage other personal matters.  Assignment orders are funded by movement designator codes.  Attachment orders are funded through MEDCOM and charged as a contingency-related cost where appropriate.

	f.  Paragraph 3-14 states:

		(1)  if a Soldier is returned to an MTF/WTU not co-located within his original unit of assignment, the Soldier will be assigned or attached to the MTF/WTU either at his unit of assignment location or another MTF/WTU location.  The determination will be made by the Commander of the MTF/WTU where the Soldier is physically located.

		(2)  if PCS entitlements are not utilized within 90 days, the PCS orders will be revoked and the Soldiers will be attached.  (This prevents the payment of a higher BAH rate while the families remain at a less expensive location).

		(3)  HRC will cut amended WTU orders assigning Soldier to new WTU.

	g.  Paragraph 3-15 states HRC publishes and distributes Title 10, U.S. Code, section 12301(h), orders.  HRC requests the issuing authority of original partial mobilization orders to rescind the remaining time on the Title 10, U.S. Code, section 12302, orders to eliminate the possibility of two valid orders at any given point in time.

	h.  Table 3-1 (Active Component and AGR Assign/Attach Benefits Comparison Chart) shows an exception to policy could have been approved by Headquarters, Department of the Army, G-1, to retain BAH for another location.

	i.  Paragraph 3-20 states that if the request for exception is denied, HRC will notify the Soldier through the chain of command.  The Soldier may appeal the denial of an exception to Headquarters, Department of the Army, G-1 
(DAPE-MPE-IP), Attention:  Branch Chief, WTU/Active Duty Medical Extension Exception Appeal, Room 1C449, 300 Army Pentagon, Washington, DC  20310.  The unit commander must counsel the Soldier, document the counseling session, and keep a copy in the Soldier's personnel file.

	j.  Chapter 5, section II (Pay and Entitlements) of provides for pay and allowances.  Paragraph 5-18g (Per Diem) states the Assistant Secretary of the Army for Manpower and Reserve Affairs has delegated authority to issue orders for per diem beyond 180 days for WTU Soldiers to hospital/WTU commanders in the rank/grade of no lower than colonel/O-6.  Per diem orders for this category of Soldier will be issued on format 410 attachment orders.  Hospital/WTU commanders will issue attachment per diem orders for a maximum of 365 days.  Soldiers issued attachment orders must first check for U.S. Government lodging on the installation they are assigned to.  If lodging is not available on the installation or their duty location is not on an installation, the Soldiers must use Army Lodging Success to obtain housing or a statement of non-availability.

		(1)  When attached Soldiers are provided U.S. Government lodging and meals on the installation, the Soldiers draw the incidental portion of per diem only ($3.00 a day CONUS/$3.50 a day OCONUS).

		(2)  When attached Soldiers are provided contract lodging (at no cost to the Soldier) off the installation, the Soldiers draw the full commercial rate for meals and incidental per diem for the duty location.

		(3)  When attached Soldiers are provided U.S. Government lodging on an installation but commute to a duty location away from that installation, the Soldiers draw the full commercial rate for meals and incidental per diem for the duty location.

		(4)  When either U.S. Government or contract lodging is not available for an attachment period of less than 180 days, and the Soldiers are issued a statement of non-availability for lodging to reside on the economy, the Soldiers draw the full daily locality per diem rate for the duty location.  When the attachment period is for greater than 180 days, the Soldiers draw 55 percent of the daily locality per diem rate for the duty location.  This rate covers lodging, meals, and incidental expenses.  To file for reimbursement at the 55-percent per diem rate, Soldiers are not required to provide any receipts.

17.  Title 10, U.S. Code, section 12302, states in time of national emergency declared by the President after 1 January 1953, or when otherwise authorized by law, an authority designated by the Secretary concerned may, without the consent of the persons concerned, order any unit, and any member not assigned to a unit organized to serve as a unit, in the Ready Reserve under the jurisdiction of that Secretary to active duty for not more than 24 consecutive months.

18.  Title 10, U.S. Code, section 12301(h), states when authorized by the Secretary of Defense, the Secretary of a Military Department may, with the consent of the member, order a member of a Reserve Component to active duty to receive authorized medical care; to be medically evaluated for disability or other purposes; or to complete a required Department of Defense health care study, which may include an associated medical evaluation of the member.  A member ordered to active duty under this subsection may, with the member's consent, be retained on active duty for medical treatment for a condition associated with the study or evaluation if that treatment of the member is otherwise authorized by law if the Secretary concerned considers it appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for remission or cancellation of her debt to the U.S. Government in the amount of $14,047.23 due to overpayment of BAH was carefully considered.

2.  HRC published orders directing the applicant to active duty for an AGR tour in Taunton, MA, effective 1 June 2010 for a 3-year period.  Her AGR tour was subsequently extended until 31 May 2014.

3.  In July 2012, she was attached to a WTU at Fort Dix, NJ for medical care for a period not to exceed 60 days.  After her treatment at Fort Dix, she was issued PCS orders assigning her to the Fort Eustis, VA, WTU with reporting instructions to the CBWTU Virginia Beach, VA, for continued medical treatment with a reporting date of 24 September 2012.  These PCS orders also attached her to the CBWTU-VA with duty in Mountain Top, PA.  However, it appears the PCS orders were not coordinated through HRC since HRC issued orders on 8 February 2013 releasing her from assignment in Taunton and assigning her to Fort Eustis effective 8 February 2013.

3.  She had two valid orders assigning and attaching her to the CBWTU-VA with different effective dates.  Although attempts were made by HRC, MEDCOM, and the U.S. Army Reserve Command to properly assign her to the CBWTU-VA, she nevertheless incurred an overpayment in BAH along with interest through no fault of her own.

4.  Orders were never rescinded or revoked and email between the different agencies clearly show policy and procedures outlined in the WTU Consolidated Guidance were not followed and attempts to properly assign her to the various WTUs were not coordinated through HRC.

5.  In view of the above, any doubt should be resolved in favor of the applicant and her records should be corrected to show an exception to policy was requested and approved for her to retain the BAH for Mountain Top, PA (the higher-rate location) and that no debt was established.  She should be reimbursed any monies paid towards the debt.

BOARD VOTE:

____x___  ____x___  ___x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is 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:

	a.  showing an exception to policy for her to retain BAH for Mountain Top, PA, was submitted and approved;

	b.  voiding establishment of any debt; and

	c.  reimbursing payments against the voided debt already paid by the applicant.



      _______ _   _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)                                         AR20140014992



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ABCMR Record of Proceedings (cont)                                         AR20140014992



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