IN THE CASE OF:	   

		BOARD DATE:	  22 January 2015

		DOCKET NUMBER:  AR20140014997 


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 relief as to the amount she must pay for the non-temporary storage (NTS) of household goods (HHG).

2.  The applicant states, in effect:

* Orders 128-057, issued by U.S. Army Installation Management Command (IMCOM), directed her to permanently change her station (PCS) from Fort Rucker, AL to Joint Base San Antonio(JBSA), Texas 
* on 20 May 2013, her spouse, who had power of attorney, was incorrectly advised by the Fort Rucker, AL transportation office (ITO) their HHG could be kept in NTS 
* on or about 21 June 2013 her HHG were placed in NTS, with a storage expiration date of 12 July 2014
* this error was not caught by the ITO at her new duty station
* sometime around May 2014 she learned placing her HHG in NTS was not authorized beyond 180 days for assignments within the continental United States (CONUS)
* her request for relief to the Department of the Army (DA) G-4 was disapproved and she is being required to pay the cost of storage beyond the 180 days
* she feels she should not be penalized for the Fort Rucker ITO's mistake

3.  The applicant provides:

* Orders
* email traffic with the Fort Rucker ITO
* power of attorney
* DD Form 1797 (Personal Property Counseling Checklist
* DD Form 1299 (Application for Shipment and/or Storage of Personal Property)
* DD Form 1164 (Service Order for Personal Property)
* DA Form 5123-1 (In-Processing Personnel Record)

CONSIDERATION OF EVIDENCE:

1.  The applicant is a medical officer and active duty colonel with over 25 years of military service.  She has served in a variety of positions, including a deployment to Iraq.  She is currently assigned to a unit at JBSA.  

2.  Orders 128-057, issued by IMCOM, directed her to PCS from Fort Rucker, AL to JBSA, TX.  While there is an authorization to ship HHG, it is void of any authorization to store HHG in NTS. 

3.  A DD Form 1797 shows the applicant's spouse was counseled on 20 May 
2013 and apparently advised HHG could be kept in NTS.  The applicant's spouse had a valid power of attorney and was authorized to act in her behalf to direct the storage of HHG.

4.  A DD Form 1299, dated 20 May 2013, states in item 10 (Destination Information) that HHG are requested to be placed in NTS.  Item 13 (Remarks) states property will be placed [in NTS] in lieu of shipment.  It also states a new set of PCS orders will be required to release the HHG from NTS.

5.  A DD Form 1164, dated 22 May 2013, issued by the ITO Fort Rucker, AL, directs a company to store the applicant's HHG from 21 June 2013 to 12 July 2014.

6.  In an email, a representative from the Fort Rucker ITO notifies the applicant her request for exception to policy (ETP) for the storage of her HHG in NTS was disapproved by the DA G-4.  The basis is:

* NTS in lieu of shipment requires pre-approval by a Secretarial process
* an ETP is rarely granted because it is seldom advantageous to the government
* if a Soldier is drawing Basic Allowance for Housing (BAH) in CONUS, then HHG cannot be placed in NTS
* based on disapproval, the applicant will be billed the cost of NTS beyond the 180 days allowed, a total of $518.70
* additionally, she will be billed $37.05 assuming the HHG are moved out of storage by 15 August 2014
* she will be charged at the commercial rate for any days her HHG are stored beyond 15 August 2014

7.  An advisory opinion received from the DA G-4 states:

* the applicant did not receive prior approval for the storage of her HHG in NTS
* the U.S. Government Accountability Office (GAO) has opined the government cannot be bound by the erroneous acts of its agents, even when committed in the performance of their duties
* the Comptroller General has held that neither misrepresentation nor misinformation by military officials provides a legal basis for reimbursement of additional costs
* the applicant was provided the maximum amount of storage to which she was entitled; she is therefore responsible for paying all charges beyond January 2014

8.  The Joint Travel Regulation (JTR) provides policy and guidance for all travel-related matters for uniformed service members and Department of Defense civilians.

	a.  In Chapter 5 (Permanent Duty Travel), Part A (Uniformed Members Only), Section 1 (General), it states when a service member requests NTS, it must be in the government's best interests.

	b.  In Section 5 (HHG), Subsection d (NTS), unless identified in a list of circumstances which may be published by each Service, a member may only be authorized NTS as an alternative to HHG transportation when authorized by Secretarial process.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests relief from paying for the NTS of her HHG beyond the 180 days authorized.  Her contention is her HHG were only placed in NTS based upon incorrect guidance received from the Fort Rucker ITO.  She feels she should not be financially penalized for their error.

2.  The evidence clearly shows the applicant's spouse received bad information from the Fort Rucker ITO.

* the DD Form 1797 shows he was counseled as to the entitlement for NTS
* the DD Form 1299 shows the applicant's HHG were to be picked up and placed in NTS at her spouse's request
* the DD Form 1164 shows the Fort Rucker ITO contracting with a local company to store the applicant's HHG in NTS, thereby showing they had approved and were acting on the applicant's request

3.  Although, according to both the GAO and Comptroller General, the government cannot be held accountable for the errors of its employees and agents, it appears fundamentally unfair to require the applicant to bear the financial burden for the Fort Rucker ITO's mistake.  It would therefore be appropriate to grant the applicant's request for an exception to policy not to be charged the cost of NTS prior to, and inclusive of, 12 July 2014, the date set forth by the Fort Rucker ITO in the DD Form 1164.

4.  Based upon the foregoing, and as a matter of equity, the applicant's request for relief should be granted.

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's request for an exception to policy was granted to pay the cost of NTS for her HHG before and inclusive of 12 July 2014.




      ____________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)                                         AR20140014997





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ABCMR Record of Proceedings (cont)                                         AR20140014997



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