IN THE CASE OF:	  

		BOARD DATE:	  18 December 2014

		DOCKET NUMBER:  AR20140017808 


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, in effect, payment of travel allowances (temporary lodging expense (TLE) and/or dislocation allowance (DLA)) in conjunction with his retirement.  

2.  The applicant states:

	a.  He served at the U.S. Embassy in Moscow, Russia.  He was informed of his selection by the Selective Early Retirement Board (SERB) that mandated his retirement no later than 1 August 2014.  He returned to Fort Belvoir, VA to complete his transition.  He believes he should be entitled to DLA for the return trip because he was unable to complete the Army Career and Alumni Program (ACAP) that retiring Soldiers must fulfill.   

	b.  Even though he was selected for separation by the SERB, he should have received a new or amended permanent change of station (PCS) order with a different movement designator code (MDC) and authorization for DLA returning him stateside from his assignment in Moscow, Russia in order to properly transition and retire since there were no ACAP services available.  Upon notification of having been selected by the SERB in February 2014, he received orders returning him stateside to the Defense Threat Reduction Agency (DTRA), Fort Belvoir, VA from his remote assignment in Moscow, Russia.  His orders and separation date were both 31 July 2014 - the day of his retirement.  Owing to the hostile relations between the United States and Russia, he could not remain in Russia in order to transition effectively and completely.  Therefore, in April 2014 he returned to his Headquarters at Fort Belvoir to continue service and start his transition/retirement process. 
	
	c.  Because his orders did not provide for this, he relocated from Moscow in April 2014 with no PCS allowances/DLA and had to fund his own temporary resettlement.  At the time he had no idea where his post-retirement move would be.  His transition point (not his home of record (HOR) or place entered active duty (PLEAD)) was where his orders took him, and it was from there that he retired and fortunately found employment.  Fort Belvoir Finance, DTRA J-1, Defense Finance and Accounting Service (DFAS), and/or the U.S. Army Human Resources Command (HRC)/Senior Leader Development (SLD) Office were unable to assist him in correcting this injustice -- one that with common sense and erring on the side of supporting the Soldier could have very easily been rectified.  He should not be penalized. 

	d.  Nowhere in the regulations or code could any officials show him where it states clearly that a Soldier in his particular circumstance should be denied allowances for relocating from overseas when selected for separation by a SERB.  On 11 July 2014, he was advised that in accordance with the Joint Federal Travel Regulation (JFTR), paragraph U5588, sub-paragraph 2, he is not authorized DLA.  This paragraph reads DLA is not authorized in conjunction with a PCS from last permanent duty station (PDS) to home or to the PLEAD.  His relocation point from Russia was his headquarters at Fort Belvoir -- neither was his HOR nor his PLEAD.  In July he was also informed that in accordance with paragraph U5594, he could not receive DLA twice within the same fiscal year.  His relocation was involuntary; therefore, if he received DLA to move overseas he should receive DLA to return to his headquarters from overseas.  

	e.  The Army's Soldier For Life Program (formerly ACAP) is mandated by law. The only way he could complete ACAP and transition properly was to return to his headquarters and transition point.  In Russia there were no ACAP, transition services, and/or reliable computer connections for Joint Knowledge Online (JKO) to fulfill his ACAP obligations, as mandated by law.  These circumstances necessitated his return to the United States before his 31 July 2014 separation date.  Only after getting bounced around by Fort Belvoir Finance, Military Personnel Division (MPD)/Retirement Services, DTRA J-1, and HRC/SLD did a very helpful DFAS representative recommend that his orders be amended to reflect a different MDC and authorization for DLA, as well as a new effective/reporting date for retirement; or revoke his current orders and reissue a new one reflecting all of the above, to include an exception to policy of paying DLA more than once in the fiscal year in accordance with paragraph U5594.   

	f.  Even after presenting this information to Fort Belvoir MPD/Retirement Services Office and HRC/SLD his requests for consideration were ignored.  The next round of SERB colonels (COL) and lieutenant colonels (LTC) will receive an additional 3 months on active duty to complete a proper, thorough transition.  There is a good reason for this and he is encouraged to see this decision.  His request for an exception to policy equates to allowing for DLA given his unique circumstances.  The Army made a mistake/oversight by issuing him poorly written orders.  He asks that his orders be amended or revoked and reissued to account for his honorable service to our Soldiers and our Nation.  He is forever a "Soldier for Life" and wants to rectify this injustice so that it does not spoil his 30 years of proud service to this Nation.

3.  The applicant provides:

* Retirement Orders 050-0003
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* SERB Letter from HRC
* Trip/flight reservation printout
* Incomplete/unsigned DD Form 1610 (Request and Authorization for temporary duty (TDY) Travel of DOD Personnel) 

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed as a Reserve commissioned officer of the Army and executed an oath of office in Santa Barbara, CA, on 30 June 1983.  His HOR was identified as California.  

2.  He was ordered to active duty from California as a Regular Army commissioned officer and executed an oath of office at Fort Sill, OK, on 5 September 1985.  He served in a variety of stateside or overseas assignments and he attained the rank of colonel (COL) in May 2007. 

3.  On 17 July 2013, U.S. Army Installation Management Command, Fort Myer, VA, published Orders 198-43 reassigning him to DTRA-DTRA Office-Moscow with a report date of 15 August 2013 (amended to 30 October 2013).  He elected to leave his dependents in Alexandria, VA, and to serve an "All Others" tour (24 months). 

4.  While in Russia, he performed duties as the Chief, Defense Threat Reduction Office, Moscow.  He received basic allowance for housing (BAH) based on his dependents’ location in Alexandria, VA. 

5.  On 2 January 2014, by memorandum, the Deputy Chief of Staff, G-1 notified him of his selection for retirement by a SERB, and that if he had completed 20 or more years of active duty as of 31 July 2014 his mandatory retirement date (MRD) would be 31 July 2014 with placement on the Retired List on 1 August 2014.  

6.  On 19 February 2014, U.S. Army Garrison, Fort Belvoir, VA, published Orders 050-0003, releasing him from active duty effective 31 July 2014 and placing him on the Retired List in his retired grade of COL effective 1 August 2014.  The orders stated: 

* You are authorized up to one year to complete selection of a home and complete travel in connection with this action
* Requested and authorized place of retirement is Fort Belvoir, VA
* HOR: Oxnard, CA; PLEAD: Santa Barbara, CA
* MDC: 7BO4 (explained in paragraph 10 below)

7.  It appears he returned to continental United States (CONUS) on 19 April 2014.  It appears he began retirement out-processing and procedures. 

8.  His records contain a DD Form 2648 (Pre-separation Counseling Checklist), prepared on 3 February 2014, which recorded the services and benefits requested by and provided to the applicant.  The form is signed by the applicant and a transition counselor on 17 July 2014. 

9.  He retired on 31 July 2014 and he was placed on the Retired List in his retired grade of COL on 1 August 2014.  His DD Form 214 shows he completed           28 years, 10 months, and 24 days of active duty. 

10.  Army Regulation 600-8-105 (Military Orders) prescribes the policies and mandated operating tasks for the orders program of the Military Personnel System.  Paragraph 1-29 (MDC) states PCS travel expenses of Active Army personnel are funded by appropriations available to and controlled by Headquarters, Department of the Army (HQDA).  An MDC provides the office of the Deputy Chief of Staff for Personnel with a record of the type of travel performed by Active Army personnel.  This record is used to centrally manage travel funds.  The MDC consists of the four characters as follows: 

	a.  The first character designates which of the basic categories of travel is to be charged.  The basic categories of travel are accession, training, operational, low-cost, rotational, separation, unit, no-cost, permissive, diversion, and continuation and contingency/mobilization.  

	b.  The second character designates the destination of the traveler.  See paragraph 1–32 to determine the destination of the traveler, and table 1–2 to determine the MDC. 

	c.  The third character designates whether the order applies to an officer (O) or an enlisted soldier (E).
	
	d.  The fourth character designates the fiscal year appropriation to be charged.  To determine the correct fiscal year, subtract the estimated travel time from the reporting date, then add 1 day to the result.

	e.  Rule Number 42, when an officer is being separated from a CONUS permanent station and HOR, PLEAD, or home of selection is in CONUS, and is travelling to a U.S. Army Transition Point in CONUS, the MDC is 7B.  

	f.  Rule Number 43, when an officer is being separated from a CONUS permanent station and HOR, PLEAD, or home of selection is in CONUS, and is travelling to separation, the MDC is 7B. 

11.  The JFTR contain basic statutory regulations concerning a Uniformed Service member’s travel and transportation, certain OCONUS station allowances (Cost of Living Allowance (COLA), Temporary Lodging Allowance), housing allowances (Basic Allowance for Housing and overseas housing allowance), and CONUS COLA.  These regulations have been interpreted to have the force and effect of law.  The JFTR is issued primarily under the authority of Title 37, U.S. Code, section (§) 411 and Chapter 7, Title 37, U.S. Code. 

	a.  U5594 (re-numbered 5450) (Fiscal Limitations on Payment of DLA): Under Title 37, U.S. Code, (USC) § 477, a member is authorized only one DLA during a fiscal year.  Exceptions are the Secretary concerned determines Service exigencies require more than one PCS during the current fiscal year.  For Army personnel, the authority to make this determination may be delegated no lower than general/flag officer level in the Army, at the headquarters level that directs assignments for the Service concerned.  Office of the Under Secretary of Defense (Personnel and Readiness) Memo of 18 April 2012 temporarily allows the approval level to be set at the O-6 level when serving in the capacity of Directors of the Enlisted and Officer Personnel Management Directorates of HRC effective 18 April 2012 and expiring on 18 April 2014.  When determining the fiscal year in which DLA authority occurs, the member's departure (detachment) date from the old PDS in compliance with the PCS order governs. 

	b.  U5588 (re-numbered 5444), a member is authorized DLA for a PCS move and dependent evacuation.  These are the usual authorization categories.  There are a number of other situations in which a member may or may not be authorized DLA.  DLA is not authorized in conjunction with a PCS from last PDS to home or to the PLEAD.

	c.  U5090 (re-numbered 5068) Retirement Placement on the Temporary Disability Retired List, Discharge with Severance or Separation Pay, or Involuntary Release from Active Duty with Readjustment or Separation Pay, sub-paragraph A(3) Travel to Processing Station of Choice.  A member on active duty is authorized travel and transportation allowances to a home selected by the member from the last PDS when the member is retired for physical disability or placed on the TDRL, or retired with pay for any other reason.

		(1)  The Service may authorize/approve (by the Secretarial Process), a member to select the processing station at which the member is to be released from active duty to travel to the home of selection (HOS) from the last PDS, on a case by case basis (in accordance with Service policy).

		(2)  If authorized/approved to separate at the member’s choice of processing stations, the member is authorized travel and transportation allowances not to exceed the amount payable had the member been ordered to, traveled to and retired/released to inactive duty at, the appropriate processing station as determined by the Service (see paragraph U1015-C2f). 

		(3)  The member is authorized per diem/AEA appropriate for the processing station away from the PDS while undergoing retirement/ release to inactive duty processing.

	d.  Paragraph U5538 (re-numbered 5434)  (CONUS TLE):  TLE is an allowance intended to partially pay members for lodging/meal expenses incurred by a member/dependent(s) while occupying temporary lodging in CONUS in conjunction with a PCS.  A member is not authorized TLE when leaving active duty. 

12.  Title 37, USC, § 477 (Eligibility for DLA), under regulations prescribed by the Secretary concerned, a member of a uniformed service described in paragraph (2) is entitled to a primary dislocation allowance at the rate determined under subsection (c) for the member’s pay grade and dependency status.  Sub-section (e) First or Last Duty: A member is not entitled to payment of a dislocation allowance under this section when the member is ordered from the member’s home to the member’s first duty station (except as provided in subsection (a)(2)(F)) or from the member’s last duty station to the member’s home. 

13.  Title 37, USC, § 474 (Travel and Transportation Allowances) states except as provided in subsection (f) and under regulations prescribed by the Secretaries concerned, a member of a uniformed service is entitled to travel and transportation allowances for travel performed or to be performed under orders, without regard to the comparative costs of the various modes of transportation.  The Secretaries concerned may prescribe the conditions under which travel and transportation allowances are authorized, including advance payments thereof.  

DISCUSSION AND CONCLUSIONS:

1.  DLA is used to partially reimburse a service-member for expenses incurred relocating the member's household on a PCS and can be paid in advance of a PCS move.  TLE is intended to partially pay for lodging and meal expenses when a member/dependent(s) must occupy temporary quarters in CONUS due to a PCS.

2.  The applicant served at the U.S. Embassy in Moscow beginning on 12 October 2013, in an "all others" tour capacity while his family remained in Alexandria, VA.  In January 2014, he was informed of his selection by the SERB that mandated his retirement no later than 1 August 2014.  He returned to Fort Belvoir in or around April 2014 to complete his transition.  He believes he should be entitled to DLA and TLE for the return trip because he was unable to complete ACAP.  Both DLA and TLE are authorized on a PCS move, not when a member retires.

3.  By law, DLA is not authorized when a member is leaving active duty.  The applicant did not PCS from Moscow to Fort Belvoir, VA.  DLA is not authorized when the member is ordered from the member's home to the member's first PDS or from the member's last PDS to the member's home.  He used his retirement orders to return to Fort Belvoir and undergo separation processing.  

4.  He had requested and was authorized the transition point at Fort Belvoir, VA.  He was drawing BAH for Alexandria, VA, (the designated location for his dependents).  He was not authorized TLE because he was expected to reside with his family at the designated location.  Again, the law does not authorize payment of TLE for a member who is leaving (retiring) military service.

5.  The applicant's long service is not in question.  However, entitlements and compensation are embedded in the law and any changes to the law are not within the purview of this Board.  He is not authorized 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)                                         AR20140017808





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140017808



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1