PROCEEDINGS

	IN THE CASE OF:        

	BOARD DATE:            9 November 1999
	DOCKET NUMBER:   AR1998013664

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Loren G. Harrell		Director	
	Mr. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Ms. Celia L. Adolphi		Member	
	Ms. Karen Y. Fletcher		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
            records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests reimbursement after the fact for temporary duty (TDY) per diem in excess of 180 days, TDY reimbursement for TDY that was verbally directed on 11 December 1995, mileage reimbursement for driving his privately own vehicle (POV from Wiesbaden, Germany to Hanau, Germany and return in support of flight simulator training and command directed visits, and payment of a dislocation allowance (DLA) for his family from Korea to Round Rock, Texas.  

3.  The applicant states, in effect, that he was required to commute from Wiesbaden, Germany to Bad Kreuznach, Germany because of the unavailability of bachelor officer quarters (BOQ) in Bad Kreuznach and should have been paid TDY per diem because he had to commute at his own expense due to the unavailability of government transportation and quarters.  Additionally, he could not obtain a lease for civilian quarters due to having less than a year until departure.  He further states that on 10 December 1995 he was contacted telephonically by his commander and was ordered to travel to Baumholder, Germany to fly a mission on 11 December 1995.  Accordingly, he should have received TDY orders and been paid for using his POV to travel to and from Bad Kreuznach to Baumholder. He also states that he should have been reimbursed for his mileage from Wiesbaden to Hanua for simulator training and command directed visits and he was also entitled to DLA for moving his family from Korea to Round Rock, Texas and has never received it.  He continues by stating that he should not have had to use his POV and gas rations at his own expense for the government’s convenience without compensation.  He contends that without figuring in his DLA entitlements, he is owed approximately $22,219.80.  In support of his application he submits a copy of his request for reimbursement dated 12 October 1995, a copy of a message regarding policies and procedures to request determination of validity of permanent change of station (PCS) orders and authorization for entitlements, a copy of his PCS orders, a statement of non-availability for quarters dated 6 June 1994, his POV registration, log sheets indicating the mileage for which he is requesting reimbursement, a copy of a message entitled “Entitlements resulting from invalid no-cost move orders, a copy of a memorandum to the Office of the Deputy Chief of Staff for Personnel (ODCSPER) regarding his request for reimbursement for TDY in excess of 180 days, a copy of congressional correspondence regarding the response to his request for reimbursement and his rebuttal therein, statements from the detachment commanders, a copy of his travel voucher for 11 December 1995, a copy of the memorandum appointing him as a flight simulator operator, and a copy of his PCS orders transferring him to Germany.

4.  The applicant’s military records show that in September 1992, while serving as a chief warrant officer three (CW3) in Korea, the applicant received consecutive overseas tour (COT) assignment instructions to Germany.  He relocated his family to Round Rock, Texas and proceeded to Germany to await family quarters and travel for his dependents.  While in Germany he elected to change his tour from a with-dependents tour to an all-others tour.  

5.  On 2 May 1994, orders were published which reassigned the applicant from Wiesbaden to Bad Kreuznach effective 15 May 1994.  The orders specified that it was a full-cost move and that his date of eligibility to return from overseas (DEROS) was 27 October 1995.  

6.  The applicant was issued a statement of non-availability for government quarters on 6 June 1994 based on the unavailability of quarters until November 1994.

7.  On 12 October 1995 the applicant submitted a request for TDY in excess of 180 days, after the fact.  He based his request on the fact that quarters were not available in Bad Kreuznach, that he was allowed to remain in his BOQ in Wiesbaden and commute to Bad Kreuznach daily, 45 minutes each way, and that he should have been reimbursed for his meals and the expenses he incurred using his POV.

8.  It appears, based on the evidence available, that the applicant’s request was disapproved by the theater finance office of U.S. Army - Europe due to the fact that the applicant had received orders for a full-cost PCS move to Bad Kreuznach and due to the non-availability of quarters (BOQ), he voluntarily elected to commute daily instead of obtaining economy quarters.

9.  The applicant, while stationed at Fort Rucker, Alabama, in March 1996, resubmitted his request for reimbursement for TDY in excess of 180 days as well as a request for reimbursement for TDY to Hanau for simulator training, and TDY on 11 December 1995 to Baumholder, as verbally directed by his commander.  He submitted this request to the ODCSPER and it appears that it was disapproved.

10.  In response to a congressional inquiry in behalf of the applicant, the ODCSPER opined that the applicant was not entitled to TDY reimbursement because he had been issued full cost PCS orders.  Furthermore, it was his responsibility to procure written orders as a follow-up to verbal orders prior to filing a claim for reimbursement for his travel on 11 December 1995.  Additionally, in regards to his travel to Hanau for simulator training, it was also his responsibility to complete the necessary forms and submit it with the appropriate signatures. 

11.  On 28 August 1997, in response to a congressional inquiry, the Defense Finance and Accounting Service (DFAS) opined that the messages in which the applicant was citing in regards to his entitlement to TDY reimbursement after the fact applied only to no-cost moves and that the applicant had a full-cost move; therefore, he was not entitled to such entitlements.  Additionally, a review of his 1992 PCS settlement vouchers (which were provided by the DFAS) indicated that the applicant was in fact paid his DLA ($1053.00) for moving his family to Texas and therefore was not entitled to a second payment because he did not move his family during his PCS while in Germany.

12.  A review of the available evidence shows that an extensive amount of effort was made by the Department to ascertain the applicant’s entitlement to reimbursement of TDY expenses after the fact and in each instance it was determined that he was not entitled to receive any such entitlements.

13.  The supporting statement from the aviation detachment commander in Bad Kreuznach indicates that the applicant was unable to obtain a BOQ in Bad Kreuznach so he maintained his BOQ in Wiesbaden because he was unable to afford quarters on the economy.  Several attempts were made to obtain a BOQ and in each case they were informed that it would be several months before one would be available.

14.  A supporting statement from a subsequent commander and fellow warrant officer further supports the previous commander’s statement and indicates that the applicant had the verbal support of his chain of command to reside in Wiesbaden and commute to Bad Kreuznach.  It was also believed that he was authorized to be reimbursed for his travel expenses as well. 

15.  The supporting statement from the flight detachment commander at Bad Kreuznach indicates that she called the applicant on the evening of 10 December 1995 and instructed him to go to Baumholder the next day to fly a mission which involved flying a general officer from Baumholder.  He traveled 158 miles in his POV and was never reimbursed.  His time of travel was from 0630 to 1830 hours.

16.  The applicant was honorably released from active duty at Fort Rucker on 31 January 1997 under the provisions of Army Regulation 600-8-24 and was placed on the Retired list on 1 February 1997.  He had served 20 years and 5 months of total active service. 

CONCLUSIONS:

1.  The applicant’s contention that he should receive TDY reimbursement after the fact for the expenses he incurred while commuting from Wiesbaden to Bad Kreuznach appears to be without merit.  The applicant was issued full-cost PCS orders which reassigned him to Bad Kreuznach and entitled him to receive the additional housing allowances necessary to live in economy quarters.

2.  The applicant’s contention that he did not have enough time to procure economy quarters with a 1-year lease due to his DEROS also appears to be without merit.  His orders clearly show that his reporting date was 15 May 1994 and his DEROS was 27 October 1995.  Additionally, the statement of             non-availability indicates that quarters would be available approximately November 1994.  Therefore, it appears that the applicant chose to commute rather than take advantage of the housing allowances provided to live on the economy or if he so desired, to commute until November 1994, when a BOQ was projected to be available.  Accordingly, the applicant is not entitled to reimbursement for those expenses.  

3.  In regards to his request for reimbursement for travel to Hanau for simulator training, the applicant has not provided any evidence to show that government transportation was unavailable either in the form of a government vehicle or commercial transportation to attend his training.  Therefore, in the absence of evidence to show that he attempted to obtain transportation and was denied, there is no basis to grant him reimbursement for that travel as well.

4.  The applicant’s contention that he was never paid DLA for moving his family from Korea to Texas appears to be without merit as well.  The documents provided by the DFAS in response to a congressional inquiry clearly show that he was in fact reimbursed for DLA for that move.  Therefore there is no basis to grant that portion of his request.

5.  While the Board agrees that the applicant bears some of the responsibility for obtaining TDY orders after complying with verbal orders to go to another location to perform a mission, the Board also believes that the commander has equal responsibility for ensuring that soldiers are compensated for expenses incurred when government transportation is not available.  Given the circumstances at the time, it is not reasonable to presume that during the evening hours of 10 December 1995 when the applicant’s commander directed him to fly a mission in Baumholder on 11 December, that he could procure government transportation in time to meet the mission.  Therefore, he should be compensated accordingly for the use of his POV on 11 December 1995.

6.  Although the Board agrees with the applicant’s assertion that soldier’s should not be directed to utilize their personal assets for the government’s convenience without compensation; the government should likewise not compensate soldiers who choose to use their personal assets for government business because it is personally more convenient to do so rather than using the government assets available.  The applicant in this case has failed to show through the evidence submitted with his application or the evidence of record that he was denied the benefits of government transportation or housing benefits during the period in question. 
7.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing that the individual concerned was authorized TDY allowances and use of his POV for travel from Wiesbaden, Germany to Baumholder, Germany by POV on 11 December 1995 during the hours of 0630 to 1830 hours. 

2.  That the Board proceedings serve as authorization for payment in lieu of publishing orders retroactive to 1995.

3.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__kf ____  ___rvo __  __cla____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_Raymond V. O’Connor, Jr._
		        CHAIRPERSON

INDEX

CASE ID	AR1998013664	
SUFFIX		
RECON		
DATE BOARDED	1999/11/09	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT PARTIAL	
REVIEW AUTHORITY		
ISSUES         1.  285 	128.0200/TDY PAY	
2.  286 	128.0300/DLA	
3.		
4.		
5.		
6.