PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            27 June 2000
	DOCKET NUMBER:   AR2000037808

	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. Carl W. S. Chun		Director	
	Mr. Joseph A. Adriance		Analyst	

	The following members, a quorum, were present:

	Mr. Mark D. Manning		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. Curtis L. Greenway		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, in effect, that he be paid per diem for the period 
7 January through 10 February 2000.   

3.  The applicant states, in effect, that to date he has not received per diem payments because his orders stated “to be determined” (TBD) in the duty assignment line.  He claims that these orders have now been amended and he requests payment in conjunction with the amendment as soon as possible.  He has enclosed a copy of his original order, his travel order, and his pay voucher in support of his application.

4.  The applicant’s military records show that upon his appointment as a 
2nd Lieutenant in the USAR, he was ordered to active duty via Orders Number 
352-43-A-324, dated 18 December 1999, issued by Headquarters, United States Army Cadet Command, Fort Monroe, Virginia.  The “Assigned to:” lead line of this order indicated “to be determined”, the “Reporting date” lead line indicated “TBD”, and the applicant was directed to perform temporary duty (TDY) in accordance with his Department of Defense (DD) Form 1610 (Request and Authorization for TDY Travel of DOD Personnel).

5.  The DD Form 1610, dated 21 December 1999, issued by Headquarters United States Army Cadet Command, authorized the applicant to proceed on TDY to Fort Gordon, Georgia on 7 January 2000, to attend the Signal Corps Officer Basic Course (OBC).  The applicant completed a DD Form 1351-2
(Travel Voucher) which indicated he departed Orlando, Florida and arrived at Fort Gordon, Georgia for his TDY on 7 January 2000, and that he requested lodging reimbursement from 7 January until 7 February 2000.

6.  On 10 February 2000, a Travel Voucher Discrepancy memorandum was issued to the applicant.  This document indicated that he could not be in a 
per diem status without a permanent duty station assignment being contained on his orders.  It advised him that his orders would have to be amended to change the “TBD” entry in the assigned to lead line of his basic order to read a specific unit of assignment.  

7.  On 11 February 2000, a 1st endorsement to the original order was issued by the United States Army Signal Center and Fort Gordon.  This endorsement amended the applicant’s original order by authorizing the following entries: “Assigned to:  Repl Sec (WOVMO8) Ft. Riley, KS  66442”; “Reporting date: 
28 August 2000”; Pers Con No: FCKR0007G0505”; and “Additional Instructions: (v) Officer does have dependents.”

8.  In connection with the processing of this case an advisory opinion was requested and received from the Defense Finance and Accounting Service (DFAS), Indianapolis Center.  They commented, in effect, that the Joint Federal Travel Regulation (JFTR), paragraph U7125-A, prohibits payment of per diem at a temporary duty (TDY) en route location until a specific new permanent duty station (PDS) is provided.  Further, according to the guidance of the Per Diem Travel and Transportation Allowance Committee (PDTATAC), the date of assignment cannot be VOCO confirmed to the start of the TDY.  Therefore, in the applicant’s case he could not be reimbursed until the date the amendment was prepared and that in order for him to receive per diem his original order would have to be corrected to add a specific PDS.  

9.  DFAS also concluded that failure to correct the applicant’s original order would create an undue hardship on the applicant, as his out of pocket expenses incurred prior to the amended order are not reimbursable.  Finally, they opined that once proper action is taken to correct the original assignment order to add a specific PDS, the applicant will be entitled to per diem for the entire time he was TDY. 

CONCLUSIONS:

1.  The Board determined that, under the provisions of the JFTR, it was required to originally deny the applicant per diem.  In addition, based on the guidance of PDTATAC, which stipulated that the date of assignment cannot be VOCO confirmed to the start of the TDY, it was not possible to provide him reimbursement based on the amendment to the original order.

2.  However, the Board concurs with the recommendation contained in the favorable advisory opinion provided by the DFAS, that states that while the original actions to deny the applicant per diem were accomplished in accordance with applicable regulations, the failure to provide him per diem for the entire TDY period served an injustice on him and his family.  Therefore, the Board concludes that relief should be provided at this time because the injustice to the applicant was the result of an administrative error in the original assignment order, an action over which he had no control.  

3.  The evidence of record shows that the applicant properly complied with his orders in reporting to his TDY duty station and that he was in a legitimate TDY status for the entire period for which he requests reimbursement.  Thus, in the interest of justice and equity, the Board concludes it would be appropriate at this time to correct his original assignment order to add his specific permanent duty station, in lieu of the current TBD entry.  

4.  The Board also found that the applicant’s claim for per diem, as documented in his travel voucher (DD Form 1351-2), is valid and that he should receive full reimbursement for the entire time he was in a valid TDY status once his original order is corrected. 

5.  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 18 December 1999 orders ordering the individual concerned to active duty showed he was assigned to the Replacement Section (WOVMO8) Ft Riley, Kansas 66442 with a reporting date of 28 August 2000. 

2.  That the individual concerned be paid per diem based on the above noted PDS from 7 January 2000 or the date he entered active duty, whichever is later, until 7 February 2000 or the date per diem was actually paid, whichever is earlier.

BOARD VOTE:  

__wtm___  __mdm__  __clg ___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		____Mark D. Manning____
		        CHAIRPERSON

INDEX

CASE ID	AR2000037808	
SUFFIX		
RECON		
DATE BOARDED	2000/06/27	
TYPE OF DISCHARGE	N/A	
DATE OF DISCHARGE	N/A 	
DISCHARGE AUTHORITY	N/A	
DISCHARGE REASON	N/A	
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  297	128.1400	
2.		
3.		
4.		
5.		
6.