PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           31 May 2000                   
	DOCKET NUMBER:   AR2000041348

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. James E. Vick		Chairperson	
	Mr. Stanley Kelly		Member	
	Mr. John P. Infante		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 that he be paid per diem for the period 25 March 1999 to 6 January 2000.

3.  The applicant states that he was immediately ordered to active duty and reported to his Officer Basic Course (OBC) location on 3 January 2000.  Since his orders did not indicate a permanent duty station (PDS), he was not authorized per diem.  Per diem began on 26 March 1999, when he received his PDS from the U. S. Total Army Personnel Command (PERSCOM).

4.  The applicant’s military records are not available.  The information contained herein was obtained from alternate sources.

5.  Orders dated 26 March 1999 ordered the applicant to active duty.  The assigned to line and the reporting date line on his orders state “To be determined.”  He was ordered to report for temporary duty (TDY) from                15 September 1999 through 31 December 1999 in a permissive TDY status to perform duties as a Gold Bar Lieutenant with further TDY to attend OBC with a reporting date of 4 January 2000.  The additional instructions in his orders stated that he volunteered to be assigned under the Gold Bar Recruiting Program (during the first period of TDY) in a non per diem status. 

6.  On 6 January 2000, Fort Knox, KY amended the applicant’s active duty orders to change the assigned to line to read “64th AG Replacement Battalion…” and his reporting date to read “4 March 2000.”  Per diem was paid to the applicant effective on or about 6 January 2000.

7.  Title 37, U. S. Code, section 404 provides in pertinent part that under regulations prescribed by the Secretaries concerned members of the uniformed services are entitled to travel and transportation allowances upon a change of permanent station, or otherwise, or when away from their designated post of duty.

8.  The Joint Federal Travel Regulation, paragraph U7125A states that a member whose orders to active duty do not designate a specific PDS after the TDY is completed is not entitled to per diem during the TDY.  Per diem is authorized from the date the member receives orders naming a PDS other than the TDY station.  Paragraph 4100 states that a per diem allowance is designed to offset the costs of lodging, meals and incidental expenses incurred by a member while performing travel and or TDY away from the member’s PDS.

9.  Army Regulation 600-8-10 covers leave and pass programs.  Permissive TDY is a nonchargeable absence granted to attend or participate in activities of a semi-official nature which benefit the Department of the Army.  Paragraph 5-32 authorizes permissive TDY for certain particular circumstances:  (1) for career management (absence to discuss career management and review personnel records); (2) to perform State jury service or be a witness under certain conditions; (3) to attend civilian education programs; (4) to attend meetings of associations, leagues, or councils formed by credit unions under certain circumstances; (5) to participate in other official or semi-official programs of the Army provided that participation in the program will enhance the soldier’s value to the Army; (6) for house hunting; (7) to attend meetings (scientific, professional or technical) under certain circumstances; (8) to complete the naturalization process; (9) for soldiers stationed in the States to accompany a dependent patient as a nonmedical attendant; (10) to attend certain professional instruction courses under certain conditions; (11) to participate in scouting activities under certain conditions; and (12) to participate in or provide essential support to participants in sports, recreation or talent events under certain conditions.

10.  In Comptroller General decision B-221201 dated 10 July 1986, the Comptroller General ruled that a military member’s waiver of his entitlement to travel and transportation allowances is ineffective where the travel was directed by the service and not permissive.  

CONCLUSIONS:

1.  The Board concludes that an injustice has occurred in this case.

2.  The applicant effectively began serving in the Army on or about 15 September 1999, when he entered active duty and was required to report for TDY.  Although his orders stated that he volunteered for his first period of TDY in a non per diem status, the Comptroller General has ruled that a military member’s waiver of his entitlement to travel and transportation allowances is ineffective where the travel was directed by the service and not permissive.  Army Regulation 600-8-10 is very specific in describing what activities are authorized to be performed in a permissive TDY status.  Performing duties as a Gold Bar Lieutenant is not one of them.  

3.  The applicant was unfairly deprived of his entitlement to per diem between the period he entered active duty (on or about 15 September 1999) and 6 January 2000, when his PDS was finally designated.  He is not entitled to per diem for any period prior to entering on active duty since he could not have been in a travel status until he entered active duty.

4.  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 17 August 1999 orders ordering the applicant to active duty showed he was assigned to the 64th Adjutant General Replacement Battalion (WA6Z1A) APO AE  09212 (Germany) with a reporting date of 4 March 2000.

2.  That the applicant be paid per diem based upon the above noted PDS from 25 March 1999 or the date he entered active duty, whichever is later, until           6 January 2000 or the date per diem was actually paid, whichever is earlier.

BOARD VOTE:  

__jev___  __sk____  __jpi___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			James E. Vick
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000041348	
SUFFIX		
RECON		
DATE BOARDED	20000531	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	128.00	
2.		
3.		
4.		
5.		
6.