MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  1 February 2001
	DOCKET NUMBER:  AR2000041919

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

	Mr. Carl W. S. Chun		Director	
	Mr. Paul A. Petty		Analyst	

  The following members, a quorum, were present:

	Mr. Luther L. Santiful		Chairperson	
	Ms. Barbara J. Lutz		Member	
	Mr. James E. Anderholm		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

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

APPLICANT REQUESTS:  Reimbursement of travel expenses to his Home of Record (HOR) upon retirement.  He also requests pay for 60 days leave accrued and for transition leave.

APPLICANT STATES:  Reimbursement of travel expenses to his HOR upon retirement were denied.  He was orally ordered home by his commander.  He was also placed on leave without his permission or knowledge.  He also should have received transition leave for 20 days.  He contends that his commander told him in March 1998 to go home, concentrate on his Medical Evaluation Board (MEB), work on his job applications, and not to report to work anymore.  He, “believes that his commander meant for him to go to his home of record.”  He also contends that the US Army Physical Disability Board in Washington, D.C.,
in May 1999, “ordered him to separate from the Army and return to his home of record.”  He then applied for early retirement in lieu of separation for physical disability.  He was told to go home and wait for early retirement orders.  The applicant states, “By May 1999 (60 days later), we had not yet heard the results of my request for retirement, and since I was told to go home and was not allowed to perform my military duty, we placed our home on the market anticipating a move by the end of summer.  However, our home sold within a week.  We closed June 10 and Atlas Van Lines moved us back to Bloomington, my home of record.”  The applicant includes with his application, documents listed on the application, to include a letter to a Senator explaining his contentions in detail; an order for service of moving by Atlas Van Lines with a cashier’s check to pay for the service; his DA Form 31, Request and Authority for Leave, for the period of leave in contention; his orders for retirement and orders for reassignment to the transfer point; and a 20 May 1998 e-mail message from his commander concerning the applicant’s status.

EVIDENCE OF RECORD:  The applicant's military records show:

That he was a U.S. Army Reserve (USAR) Lieutenant Colonel (LTC) on active duty as a Personnel Management Officer for the U.S. Army Physical Disability (PDA) Agency, Bethesda, Maryland, with duty station at Fort Sam Houston, Texas.  In other terms, he was an adjudicator for the Physical Evaluation Board (PEB) located at Fort Sam Houston, under the direction of the PDA.  His supervisor/rater/commander was the colonel president of the PEB at Fort Sam Houston and his senior rater was the brigadier general commander of the PDA.  The applicant served in this capacity from 1991 to 1998.

In 1998, the applicant began medical evaluation for physical disability.  During this evaluation process, the applicant’s commander sent an e-mail message to the PDA deputy commander which stated in part, “I told him (the applicant) to not 

bother hanging around here/the office, but to focus on his MEB and job applications.”  On 14 October 1998, a MEB at Fort Sam Houston determined that the applicant did not meet medical retention standards and referred him to the PEB at Walter Reed Army Medical Center.

On 11 March 1999, the applicant prepared a letter requesting voluntary early retirement in lieu of physical disability separation according to provisions in Army Regulation (AR) 600-8-24 (Officer Transfers and Discharges).  On 30 March 1999, a formal PEB was convened at Walter Reed Army Medical Center with the applicant appearing before the board.  The PEB found the applicant unfit to perform the duties of his office and rank by reason of cumulative pain from his back, neck, hips, knees and left ankle with arthritis and avascular necrosis of the talus left ankle.  He was rated for pain disability with a ceiling of 20%.  Soldiers with less the 30% disability rating by the PEB require separation from the service with severance pay.  The Department of Defense Instruction 1332.38 provides that members with a disposition of separation for physical disability who have less than 20 years and more than 15 years of active duty service may apply for nondisability early retirement under the Temporary Early Retirement Authority (TERA).  The PEB findings and the applicant’s request for early retirement were forwarded to the PDA.

On 19 May 1999, the PDA conducted a review of the PEB findings.  The PDA approved the findings of the PEB.  On 21 May 1999, the PDA forwarded the applicant’s request for early retirement to the Retirement and Separations Branch, U.S. Total Army Personnel Command (PERSCOM).

On or about 11 June 1999, the applicant moved his household goods from his address in Austin, Texas, to a new address in Bloomington, Minnesota, with a delivery date of 16 June 1999.  The moving company was the Atlas Van Lines.  The applicant’s wife signed an Order for Service (moving contract) on 25 May 1999 with Atlas Van Lines.  The quoted cost was $9330.84.  The applicant’s wife provided a cashier’s check to Atlas Van Lines for this amount.  There is no evidence of a government bill of lading or of orders authorizing shipment of household goods.

On 28 June 1999, PERSCOM issued orders number S93-3 directing the applicant’s retirement effective 31 August 1999.  The applicant’s commander was not able to contact the applicant, so on 1 July 1999, the commander placed the applicant on leave from 29 June 1999 to 31 August 1999.  In the remarks section of the leave form (DA Form 31), the commander stated, “Officer entered the Medical/Physical Eval Sys in early 1998.  The process was completed upon issue of retirement orders dated 28 June 99.  He could not be contacted at his Austin, TX address.  As his commander, I decided it prudent to place him on 

leave vice other administrative action.  SM not available for signature.”  The leave form listed his Bloomington, Minnesota, address as his leave address.

On 25 August 1999, Headquarters, U.S. Army Medical Center and School and Fort Sam Houston, issued orders reassigning the applicant to the Fort Sam Houston Transfer Point on 31 August 1999.  On 31 August 1999, a DD Form 214 was issued by Fort Sam Houston retiring the applicant by reason of voluntary early retirement, AR 600-8-24, chapter 6.  The applicant did sign the 
DD Form 214.

The applicant filed a claim for reimbursement of expenses incurred in moving his household goods from Austin, Texas, to Bloomington, Minnesota, beginning 
10 June 1999.  The claim was filed with the U.S. Army Transportation Office at Fort Snelling, Minnesota.  The transportation office responded by letter on 
2 December 1999, stating. “Department of the Army Orders S93-3, dated 
28 June 99, establish the conditions of official travel and transportation at Government expense.  Reimbursement for travel is not authorized when the travel is performed before receipt of written or oral orders in accordance with JFTR, paragraphs U2100 and U2115.  An oral order must be subsequently confirmed in writing giving the date of the oral order and approved by competent authority.  Therefore, as the property was moved before issuance of orders, no entitlements exist for reimbursement of actual expenses.”

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  There is no evidence that the applicant was given verbal orders by his commander or the PDA to move from his station of assignment to his retirement home of record.  There is no written confirmation of such alleged verbal orders.

2.  There is no evidence that the applicant was told to “go home”.  Even if the applicant had been told to “go home”, that in no way can be construed to mean “move to your home of record.”  The only evidence relative to this issue is a message from the applicant’s commander to his senior rater that showed that the commander said, “I told him to not bother hanging around here/the office, but to focus on his MEB and job applications.”  This statement cannot be construed to be an authorization for the applicant to move to his home of record a year later.  This statement made by the commander was made on 20 May 1998, more than a year before the applicant moved from his Austin, Texas, residence in June 1999 and so cannot be considered relevant to that move.

3.  From available evidence, it appears that the applicant moved from his authorized place of residence in Austin, Texas, to Bloomington, Minnesota, on 

his own volition without authorization or orders.  There is no evidence that he went through government transportation as required to arrange for movement of his household goods.

4.  The applicant’s duty station was Fort Sam Houston and his authorized residence while stationed at Fort Sam Houston was in Austin, Texas.  Absence without authority of more than 24 hours from these places during regular duty hours constitutes AWOL (Absence Without Leave).  The applicant’s commander appears to have been aware of this, according to the applicant’s leave form, when he could not contact the applicant at his Austin, Texas, residence and “decided it was prudent to place the him on leave vice other administrative action.”  The commander listed the applicant’s address in Bloomington, Minnesota, as his leave address, since without such a leave form, the applicant was not authorized to be in Bloomington during regular duty hours and would have therefore been AWOL.

5.  The commander does not have authority to place a soldier on leave.  A soldier must request leave.  A commander may only approve or disapprove leave.  The applicant’s commander did not have authority to involuntarily place the applicant on leave.  But he took this action to avoid declaring the applicant AWOL.

6.  The leave form initiated by the applicant’s commander to place the applicant involuntarily on leave should be voided and the applicant paid pay and benefits for that 64 days leave time.  However, the applicant would then in fact be AWOL, since he had no authorization to be gone from Austin, Texas, or Fort Sam Houston, during regular duty hours.  As such, pay and benefits for that 64 day period would be collected from his pay.  The total of the two pay actions would be a net difference of zero pay.  Therefore, no action should be taken on this issue as it would not benefit the applicant.

7.  There is no evidence that the applicant requested 20 days transition leave (formerly called terminal leave).  A soldier does not have an automatic right to transition leave.  It must be requested by the soldier and approved or disapproved by the commander.

8.  There is no evidence that the applicant requested 20 days Transition Permissive Temporary Duty (PTDY) for the purpose of house and job hunting at his retirement home of record.  A soldier does not have an automatic right to Transition PTDY.  It must be requested by the soldier and approved or disapproved by the commander.  There is no provision for a soldier to receive pay and benefits in lieu of Transition PTDY.

9.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

___ls____  __bl____  ___ja_____  DENY APPLICATION

		    Karl F. Schneider
		    Deputy Assistant Secretary
    Army Review Boards Agency

INDEX

CASE ID	AR2000041919	
SUFFIX		
RECON		
DATE BOARDED	20010201	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  128.02	Travel Pay	
2.		
3.		
4.		
5.		
6.