PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           13 March 2001                   
	DOCKET NUMBER:   AR2000042857

	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:

	Ms. June Hajjar		Chairperson	
	Mr. Donald P. Hupman, Jr.		Member	
	Mr. John T. Meixell		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 allowed to collect variable allowance for housing/cost of living allowance (VHA/COLA) at the Hawaii rate beginning 15 August 1997.

3.  The applicant states that when he received orders sending him to the Officer Basic Course with subsequent assignment to Hawaii, he asked his Personnel Assistance Center noncommissioned officer in charge as well as his servicing Personnel Service Battalion if he could move his family to Hawaii in advance of his arrival.  He also asked if there would be any problems getting the new housing rates and COLA once he moved them.  Both agencies told him he could move his family prior to his arrival and that there would be no problems with getting the Hawaii rates.  In August 1997, he moved his family to Hawaii and leased an apartment there.  He completed all the paperwork to change the VHA rate and to start COLA for his family and took it to the Schofield Barracks, HI finance office.  He was told that everything was in order but since he had not signed in yet he should submit his paperwork at Fort Leonard Wood, MO.  He then submitted the paperwork at Fort Leonard Wood but was told he was not eligible for the VHA/COLA changes.  He was told to resubmit his paperwork when he got to Hawaii.  There, the same sergeant who helped him the first time started to help him again, but then a sergeant first class told him he was not authorized VHA/COLA.  He requested an exception to policy, as he had followed the advice of two subject matter experts and his Personnel Service Battalion.  He has suffered an out of pocket loss of $4,997.00, the difference in the rates paid in Washington and Hawaii.  He understands the Army cannot be held liable for every erroneous statement of advice given out but he feels that he did everything that was reasonable and prudent.  

4.  The applicant’s military records show that he enlisted in the Regular Army on 17 September 1991.  He never served overseas.  He was commissioned out of officer candidate school and entered active duty as a second lieutenant on          5 June 1997.  Orders dated 2 July 1997 ordered him to report to the Officer Basic Course at Fort Leonard Wood, MO on 28 September 1997 with a follow-on assignment to Schofield Barracks, HI with a reporting date of 12 March 1998.  

5.  The applicant moved his family from Fort Lewis, WA to Hawaii on 15 August 1997.  He first submitted a request for exception to policy to receive VHA/COLA on 30 March 1998 to the Defense Office of Hearings and Appeals, Claims Appeals Board.  He was informed that he had to submit his claim through his finance office.

6.  On 22 December 1998, the applicant submitted his request for exception to policy through his servicing finance office.  The commander of the 125th Finance Battalion and his acting battalion commander recommended approval of his request.  Both noted that the applicant took reasonable steps to verify his entitlement to VHA/COLA at Hawaii rates only to discover that the subject matter experts he consulted gave him erroneous information.  

7.  The Defense Office of Hearings and Appeals disallowed the applicant’s claim.
That office cited the Joint Federal Travel Regulations (JFTR), volume 1, paragraph U8002-E, which states “…the VHA prescribed for a member’s PDS (permanent duty station) is used in determining the member’s entitlement for a member with dependents whether the dependents reside with the member or at a different location.”  Paragraph U8005-A was cited, which states “…entitlement to a VHA at the rate prescribed for a particular PDS begins on the day the member reports at that PDS.  Similarly, except as otherwise provided in this paragraph, VHA at the rate paid at the member’s old PDS will continue through the day before the day the member reports at the new PDS in connection with a transfer, but entitlement to the allowance will be reduced by the number of travel days allowed under par. U5160 for direct PCS travel.”  In other words, his VHA was not payable at the rate for Schofield Barracks, HI until he reported there.  The rate payable for the period prior to that date was the rate for Fort Lewis, WA. Concerning his claim for COLA, that office cited paragraph U9151-A, which states that “COLA entitlement generally starts on the day a member reports to a new PDS, or when dependents arrive in advance of their sponsor, as specified  in par. U9157-B.”  Paragraph U9157B3 states “…Except as provided in par. U9301-D (member’s PDS declared a dependent restricted tour area…), entitlement begins on the day dependents arrive if on or after the effective date of the PCS orders, or the date the member departs CONUS, whichever is later.”  Thus, he became eligible for COLA at the Schofield Barracks rate when he departed Fort Leonard Wood, MO. That office further stated that it was most unfortunate that he was provided with erroneous information concerning VHA and COLA; however, the well-established rule is that the Government is not bound or made liable by the erroneous advice or actions of its agents, even if given or made in the course of their official duties. 

8.  In email correspondence with the applicant, the Office of the Deputy Chief of Staff for Personnel, informed the applicant that any change in his original orders would not change the facts in his case, thus payment would not be authorized.

9.  Title 10, U. S. Code, section 1552, the law which provides for the Board, states that “The Secretary may pay, from applicable current appropriations, a claim for the loss of pay, allowances, compensation, emoluments, or other pecuniary benefits, or the repayment of a fine or forfeiture, if, as a result of correcting a record under this section, the amount is found to be due the claimant on account of his or another’s service in the Army, Navy, Air Force, Marine Corps or Coast Guard, as the case may be.”

CONCLUSIONS:

1.  The Board notes that there is no Government error in this case.  The JFTR prohibits the payment of VHA/COLA in the circumstances of the applicant’s case and the Government is not liable for erroneous information given out by its agents.

2.  However, the Board believes that the applicant moved his family to Hawaii in advance of his assignment there upon what he believed was informed guidance from personnel sources at his home station of Fort Lewis, WA.  The applicant was a commissioned officer but he had just been commissioned out of officer candidate school.  He did have several years of prior enlisted active duty but he had never served overseas and so had no prior experience of what may or may not have been authorized by the JFTR in the way of VHA/COLA.  The Board concludes that he moved his family in good faith and that as a matter of equity he should receive the housing entitlements he would have received had he moved to Hawaii with his family on 15 August 1997.

3.  The applicant’s military records may be corrected to show Orders 183-007, Headquarters, I Corps and Fort Lewis dated 2 July 1997, were amended to include the sentence “If an official Army agent informs you that you may move your family to Hawaii in advance of Hawaii becoming your PDS and that VHA/COLA based upon that move would be payable under the JFTR and it is later discovered that it is not payable for reasons of law or regulation, the Army Board for Correction of Military Records may pay the housing allowances, at its sole discretion, in accordance with Title 10, U.S. Code, section 1552.”  This would allow the Board to invoke that provision and pay him the amount of VHA/COLA he would have received had Hawaii become his PDS on 15 August 1997.

4.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by:

     a.  amending Orders 183-007, Headquarters, I Corps and Fort Lewis dated    2 July 1997 to include the sentence “If an official Army agent informs you that you may move your family to Hawaii in advance of Hawaii becoming your PDS and that VHA/COLA based upon that move would be payable under the JFTR and it is later discovered that it is not payable for reasons of law or regulation, the Army Board for Correction of Military Records may pay the housing allowances, at its sole discretion, in accordance with Title 10, U.S. Code, section 1552.”  
     b.  That as a result of the foregoing correction and in accordance with Title 10, U. S. Code, section 1552, the Defense Finance and Accounting Service shall remit payment to the applicant the total amount of VHA/COLA to which he would have been entitled had Hawaii become his PDS on 15 August 1997. 

BOARD VOTE:  

__jh____  __dph___  __jtm___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			June Hajjar
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000042857	
SUFFIX		
RECON		
DATE BOARDED	20010313	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	128.14	
2.		
3.		
4.		
5.		
6.