DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-51 00

WJH
Docket No. 10334-05
26 Feb 07

This is in reference to your application for correction of your naval record pursuant to the provisions of 10 USC 1552.

A three-member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 23 February 2007. Your allegations of error and injustice were reviewed in accordance with administrative regulations and procedures applicable to the proceedings of this Board. Documentary material considered by the Board consisted of your application, together with all material submitted in support thereof, your naval record and applicable statutes, regulations and policies. In addition, the Board considered the two advisory opinions furnished by CMC ltr 5400 MPO 40 of 6 Oct 05 and CMC ltr RFF-F10 7200 of 13 Apr 06, copies of which were previously provided to you for review and response. The Board also considered your response (through counsel) to those two advisory opinions.

After careful and conscientious consideration of the entire record, a majority of the Board found that the evidence submitted was insufficient to establish the existence of probable material error or injustice.

The Board fully understood and considered the fact that the service generated the overpayment by paying you the per-diem allowance over an extended period of time based on your monthly claims (compounding their error with each payment). They also took notice of and understood the various per-diem provisions contained in the several sets of orders and modifications that you provided covering periods between July 1999 and March 2004. They reviewed carefully the CMC letter RAM-7 of 12 Jun 00 and fully understood and appreciated your contention that such letter “set precedent for subsequent payments over a four year period.” The Board considered these factors and all of the other factors you raised in your application.

Notwithstanding the above, however, the Board found, as did DFAS and DOHA previously, that you were authorized and paid the per-diem allowance in error. They agreed with the Claims Appeal Board that “per—diem” is “intended to reimburse a member for the lodging and meal expenses he incurs when he is not living at home.” They also found that you did not produce sufficient evidence that the funds that were ultimately subjected to recoupment were actually spent in detrimental reliance for the purposes intended. They agreed with the reasoning of the Claims Appeal Board that “in the absence of proof that (you) spent the erroneous per-diem payments for their intended purpose, waiver of the remaining $17,351.26 is not appropriate.” Thus they found no error or injustice in the action to recoup the $17,351.26 in erroneous per-diem payments.

Accordingly, your application has been denied. The names and votes of the members of the panel will be furnished upon request.

It is regretted that the circumstances of your case are such that favorable action cannot be taken. You are entitled to have the Board reconsider its decision upon submission of new and material evidence or other matter not previously considered by the Board. In this regard, it is also important to keep in mind that a presumption of regularity attaches to all official records. Consequently, when applying for a correction of an official naval record, the burden is on the applicant to demonstrate the existence of probable material error or injustice.

Sincerely,

2

DEPARTMENT OF THE NAVY
HEADQUARTERS UNITED STATES MARINE CORPS
3280 RUSSELL ROAD
QUANTICO, VA 22134-5103

				IN REPLY REFER TO:
										5400
										MPO-40
										Oct 8 2005

MEMORANDUM FOR EXECUTIVE DIRECTOR,
BOARD FOR CORRECTION OF NAVAL RECORDS

Subj:	BCNR APPLICATION ICO
	Ref:	(a)	JFTR U7150
		(b)	JFTR U4102
		(c)	JFTR U4149

1.	Based on a review of this case, no entitlement to per diem existed during his period of service from 16 Jun 99 to 15 Sep 00.	Per reference (a), SNO demonstrated the ability to commute daily from his PLEAD (place entered active duty) to his duty location, thus per diem was not authorized.

2.	The activation orders authorized per diem; however, the Marine Corps cannot be liable for the erroneous actions of its military members in the performance of their official duties. Members have the opportunity for redress through DFAS and DOHA. SNO sought such redress and DFAS and DOHA did not find in his favor.

3.	The command of SNO likewise authorized per diem in this case, citing that the authorization was granted based on unusual or emergency circumstances of the exigencies of the duty location. However, per reference (b), there has been no showing that SNOs duties were of an unusual or exigent nature.

4.	SNO requested reimbursement for proportional meals; however, per reference (c) SNO was not required to incur such expenses and thus no entitlement to this portion of per diem was authorized.

5.	There has been no additional supporting information provided by SNO to support this follow-on waiver of indebtedness request. The information currently on file is the same information that DFAS and DOHA relied upon in denying SNOs previous requests to waive his indebtedness.

6.	Based on the foregoing, MP Division recommends against correction and removal of this record in the case of SNO.
	
	7.	Point of contact, M	, MPO-40, DSN 278-9387.

DEPARTMENT OF THE NAVY
HEADQUARTERS UNITED STATES MARINE CORPS
3000 MARINE CORPS PENTAGON
                                    WASHINGTON, DC 20350-3000	

	                              IN REPLY REF~ TO
		RFF-F1~
	7200
	1\	132006
MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF NAVAL RECORDS

Subj:	BCNR APPLICATION IN TI-IF CASE OF

1.	We have been requested to provide an advisory opinion on s application requesting waiver of indebtedness for travel entitlements.
	
	2.	Review of waiver/remission package for travel entitlement indicated that was originally indebted
in the amount of $22,174.88. The Defense Office of Hearings’ and Appeals (DOIIA) letter, dated 2 November 2005, stated that was granted a waiver of $4,823.62 and denied a waiver for the remaining $17,351.26. We do not support the DORA action. It is our recommendation that the remaining debt of $17,351.26 be waived. The member was not aware~ nor do we ,tha. he should have been aware that he was receiving erroneous travel Per Diem. We share the opinion of his command and strongly urge his record be corrected to show that this debt was waived in its’ entirely. This action corrects the error and removes the inequity in this case.
	
	3.	Point of contact advisory opinion is Master Sergeant at (703) 614-4981 or e-mail

By diection