RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-02407 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: He receive a retroactive 180-day per diem waiver for the period 29 April 2010 to 31 May 2010. _________________________________________________________________ APPLICANT CONTENDS THAT: His home of record (HOR) is outside the commuting distance and the orders should have stated “non-commute” status to allow for per diem and lodging. A 180-day per diem waiver was needed to process his order from 29 April 2010 to 30 September 2010 due to the restrictions of receiving per diem in one location for more than 180 days. A waiver was submitted in May 2010 due to guidance given by NGB/A1 that orders were needed to process the request. In support of his appeal, the applicant provides copies of Special Orders R-X000114, and R-X000202; memorandums from the 102 IG/CV, 102 IW DETCO, SAF/MRM; excerpts from the Air National Guard Reserve Order Writing System (AROWS); the 102 Intelligence Wing Instruction 65-101, Financial Management Office, Commuting Distance, with attachment; and an excerpt from the Joint Federal Travel Regulation (JFTR), Volume I. The applicant's complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The applicant is currently serving as an airman first class (E-3) in the Air National Guard (ANG) at Otis Air National Guard Base (ANGB), Massachusetts. The remaining relevant facts pertaining to this application are contained in the letters prepared by the appropriate offices of the Air Force, which are attached at Exhibits B and D. _________________________________________________________________ AIR FORCE EVALUATION: NGB/A1PS recommends denial of his request for a retroactive 180-day per diem waiver for the period 29 April 2010 to 31 May 2010. The applicant’s unit changed the commute status in order to publish his orders and stated this was done due to guidance provided by NGB/A1. However, NGB/A1 notes their guidance is in accordance with that of SAF/MR and HAF/A1, in that per diem waiver requests will accompany the current/last order of the service member. A future order should never be submitted because that is the purpose of the per diem waiver. NGB/A1 further notes the applicant incurred a financial loss; however, his commander has processed numerous per diem waivers in the past for many members in the unit. The commander and his staff are aware of the current SAF/MR policy and criteria, as well as the importance of submitting waiver packages in a timely fashion to allow for processing. The complete A1PS evaluation is at Exhibit B. NGB/A1PS concurs with the NGB Subject Matter Expert (SME) and recommends denial of the requested relief. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: On 27 August 2010, a copy of the Air Force evaluation was forwarded to the applicant for review and comment within 30 days. As of this date, no response has been received by this office (Exhibit C). _________________________________________________________________ ADDITIONAL AIR FORCE EVALUATION: SAF/MRM recommends denial. MRM states that per JFTR, Volume I, paragraph U7150 A4b(3), a member called to active duty away from home for more than 180 days, for other than training purposes, may be authorized per diem for the entire period if the call to active duty/extension is required by unusual circumstances, emergency circumstances, contingency operations, or exigencies of the service concerned as determined by the Secretarial process. As of 22 March 2007, the Secretary of the Air Force delegated to SAF/MRM those certain decision authorities under the JFTR and JTR. Commanders must obtain the per diem waiver before orders are issued or amended since the JFTR does not provide for retroactive approval. Members without an approved waiver or permanent change of station (PCS) assignment should be returned to their old station and not be allowed to continue work at the current location without temporary duty (TDY) and transportation allowances. SAF/MRM Policy Memos of 19 August 2009 and 11 Febraury 2011, both indicate that commanders must obtain per diem waivers (over 179 days) before orders are issued or amended. MRM states that after a review of the available evidence, they note the applicant’s orders were changed by the orders clerk from “will not commute” to “will commute” to allow the applicant to continue on orders until a per diem waiver could be approved. The unit’s understanding was that orders must be issued before a per diem waiver could be submitted/approved. On 25 March 2010, orders were approved from 29 March – 30 September 2010, stating member’s residence is “outside local commuting distance, but member will commute daily – no per diem authorized.” On 11 May 2010, SAF/MRM approved continuation of per diem allowances beyond 180 days, with dates of 1 June 2010 – 20 September 2010. On 7 June 2010, the order was modified to “member’s residence is outside local commuting distance and will not commute Otis ANG Base, MA.” (29 March – 30 September 2010. A per diem waiver to exceed 180 days at one location from 1 June – 30 September 2010 was approved. The complete MRM evaluation is at Exhibit D. _________________________________________________________________ APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: On 11 April 2011, a copy of the SAF/MRM evaluation was forwarded to the applicant on 11 April 2011 for review and comment within 14 days. As of this date, no response has been received by this office (Exhibit E). _________________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was timely filed. 3. Sufficient relevant evidence has been presented to demonstrate the existence of an injustice warranting corrective action. After reviewing the applicant’s submission and the evidence of record, we believe relief is warranted. It appears the applicant’s unit erroneously prepared and amended orders before obtaining the required per diem waiver. NGB/A1PS indicates the applicant’s unit should have been aware of the policy and criteria as well as the importance of submitting the waiver package in a timely manner. Notwithstanding this, it appears the applicant is being held accountable for actions beyond his control. It is not clear that the applicant understood when his orders were amended to state that he would commute, he would not be paid per diem. As such, no complicity on the part of the applicant to erroneously extend his TDY has been established. In view of the foregoing, and to preclude the possibility of injustice to the applicant, we believe any doubt in this matter should be resolved in his favor. Accordingly, we recommend his records be corrected as indicated below. _________________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show that he applied for a per diem waiver for the period of 29 April 2010 to 31 May 2010 and his request was approved by competent authority. _________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2010-02407 in Executive Session on 21 June 2011, under the provisions of AFI 36-2603: All members voted to correct the records, as recommended. The following documentary evidence was considered: Exhibit A. DD Form 149, dated 16 Jun 10, w/atchs. Exhibit B. Letter, NGB/A1PS, dated 23 Aug 10, w/atch. Exhibit C. Letter, SAF/MRBR, dated 27 Aug 10. Exhibit D. Letter, SAF/MRM, dated 1 Apr 11. Exhibit E. Letter, AFBCMR, dated 11 Apr 11. MEMORANDUM FOR THE CHIEF OF STAFF Having received and considered the recommendation of the Air Force Board for Correction of Military Records and under the authority of Section 1552, Title 10, United States Code (70A Stat 116), it is directed that: The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show that he applied for a per diem waiver for the period of 29 April 2010 to 31 May 2010 and his request was approved by competent authority.