MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           16 April 2002      
	DOCKET NUMBER:   AR2001065130

	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	
	Ms. Wanda L. Waller		Analyst	

  The following members, a quorum, were present:

	Ms. Irene N. Wheelwright		Chairperson	
	Ms. Melinda M. Darby		Member	
	Mr. John T. Meixell		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:  That he be paid per diem for temporary duty (TDY) for the period 24 February 1992 through 13 May 1992.  

APPLICANT STATES:  In effect, that he is the victim of substantiated racial discrimination by the “CID” [correctly known as Criminal Investigation Command] and is the only person who has not been paid TDY per diem.  He contends that he and two other warrant officers were officially assigned to the Hanau Military Community and were ordered to report to the Frankfurt “CID” each day for work, which was located in the Frankfurt Military Community.  He states that the three warrant officers drove each day from Hanau to Frankfurt and returned to their official duty stations where their families remained.  He contends that there was nothing voluntary, to him, about the direct order to report to Frankfurt “CID” for work.  He goes on to state that the two other warrant officers were paid TDY per diem.  In support of his letter, he submits information from the Defense Finance and Accounting Service (DFAS) that his claim for travel payment was denied; DD Forms 1351-2 (Travel Voucher or Subvoucher) for the period 
24 February 1992 through 13 May 1992; DD Form 1610, dated 31 March 1992; a letter, dated 10 January 2001, from the Board for Correction of Military Records; DD Form 149 (Application for Correction of Military Records), dated 31 July 2000; a request for reconsideration, dated 31 July 2000, with enclosures outlined in this request.          

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

On 31 July 1998, the applicant retired in the rank of Chief Warrant (CW) Officer Three after completing 20 years of active duty. 

At the time in question, the applicant was serving on active duty as a special agent in the rank of CW2 in Germany.

The applicant filed a DD Form 1351-2 (Travel Voucher or Subvoucher), dated
4 December 1995.  This voucher claims travel between Hanau, Germany, and Frankfurt, Germany, for the period 24 February 1992 through 13 May 1992.  There are no TDY orders to support the travel and or per diem claimed. 

In 2001, the applicant submitted a claim to DFAS requesting per diem for TDY during the period 24 February 1992 through 13 May 1992.  On 7 November 2001, the Deputy Director, Systems and Procedures Travel Pay Services at DFAS, Indianapolis, Indiana, determined that there are no per diem entitlements payable for the travel claimed and denied the applicant’s request.  

The Deputy Director, Systems and Procedures Travel Pay Services at DFAS indicated that the applicant’s request was denied essentially because there were no travel orders issued and per diem is not paid for local travel.  This letter also indicates that the applicant was paid transportation (mileage) for the 30-mile round trips from Hanau to Frankfurt during the period 24 February 1992 through 13 May 1992.

The applicant’s records contain a copy of the Army Board for Correction of Military Records case AR1999030529.  The case summary states that the applicant appealed three Officer Evaluation Reports (OER) to the Officer Special Review Board (OSRB) based on racial discrimination.  The OSRB noted that racial discrimination and preferential treatment was substantiated in the applicant’s case and, as a result, the OSRB removed two of the three OERs and found that there was no justification to amend or remove the remaining OER.    

The applicant provided a copy of an e-mail, dated 11 February 1998, from an official in the Office of the Assistant Secretary of the Army for Financial Management.  This e-mail points out that the applicant was not authorized TDY based on Comptroller General decisions.   

Paragraph U4102 of the Joint Federal Travel Regulation states that a member is not entitled to per diem for travel or TDY performed within the limits of the permanent duty station.  

Paragraph 4100 of the Joint Federal Travel Regulation states that a per diem allowance is designated 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 permanent duty station.

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.  The Board considered the applicant’s contention that he was the victim of racial discrimination and disparate treatment in regard to payment of per diem during the period 24 February 1992 through 13 May 1992.  The Board noted the action of the OSRB which removed two OERs based on documented racial discrimination and preferential treatment.  However, DFAS has opined in the applicant’s case that there is no entitlement to per diem.  An official of the Assistant Secretary of the Army for Financial Management has also pointed out that the applicant was not authorized TDY based on Comptroller General decisions.  Based on these facts, the Board rejects the applicant’s contention that he was not entitled to per diem as a result of racial discrimination.        

2.  The Board considered the applicant’s request that he be paid per diem for TDY for the period 24 February 1992 through 13 May 1992.  However, there is no evidence of record available to the Board, and the applicant has provided no evidence, which shows that he was issued TDY orders to support this travel and or per diem claimed.  
3.  The Board noted that the letter from DFAS, dated 7 November 2001, states the applicant was paid transportation (mileage) for the 30-mile round trips from Hanau to Frankfurt during the period 24 February 1992 through 13 May 1992.   

4.  Based on the foregoing and in accordance with the governing regulation, a member is not entitled to per diem for travel or TDY performed within the limits of the permanent duty station.  Therefore, there is no basis for granting the applicant’s request.   

5.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

6.  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

INW____  MMD____  JTM____  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2001065130	
SUFFIX		
RECON		
DATE BOARDED	20020416	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	128.1400	
2.		
3.		
4.		
5.		
6.