IN THE CASE OF: BOARD DATE: 17 May 2016 DOCKET NUMBER: AR20140020482 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ___x____ ___x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 17 May 2016 DOCKET NUMBER: AR20140020482 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. ___________x______________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. IN THE CASE OF: BOARD DATE: 17 May 2016 DOCKET NUMBER: AR20140020482 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests a waiver of a $46,857.54 debt owed to the U.S. Treasury for overpayment of per diem (travel entitlements and/or travel advances) from July 2007 to March 2008. 2. The applicant states, in effect, between 1 July 2007 and 31 March 2008, he received $46,857.54 in per diem payments. The Defense Finance and Accounting Service (DFAS) determined that since the applicant commuted locally from his family residence in Chantilly, VA, to his duty location in Chantilly, VA, he was not entitled to receive per diem. DFAS concluded his debt was valid. He disagrees and argues: * he was on active duty as a member of the Reserve Component (RC) from 6 October 2001 to 30 June 2007 * he was reassigned on a permanent change of station order (PCS) from his home of record in Melbourne, FL to Fort Belvoir, VA * while stationed at Fort Belvoir, he bought a house in Chantilly, VA, in September 2004 but he maintained his home in FL, and remained in a PCS status at Fort Belvoir * he was recruited in 2007 to serve an active duty tour with the National Reconnaissance Office (NRO) but was given conflicting guidance whether to have or not to have a break in service before beginning this new tour of duty * he was issued orders to active duty beginning on 1 July 2007, without a break in service, based on the guidance given by various Headquarters, Department of the Army administrative officials * he was ordered to active duty/mobilized from his home in Chantilly, VA, thus putting him in a temporary change of station (TCS) status * due to fluid policy at the time, he and many RC Soldiers encountered personnel, finance, legal, and medical challenges * it took DFAS personnel 8 months to audit his finance record and determine an overpayment of per diem was paid during a period he was not entitled to receive per diem – this overpayment is his debt * he completed more than 5 years of continuous active duty on mobilization orders exceeding established administrative standards * as his ?mobilization clock? expired, his next set of orders should be published in a TCS status * as he did not have a break in active service, his 2007 orders should have reflected "place entered active duty (PLEAD) as Melbourne, FL; not Chantilly, VA? * the finance office contacted him several months later to explain that he was not authorized per diem (calendar years 2007-2008) stating as he owned his home in Chantilly, VA, he could not draw per diem from his home (Chantilly, VA) to his work place in Chantilly, VA * DFAS staff offered if his TSC orders were amended to read "administrative error and VOCO [verbal orders of commanding officer] and date," his overpayment of per diem could be solved favorably * he did not defraud the Government * he is aware of several Soldiers who willfully defrauded the Government who in turn received ?blanket waivers of their debt? * upon investigation, a special agent acknowledged he had no criminal intent and that his administrative issues were complicated * multiple administrative errors were made by Government employees * the administrative processes and technologies used were ineffective * mobilization officers and staff from the Army Operations Center provided bad advice concerning his multiple mobilization orders * mobilization policies in 2007 were constantly changing though he diligently checked to ensure he was adhering to the latest policies and guidance * he was issued active duty orders for July 2007 but they were cut with the wrong addresses and then amended multiple times, with incorrect addresses * the law allows for a waiver of a debt that arose from erroneous payment of pay and allowances, if collecting this payment is against equity and good conscious and not in the best interest of the United States * DFAS told him that a Service member is not entitled to a waiver as a matter of legal right when a Service member receives an overpayment resulting from an administrative error * he is a Soldier with a high degree of integrity, he has done nothing wrong, he complied with the information provided, he checked and double checked the information to ensure he was within the rules before his mobilization order was issued and he subsequently submitted travel vouchers for payment of per diem * it has been a 6-year process since notification of the debt, he and his family will suffer severe financial hardship should he be required to repay the debt * his debt should be waived based on multiple administrative errors on the part of Government officials 3. The applicant provides: * DFAS debt notification for TSC overpayment, dated 19 February 2009 * commander's recommendation letter to DFAS, dated 14 May 2009 * applicant’s DA Form 2823 (Sworn Statement), dated 24 October 2013 * statement from the mobilization officer to DFAS, dated 7 September 2012 * self-authored memorandum, dated 8 September 2014 * AHRC Form 249-E (Chronological Statement of Retirement Points), dated 9 December 2014 * multiple email exchanges * DFAS Claims Appeals Board Reconsideration Decision, dated 30 September 2013 * multiple sets of orders and amendments from 2001 to 2014 ordering him to active duty * General Accounting Office (GAO) Report Number GAO-04-990T, related to pay problems experienced by mobilized Reserve Soldiers CONSIDERATION OF EVIDENCE: 1. With prior enlisted service in the U.S. Navy, the applicant enlisted in the Oklahoma Army National (OKARNG) on 26 June 1991. He completed officer candidate school at the Oklahoma Military Academy. He was honorably discharged from the OKARNG as an enlisted Soldier on 31 July 1992 to accept an appointment as a commissioned officer. 2. He was appointed as a Reserve commissioned officer of the OKARNG and executed an oath of office on 1 August 1992. His home of record was established as Oklahoma City, OK. He completed the Signal Officer Basic Course. 3. In 1993, while overseas in Germany, he tendered his resignation from the OKARNG and requested transfer to the U.S. Army Reserve (USAR). Accordingly, he was honorably separated from the ARNG on 1 September 1993 and transferred to the USAR Control Group (Annual Training). 4. Between 1993 and 1996, following multiple transfers between the USAR Control Group and/or troop program units (TPU), he was assigned to the 311th Theater Signal Command at Fort Meade, MD, effective 24 July 1996. Orders C-07-637851 issued by the U.S. Army Reserve Personnel Center show his mailing as Woodbridge, VA. Later he transferred to the USAR Control Group. 5. In or about November 1999, he was transferred from the USAR Control Group (Reinforcement) and assigned to the U. S. Army Land Information Warfare Activity, Intelligence and Security Command (INSCOM) at Fort Belvoir, VA, as a drilling individual mobilization augmentee (IMA) officer. His orders listed his residence in Woodbridge, VA. 6. On 19 December 2000, he was voluntarily reassigned from INSCOM (Fort Belvoir, VA) to the USAR Control Group (Reinforcement). The orders listed his address in Woodbridge, VA. 7. On 2 January 2001, he was transferred from the USAR Control Group (Reinforcement) back to INSCOM, Fort Belvoir, VA. The orders listed his residence in Sierra Vista, AZ. 8. On 5 October 2001, Headquarters, 99th Regional Support Command, Oakdale, PA, published Mobilization Orders M-278-0006 ordering him to active duty from Melbourne, FL, for assignment to the Land Information Warfare Activity, INSCOM, Fort Belvoir, VA for 730 days. The orders listed the place entered on active duty (PLEAD) and his home of record as "Melbourne, FL." (The orders do not site a specific U.S. Code ordering him to active duty in a mobilized status.) The orders stated the movement of household goods and family members was not authorized and Government quarters and mess ?will be used.? 9. On 22 October 2001, U.S. Army Garrison, Fort Belvoir, VA, published Orders 295-7 ordering him reassigned and/or deployed in support of Operation Noble Eagle, beginning on 9 October 2001, for 365 to 730 days. The orders stated: * it is not a PCS move and normal PCS allowances were not authorized to include the relocation of family * basic allowance for housing (BAH) is based on the permanent duty station * per diem, lodging, meals and incidental expenses were authorized based on the daily rates as prescribed for the Continental United States (CONUS) or in the area of operations * interim travel vouches ?need to be filed every 30 days? 10. On 12 September 2003, the U.S. Total Army Personnel Command (now known as U.S. Army Human Resources Command (HRC)) published Orders A-09-300976 ordering him to active duty from Melbourne, FL, in a Contingency Operations-Temporary Tour of Active Duty (CO-TTAD) in support of Operation Noble Eagle for 179 days, beginning on 6 October 2003, assigning him to the 1st Information Operations Command (LAND), Fort Belvoir. The orders listed his home of record as Melbourne, FL, and stated: * service member is on station; one way transportation to home of record at end of tour is authorized * he would be performing TTAD in current Reserve grade, under the provisions of Title 10, U.S. Code, section 12301(d) and section 12314 11. On 31 March 2004, HRC published Orders T-03-403538 ordering him to active duty for training (ADT) for 90 days beginning on 2 April 2004, with assignment to 1st Information Operations Command, Fort Belvoir, VA. These orders listed his home as Melbourne, FL. 12. On 29 June 2004, Headquarters, 99th Regional Readiness Command, Coraopolis, PA published Orders 04-181-0006 voluntarily reassigning him from his current assignment to the USAR Control Group (Reinforcement), St. Louis, effective 29 June 2004. These orders listed his home as Melbourne, FL. 13. On 30 June 2004, HRC published Orders A-06-406383 ordering him to active duty from Melbourne, FL, to fulfill active duty requirements in accordance with Contingency Operations-Active Duty Program (CO-EAD) in support of Operation Noble Eagle for 2 years, beginning on 1 July 2004 and ending on 30 June 2006. The orders: * assigned him from the USAR Control Group (Reinforcement) to the 1st Information Operations Command (LAND), Fort Belvoir * ordered him to active duty from Melbourne, FL and listed his home of record as Melbourne, FL 14. On 30 June 2004, HRC issued an amendment to Orders A-06-406383 to show he was assigned to 1st Military Intelligence Command (Information Operations), Fort Belvoir, VA, for 1 year vice 2 year, ending on 30 June 2005. Additionally, on 8 July 2004, HRC issued an amendment to Orders A-06-406383 to show a different type of training code, in direct support of Operation Iraqi Freedom, and with an amended fund cite. 15. On 17 May 2006, HRC issued an amendment to Orders A-06-406383 changing the duration of the orders from 1 year to 3 years with an ending date from 30 June 2006 to 30 June 2007. He remained assigned to Fort Belvoir. His residence was listed at Melbourne, FL. 16. On 6 July 2006, HRC issued his promotion orders promoting him to major effective 29 June 2006. The orders listed his address in Chantilly, VA. 17. On 24 March 2007, HRC published Orders A-06-406383R resending the unexecuted portion of Orders A-06-406383, dated 30 June 2004, effective 26 March 2007. 18. Furthermore, on 27 March 2007, HRC published Orders A-03-707442 ordering him to Active Duty for Operational Support (ADOS), from Chantilly, VA, for 3 months and 4 days beginning on 27 March 2007 and ending on 30 June 2007. The orders listed his PLEAD as Chantilly, VA, and listed his home of record as Chantilly, VA. 19. On 2 July 2007, HRC issued an amendment to Orders M-06-701191 changing the PLEAD from Chantilly, VA to Melbourne, FL, and the accounting classification. 20. On 9 July 2007, U.S. Army Garrison, Fort Belvoir published Orders 190-0006 ordering his release from active duty effective 30 June 2007. These orders listed his home of record as Chantilly, VA, and his PLEAD as Chantilly, VA. He was honorably released from active duty on 30 June 2007. His DD Form 214 (Certificate of Release or Discharge from Active Duty) for this period shows his home of record as Chantilly, VA. He had served 5 years, 8 months, and 25 days of continuous active duty. 21. Prior to and in connection with his release from his active duty, on 29 June 2007, HRC published Orders M-06-701191, releasing him from his current RC status and ordering him to report to the 742nd Military Intelligence Battalion, Fort Meade, MD, effective 1 July 2007, for Partial Mobilization-Operation Enduring Freedom for a period of 365 days. The orders ordered him to active duty (PLEAD) from Chantilly, VA, and listed his home of record as Chantilly, VA. 22. On 2 July 2007, HRC published an amendment to Orders M-06-701191 changing the address/PLEAD from Chantilly, VA to Melbourne, FL, and the accounting classification. 23. On 11 January 2008, HRC issued another amendment to Orders M-06-701191 changing the address/PLEAD from Melbourne, FL, back to Chantilly, VA, and the accounting classification/fund cite. 24. On 5 February 2008, HRC issued another amendment to Orders M-06-701191 changing the address/PLEAD back to Melbourne, FL, and the accounting classification/fund cite. 25. On 2 May 2008, HRC published Orders A-05-808264, ordering him to Active Duty for Operational Support (ADOS) for 365 days, ending on 29 June 2009. He was assigned to the USAR Control Group (Reinforcement) and attached to the 742nd Military Intelligence Battalion, Fort Meade, MD, with duty at Chantilly, VA. The orders ordered him to active duty (PLEAD) from Melbourne, FL and listed his home of record as Melbourne, FL. 26. On 11 December 2008, after his debt surfaced and subsequent to several; back and forth emails with various officials of the Army G-1/G-3, HRC, and mobilization officer, an official (Contingency Travel Operations Supervisor) at the DFAS informed him that: a. The Joint Federal Travel Regulations (JFTR) implement the federal statutes governing travel. They have the force and effect of law. Chapter 7, paragraph U7150, provides the primary entitlement guidance for Reserve component members. It is important to note that the travel rules for per diem purposes and the rules on BAH are substantially different. One cannot determine BAH entitlement by using the travel rules, and vice versa. The official would address the travel portion of the issue. If that raises questions on the BAH entitlement, the applicant was referred to another official who was the BAH subject matter expert. b. While on duty under a PCS order, he purchased a home in Chantilly, VA That was fine. He could do that. He was on PCS orders and could live wherever his command allowed. It is not unusual for members on PCS orders to purchase a home at their permanent duty station (PDS). When his PCS tour ended, it was his choice what to do with the home at that point and the government had no say in what he did with the home. It was his responsibility regardless of where he went next. c. The JFTR, paragraph U7150, provides that the entitlements when a Reserve member is called/ordered to active duty stem from the placed from which called or ordered to active duty (the PLEAD) or the member's home of record (HOR). The critical factor is the address on the orders. If the orders reflect a different address than the home of record listed on the official personnel records, that location is the PLEAD for that set of orders, and the specific entitlements stem from that address. d. The Comptroller General has held that entitlements cannot be increased or decreased after the fact unless there is clearly an error on the face of the order, and something definitely intended was administratively omitted or there was a clear administrative error on the face of the orders. In such a case, the amended order to increase/decrease entitlements must clearly indicate that an error was made and the amended order is to correct that error. e. The applicant’s orders of June 29, 2007, called/ordered him to active duty from his Chantilly, VA, residence. The Chantilly, VA address was his PLEAD, and the location from which his entitlements were determined. The June 29 2007 orders stated the duty site as Fort Meade, MD. Chantilly, VA, is in the Fort Meade, MD local area. Fort Meade uses the local commuting area policy that the Secretary of Defense issued for the National Capital Region. There are no travel and transportation entitlements when the member commutes daily from the home/PLEAD to the duty station. Because he commuted from the Chantilly, VA, home to his duty station, there are no travel entitlements based on this order. f. However, if an amended order is prepared, changing the address listed from the Chantilly, VA, address to the Florida address, and the amendment contains the statement that the change is an administrative correction of an error on the original order, then the entitlements will stem from the Florida address instead of the Virginia address. Because this amendment would be issued after the travel has already been done, it would have to contain a VOCO date before the travel actually started. Upon receipt of the amended order with the administrative correction and VOCO verbiage, the applicant would be eligible for travel and transportation entitlements for temporary duty (TDY). The DFAS official opined that the amended orders previously sent to DFAS were not enforceable because the orders did not contain the appropriate VOCO language from an appropriate authority nor was a VOCO date noted on the amended orders. g. The JFTR, paragraph U4137, addresses entitlements when a home is purchased for use by a Service member while on TDY orders. In the applicant’s specific situation, his Chantilly, VA residence was not purchased for use on TDY. He purchased it while he was on a PCS order. He is required to provide the upkeep on the home whether or not he lives there, and whether or not he was on official travel. After the PCS tour ended, the expenses of the home are not related to official travel, but are a function of his home ownership before he was called to active duty. When he stays in the Chantilly, VA, home, he is staying in his own home. As a matter of record, the applicant owns two homes. There is no official Government reimbursement authorized for a Service member to lodge in his own home. Therefore, no lodging was reimbursable. h. Per diem is comprised of three elements: lodgings, meals, and incidental expenses. The rules for lodging reimbursement and receipt of the meals and incidental expense portions of per diem are different. If he had stayed with friends/relatives, he would receive no lodging reimbursement, but may still be entitled to receive meals and incidental expenses portion of his authorized per diem. If he stayed in a summer home/second home and it is not his HOR/PDS, he would get no reimbursement of lodging expenses because there are none, he could potentially be eligible for meals and incidental expenses. i. In summary, without an amendment containing the VOCO and date of authorization, there are no entitlements to travel and transportation entitlements. If the amendment is provided, then there is no reimbursement for lodging, but he would be entitled to the meal and incidental expenses portion of per his per diem. 27. On 21 January 2009, HRC published an amendment to Orders A-05-808264, dated 2 May 2008, to authorize the applicant per diem in accordance with the JFTR (Authorized 55 percent per diem at locality rate during this active duty period.) Additional instructions included the applicant would remain in a PCS status in the National Capital Region at Chantilly, VA. The Service members will draw BAH for Chantilly, VA for this tour. Service member is authorized PCS back to Melbourne, FL at the end of the tour. 28. On 19 February 2009, by letter, an official at the DFAS-Indianapolis Travel Operations, Contingency Travel, dispatched a TCS Debt Notification to the applicant. While in a TCS status he received travel entitlements and/or travel advances, and upon completion of his travel, he filed a claim with Contingency Travel Operations for reimbursement. Upon processing and computation of his claim, it was discovered that he was overpaid on his prior tour placing him in debt to the Government for $46,857.54. The letter advised the applicant of his payment options, penalties for non-payment, interest, method of collection, and how to request a waiver of his debt. He was advised to send a waiver request to DFAS-Indianapolis and if he desired, he could file a DA Form 3508-R (Application for Remission or Cancellation of Debt) to the Commander, HRC. 29. There is no indication he submitted a remission request to HRC. Additionally, his waiver request appears to have been submitted through the Defense Military Pay Office, Fort Belvoir, VA to DFAS. A copy of his request is not available for review with this case. However, on 14 May 209, by memorandum, the Director of Military Pay Office at the Defense Military Pay Office, Fort Belvoir, recommended disapproval of the waiver and that the applicant must repay the entire amount. The response from DFAS to this waiver request is not available for review with this case. 30. On 2 May 2009, HRC published Orders A-06-917952, ordering him to active duty for Contingency Operation for Active Duty Operational Support (CO-ADOS) for 365 days, ending on 29 June 2010. He was assigned to the Air Force Activity, Arlington, VA with duty in Washington, DC. The orders ordered him to active duty (PLEAD) from Chantilly, VA , and listed his home of record as Chantilly, VA. 31. He was released from active duty on 30 June 2010. A DD Form 214 for this period of service is not available for review with this case. However, his records contain a DD Form 215 (Correction to DD Form 214) that corrected the net active service completed to 3 years (1 July 2007 to 30 June 2010). 32. He was again ordered to active duty from Chantilly, VA on 1 July 2010 and he was honorably released from active duty on 19 April 2011. His DD Form 214 shows his home of record as Chantilly, VA. 33. On 1 November 2012, HRC issued him a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter). The letter was mailed to his address in Chantilly, VA. 34. He also entered active duty on 19 November 2012, from Chantilly, VA. He was promoted to lieutenant colonel in June 2013 and his promotion order listed an address in Chantilly, VA. He was honorably released from active duty on 30 September 2015. His DD Form 214 shows his home of record as Chantilly, VA. 35. As of February 2016, the applicant is assigned to the 1st Battalion, 311th Regiment, Richmond, VA. 36. He provides a statement, dated 14 May 2009, from his commander, a colonel/pay grade O-6 who stated: * he had been made aware of the applicant's overpayment of per diem made during the 2007/2008 timeframe and that this debt created a financial hardship * the applicant is a responsible person and at no time did he attempt to defraud the Government, he simply followed the guidance and instructions given to him at the time * he remained vigilant in his efforts to address and resolve his debt by communicating with all those involved at the Army G-1/G-3, HRC, and DFAS * he has a high-level security clearance and is assigned to a critical position within the intelligence community * collecting this debt would result in a severe injustice and cause a tremendous hardship to the officer and his family 37. He also provides a statement from his 2007 Mobilization Officer. She states: * the applicant was serving with the 1st Information Operation Command when the National Reconnaissance Office (NRO) recruited him to serve a tour in 2007 * she and the applicant were given conflicting guidance regarding the orders that would reassign him to NRO as Army policies were fluid at the time * she proposed two sets of orders with different beginning dates; one set with a 30-day break in service and another without; the Army G-1 told her the applicant did not need a break in service to be mobilized * the Army G-1 validated the information that the applicant would be mobilized from his home in Florida putting him back in a TCS status * RC Soldiers encountered many personnel, finance, and medical problems at the time; the applicant's address in the system where the orders originated did not match his address in his personnel records * systems contained conflicting information which affected Soldiers' entitlements and eligibility to various benefits * the mobilization packet was correctly submitted with the correct duty location and applicant's address and the orders were corrected * the mobilization packet was then submitted to the Army G-3 as a TCS request and was approved as a TCS request; the first tour was a mobilization and the second was a CO-ADOS 38. On 30 September 2013, the Defense Legal Service Agency, Defense Office of Hearings and Appeals (DOHA) acted on the applicant’s request for reconsideration. He requested reconsideration of the appeal decision, dated 15 August 2013, DOHA Claim No. 2012-WV-10xxxx. In that decision, he was denied waiver of erroneous payments for $46,857.54. His request for reconsideration is denied and DOHA affirmed the August 2013 appeal decision. I 39. The Board requested and the Army G-1 provided an advisory opinion on 11 May 2016 in the processing of this case. An official at the Office of Compensation and Entitlements stated: a. After an extensive review of all supporting documents, RC military pay, and travel and transportation regulations and policies in effect for the period between 1 July 2007 and 31 March 2008, the opining offical recommended debt relief. b. The opining official’s recommendation is to relieve the applicant of his current debt balance of $40,538.26. The administrative review showed that there were a myriad of administrative errors made during the RC orders process and RC travel policies interpretations made by Government officials. Notwithstanding the various interpretations of administrative policies, the applicant was fully aware of the overpayment, its future impact and should had planned accordingly. Thus, in order to close this long standing Army case and make the Soldier whole, as stated above, it is reasonable that the Board should provide relief of the outstanding debt balance. 39. The Board provided the applicant with a copy of this advisory opinion to give him an opportunity to submit rebuttal/comments. To date no response was received. REFERENCES: 1. JFTR, Paragraph U7150 Reserve Component Travel. A (Active Duty with Pay (48 Comp. Gen. 301 (1968)) (1) General: a. Applicability. Paragraph U7150-A applies to a RC member called (or ordered) to active duty for any reason with pay under an authorization/order that provides for return to home or PLEAD. b. Travel and Transportation Allowances when a Member Commutes. Travel and/or transportation allowances are not authorized for travel between the home/PLEAD and the place of active duty when: (1) Both are in the corporate limits of the same city or town; (2) The member commutes daily between home/PLEAD and the place of active duty; or (3) The order-issuing official/installation commander determines that both are within reasonable commuting distance of each other and that the nature of the duty involved permits commuting. However, a member commuting under paragraphs U7150-A1b(2) and U7150-A1b(3) is authorized the applicable automobile or motorcycle mileage rate (see par. U2600), for one round trip between the duty station and, (a) home, or (b) place of unit assignment, or (c) place from which called (or ordered) to active duty. c. In determinations required by paragraph U7150-A 1b(3), areas within a reasonable commuting distance are described in paragraph U3500-B. Regarding paragraph U7150-A1b(3), actual expense allowance (AEA) may be paid, if authorized by the member's commanding officer, for any day(s) the nature of the duty requires the member to remain overnight and Government quarters and/or Government mess are unavailable. For this duty, the member is authorized AEA as computed under paragraph U4510 for all meals and quarters, except for the meal ordinarily procured when commuting. Payment for local travel within/around the member's place of active duty may be authorized under Chapter 3, Part F. 2. JFTR, paragraph U4137 (Allowable expenses when a residence is purchased and used for TDY lodging) states a member may purchase and occupy a residence at a TDY location. Allowable expenses are the mortgage interest and property taxes, and utility cost actually incurred, such as electricity, gas, water, and sewer, prorated based on the number of days in the months rather than the actual number of days the member occupied the residence. In no case shall the total per diem payable exceed the applicable locality rate for the area unless an AEA is authorized and approved. DISCUSSION: 1. The applicant was issued orders to active duty for 730 days from Melbourne, FL, to Fort Belvoir, VA, effective October 6, 2001. He received TDY entitlements based on his Fort Belvoir location and BAH based on Melbourne, FL, his PDS. In September 2003, he was issued orders calling him to AD from Melbourne, FL, to Fort Belvoir, VA, for 179 days, effective 6 October 2003. During this period of active duty, he continued to receive TDY entitlements based on his Fort Belvoir, VA, location, and BAH based on Melbourne, FL. During this period, he was also issued orders to perform 90 days active duty for training (ADT), effective 2 April 2004, again from Melbourne, FL, to Fort Belvoir, VA. 2. In June 2004, he was issued CO-EAD orders calling him to active duty for 2 years effective 1 July 2004, from Melbourne, FL, to Fort Belvoir, VA. These orders authorized him PCS entitlements. In or around 2004/2005, he bought his home in Chantilly, VA. His orders were later amended, and his period of service was extended to 30 June 2007. 3. During the period 1 July 2004 through 30 June 2007, he received BAH with dependents based on his Fort Belvoir, VA, location. On 29 June 2007, he was issued orders calling him to perform active duty from his home in Chantilly, VA, to Fort Meade, MD, effective 1 July 2007, for 365 days. These orders reflected, "Performing in a TDY status." On 2 July 2007, his orders were amended to reflect that he entered active duty from Melbourne, FL, instead of his residence in Chantilly, VA. They were again amended on 21 July 2007, to reflect that his duty location would be Chantilly, VA, instead of Fort Meade, MD. Because of these orders, during the period 1 July 2007 to 31 March 2008, he received $46,857.54 in per diem payments. DFAS determined that since he commuted locally from his family residence in Chantilly, VA, to his duty location in Chantilly, VA, he was not entitled to receive per diem for lodging. 4. The applicant's initial appointment orders listed his home of record as Oklahoma City, OK. After he resigned from the ARNG and transferred to the USAR, he appears to have changed his mailing address and/or place of residence to Melbourne, FL. He was ordered to active duty from Melbourne, FL, on 6 October 2001. His PLEAD was identified as Melbourne, FL. He was assigned to or within INSCOM, Fort Belvoir, VA. In 2004/2005, he purchased a home in Chantilly, VA. Around March 2007, he was recruited to work for the NRO. He was released from his PCS orders effective 30 June 2007. 5. He was issued new orders to active duty effective 1 July 2007, assigning him to Fort Meade, MD. The orders listed his PLEAD and home of record as Chantilly, VA. He asserted that this was in error and that because he did not have a break in service, he should have been ordered to active duty from Melbourne, FL, rather than Chantilly, VA. Amendments were issued multiple times to correct his orders to no avail. 6. The JFTR provides that the entitlements when a Reserve member is called/ordered to active duty stem from the place from which called or ordered to active duty (PLEAD) or the member's home of record (HOR). The critical factor is the address on the orders. If the orders reflect a different address than the home of record listed on the official personnel records, that location is the PLEAD for that set of orders, and the entitlements stem from that address. The applicant was not ordered to active duty from Melbourne, FL, in 2007. He was already at Fort Belvoir, VA. He was living/residing within commuting distance to where he worked. 7. The Comptroller General has held that entitlements cannot be increased or decreased after the fact unless there is clearly an error on the face of the order, and something definitely intended was administratively omitted or there was a clear administrative error on the face of the orders. In such a case, the amended order to increase/decrease entitlements must clearly indicate that an error was made and the amended order is to correct that error. There was no error in the applicant's orders. He was then and remains now in Chantilly, VA. This is evidenced by: * the applicant had resided in Chantilly, VA since he purchased his home in 2005, he commuted from his home in Chantilly, VA, to Fort Belvoir and then in 2007 to Fort Meade, MD * he claimed or was eligible to claim BAH based on his duty station or PDS * he did not return to Melbourne, FL, on 30 June 2007 and then return to Fort Meade, MD, on 1 July 2007 * when his orders ended on 30 June 2007, the expenses associated with the upkeep of his home in Chantilly, VA, were a function of home ownership, not related to any official business * his 20-Year Letter and promotion orders were issued to the Chantilly, VA address * his DD Forms 214 listed his home of record as Chantilly, VA 8. Notwithstanding the favorable advisory opinion to waive the remainder of the applicant’s outstanding debt, there is overwhelming evidence to support Chantilly, VA, as the correct place ordered to active duty in 2007. The applicant received per diem or travel entitlements/benefits that he was neither authorized nor eligible for. That is the source of his debt. Although there is no evidence he attempted to defraud the Government based on the one statement by an investigating official, the fact remains that this is a valid debt. Other than his personal statement that this debt will cause him financial hardship, he provided no evidence to support his subjective statement. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20140020482 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20140020482 15 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2