IN THE CASE OF: BOARD DATE: 1 March 2016 DOCKET NUMBER: AR20150001037 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: * reimbursement for delivery of household goods (HHG) (shipping entitlement) * partial reimbursement for extension of storage of HHG at the Government rate and full reimbursement at the civilian rate * delivery of HHG to the location of her choice 2. The applicant states: a. She is entitled to Government delivery to the location of her choice by regulation. b. The transportation officer at Fort McPherson, GA, verbally approved her extension. c. The closing of Fort McPherson directly impacted her case. The transportation office, with which she had difficulty over the past years, terminated her storage entitlement with the carrier. The first indication she received was an invoice from the carrier, converted to the civilian rate. She was informed by the carrier that Fort McPherson was no longer paying them due to closing. She was not notified of this action by Fort McPherson or that her records had been transferred to Fort Stewart, GA, until she made inquiries. d. The Fort Stewart transportation officer claimed ignorance of her case and couldn't find her file, stating she inherited a mess from Fort McPherson. Based on this, the Fort Stewart transportation officer assured her that it could be favorably sorted out and not to worry. After repeated inquires over the next several months with continued assurances, she was informed by the Fort Stewart transportation officer that she could not help her. She would be required to settle her Government storage debt before they would considered shipping her HHG. She was told she would have to appeal the action. They stopped taking her calls. e. Her invoice from the carrier had accrued to over $1,300.00 while waiting for the Fort Stewart transportation office to assist her. Her HHG were expected to be auctioned off if immediate payment wasn't made. She had to halt the escalating debt and protect her property. She paid the debt to the carrier and arranged for immediate delivery of her stored HHG to get them out of the carrier's hands and the Government's hands. f. Since her storage had been converted to the civilian category, her HHG could not be delivered outside the state of Georgia. Her shipping entitlement for her location of choice is St. Louis, MO. She now has to assume the effort and expense of moving her stored HHG to St. Louis. 3. The applicant provides: * DD Form 214 (Certificate of Release or Discharge from Active Duty) * retirement orders * letter from the Director, Logistics Readiness Center-Stewart, Fort Stewart, GA, dated 14 May 2013 * letter from the Chief, Transportation Division, Headquarters, U.S. Army Garrison, Fort Stewart/Hunter Army Airfield, GA, dated 21 February 2012 * DD Form 139 (Pay Adjustment Authorization) * letter from the Defense Finance and Accounting Service (DFAS), dated 6 November 2012 * DFAS account statements * credit card receipts, dated 13 March 2012 * DD Form 1164 (Service Order for Personal Property), dated 14 April 1999 * shipping entitlement extensions, dated 19 January 2000 and 9 April 2002 * email, dated 19 June 2004, 12 January 2005, 21 March 2005, and 5 February 2010 * letter from the Transportation Officer, Headquarters, U.S. Army Garrison, Fort McPherson, GA, dated 20 January 2010 CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant retired on 31 March 1999 in the rank of lieutenant colonel. Her retirement orders notified her she was authorized up to 1 year to complete selection of a home and complete travel in connection with this action. 3. She provided requests for extension of her shipping entitlement, dated 19 January 2000 and 9 April 2002, because she had not secured full-time employment following her retirement. 4. There is no evidence indicating she was enrolled in an accredited program of education or training or being treated for an ongoing medical condition which prevented her relocation. 5. On 20 January 2010, she was notified her non-temporary storage (NTS) had expired. 6. She provided a letter from the Chief, Transportation Division, Headquarters, U.S. Army Garrison, Fort Stewart/Hunter Army Airfield, GA, dated 21 February 2012, which states: a. The Directorate of Logistics Personal Property Shipping Office received notification from Department of the Army G-4 regarding the applicant's request for exception to policy to be relieved of financial liability. Department of the Army G-4 denied the applicant's request for exception to policy. Her retirement entitlement for NTS funded by the Government expired on 1 April 2000, 1 year from the effective date of retirement. b. The Joint Travel Regulations (JTR) contain basic statutory regulations concerning a Uniformed Service member's travel and transportation entitlements and is interpreted to have the force and effect of law. The JTR exists primarily under the authority of Title 37, U.S. Code, section 411, and chapter 7 and addresses circumstances which prohibit payment of certain allowances after the fact. The JTR, paragraph U5365-G (Travel and Transportation Extensions), does not extend the Government's obligation for storage costs longer than a 1-year period from the active duty termination date. c. The Government Accountability Office determined in a 27 January 1997 Defense Office of Hearings and Appeals case that the Government cannot be bound by the erroneous act of its agents, even when committed in the performance of their official duties. The Comptroller General has held that neither misrepresentation by a transportation officer nor misinformation provided by military officials provides a legal basis for reimbursement. d. The cost of storage for the applicant's property from 2000 to 2010 owed to the Government is $9,984.00 plus the $1,250.48 owed to the vendor from 28 October 2010 to 14 February 2012 equals a total cost of $11,234.48. That office was advised by Department of the Army G-4 to submit a DD Form 139 to collect this debt from the applicant's retirement pay. Upon payment of fees owed to the Government and vendor, the applicant is entitled to a local delivery out of storage to her current residence in Georgia at Government expense. 7. She provided a letter from DFAS, dated 6 November 2012, which states she owes $11,234.48 for an HHG debt. 8. She provided a letter from the Director, Logistics Readiness Center-Stewart, Fort Stewart, GA, dated 14 May 2013, which states: a. The applicant sent that office three copies of correspondence that were submitted to the Fort McPherson Personal Property Office, requesting extension of her storage entitlement after retirement beyond the 1-year storage allowance authorized to retired service members. Due to the closure of Fort McPherson, Fort Stewart inherited the personal property mission and submitted a waiver request to Department of the Army G-4 on the applicant's behalf. Department of the Army G-4 denied the waiver request and this was conveyed to the applicant along with her appeal option. b. The applicant's correspondence and the Logistics Readiness Center-Stewart Director's telephone conversation with her indicate the Fort McPherson Personal Property Office did not effectively communicate that her storage entitlement was only good for 1 year (as indicated in her retirement orders) and could not be extended. Consequently, the applicant incurred personal liability for storage charges after her 1-year entitlement had expired. c. The Logistics Readiness Center-Stewart Director conveyed her appeal rights to her and that he would submit this letter to be included in her appeal, recommending favorable consideration of her appeal. 9. A staff advisory opinion was obtained from the Chief, Transportation Policy Division, Office of the Deputy Chief of Staff, G-4, in the processing of this case. The advisory official states: a. The Secretarial process (Department of the Army G-4) has no JTR authority to waive or reimburse the applicant's debt for NTS charges from April 2000 to February 2012. b. The applicant retired on 31 March 1999. She was authorized 1 year of Government-paid NTS through 31 March 2000. She was authorized a maximum of 6 years from her date of retirement (until 31 March 2005) to move to her home of selection (St. Louis, MO). c. If the applicant paid the storage vendor to have her HHG delivered in March 2012, she is authorized reimbursement of those delivery fees. 10. A copy of the advisory opinion was forwarded to the applicant for information and to allow her the opportunity to submit comments or a rebuttal. On 21 December 2015, she responded and stated: a. She takes issue with the advisory opinion recommendation. It is the exact line of thinking that prompted her to take her situation outside the official administrative chain. Unless she has been disillusioned over her career, the Board was instituted to help in situations requiring a thought process beyond the party line of regulations. She asks for this consideration now. b. Over the past years, she has fully exhausted the official administrative chain in trying to resolve her issue. The Board is her last hope to believe the Army even cares about Soldiers. She spent a good part of her career trying to fight for the rights of Soldiers when the system was failing them. She would like to believe there are others willing to do the same thing. 11. The JTR contains basic statutory regulations concerning official travel and transportation of members of the Uniformed Services. a. Paragraph U5130 states travel to a selected home must be completed within 1 year of active duty termination. A written time limit extension may be authorized/approved using the Secretarial Process. An explanation of the circumstances justifying the extension must include the specific additional time period, a description of the circumstances that prevent use within the prescribed time, and acknowledgement that the extension is not being granted merely to accommodate personal preferences or convenience. b. Paragraph U5365 states HHG must be turned over for transportation within 1 year following termination of active duty. An extension of the 1-year time limit may be authorized/approved through the Secretarial Process when an unexpected event beyond the member's control occurs which prevents the member from moving to the home of selection within the specified time limit. A time limit extension also may be authorized/approved through the Secretarial Process in the best interest of the Service or substantially to the member's benefit and not more costly or adverse to the Service. c. An extension must not be authorized/approved if it extends travel and transportation allowances for more than 6 years from the date of separation or release from active duty or retirement unless a member's certified ongoing medical condition prevents relocation of the member for longer than 6 years from the separation/retirement date. d. Paragraph U5365-C(1) states a member or a dependent authorized HHG transportation is authorized NTS. The authority begins on the date the order is issued and terminates 1 year from the active duty termination date. e. Paragraph U5365-F states an extension of the 1-year time limit prescribed in paragraph U5365-A may be authorized/approved through the Secretarial Process when an unexpected event beyond the member's control occurs which prevents the member from moving to the home of selection within the specified time limit. This includes cases where the 1-year time limit has already been extended under paragraphs U5365-D (Member Undergoing Hospitalization or Medical Treatment) and U5365-E (Member Undergoing Education or Training). These extensions may be authorized/approved only for the specific period of time the member anticipates is needed to complete the move. If, at the expiration of this extension period, additional time is required, the member may request a further extension through the Secretarial Process, citing the reasons for the extension. An additional authorized period for a specific period of time may then be authorized/approved through the Secretarial Process. These extensions do not extend the Government's obligation for storage costs for longer than a 1-year period from the active duty termination date. DISCUSSION AND CONCLUSIONS: 1. The evidence of record shows the applicant retired on 31 March 1999. Her retirement orders indicated she was authorized up to 1 year to complete selection of a home and complete travel in connection with this action. 2. The JTR provides that an extension of the 1-year time limit may be authorized/approved through the Secretarial Process when an unexpected event beyond the member's control occurs which prevents the member from moving to the home of selection within the specified time limit. A time limit extension also may be authorized/approved through the Secretarial Process in the best interest of the Service or substantially to the member's benefit and not more costly or adverse to the Service. An extension must not be authorized/approved if it extends travel and transportation allowances for more than 6 years from the date of separation or release from active duty or retirement unless a member's certified ongoing medical condition prevents relocation of the member for longer than 6 years from the separation/retirement date. 3. By law, a retired Soldier must request an extension of travel and transportation entitlements yearly. 4. She was notified on 20 January 2010 that her NTS had expired. This was nearly 11 years after she retired. There is no evidence indicating she was enrolled in an accredited program of education or training or being treated for an ongoing medical condition which prevented her relocation. 5. Although she contends the Fort McPherson Transportation Officer verbally approved her extension and there are exceptions to the 1-year shipping requirement, she failed to show through the evidence she submitted and the evidence of record that an exception is warranted in her case. 6. There is an insufficient evidentiary basis for granting the applicant's requested relief. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ____x___ ____x___ DENY APPLICATION 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. ABCMR Record of Proceedings (cont) AR20150001037 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150001037 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1