IN THE CASE OF: BOARD DATE: 21 March 2017 DOCKET NUMBER: AR20150016587 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: 21 March 2017 DOCKET NUMBER: AR20150016587 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: 21 March 2017 DOCKET NUMBER: AR20150016587 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, in effect, reconsideration of his previous request for payment of dislocation allowance (DLA) in conjunction with his retirement. 2. The applicant states: a. The circumstances surrounding his departure from Moscow just after Russia's invasion of Crimea were anything but standard. Ten days after he departed the country, the Kremlin officially terminated operations of his office at the U.S. Embassy. Remaining in Russia until the end of his tour was out of the question. b. His original request did not make clear that his spouse and daughter were not in Alexandria, VA, the location for his basic allowance for housing (BAH) rate. For the duration of his overseas assignment, his spouse was living in Los Angeles, CA 90027 and his daughter was at American University in Washington, DC; therefore, he had no residence after his return from Russia in April 2014. Consequently, like any overseas move, he had to re-establish his temporary residence in the U.S. as he continued working for his Fort Belvoir-based Headquarters and began his separation procedures. c. His separation orders erroneously indicate he was separating from a continental United States (CONUS) assignment. As his orders indicate, he was stationed permanently in Moscow, Russia, working at the U.S. Embassy. His reporting and separation date were listed as 31 July 2014, a date that was impossible because of his duty assignment location and circumstances. d. He hopes this Board will review the information provided in the enclosed errata sheet and reconsider the final decision. He would welcome the opportunity to further discuss this appeal with the Board members and schedule an interview. 3. The applicant provides: * Errata sheet * Retirement Orders Number 050-003, dated 19 February 2014 * Incomplete/unsigned DD Form 1610 (Request and Authorization for temporary duty (TDY) Travel of DOD Personnel) * Taxi receipt, dated 19 April 2014 * DD Form 1351-2 (Travel Voucher or Subvoucher), dated 20 June 2014 * Email correspondence * DA Form 2142 (Pay Inquiry), dated 8 July 2014 * Previous Army Board for Correction of Military Records (ABCMR) Record of Proceedings, Docket Number AR20140017808, dated 18 December 2014 CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20140017808 on 18 December 2014. 2. The applicant provides new evidence the Board did not previously consider. This new evidence warrants consideration by the Board. 3. The applicant was appointed as a Reserve commissioned officer of the Army and executed an oath of office in Santa Barbara, CA, on 30 June 1983. His home of record (HOR) was identified as California. 4. He was ordered to active duty from California as a Regular Army commissioned officer and executed an oath of office at Fort Sill, OK, on 7 September 1985. He attained the rank of colonel (COL)/O-6 on 1 May 2007. 5. On 17 July 2013, U.S. Army Installation Management Command, Fort Myer, VA, published Orders 198-43 reassigning him to Defense Threat Reduction Agency (DTRA), Defense Threat Reduction Office, Moscow, with a report date of 15 August 2013. His report date was later amended to 30 October 2013. Paragraph (v) of these orders stated he elected to leave his dependents in Alexandria, VA, and to serve an "all others" tour. This is a 24-month tour. 6. While in Russia, he performed duties as the Chief, Defense Threat Reduction Office, Moscow. He received basic allowance for housing (BAH) based on his dependents’ location in Alexandria, VA. 7. He provided an errata sheet indicating the errors on his previous case, clarification, and suggested corrections. He stated the following: a. He requests DLA and not temporary lodging expense (TLE) to account for his premature return to Fort Belvoir in connection with his Selective Early Retirement Board (SERB) notification. His orders indicate both a reporting and retirement date of 31 July 2014. This was impossible owing to his overseas station. Neither his parent Headquarters, DTRA, Senior Leader Division nor Military Personnel Division Fort Belvoir understood that he needed to get his retirement orders amended owing to the tenuous political relationship between the U.S. and Russia. His headquarters deemed an early return was prudent and instructed him to use his retirement orders to get back to the U.S. b. His correct active duty date is 7 September 1985. c. His spouse was living in California and his daughter was at American University in Washington, DC. d. He arrived from Moscow on 19 April 2014, a little over 3 months before retirement. Ten days after his departure, the Russian government closed down his office owing to increasing political tensions between the two countries. e. While on TDY from Russia to the U.S. in February 2014, he was able to visit the Fort Belvoir Army Career Alumni Program (ACAP) (presently the Soldier for Life) office to gather materials. Additionally, he visited the Henderson Hall (USMC) Senior Leader Transition Course for additional materials. His access to the internet was unreliable in Russia so he needed as many hard copy materials as possible. f. According to Rule 40 or 41, Army Regulation 600-8-105 (Military Orders), his move designation code (MDC) should have been 7A because he was in "An OCONUS permanent station, and HOR, place EAD, or home of selection is in CONUS. A U.S. Army Transition Point in CONUS/Separation." g. Memorandum, dated 18 April 2012 delegated signature authority to the O-6 level. This option was never presented to him or his leadership who would have very likely wholeheartedly supported, given his circumstances. h. He did not conduct a permanent change of station (PCS) move to his home of record or place entered active duty. He states he PCS'd from an overseas duty location to his transition point at Fort Belvoir. i. He was authorized to separate from Fort Belvoir, which happened to be the location of his parent (stateside) headquarters. j. His request for DLA is not based primarily on his inability to conduct ACAP, but he requests DLA to accommodate for his having to leave Russia prematurely, thereby requiring him to find and establish a temporary residence upon his return. k. When he returned to Fort Belvoir from Russia, he continued work with his headquarters and started separation procedures. When he separated from the service, he did not request DLA or TLE because he understood it was not authorized. l. While preparing for his PCS to Russia, he failed to change his BAH to the California (90027) rate. The BAH rate for 90027 was $3,582 and for 20310 was $3,132, which is a savings of $450 per month. Overall, he saved the Army and taxpayer approximately $2,700 by not changing his BAH location. 8. The applicant's Officer Record Brief shows he served at the U.S. Embassy in Moscow beginning on 12 October 2013. 9. In a memorandum, dated 2 January 2014, the Deputy Chief of Staff, G-1 notified him of his selection for retirement by a Selective Early Retirement Board (SERB), and that if he had completed 20 or more years of active duty as of 31 July 2014 his mandatory retirement date (MRD) would be 31 July 2014 with placement on the Retired List on 1 August 2014. 10. On 19 February 2014, U.S. Army Garrison, Fort Belvoir, VA, published Orders 050-0003, releasing him from active duty effective 31 July 2014 and placing him on the Retired List in his retired grade of COL effective 1 August 2014. The orders stated: * You are authorized up to one year to complete selection of a home and complete travel in connection with this action * Requested and authorized place of retirement is Fort Belvoir, VA * HOR: Oxnard, CA; PLEAD: Santa Barbara, CA * Move Designation Code (MDC): 7BO4 11. His records contain a DD Form 2648 (Pre-separation Counseling Checklist), prepared on 3 February 2014, which recorded the services and benefits requested by and provided to the applicant. The form was signed by the applicant and a transition counselor on 17 July 2014. 12. His service record contains a DD Form 93 (Record of Emergency Data) signed on 14 May 2014 that indicates his spouse's mailing address in California 90027 and his son and daughter's address in Washington, DC 20010. 13. He retired on 31 July 2014 and he was placed on the Retired List in his retired grade of COL on 1 August 2014. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 28 years, 10 months, and 24 days of active duty. 14. On 6 March 2017, the Chief, Compensation and Entitlements Division, Office of the Deputy Chief of Staff, G-1 provided an advisory opinion and recommended disapproval of the applicant's request. The advisory official opined: a. Officials with the Defense Travel Management Office, the proponent of the Joint Travel Regulation, confirmed that the applicant is not authorized a DLA. b. Based on current statute in Title 37 U.S. Code 477(e), a member is not entitled to payment of a DLA when the member is ordered from the member's last duty station to the member's home. This statute has been transferred to the Joint Travel Regulation, paragraph 5442-2. Although the applicant may have been working at Fort Belvoir, VA, during his transition to retirement, he was ordered to Fort Belvoir to transition on retirement orders to his home. 15. A copy of the advisory opinion was forwarded to the applicant to allow him to provide comments or a rebuttal. REFERENCES: 1. Army Regulation 600-8-105 (Military Orders) prescribes the policies and mandated operating tasks for the orders program of the Military Personnel System. Paragraph 1-29 (MDC) states PCS travel expenses of Active Army personnel are funded by appropriations available to and controlled by Headquarters, Department of the Army (HQDA). An MDC provides the office of the Deputy Chief of Staff for Personnel with a record of the type of travel performed by Active Army personnel. This record is used to centrally manage travel funds. The MDC consists of the four characters as follows: a. The first character designates which of the basic categories of travel is to be charged. The basic categories of travel are accession, training, operational, low-cost, rotational, separation, unit, no-cost, permissive, diversion, and continuation and contingency/mobilization. b. The second character designates the destination of the traveler. See paragraph 1–32 to determine the destination of the traveler, and table 1–2 to determine the MDC. c. The third character designates whether the order applies to an officer (O) or an enlisted soldier (E). d. The fourth character designates the fiscal year appropriation to be charged. To determine the correct fiscal year, subtract the estimated travel time from the reporting date, then add 1 day to the result. e. Rule Number 42, when an officer is being separated from a CONUS permanent station and HOR, PLEAD, or home of selection is in CONUS, and is travelling to a U.S. Army Transition Point in CONUS, the MDC is 7B. f. Rule Number 43, when an officer is being separated from a CONUS permanent station and HOR, PLEAD, or home of selection is in CONUS, and is travelling to separation, the MDC is 7B. 2. The JFTR contain basic statutory regulations concerning a Uniformed Service member’s travel and transportation, certain OCONUS station allowances (Cost of Living Allowance (COLA), Temporary Lodging Allowance), housing allowances (Basic Allowance for Housing and overseas housing allowance), and CONUS COLA. These regulations have been interpreted to have the force and effect of law. The JFTR is issued primarily under the authority of Title 37, U.S. Code, section (§) 411 and Chapter 7, Title 37, U.S. Code. a. U5594 (re-numbered 5450) (Fiscal Limitations on Payment of DLA): Under Title 37, U.S. Code, (USC) section 477, a member is authorized only one DLA during a fiscal year. Exceptions are when the Secretary concerned determines Service exigencies require more than one PCS during the current fiscal year. For Army personnel, the authority to make this determination may be delegated no lower than general/flag officer level in the Army, at the headquarters level that directs assignments for the Service concerned. Office of the Under Secretary of Defense (Personnel and Readiness) Memorandum of 18 April 2012 temporarily allowed the approval level to be set at the O-6 level when serving in the capacity of Directors of the Enlisted and Officer Personnel Management Directorates of HRC effective 18 April 2012 and expiring on 18 April 2014. When determining the fiscal year in which DLA authority occurs, the member's departure (detachment) date from the old PDS in compliance with the PCS order governs. b. U5588 (re-numbered 5444): A member is authorized DLA for a PCS move and dependent evacuation. These are the usual authorization categories. There are a number of other situations in which a member may or may not be authorized DLA. DLA is not authorized in conjunction with a PCS from last PDS to home or to the PLEAD. c. U5090 (re-numbered 5068) Retirement Placement on the Temporary Disability Retired List, Discharge with Severance or Separation Pay, or Involuntary Release from Active Duty with Readjustment or Separation Pay, sub-paragraph A(3) Travel to Processing Station of Choice: A member on active duty is authorized travel and transportation allowances to a home selected by the member from the last PDS when the member is retired for physical disability or placed on the TDRL, or retired with pay for any other reason. (1) The Service may authorize/approve (by the Secretarial Process), a member to select the processing station at which the member is to be released from active duty to travel to the home of selection (HOS) from the last PDS, on a case by case basis (in accordance with Service policy). (2) If authorized/approved to separate at the member’s choice of processing stations, the member is authorized travel and transportation allowances not to exceed the amount payable had the member been ordered to, traveled to and retired/released to inactive duty at, the appropriate processing station as determined by the Service (see paragraph U1015-C2f). (3) The member is authorized per diem appropriate for the processing station away from the PDS while undergoing retirement/ release to inactive duty processing. 3. Title 37, USC, section 477 (Eligibility for DLA), states that under regulations prescribed by the Secretary concerned, a member of a uniformed service is entitled to a primary DLA at the applicable rate for the member’s pay grade and dependency status. A member is not entitled to payment of a dislocation allowance under this section when the member is ordered from the member’s home to the member’s first duty station (except as provided in subsection (a)(2)(F)) or from the member’s last duty station to the member’s home. 4. Title 37, USC, section 474 (Travel and Transportation Allowances) states except as provided in subsection (f) and under regulations prescribed by the Secretaries concerned, a member of a uniformed service is entitled to travel and transportation allowances for travel performed or to be performed under orders, without regard to the comparative costs of the various modes of transportation. The Secretaries concerned may prescribe the conditions under which travel and transportation allowances are authorized, including advance payments thereof. 5. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR will decide cases on the evidence of record. It is not an investigative body. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. DISCUSSION: 1. The evidence of record shows the applicant was placed on a PCS move to serve at the Embassy in Moscow in October 2013. He served at the U.S. Embassy in Moscow beginning on 12 October 2013. 2. In January 2014, he was informed of his selection by the SERB that mandated his retirement no later 1 August 2014. 3. The applicant returned to Fort Belvoir, VA, in or about April 2014 to complete his transition. He was retired from active duty, released from assignment and duty on 31 July 2014 and placed on the retirement list on 1 August 2014. Since he was being separated from CONUS (Fort Belvoir) for transition, his MDC is 7B not 7A. 4. By law, DLA is not authorized when a member is leaving active duty. The applicant did not PCS from Moscow to Fort Belvoir, VA. DLA is not authorized when the member is ordered from the member's home to the member's first PDS or from the member's last PDS to the member's home. He used his retirement orders to return to Fort Belvoir and undergo separation processing. 5. The applicant's request for a personal appearance hearing was carefully considered. However, by regulation, an applicant is not entitled to a hearing before the Board. Hearings may be authorized by a panel of the Board or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant are sufficient to render a fair and equitable decision at this time. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150016587 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150016587 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2