IN THE CASE OF: BOARD DATE: 6 April 2017 DOCKET NUMBER: AR20150017063 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: 6 April 2017 DOCKET NUMBER: AR20150017063 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: 6 April 2017 DOCKET NUMBER: AR20150017063 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, that he be reimbursed for a personally procured move (PPM, also known as do-it-yourself (DITY) move) of his household goods (HHG). 2. The applicant states, in effect: a. His direct actions, exercising a DITY move, were based on precise guidance from an agent of the Transportation Office at Fort Stewart, GA, prior to the move. Since then, he has had to fight for what he is entitled to as a member of the uniformed services. b. Having served nearly 21 years in the Army, he assures the Board he wouldn't attempt to move 100 percent (%) of his HHG by himself without first consulting with the Transportation Office to guarantee reimbursement of the DITY move. However, after submitting an exception to policy (ETP) packet for reimbursement (which he was instructed to do by a civilian employee at Fort Stewart, GA Transportation Office), his request was disapproved by the Office of the Deputy Chief of Staff, G-4, Headquarters, Department of the Army (HQDA). c. He received a memorandum via email from a civilian employee (Lead/Quality Control Inspector, Hunter Army Airfield, GA) stating the reasons for the disapproval, which referenced the Joint Travel Regulation (JTR). After reading the memorandum, he referenced the JTR and discovered multiple instances where references to the JTR in the memorandum did not coincide with the actual regulation. d. Item 3 in the memo, (JTR 5206-D, Erroneous Advice) the words "in excess of the weight allowed by statute" were omitted. This is a deliberate omission in order to create a statement on behalf of the government, thereby taking away his entitlement to reimbursement. As a matter of fact, this section of the JTR refers to "excess charges." e. Item 4 of the memorandum refers to the U.S. Government Accountability Office and the Comptroller General, stating how misrepresentation by their agents does not provide a legal basis for "reimbursement of additional transportation costs." He found that to be irrelevant as he is not asking for reimbursement of additional transportation costs. He simply wants to be paid for a standard DITY move. f. He does not believe he was represented fairly in this matter and after contact with both the point of contact of the memorandum and signer of the memorandum, they informed him they simply "cut and paste" from an email and have no authority over the decision. g. He attempted to use proper channels to resolve this issue and has relied on them to provide him with guidance and direction with respect to their titles and positions. The system has failed him and he expects this is neither the first nor the last time this has/will happen. After nearly 21 years of admirable service, not even a negative counseling statement, he would expect better representation/ support from the Soldier service agencies and certainly would not jeopardize his integrity to obtain what is owed to him according to the regulations. 3. The applicant provides a two-page, self-authored statement and: * moving truck rental agreements * fuel receipt * weigh tickets (empty/full) * a memorandum from the U.S. Army Physical Evaluation Board (PEB), Fort Sam Houston, TX, dated 24 April 2015 * Orders 215-0011, Headquarters, 3rd Infantry Division and Fort Stewart, Fort Stewart, GA on 3 August 2015 * a memorandum from the Logistics Readiness Center – Stewart, Fort Stewart, GA, dated 24 September 2015 CONSIDERATION OF EVIDENCE: 1. After prior active and inactive enlisted service, the applicant was commissioned as a Regular Army officer on 17 April 2008, in the rank of second lieutenant (2LT) in the Air Defense Corps. 2. While assigned to Headquarters and Headquarters Battery, 3rd Infantry Division Artillery, Fort Stewart, GA, the applicant entered the Integrated Disability Evaluation System (IDES) to determine his physical fitness/unfitness for military service. 3. A memorandum from the U.S. Army PEB, Fort Sam Houston, TX, dated 24 April 2015, shows the applicant was notified that he was found physically unfit by an informal PEB for continued military service. 4. A DA Form 199 (Informal PEB Proceedings) shows the Department of Veterans Affairs (VA) provided the PEB a rating for each medical condition on 16 May 2015. A formal PEB convened on 9 July 2015 and found the applicant physically unit and recommended permanent disability retirement. He was counseled and informed of the findings on 16 July 2015. The applicant concurred with the findings and did not request reconsideration of his VA ratings. 5. Orders 215-001, issued by Headquarters, 3rd Infantry Division and Fort Stewart, Fort Stewart, GA on 3 August 2015, ordered the applicant to be retired on 26 October 2015, with placement on the Permanent Disability Retired List on 27 October 2015. Additional Instructions on the orders read: * he was authorized up to 1 year to select a home and complete travel in connection with this action * he was authorized shipment of HHG at the with dependent rate * if he planned to ship personal property at government expense, to contact his local transportation officer immediately upon receipt of these orders to arrange for shipment 6. The applicant was retired on 26 October 2015, by reason of permanent disability. 7. The applicant provides: a. A self-authored statement, dated 3 August 2015, which references the circumstances leading to his request for relief. This statement shows: (1) He requested to be reimbursed for a DITY move he executed while undergoing evaluation under the Disability Evaluation System (DES), prior to receiving separation orders. Being that the MEB process is very unpredictable, he wanted to make the necessary arrangements for his family so as to avoid having to make last minute decisions as they departed the military. (2) Prior to making any arrangements, he contacted the Transportation Office at Fort Stewart, GA and specifically asked if he could move his family (DITY move) and process the paperwork for reimbursement after he received orders and cleared Transportation. The civilian employee he spoke to in the Transportation Office told him he could go ahead and move his family and HHGs, and to be sure he kept all his weight tickets, moving truck contract, etc. He and his spouse purchased a house in North Carolina where they planned to retire and where he moved their HHG to. He obtained certified weigh tickets for the move, both full and empty, and he has the contract for the moving truck. (3) He wants to make it clear that he did the right thing and contacted the Transportation Office prior to making any arrangements. He has been in the military long enough to know how the system works and would not do something of this nature without inquiring first. His family moved multiple times throughout his career; however, this one is probably the most important. That being said, he didn't want to wait until the last minute and have to search frantically for a house (in another state) while transitioning out of the military. (4) Once he knew his medical evaluation board (MEB) was complete, and he had an idea when he was retiring, he visited the Transportation Office to inquire when and how he would submit the documents for the DITY move. He was told by the agent at the help desk that he would not be reimbursed for the move as he did it prior to having orders. She offered no other options and told him to have a nice day. He was near exiting the office and turned back around and asked if he could speak to someone else. She offered to let him speak to her supervisor. The supervisor immediately offered up the option to complete the necessary documents and submit them with a memorandum to request reimbursement [as an exception to policy]. Had he not come back to request to speak with someone else, he would have lost out on the opportunity to at least plead his case. (5) He would greatly appreciate it if the Board would reimburse him for his DITY move as he took the necessary steps prior to moving and relied on the guidance given to him by an agent in the Transportation Office at Fort Stewart, GA. He has served in the military for over 20 years and would be greatly disappointed if he moved his family based on invalid information and was not reimbursed. He considers this an injustice and feels as though he was not properly represented both prior to making his move and at the time he came in after the move to inquire how to submit his documents. b. Rental Agreement Cover Sheets show he picked up a rental vehicle in Hinesville, GA on 28 March 2015, and was due to return the vehicle in Toccoa, GA on 3 April 2015. He provides a fuel receipt showing he filled the tank of a vehicle on 3 April 2015 in Carnesville, GA. c. Certified Automated Truck Scale results taken at the following places: * Richmond Hill, GA – 31 March 2015 * Carnesville, GA – 3 April 2015 * Thomson, GA – 1 May 2015 * Thomson, GA – 3 May 2015 d. A memorandum from the Logistic Readiness Center – Stewart, dated 24 September 2015, Subject: ETP Determination. The memorandum addressed an ETP request to receive reimbursement for the DITY move. The applicant highlights areas within the memorandum he did not concur with, or where he did not see a reference taken from the JTR written in its entirety. (1) The ETP for the applicant was disapproved by the office of the HQDA, Deputy Chief of Staff, G-4. Unless the U.S. Army Physical Disability Agency (USAPDA) provides the transportation office evidence and confirmation that his MEB was approved (verbally or orally) or he meets all not some of the conditions stipulated under the JTR paragraph 5208.E there is no JTR authority to consider the applicant for an ETP, thus, this office cannot approve travel, storage, movement of HHGs, privately owned vehicle, or dependents at government expense or reimbursement of any of these expenses after the fact. The JTR contains basic statutory regulations concerning a uniformed Service member's travel and transportation entitlements and interpreted to have the force and effect of law. The JTR exists primarily under the authority of Title 37, U.S. Code, section 481, addresses circumstances which prohibit payment of certain allowances after the fact. JTR paragraph 2200-D states any expenses incurred before receipt of a written or oral order are not reimbursable. . (2) HHG transportation (before a permanent change of station (PCS) order is issued) authorized if the request for transportation is supported by: (a) Statement from the action officer (AO)/designated representative (in this case the USAPDA) that the member was advised before such an order was issued that it would be issued. The applicant writes that his unfit memorandum supports orders will be issued. (b) The applicant-signed written agreement to pay any additional costs incurred for transportation to another point required because the new permanent duty station (PDS) named in the order is different than that named in a statement. Written applicant-signed agreement to pay the entire transportation cost (if a PCS order is not later issued to authorize the transportation). The applicant writes he would have done so if he had been asked. (c) The length of time before the PCS order is issued, during which a member may be advised that an order is to be issued, may not exceed the relatively short period (not 4 months) between the time when a determination is made to order the member to make a PCS and the date on which the order is actually issued. The applicant writes the 4-month criteria is not stated in the JTR, and that the length of the time was out of his control due to the entire MEB process. (d) General information furnished to the member concerning order issuance before the determination is made to actually issue the order (such as time of eventual release from active duty, time of service term expiration, eligibility date for retirement, expected rotation date from outside the continental United States (OCONUS) duty) is not advice that the order is to be issued. The applicant writes his memorandum showing he is medically unfit for further military service due to disability supports the requirement that orders will be issued. (3) Erroneous advice, or lack of advice by/from a government agent does not create an entitlement to reimbursement of, or shipment of HHG. The applicant writes the statement is not complete, but continues to state in the JTR "in excess of weight allowed by statute." He writes therefore, the statement is not applicable to his case. (4) As noted by the U.S. Government Accountability Office, the Government cannot be bound by the erroneous acts 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 to reimburse additional transportation costs. The applicant writes he did not request reimbursement of additional transportation costs. 8. There is no evidence the applicant was formally counseled in person regarding the "Do's and Don'ts" and how to complete a PPM. In addition, there is no evidence he completed a Defense Personal Property System (DPS) self-counseling on the Surface Deployment and Distribution Command (SDDC) PPM site www.move.mil prior to performing the PPM. 9. There is no evidence the applicant requested correspondence from the USAPDA to assist with his reimbursement request. 10. In the processing of this case, an advisory opinion was obtained on 12 September 2016, from the Transportation Policy Division, office of the Deputy Chief of Staff, G-4, Headquarters, Department of the Army (HQDA). This official stated: a. This office reviewed the application and noted the enclosed statutory or regulatory provisions in support of a decision. This office provided a similar response to a Congressional inquiry on 9 November 2015. b. The JTR contain basic statutory regulations concerning a uniformed Service member's travel and transportation entitlements and interpreted to have the force and effect of law. The JTR exists primarily under the authority of Title 37, U.S. Code, section 481, which addresses circumstances which prohibit payment of certain allowances after the fact. As a retiring Service member, the applicant's travel and transportation allowances are governed by the JTR, which state that the travel order establishes conditions for government funded official travel and transportation. c. The JTR further states that travel reimbursement is not authorized when travel is performed before receipt of a written or oral order. JTR paragraph 5208-E addresses all the requirements for HHG transportation before an order is issued. In this instance, paragraph 5208-E1e is particularly relevant as it states: "General information furnished to the Service member concerning order issuance before the determination is made to actually issue the order (such as time of eventual release from active duty, time of service term expiration, eligibility date for retirement, expected rotation date from overseas duty) is not advice that the order is to be issued (52 Comptroller General 769 (1973)." Statement from the AO/designated representative that the member was advised before such an order was issued, that it would be issued, this authorizing official for an officer retirement is the U.S. Army Human Resources Command (HRC). d. The applicant received his retirement orders dated 3 August 2015, with a retirement date of 26 October 2015. The retirement orders publication date is when the Army G-1 and Army Budget Office fund the retirement move. Accordingly, the applicant is not entitled to reimbursement of his moving expenses for his PPM or DITY move from 28 March 2015 to 3 April 2015, because he incurred those expenses before he received a written or oral order. e. The applicant states that he was advised by an employee in the Fort Stewart Transportation Office; however, this assertion was not substantiated by that office and has no bearing on the validity of his claim. The Defense Offense of Hearings and Appeals has noted that "it is a well-settled rule of law that the government cannot be bound by the erroneous advice of its officers or employees, when such advice contravenes existing regulations." 11. The applicant was provided a copy of the advisory opinion, for his information and to provide him an opportunity to comment or rebut the opinion. He did not respond. REFERENCES: 1. The JFTR, chapter 2, part B (Orders), states an order used for reimbursement of travel and transportation expenses is a written document issued or approved by the Secretarial Process directing a member or a group of members to travel between designated points. The order establishes the conditions for official travel and transportation at government expense and provides the basis for the traveler's reimbursement. Orders should be issued before the travel is performed. Travel reimbursement is not authorized when the travel is performed before receipt of written or oral orders. 2. The JFTR, chapter 2, part B, also states an urgent or unusual situation may require that official travel begin or be performed before a written order can be issued. Under these circumstances an oral order conveyed by any medium, including telephone, may be given. When this occurs, the authorizing officer must promptly issue a confirmatory written order. An oral order meets the requirement for a written order when it is given in advance of travel, subsequently confirmed in writing giving the date of the oral order, and approved by competent authority. 3. The Defense Travel Regulation, part IV (Personal Property), attachment K1 ("It's Your Move" – Armed Forces Members), provides information for members on the allowances and responsibilities involving the shipment and/or storage of HHG and unaccompanied baggage. It states the transportation office must provide counseling and prior approval for a PPM – formerly called a DITY move – and that failing to comply with service requirements of the program may limit payment or result in complete denial of a claim. 4. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army IDES and sets forth policies, responsibilities, and procedures that govern the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. a. Paragraph 3-2 provides that for members being separated by reasons other than physical disability, his or her continued performance of assigned duty commensurate with his or her rank or grade until he or she is scheduled for separation or retirement creates a presumption that he or she is fit. This presumption can be overcome only by clear and convincing evidence that he or she is unable to perform his or her duties for a period of time or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, renders the member unfit. b. Paragraph 4-9 provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to an MEB. c. Paragraph 4-13 provides that those members who do not meet medical retention standards will be referred to a PEB for a determination of whether they are able to perform the duties of their grade and military specialty with the medically-disqualifying condition. 5. Department of the Army Pamphlet (DA PAM) 55-2 (It's Your Move) provides guidance on PPM moves. It states that the PPM is an alternate means of moving personal property and allows a Service member to personally move HHG and either be reimbursed up to the Government's cost or to collect an incentive payment from the government when they have orders for a PCS, temporary duty, separation, retirement, or assignment to/from or between Government quarters. 6. DA PAM 55-2 further states that PPM reimbursement is equal to 95 percent of the Government's constructed cost. The Personal Property Office must provide counseling and prior approval for a PPM move. Failing to comply with service requirements of the program may limit payment or result in complete denial of a claim. 7. Army Personally Procured Transportation and Non-Temporary Storage (NTS) Policy, effective 15 April 2010; Change 1, effective 28 May 2010, Section I for Army Military Members provides: a. Paragraph 3 (Counseling), The Personal Property Shipping Office/ Personal Property Processing Office (PPSO/PPPO) must provide members information on the move types, monetary allowances and advance payment of the operating allowance. (1) Advance Payments for Separatees and Retirees. An advance payment is not authorized after separation. (2) The PPSO/PPPO must advise a member of his/her responsibility for excess cost (see JFTR, paragraph U5340). (3) The PPSO/PPPO must provide members the location of Government and commercial scales in the vicinity of the PPSO/PPPO. (4) The PPSO/PPPO must advise members that certified empty and loaded weight tickets are required. (5) The PPSO/PPPO must provide members information on the type of vehicles authorized for a PPM. (6) The PPSO/PPPO must advise members concerning the documentation requirements to personally procure the transportation of alcoholic beverages. (7) The PPSO/PPPO must advise members concerning the use of foreign flag carriers. (8) The PPSO/PPPO must advise members what documents are required to certify the PPM and where to submit the documents. (9) The PPSO/PPPO must advise members to retain a copy of all documents for his/her records. b. Paragraph 18 (After-the-Fact PPMs), (1) Paid invoice available. When a member contracts transportation/NTS (vehicle, transportation service providers (TSP), commercial storage facility) and failed to contact a PPSO/PPPO for counseling and a DD Form 2278 prior to making a PPM, the PPSO/PPPO may authorize an after-the-fact actual cost reimbursement not to exceed the Government constructed cost (GCC) for the actual HHG weight transported not to exceed the member's maximum HHG weight. If the member does not have weight tickets, the member must complete a weight estimator. The member must provide a paid invoice for the rental vehicle or TSP. This guidance applies only to those cases in which the member has a paid receipt for personally procured contracted transportation and or NTS (i.e., rental truck, TSP transportation, commercial storage facility). The PPSO/PPPO must provide the member a DD Form 2278 or letter authorizing reimbursement. (2) Beyond the member's control. When a member was unable to obtain counseling, a DD Form 2278, and does not have paid receipts for contracted transportation/NTS (vehicle, TSP, commercial storage facility) for reasons beyond his/her control (i.e., family emergency, orders received less than 5 days to report to the new permanent duty station (PDS)), the PPSO/PPPO must submit the request to the Installation Management Command region for approval. The exception to policy request must include documentation to justify/validate the specific reason that was beyond the member's control for not obtaining PPM counseling and a DD Form 2278. If the exception to policy is approved and the member does not have weight tickets, the member must complete a weight estimator. An actual cost reimbursement not to exceed the GCC for the actual HHG weight transported not to exceed the member's maximum HHG weight or a payment of a monetary allowance equal to 95 percent of the GCC for the actual HHG weight transported not to exceed the member’s maximum weight allowance is authorized. The PPSO/PPPO must provide the member a DD Form 2278 or letter authorizing reimbursement. (3) Weight tickets only. When a member did not contact a PPSO/PPPO for counseling and a DD Form 2278 was not prepared but has certified weight tickets for the transportation and/NTS of HHG, the member is authorized payment of a monetary allowance equal to 95 percent of the GCC for the actual HHG weight transported not to exceed the member's maximum weight allowance. The payment of accessorial charges is not authorized. The PPSO/PPPO must provide the member a DD Form 2278 or letter authorizing reimbursement. (4) After-the-fact PPMs for reasons outside of the parameters cited above. After thorough review by the PPSO/PPPO, the PPSO/PPPO may recommend to the member to submit an application to the Army Board for the Correction of Military Records (ABCMR). DISCUSSION: 1. The applicant's request for reimbursement of his PPM costs was carefully considered. He contends he was misinformed by a Transpiration Office representative that he could perform the PPM prior to receiving retirement orders, and process the claim for reimbursement after he received orders and cleared transportation. 2. The applicant's rental agreement and vehicle weight scale and fuel receipts show he moved HHG from on or about 31 March 2015 through on or about 3 April 2015. 3. The JTR states travel reimbursement is not authorized when travel is performed before receipt of a written or oral order. The applicant received written orders for retirement on 3 August 2015. 4. The applicant states he performed the PPM after he was notified he was found unfit for duty by the MEB. There is no evidence available to show when he was notified he was unfit for duty by the MEB prior to the 24 April 2015 request for a VA rating by the informal PEB. 5. Governing regulatory guidance prescribes those members who do not meet medical retention standards as determined by the MEB will be referred to a PEB for a determination of whether they are able to perform the duties of their grade and military specialty with the medically-disqualifying condition(s). The PEB did not make such a determination until the 9 July 2015 PEB Board. Therefore, it appears he performed the PPM before a determination was made as to whether or not he would be retained on active duty. 6. The applicant's referencing of inconsistences on what is written in the JTR and what information was provided to him on the 24 September 2015 ETP disapproval memorandum is noted. The ETP stated he could request evidence from the USAPDA to show his MEB was approved. There is no evidence he requested or received correspondence from the USAPDA. 7. ARBA requested an advisory opinion from the office of the Deputy Chief of Staff, G-4, which provided additional guidance that supports the initial ETP disapproval. In addition, the advisory opinion stated, in effect, evidence from HRC showing he was due to receive retirement orders was required because he was an officer, instead of evidence from the USAPDA as previously mentioned. There is no evidence he requested or received correspondence from HRC. 8. Orders and counseling is required prior to the approval of a service member's PPM. There is no evidence he received counseling in person or via the internet before the PPM. However, there are procedures found within the Army Personally Procured Transportation and NTS Policy for after-the-fact PPMs. The applicant's circumstances do not fall under the situations listed for after-the-fact PPMs. A recommendation of relief from this Board is his final possibility of receiving reimbursement. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150016310 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150017063 13 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2