IN THE CASE OF: BOARD DATE: 19 March 2020 DOCKET NUMBER: AR20190010148 APPLICANT REQUESTS: Correction of his records to show: * back pay for per diem for for the period 1 May 2016 – 14 February 2017 * a personal hearing before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-authored letter * Inspector General (IG) letter, dated 22 June 2018 * Orders Number BL-127-0002, dated 7 May 2016 * Orders Number BL-127-0002 (A1), dated 13 September 2014 * Orders Number 15-110-00001, dated 20 April 2015 * Temporary Change of Station (TCS) Request for Orders (RFO) worksheet, dated 20 April 2015 * Orders Number 15-110-00018, dated 20 April 2015 * Orders Number A-04-600746, dated 8 April 2016 * Orders number A-04-600746A01, dated 12 April 2016 * Orders Number A-09-602577, dated 30 September 2016 * Orders Number 027-0020, dated 27 January 2017 * Orders Number 032-0010, dated 1 February 2017 * DD Form 1351-5 (Government Quarters and/or Mess), dated 18 July 2017 * Email correspondence number 1 * Email correspondence number 2 * Memorandum, Subject: Extension of Reserve Component Soldiers on Active Duty * Email correspondence number 3 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10 United States Code (USC), section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states in pertinent part: a. His household goods were kept at his Home of Record (HOR) (), he was not provided lodging or meals, and he was issued a Statement of Non-Availability (SNA); while on 12301(h) orders in from 1 May 2016 – 14 February 2017. He received Basic Allowance for Housing (BAH) for his HOR during this time, he was not paid per diem. In the beginning the U.S. Army Medical Command (MEDCOM) stated he was 1 of approximately 50 Soldiers with the same issue. Near the end of his order, MEDCOM communicated he would not receive per diem back pay but that another Soldier, a Sergeant Major (SGM) did get paid per diem. No reasoning was given. This failed standards required for agency action for being "arbitrary, capricious, an abuse of discretion, otherwise not in accordance with law." (Title 5 USC A, section 706(2)(A)). The U.S. Army Human Resources Command (HRC) provided a Department of Defense Instruction Memorandum of Clarification to show he should have been sent back to his HOR. The memorandum neither applies nor was followed in his case. Using it to not provide his per diem back pay would also be in conflict with arbitrary and capricious standard. b. He was an Army Reservist activated on TCS orders in HI from 1 May 2014 – 30 April 2016. Then, changed over to 12301(h) (MRD) [sic] (actually called Medical Retention Processing (MRP) and will be addressed as suck throughout the record of proceeding) orders from 1 May 2016/8 April 2016 - 14 February 2017. There was no break in service during any of these orders. His HOR remained the entire time he was on orders in HI. He was first activated on a 365-day TCS order from 1 May 2014 – 30 April 2015 in Honolulu, HI. He was extended on active duty orders with a second 365- day TCS order from 1 May 2015 - 30 April 2016 in Honolulu, HI. His entitlements included BAH for his HOR and the 55 percent per diem rate for Honolulu, HI (May 2014 – 30 April 2016). No housing or meals were provided; SNAs were obtained for all time periods while on orders in HI. c. A Tripler Army Medical Center (TAMC) neurologist issued him a P3 profile on 1 March 2016. He was placed on two separate MRP orders between April/May 2016 – 14 February 2017 to complete the Medical Evaluation Board (MEB) process. HRC issued the first MRP order, originally 30 April 2016 – 25 October 2016 (Order date 8 April 2016). This order was changed with an amended order to 8 April 2016 – 30 October 2016 (Order date 12 April 2016). He was not given a reason to why this happened. Doing this put him on two orders between 8 April 2016 – 30 April 2016. MEDCOM issued his second MRP order, 4 October 2016 – 31 March 2017. d. The MEB process determined he had three separate conditions that made him"Unfit" to continue service. He was issued a medical retirement order with an expiration term of service date of 14 February 2017. From 1 May 2016 – 14 February 2017, he continued to receive BAH for his HOR and base pay while he remained in HI to complete the MEB process. He did not receive any per diem during this time (the matter of this case). The whole time while he was on orders in HI his household goods remained at his HOR. e. The entire time he was in HI no one knew what to do with him administratively. He was constantly bounced around from one office/department to another. A review of his order records would demonstration this; one would find approximately 10 orders transferring him between Reserve Legal Operation Detachments for the three year period he was in HI. The administrative issues he faced at TAMC were nonstop. Therefore, he saw this very funding/ entitlement issue building. He attempted to address this funding issue up front and throughout but stakeholder departments never communicated a way forward. At the time, a MEDCOM official (Mr. H-) was his main point of contact. He kept telling him to hold tight while MEDCOM worked with HRC/Army G-1 to develop a way forward. f. He worked extensively with all departments to find a solution. Most would offer assistance initially until they realized how complicated his situation was. Then all would either pass him on to another office/person or just disappear by no longer responding to emails or call. He was constantly given the feeling that these departments were determined to find a way to not issue entitlements that would logically support his situation based on where he was located and where his HOR/household goods were located. g. He was told at times he should have been sent back to his HOR to complete the MEB process. However, email correspondence from Ms. H- (MEDCOM Headquarters), describing that because there was already a "known issue before demobilizing that he would qualify to be retained on active duty with his current unit to complete the Integrated Disability Evaluation System (IDES) process under Department of Defense Instructions (DODI) 1332.18 (Disability Evaluation System) with approval from the Army G-1". Email traffic shows this approval was issued by Headquarters Department of the Army Deputy Chief of Staff G-1 on 6 April 2016 by Colonel A-, Chief, Medical Policy Branch. Regardless, at this point any argument that he "should" have been sent back to his HOR is moot since the decision was made, outside of his choice or preference that he was supposed to be kept in HI to complete the MEB process. h. Throughout this whole process he was in constant contact with the TAMC Reserve affairs and Fort Shafter flats finance personnel. When he brought his first MRP order to finance they pointed out his orders stated he was to receive the same entitlements he received from his previous order. Therefore, he brought this information to Reserve affairs to help him set up the payments in the defense travel system. Reserve affairs was first to explain that the line of accounting on the MRP orders could not be used to fund per diem. This is what lead him to contact Mr. H- and the events described in the MEDCOM section took over. i. He has email communications going back to 1July 2016 with Mr. H-, MEDCOM Human Resources Soldier Transition Support Branch. He anticipated the payment problem and attempted to address it up front. Emails with this department show that he was told he was part of a group of Soldiers all in the same situation and that MEDCOM was working to determine a solution. He was told that one of the cases had been resolved and that MEDCOM was hoping to use that decision as precedence. He was told that a decision had been made to pay per diem to a SGM who was in Virginia facing the same situation he was. j. He was told by MEDCOM to reach out to HRC for funding assistance since HRC issued his first MRP order. His first contact with HRC was through SGM J-. After this point, there was an email chain that he was sent which provide context for how HRC and MEDCOM decided to amend his orders to reflect "No per diem authorized." The last correspondence he received from HRC was through Master Sergeant (MSG) R-. MSG R- told him "A manual travel voucher to claim the SNA is required to claim any reimbursements due to you." He was told this even though they had numerous conversations that the line of accounting on the MRP orders could not be used to fund the per diem. He emailed her back with this concern but never received a response. k. During this entire process he worked with two Ombudsman, at separate time periods. He also brought this action to the TAMC IG at the very beginning. After some time, the TAMC IG office determined they could not help with his case due to his Reserve Component statues. Therefore, they sent his case to the IG at the 99th Readiness Division. l. Only one argument has been raised, based on black letter guidance, for why not to provide him per diem back pay. This information was presented to him by HRC through SGM J-. The email chain shows this information came from MEDCOM through Ms. H-. He was provided with a Memorandum entitled "Extension of Reserve Component Soldiers on Active Duty to Complete Disability Evaluation." They relied on section 4(d). "Upon the expiration of their original order, all Reserve Component Soldiers will be (in coordination with USAMEDCOM) extended on a 12301(h) order and assigned to their home station unit or a unit close to their home of record until the completion of the disability evaluation system process (to include Individual Ready Reserve and individual mobilization augmentee Soldiers. " And he replied to SGM J- with, [in part] "in his case this did not happen. He remained at his TCS location and was not returned to his home station unit or a unit close to his home of record. He also continued to sustain his household goods back at his HOR in during this entire time. And he continued to receive BAH at the rate of the HOR which is considerably less than the BAH in HI and without cost of living allowance." 3. A review of the applicant’s official records show the following on: a. On 2 November 2009, the applicant enlisted in the Regular Army. On 1 November 2012, he was honorably released from active duty and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement). b. On 5 December 2012, Orders Number A-12-221478, issued by HRC, ordered the applicant to Contingency Operation for Active Duty Operational Support (CO-ADOS) for a period of 180 days. These orders show he was activated from his HOR in. c. On 29 October 2013, Orders Number C-10-314814, issued by HRC, reassigned the applicant from the USAR Control Group (Reinforcement) by reason of voluntary request, and assigned him to the 151st Judge Advocate Detachment, Alexandria, Virginia. d. On 10 November 2013, Orders Number A-11-315421, issued by HRC, ordered the applicant from his HOR to CO-ADOS for 293 days. He was assigned to the General Office of the Judge Advocate General, Washington, DC. His tour end date was 30 September 2014. e. On 17 April 2014, Orders Number A-11-315421A01, amended Orders Number A- 11-315421 insomuch as changing his tour length from 293 days to 140 days changing his tour end date to 30 April 2014. f. On 7 May 2014, Orders Number BL-127-0002, issued by Headquarters, U.S. Army Garrison, Fort Bliss, TX, ordered the applicant to active duty in a TCS status in support of Operation Enduring Freedom for a period of 358 days. His CONUS support base was TAMC. These orders state "normal permanent change of station entitlements, allowances and relocation of family members are not authorized." "With a SNA the Soldier was authorized per diem at a 55 percent rate at the local lodging, meals, and incidental per diem rate when the initial order is for 180 days or more, or if subsequent orders exceeds 179 days within a 12 month period." g. On 13 September 2014, Orders Number BL-127-0002A1 amended Orders Number BL-127-0002 insomuch as adding an accounting code. h. The applicant’s records are void of any orders terminating his active duty orders in 2015. i. On 8 April 2016, Orders Number A-04-600746, retained the applicant on active duty for a period of 179 days, with a reporting date of 30 April 2016, to A Company TAMC for the purpose of MEB processing. He was retained in an MRP status, and the projected end date was 25 October 2016. Use of Government quarters and mess was directed. Otherwise a SNA was required. These orders state "this is a consecutive assignment with no break in service. Soldier retains entitlements from previous orders. Initial MRP in accordance with DODI 1332.18." His HOR was identified as. j. The applicant’s records are void of any orders assigning him to a Warrior Transition Unit (WTU) for MEB processing. k. On 12 April 2016, Orders Number A-04-600746A01, issued by HRC, amended Orders Number A-04-600746 insomuch as reassigning the applicant from A Company TAMC to the 153rd Judge Advocate Detachment, Horsham, PA with attachment to A Company TAMC. l. on 22 October 2016, a Physical Evaluation Board (PEB) convened, and the PEB found the applicant physically unfit and recommended a combined rating of 70 percent and his disposition be permanent disability retirement. m. On 14 February 2017, the applicant was honorably retired from active duty by reason of disability, permanent enhanced. 4. The applicant provides: a. IG letter that states in pertinent part, regarding the applicant’s per diem entitlements for Orders Number A-04-600746 to allow you to complete the MEB process. The IG office contacted the HRC G-3 Mobilization/ADOS section and the MEDCOM Human Resource Soldier Transition Branch. It was determined your orders will not be amended to reflect per diem authorized. Their office would take no further action. b. Orders Number 15-110-00001, issued by the Department of the Army Legal Command, Gaithersburg, MD, ordered the applicant to active duty for a period of 365 days to report to the 153rd Judge Advocate Detachment with further assignment to Fort Bragg, NC for mobilization in support of Operation Enduring Freedom. c. TCS RFO worksheet showing his mission location was A Company TAMC and he was attached to the 153rd Judge Advocate Detachment, Forward Detachment 8. d. Orders Number 15-110-00018, issued by Department of the Army Legal Command, amended Orders Number 15-110-00001 insomuch as changing the name of the purpose of the mission. e. Orders Number A-09-602577, issued by Headquarters, U.S. Army MEDCOM, Fort Sam Houston, TX, retained the applicant on active duty for MEB processing for a period of 179 days beginning on 4 October 2016 and ending on 31 March 2017. He was retained in an MRP status. Emphasis on use of Government quarters and mess is directed; otherwise a SNA is required. HOR was identified as. f. Orders Number 027-0020, issued by Headquarters, TAMC, assigned the applicant to Schofield Barracks, HI for separation processing with a retirement date of 14 February 2017. These orders show his HOR as g. Orders Number 032-0010, issued by Headquarters, TAMC, amended Orders Number 027-0020 insomuch as showing the applicant completed over 4 years of active enlisted service. h. DD Form 1351-5 showing Government quarters were not available for the period 30 April 2016 – 14 February 2017, and was endorsed by the TAMC Troop Commander. i. Email correspondence number 1 with Mr. H- wherein Mr. H- informed the applicant they had tentatively resolved the per diem issue and they should be able to apply the same or similar solution to the applicant’s case. Mr. H- would be meeting with the Army G-1 and was hoping to resolve existing cases using the process. In a previous email (not provided) he explained to the applicant he was 1 in a pool of 42 Soldiers in a similar situation related to funding of MRP orders. j. Email correspondence number 2 with MSG R- wherein she informed the applicant that extension on involuntary mobilization orders which placed him in HI (extension for any medical reasons did not qualify for an extension on any contingency operations orders). She also stated Soldiers going through the disability evaluation system did not meet the warrior transition unit criteria that is in place for wounded warriors. She explained to the applicant that a memorandum provided to him provided the guidance pertaining to Reserve Component Soldiers who have started the disability evaluation system process at their duty location to remain on active duty until the MEB was completed. In a response to SGM J_ after SGM J- provided the applicant with the reference pertaining to why the decision was made in his case, the applicant provides his interpretation of the memorandum provided to him. k. Memorandum, Subject: Extension of Reserve Component Soldiers on Active Duty which provides guidance for USAR Soldiers on active duty for greater than 30 days who need their orders extended to complete the disability evaluation process. It states in pertinent part, all Reserve Component Soldiers, with their consent will be extended on active duty 12301(h) orders to complete the disability evaluation system process. Upon the expiration of their original order, all Reserve Component Soldiers will be (in coordination with MEDCOM) extended on a 12301(h) order and assigned to their home station unit or a unit close to their HOR until the completion of the disability evaluation system process (to include Individual Ready Reserve and individual mobilization augmentee Soldiers). l. Email correspondence number between MSG R- , SGM J_, and Ms. H- about a travel line of accounting for the applicant. Ms. H- replied "the Soldier was placed on DODI orders to remain in place at TAMC, later extended to remain at the same location, and separated from the same location." "When did travel occur? " MSG R- states "Soldier is looking for per diem reimbursement but does not have a valid line of accounting. If Soldier did not leave the area, then no line of accounting is required. From past experience, medical orders are not authorized per diem as well, am I correct?" SGM J- replied to MSG R- stating "as per our phone conversation. please amend the orders so they no longer say he [the applicant] is officially entitled to all previous entitlements." 5. On 13 January 2020, by email, a MEDCOM official reviewed the applicant's records and rendered an advisory opinion in his case. After a thorough review, the MEDCOM official opined by email that: a. MEDCOM currently has an memorandum of agreement with HRC dating back to 2015 where they assumed responsibility of 12301h orders specific to the Warrior Care and Transition Program of which the applicant was never enrolled. Later, as referenced by the applicant there was a policy signed on 10 March 2016 that details Soldiers retained on active duty for the purpose of completing the disability evaluation system process will do so at their parent unit or unit closest to home. In this case, was the location the applicant should have been returned to; for whatever reason the orders issuing authority (HRC) for 12301h orders under DODI 1332.18 did not return him to that location. It is worth noting that once a Soldier has completed compensation and pension exams associated with the disability evaluation system process there is no reason for the Soldier to be retained at a site other than what is authorized in the abovementioned policy. b. The applicant makes mention of a case that was adjudicated before there was a policy in place that provided clear guidance on what to do with cases related to the DODI concerned (1332.18), which might be the reason that the individual cited was paid any per diem. MEDCOM's responsibility to publish 12301h orders under the new policy in accordance with DODI 1332.18 did not materialize until September 2016, at which time MEDCOM did in fact publish a "canned" 12301h order for the applicant. It should be noted that the line of accounting listed on the MEDCOM orders is and was for basic entitlements (pay, BAH, etc.). At the time, the orders were published leading up to the response there is still no line of accounting to pay any Soldier for travel related entitlements, which include per diem. He can only speculate that the same applied to HRC when they were the orders issuing authority. c. Any of the orders published by MEDCOM subsequent to the initial 12301h orders (to include any amended orders published by HRC) only afforded the Soldier basic pay with no mention or intent to pay per diem. Upon additional review, it appears that the applicant continues to reside at his residence in Oahu, HI. His current resident address implies that he did not intend to return to and he may own the residence in. If this is the case, I could see him making a claim for BAH and any other HI based entitlements as he was living in his residence, but a claim of 55 percent per diem would not be consistent with residing in a residence that the former Soldier owns. 6. On 3 March 2020, the applicant provided a rebuttal to the advisory opinion that states: a. It is correct that he was not placed in a WTU while going through the MEB process. Instead, he continued the duties which brought him to HI since a replacement had not been identified yet. He addressed the policy letter signed by the Honorable W- in his ABCMR claim letter. Once again, MEDCOM refers to this policy letter (specifically section 4d) in order to attempt to illustrate that he should have been sent back to his HOR. However, two notes of interest dispute this interpretation when applying it to his situation. b. The policy memorandum states "Upon the expiration of their original order, all Reserve Component Soldiers will be (in coordination with MEDCOM) extended on a 12301(h) order and assigned to their home station unit or a unit close to their home of record until the completion of the IDES process"(section 4d). In his situation, his original order never expired. He was placed on a 12301(h) order in HI before his TCS order would have expired. c. As evidenced by the email chain from HRC, HRC provided guidance that since he entered the MEB process before the expiration of his TCS orders he was supposed to stay at the duty location where he entered the MEB process. It was further explained to him, the policy memorandum at question would apply to Reserve Component Soldiers who were identified as having an "Unfitting Condition" while going through the demobilization process. In that case, a Reserve Component Soldier would be sent back to their HOR to complete the MEB process. In contrast, his "Unfitting Conditions" were identified approximately three months before his TCS order was due to expire. d. Of most importance, regardless of what the correct interpretation of the policy memorandum is, an argument that he "should" have been sent back to his HOR is moot. This is because the point of contact noted on this policy memorandum, COL A-, recommended that he was to be kept in HI to complete the MEB process. Therefore, any argument that he cannot receive additional entitlements because he "should" have been sent back to his HOR should hold no weight. e. In their advisory opinion letter, MEDCOM acknowledges that a Soldier was paid per diem, who was in a similar situation as he was in. However, MEDCOM argues, that Soldier’s case was "adjudicated before there was a policy in place that provided clear guidance on what to do with cases related to the DODI concerned (1332.18)" and that "MEDCOM’s responsibility to publish 12301h orders under the new policy in accordance with DODI 1332.18 did not materialize until September 2016". This illustration leaves out the facts that MEDCOM was fully aware that he was already on orders to stay in HI to complete the MEB process. Further, that they cut his second set of orders to keep him in HI even though they knew his HOR was. MEDCOM made no effort at the time they cut his orders to suggest that he should be sent back to his HOR. In fact, as mentioned in his ABCMR claim letter, since the beginning of his MEB process he was in communication with MEDCOM. MEDCOM (Mr. H-) continually told him to "hang tight" since he believed the above-mentioned Soldier’s case would set the president for his case. It was not until he had completed the MEB process in 2017 that MEDCOM finally told him the new policy would not allow for the payment of per diem. f. Further, the argument that the new policy memorandum should control his situation continues to be riddled with holes. MEDCOM says that their responsibilities to publish the 12301h orders did not materialize until September 2016. Therefore, does that mean up until September 2016, the above-mentioned adjudication would be the standard? The ambiguity of this whole situation, he believes, should lead the ABCMR to find that all reasonable doubt should be resolved in the Veteran’s favor. g. MEDCOM argues that all orders published by MEDCOM and the amended order published by HRC "only afforded the Soldier basic pay with no mention or intent to pay per diem." Nowhere on any of the orders does it state such guidance for entitlements. This is a self-serving argument which is not supported by any black letter fact to be found within any of the orders he had received. As noted in his ABCMR claim letter, he was never sent the amended orders which HRC published once he was out of the military, which purportedly states "No per diem authorized." However, he does have the email chain showing what appears to be an arbitrary decision-making process which relies on "published guidance which sends them home, per diem is no longer an issue." Once again, they are applying guidance after the fact which does not even apply since he was not sent "home." h. Finally, as MEDCOM’s letter notes the concept of "intent to pay per diem," it is well established law that permanent place of residence is based wholly on intent. MEDCOM’s letter attempts to suggest that because he still lives in HI "a claim of 55 percent per diem would not be consistent with residing in a residence that the former Soldier owns." This argument is the definition of a red herring being thrown in at the end of their letter to mislead/distract from the fundamentals of this issue. Where he currently lives should have no bearing on the resolution of this issue some three years after he was medically retired from the military. i. His intent is not and has never been to stay in HI. He only stayed in HI because he started school at the University of HI, which he completed in Spring of 2019. Since then, he stayed in HI to study for an exam, take the exam, and complete an apprenticeship of sorts which ended one month ago (February 2020). He is now in the process of seeking employment opportunities outside of HI. Where he currently resides is based on a chain of events which evolved over the course of his two years and nine months while being on orders in HI. Clearly MEDCOM and HRC were all over the place with their guidance while he went through the MEB process. Such guidance left him with no direction to know if he would be sent back to. This hodgepodge turn of life events is exactly why the law for permanent residence is based on intent. His intent has never been to stay in HI; therefore, this part of MEDCOM’s letter should be disregarded. 7. DODI 1332.18, paragraph 3 (Policy) (h) states Reserve Component service members on active duty orders specifying a period of more than 30 days will, with their consent, be kept on active duty for disability evaluation processing until final disposition by the Secretary of the Military Department concerned. 8. Title 10 USC, section 12301(h) states when authorized by the Secretary of Defense, the Secretary of a military department may, with the consent of the member, order a member of a Reserve Component to active duty to be medically evaluated for disability. 9. Memorandum, Subject: Extension of Reserve Component Soldiers on Active Duty to Complete Disability Evaluation states in pertinent part: a. Title 10 USC, section 1218, states that the Secretary of the Army may not discharge or release a Soldier from active duty because of physical disability until he or she has made a claim for compensation, pension, hospitalization, to be filed with the Department of Veterans Affairs, or has refused to make such a claim. DOD policy contained in reference 1a (DODI 1332.18) implements section 1218 directing that Reserve Component Soldiers on active duty orders specifying a period of more than 30 days will, with their consent, be kept on active duty for disability evaluation processing until final disposition. To ensure compliance with Title 10 USC and DOD policy, all Reserve Component Soldiers, with their consent, will be extended on active duty 12301(h) orders to complete the disability evaluation system process. b. The orders issuing authority for the original active duty order is responsible for submitting a request through their component headquarters to MEDCOM to generate and fund 12301 (h) orders through the completion of the disability evaluation system process. Upon the expiration of their original order, all Reserve Component Soldiers will be (in coordination with MEDCOM) extended on a 12301 (h) order and assigned to their home station unit or a unit close to their HOR until the completion of the disability evaluation system process (to include Individual Ready Reserve and individual mobilization augmentee Soldiers). 10. The Army Reserve Care Program website provides: a. That Reserve Component Soldiers must meet all of the following for entry into the Warrior Care and Transition Program: * Soldier’s medical condition(s) incurred or aggravated in the line of duty during an active duty status (contingency or non-contingency) or inactive duty status may qualify for evaluation, treatment, and/or disability evaluation processing while in an active duty status * Soldier’s condition(s) require(s) definitive care (specific treatment or a sequence of treatments lasting 30 days or more, as determined and appropriately documented by a medical authority b. Reserve Component Soldiers who meet the entry criteria may voluntarily apply for Title 10 United States Code Section 12301(h) orders under the MRP. MRP orders voluntarily retain Reserve Component Soldiers on active duty who incur an injury, illness, or disease, or who aggravate a pre-existing medical condition while on active duty in support of a contingency operation. 11. The WTU Consolidated Guidance (Administration) provides ongoing policy and guidance for the care and management of Warriors in Transition. a. Section 2 of chapter 5 provides for pay and allowances. Sub-paragraph g states Per Diem while in attached status for WTU Soldiers. The Assistant Secretary of the Army for Manpower and Reserve Affairs has delegated authority to issue orders for per diem beyond 180 days for WTU Soldiers to Hospital/WTU Commanders in the rank/grade of no lower than COL/O-6. Per diem orders for this category of Soldier will be issued on format 410, attachment orders. Hospital/WTU Commanders will issue attachment per diem orders for a maximum of 365 days. Soldiers issued attachment orders must first check for Government lodging on the installation they are assigned to. If lodging is not available on the installation or their duty location is not on an installation, the Soldier must use Army Lodging Success to obtain housing or a SNA. b. When either Government or contract lodging is not available for an attachment period of less than 180 days, and the Soldier is issued a SNA for lodging to reside on the economy, the Soldier draws the full daily locality per diem rate for the duty location. When the attachment period is for greater than 180 days, the Soldier draws 55 percent of the daily locality per diem rate for the duty location. This rate covers lodging, meals, and incidental expenses. To file for reimbursement at the 55 percent per diem rate, the Soldier is not required to provide any receipts. 12. Joint Travel Regulation (JTR) states per diem allowance is a daily rate meant to cover living expenses. It provides the maximum amount a traveler may be reimbursed for lodging, meals, and incidental expenses. The per diem is based on the rate of the official duty location. Per diem is comprised of three elements: lodgings, meals, and incidental expenses. The Army's contingency operation flat per diem rate for a member assigned temporary duty in excess of 180 days at one location is 55 percent of the applicable maximum locality per diem rate. 13. Army Regulation (AR) 15-185 (ABCMR) states an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. BOARD DISCUSSION: After reviewing the application and all supporting evidence, the Board found that partial relief was warranted. 1. The Board found sufficient evidence that the applicant is entitled to reimbursement of his back pay for per diem for Honolulu, HI for the period 1 May 2016 – 14 February 2017. The Board considered the applicant’s statement, the MEDCOM advisory opinion, and the applicant’s rebuttal. The Board found that regulatory guidance provides for paying per diem at a rate of 55 percent of the applicable maximum locality per diem rate while Soldiers are on TCS orders in excess of 180 days. The Board agreed that the applicant was on TCS orders when his conditions were discovered and he began medical boarding. Regulation calls for a Soldier to be ordered back to home station to complete the medical boarding, but this did not happen in the applicant’s case, through no fault of his own. Therefore, the Board found that he was entitled to per diem at the 55% rate from 1 May 2016 to 14 February 2017. 2. The Board carefully considered the applicant's request for a personal appearance hearing. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :XX :XX :XX GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. 1. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by paying him per diem for Honolulu, HI at the 55% rate from 1 May 2016 to 14 February 2017. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to the personal appearance. 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. ? REFERENCES: 1. Title 10 USC, 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 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. 2. DODI 1332.18 (Disability Evaluation System), paragraph 3 (Policy) (h) states Reserve Component service members on active duty orders specifying a period of more than 30 days will, with their consent, be kept on active duty for disability evaluation processing until final disposition by the Secretary of the Military Department concerned. 3. Title 10 USC, section 12301(h) states when authorized by the Secretary of Defense, the Secretary of a military department may, with the consent of the member, order a member of a Reserve Component to active duty to be medically evaluated for disability. 4. Memorandum, Subject: Extension of Reserve Component Soldiers on Active Duty to Complete Disability Evaluation states in pertinent part: a. Title 10 USC, section 1218, states that the Secretary of the Army may not discharge or release a Soldier from active duty because of physical disability until he or she has made a claim for compensation, pension, hospitalization, to be filed with the Department of Veterans Affairs, or has refused to make such a claim. DOD policy contained in reference 1a (DODI 1332.18) implements section 1218 directing that Reserve Component Soldiers on active duty orders specifying a period of more than 30 days will, with their consent, be kept on active duty for disability evaluation processing until final disposition. To ensure compliance with Title 10 USC and DOD policy, all Reserve Component Soldiers, with their consent, will be extended on active duty 12301(h) orders to complete the disability evaluation system process. b. The orders issuing authority for the original active duty order is responsible for submitting a request through their component headquarters to MEDCOM to generate and fund 12301 (h) orders through the completion of the disability evaluation system process. Upon the expiration of their original order, all Reserve Component Soldiers will be (in coordination with MEDCOM) extended on a 12301 (h) order and assigned to their home station unit or a unit close to their HOR until the completion of the disability evaluation system process (to include Individual Ready Reserve and individual mobilization augmentee Soldiers). 5. The Army Reserve Care Program website provides: a. That Reserve Component Soldiers must meet all of the following for entry into the Warrior Care and Transition Program: * Soldier’s medical condition(s) incurred or aggravated in the line of duty during an active duty status (contingency or non-contingency) or inactive duty status may qualify for evaluation, treatment, and/or disability evaluation processing while in an active duty status * Soldier’s condition(s) require(s) definitive care (specific treatment or a sequence of treatments lasting 30 days or more, as determined and appropriately documented by a medical authority b. Reserve Component Soldiers who meet the entry criteria may voluntarily apply for Title 10 United States Code Section 12301(h) orders under the MRP. MRP orders voluntarily retain Reserve Component Soldiers on active duty who incur an injury, illness, or disease, or who aggravate a pre-existing medical condition while on active duty in support of a contingency operation. 6. The WTU Consolidated Guidance (Administration) provides ongoing policy and guidance for the care and management of Warriors in Transition. a. Section 2 of chapter 5 provides for pay and allowances. Sub-paragraph g states Per Diem while in attached status for WTU Soldiers. The Assistant Secretary of the Army for Manpower and Reserve Affairs has delegated authority to issue orders for per diem beyond 180 days for WTU Soldiers to Hospital/WTU Commanders in the rank/grade of no lower than COL/O6. Per diem orders for this category of Soldier will be issued on format 410, attachment orders. Hospital/WTU Commanders will issue attachment per diem orders for a maximum of 365 days. Soldiers issued attachment orders must first check for Government lodging on the installation they are assigned to. If lodging is not available on the installation or their duty location is not on an installation, the Soldier must use Army Lodging Success to obtain housing or a SNA. b. When either Government or contract lodging is not available for an attachment period of less than 180 days, and the Soldier is issued a SNA for lodging to reside on the economy, the Soldier draws the full daily locality per diem rate for the duty location. When the attachment period is for greater than 180 days, the Soldier draws 55 percent of the daily locality per diem rate for the duty location. This rate covers lodging, meals, and incidental expenses. To file for reimbursement at the 55 percent per diem rate, the Soldier is not required to provide any receipts. 6. JTR states per diem allowance is a daily rate meant to cover living expenses. It provides the maximum amount a traveler may be reimbursed for lodging, meals, and incidental expenses. The per diem is based on the rate of the official duty location. Per diem is comprised of three elements: lodgings, meals, and incidental expenses. The Army's contingency operation flat per diem rate for a member assigned temporary duty in excess of 180 days at one location is 55 percent of the applicable maximum locality per diem rate. 7. AR 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 may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190010148 15 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1