ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 20 November 2020 DOCKET NUMBER: AR20200005934 APPLICANT REQUESTS: a. This case comes before the Army Board for Correction of Military Records (ABCMR) on a voluntary remand from the United States Court of Federal Claims. b. The Plaintiff (hereafter referred to as the "applicant") and the Secretary of the Army requests the ABCMR consider whether the applicant- * was wrongfully denied per diem for fiscal years (FY) 2015, 2016, and 2017 * is authorized back pay of per diem in accordance with the Joint Travel Regulation (JTR), dated 1 October 2014, paragraph 4950 c. NOTE: The fiscal year is the accounting period for the federal government, which begins on 1 October 1 and ends on 30 September. * FY 2014 - 1 October 2013 to 30 September 2014 * FY 2015 - 1 October 2014 to 30 September 2015 * FY 2016 - 1 October 2015 to 30 September 2016 * FY 2017 - 1 October 2016 to 30 September 2017 APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Exhibit A – Legal Brief * Exhibit B – Excerpts from the Joint Travel Regulations, dated 1 October 2014 * Exhibit C – Orders and DD Form 214 (Certificate of Release or Discharge from Active Duty) * Orders, published by the 75th Training Command, Houston, TX, dated 25 September 2014 * Orders, published by the 75th Training Command, Houston, TX, dated 8 October 2014 * DD Form 214 (Certificate of Release or Discharge from Active Duty), ending 26 September 2014 * Orders, published by Headquarters III Corps and Fort Hood, Fort Hood, TX, dated 30 October 2014 * Orders (A1), published by Headquarters III Corps and Fort Hood, Fort Hood, TX, dated 30 October 2014 * Orders (A2), published by Headquarters III Corps and Fort Hood, Fort Hood, TX, dated 1 December 2014 * Orders, published by Headquarters, U.S. Army Medical Command, dated 23 September 2015 * Orders, published by Headquarters, U.S. Army Medical Command, dated 17 November 2015 * Orders published by Headquarters, U.S. Army Medical Command, dated 23 November 2015 * Orders, published by Headquarters, U.S. Army Medical Command, dated 23 November 2015 * Orders, published by Headquarters, U.S. Army Medical Command, dated 2 February 2016 * Orders, published by Headquarters, U.S. Army Medical Command, dated 8 February 2016 * Orders, published by Headquarters, U.S. Army Medical Command, dated 2 February 2016 * Orders, published by Headquarters, U.S. Army Medical Command, dated 8 February 2016 * Orders, published by Headquarters, U.S. Army Medical Command, dated 11 April 2016 * Orders, published by Headquarters, U.S. Army Medical Command, dated 13 July 2016 * Orders, published by Headquarters, U.S. Army Medical Command, dated 26 October 2016 * Orders, published by Headquarters, U.S. Army Medical Command, dated 5 May 2017 * Exhibit D – Audit Report: A-2015-0087-FMX 31 August 2015 * Exhibit E – Letter from the Principal Deputy Assistant Secretary of the Army (PDASA), Manpower and Reserve Affairs (M&RA), Office of the Assistant Secretary of the Army, Manpower and Reserve Affairs ((ASA)M&RA), Subject: Decision on Payment of Temporary Change of Station 55% Per Diem Funds to Selected Task Force Braveheart Soldiers, dated 18 July 2019 * Exhibit F – Leave and Earning Statements (LES) history printouts FACTS: 1. The applicant states the Army Installation Management Command (IMCOM) wrongfully denied per diem because it adopted an erroneous rule purported by the Army Audit Agency (AAA) in Audit Report: A-2015-0087-FMX, dated 31 August 2015. 2. Counsel provides a brief in support of the applicant's requests, which states: a. Nature of Request – (1) Applicant was wrongly denied authorized meals and lodging reimbursement (per diem) pursuant to Title 37 U.S.C. § 474(a)(4) (Travel and Transportation Allowances) and applicable JTR, during fiscal years 2015, 2016, and 2017. Applicant, by and through his attorneys, requests that this Board order Defense Finance and Accounting (DFAS) to authorize back pay of per diem for the years that were wrongly denied. (2) Applicant's request for correction arises from the unlawful decision of the Army to deny him per diem pursuant to Title 37 U.S.C. § 474(a)(4) (Travel and Transportation Allowances) and applicable JTR. This unlawful denial was both inequitable and improper. Within the Department of Defense (DOD), the JTR implement policy and laws establishing travel and transportation allowances of uniformed service members and DOD civilian travelers. The JTR also implement certain other allowances/entitlements, such as per diem rates under certain circumstances. The JTR has the force and effect of law for Soldiers and other DOD employees. Pursuant to the JTR, Applicant was authorized a reduced flat rate per Diem equal to 55% of the locality per diem rate. Applicant submitted claims for per diem payment, but, citing an erroneous rule, the Army, in contravention of its own regulations and the JTR, wrongfully refused to pay the authorized per diem to Applicant for FYs 2015-2017. Applicant seeks to have those errors corrected. b. Statement of Error and Request for Correction – (1) Applicant was a Reserve component (RC) Soldier who was temporarily mobilized from the RC to active duty and assigned to Fort Hood, TX for multiple, temporary tours of duty between FY 2012 and FY 2017. The Secretary of Defense or his designated subordinate authority under DOD Executive Orders authorized these tours. At the conclusion of every temporary tour of duty, the Applicant was released from active duty and ordered to return to his Home of Record (HOR). Applicant served on Temporary Change of Station (TCS) orders that authorized him per diem at a rate of 55% of the locality rate. Applicant submitted claims for per diem payment and his claims were wrongfully denied. (2) The Army based its denial of Applicant's per diem on a rule erroneously propounded in an AAA Report that required that Soldiers must have a multi-day break, sometimes claimed to be 30-days and other times claimed to be 90-days, between two duty assignments at the same installation, even where that installation was not the Soldier's HOR, in order to be authorized per diem. This rule had no statutory or regulatory basis; in fact, it was in direct contravention to applicable statute and regulation. (3) Rather, the JTR dated 1 October 2014 authorized certain service members to collect a per diem while on temporary duty (TDY) assignment. For the purposes of the present case, a TDY tour is one in which a member of the RC is ordered to active duty at a certain location for more than 180 days, at the end of which, the Soldier is ordered to return to his or her HOR. Pursuant to the JTR issued in 2014, a Soldier serving a TDY tour was entitled to a per diem to cover lodging and living expenses at 55% of the locality rate. Soldiers are entitled to this per diem despite the fact that they may serve several TDY assignments at the same location, so long as they are ordered to return to their HOR after each TDY assignment. This per diem authorization was retained, but rewritten, in the JTR dated 1 November 2014 and each subsequent iteration of the JTR retained the verbiage of paragraph 4250(A)(l)(b) until the May 2017 when the JTR abolished the authorization. In other words, each applicable JTR published prior to May 2017 authorized per diem at the 55% rate for long term TDY. Further, each of Applicant's official military orders indicated that he was authorized per diem at the reduced 55% rate (or "authorized per diem in accordance with the JTR"). Nevertheless, citing the above-described erroneous AAA Report rule, the Army, in contravention of its own regulations and the JTR, refused to pay Applicant his authorized per diem for FY 2015, 2016, or 2017. (4) A brief time line of the relevant facts is as follows. Applicant was ordered to active duty by orders dated 29 May 2013 on a PCS tour at Fort Hood, TX, with a report date of 31 May 2013. This period of active duty was later extended through 26 September 2014. Both sets of orders instructed him to "return to [his] home and upon arrival be released from active duty." He was released from active duty on 26 September 2014 and returned to his HOR. He subsequently received an order dated 25 September 2014 that ordered him back to active duty with a report date of 28 September 2014 for 365 days, the order classified this period of service as TCS and authorized per diem at the 55% rate. He reported for duty on 28 September 2014 and was again released from active duty on 25 September 2015 and returned to his HOR. He was ordered back to active duty by orders dated 1 September 2015 with a report date of 1 October 2015 for another 365-day TCS assignment to Fort Hood, Texas; these orders also authorized per diem at the 55% rate. In October 2015, Applicant requested his per diem for FY 2015 in accordance with the JTR and it was denied by the Army. He was again released from active duty on 30 September 2016 and traveled back to his HOR. In FY 2016, he was prevented from requesting his per diem as the Army blocked him from access to the Defense Travel System. He was ordered back to active duty for another 365-day TCS duty to Fort Hood by orders dated 1 October 2016, those orders also authorized per diem at the 55% rate. He was released from active duty on 29 September 2017. He was again prevented from requesting his per diem for FY 2017. Each time the applicant was released from active duty, he received a DD Form 214. (5) On 18 July 2019, in a letter from the PDASA, ASA(M&RA), the Army determined that Applicant was "authorized per diem entitlements for the active duty period beginning in October 2015 and ending in September 2016 and for the active duty period beginning on 1 October 2016 and ending on 30 September 2017." Thus, the Army has admitted, at least for the period between October 2015 and October 2017, that error occurred and that Applicant is owed the per diem sought for those periods. However, in addition to said finding, the Army also erroneously concluded that Applicant was not entitled to per diem for the active duty period beginning on 26 September 2014 and ending on 25 September 2015 based on the fact that Applicant had served a PCS tour prior to the subject TDY tour. This finding was in error because Applicant's PCS tour was also "temporary" in nature as it was a RC mobilization where Applicant was ordered to return to his HOR at the conclusion of his tour. Appendix A to the JTR defines "Permanent Change of Station" as "[t]he assignment, detail, or transfer of [a] member to a different PDS ["Permanent Duty Station"] under a competent travel order that does not specify the duty as temporary, provide for further assignment to a new PDS, or direct return to the old PDS." (emphasis added). In the instant case, Applicant's orders were temporary and directed return to his HOR/RC unit and do not meet the JTR definition of "Permanent Change of Station." (6) Furthermore, the letter from the PDASA, ASA(M&RA) contended that these Soldiers were released from active duty and on the same day returned to active duty. The PDASA, ASA(M&RA) then contends that "several weeks later, the Soldiers were issued amended TCS orders that retroactively changed their effective mobilization date to create a 2-day break in service (BIS) between their current TCS orders and previous PCS orders. The PDASA, ASA(M&RA) then claims, "the JTR prohibits retroactively modifying orders to create or change an allowance. While this is undoubtedly true, it is here irrelevant for two reasons: First, Applicant was released from active duty on 26 September 2014 and that day traveled to his HOR. He was brought back on active duty on 28 September 2014. Second, a Soldier cannot be released from active duty and brought back on active duty on the same day. The reality here is that he was not, the orders were amended to correct an administrative error and to reflect the actual intent of the orders. The JTR specifically provides that an "order may be retroactively corrected to show the original intent." The best evidence of Applicant's break in service is his Leave and Earnings Statements for the period in question, which clearly show that he was on active duty from 1-26 September 2014 and again from 28-30 September 2014. He was not on active duty 27 September 2014 and therefore had the required 1-day break in service. Thus, Applicant is also entitled to authorized per diem entitlement for the active duty period beginning 26 September 2014 and ending 26 September 2015. c. Conclusion - For the foregoing reasons, Applicant respectfully requests that his application for correction of military record be granted and that he be awarded the per diem at issue. 3. The PDASA ASA(M&RA) wrote a letter to the applicant(s) counsel, dated 18 July 2019, Subject: Decision on Payment of Temporary Change of Station 55% Per Diem Funds to Selected Task Force Braveheart Soldiers. This letter will be addressed in its entirety, later in this Record of Proceedings (ROP). However, this letter shows the PDASA ASA(M&RA) previously directed the correction of the portions of this request pertaining to FY 2016 and FY 2017 and there is no evidence that these corrections have not been acted upon; therefore, only the period beginning on 26 September 2014 and ending on 25 September 2015 will be addressed in this ROP. 4. The applicant initially served as an enlisted member in the Texas Army National Guard from 3 February 1984 to 9 September 1996 and subsequently enlisted in the U.S. Army Reserve (USAR) on10 September 1996. 5. Orders A-04-305735, published by the Army Human Resources Command (AHRC), on 19 April 2013, ordered him to active duty for operation support and further ordered him to proceed from his home or current location in time to report and he was further ordered, and upon completing of this duty, unless sooner released, he was directed to return to his home, and upon arrival, be released from active duty. a. These orders direct - * Report Date/Time: 30 May 2013 * Period of Active Duty: 363 days including accumulated leave * End Date: 29 May 2014 * Purpose: Contingency Operation for Active Duty Operational Support * Duty at: Fort Hood, TX * Authority: Title 10, U.S.C. § 12301(D) b. Additional instructions state/direct/authorize– * early reporting not authorized * the Applicant elected to conduct a PCS move during this assignment 6. Orders 266-135, published by Headquarters III Corps and Fort Hood, Fort Hood, TX, on 23 September 2014, released the applicant from active duty effective 26 September 2014. The additional instructions state the applicant was REFRAD for contingency operation Enduring Freedom and the REFRAD is for DEMOB of forces from a contingency operation. Further, his HOR and his place of entry on active duty (EAD) were listed as Hutto, TX. 7. The applicant's DD Form 214 shows he was honorably released from active duty by reason of completion of required active service, on 26 September 2014. He completed 1 year, 3 month, and 27 days during the period covered. 8. Orders 14-268-00076, published by the 75th Training Command, Houston, TX, on 25 September 2014, ordered the applicant to active duty as a member of his Reserve component unit for the period indicated unless sooner released or extended. Proceed from your current location in sufficient time to report by the date specified. You enter active duty upon reporting to unit home station. a. These orders direct - * Report to: 75th Training Command, Detachment 2, Houston, TX on 26 September 2014 * Report to: Fort Hood, TX on 29 September 2014 * Period of Active Duty: 365 days * Purpose: Mobilization for Enduring Freedom (Other than Homeland) (2001- Present) * Authority Line: Title 10, USC, Section 12302 b. Additional instructions state/direct/authorize that– the applicant was ordered to active duty in a TCS status. If upon reporting for active duty, the applicant fails to meet deployment medical standards (whether because of a temporary or permanent medical condition), then the applicant may be released from active duty, returned to his prior Reserve status, and returned to his home address, subject to subsequent orders to active duty upon resolution of the disqualifying medical condition. These orders also state that early reporting not authorized and government quarters and mess will be used if available. A Statement of Non-Availability (SNA) must be obtained if government provided lodging is not available. Additionally, with an SNA, a 55% per diem rate is authorized when the initial order is for 181 days or more or if subsequent orders exceed 180 days within a 12 month period. 9. Counsel provides two Leave and Earnings History Print outs, which show/contain the following information: a. Check date 1 October 2014 – he received pay and entitlements, he performed active duty for training (ADT); however the dates for this training are illegible. b. Check dated 3 October 2014 – He received pay and entitlement and his release from active duty (REFRAD) date is listed as 26 September 2014 10. Orders 14-281-00060, published by the 75th Training Command, Houston, TX, on 8 October 2014 amended Orders 14-268-00076, published by the 75th Training Command, Houston, TX, on 25 September 2014 as follows: a. As reads - Period of active duty: 365 days, Report to: 75th Training Command, Detachment 2, Houston, TX on 26 September 2014. b. How Changed - Period of active duty: 363 days, Report to: 75th Training Command, Detachment 2, Houston, TX on 28 September 2014. 11. Orders HO-303-0055, published by Headquarters III Corps and Fort Hood, Fort Hood, TX, on 30 October 2014 deployed him in a TCS status, and directed him to return to his permanent station upon completion of his tour. a. Additionally, these orders direct: * Assigned to - Headquarters and Headquarters Company, 75th Training Command, Mission Command, Training Division Detachment 2, Houston, TX * Purpose - deployment in support of Operation Enduring Freedom (CONUS Based Support) Fort Hood, TX * Number of days - Not to exceed 364 days * Will proceed on or about – 27 September 2014 * Authority - the authority for these orders was not listed. b. These orders further state: (1) Government quarters and dining facilities will be used at the replacement activity and during deployment. (2) Within 48 hours of receiving these orders, the Soldier must check with the supporting installation housing office before security temporary lodging at the duty location and obtain a DD Form 1351-5 (Government Quarters and/or Mess) authorizing the appropriate entitlements for lodging and M&IE. (3) With a Statement of Non-Availability (SNA), the Soldier is authorized 100% of the local per diem rate when orders are for 179 days or less with receipts, however, the authorized per diem rate will be 55% of the local lodging, meals, and incidental per diem rate when the initial orders is for 180 days or more, or if subsequent orders exceeds 179 days within a 12 month period. (4) For RC Soldiers and retired Soldiers called or ordered to active duty, Basic Allowance for Housing (BAH) is based on principal residence when ordered to active duty in a Temporary Duty (TDY) Status. 12. Orders HO-303-0055 (A2), published by Headquarters III Corps and Fort Hood, Fort Hood, TX, on 1 December 2014, amended Orders HO-303-0046, published by Headquarters III Corps and Fort Hood, Fort Hood, TX, on 30 October 2014 as follows: a. As Reads: * Will proceed on or about – 27 September 2014 * Number of days - Not to exceed 364 days b. How Changed: * Will proceed on or about – 28 September 2014 * Number of days - Not to exceed 363 days 13. Counsel provides a Leave and Earnings History Print outs, which show/contain the following information: Check date 31 October 2014 – he received pay and entitlements, he performed active duty for training (ADT) from 28 September 2014 to 15 October 2014 and for 16 October 2014 to 31 October 2014, and his MOB dated is listed as 28 September 2014. 14. Orders, published by Headquarters, U.S. Army Medical Command, Fort Sam Houston, TX, on 23 September 2015 retained the applicant on active duty under provision of section 12301 (h), Title 10 USC for the period shown plus the time necessary to travel. He was ordered to proceed from his home or current location in time to report for duty on the date shown below. Upon completion of this duty, unless sooner released, he was ordered to return to his home and upon arrival be released from active duty. These orders direct – * Report to: Fort Hood, TX * Report date: 24 September 2015 * End date: 22 November 2015 * Period of Active Duty: 60 days * Purpose: to participate in Reserve Component medical hold transfer for completion of medical care and treatment * Authority: Title 10, USC Sections 12301(H), 1074(A), and 12322 * Additional instructions: No break in service 15. Orders, published by Headquarters, U.S. Army Medical Command, Fort Sam Houston, TX, on 17 November 2015 amended Orders, published by Headquarters, U.S. Army Medical Command, Fort Sam Houston, TX, on 23 September 2015, as follows: a. As Reads: * Period of Active Duty: 60 days * End date: 22 November 2015 b. How Changed: * Period of Active Duty: 90 days * End date: 22 December 2015 16. Orders, published by Headquarters, U.S. Army Medical Command, Fort Sam Houston, TX, on 23 November 2015 amended Orders, published by Headquarters, U.S. Army Medical Command, Fort Sam Houston, TX, on 23 September 2015, as follows: a. As Reads: * Period of Active Duty: 90 days * End date: 22 December 2015 b. How Changed: * Period of Active Duty: 61 days * End date: 23 November 2015 17. Orders, published by Headquarters, U.S. Army Medical Command, Fort Sam Houston, TX, on 23 November 2015 retained the applicant on active duty under provision of section 12301 (h), Title 10 USC for the period shown plus the time necessary to travel. He was ordered to proceed from his home or current location in time to report for duty on the date shown below. Upon completion of this duty, unless sooner released, he was ordered to return to his home and upon arrival be released from active duty. These orders direct – * Report to: Fort Hood, TX * Report date: 24 November 2015 * End date: 20 May 2016 * Period of Active Duty: 179 days * Purpose: to participate in Reserve Component medical hold transfer for completion of medical care and treatment * Authority: Title 10, USC Sections 12301(H), 1074(A), and 12322 * Additional instructions: No break in service 18. Orders, published by Headquarters, U.S. Army Medical Command, Fort Sam Houston, TX, on 2 February 2016 amended Orders, published by Headquarters, U.S. Army Medical Command, Fort Sam Houston, TX, on 23 September 2015, as follows: a. As Reads: * Period of Active Duty: 179 days * End date: 20 May 2016 b. How Changed: * Period of Active Duty: 87 days * End date: 18 February 2016 19. Orders, published by Headquarters, U.S. Army Medical Command, Fort Sam Houston, TX, on 8 February 2016 amended Orders, published by Headquarters, U.S. Army Medical Command, Fort Sam Houston, TX, on 23 September 2015, as follows: a. As Reads: * Period of Active Duty: 87 days * End date: 18 February 2016 b. How Changed: * Period of Active Duty: 90 days * End date: 21 February 2016 20. Orders, published by Headquarters, U.S. Army Medical Command, Fort Sam Houston, TX, on 2 February 2016 retained the applicant on active duty under provision of section 12301 (h), Title 10 USC for the period shown plus the time necessary to travel. He was ordered to proceed from his home or current location in time to report for duty on the date shown below. Upon completion of this duty, unless sooner released, he was ordered to return to his home and upon arrival be released from active duty. a. These orders direct – * Report to: Fort Hood, TX * Report date: 19 February 2016 * End date: 20 May 2016 * Period of Active Duty: 92 days * Purpose: to participate in Reserve Component medical hold transfer for completion of medical care and treatment (Initial) * Duty at: Hutto, TX * Authority: Title 10, USC Sections 12301(H), 1074(A), and 12322 b. Additional instructions state/direct/authorize– * Soldier must report no later than 1600 hours. Transfer * Shipment of HHG and dependents not authorized * Applicant is retained on active duty to complete medical care and treatment in current Reserve grade (Title 10, USC 12322) * If applicable, all retirement/Physical disability processing must be concluded before orders expire * Applicant will be entered into physical disability evaluation system (PDES) processing at the earliest determination * REFRAD is requested upon completion of medical care and PDES * No break in service * Government quarters and Mess is directed; otherwise a statement of non- availability is required 21. Orders, published by Headquarters, U.S. Army Medical Command, Fort Sam Houston, TX, on 8 February 2016, amended Orders, published by Headquarters, U.S. Army Medical Command, Fort Sam Houston, TX, on 2 February 2016 as follows: a. As Reads: * Report date: 19 February 2016 * End date: 20 May 2016 b. How Changed: * Report date: 22 February 2016 * End date: 23 May 2016 22. Orders, published by Headquarters, U.S. Army Medical Command, Fort Sam Houston, TX, on 11 April 2016, amended Orders, published by Headquarters, U.S. Army Medical Command, Fort Sam Houston, TX, on 2 February 2016 as follows: a. As Reads: * Period of Active Duty: 92 days * End date: 23 May 2016 * Purpose: to participate in Reserve Component medical hold transfer for completion of medical care and treatment (Initial) * Additional Instructions: Soldier must report no later than 1600 hours. Transfer b. How Changed: * Period of Active Duty: 271 days * End date: 18 November 2016 * Purpose: to participate in Reserve Component medical hold transfer for completion of medical care and treatment (Extension) * Additional Instructions: Soldier must report no later than 1600 hours. Extension 23. Orders, published by Headquarters, U.S. Army Medical Command, Fort Sam Houston, TX, on 26 October 2016, amended Orders, published by Headquarters, U.S. Army Medical Command, Fort Sam Houston, TX, on 26 October 2016 as follows: a. As Reads: * Period of Active Duty: 271 days * End date: 18 November 2016 * Additional Instructions: Soldier must report no later than 1600 hours. Extension b. How Changed: * Period of Active Duty: 450 days * End date: 16 May 2017 * Additional Instructions: Extension 24. Orders, published by Headquarters, U.S. Army Medical Command, Fort Sam Houston, TX, on 5 May 2017 retained the applicant on active duty under provision of section 12301 (h), Title 10 USC for the period shown plus the time necessary to travel. He was ordered to proceed from his home or current location in time to report for duty on the date shown below. Upon completion of this duty, unless sooner released, he was ordered to return to his home and upon arrival be released from active duty. a. These orders direct – * Report to: Fort Hood, TX * Report date: 17 May 2017 * End date: 11 November 2017 * Period of Active Duty: 179 days * Purpose: to participate in Reserve Component medical hold transfer for completion of medical care and treatment (Extension) * Duty at: Hutto, TX * Authority: Title 10, USC Sections 12301(H), 1074(A), and 12322 b. Additional instructions state/direct/authorize– * Applicant is retained on active duty to complete medical care and treatment in current Reserve grade (Title 10, USC 12322) * If applicable, all retirement/Physical disability processing must be concluded before orders expire * Applicant will be entered into physical disability evaluation system (PDES) processing at the earliest determination * REFRAD is requested upon completion of medical care and PDES * No break in service * Government quarters and Mess is directed; otherwise a statement of non- availability is required 25. Orders, issued by Headquarters III Corps and Fort Hood, Fort Hood, TX, on 31 July 2017, released the applicant from active duty because of physical disability incurred while entitled to basic pay and under conditions that permitted his retirement for permanent physical disability. On the date placed on the retired list, he was transferred to the USAR Control Group (Retired). * Effective date of Retirement: 23 September 2017 * Date Placed on Retirement List: 24 September 2017 26. Orders, published by Headquarters III Corps and Fort Hood, Fort Hood, TX, on 5 November 2017 revoked Orders, published by Headquarters III Corps and Fort Hood, Fort Hood, TX, on 23 September 2014. (Orders 266-0135 released the applicant from active duty effective 26 September 2014.) 27. Memorandum, published by Headquarters III Corps and Fort Hood, Fort Hood, TX, on 6 November 2017, Subject: Voiding DD Form 214 for (Applicant), states the applicant's DD Form 214 for the period ending 26 September 2014 is voided. The applicant was extended on active duty after his DD Form 214 was issued on 23 September 2014. Additionally, a new DD Form 214 would be issued to reflect the full period of the applicant's active duty service. (A copy of the Voided DD Form 214 is attached to this memorandum.) 28. The applicant's new/reissued DD Form 214 covers the period from 29 April 2014 through 23 September 2017, and shows the applicant was honorably retired by reason of disability, permanent (enhanced). This form also shows he completed 4 years, 4 months, and 25 days of active service during the period covered. 29. The U.S. Army Audit Agency (AAA), Mobilized Soldiers on Temporary Change of Station Orders - First U.S. Army (Audit Report), dated 31 August 2015; outlines the AAA audit of mobilized Soldiers on temporary change of station (TCS) orders, conducted at the request of the Chief of Staff, First U.S. Army. The objective was to verify that policy and procedures governing the transition from 12301(d) permanent change of station (PCS) voluntary orders to 12302 TCS involuntary mobilization orders for U.S. Army Reserve Soldiers were sufficient to ensure valid travel entitlements and authorizations. First U.S. Army asked the AAA to review policy and procedures governing the transition from 12301(d) PCS orders to 12302 TCS orders, specifically as they affected 146 First Army Reservists identified by U.S. Army Installation Management Command as receiving potentially inappropriate per diem associated with TCS orders. [See the AAA Audit report in the supporting evidence file for full details] a. The objective of the AAA audit was to verify that policy and procedures governing the transition from 12301(d) permanent change of station voluntary mobilizations to 12302 temporary change of station involuntary mobilizations for Soldiers were sufficient to ensure valid travel entitlements and authorizations. b. To complete the analysis, AAA reviewed pertinent policy, such as the Joint Travel Regulation (JTR) and general messages to all Army activities (ALARACTs). The AAA also obtained access to various Army systems, enabling them to build a complete mobilization order history for each Soldier in their scope. (1) In June 2011, to reduce costs associated with mobilized Soldiers, the Office of the Deputy Chief of Staff, G-1 issued ALARACT 384/2011, changing 12301(d) PCS voluntary mobilizations from TCS to PCS. According to the Joint Travel Regulation (JTR), Soldiers cannot transition from a PCS status to a TCS status at the same duty location without a break in service of at least 1 day. Therefore, mobilized Reserve Soldiers on 12301(d) PCS orders cannot transition to 12302 TCS orders at the same duty location without a break in service. (2) Reports A-2012-0009-FFS (Implementing the Temporary Change of Station Action Plan), dated 9 November 2011; and A-2013-0106-MTS (Time-Sensitive Issue- Opportunity to Reduce Expenditures--Follow-up Audit-Active Duty Operational Support for Contingency Operations Outside of Theater), dated 6 June 2013 found that while the Army realized savings by issuing new guidance related to TCS orders, additional savings could be realized. The AAA recommendations included requiring a PCS for requirements identified as enduring/long-term and seeking relief from hiring freezes and restrictions on contingency funding to fill Reserve Soldier-staffed positions with less costly civilians. (3) In June of 2014, the Chief of Staff, First U.S. Army asked the AAA to review the circumstances surrounding the indebtedness of First Army Soldiers due to erroneous payments of temporary change of station (TCS) entitlements. At that time, U.S. Army Installation Management Command (IMCOM) identified 146 First Army Soldiers who potentially received unauthorized TCS entitlements. The AAA reviewed applicable policy and guidance to determine the proper procedures surrounding a mobilized Soldier and the transition from permanent change of station (PCS) to TCS orders at the same duty location. The orders used to fill support positions for contingency operations are authorized under 10 U.S.C. Sections 12301(d) for PCS and 12302 for TCS. Details for each order type follow. (a) 12301(d), PCS orders are voluntary individual orders. After an individual requirement is identified, the Office of the Deputy Chief of Staff, G-3/5/7 validates it. The office also confirms that the position is temporary and in support of contingency operations. The position is then posted to an online application system called Tour of Duty. Individual Soldiers can search for positions and apply. The gaining unit commander (called the force requester) reviews submission packets, selects a Soldier, and notifies U.S. Army Human Resources Command (HRC) (the order-issuing authority). (b) 12302, TCS orders are involuntary unit mobilization orders. Regarding the Reserve Soldiers we reviewed, U.S. Army Forces Command identifies the need to mobilize Soldiers in support of a presidentially declared national emergency. For the Soldiers in the scope, First Army identifies the Reserve unit to mobilize and the 85th and 87th Reserve Support Commands are the order-issuing authorities. Although 12302 TCS orders are referred to as involuntary, Soldiers can apply and become attached to the mobilized unit-essentially volunteering for the tour of duty. Since the beginning of FY 13, First Army has issued more than 1,280 TCS mobilization orders. c. To determine the validity of TCS entitlements for the 146 Soldiers in their scope, the AAA identified if a break in service greater than 1 day occurred between orders to the same duty location. To complete this analysis, the AAA obtained access to DIS (the system in which Soldiers uploaded their most recent orders to obtain TCS entitlements). The AAA also gained access to the DA Mobilization Processing System (DAMPS) for historical PCS orders. The AAA documented order start, end, amendment, and issue dates to identify if a break in service occurred between PCS and TCS orders. d. The AAA reviewed/analyzed 146 mobilized Reserve Soldiers who transitioned from PCS to TCS orders and found/determined that: (1) 100 Soldiers had a break in service of less than a 1 day between the 12301(d) PCS and 12302 TCS orders, resulting in their unauthorized receipt of TCS entitlements and subsequent indebtedness. These 100 Soldiers also potentially received incorrect monthly BAH payments. (2) 13 mobilized Soldiers received TCS entitlements in accordance with the strict wording but not the intent or the spirit of the JTR or Army guidance. However, because these Reserve Soldiers remained at the same duty location with less than a 30-day break in service and knew of the follow-on order ahead of time, the AAA does not believe the intent of the JTR and the ALARACT were met. According to IMCOM, as commanders became familiar with the 1-day break in service requirement, they began making sure Soldiers had a longer break in service so they could receive TCS entitlements. (3) Of these 113 Soldiers, 100 had their 12301(d) PCS orders amended to end early so they could begin a 12302 TCS order. e. Conclusion - Policy and procedures governing the transition from 12301(d) PCS voluntary mobilizations to 12302 TCS involuntary mobilizations for Reserve Soldiers were not sufficient to ensure valid travel entitlements and authorizations. We reviewed 146 mobilized Soldiers who transitioned from PCS to TCS orders; 100 of them received unauthorized TCS entitlements. (1) This occurred because guidance was not clearly communicated; mobilization processes lacked key controls and oversight; and entitlements incentivized Soldiers to return to TCS orders; as a result, 100 First Army Soldiers received unauthorized TCS entitlements and owe approximately $1.5 million. (2) In addition, the 100 Soldiers who obtained TCS entitlements also received incorrect basic allowance for housing and family separation payments. This resulted in an additional $560,000 in potential overpayments. (3) Lastly, of the 113 Soldiers who received entitlements not in accordance with the intent of the JTR, 100 Soldiers' PCS orders ended early to begin TCS orders. f. To prevent Reserve Soldiers from receiving unauthorized entitlements, First Army should issue a fragmentary order to clarify guidance on transitioning from TCS to PCS. First Army should also require approval by its Chief of Staff for any request to end PCS orders early to transition to TCS orders. In addition, it should direct the 85th and 87th Reserve Support Commands to adjust mobilization orders to include a statement explaining that Soldiers previously given PCS orders to the same duty station are not authorized TCS entitlements. 30. On 11 July 2019, counsel filed a class action complaint in the United States Court of Federal Claims, on behalf of the applicant and 9 other Soldiers. (For full details see full complaint is located in supporting documents). The particulars of this complaint, as applicable to the applicant were previously addressed within this record of proceedings. 31. The Principal Deputy Assistant Secretary of the Army (PDASA) Manpower and Reserve Affairs (M&RA), Office of the Assistant Secretary of the Army, Manpower and Reserve Affairs ((ASA)M&RA) wrote a letter to the applicant(s) counsel, dated 18 July 2019, Subject: Decision on Payment of Temporary Change of Station 55% Per Diem Funds to Selected Task Force Braveheart Soldiers, states: a. The PDASA apologized for the delay in responding to counsel's initial letter dated 7 March 2018. The PDASA reviewed and considered counsel's request on behalf of thirteen (13) U.S. Army Reserve Soldiers called to active duty between 2013 and 2017 to perform military duties at Fort Hood, Texas, as part of Task Force Braveheart. After careful consideration of this matter, legal advice, and review of the supporting documents for six Soldiers that are representative of all 13 Soldiers, the PDASA determined that these Soldiers are not authorized per diem entitlements for the active duty period beginning on 26 September 2014 and ending on 25 September 2015. However, the Soldiers are authorized per diem entitlements for the active duty period beginning in October 2015 and ending in September 2016, and for the active duty period beginning on 1 October 2016 and ending on 30 September 2017. b. The subject Soldier(s) served on active duty during the period 2013-2014 under Title 10 United States Code (USC), Section 12301(d) permanent change of station (PCS) orders, and per diem entitlements were not authorized. Entitlements for this period of active duty are not at issue. These Soldiers were released from active duty under these PCS orders and on the same day were ordered back to active duty under 10 USC Section 12302 temporary change of station (TCS) orders. Several weeks later, the Soldiers were issued amended TCS orders that retroactively changed their effective mobilization date to create a 2-day break in service (BIS) between their current TCS orders and previous PCS orders. However, the Joint Travel Regulations (JTR) prohibits changing a permanent duty station (PDS) to a temporary duty station once PDS travel is complete. Moreover, the JTR prohibits retroactively modifying orders to create or change an allowance. Because the Soldiers were already residing at Fort Hood on PCS orders, and because there was no actual BIS between their PCS orders and TCS orders, the Soldiers are not entitled to TCS for this active duty period. That their orders were retroactively amended to create an entitlement runs contrary to the JTR. c. During both the third and fourth periods of active duty (2015-2016 and 2016- 2017) under TCS orders, the subject Soldiers had a break in service before being called back to active duty. This break in service exceeded one full day, and the Soldiers returned to their home/primary residence prior to reporting to Fort Hood to perform active duty. Therefore, they are entitled to per diem allowances for these periods. d. In order to coordinate with the appropriate paying offices for the 13 Soldiers listed below [10 of whom were included in the subject Court-Remand, and one of who is the applicant in this case], the PDASA requested that counsel's office submit an individual file with all applicable active duty orders, release from active duty orders, and DD Form 214, Certificate of Release or Discharge from Active Duty, to the following address: Headquarters Department of the Army, Office of the Deputy Chief of Staff, G-1 (DAPE- PRC), Room 28453, 300 Army Pentagon, Washington, DC 20310-0300. The PDASA informed Counsel that the files would be forwarded within five business days to the appropriate reserve pay and travel pay office for audit and payment and that the Pay offices will have 30 days from receiving the files to complete the audit and issue payment. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that partial relief was warranted. 2. The Board considered the arguments of the applicant’s counsel and all evidence of record, to include evidence submitted by applicant and his counsel. Applicant’s counsel asserts the applicant was wrongly denied authorized meals and lodging reimbursement (per diem) during fiscal years 2015, 2016, and 2017. Applicant’s counsel requests that the Board “order” Defense Finance and Accounting (DFAS) to authorize back pay of per diem for these time periods. As an initial matter, DFAS is a Department of Defense agency. This Board, therefore, lacks authority to issue “orders” to DFAS. The Board may, however, direct that military records pertaining to the applicant be corrected if an error or injustice is demonstrated by a preponderance of evidence. The issue presented in this case is whether the applicant is entitled per diem payments pertaining to three distinct time periods during which the applicant was mobilized for active duty. Applicant’s counsel has identified these time periods as fiscal years 2015, 2016, and 2017. Applicant’s counsel is correct that the applicant’s mobilization orders for fiscal year 2015 (which began in September 2014 and terminated in September 2015) authorized per diem payments. However, the start date of the orders for fiscal year 2015 failed to create any break in service relative to the applicant’s orders that covered fiscal year 2014. This absence of a break in service is important because the Joint Travel Regulation prohibits a change in a Soldier’s permanent duty station for pay purposes, to include per diem payments, unless there was a break in service of more than one day between the original orders and the new orders. Because of the absence of a break in service, per diem payments to the applicant were denied. Upon denial of the applicant’s payments, the orders for fiscal year 2015 were retroactively amended to create a false break in service. The Board found this attempt to retroactively change the orders to be extraordinary and indicative of the “TCS (Temporary Change of Station) Culture” identified and discussed by the U.S. Army Audit Agency in its 2015 report. The Board finds that this attempt to retroactively create a false break in service clearly was undertaken to “create [a] change in allowance.” The Joint Travel Regulation, however, specifically prohibits this kind of retroactive revocation and / or amendment of orders. The Board finds that the fiscal year 2015 orders were amended after the fact in order to create a break in service that would purportedly justify the relevant TCS / per diem entitlements, and were therefore unlawful. The Board concurs with the rationale for denying the applicant’s request for fiscal year 2015 per diem payments articulated by the Principal Deputy Assistant Secretary of the Army (PDASA) in his 18 July 2019 letter to the applicant’s counsel. The Board therefore finds that the applicant’s request relative to fiscal year 2015 was properly denied. Overall, the Board also finds that the applicant and his counsel have failed to demonstrate by a preponderance of evidence that an error or injustice occurred relative to the fiscal year 2015 time period that would justify relief. With respect to the applicant’s assertion that he was wrongly denied per diem entitlements for fiscal years 2016 and 2017, the Board notes that the aforementioned PDASA letter appears to already have authorized the relief the applicant seeks from this Board. The Board concurs with the PDASA’s decision and the rationale articulated in his 18 July 2019, even though the TCS orders for these fiscal years also appear to reflect the regrettable “TCS Culture” previously discussed. Unlike the applicant’s TSC orders for fiscal year 2015, the TCS orders for fiscal years 2016 and 2017 reflect a contemporaneous break in service rather than a retroactively created break in service. Consequently, the Board concurs with the PDASA’s decision and rationale in this regard and finds that relief is warranted to the extent expressed in the PDASA’s letter. It should be noted, however, that this Board is specifically not authorizing any relief in excess of that which is provided for in the PDASA letter. Furthermore, the Board is not authorizing relief on the applicant’s behalf if the applicant already has obtained the payments that appear to have been authorized by the PDASA’s letter. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected: - To show the applicant’s eligibility for per diem entitlements for the active duty period beginning in October 2015 and ending in September 2016, and for the active duty period beginning on 1 October 2016 and ending on 30 September 2017, and; - Paying the applicant per diem based on the correction above less any payments the applicant already has obtained that appear to have been authorized by the PDASA’s letter. 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 relief in excess of that described above. 11/24/2020 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. REFERENCES: 1. Title 10 U.S. Code § 12301 – Reserve components generally - 12301(d) reads, "at any time, an authority designated by the Secretary concerned may order a member of a reserve component under his jurisdiction to active duty, or retain him on active duty, with the consent of that member." 2. Title 10 U.S. Code § 12302 - Ready Reserve – reads: a. 12302(a) - In time of national emergency declared by the President after January 1, 1953, or when otherwise authorized by law, an authority designated by the Secretary concerned may, without the consent of the persons concerned, order any unit, and any member not assigned to a unit organized to serve as a unit, in the Ready Reserve under the jurisdiction of that Secretary to active duty for not more than 24 consecutive months. b. 12302(b) - To achieve fair treatment as between members in the Ready Reserve who are being considered for recall to duty without their consent, consideration shall be given to— (1) the length and nature of previous service, to assure such sharing of exposure to hazards as the national security and military requirements will reasonably allow; (2) family responsibilities; and (3) employment necessary to maintain the national health, safety, or interest. c. 12302(c) - Not more than 1,000,000 members of the Ready Reserve may be on active duty, without their consent, under this section at any one time. 3. Title 37 U.S. Code §?474. (Travel and transportation allowances: general), provides, in pertinent part, except as provided under regulations prescribed by the Secretaries concerned. a. Subsection (b) - The Secretaries concerned may prescribe—the conditions under which travel and transportation allowances are authorized. In prescribing such conditions and allowances, the Secretaries concerned shall provide that a member who is performing travel under orders away from his designated post of duty and who is authorized a per diem under clause (2) of subsection (d) shall be paid for the meals portion of that per diem in a cash amount at a rate that is not less than the rate established under section 1011(a) of this title for meals sold to members. The preceding sentence shall not apply with respect to a member of a unit with respect to which the Secretary concerned has determined that unit messing is essential to the accomplishment of the unit’s training and readiness. Under regulations prescribed by the Secretaries concerned, a member of a uniformed service entitled to travel and transportation allowances under subsection (a) is entitled to any of the following: (A) A per diem allowance at a rate not to exceed that established by the Secretaries concerned; (B) Reimbursement for the actual and necessary expenses of official travel not to exceed an amount established by the Secretaries concerned; (C) A combination of payments described in subparagraphs (A) and (B). b. Subsection (d) - A per diem allowance or maximum amount of reimbursement established for purposes of paragraph (2) shall be established, to the extent feasible, by locality. The Secretary of a military department shall not alter the amount of the per diem allowance, or the maximum amount of reimbursement, for a locality based on the duration of the temporary duty assignment in the locality of a member of the armed forces under the jurisdiction of the Secretary. 4. All Army Activities (ALARACT) 384-2011, dated 17 October 2011, Subject: Reserve Component (RC) Soldiers Serving on Active Duty in Excess of 180 days, Permanent Change of Station (PCS) Policy Implementation Guidance, Cancels and replaces ALARACT message 053/2008 and provides implementation guidance for all references noted in this message for Reserve Components (RC) Soldiers performing active duty in support of Contingency Operations (CONOPS). The policies in this message apply to all RC Soldiers (including retiree recalls called to duty under 10 USC Section 688 or 12301d) regardless of component, performing active duty outside of a designated hostile fire or imminent danger pay area IAW DOD FMR 7000.14r or designated hazardous duty area. The Army will PCS RC Soldiers to perform validated CONOPS requirements. An approval from the office of the ASA (M&RA) is required for all exceptions to policy (ETP). a. Purpose. To cancel and replace all Army Activities (ALARACT) Message Number 053/2008 effective 1 June 2011 and to publish implementation guidance for ALARACT 112/2011 for RC Soldiers performing active duty in support of the CONOPS. References M [Memorandum, ASA(M&RA), dated 21 March 2011, Subject: Policy for Reserve Component (RC) Soldiers serving on active duty in excess of 180 days] &N [ALARACT 112/2011, 23 March 2011, Policy for Reserve Component (RC) Soldiers serving on active duty in excess of 180 days] remain in effect except to the extent modified by this message. Chapter 8 of the Personnel Policy Guidance (PPG) will be updated IAW with this guidance. b. Applicability. This guidance applies to all RC Soldiers and retiree recalls who volunteer to serve outside a designated hostile fire or imminent danger pay area or hazardous duty area on active duty in support of CONOPS under the authority of Title 10 U.S. Code Sections 12301(d) or 688. This policy does not apply to RC Soldiers on active duty under authority of 10 U.S. Code Sections 12301(h), 12302 and 10 U.S. Code Section 12304. c. Intent. To ensure continued mission success, and maximize efficiencies while balancing the needs of RC Soldiers and their families and; to implement new policy guidance regarding use of PCS for RC Soldiers serving on active duty in excess of 180 days. d. Policy. References M [Memorandum, Assistant Secretary of The Army (Manpower and Reserve Affairs), 21 March 2011, Subject: Policy for Reserve Component (RC) Soldiers Serving on Active Duty in Excess of 180 Days] & N [ALARACT 112/2011, 23 March 2011, Policy for RC Soldiers Serving on Active Duty in Excess of 180 Days] established that effective 1 June 2011, RC Soldiers will no longer be authorized the option of CONPOS flat rate per diem (TCS-55%) tours. Permanent change of station (PCS) travel and transportation allowances must be paid to all RC Soldiers and retiree recall Soldiers on voluntary duty for more than 180 days at any one location. e. Responsibilities: (1) Army G-3/5/7. G3/5/7 (DAMO-ODM) will validate all requirements for CONOPS support as defined in Title 10, USC Section 101 (A) (13) and consistent with ASA (FMC) Financial Management Guidance in Support Of Contingency Operations. (2) ARMY G-1. G1 (DAPE-PR) will review, as addressed in this ALARACT, all ETP requests. (3) IMCOM. IMCOM G-8 is responsible for establishing funding control to include providing oversight on the execution of the funds of all approved contingency TCS/TDY orders via Defense Travel System (DTS) for all Soldiers who serve outside a designated hostile fire or imminent danger area or hazardous duty area on active duty in support of overseas operations. (4) Army Budget Office (ABO). ABO (SAFM-BUO-M) is responsible for all PCS funding. (5) Force Requestors. Prior to submitting RC Soldier's request for active duty, force requestors will brief RC Soldiers on authorized PCS allowances and any potential hardship during the period of active duty. f. Transitional provisions for RC PCS status over 180 days. (1) ETP requests are not required for RC Soldiers serving on CONOPS flat rate per diem or full per diem orders as of the effective date of this policy; and may continue to serve and receive per diem until the expiration date on the order or through 1 June 2012 whichever comes first. No extensions will be granted to current orders to continue contingency operation flat rate per diem or full per diem beyond the end date of the existing order. (2) All TCS/TDY requests with effective date prior to 1 June 2011 will be processed IAW with provisions of ALARACT 053/2008. (3) Temporary CONOPS requirements will not be filled for more than 180 days within any 365-days period. Requesting commands may not submit successive requests for temporary requirements. (4) RC Soldiers currently serving under TCS/TDY orders may transition to PCS orders without a break in service provided the continued CONOPS requirement is validated by G3/5/7 (DAMO-ODM). g. Authority. Authority to approve exceptions to this policy rests solely with the office of the ASA (M&RA) (DASA-MP) and exceptions will be limited. In circumstances where commands have identified mission objectives or unusual circumstances that require TCS orders at one location for more than 180 consecutive days, ETP may be considered. All requests for ETP must be endorsed by a Major General or higher, demonstrate significant negative mission impact and forwarded to the office of the ASA (M&RA) (DASA-MP) thru Army G-1 (DAPE-PR) for decision. h. Coordinating instructions for ETP requests. (1) Request for ETP should be submitted NLT 120 days prior to tour start date. (2) Force requestor should submit ETP requests electronically to . Address ETP request memorandum thru Headquarters Department of the Army, Office of the Deputy Chief of Staff, G-1, ATTN: DAPE-PR, 300 Army Pentagon, Washington, DC 20310- 0300 for Deputy Assistant Secretary of the Army Military Personnel, ATTN: DASA- MP,111 Army Pentagon, Washington, DC 20311-0111. (3) THE ARMY G-3/5/7 (DAMO-ODM) will validate the CONOP mission requirements consistent with this guidance while Army G-1 (DAPE-MP) will validate requirements for admin retiree recall. The office of the ASA (M&RA) (DASA-MP) will remain the final approving authority. (4) All ETP requests must include a statement of the significant negative mission impact that would be incurred if the ETP request is not approved and, at minimum, the following information: duty location, duty position and description, duration of request, type (indicate if ETP is for an individual or group),length of time soldier has been performing the same tasks for the command, the requesting command's ability to staff positions with DOD civilian or contract personnel, impact and effect on mission, and action(s) taken by support command to document TDA structure as a permanent capability. i. Implementation guidance for RC PCS orders IAW references M&N. (1) PCS orders will be published IAW references F [Joint Federal Travel Regulations, Volume 1 (JFTR)] and G [DOD Financial Management Regulation (FMR) 7000.14R] for any RC Soldier who agrees to serve in a validated CONOPS requirement in excess of 180 days at any one location. PCS order start dates must allow time for travel from the Soldier's Place of Entry on Active Duty (PLEAD) and inprocessing requirements prior to report date. PCS order end dates must allow time for outprocessing, accrued leave and return to PLEAD. (2) PCS orders may be issued for a duty up to 730 days (2 years) with a possible 365 days (1 year) extension thereafter as long as soldier does not exceed 1095 days within any 1460 days (4 years) period for: (A) RC Soldiers ordered to duty under 10 USC 12301(D); provided they have sufficient time remaining in their service obligation period; and (B) retirees recalled to active duty under 10 USC 12301(D). The 1095 rule does not apply to 10 USC 688. (3) PCS allowances may be authorized for validated CONOPS tours in excess of 180 days; however, requesting commands shall make every effort to avoid PCS tour requests for less than 365 days and must submit to G-3/5/7 (DAMO-ODM) a clear justification of CONOPS requirements for any requests with RC Soldiers serving on PCS tours for less than 365 days. IAW reference E [Department of Defense Instructions (DODI) 1315.18, Procedures for Military Personnel Assignments, 12 January 2005] & I [Army Regulation (AR) 600-8-105, Military Orders, 28 October 1994] more than one PCS tour at different duty locations may be authorized within the same fiscal year for validated CONOPS requirements. j. PCS Allowances. (1) RC Soldiers issued PCS orders are authorized full PCS travel and transportation allowances IAW JFTR, Chapter 5. (2) Housing Allowances. RC Soldiers issued PCS orders are authorized housing allowances IAW JFTR, Chapter 10. Depending on the member's individual circumstances, these allowances include but are not limited to: (a) Basic Housing Allowance (BAH)/Overseas Housing Allowance (OHA) and BAH/OHA advance. Based on the Permanent Duty Station (PDS) to which they have been ordered. (b) BAH/OHA Waiver. Only Soldiers with dependents may request a Secretarial BAH/OHA waiver from the G-1 to receive bah based on their dependent's location in lieu of BAH/OHA based on the current PDS. Under the circumstances of a Secretarial BAH waiver, a Soldier with dependents is only authorized one housing allowance, either at the PDS or at dependent's location, not both. BAH waiver requests should be submitted IAW Reference K [ALARACT 021/2008, 5 February 2008, ETP Guidance for Basic Allowance for Housing (BAH) Waivers]. Email requests to the following hqdadcsg1dape-prc@hqda.army.mil or fax to 703 692-5045. (c) Family Separation Housing (FSH). When eligible (d) Move-In Housing Allowance (MIHA). When eligible (3) Cost-of-Living Allowance when assigned to CONUS high cost areas (CONUS COLA). Authorized IAW JFTR, Chapter 8 (4) Family Separation Allowance (FSA). IAW with DOD Financial Management Regulation (FMR) 7000.14-R, when eligible. k. Fund Control. Contingency TCS/TDY is funded through IMCOM G-8 and PCS is centrally funded through ABO (SAFM-BUO-M). 5. The Joint Federal Travel Regulations (JFTR), Volume 1, Uniformed Service Members, Change 333, dated 1 September 2014, pertained to per diem, travel and transportation allowances, relocation allowances, and certain other allowances of Uniformed Service Active Duty and Reserve Component members. a. Chapter 2 (Official Travel), paragraph U2000 (Obligation to Exercise Prudence in Travel) stated that a traveler must exercise the same care and regard for incurring GOV’T paid expenses as would a prudent person traveling at personal expense b. Chapter 4 (Temporary Duty Travel) provided the below guidance: (1) Paragraph U4010-1 provided that TDY travel includes an assignment away from the PDS that is not so frequent or lengthy that the location is, in fact, the traveler’s PDS. (2) Paragraph U4050-A.1. provided that per diem is designed to offset lodging and M&IE costs incurred while performing travel, and/or TDY away from the PDS. (3) Paragraph U4090-H provided that TDY per diem was not authorized for a member whose order to active duty does not designate a PDS after the TDY is completed. However, TDY per diem was authorized from the date the member receives an order naming a PDS other than the TDY station. (4) Paragraph U4095-B provided that the Secretary Concerned may authorize (in advance) per diem rates in lesser amounts (to zero) than those listed at http://www.defensetravel.dod.mil/site/perdiem.cfm when the travel/duty circumstances warrant it and are unusual to the Service concerned. See par. U4090-E. (5) Paragraph U4095-C provided that reduced per diem authority may be delegated to the chief of a Service bureau/staff agency, but may not be further delegated. (6) Paragraph U4095-D provided that reduced per diem is not authorized if the reduced per diem authority is not: (1) obtained before travel begins; (2) part of an order amendment/modification covering the prospective period after the original order was issued. (7) Paragraph U4095-E provided that the authorized reduced per diem rate must be stated on the order before travel begins, or an order amendment/modification covering a prospective period after the original order was issued. (8) Paragraph U4100-A (Travel within the PDS Limits) provided that per diem was not authorized: (1) for travel performed within the PDS limit; (2) at the old/new PDS for TDY en route ICW PCS travel. This applies even if the traveler vacated the permanent residence at the old PDS and was in temporary lodging during the TDY. Two examples were provided – (a) Exception: A traveler who detaches (signs out PCS) from the old PDS, performs TDY en route elsewhere, and returns TDY en route to the old PDS is authorized per diem at the old PDS (B-161267, 30 August 1967). (b) Example: A traveler departs the Pentagon (Arlington, VA) PCS on 15 June, performs TDY en route at Ft. Leavenworth 1 -31 July, returns TDY en route to the Pentagon 5-15 August, and then completes PCS to Ft. Polk on 31 August. The traveler is authorized per diem at the Pentagon (old PDS) 5-15 August. If the traveler had detached on 15 June but performed TDY in Arlington, VA, first, no per diem is payable for the TDY in Arlington immediately after detachment. (9). Paragraph U4800 (TDY Station Becomes PDS) provided the following: (a) Change Effective Immediately. A member, who receives a PCS order while at a TDY station designating the TDY station as the new PDS effective immediately, is not authorized per diem beginning on the date the member receives the order. (b) On a Specified Future Date. A member, who while at a TDY station receives a PCS order or information indicating that the member will be transferred to the TDY station on a specified future date, is authorized payment of otherwise proper TDY allowances for the TDY involved and return travel to the old PDS. (c) Return Travel to PDS. See paragraph U5064-A. (10) Paragraph U4950 (Contingency Operation Flat Per Diem Rate) provided – (1) Paragraph U4950-A: The Secretary Concerned may authorize a CONTINGENCY OPERATION flat per diem rate for a member assigned TDY to a CONTINGENCY OPERATION for more than 180 consecutive days at one location. The CONTINGENCY OPERATION flat per diem rate is 55% of the locality per diem rate. Retroactive application of this authority, to an existing order dated prior to 1 February 2008, violates paragraph U2205. An order must not be revoked or modified retroactively to create, deny, or change an allowance except to correct/complete an order to show the original intent. See Appendix A and 24 Comptroller General. 439 (1944). (2) Paragraph U4950-C: The Secretary Concerned may delegate authority to prescribe a CONTINGENCY OPERATION flat per diem rate, via the Secretarial Process, to an official at the O-6 or GS-15 level with no further delegation authorized. (3) Paragraph U4950-D: The Secretary Concerned/delegated authority may adjust the CONTINGENCY OPERATION flat per diem rate when the 55% rate is determined to be insufficient or overly generous. The per diem rate adjustment must be authorized before travel. (11) Paragraph U10428 provided: (a) Contingency Operation. An RC member called/ordered to active duty in support of a contingency operation is authorized BAH/OHA for the duration of the tour. If the RC member receives a PCS order authorizing HHG transportation, BAH/OHA is based on the new PDS. However, if the member is called or ordered to active duty and a PCS order is not issued, BAH/OHA rate is based (paid) on the primary residence location at the time called/ordered to active duty (b) Break in Service Definition. A break in service occurs when one or more calendar days between active service periods do not qualify as active service. b. Appendix I-2-D (Travel Order Amendment) stated: (1) Policy - An issued travel order may be changed or corrected (within certain limits) by issuing an amendment. An amendment may be issued before or after completion of travel to: (a) Recognize an essential aspect of travel not known in advance, (b) Change the period or place of TDY assignment, (c) Include omitted pertinent information, (d) Change allowances for unperformed travel or duty, and/or (e) Correct erroneous information or clerical errors that do not affect reimbursement retroactively. (2) Authorization, Approval and Retroactive Modification – (a) Allowances may be authorized only in advance of travel in some instances and/or approved after travel is completed. (b) Approval after the fact, when permitted, does NOT constitute 'retroactive modification' of a travel order to create, change, or deny an allowance. (c) Except to correct/complete a travel order to show the original intent, a travel order must not be revoked/modified retroactively to create or deny an allowance (24 Comptroller General 439 (1944)). (3) How to Amend a Travel Order - (a) General. A travel authorization/order is amended by issuing an appropriate document citing the original travel order by number, and stating the pertinent changes, additions or deletions, and effective date(s). (b) Responsible Official. The AO directing an employee’s travel is responsible for amending a travel order. Before issuing a travel order amendment involving additional funds expenditure, authorization is required from the official whose funds are affected. Any official with delegated authority to issue a travel order may issue a permitted amendment. 6. Joint Travel Regulations (JTR) Uniformed Service Members and DOD Civilian Employees, versions dated from 1 October 2014 through 1 September 2015 provided: a. Chapter 1 (General), Part A (Administration and General Procedures) Paragraph 1005 (Prohibition Not Stated) – (1) Paragraph 1005A (Authority) states the JTR creates the authority for payment of certain allowances. There may be circumstances when travel and transportation allowances are prohibited and are so stated in the JTR. (2) Paragraph 1005B (Prohibition) – "There may be circumstances when travel and transportation allowances are prohibited and are so stated. However, just because a prohibition is not stated does not mean an allowance exists or may be authorized (i.e.., the philosophy of "It doesn't say I can't therefore I can." does not apply to the JTR)." b. Chapter 2 (Official Travel), Part A (General), paragraph 2000 (Obligation to Exercise Prudence in Travel) –A. General. A traveler must exercise the same care and regard for incurring Gov’t paid expenses as would a prudent person traveling at personal expense. CBCA 2852-TRAV, 28 August 2012. c. Chapter 2, Part C (Travel Order) – (1) Paragraph 2205 (Retroactive Orders modification and Authorization/Approval) –A. Modifications - an order may be retroactively corrected to show the original intent (CBCA 3472-RELO, 23 September 2013), and must not be revoked/modified retroactively to create/deny/change an allowance (24 Comp. Gen. 439 (1944)). Example: After travel is completed, it would be improper to amend an order to 'un-authorize' POC travel that the order clearly permitted. Additionally, a TDY location can be changed to a PDS (see pars. 4800 and 4090-K), but a PDS cannot be changed to a TDY station once travel to the PDS is complete (i.e., traveler has reported for duty). (2) Paragraph 2230 (Time Limitations (Except TDY for Training for Uniformed Service Members) (a) Paragraph 2230B – General. A TDY assignment at one location may not exceed 180 consecutive days, except when authorized under paragraph. 2230-C (36 Comp. Gen. 757 (1957)). (b) Paragraph 2230C (TDY in Excess of 180 Consecutive Days) - (1) Authorization. When mission objectives /unusual circumstances require TDY at one location for more than 180 consecutive days, the appropriate authority must determine if TDY of greater than 180 days is appropriate. (Comptroller General 853 (1959)). (2) Authorizing/Approving Authority - The appropriate authority for authorizing/approving TDY assignments in excess of 180 consecutive days at any one location is: (a) The Secretary Concerned; (b) The Chief of an appropriate bureau/staff agency specifically designated for that purpose, or; (c) Commander/Deputy Commander of a Combatant Command. d. Chapter 4 (Temporary Duty Travel) – (1) Chapter 4, Part A (General), paragraph 4010-1 (What Constitutes TDY Travel) - TDY travel includes an assignment away from the PDS that is not so frequent or lengthy that the location is, in fact, the traveler’s PDS. (2) Chapter 4, Part B (Per Diem), Part B1 (General) – (a) Paragraph 4050-A.1 (Per Diem) - Per diem is designed to offset lodging and M&IE costs incurred while performing travel, and/or TDY away from the PDS. (b) Paragraph 4090 (Special/Unusual Circumstance Travel), 4090I (Ordered to Active Duty with PDS Not Designated in the Order) – TDY per diem is Not authorized for a member whose order to active duty does not designate a PDS after the TDY is completed. However, TDY per diem is authorized from the date the member receives an order naming a PDS other than the TDY station. (c) Paragraph 4095 (Reduced Per Diem) 1) Paragraph 4905-A (General) - The AO should seek authority to prescribe a reduced per diem when a per diem rate is more than what is needed for a particular duty assignment because of known lodging and/or meal cost reductions due to prearrangement, special discounts, or other reasons. 2) Paragraph 4095-B (Authority) - A DoD Component head or the Secretary Concerned may authorize (in advance) per diem rates in lesser amounts (to zero) when the travel/duty circumstances warrant it and are unusual to the DoD Component/Service concerned. 3) Paragraph 4095-C (Authority Delegation) - Reduced per diem authority may be delegated to the chief of a DoD Component headquarters/Service bureau/staff agency, but may not be further delegated. 4) Paragraph 4095-D (Reduced Per Diem Not Authorized) – If the reduced per diem authority is not (1) obtained before travel begins, or (2) part of an order amendment/modification covering a prospective period after the original order was issued, an order prescribing a different per diem rate is not authorized and the applicable locality per diem rate is used. 5) Paragraph 4095-E (Documentation) - The authorized reduced per diem rate must be stated on (1) The order before travel begins, or (2) An order amendment/modification covering a prospective period after the original order was issued. (d) Paragraph 4100-1 (TDY within the PDS Local Area) - Per diem is not authorized: (1) for travel performed within the PDS limit; (2) at the old/new PDS for TDY en route ICW PCS travel. This applies even if the traveler vacated the permanent residence at the old PDS and was in temporary lodging during the TDY. Two examples were provided – 1) General: A traveler who detaches (signs out PCS) from the old PDS, performs TDY en route elsewhere, and returns TDY en route to the old PDS is authorized per diem at the old PDS (B-161267, 30 August 1967). 2) Example: A traveler departs the Pentagon (Arlington, VA) PCS on 15 June, performs TDY en route at Ft. Leavenworth 1 -31 July, returns TDY en route to the Pentagon 5-15 August, and then completes PCS to Ft. Polk on 31 August. The traveler is authorized per diem at the Pentagon (old PDS) 5-15 August. If the traveler had detached on 15 June but performed TDY in Arlington, VA, first, no per diem is payable for the TDY in Arlington immediately after detachment. (3) Chapter 4, Part B4 (Long Term TDY Flat Rate Per Diem *Effective for travel beginning or orders amended on or after 1 November 2014), paragraph 4250 (Long Term TDY Flat Rate Per Diem) provided that long-term TDY for a duration of 181 days or more at a single location is authorized at a flat rate of 55% of the locality rate (rounded up to the next highest dollar), payable for each full day of TDY at that location. TDY in excess of 180 days must be authorized/approved IAW par. 2230-C. [Note: This paragraph was added to the JTR in the 1 November 2014 version] (4) Chapter 4, Part H1 (TDY Becomes PDS), paragraph 4800 (TDY Station Becomes PDS) - (a) Change Effective Immediately. A member, who receives a PCS order while at a TDY station designating the TDY station as the new PDS effective immediately, is not authorized per diem beginning on the date the member receives the order. (b) On a Specified Future Date. A member, who while at a TDY station receives a PCS order or information indicating that the member will be transferred to the TDY station on a specified future date, is authorized payment of otherwise proper TDY allowances for the TDY involved and return travel to the old PDS. (c) Return Travel to PDS. See paragraph 5042-A. (5) Chapter 4, Part J, Paragraph 4950 (Contingency Operation Flat Per Diem Rate) – [Note: This Paragraph was only in the 1 October 2014 version] (1) Paragraph 4950-A: The Secretary Concerned may authorize a contingency operation flat per diem rate for a member assigned TDY to a contingency operation for more than 180 consecutive days at one location. The contingency operation flat per diem rate is 55% of the locality per diem rate. Retroactive application of this authority, to an existing order dated prior to 1 February 2008, violates paragraph U2205. An order must not be revoked or modified retroactively to create, deny, or change an allowance except to correct/complete an order to show the original intent. See Appendix A and 24 Comptroller General. 439 (1944). (2) Paragraph 4950-C: The Secretary Concerned may delegate authority to prescribe a contingency operation flat per diem rate, via the Secretarial Process, to an official at the O-6 or GS-15 level with no further delegation authorized. (3) Paragraph 4950-D: The Secretary Concerned/delegated authority may adjust the contingency operation flat per diem rate when the 55% rate is determined to be insufficient or overly generous. The per diem rate adjustment must be authorized before travel. (6) Chapter 10 (Housing Allowances (Member Only)), Part E (Assignment Situations), E13 (Reserve Component) paragraph 10428 (a) Contingency Operation. An RC member called/ordered to active duty in support of a contingency operation is authorized BAH/OHA for the duration of the tour. If the RC member receives a PCS order authorizing HHG transportation, BAH/OHA is based on the new PDS. However, if the member is called or ordered to active duty and a PCS order is not issued, BAH/OHA rate is based (paid) on the primary residence location at the time called/ordered to active duty. (b) Break in Service Definition. A break in service occurs when one or more calendar days between active service periods do not qualify as active service. //NOTHING FOLLOWS//