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B-188849, SEP 1, 1977

B-188849 Sep 01, 1977
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MEMBER OF UNIFORMED SERVICE WHOSE DEPENDENTS TRAVEL TO HOME OF SELECTION AFTER ISSUANCE OF RETIREMENT ORDERS LATER CANCELED AT THE MEMBER'S REQUEST IS ENTITLED TO DEPENDENTS' TRAVEL ALLOWANCES UNDER 37 U.S.C. 406A(1970). GOVERNMENT WAS UNDER NO OBLIGATION TO ACCEPT AND APPARENTLY DID SO FOR THE CONVENIENCE OF THE GOVERNMENT. 2. IF MEMBER'S DEPENDENTS MOVE PURSUANT TO RETIREMENT ORDERS WHICH ARE LATER CANCELED. HE IS NOT ENTITLED TO A DISLOCATION ALLOWANCE (DLA) IN CONNECTION WITH THAT MOVE. HE DOES NOT BECOME ENTITLED TO DLA AT THE WITH DEPENDENT RATE WHEN HE IS LATER TRANSFERRED TO THE VICINITY OF DEPENDENTS' RESIDENCE BUT HE MAY BE PAID DLA AT THE WITHOUT DEPENDENT RATE INCIDENT TO THAT TRANSFER IF HE IS NOT ASSIGNED GOVERNMENT QUARTERS.

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B-188849, SEP 1, 1977

1. MEMBER OF UNIFORMED SERVICE WHOSE DEPENDENTS TRAVEL TO HOME OF SELECTION AFTER ISSUANCE OF RETIREMENT ORDERS LATER CANCELED AT THE MEMBER'S REQUEST IS ENTITLED TO DEPENDENTS' TRAVEL ALLOWANCES UNDER 37 U.S.C. 406A(1970), ON BASIS OF CANCELLATION BEING FOR CONVENIENCE OF THE GOVERNMENT. ALTHOUGH MEMBER REQUESTED CANCELLATION OF HIS ORDERS, GOVERNMENT WAS UNDER NO OBLIGATION TO ACCEPT AND APPARENTLY DID SO FOR THE CONVENIENCE OF THE GOVERNMENT. 2. IF MEMBER'S DEPENDENTS MOVE PURSUANT TO RETIREMENT ORDERS WHICH ARE LATER CANCELED, HE IS NOT ENTITLED TO A DISLOCATION ALLOWANCE (DLA) IN CONNECTION WITH THAT MOVE. FURTHER, HE DOES NOT BECOME ENTITLED TO DLA AT THE WITH DEPENDENT RATE WHEN HE IS LATER TRANSFERRED TO THE VICINITY OF DEPENDENTS' RESIDENCE BUT HE MAY BE PAID DLA AT THE WITHOUT DEPENDENT RATE INCIDENT TO THAT TRANSFER IF HE IS NOT ASSIGNED GOVERNMENT QUARTERS.

MASTER GUNNERY SERGEANT VIRGIL L. BRADSHAW, USMC:

THIS ACTION IS IN RESPONSE TO A LETTER DATED FEBRUARY 25, 1977, (FILE REFERENCE BC3/HMS/BM 7220), WITH ENCLOSURES, FROM THE DISBURSING OFFICER, MARINE CORPS, CAMP PENDLETON, CALIFORNIA, REQUESTING AN ADVANCE DECISION AS TO THE ENTITLEMENT OF MASTER GUNNERY SERGEANT VIRGIL L. BRADSHAW, USMC, XXX-XX-XXXX, TO A MONETARY ALLOWANCE IN LIEU OF TRANSPORTATION FOR DEPENDENTS' TRAVEL AND PAYMENT OF A DISLOCATION ALLOWANCE (DLA) IN THE CIRCUMSTANCES PRESENTED. THE REQUEST WAS ASSIGNED PDTATAC CONTROL NO. 77-13 AND FORWARDED TO THIS OFFICE BY THE PER DIEM TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

BY ORDERS DATED AUGUST 1, 1976, THE MEMBER WAS ORDERED TRANSFERRED TO THE FLEET MARINE CORPS RESERVE AND RELEASED FROM ACTIVE DUTY EFFECTIVE NOVEMBER 30, 1976. THE ORDERS AUTHORIZED TRAVEL FOR THE MEMBER AND HIS DEPENDENTS AND SHIPMENT OF HOUSEHOLD GOODS TO HIS HOME OF SELECTION. SEPTEMBER 3, 1976, THE MEMBER'S DEPENDENTS TRAVELED FROM NEW ORLEANS, LOUISIANA, THE MEMBER'S LAST DUTY STATION, TO OCEANSIDE, CALIFORNIA, THE HOME OF SELECTION OF THE MEMBER. THE DEPENDENTS TRAVELED AT THE MEMBER'S EXPENSE AND PRIOR TO THE EFFECTIVE DATE OF THE MEMBER'S TRANSFER ORDERS. ON OCTOBER 22, 1976, THE MEMBER WITHDREW HIS REQUEST FOR TRANSFER TO THE FLEET MARINE CORPS RESERVE AND, PURSUANT TO THAT REQUEST, HIS TRANSFER ORDERS WERE CANCELED. BY ORDERS DATED NOVEMBER 11, 1976, THE MEMBER WAS GIVEN PERMANENT CHANGE OF STATION (PCS) ORDERS TO CAMP PENDLETON, CALIFORNIA, WITH A REPORTING DATE OF DECEMBER 15, 1976. THE MEMBER REPORTED TO CAMP PENDLETON ON DECEMBER 3, 1976, AND SUBMITTED A CLAIM FOR DEPENDENTS' TRAVEL AND DLA. THE DEPENDENTS REMAINED IN OCEANSIDE, CALIFORNIA, WHICH IS NEAR CAMP PENDLETON. THE MEMBER WAS PAID ADVANCE MILEAGE IN THE AMOUNT OF $187.70 ON NOVEMBER 17, 1976, FOR HIS TRAVEL FROM NEW ORLEANS TO CAMP PENDLETON. HOWEVER, HIS CLAIM FOR DEPENDENTS' TRAVEL AND DLA WAS DENIED FOR THE REASON THAT SINCE THE DEPENDENTS' TRAVEL WAS NOT IN CONNECTION WITH THE PCS TO CAMP PENDLETON THERE WAS NO AUTHORITY FOR PAYMENT OF THE CLAIM, THE TRAVEL OF THE DEPENDENTS BEING FOR PERSONAL REASONS ONLY.

THE PROVISIONS OF 37 U.S.C. 406(1970) AUTHORIZE PAYMENT TO THE MEMBER FOR HIS DEPENDENTS' TRAVEL TO HIS NEW STATION UPON A PCS, INCLUDING RETIREMENT OR RELEASE FROM ACTIVE DUTY. THIS ENTITLEMENT IS BASED UPON, AND IS NO GREATER THAN, THE RIGHT SECURED TO THE MEMBER UNDER SUCH ORDERS INCIDENT TO THIS TRAVEL, UNLESS APPLICABLE PROVISIONS OF LAW PROVIDE OTHERWISE. SEE 46 COMP.GEN. 852, 854(1967). IN 37 U.S.C. 406A(1970) AUTHORITY IS PROVIDED FOR THE PAYMENT OF DEPENDENTS' TRANSPORTATION, IF OTHERWISE QUALIFIED, WHEN A PCS ORDER IS CANCELED, REVOKED OR MODIFIED PRIOR TO ITS EFFECTIVE DATE. IMPLEMENTING REGULATIONS IN VOLUME 1, JOINT TRAVEL REGULATIONS (1 JTR) PARAGRAPH M7051, (CHANGE 283, SEPTEMBER 1, 1976), PROVIDE FOR CASES IN WHICH ORDERS DIRECTING A PCS (WHICH INCLUDES FROM THE LAST DUTY STATION TO HOME OF SELECTION UPON RETIREMENT OR RELEASE FROM ACTIVE DUTY) ARE MODIFIED AFTER THE DATE TRAVEL OF DEPENDENTS UNDER THE ORDERS IS COMMENCED, AND A NEW PERMANENT STATION IS DESIGNATED, OR THE PCS ORDERS ARE CANCELED OR REVOKED. IN SUCH CASES TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE IS AUTHORIZED FOR THE TRAVEL PERFORMED FOR THE DISTANCE FROM THE PLACE DEPENDENTS COMMENCED TRAVEL, TO THE PLACE AT WHICH THEY RECEIVE NOTIFICATION, CANCELLATION OR REVOCATION OF ORDERS, AND THENCE TO THE NEW STATION OR RETURN TO THE OLD STATION, NOT TO EXCEED THE DISTANCE FROM THE OLD STATION TO THE FIRST-NAMED STATION AND THENCE TO THE LAST-NAMED STATION OR RETURN TO THE OLD STATION.

THE LEGISLATIVE HISTORY OF 37 U.S.C. 406A (PUBLIC LAW 88-238, 77 STAT. 475), REASONABLY SUPPORTS THE VIEW THAT ITS BENEFITS ARE TO ACCRUE WHEN ORDERS THAT DIRECT A PCS (INCLUDING ORDERS DIRECTING RELEASE FROM ACTIVE DUTY OR RETIREMENT) ARE CANCELED OR MODIFIED BEFORE THEIR EFFECTIVE DATE FOR THE CONVENIENCE OF THE GOVERNMENT AND/OR IN CIRCUMSTANCES OVER WHICH THE MEMBER HAS NO CONTROL. 44 COMP.GEN.655(1965). WHILE IN THIS CASE THE MEMBER APPARENTLY REQUESTED THE CANCELLATION OF HIS ORDERS FOR TRANSFER TO THE FLEET MARINE CORPS RESERVE, THE MARINE CORPS WAS UNDER NO OBLIGATION TO COMPLY WITH THAT REQUEST BUT APPARENTLY DID SO FOR THE CONVENIENCE OF THE GOVERNMENT. SEE WINFREE V. UNITED STATES, 125 CT.CL. 853(1953). THIS REGARD WE NOTE THAT THE ACCEPTANCE OF THE MEMBER'S REQUEST FOR WITHDRAWAL OF HIS TRANSFER REQUEST WAS CONDITIONED ON THE MEMBER REENLISTING OR EXTENDING HIS ENLISTMENT FOR AT LEAST 2 YEARS. SEE ALSO 53 COMP.GEN. 55(1973), A SIMILAR CASE IN WHICH WE AUTHORIZED DEPENDENTS' TRAVEL UNDER 37 U.S.C. 406A.

THE MOVE OF THE DEPENDENTS WAS MADE AFTER THE ORDERS WERE ISSUED BUT BEFORE THE ORDERS WERE CANCELED. REIMBURSEMENT FOR THE COST OF THEIR TRANSPORTATION IS THEREFORE AUTHORIZED BY THE LAW AND REGULATIONS.

CONCERNING DLA, 37 U.S.C. 407(1970), PROVIDES IN PERTINENT PART FOR PAYMENT OF DLA TO A MEMBER OF A UNIFORMED SERVICE:

"(1) WHOSE DEPENDENTS MADE AN AUTHORIZED MOVE IN CONNECTION WITH HIS CHANGE OF PERMANENT STATION;

"(3) WITHOUT DEPENDENTS, WHO IS TRANSFERRED TO A PERMANENT STATION WHERE HE IS NOT ASSIGNED TO QUARTERS OF THE UNITED STATES * * * . "

THAT SECTION ALSO SPECIFIES THAT THE AMOUNT OF DLA IS TO BE:

" * * * EQUAL TO HIS BASIC ALLOWANCE FOR QUARTERS FOR ONE MONTH AS PROVIDED FOR A MEMBER OF HIS PAY GRADE AND DEPENDENCY STATUS IN SECTION 403 OF THIS TITLE. FOR THE PURPOSE OF THIS SUBSECTION, A MEMBER WHOSE DEPENDENTS MAY NOT MAKE AN AUTHORIZED MOVE IN CONNECTION WITH A CHANGE OF PERMANENT STATION IS CONSIDERED A MEMBER WITHOUT DEPENDENTS."

SUBSECTION (C) OF 37 U.S.C. 407 SPECIFICALLY PROVIDES THAT A MEMBER IS NOT ENTITLED TO DLA WHEN ORDERED FROM HIS LAST DUTY STATION TO HIS HOME. IMPLEMENTING REGULATIONS FOR DLA ARE FOUND IN CHAPTER 9, 1 JTR.

APPLYING THE PROVISIONS OF 37 U.S.C. 407 TO THE PRESENT CASE, IT IS APPARENT THAT THE MEMBER WAS NOT ENTITLED TO DLA UPON HIS ORIGINAL ORDERS FOR TRANSFER TO THE FLEET MARINE CORPS RESERVE. IT HAS ALSO BEEN THE UNIFORM POSITION OF THIS OFFICE THAT 37 U.S.C. 406A DOES NOT ENTITLE THE MEMBER DLA WHERE ORDERS ARE CANCELED EVEN THOUGH THE MEMBER MAY HAVE INCURRED CERTAIN EXPENSES IN CONNECTION WITH THE PROPOSED MOVE AFTER THE ORDERS WERE ISSUED BUT BEFORE THE ORDERS WERE CANCELED. SEE 44 COMP.GEN. 522(1965); AND B-179100, JUNE 18, 1974.

IN THE PRESENT CASE WHEN THE ORDERS OF AUGUST 1, 1976, ORDERING THE MEMBER TO BE TRANSFERRED TO THE FLEET MARINE CORPS RESERVE WERE CANCELED, THE MEMBER WAS PLACED IN THE SAME POSITION AS IF THOSE ORDERS HAD NEVER BEEN ISSUED. WHEN HE SUBSEQUENTLY RECEIVED THE NOVEMBER 11, 1976 ORDERS FOR A PCS TO CAMP PENDLETON, HE WAS ENTITLED TO ALL OF THE RIGHTS AND BENEFITS OF ANY OTHER MEMBER RECEIVING PCS ORDERS. HOWEVER, SINCE HIS FAMILY HAD ALREADY MOVED UNDER THE ORDERS OF AUGUST 1, 1976, THEY DID NOT, IN FACT, MAKE A MOVE IN CONNECTION WITH THE MEMBER'S PCS ORDERS OF NOVEMBER 11, 1976. THE MEMBER WAS NOT ENTITLED TO DLA UNDER THE ORDERS OF AUGUST 1, 1976, BECAUSE OF THE PROHIBITION IN 37 U.S.C. 407(C), AND BECAUSE 37 U.S.C. 406A DOES NOT PROVIDE FOR DLA WHEN ORDERS ARE CANCELED OR MODIFIED. THIS DOES NOT, HOWEVER, PRECLUDE THE MEMBER FROM BEING PAID SUCH AN ALLOWANCE AS A MEMBER WIT-OUT DEPENDENTS PROVIDED HE IS OTHERWISE QUALIFIED FOR SUCH ALLOWANCE. SEE B-178347, JULY 9, 1973.

CONCERNING DLA FOR A MEMBER "WITHOUT DEPENDENTS", 1 JTR, PARAGRAPH M9001- 2 DEFINES THAT TERM TO INCLUDE A MEMBER WHO IS NOT ENTITLED TO MOVE HIS DEPENDENTS UNDER THE PROVISIONS OF PARAGRAPH M7000. UNDER 1 JTR, PARAGRAPH M9003-1, A MEMBER WITHOUT DEPENDENTS IS ENTITLED TO A DISLOCATION ALLOWANCE WHENEVER TRANSFERRED TO A PERMANENT DUTY STATION WHERE NOT ASSIGNED TO GOVERNMENT QUARTERS. THE RECORD BEFORE US DOES NOT SHOW WHETHER OR NOT THE MEMBER IN THIS CASE WAS ASSIGNED TO GOVERNMENT QUARTERS AT CAMP PENDLETON. IF IT IS ESTABLISHED THAT HE WAS NOT ASSIGNED TO SUCH QUARTERS, HE IS ENTITLED TO DLA AS A MEMBER WIHTOUT DEPENDENTS, AND HIS CLAIM MAY BE PAID ON THAT BASIS.

ACCORDINGLY, THE VOUCHER SUBMITTED IS BEING RETURNED, PAYMENT BEING AUTHORIZED AS INDICATED ABOVE.

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