B-160755, FEB. 21, 1967

B-160755, FEB. 21, 1967

TO SERGEANT CLARENCE E. GAUTHIER, U.S. ARMY, RETIRED:

FURTHER REFERENCE IS MADE TO YOUR RECENT LETTER, REQUESTING RECONSIDERATION OF SETTLEMENT DATED DECEMBER 8, 1966, WHICH DISALLOWED YOUR CLAIM FOR TEMPORARY LODGING ALLOWANCE FOR THE PERIOD APRIL 26 TO MAY 6, 1966.

BY ORDERS DATED MAY 17, 1966, AS AMENDED BY ORDERS OF MAY 31, 1966, YOU WERE RELIEVED FROM YOUR ASSIGNMENT, HEADQUARTERS, 82D ENGINEER BATTALION, APO NEW YORK 09139, AND REASSIGNED TO FORT HAMILTON, NEW YORK, FOR PURPOSE OF RETIREMENT.

YOUR OCCUPANCY OF GOVERNMENT QUARTERS WAS TERMINATED ON APRIL 26, 1966, AND ON THAT DAY YOU AND YOUR WIFE MOVED INTO A HOTEL WHERE YOU STAYED THROUGH MAY 6, 1966. ON MAY 7, 1966, YOU AND YOUR WIFE MOVED INTO THE PRIVATE RESIDENCE OF YOUR FRIENDS WHERE YOU STAYED UNTIL MAY 19, 1966. YOU AND YOUR WIFE DEPARTED FROM THE OVERSEAS STATION ON MAY 20, 1966.

YOUR CLAIM FOR TEMPORARY LODGING ALLOWANCE WAS DISALLOWED BY THE SETTLEMENT OF DECEMBER 8, 1966, FOR THE REASON THAT THE APPLICABLE REGULATIONS PROVIDE THAT THE PERIOD OF ENTITLEMENT UPON DEPARTURE WILL BE THE LAST 10 DAYS PRECEDING THE DAY OF DEPARTURE OF THE MEMBER AND/OR HIS DEPENDENT FROM HIS PERMANENT DUTY STATION IN COMPLIANCE WITH PERMANENT CHANGE OF STATION ORDERS, WHEN HOTEL OR HOTEL-LIKE ACCOMMODATIONS ARE USED.

IN YOUR PRESENT LETTER YOU SAY THAT YOU WERE TOLD TO CLEAR YOUR GOVERNMENT QUARTERS AND THAT YOU WOULD RECEIVE ORDERS ON APRIL 27 OR 28, 1966. YOU STATE THAT YOU AND YOUR WIFE CLEARED YOUR QUARTERS AS DIRECTED AND MOVED INTO A HOTEL. ALSO, YOU SAY THAT WHEN YOU DID NOT RECEIVE YOUR ORDERS AS PROMISED AND SINCE YOU COULD NOT AFFORD TO STAY IN THE HOTEL INDEFINITELY YOU AND YOUR WIFE MOVED INTO THE PRIVATE RESIDENCE OF ONE OF YOUR FRIENDS WHERE YOU PAID FOR YOUR FOOD AND YOUR WIFE WORKED FOR THE FAMILY TO PAY FOR YOUR LODGING.

IT APPEARS TO BE YOUR VIEW THAT SINCE YOU AND YOUR WIFE DID STAY IN A HOTEL FOR 10 DAYS AND SINCE THE DELAY IN YOUR DEPARTURE WAS DUE TO THE GOVERNMENT'S FAILURE TO ISSUE YOUR ORDERS AS SCHEDULED THAT YOUR CLAIM FOR TEMPORARY LODGING ALLOWANCE SHOULD BE ALLOWED.

THE PERTINENT STATUTE, 37 U.S.C. 405, PROVIDES THAT THE SECRETARIES CONCERNED MAY AUTHORIZE THE PAYMENT TO MEMBERS OF THE UNIFORMED SERVICES ON DUTY OUTSIDE THE CONTINENTAL UNITED STATES OF A PER DIEM CONSIDERING ALL ELEMENTS OF COST OF LIVING OF MEMBERS AND THEIR DEPENDENTS, INCLUDING THE COST OF QUARTERS, SUBSISTENCE, AND OTHER NECESSARY INCIDENTAL EXPENSES.

REGULATIONS ISSUED UNDER THAT AUTHORITY ARE CONTAINED IN THE JOINT TRAVEL REGULATIONS. PARAGRAPH M4303-2D OF THE REGULATIONS (CHANGE 162 EFFECTIVE MAY 2, 1966) IN EFFECT DURING THE PERIOD INVOLVED PROVIDES THAT A TEMPORARY LODGING ALLOWANCE IS PAYABLE FOR THE PERIOD OF OCCUPANCY OF A HOTEL OR HOTEL-LIKE ACCOMMODATIONS, AND THE USE OF PUBLIC RESTAURANTS BY THE MEMBER OR HIS DEPENDENTS, AFTER SURRENDER OF PERMANENT QUARTERS, FOR THE LAST 10 DAYS PRECEDING THE DAY OF DEPARTURE OF THE MEMBER FROM HIS PERMANENT DUTY STATION IN COMPLIANCE WITH CHANGE OF STATION ORDERS.

THE PERTINENT ARMY REGULATIONS ARE CONTAINED IN ARMY REGULATIONS 37 104, WHICH PROVIDES IN PARAGRAPH 11011-D (2) IN PERTINENT PART AS FOLLOWS:

"/2) IMMEDIATELY PRECEDING DEPARTURE (TLA-DEP). TLA-DEP NOT TO EXCEED 10 DAYS IS AUTHORIZED WHEN MEMBER GIVES UP HIS GOVERNMENT QUARTERS OR OTHER PERMANENT LIVING ACCOMMODATIONS JUST BEFORE HE LEAVES FOR A PCS. THE PERIOD OF ENTITLEMENT BEGINS ON THE DAY IT IS NECESSARY TO OCCUPY TEMPORARY LODGING. IT IS THE LAST 10 DAYS BEFORE THE MEMBER LEAVES HIS PERMANENT DUTY STATION ON PCS ORDERS; * * *"

UNDER SUCH REGULATIONS THE ALLOWANCE IS PAYABLE FOR THE LAST 10 DAYS PRIOR TO DEPARTURE FROM A STATION ON PERMANENT CHANGE OF STATION ORDERS. SUCH OCCUPANCY AS IN YOUR CASE PRIOR TO THAT 10-DAY PERIOD CREATES NO ENTITLEMENT TO THE ALLOWANCE. HOWEVER THAT MAY BE, THE REGULATIONS AUTHORIZE PAYMENT OF TEMPORARY LODGING ALLOWANCE ONLY WHEN OCCUPANCY OF TEMPORARY LODGING IS MADE NECESSARY BY AN ORDERED CHANGE OF PERMANENT STATION. UNDER SUCH REGULATIONS ENTITLEMENT TO THE TEMPORARY LODGING ALLOWANCE CANNOT ACCRUE PRIOR TO THE ISSUE DATE OF THE PERMANENT CHANGE OF STATION ORDERS.

SINCE THE RECORD SHOWS THAT YOU OCCUPIED AND VACATED THE HOTEL ACCOMMODATIONS FOR WHICH YOU CLAIM THE TEMPORARY LODGING ALLOWANCE BEFORE YOUR PERMANENT CHANGE OF STATION ORDERS OF MAY 17, 1966, WERE ISSUED THERE IS NO AUTHORITY UNDER THE REGULATIONS FOR PAYMENT OF THE TEMPORARY LODGING ALLOWANCE. IN THESE CIRCUMSTANCES THERE IS NO LEGAL BASIS TO ALLOW YOUR CLAIM FOR SUCH ALLOWANCE.

WHILE YOUR ORDERS MAY NOT HAVE BEEN ISSUED AS EARLY AS YOU EXPECTED, SUCH FACT DOES NOT PROVIDE A BASIS UPON WHICH WE MAY AUTHORIZE PAYMENT OF YOUR CLAIM.

ACCORDINGLY, THE SETTLEMENT OF DECEMBER 8, 1966, IS CORRECT AND IS SUSTAINED.