B-175850, OCT 31, 1972

B-175850, OCT 31, 1972

MILITARY PERSONNEL - TEMPORARY LODGING ALLOWANCE DECISION SUSTAINING DENIAL OF THE CLAIM OF MAJOR JOSEPH E. M. FONTAINE, USAF, RETIRED FOR A TEMPORARY LODGING ALLOWANCE FOR THE PERIOD JUNE 7, 1971 THROUGH JUNE 30, 1971. A MEMBER WHO RELINQUISHES HIS HOME IN ANTICIPATION OF IMMINENT RETIREMENT IS NOT ENTITLED TO TEMPORARY LODGING ALLOWANCE FOR THE PERIOD HIS FAMILY DID NOT RESIDE IN THE HOME PRIOR TO DEPARTURE FROM HIS DUTY STATION, WHERE HE SIGNED A CONTRACT OF SALE CONTAINING A PREMATURE BUYER OCCUPANCY DATE WHERE HE HAD REASONABLE GROUNDS TO BELIEVE HE WOULD LEAVE THIS STATION AT A LATER DATE.

TO MAJOR JOSEPH E. M. FONTAINE:

REFERENCE IS MADE TO YOUR LETTERS DATED FEBRUARY 29 AND APRIL 26, 1972, IN EFFECT REQUESTING FURTHER CONSIDERATION OF YOUR CLAIM FOR A TEMPORARY LODGING ALLOWANCE FOR THE PERIOD JUNE 7, 1971, THROUGH JUNE 30, 1971.

GENERAL ACCOUNTING OFFICE SETTLEMENT DATED JANUARY 20, 1972, DISALLOWED YOUR CLAIM FOR THE REASON THAT THE CURRENT REGULATIONS AUTHORIZING TEMPORARY LODGING ALLOWANCES ARE BASED UPON THE MEMBER HAVING RECEIVED PERMANENT CHANGE-OF-STATION ORDERS AND THE DATES CONTAINED THEREIN IN ORDER TO ACCURATELY ESTABLISH THE SPECIFIC PERIODS OF ENTITLEMENT.

YOU SAY THAT WHILE THE SETTLEMENT GIVES REASONS FOR DENYING YOUR CLAIM, YOU CONTEND THAT SUCH SETTLEMENT FAILED TO CONSIDER ALL OF THE SALIENT FACTS AND CIRCUMSTANCES OF YOUR CASE, CONTENDING AMONG OTHER THINGS THAT YOU HAD BEEN AUTHORIZED TEMPORARY LODGING ALLOWANCE (TIA) AT BASE LEVEL FOR THE ENTIRE PERIOD ON THE PARTICULAR MERITS OF YOUR CASE WITH THE KNOWLEDGE THAT YOU HAD NOT RECEIVED YOUR PERMANENT CHANGE OF-STATION ORDERS FOR REASONS BEYOND YOUR CONTROL AND YOU WERE PERSONALLY ASSURED BY THE BASE HOUSING OFFICER ON JUNE 7, 1971, THAT TLA REIMBURSEMENT HAS BEEN AUTHORIZED IN PROPER FORM.

THE RECORD SHOWS THAT ON JANUARY 18, 1971, YOU WERE MEDICALLY EXAMINED AND FOUND TO BE SUFFERING A RESPIRATORY DISORDER, WHICH MEDICAL STATUS, IF APPROVED, WOULD BE RECOGNIZED AS A BASIS FOR YOUR RETIREMENT. ON APRIL 13, 1971, THE PHYSICAL EVALUATION BOARD AT FPO SAN FRANCISCO RECOMMENDED THAT YOU NOT BE RETAINED IN THE SERVICE. ON THE SAME DATE YOU APPLIED FOR RETIREMENT WITH YOUR HOME OF SELECTION BEING WASHINGTON, D.C., AND BY LETTER DATED APRIL 14, 1971, YOU REQUESTED TRAVEL RESERVATIONS FOR YOURSELF AND FOUR DEPENDENTS IN CONNECTION WITH YOUR ANTICIPATED RETIREMENT. BY LETTER DATED APRIL 21, 1971, YOU RECEIVED A JUNE 8, 1971, PORT CALL FOR THE HONOLULU INTERNATIONAL AIRPORT, WHICH SPECIFIED THE FLIGHT NUMBER THAT YOU AND YOUR DEPENDENTS WERE SCHEDULED TO TAKE.

BY AF FORM 356, DATED APRIL 22, 1971, YOU WERE ADVISED THAT THE PHYSICAL EVALUATION BOARD AT RANDOLPH AIR FORCE BASE, TEXAS, CONCLUDED THAT YOU WERE NOT UNFIT BECAUSE OF PHYSICAL DISABILITY AND RECOMMENDED THAT YOU BE RETURNED TO DUTY. ON APRIL 29, 1971, BY TELETYPE FROM THE AIR FORCE MILITARY PERSONNEL CENTER, RANDOLPH AIR FORCE BASE, TEXAS, THE 6486TH AIR BASE WING MEDICAL DISPENSARY, HICKAM AIR FORCE BASE, HAWAII, WAS REQUESTED TO PLACE YOU IN A TDY STATUS AT WILFORD HALL MEDICAL CENTER, LACKLAND AIR FORCE BASE, TEXAS, TO REPORT ON JUNE 23, 1971, FOR A FORMAL PHYSICAL EVALUATION BOARD. BY SPECIAL ORDERS NO. TA 55, DATED MAY 3, 1971, YOU WERE ORDERED ON TDY EFFECTIVE ON OR ABOUT JUNE 17, 1971, AFTER WHICH YOU WERE TO RETURN TO YOUR THEN CURRENT PERMANENT DUTY STATION, HICKAM AIR FORCE BASE, HAWAII.

ON MAY 4, 1971, YOU REQUESTED A TEMPORARY LODGING ALLOWANCE FOR YOURSELF AND FOUR DEPENDENTS EFFECTIVE JUNE 7, 1971, GIVING AS THE REASON THAT YOU RECEIVED A JUNE 8, 1971, PORT CALL; THAT YOU HAD SOLD YOUR HOME (A PERMANENT NON-GOVERNMENT OWNED DWELLING) UNDER A CONTRACT WHICH PROVIDED FOR BUYER OCCUPANCY ON JUNE 8; THAT TWO WEEKS ADVANCE NOTICE IS REQUIRED BY THE BASE TRANSPORTATION OFFICER AND THAT DELAYS IN PUBLISHING YOUR PERMANENT CHANGE-OF-STATION ORDERS PURSUANT TO YOUR IMPENDING RETIREMENT WERE MATTERS BEYOND YOUR CONTROL.

ON MAY 5, 1971, TWO DD FORMS 114 - MILITARY PAY ORDERS - WERE PREPARED AND SIGNED BY YOU FOR THE PURPOSE OF SECURING A TEMPORARY LODGING ALLOWANCE FOR THE PERIODS JUNE 7-16, 1971, AND JUNE 17 - JULY 6, 1971. LETTER DATED MAY 26, 1971, THE DIRECTORATE OF PERSONNEL SERVICES, DEPARTMENT OF THE AIR FORCE, ADVISED THAT ONLY THE PERIOD OF JUNE 17 - JULY 6, 1971, WOULD BE ALLOWED BASED ON PARAGRAPH M4303-2B(2) OF THE JOINT TRAVEL REGULATIONS, STATING THAT A REVIEW OF THE DATA PROVIDED BY YOU CONCERNING YOUR EXPENSES SHOWS THAT "APPROVAL OF 20 DAYS ADDITIONAL TIA WILL PROVIDE THE MEMBER SUFFICIENT INCOME FOR THE PERIOD REQUIRED TO OCCUPY TEMPORARY ACCOMMODATIONS AND HE SHOULD NOT SUFFER UNDUE FINANCIAL HARDSHIP."

BY LETTER DATED JUNE 25, 1971, THE FINANCE AND ACCOUNTING OFFICER FOR THE 6486TH AIR BASE WING (PACAF) ADVISED THAT NONE OF YOUR TLA CLAIM FOR THE PERIOD JUNE 7 TO JULY 6, 1971, COULD BE PAID LOCALLY BECAUSE PERMANENT CHANGE-OF-STATION ORDERS HAD NOT BEEN ISSUED TO YOU AND THAT YOUR CLAIM WAS TO BE FORWARDED TO THE AIR FORCE ACCOUNTING AND FINANCE CENTER FOR ADJUDICATION.

BY LETTER DATED JUNE 21, 1971, FROM THE DIRECTORATE OF PERSONNEL PROGRAM ACTIONS, HEADQUARTERS, UNITED STATES AIR FORCE, YOU WERE ADVISED THAT "TRANSPORTATION AND/OR NON-TEMPORARY STORAGE AUTHORIZATION IS GRANTED IN LIEU OF PUBLICATION OF RETIREMENT ORDERS AND THAT ORDERS EFFECTING MEMBER'S RETIREMENT WILL BE ISSUED UPON RECEIPT OF MEDICAL CLEARANCE VALIDITY DATE."

SPECIAL ORDER NO. AB-2582, DATED JULY 1, 1971, WAS ISSUED TO YOU TRANSFERRING YOU ON A PERMANENT CHANGE OF STATION TO BOLLING AIR FORCE BASE, WASHINGTON, D.C., EFFECTIVE JULY 10, 1971, WITH A REPORTING DATE OF JULY 19, 1971, FOR RETIREMENT OUT-PROCESSING. THE FINANCE CENTER REPORTS THAT YOU RECEIVED A TEMPORARY LODGING ALLOWANCE FROM JULY 1, 1971, THROUGH THE DATE OF YOUR DEPARTURE.

A TEMPORARY LODGING ALLOWANCE IS A PERMANENT STATION ALLOWANCE PRESCRIBED UNDER 37 U.S.C. 405, WHICH PROVISION GIVES THE SECRETARIES BROAD AUTHORITY TO PRESCRIBE OVERSEAS ALLOWANCES. PARAGRAPH M4303 OF THE JOINT TRAVEL REGULATIONS PROMULGATED THEREUNDER AUTHORIZES A TEMPORARY LODGING ALLOWANCE FOR THE PURPOSE OF PARTIALLY REIMBURSING A MEMBER FOR THE MORE THAN NORMAL EXPENSES INCURRED AT HOTEL OR HOTEL LIKE ACCOMMODATIONS AND PUBLIC RESTAURANTS BECAUSE GOVERNMENT OR OTHER PERMANENT TYPE QUARTERS WERE UNAVAILABLE, IN CIRCUMSTANCES ENUMERATED THEREIN.

PARAGRAPH M4303-2E GOVERNS TLA ENTITLEMENTS WHEN A MEMBER DEPARTS ON A PERMANENT CHANGE-OF-STATION ASSIGNMENT. SUBPARAGRAPH 2E(1) PROVIDES THAT THE PERIOD OF ENTITLEMENT UPON DEPARTURE WILL BE "THE LAST 10 DAYS PRECEDING THE DATE OF DEPARTURE OF THE MEMBER FROM HIS PERMANENT DUTY STATION IN COMPLIANCE WITH PERMANENT CHANGE-OF-STATION ORDERS." SUBPARAGRAPH 2E(3) PROVIDES THAT IN ADDITION TO THE 10-DAY PERIOD AUTHORIZED BY SUBPARAGRAPH 2E(1), THE MAJOR OVERSEAS COMMANDER DESIGNATED BY THE SERVICE CONCERNED MAY AUTHORIZE OR APPROVE TEMPORARY LODGING ALLOWANCES IN INCREMENTS OF 10 DAYS OR LESS FOR SUCH ADDITIONAL PERIOD PRIOR TO DEPARTURE, AS MAY BE REQUIRED WHEN HOUSING IS RELINQUISHED FOR REASONS BEYOND THE CONTROL OF THE MEMBER.

WITH RESPECT TO YOUR CONTENTION THAT YOU WERE AUTHORIZED A TEMPORARY LODGING ALLOWANCE FOR THE ENTIRE PERIOD AND RECEIVED PERSONAL ASSURANCES OF THIS AS LATE AS JUNE 7, 1971, BY THE BASE HOUSING OFFICER, WE FIND NOTHING IN THE MATERIAL SUBMITTED WHICH PURPORTS TO AUTHORIZE YOU A TEMPORARY LODGING ALLOWANCE EFFECTIVE JUNE 7, 1971, OR FOR THAT MATTER, ANY PERIOD PRIOR TO JULY 1, 1971.

BASED UPON YOUR ANTICIPATED RETIREMENT, YOU SAY THAT YOU ENTERED INTO A CONTRACT TO SELL YOUR HOME AND THAT YOU INCLUDED IN THAT CONTRACT A BUYER OCCUPANCY DATE OF JUNE 8, 1971. PRESUMABLY THAT DATE WAS CHOSEN AND INSERTED IN THE CONTRACT BASED ON THE LETTER OF APRIL 21, 1971, SHOWING YOUR INITIAL PORT CALL DATE AS BEING JUNE 8, 1971. YOU SEEM TO RELY ON THAT PORT CALL DATE NOTIFICATION AND THE CONTRACT COMMITMENT FOR THE SALE OF YOUR HOME AS THE BASIS FOR YOUR CLAIM THAT THE RELINQUISHMENT OF YOUR HOME ON JUNE 8 WAS A MATTER BEYOND YOUR CONTROL. THE QUESTION FOR CONSIDERATION IS WHETHER, ON THE DATE YOU SIGNED THE CONTRACT FOR THE SALE OF YOUR HOME WHICH CONTAINED THE BUYER OCCUPANCY DATE, YOU HAD REASONABLE GROUNDS TO BELIEVE THAT YOU WOULD LEAVE YOUR OVERSEAS STATION ON A PERMANENT CHANGE-OF-STATION ON THAT LATTER DATE.

AS EARLY AS JANUARY 1971, WHEN YOU UNDERWENT A PHYSICAL EXAMINATION FOR RETIREMENT PURPOSES, YOU WERE ADVISED THAT YOUR REQUEST FOR RETIREMENT WAS SUBJECT TO MEDICAL CLEARANCE OF THAT EXAMINATION. AF FORM 356, DATED APRIL 22, 1971, THE DAY AFTER YOU RECEIVED YOUR INITIAL PORT CALL DATE, SPECIFICALLY ADVISED YOU THAT YOU WERE NOT UNFIT FOR MILITARY DUTY AND THAT YOU WERE TO BE RETURNED TO DUTY. ON MAY 3, 1971, PURSUANT TO THE REQUEST BY THE AIR FORCE MILITARY PERSONNEL CENTER, DATED APRIL 29, 1971, YOU WERE ISSUED ORDERS PLACING YOU ON TDY EFFECTIVE ON OR ABOUT JUNE 17, 1971, FOR THE PURPOSE OF ATTENDING A FORMAL PHYSICAL EVALUATION BOARD AT LACKLAND AIR FORCE BASE AND RETURN TO YOUR THEN CURRENT PERMANENT DUTY STATION. SINCE YOUR TDY PERIOD UNDER THESE ORDERS BEGAN ON A DATE AFTER YOUR PORT CALL DATE, SUCH ORDERS IN EFFECT CANCELLED THAT DATE, SPECIFICALLY PLACING YOU ON NOTICE THAT YOU WOULD NOT BE TRANSFERRED ON PCS ON JUNE 8, 1971. THUS, ANY SALES CONTRACT EXECUTED BY YOU AFTER MAY 2, 1971, IN WHICH THAT BUYER OCCUPANCY DATE FIRST APPEARS WOULD NOT PROVIDE GROUNDS FOR THE ALLOWANCE OF YOUR CLAIM.

FURTHER, IT WOULD APPEAR THAT THE NOTIFICATION WHICH YOU RECEIVED ON APRIL 22, 1971, SHOULD HAVE AT LEAST PLACED YOU ON NOTICE THAT CERTAIN DELAYS IN PROCESSING YOUR RETIREMENT COULD REASONABLY BE ANTICIPATED AND THAT STEPS SHOULD HAVE BEEN TAKEN BY YOU TO INCLUDE PROVISIONS IN THE BUYER OCCUPANCY CLAUSE TO PROTECT YOU IN THE EVENT OF SUCH CONTINGENCY.

ACCORDINGLY, WE ARE UNABLE TO CONCLUDE THAT THE CIRCUMSTANCES WHEREBY YOU WERE REQUIRED TO RELINQUISH OCCUPANCY OF YOUR HOME ON JUNE 8, 1971, WAS BROUGHT ABOUT AS A RESULT OF MATTERS BEYOND YOUR CONTROL AND THE ACTION TAKEN BY OUR CLAIMS DIVISION IS SUSTAINED.