B-129499, NOVEMBER 26, 1956, 36 COMP. GEN. 423

B-129499, NOVEMBER 26, 1956, 36 COMP. GEN. 423

MILITARY PERSONNEL - DISLOCATION ALLOWANCE - RELOCATION OF DEPENDENTS PRIOR TO EFFECTIVE DATE OF CAREER INCENTIVE ACT OF 1955 THE DISLOCATION ALLOWANCE WHICH WAS AUTHORIZED BY THE CAREER INCENTIVE ACT OF 1955, EFFECTIVE APRIL 1, 1955, FOR THE PURPOSE OF REIMBURSING MILITARY PERSONNEL FOR EXPENSES OF RELOCATING DEPENDENTS INCIDENT TO A PERMANENT CHANGE OF STATION IS NOT PAYABLE WHERE THE DEPENDENTS WERE MOVED TO THE MEMBER'S NEW STATION PRIOR TO APRIL 1, 1955, EVEN THOUGH THE CHANGE OF STATION ORDERS WERE EFFECTIVE AFTER APRIL 1, 1955.

TO THE SECRETARY OF DEFENSE--- NOVEMBER 26, 1956:

WE DESIRE TO CALL YOUR ATTENTION TO THE FACT THAT IN THE AUDIT OF AIR FORCE AND NAVY DISBURSING OFFICERS' ACCOUNTS WE HAVE FOUND INSTANCES IN WHICH A DISLOCATION ALLOWANCE FIRST AUTHORIZED BY THE CAREER INCENTIVE ACT OF 1955, APPROVED MARCH 31, 1955, 69 STAT. 21, 37 U.S.C. 253--- EFFECTIVE APRIL 1, 1955--- HAS BEEN PAID TO MEMBERS INCIDENT TO PERMANENT CHANGE OF STATION ORDERS ISSUED PRIOR TO, BUT EFFECTIVE AFTER, APRIL 1, 1955, WHERE THE AUTHORIZED MOVE OF DEPENDENTS WAS PRIOR TO APRIL 1, 1955.

SEVENTEEN NOTICES OF EXCEPTION ISSUED AGAINST SUCH PAYMENTS WERE RETURNED TO OUR AIR FORCE AUDIT BRANCH BY THE CHIEF, COLLECTION BRANCH, SETTLEMENTS DIVISION, AIR FORCE FINANCE CENTER, DENVER, COLORADO, WITH THE REQUEST THAT THEY BE REMOVED ON THE GROUND THAT THE PURPOSE OF THE DISLOCATION ALLOWANCE WAS TO ATTEMPT TO COMPENSATE MEMBERS FOR THE "INCONVENIENCE AND UNAVOIDABLE EXPENSES" ARISING IN CONNECTION WITH RELOCATING A NORMAL HOUSEHOLD AND, SINCE "IT IS A COMMON FACT THAT SUCH INCONVENIENCE AND UNAVOIDABLE EXPENSES * * * GENERALLY COMMENCE PRIOR TO THE PHYSICAL TRAVEL OF DEPENDENTS FROM THE OLD STATION AND CONTINUE FOR A PERIOD AFTER THEIR ARRIVAL AT THE NEW STATION," LIMITING THE PERIOD OF SUCH MOVE TO THE TIME TRAVEL OF DEPENDENTS IS COMPLETED IS MORE RESTRICTIVE THAN THE LANGUAGE OF THE LAW RELATING TO THE DISLOCATION ALLOWANCE. ALSO, THAT PARAGRAPH 9006, JOINT TRAVEL REGULATIONS, PROVIDES THAT THE DISLOCATION ALLOWANCE SHALL BE PAYABLE TO ALL MEMBERS UNDER PERMANENT CHANGE IN STATION ORDERS EFFECTIVE ON OR AFTER APRIL 1, 1955, WITH NO REQUIREMENT THAT DEPENDENT TRAVEL MUST BE COMPLETED ON OR AFTER APRIL 1, 1955, TO ENTITLE A MEMBER TO THE DISLOCATION ALLOWANCE.

A NOTICE OF EXCEPTION WAS ISSUED IN THE CASE OF JAMES J. NIEMEYER, BU2, USN, ON ACCOUNT OF A DISLOCATION ALLOWANCE CREDITED TO HIM INCIDENT TO PERMANENT CHANGE OF STATION ORDERS ISSUED MARCH 22, 1955, WITH LEAVE GRANTED SUFFICIENT TO EXTEND THE EFFECTIVE DATE TO APRIL 13, 1955. THIS NOTICE OF EXCEPTION WAS RETURNED BY THE NAVY WITH THE STATEMENT THAT THE RIGHT TO A DISLOCATION ALLOWANCE PAYMENT ACCRUED TO THE MEMBER BASED ON THE FACT THAT HIS ORDERS WERE EFFECTIVE AFTER APRIL 1, 1955, NOTWITHSTANDING THE FACT THAT HIS DEPENDENTS COMPLETED TRAVEL PRIOR TO SUCH DATE, CITING THE RULING ON QUESTION 2 IN 20 COMP. GEN 769.

PAYMENTS MAY NOT BE MADE FROM PUBLIC FUNDS UNTIL THE PAYEE'S RIGHT TO SUCH PAYMENT IS ESTABLISHED. IT FOLLOWS THAT PAYMENT OF THE DISLOCATION ALLOWANCE, ADMITTEDLY INTENDED AS REIMBURSEMENT, IN PART OR IN WHOLE, OF EXPENSES, NOT OTHERWISE REIMBURSABLE, INCURRED IN RELOCATING DEPENDENTS IN CONNECTION WITH A PERMANENT CHANGE OF STATION, IS NOT AUTHORIZED UNTIL SUCH RELOCATION OCCURS. THUS, IT SEEMS READILY APPARENT THAT ADOPTION OF THE SUGGESTION OF THE AIR FORCE THAT THE PROCESSES OF RELOCATING DEPENDENTS BE RECOGNIZED AS EXTENDING FOR AN INDEFINITE PERIOD BEYOND THE DATE OF THE COMPLETION OF THEIR TRAVEL, EVEN IF OTHERWISE ACCEPTABLE, WOULD INEVITABLY GIVE RISE TO DELAY IN ESTABLISHING ENTITLEMENT TO A DISLOCATION ALLOWANCE AND MIGHT RESULT, IN SOME INSTANCES, IN EVENTUAL DENIAL OF SUCH PAYMENT. PARAGRAPH 9002, JOINT TRAVEL REGULATIONS, PROVIDES FOR PAYMENT OF THE DISLOCATION ALLOWANCE WHEN DEPENDENTS HAVE COMPLETED TRAVEL AUTHORIZED TO BE PERFORMED AT GOVERNMENT EXPENSE IN CONNECTION WITH A PERMANENT CHANGE OF STATION. THIS REGULATION APPARENTLY WAS PROMULGATED, AND WE BELIEVE CORRECTLY SO, ON THE PREMISE THAT THE DISLOCATION OF A MEMBER'S DEPENDENTS FOR WHICH THE DISLOCATION ALLOWANCE IS PAYABLE IS COMPLETED UPON THE ARRIVAL OF THE DEPENDENTS AT THE NEW STATION OR OTHER AUTHORIZED DESTINATION.

AS TO OUR DECISION, 20 COMP. GEN. 769, CITED IN SUPPORT OF THE QUESTIONED PAYMENTS, TO THE EXTENT THAT THE ANSWER TO QUESTION 2 WAS IN THE AFFIRMATIVE, AFTER FIRST SPECIFYING THAT IN ANY EVENT TRAVEL MUST HAVE BEEN INCIDENT TO ORDERS EFFECTIVE ON OR AFTER MARCH 17, 1941, THE DATE OF THE ACT THERE INVOLVED, SUCH ANSWER WAS IN DIRECT REPLY TO THE QUESTION PRESENTED WHETHER MEMBERS WERE ENTITLED TO TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE FOR TRAVEL PERFORMED ON OR AFTER MARCH 17, 1941. THE EFFECT OF THAT DECISION, INSOFAR AS IT IS APPLICABLE HERE, IS THAT A STATUTE, UNDER THE GENERAL RULE FOR THE CONSTRUCTION OF STATUES, APPLIES ONLY TO THE FUTURE UNLESS OTHERWISE EXPRESSLY STATED OR UNLESS IT APPEARS BY NECESSARY IMPLICATION FROM THE NATURE AND WORDS OF THE STATUTE THAT A RETROSPECTIVE EFFECT IS INTENDED. BY ITS EXPRESS TERMS THE CAREER INCENTIVE ACT OF 1955 DID NOT BECOME EFFECTIVE UNTIL APRIL 1, 1955. THUS, NEITHER THE ACT, NOR THE REGULATIONS ISSUED UNDER IT MAKING IT APPLICABLE IN CASES OF ORDERS EFFECTIVE ON OR AFTER APRIL 1, 1955, CAN OPERATE TO AUTHORIZE PAYMENT OF A DISLOCATION ALLOWANCE WHERE THE DISLOCATION OCCURRED PRIOR TO APRIL 1, 1955. IT FOLLOWS THAT, ON THE PREMISE THAT THE DISLOCATION ON ACCOUNT OF WHICH THE ALLOWANCE IS PAYABLE IS COINCIDENTAL WITH THE TRAVEL OF DEPENDENTS, THERE IS NO AUTHORITY FOR THE PAYMENT OF A DISLOCATION ALLOWANCE WHERE SUCH TRAVEL IN FACT WAS COMPLETED BEFORE APRIL 1, 1955.

THIS MATTER IS CALLED TO YOUR ATTENTION SINCE ERRONEOUS PAYMENTS OF THE TYPE IN QUESTION, REPAYMENT OF WHICH IS BEING RESISTED, HAVE BEEN MADE BY BOTH THE AIR FORCE AND THE NAVY, AND PERHAPS BY THE ARMY. WE WILL APPRECIATE ANY ACTION YOU MAY TAKE TO ASSIST IN EFFECTING COLLECTION OF THESE ERRONEOUS PAYMENTS WITHOUT FURTHER DELAY.