B-135627, MAY 12, 1959

B-135627, MAY 12, 1959

PRECIS-UNAVAILABLE

SECRETARY OF THE NAVY:

REFERENCE IS MADE TO LETTER OF FEBRUARY 11, 1959, FROM THE ASSISTANT SECRETARY OF THE NAVY, FDTATAC CONTROL NO. 59-6, REQUESTING RECONSIDERATION OF OUR DECISION DATED DECEMBER 3, 1958, B-135627, RELATING TO THE PROPRIETY OF AUDIT EXCEPTIONS TAKEN BY OUR NAVY AUDIT BRANCH TO DISLOCATION ALLOWANCE PAYMENTS MADE INCIDENT TO CHANGES OF STATION EFFECTED IN CONNECTION WITH THE DISCHARGE AND REENLISTMENT OF CERTAIN PERSONNEL AT SEPARATION CENTERS. THE EXCEPTIONS WERE TAKEN ON THE BASIS THAT THE ORDERS WHICH DIRECTED THE TRANSFER TO A SEPARATION CENTER FOR DISCHARGE DID NOT PROVIDE FOR REENLISTMENT AND FURTHER ASSIGNMENT, AND THEREFORE THE TRANSFER SUBSEQUENT TO REENLISTMENT CONSTITUTED AN ASSIGNMENT TO "FIRST PERMANENT DUTY STATION" WITHIN THE PROHIBITION AGAINST PAYMENT OF A DISLOCATION ALLOWANCE CONTAINED IN PARAGRAPH 9003-3, JOINT TRAVEL REGULATIONS.

IN THE LETTER OF FEBRUARY 11, 1959, YOU EXPRESSED THE VIEW THAT THE ORDERS AS WRITTEN IN THE CASES HERE INVOLVED SHOULD BE CONSIDERED AS DIRECTING A PERMANENT CHANGE OF STATION FROM THE OLD TO THE NEW DUTY STATION RATHER THAN FROM LAST STATION TO HOME AND FROM HOME TO FIRST STATION. IN SUPPORT OF SUCH VIEW, YOU STATE THAT SINCE THE AUTHORIZED MOVEMENT OF DEPENDENTS AND HOUSEHOLD EFFECTS IN THESE CASES IS FROM THE OLD PERMANENT STATION TO THE NEW PERMANENT STATION RATHER THAN TO AND FROM HOME, THE DISLOCATION ALLOWANCE PAYMENTS IN QUESTION SHOULD BE CONSIDERED PROPER PAYMENTS. YOU ALSO REQUEST THAT IF, UPON RECONSIDERATION, THE DECISION OF DECEMBER 3, 1958, IS SUSTAINED, COLLECTION ACTION NOT BE REQUIRED FOR THOSE PAYMENTS MADE PRIOR TO THE DATE OF THAT DECISION.

IN DECISION OF AUGUST 1, 1956, B-128061, 36 COMP. GEN. 71, IT WAS HELD THAT NO RIGHT TO A DISLOCATION ALLOWANCE ACCRUES TO A MEMBER WHO LEAVES HIS LAST DUTY STATION FOLLOWING HIS DISCHARGE UPON EXPIRATION OF HIS TERM OF ENLISTMENT; REENLISTS THE NEXT DAY AT ANOTHER PLACE; AND THEN IS TRANSFERRED ON A PERMANENT CHANGE OF STATION FROM PLACE OF REENLISTMENT TO A THIRD PLACE, THE REASON FOR DENYING A DISLOCATION ALLOWANCE IN SUCH CASE BEING THAT THE CHANGE FROM THE OLD TO THE NEW PERMANENT STATION DID NOT RESULT FROM COMPLIANCE WITH A MILITARY ORDER DIRECTING SUCH CHANGE ISSUED BY PROPER AUTHORITY AND REQUIRED TO BE OBEYED BY THE MEMBER CONCERNED, BUT FROM A REENLISTMENT CONTRACT ENTERED INTO INDEPENDENTLY OF ANY PRIOR SERVICE. THE RULING IN THAT CASE APPARENTLY IS NOT QUESTIONED.

IN THE DECISION OF DECEMBER 3, 1958, IT WAS HELD THAT THE RULE IN 36 COMP. GEN. 71 IS EQUALLY APPLICABLE IN CASES OF MEMBERS WHO DEPART THEIR OLD PERMANENT STATION FOR A SEPARATION CENTER UNDER ORDERS WHICH DIRECT ONLY THAT THEY BE DISCHARGED BY REASON OF EXPIRATION OF TERM OF ENLISTMENT AND RETURN TO THEIR HOMES, AND WHO, AFTER ACCEPTING A DISCHARGE UNDER SUCH ORDERS, IMMEDIATELY REENLIST AND THEN ARE ASSIGNED A NEW PERMANENT STATION BY ORDERS ISSUED AT THE POINT OF REENLISTMENT. THIS CONCLUSION APPEARS REQUIRED BY THE CIRCUMSTANCES INVOLVED IN SUCH DISCHARGES AND REENLISTMENTS, AND FOR THE REASONS INDICATED IN THE DECISION OF DECEMBER 3, 1958, WE DO NOT CONCUR IN THE ADMINISTRATIVE VIEW THAT ORDERS FROM OLD PERMANENT STATION TO HOME BY WAY OF A SEPARATION CENTER UPON EXPIRATION OF TERM OF ENLISTMENT COUPLED WITH ORDERS TO A NEW PERMANENT STATION ISSUED AT THE SEPARATION CENTER INDEPENDENTLY OF THE INITIAL ORDERS AND FOLLOWING THE MEMBER'S REENLISTMENT, CONSTITUTE A PERMANENT CHANGE OF STATION ORDERED IN THE INTEREST OF THE GOVERNMENT SUCH AS IS REQUIRED BY THE APPLICABLE STATUTE TO ENTITLE THE MEMBER TO A DISLOCATION ALLOWANCE. HENCE, THE RULING IN OUR DECISION OF DECEMBER 3, 1958, THAT THE EXCEPTIONS IN QUESTION ARE PROPER, IS SUSTAINED.

THE LETTER OF FEBRUARY 11, 1959, DISCLOSES, HOWEVER, THAT THE LAW AND REGULATIONS HAVE BEEN ADMINISTRATIVELY CONSTRUED BY THE SERVICES AS ENTITLING MEMBERS TO A DISLOCATION ALLOWANCE WHERE REENLISTMENT WAS ACCOMPLISHED UNDER THE CIRCUMSTANCES HERE INVOLVED. IN VIEW OF THAT ADMINISTRATIVE INTERPRETATION AND THE APPARENT LARGE NUMBER OF PAYMENTS MADE ON THE BASIS OF THAT ADMINISTRATIVE VIEW, THE EXCEPTIONS IN QUESTION WILL BE HELD IN ABEYANCE FOR A REASONABLE TIME IN CASES WHERE PAYMENTS WERE MADE PRIOR TO OUR DECISION OF DECEMBER 3, 1958, AND WILL BE REMOVED UPON A SHOWING THAT APPROPRIATE ADMINISTRATIVE STEPS HAVE BEEN TAKEN TO DISCONTINUE THE PRIOR PRACTICE.