B-135627, DECEMBER 3, 1958, 38 COMP. GEN. 405

B-135627, DECEMBER 3, 1958, 38 COMP. GEN. 405

MILITARY PERSONNEL - DISCHARGE AND REENLISTMENT - DISLOCATION ALLOWANCE SECOND ORDERS TO A NEW SHIP FOR DUTY ISSUED TO A NAVY MEMBER ON REENLISTMENT AFTER ORIGINAL ORDERS DETACHED THE MEMBER FROM ANOTHER SHIP FOR DISCHARGE AND DIRECTED TRANSFER TO A SEPARATION CENTER MAY NOT BE CONSIDERED TOGETHER AS A TRANSFER FROM THE FORMER SHIP TO THE NEW SHIP FOR DISLOCATION ALLOWANCE PURPOSES, BUT INSTEAD THE SECOND ORDERS MAY BE REGARDED ONLY AS AUTHORIZING A CHANGE OF STATION FROM THE MEMBER'S HOME TO THE NEW SHIP FOR WHICH NO DISLOCATION ALLOWANCE IS PAYABLE.

TO THE SECRETARY OF THE NAVY, DECEMBER 3, 1958:

REFERENCE IS MADE TO LETTER OF OCTOBER 8, 1958, WITH ENCLOSURES, FROM THE ASSISTANT SECRETARY OF THE NAVY ( FINANCIAL MANAGEMENT), PDTATAC CONTROL NO. 58-9, QUESTIONING 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 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.

THE ENCLOSURES WHICH ACCOMPANIED THE LETTER OF OCTOBER 8, 1958, INCLUDED THE TRANSFER ORDERS IN THE CASE OF HENRY JOHN RESTORFF, RN 3. THE FIRST OF THESE ORDERS, PREPARED AUGUST 17, 1956, DETACHED HIM FROM DUTY ON BOARD THE U.S.S. RUSHMORE, NEWPORT NEWS, VIRGINIA, TO REPORT TO THE NAVAL RECEIVING STATION, NORFOLK, VIRGINIA, FOR DISCHARGE, AND SHOWED AN ULTIMATE ENTITLEMENT TO MILEAGE, AND TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS, TO WEST ORANGE, NEW JERSEY, HIS HOME OF RECORD UPON ENLISTMENT. THESE ORDERS ALSO BEAR A NOTATION TO THE EFFECT THAT HE WAS DISCHARGED AS DIRECTED ON AUGUST 22, 1956, AND THAT HE REENLISTED AT THE NORFOLK NAVAL RECEIVING STATION ON AUGUST 23, 1956. THE SECOND ORDERS, DATED AUGUST 29, 1956, DIRECTED HIS TRANSFER FROM THE NAVAL RECEIVING STATION, NORFOLK, TO DUTY ON BOARD THE U.S.S. PIVOT BY WAY OF THE NAVAL RECEIVING STATION, LONG BEACH, CALIFORNIA, WITH ADDRESS WHILE ON LEAVE SHOWN AS 2746 GRANVILLE, LOS ANGELES, CALIFORNIA. IT APPEARS TO BE YOUR VIEW THAT THESE ORDERS IN COMBINATION ARE EQUIVALENT TO AN ORDERED PERMANENT CHANGE OF STATION FROM THE U.S.S. RUSHMORE, BASED ON THE EAST COAST, TO THE U.S.S. PIVOT, BASED ON THE WEST COAST, THUS ENTITLING THE MEMBER TO PAYMENT OF THE DISLOCATION ALLOWANCE. IN SUPPORT OF THIS CONTENTION YOU CITE OUR DECISION B-119864, SEPTEMBER 10, 1954.

SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 814, AS AMENDED BY SECTION 2/12) OF THE CAREER INCENTIVE ACT OF 1955, 69 STAT. 21, 37 U.S.C. 253 (C), AUTHORIZES PAYMENT OF A DISLOCATION ALLOWANCE, UNDER REGULATIONS APPROVED BY THE SECRETARY CONCERNED, TO A MEMBER OF THE UNIFORMED SERVICES WHOSE DEPENDENTS ARE AUTHORIZED TO MOVE AND ACTUALLY DO MOVE IN CONNECTION WITH HIS PERMANENT CHANGE OF STATION, BUT PROVIDES FURTHER THAT A MEMBER IS NOT ENTITLED TO PAYMENT OF A DISLOCATION ALLOWANCE WHEN ORDERED FROM HOME TO FIRST DUTY STATION OR FROM LAST DUTY STATION TO HOME. PARAGRAPH 9003-3, JOINT TRAVEL REGULATIONS, CHANGE 35, EFFECTIVE JUNE 1, 1955, PROVIDES THAT SUCH ALLOWANCE WILL NOT BE PAYABLE IN CONNECTION WITH PERMANENT CHANGE OF STATION TRAVEL PERFORMED ,FROM HOME OR FROM PLACE FROM WHICH ORDERED TO ACTIVE DUTY TO FIRST PERMANENT DUTY STATION UPON APPOINTMENT, CALL TO ACTIVE DUTY, ENLISTMENT REENLISTMENT, OR INDUCTION.'

BY THE EXPRESS TERMS OF THIS STATUTE, A RIGHT TO A DISLOCATION ALLOWANCE DOES NOT ACCRUE TO A MEMBER OF THE UNIFORMED SERVICES IN EVERY INSTANCE IN WHICH HE MAY BE ENTITLED TO TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS. THE CASE CONSIDERED IN THE CITED DECISION OF SEPTEMBER 10, 1954, B-119864, IS TO BE DISTINGUISHED FROM THE CASES HERE INVOLVED IN THAT IT CONCERNED A RESERVIST WHO WAS ENLISTED AT THE SEPARATION CENTER AT WHICH HE WAS RELEASED FROM ACTIVE DUTY AS AN OFFICER, AND WHOSE WIFE PERFORMED CIRCUITOUS TRAVEL FROM HIS OLD STATION TO THE STATION TO WHICH HE WAS FIRST ASSIGNED FOR DUTY AS AN ENLISTED MAN. THE SOLE QUESTION PRESENTED CONCERNED THE MAXIMUM ALLOWANCE FOR TRANSPORTATION OF DEPENDENTS ACCRUING TO A MEMBER IN THOSE CIRCUMSTANCES AND, WHILE IT WAS POINTED OUT THAT UNDER THE PROVISIONS OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813, 814, TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE FROM HOME TO FIRST DUTY STATION UPON ENLISTMENT AND FROM LAST STATION TO HOME UPON DISCHARGE WAS AUTHORIZED WHEN INCIDENT TO PROPER ORDERS, IT WAS CONCLUDED THAT ON THE BASIS OF THE ORDERS IN THAT CASE REIMBURSEMENT FOR DEPENDENT TRAVEL WAS REQUIRED TO BE LIMITED TO THE AMOUNT FOUND TO BE DUE ON THE BASIS OF DIRECT TRAVEL FROM THE OLD TO THE NEW STATION. UNDER EARLIER STATUTES, WHICH MADE NO PROVISION FOR TRANSPORTATION OF DEPENDENTS TO FIRST STATION UPON ENLISTMENT, TRANSPORTATION OF DEPENDENTS TO THE NEW STATION CONSISTENTLY WAS DENIED MEN DISCHARGED UPON EXPIRATION OF THE TERM OF ENLISTMENT WHO REENLISTED AT A POINT AWAY FROM THEIR OLD PERMANENT STATION ON THE GROUND THAT SUCH MEN CEASED TO HAVE ANY STATION AT ALL AND UPON REENLISTING DID NOT ACQUIRE A PERMANENT STATION UNTIL ASSIGNED ONE, AND SINCE THE NEW ASSIGNMENT RESULTED FROM THEIR OWN ACTIONS AND NOT IN DUE COURSE IN THE PUBLIC INTEREST, THE TRAVEL PERFORMED BY DEPENDENTS WAS NOT TRAVEL INCIDENT TO CHANGE OF DUTY STATIONS WITHIN THE MEANING OF THE APPLICABLE STATUTES. A-8328, MARCH 30, 1925; A-22960, AUGUST 9, 1928; A- 24252, SEPTEMBER 18, 1928. IN APPARENT CONSONANCE WITH THIS RULE, ARTICLE C-1403-1A, BUREAU OF NAVAL PERSONNEL MANUAL, PROVIDES THAT A MEMBER MAY BE REENLISTED WITH CONTINUOUS SERVICE AS FOLLOWS:

* * * (A) WITHIN 24 HOURS FOLLOWING DISCHARGE, ON BOARD THE ACTIVITY FROM WHICH DISCHARGED. (A PERSON TEMPORARILY TRANSFERRED TO AN ACTIVITY FOR DISCHARGE PURPOSES MAY BE REENLISTED WITHIN 24 HOURS ON BOARD THE ACTIVITY TO WHICH PERMANENTLY ATTACHED PRIOR TO DISCHARGE.) * * *

AS IN THE CASE OF THE EARLIER STATUTES WITH RESPECT TO TRANSPORTATION OF DEPENDENTS, THE STATUTE AUTHORIZING PAYMENT OF THE DISLOCATION ALLOWANCE DOES NOT PROVIDE FOR PAYMENT OF SUCH ALLOWANCE FOR THE MOVE FROM HOME TO FIRST STATION AND FROM LAST STATION TO HOME. HENCE, IN OUR DECISION OF AUGUST 1, 1956, 36 COMP. GEN. 71, AN ENLISTED MEMBER OF THE UNIFORMED SERVICES WHO ON THE DAY FOLLOWING HIS DISCHARGE AT ONE PLACE ON EXPIRATION OF HIS TERM OF SERVICE REENLISTED AT ANOTHER PLACE AND THEN WAS TRANSFERRED ON A PERMANENT CHANGE OF STATION TO A THIRD PLACE WAS DENIED PAYMENT OF A DISLOCATION ALLOWANCE ON THE GROUND THAT THE ORDERS TO REPORT AT A FIRST DUTY STATION FOLLOWING REENLISTMENT AFTER SEVERING ALL CONNECTION WITH HIS MILITARY SERVICE AT THE STATION AT WHICH DISCHARGED DID NOT CONSTITUTE AN ORDERED CHANGE BETWEEN DUTY STATIONS. IT WOULD NOT APPEAR THAT THE SITUATION IS ANY DIFFERENT IN THE CASE OF A MEMBER WHO SEVERS ALL CONNECTION WITH HIS MILITARY SERVICE AT HIS OLD STATION BY DEPARTING THAT STATION UNDER ORDERS THAT CONTEMPLATE NOTHING OTHER THAN THAT HE PROCEED TO A TEMPORARY STATION FOR PROCESSING FOR DISCHARGE, AND WHO THEREUPON REENLISTS, AND WITHOUT RETURNING TO HIS LAST PERMANENT DUTY STATION PROCEEDS UNDER ORDERS ISSUED AT POINT OF REENLISTMENT TO A NEW STATION, PRESUMABLY ONE OF HIS OWN CHOOSING AS A CONDITION OF HIS REENLISTMENT.

THE ORDERS OF AUGUST 15, 1956, WHICH ACCOMPANIED YOUR LETTER, APPARENTLY DETACHED MR. RESTORFF FROM THE U.S.S. RUSHMORE AND DIRECTED HIM TO PROCEED TO NORFOLK FOR DISCHARGE. NO NEW PERMANENT STATION OTHER THAN THE MEMBER'S HOME WAS DESIGNATED IN THE ORDER AND UPON DISCHARGE THE DUTY DIRECTED BY THAT ORDER WAS COMPLETED. THE ONLY PERMANENT CHANGE OF STATION CONTEMPLATED BY THAT ORDER WAS FROM THE MEMBER'S SHIP TO HIS HOME FOR WHICH NO DISLOCATION ALLOWANCE IS AUTHORIZED. THE SECOND ORDER DATED OCTOBER 29, 1956, DIRECTS THE MEMBER TO PROCEED FROM NORFOLK, WHERE HE HAD REENLISTED, TO HIS NEW SHIP FOR DUTY. THIS ORDER NEITHER AMENDS THE PRIOR ORDER NOR REFERS TO IT AND THE ONLY PERMANENT CHANGE OF STATION, IF ANY, IS FROM THE MEMBER'S HOME TO HIS NEW SHIP FOR WHICH NO DISLOCATION ALLOWANCE IS AUTHORIZED.

ACCORDINGLY, THE EXCEPTIONS IN QUESTION ARE PROPER AND COLLECTION OF THE INDICATED OVERPAYMENTS SHOULD BE EFFECTED WITHOUT FURTHER DELAY.