B-120227, SEP 2, 1954

B-120227: Sep 2, 1954

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IT APPEARS THAT YOU WERE DISCHARGED ON AUGUST 3. THAT YOU WERE PAID 60 CENTS REPRESENTING MILEAGE FROM NEW YORK. WHICH PROVIDED THAT WHEN A MEMBER WAS DISCHARGED OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES AND NO TRAVEL WAS TO BE PERFORMED THE TRAVEL ALLOWANCE WOULD BE COMPUTED ON THE BASIS OF THE DISTANCE TO THE PLACE SELECTED OR AUTHORIZED FROM THE PORT OF DEBARKATION NEAREST THAT PLACE. YOUR REQUEST FOR REVIEW IS BASED ON THE FACT THAT IN INSTRUCTION MEMORANDUM 2-3. PARAGRAPH 4154 WAS REVISED TO PROVIDE FOR THE COMPUTATION OF MILEAGE ON THE BASIS OF THE DISTANCE FROM CERTAIN SPECIFIED PORTS OF DEBARKATION TO THE PLACE SELECTED OR AUTHORIZED. WOULD HAVE BEEN FROM A PORT ON THE WEST COAST OF THE UNITED STATES TO YOUR HOME.

B-120227, SEP 2, 1954

PRECIS-UNAVAILABLE

MR. RAYMOND B. ANDERSON:

THERE HAS BEEN CONSIDERED YOUR LETTER OF MAY 5, 1954, REQUESTING REVIEW OF SETTLEMENT DATED APRIL 29, 1954, WHICH DISALLOWED YOUR CLAIM FOR ADDITIONAL TRAVEL ALLOWANCE INCIDENT TO YOUR DISCHARGE AS AN ENLISTED MEMBER OF THE AIR FORCE FOR THE PURPOSE OF IMMEDIATE REENLISTMENT IN THE SERVICE PURSUANT TO ORDERS OF AUGUST 3, 1951, HEADQUARTERS, CLARKE AIR FORCE BASE AND 6200TH AIR BASE WING, APO 74.

IT APPEARS THAT YOU WERE DISCHARGED ON AUGUST 3, 1951, AND REENLISTED THE FOLLOWING DAY, NO TRAVEL BEING PERFORMED, AND THAT YOU WERE PAID 60 CENTS REPRESENTING MILEAGE FROM NEW YORK, NEW YORK, TO FLUSHING, NEW YORK, YOUR HOME OF RECORD, IN ACCORDANCE WITH PARAGRAPH 4154 OF THE JOINT TRAVEL REGULATIONS, THEN IN EFFECT, WHICH PROVIDED THAT WHEN A MEMBER WAS DISCHARGED OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES AND NO TRAVEL WAS TO BE PERFORMED THE TRAVEL ALLOWANCE WOULD BE COMPUTED ON THE BASIS OF THE DISTANCE TO THE PLACE SELECTED OR AUTHORIZED FROM THE PORT OF DEBARKATION NEAREST THAT PLACE. YOUR REQUEST FOR REVIEW IS BASED ON THE FACT THAT IN INSTRUCTION MEMORANDUM 2-3, DATED DECEMBER 1, 1951, STATED TO BE EFFECTIVE AUGUST 1, 1951, PARAGRAPH 4154 WAS REVISED TO PROVIDE FOR THE COMPUTATION OF MILEAGE ON THE BASIS OF THE DISTANCE FROM CERTAIN SPECIFIED PORTS OF DEBARKATION TO THE PLACE SELECTED OR AUTHORIZED, WHICH, IF APPLICABLE IN YOUR CASE, WOULD HAVE BEEN FROM A PORT ON THE WEST COAST OF THE UNITED STATES TO YOUR HOME.

SECTION 303(A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813, PROVIDES THAT UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED MEMBERS IN THE UNIFORMED SERVICES SHALL BE ENTITLED TO RECEIVE TRAVEL AND TRANSPORTATION ALLOWANCES UPON SEPARATION FROM THE SERVICE AND THAT THE SECRETARIES MAY PRESCRIBE THE CONDITIONS UNDER WHICH THE ALLOWANCES SHALL BE AUTHORIZED. THE REGULATIONS FIXING THE AMOUNT OF TRAVEL ALLOWANCE AUTHORIZED TO BE PAID WHICH WERE IN EFFECT AT THE TIME OF YOUR DISCHARGE AND REENLISTMENT WERE ISSUED PURSUANT TO THAT AUTHORITY. UNDER THOSE REGULATIONS YOU ACQUIRED A VESTED RIGHT TO MILEAGE ONLY FROM NEW YORK CITY. THIS OFFICE HAS REPEATEDLY HELD THAT THE REGULATION CHANGE STATED IN THE INSTRUCTION MEMORANDUM 2-3 OF DECEMBER 1, 1951, PURPORTING TO HAVE AN EFFECTIVE DATE OF AUGUST 1, 1951, LEGALLY CAN HAVE NO SUCH RETROACTIVE EFFECT TO CHANGE SUCH VESTED RIGHTS AND IS INOPERATIVE PRIOR TO DECEMBER 1, THE DATE IT WAS ISSUED. SINCE YOU HAVE BEEN PAID THE FULL AMOUNT AUTHORIZED BY THE REGULATIONS IN EFFECT WHEN YOU WERE DISCHARGED THERE IS NO LEGAL BASIS, IRRESPECTIVE OF CONTRARY VIEWS THAT MAY HAVE BEEN EXPRESSED IN ADMINISTRATIVE PUBLICATIONS, FOR THE ALLOWANCE OF ANY ADDITIONAL AMOUNT ON YOUR CLAIM. THE PROVISIONS OF PARAGRAPH 67, AIR FORCE REGULATION 173-21B, TO WHICH YOU REFER, PERTAIN TO PROCEDURAL MATTERS IN THE PROCESSING OF CLAIMS AND WOULD HAVE NO BEARING ON THE MERITS OF YOUR CLAIM.

ACCORDINGLY, THE SETTLEMENT OF APRIL 29, 1954, IS SUSTAINED.