B-129234, OCT. 31, 1956

B-129234, OCT. 31, 1956

TO LIEUTENANT COLONEL GEORGE B. COLLINS:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 6, 1956, IN EFFECT REQUESTING REVIEW OF THE SETTLEMENT OF AUGUST 29, 1956, WHICH DISALLOWED YOUR CLAIM FOR A STATION PER DIEM ALLOWANCE AT THE TRAVEL RATE FOR THE PERIOD DECEMBER 1, 1955, TO JANUARY 14, 1956, WHILE SERVING OVERSEAS.

BY ORDERS DATED NOVEMBER 30, 1955, HEADQUARTERS UNITED STATES ARMY EUROPE COMMUNICATIONS ZONE, APO 58, YOU WERE TRANSFERRED FROM 7992D ARMY UNIT TO 7966TH ARMY UNIT, BOTH AT APO 58. THE ORDERS PROVIDED THAT NO TRAVEL WAS INVOLVED AND CONTAINED THE ABBREVIATION "PCS" INDICATING A PERMANENT CHANGE OF STATION. BY ORDERS DATED JANUARY 12, SAME HEADQUARTERS, THE ORDERS OF NOVEMBER 30, 1955, AS AMENDED BY ORDERS OF DECEMBER 1, 1955, WERE FURTHER AMENDED TO DELETE "PCS.' (THE ORDERS LAST MENTIONED HAVE NOT BEEN FURNISHED AND, PRESUMABLY, HAVE NO MATERIAL BEARING ON YOUR CLAIM.) BY ORDERS DATED FEBRUARY 27, 1956, ISSUED BY THE SAME HEADQUARTERS, YOU WERE TRANSFERRED FROM THE 7966TH ARMY UNIT, APO 58, TO THE MILITARY DISTRICT OF WASHINGTON. PRIOR TO THE ORDERS TRANSFERRING YOU FROM ONE UNIT TO ANOTHER OVERSEAS, YOUR WIFE AND HOUSEHOLD GOODS WERE RETURNED TO THE UNITED STATES UNDER ORDERS DATED NOVEMBER 21, 1955. SHORTLY AFTER YOU FILED YOUR CLAIM FOR 45 DAYS' PER DIEM UNDER THE PROVISIONS OF PARAGRAPH 4303-2, JOINT TRAVEL REGULATIONS, YOU WERE ADVISED BY THE DEPARTMENT OF THE ARMY THAT PAYMENT WAS NOT AUTHORIZED FOR THE REASON THAT THE ORDERS OF NOVEMBER 30, 1955, SPECIFICALLY STATE "NO TRAVEL INVOLVED.' YOU STATE THAT YOUR OLD STATION WAS AT DONNERY, FRANCE, AND THE NEW STATION WAS AT ORLEANS, FRANCE, A DISTANCE OF APPROXIMATELY TEN MILES, AND THAT DUE TO YOUR WIFE'S RETURN TO THE UNITED STATES AND THE FACT THAT YOU WERE ABOUT TO BE RETURNED ON A ROTATION BASIS, YOU RELINQUISHED YOUR QUARTERS AND MOVED FROM AVARAY, FRANCE, TO ORLEANS, A DISTANCE OF APPROXIMATELY 35 MILES.

IN THE SETTLEMENT MENTIONED ABOVE IT WAS STATED THAT NO TRAVEL WAS REQUIRED BY THE CHANGE OF STATION ORDERS AND THAT YOU APPARENTLY CHANGED YOUR RESIDENCE FOR PERSONAL REASONS. IN YOUR REQUEST FOR REVIEW YOU ADMIT YOU CHANGED YOUR RESIDENCE FOR PERSONAL REASONS; HOWEVER, YOU EXPRESS THE BELIEF THAT THE "NO TRAVEL INVOLVED" PROVISION IN YOUR ORDERS HAS NO BEARING ON THE PAYMENT OF A PER DIEM ALLOWANCE, NOR ON THE DEFINITION OF WHAT CONSTITUTES A PERMANENT CHANGE OF STATION, AND THAT UNDER THE JOINT TRAVEL REGULATIONS THE DISTANCE BETWEEN PERMANENT STATIONS IS IMMATERIAL INSOFAR AS PER DIEM ALLOWANCES ARE CONCERNED. ALSO, YOU STATE THAT THE AMENDATORY ORDERS DELETING "PCS" WERE ISSUED ONLY AFTER YOU PRESENTED YOUR CLAIM; THAT EVEN WITH THE AMENDMENT THE ORIGINAL ORDERS WERE IN EFFECT FOR 42 DAYS, AND THAT THEY EFFECTED A CHANGE FROM ONE COMMAND TO ANOTHER AS WELL AS FROM ONE DUTY STATION TO ANOTHER.

SECTION 303 (B) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 814, PROVIDES THAT THE SECRETARIES OF THE UNIFORMED SERVICES MAY AUTHORIZE THE PAYMENT TO MEMBERS OF THE UNIFORMED SERVICES ON DUTY OUTSIDE THE CONTINENTAL UNITED STATES OR IN ALASKA, WHETHER OR NOT IN A TRAVEL STATUS, OF A PER DIEM CONSIDERING ALL ELEMENTS OF COST OF LIVING TO MEMBERS AND THEIR DEPENDENTS, INCLUDING THE COST OF QUARTERS, SUBSISTENCE, AND OTHER NECESSARY INCIDENTAL EXPENSES, PROVIDED THAT DEPENDENTS SHALL NOT BE CONSIDERED IN DETERMINING PER DIEM ALLOWANCES FOR MEMBERS IN A TRAVEL STATUS. PARAGRAPH 4303-2 (A), JOINT TRAVEL REGULATIONS, PROMULGATED BY THE SECRETARIES PURSUANT TO THAT PROVISION OF LAW AND QUOTED IN PERTINENT PART IN THE SETTLEMENT OF AUGUST 29, 1956, PROVIDES THAT UPON TRANSFER FROM ONE PERMANENT STATION OUTSIDE THE UNITED STATES TO ANOTHER PERMANENT STATION OUTSIDE THE UNITED STATES "REQUIRING A CHANGE IN RESIDENCE," A MEMBER WHO IS NOT FURNISHED GOVERNMENT QUARTERS AT HIS NEW STATION AND WHO IS REQUIRED TO SECURE TEMPORARY LODGING FOR ANY PERIOD DURING THE FIRST 45 DAYS AFTER ARRIVAL THERE SHALL BE ENTITLED TO A STATION PER DIEM ALLOWANCE EQUAL TO THE TRAVEL PER DIEM ALLOWANCE FOR THAT AREA, LESS PRESCRIBED DEDUCTIONS. THUS, UNDER THE CONTROLLING REGULATIONS, THE PAYMENT OF THE STATION PER DIEM ALLOWANCE CLAIMED IS SPECIFICALLY PREDICATED ON A CHANGE OF STATION REQUIRING A CHANGE OF RESIDENCE. IT IS NOT PAYABLE WHEN THE RESIDENCE IS CHANGED FOR PERSONAL REASONS. THE CHANGE OF STATION WHICH YOU WERE ORDERED TO MAKE INVOLVED STATIONS LOCATED ONLY TEN MILES APART AND THE ORDERS EXPRESSLY PROVIDED THAT NO TRAVEL WAS INVOLVED. THAT PROVISION, AS WELL AS YOUR OWN ADMISSION THAT THE CHANGE OF RESIDENCE WAS FOR PERSONAL REASONS, LEAVES NO DOUBT THAT NO CIRCUMSTANCES OF RESIDENCE WAS FOR PERSONAL REASONS, LEAVES NO DOUBT THAT NO CIRCUMSTANCES AROSE BECAUSE OF THE ORDERED CHANGE OF STATION WHICH REQUIRED A CHANGE OF YOUR RESIDENCE. SUCH BEING THE CASE, THERE IS NO LEGAL BASIS FOR THE ALLOWANCE OF YOUR CLAIM, AND THE SETTLEMENT OF AUGUST 29, 1956, MUST BE SUSTAINED.