B-136940, APR. 16, 1964

B-136940: Apr 16, 1964

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KARNER: REFERENCE IS MADE TO YOUR LETTER OF JANUARY 13. WHICH CLAIM WAS THE SUBJECT OF OUR DECISION OF SEPTEMBER 4. YOU WERE RELEASED FROM DUTY AT FORT BRAGG. WHERE YOU WERE TO REPORT ON MARCH 22. IT APPEARS THAT WHILE YOU WERE ASSIGNED TO TEMPORARY DUTY AT SAN MARCOS. YOU WERE MARRIED ON MAY 1. YOU WERE RELEASED FROM THE STUDENT OFFICER COMPANY. YOUR WIFE WAS AUTHORIZED TO PROCEED UPON CALL OF THE PORT COMMANDER FROM SPRAY. SHE WAS FURNISHED TRANSPORTATION AT GOVERNMENT EXPENSE FROM DANVILLE. YOU WERE PAID BY THE DEPARTMENT OF THE ARMY $5.04 REPRESENTING THE DIFFERENCE IN MILEAGE COMPUTED AT 6 CENTS A MILE ON THE DISTANCE FROM FORT BRAGG. YOUR CLAIM FOR ADDITIONAL REIMBURSEMENT FOR YOUR WIFE'S TRAVEL WAS DISALLOWED BY OUR SETTLEMENT OF FEBRUARY 5.

B-136940, APR. 16, 1964

TO CAPTAIN FREDERICK S. KARNER:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 13, 1964, REQUESTING RECONSIDERATION ON THE BASIS OF PUBLIC LAW 88-238, APPROVED DECEMBER 23, 1963, OF YOUR CLAIM FOR ADDITIONAL REIMBURSEMENT OF EXPENSES INCURRED BY YOUR DEPENDENT (WIFE) IN TRAVELING FROM SAN MARCOS, TEXAS, TO NEW YORK, NEW YORK, IN 1954, WHICH CLAIM WAS THE SUBJECT OF OUR DECISION OF SEPTEMBER 4, 1958, B-136940, TO YOU.

BY ORDERS DATED FEBRUARY 11, 1954, YOU WERE RELEASED FROM DUTY AT FORT BRAGG, NORTH CAROLINA, AND DIRECTED TO PROCEED AND REPORT TO FORT SILL, OKLAHOMA, ON JULY 25, 1954, FOR THE PURPOSE OF ATTENDING A COURSE OF INSTRUCTION FOR A PERIOD OF APPROXIMATELY 13 WEEKS, WITH TEMPORARY DUTY EN ROUTE AT GARY AIR FORCE BASE, SAN MARCOS, TEXAS, WHERE YOU WERE TO REPORT ON MARCH 22, 1954, FOR THE PURPOSE OF ATTENDING A COURSE OF INSTRUCTION FOR A PERIOD OF APPROXIMATELY 18 WEEKS. IT APPEARS THAT WHILE YOU WERE ASSIGNED TO TEMPORARY DUTY AT SAN MARCOS, TEXAS, YOU WERE MARRIED ON MAY 1, 1954. BY ORDERS DATED MAY 21, 1954, YOU WERE RELEASED FROM THE STUDENT OFFICER COMPANY, ARMY AVIATION SCHOOL, FORT SILL, OKLAHOMA, AND FROM TEMPORARY DUTY AT GARY AIR FORCE BASE AND ASSIGNED TO DUTY IN GERMANY. SUCH ORDERS DID NOT AUTHORIZE CONCURRENT TRAVEL OF YOUR WIFE. YOUR WIFE TRAVELED WITH YOU FROM SAN MARCOS, TEXAS, TO NEW YORK, NEW YORK, AND FROM THERE TO SPRAY, NORTH CAROLINA, BETWEEN MAY 26 AND JUNE 4, 1954.

BY TRAVEL AUTHORIZATION OF DEPENDENTS TO EUROPE, DATED AUGUST 10, 1954, YOUR WIFE WAS AUTHORIZED TO PROCEED UPON CALL OF THE PORT COMMANDER FROM SPRAY, NORTH CAROLINA, TO THE NEW YORK PORT OF EMBARKATION FOR FURTHER MOVEMENT TO GERMANY. SHE WAS FURNISHED TRANSPORTATION AT GOVERNMENT EXPENSE FROM DANVILLE, VIRGINIA, TO NEW YORK, NEW YORK, AND FROM THERE TO GERMANY. YOU WERE PAID BY THE DEPARTMENT OF THE ARMY $5.04 REPRESENTING THE DIFFERENCE IN MILEAGE COMPUTED AT 6 CENTS A MILE ON THE DISTANCE FROM FORT BRAGG, NORTH CAROLINA, TO NEW YORK, NEW YORK, OVER THE DISTANCE FROM DANVILLE, VIRGINIA, TO NEW YORK. YOUR CLAIM FOR ADDITIONAL REIMBURSEMENT FOR YOUR WIFE'S TRAVEL WAS DISALLOWED BY OUR SETTLEMENT OF FEBRUARY 5, 1958, FOR THE REASON STATED THEREIN, AND SEVERAL MONTHS LATER YOU FURNISHED A COPY OF THE ORDERS OF MAY 21, 1954, AND REQUESTED THAT THE CLAIM BE GIVEN FAVORABLE CONSIDERATION IN VIEW OF THE FACT THAT YOU WERE NOT CLAIMING THE ADDITIONAL TRAVEL ALLOWANCE UNDER THE ORDERS OF FEBRUARY 11, 1954, BUT UNDER THE ORDERS OF MAY 21, 1954, WHICH CONTAINED THE ABBREVIATION "PCS," INDICATING THAT YOUR REASSIGNMENT TO DUTY IN GERMANY WAS A PERMANENT CHANGE OF STATION.

BY OUR DECISION OF SEPTEMBER 4, 1958, B-136940, WE SUSTAINED THE DISALLOWANCE OF YOUR CLAIM ON THE PREMISE THAT SECTION 7,000 OF THE JOINT TRAVEL REGULATIONS HAS BEEN CONSTRUED--- 32 COMP. GEN. 569, AND 34 COMP. GEN. 260 BEING CITED AS AUTHORITY--- AS CONTEMPLATING THAT MEMBERS OF THE UNIFORMED SERVICES ARE ENTITLED TO TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE IN CONNECTION WITH AN ASSIGNMENT TO A SCHOOL OR INSTALLATION AS A STUDENT ONLY IF THE COURSE OF INSTRUCTION IS TO BE 20 WEEKS OR MORE IN DURATION AT ANY ONE PLACE. THEREFORE, SINCE THE ORDERS OF FEBRUARY 11, 1954, ASSIGNED YOU TO FORT SILL, OKLAHOMA, AND GARY AIR FORCE BASE, SAN MARCOS, TEXAS, FOR COURSES OF INSTRUCTION OF LESS THAN 20 WEEKS' DURATION AT EITHER PLACE, THERE WAS NOTHING IN SUCH ORDERS TO SUPPORT A CONCLUSION THAT THE LATTER PLACE WAS YOUR NEW PERMANENT DUTY STATION. IT WAS ALSO POINTED OUT IN THAT DECISION THAT SINCE THE EFFECT OF THE ORDERS OF FEBRUARY 11 AND MAY 21, 1954, WAS TO DIRECT A PERMANENT CHANGE OF STATION FROM FORT BRAGG TO GERMANY, WITH INTERVENING TEMPORARY DUTY AT GARY AIR FORCE BASE, THE ABBREVIATION "PCS" APPEARING IN THE LATTER ORDERS MUST BE INTERPRETED AS REFERRING TO THAT PERMANENT CHANGE OF STATION.

SECTION 1 OF THE ACT OF DECEMBER 23, 1963, PUB.L. 88-238, 77 STAT. 475, PROVIDES:

"* * * CHAPTER 7 OF TITLE 37, U.S.C. IS AMENDED AS FOLLOWS:

"/1) THE FOLLOWING NEW SECTION IS INSERTED AFTER SECTION 406:

" "SEC. 406A. TRAVEL AND TRANSPORTATION ALLOWANCES: AUTHORIZED FOR TRAVEL PERFORMED UNDER ORDERS THAT ARE CANCELED, REVOKED, OR MODIFIED

" "UNDER UNIFORM REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, A MEMBER OF A UNIFORMED SERVICE IS ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES UNDER SECTION 404 OF THIS TITLE, AND TO TRANSPORTATION OF HIS DEPENDENTS, BAGGAGE, AND HOUSEHOLD EFFECTS UNDER SECTIONS 406 AND 409 OF THIS TITLE, IF OTHERWISE QUALIFIED, FOR TRAVEL PERFORMED BEFORE THE EFFECTIVE DATE OF ORDERS THAT DIRECT HIM TO MAKE A CHANGE OF STATION AND THAT ARE LATER---

" "/1) CANCELED, REVOKED, OR MODIFIED TO DIRECT HIM TO RETURN TO THE STATION FROM WHICH HE WAS BEING TRANSFERRED; OR

" "/2) MODIFIED TO DIRECT HIM TO MAKE A DIFFERENT CHANGE OF STATION.'"

JOINT DETERMINATION NO. 3-64 DATED JANUARY 21, 1964, ISSUED BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE FOR THE PURPOSE OF CHANGING THE JOINT TRAVEL REGULATIONS TO IMPLEMENT THE PROVISIONS OF THE ABOVE ACT PROVIDES IN PART:

"PAR. 3003-LB REVISED. NEW SUBPARS. (2) AND (3) ADDED--- EFFECTIVE 23 DECEMBER 1963

"B. EFFECTIVE DATE

"/2) MODIFIED, CANCELED, OR REVOKED ORDERS. FOR THE PURPOSE OF DETERMINING ENTITLEMENT TO ALLOWANCES FOR TRAVEL AND TRANSPORTATION UNDER PERMANENT CHANGE-OF-STATION ORDERS WHICH ARE MODIFIED, CANCELED, OR REVOKED PRIOR TO THEIR EFFECTIVE DATE, THE ORDERS WILL BE CONSIDERED AS EFFECTIVE WHEN RECEIVED FOR ANY TRAVEL PERFORMED THEREUNDER BY THE MEMBER OR HIS DEPENDENTS, OR ANY TRANSPORTATION OF HOUSEHOLD GOODS OR HOUSE TRAILERS COMMENCED OR COMPLETED THEREUNDER, EVEN THOUGH LEAVE, DELAY, PROCEED TIME, OR TEMPORARY DUTY EN ROUTE ARE INVOLVED.

"/3) ADJUSTMENT OF TRAVEL AND TRANSPORTATION ALLOWANCES FOR THE PERIOD 1 OCTOBER 1949 THROUGH 22 DECEMBER 1963 AUTHORIZED BY PUBLIC LAW 88-238 (77 STAT. 475). FOR PERMANENT CHANGE-OF-STATION TRAVEL PERFORMED BY A MEMBER OR HIS DEPENDENTS, OR FOR TRANSPORTATION OF HOUSEHOLD GOODS OR HOUSE TRAILERS UNDER ORDERS ISSUED ON OR AFTER 1 OCTOBER 1949, A MEMBER OR FORMER MEMBER OF THE UNIFORMED SERVICES WHO WOULD HAVE BEEN ENTITLED TO TRAVEL OR TRANSPORTATION ALLOWANCES UNDER THE REGULATIONS APPLICABLE AT THE TIME THE TRAVEL OR TRANSPORTATION WAS PERFORMED HAD SUBPAR. (2) BEEN THEN IN EFFECT, WILL BE ENTITLED TO PAYMENT, OR REPAYMENT, OF SUCH ALLOWANCES, IF OTHERWISE PROPER, AND CLAIM THEREFOR IS SUBMITTED WITHIN ONE YEAR AFTER 23 DECEMBER 1963. CLAIMS WILL BE PROCESSED AND PAID IN ACCORDANCE WITH REGULATIONS OF THE SERVICE CONCERNED.'

UNDER THE ACT AND IMPLEMENTING REGULATIONS A MEMBER IS ENTITLED TO THE TRANSPORTATION ALLOWANCE FRO HIS DEPENDENTS' TRAVEL UPON A SHOWING THAT SUCH TRAVEL WAS PERFORMED BEFORE THE EFFECTIVE DATE OF THE ORDERS DIRECTING HIM TO MAKE A CHANGE OF STATION WHICH ARE LATER CANCELED, REVOKED, OR MODIFIED TO DIRECT HIM TO RETURN TO HIS STATION FROM WHICH HE WAS BEING TRANSFERRED, OR THE ORDERS ARE MODIFIED TO DIRECT HIM TO MAKE A DIFFERENT CHANGE OF STATION.

SINCE, AS EXPLAINED IN THE DECISION OF SEPTEMBER 4, 1958, THE ORDERS OF FEBRUARY 11, 1954, WERE INEFFECTIVE AS PERMANENT CHANGE-OF STATION ORDERS, THE SUBSEQUENT ORDERS OF MAY 21, 1954, DID NOT CONSTITUTE A MODIFICATION OF PERMANENT CHANGE-OF-STATION ORDERS, BUT MERELY TERMINATED YOUR TEMPORARY DUTY ASSIGNMENTS AT FORT SILL AND SAN MARCOS AND, IN EFFECT, DIRECTED A PERMANENT CHANGE OF STATION FROM FORT BRAGG TO AN OVERSEAS STATION. INCIDENT TO SUCH OVERSEAS ASSIGNMENT YOU WERE ENTITLED TO REIMBURSEMENT FOR THE TRAVEL OF YOUR WIFE TO THE PORT OF EMBARKATION, NEW YORK, NEW YORK, NOT TO EXCEED THE DISTANCE FROM FORT BRAGG, YOUR OLD PERMANENT STATION. YOU HAVE BEEN REIMBURSED ON THAT BASIS.

YOUR CLAIM DOES NOT INVOLVE ANY TRAVEL BY YOUR WIFE PRIOR TO THE EFFECTIVE DATE OF PERMANENT CHANGE-OF-STATION ORDERS WHICH WERE MODIFIED TO DIRECT A DIFFERENT CHANGE OF STATION AND THEREFORE THE ACT OF DECEMBER 23, 1963, HAS NO APPLICATION IN YOUR CASE. ACCORDINGLY, THERE IS NO FURTHER ACTION WE MAY TAKE ON YOUR CLAIM.