B-137372, FEB 24, 1959

B-137372, FEB 24, 1959

PRECIS-UNAVAILABLE

R.R. TAYLOR, DEPARTMENT OF THE NAVY:

BY SECOND ENDORSEMENT DATED JANUARY 1, 1959, THE COMPTROLLER OF THE NAVY FORWARDED YOUR UNDATED LETTER, WITH ENCLOSURES, REQUESTING ADVANCE DECISION AS TO WHETHER PAYMENT IS AUTHORIZED ON THE SUBMITTED VOUCHERS IN FAVOR OF LIEUTENANT COMMANDER CHARLES J. MCCARTY, USNR-R, FOR A MONETARY ALLOWANCE IN LIEU OF TRANSPORTATION OF DEPENDENTS FOR TRAVEL FROM WORDEN'S POND, WAKEFIELD, RHODE ISLAND, TO NEW RICHMOND, WISCONSIN, REIMBURSEMENT FOR EXPENSES OF SHIPMENT OF HOUSEHOLD EFFECTS FROM PROVIDENCE, RHODE ISLAND, TO NEW RICHMOND, AND DISLOCATION ALLOWANCE, IN THE CIRCUMSTANCES SHOWN. THE SUBMISSION OF YOUR REQUEST FOR DECISION WAS APPROVED BY THE PER DIEM TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE AND ASSIGNED PDTATAC CONTROL NO. 58-14.

UNDER ORDERS OF THE COMMANDING OFFICER, AIR DEVELOPMENT SQUADRON SIX (VX- 6), DATED OCTOBER 15, 1956, COMMANDER MCCARTY WAS DIRECTED TO PROCEED ON OR ABOUT NOVEMBER 9, 1956, FROM HIS DUTY STATION, APPARENTLY AT QUONSET POINT, RHODE ISLAND, TO THE ANTARCTIC CONTINENT FOR TEMPORARY ADDITIONAL DUTY OF APPROXIMATELY 18 MONTHS' DURATION IN CONNECTION WITH OPERATION DEEPFREEZE II AND III, UPON THE COMPLETION OF WHICH HE WAS TO RETURN TO HIS STATION. YOU STATE THAT IN AUGUST OF 1956 HE WAS ADVISED BY THE COMMANDING OFFICER, AIR DEVELOPMENT SQUADRON SIX (VX-6), THAT ORDERS DIRECTING SUCH TEMPORARY ADDITIONAL DUTY WERE TO BE ISSUED, AND THAT AT THAT TIME HE MOVED HIS DEPENDENTS FROM RHODE ISLAND TO WISCONSIN AT HIS OWN EXPENSE. IT APPEARS THAT THE DEPENDENTS' TRAVEL WAS PERFORMED DURING THE PERIOD AUGUST 20 TO 22, 1956, AND ALSO THAT HOUSEHOLD EFFECTS, WITH A NET WEIGHT OF 4,440 POUNDS, WERE LOADED ON SEPTEMBER 5, 1956, BY PAUL ARPIN VAN LINES INC., PROVIDENCE, RHODE ISLAND, AND SHIPPED AT THE OFFICER'S PERSONAL EXPENSE TO NEW RICHMOND. YOU REFER TO OUR DECISION OF MAY 3, 1957, B-131145, 36 COMP. GEN. 757 - WHICH LENDS SUPPORT TO A CONCLUSION THAT THE ORDERS OF OCTOBER 15, 1956, EVEN THOUGH DESIGNATED AS TEMPORARY ADDITIONAL DUTY ORDERS, IN FACT DIRECTED A PERMANENT CHANGE OF STATION FOR COMMANDER MCCARTY TO THE ANTARCTIC - AND SUGGEST THAT IN VIEW OF THAT CIRCUMSTANCE ENTITLEMENT TO THE ITEMS INVOLVED, THE RIGHT TO WHICH ARISES INCIDENT TO A DIRECTED PERMANENT CHANGE OF STATION, SHOULD BE CONSIDERED TO ACCRUE TO THE OFFICER EVEN THOUGH PERMANENT CHANGE OF STATION TYPE ORDERS WERE NOT ISSUED.

IN THE CITED DECISION OF MAY 3, 1957, IT WAS POINTED OUT THAT THE QUESTION OF WHETHER AN ASSIGNMENT IS TEMPORARY OR PERMANENT IS ONE OF FACT, NOT NECESSARILY DETERMINABLE BY PROVISIONS APPEARING IN THE ORDERS, AND IT WAS HELD THAT A PERMANENT ASSIGNMENT IN FACT EXISTED UNDER ORDERS SIMILAR TO THOSE HERE INVOLVED EVEN THOUGH THE ORDERS WERE ISSUED IN THE FORM ORDINARILY USED FOR TEMPORARY ASSIGNMENTS. SUCH ORDERS, UNDER THOSE CIRCUMSTANCES, SHOULD BE CONSIDERED AS ACTUALLY DIRECTING A PERMANENT CHANGE OF STATION, AND ANY RIGHT TO ALLOWANCES PROVIDED BY LAW AND REGULATION INCIDENT TO A PERMANENT CHANGE OF STATION SHOULD BE DETERMINED ON THAT BASIS.

SINCE IT IS INDICATED THAT COMMANDER MCCARTY HAD BEEN ADVISED PRIOR TO THE DATE OF THE TRAVEL OF HIS DEPENDENTS AND SHIPMENT OF HIS HOUSEHOLD EFFECTS THAT ORDERS WOULD BE ISSUED FOR DUTY FOR A PROLONGED PERIOD IN THE ANTARCTIC, THERE APPEARS TO BE NO BASIS TO QUESTION THAT HIS DEPENDENTS AND HOUSEHOLD EFFECTS WERE MOVED FOR THE PURPOSE OF ESTABLISHING A RESIDENCE AT NEW RICHMOND BECAUSE OF THAT DUTY ASSIGNMENT. THE ABSENCE OF A CERTIFICATION DESIGNATING NEW RICHMOND AS THE DEPENDENTS' RESIDENCE UNDER THE REQUIREMENTS OF PARAGRAPH 700-4 OF THE JOINT TRAVEL REGULATIONS APPEARS TO HAVE BEEN THE RESULT OF A CONSIDERATION BY THE OFFICER, BECAUSE OF THE TYPE OF ORDERS USED, THAT A TEMPORARY CHANGE OF STATION ONLY WAS INVOLVED IN THE ASSIGNMENT TO THE ANTARCTIC. UNDER SUCH CIRCUMSTANCES, IT MAY BE CONSIDERED THAT THE DEPENDENTS' TRAVEL AND SHIPMENT OF HOUSEHOLD EFFECTS TO NEW RICHMOND WERE EFFECTED INCIDENT TO A PERMANENT CHANGE OF STATION DIRECTED BY THE ORDERS OF OCTOBER 15, 1956, AND PAYMENT ON THE SUBMITTED VOUCHERS, RETURNED HEREWITH, MAY BE MADE ON THAT BASIS.