B-139515, AUG. 6, 1959

B-139515, AUG. 6, 1959

TO THE SECRETARY OF THE AIR FORCE:

IN LETTER OF APRIL 22, 1959, FROM THE ASSISTANT SECRETARY OF THE AIR FORCE (FINANCIAL MANAGEMENT), DECISION IS REQUESTED AS TO WHETHER THERE WILL BE OBJECTION TO PAYMENT OF AN EMERGENCY COST-OF-LIVING ALLOWANCE TO A MEMBER OF THE AIR FORCE ON ACCOUNT OF HIS WIFE'S RESIDENCE IN LEGHORN, ITALY, AS AN EMERGENCY EVACUEE, IF BASED ON A RETROACTIVELY EFFECTIVE SPECIAL DETERMINATION TO BE MADE UNDER PARAGRAPH 4306 OF THE JOINT TRAVEL REGULATIONS. THE REQUEST WAS ASSIGNED PDTATAC CONTROL NO. 59-15.

THE FACTS INVOLVED, AS SET FORTH IN THE ASSISTANT SECRETARY'S LETTER, ARE THAT DURING THE EARLY PART OF AUGUST 1958, THE DEPENDENTS OF MILITARY PERSONNEL ON DUTY IN ONE OF THE EASTERN MEDITERRANEAN COUNTRIES WERE ORDERED EVACUATED TO ROME AND NAPLES, ITALY. AFTER EVACUATION ORDERS WERE ISSUED AND CERTAIN DEPENDENTS HAD DEPARTED IT WAS LEARNED THAT ONE OF THE DEPENDENTS REQUIRED MEDICAL ATTENTION OR HOSPITALIZATION. BY A DISPATCH, COMPETENT AUTHORITY ORDERED THAT AFTER THE DEPENDENT ARRIVED IN ROME SHE BE DIRECTED TO REPORT TO THE UNITED STATES ARMY HOSPITAL AT LEGHORN. SHE WAS HOSPITALIZED UPON ARRIVAL AT LEGHORN ON OR ABOUT AUGUST 10, 1958, AND UPON RELEASE FROM THE HOSPITAL ON AUGUST 19 SHE WAS REQUIRED TO REMAIN IN THE LEGHORN AREA PENDING THE BIRTH OF A CHILD. SHE WAS AGAIN HOSPITALIZED ON SEPTEMBER 30 WHEN HER SON WAS BORN, SHE REMAINED IN THE HOSPITAL UNTIL OCTOBER 7, AND UPON DISCHARGE SHE CONTINUED TO RESIDE IN THE AREA OF THE HOSPITAL. IT IS STATED THAT A TIMELY DETERMINATION PRESCRIBING EMERGENCY COST-OF-LIVING ALLOWANCES FOR THE DEPENDENTS AT ROME AND NAPLES WAS MADE SHORTLY AFTER THE ARRIVAL OF THE DEPENDENTS THERE, BUT THAT DUE TO ADMINISTRATIVE ERROR IN FAILING TO COMPLY WITH THE REQUIREMENT OF SUBPARAGRAPH 4306-5 OF THE JOINT TRAVEL REGULATIONS, A REPORT ON THE DETAILED SUBSISTENCE COSTS INCURRED BY THE DEPENDENT AT LEGHORN WAS NOT FURNISHED THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE, AND CONSEQUENTLY, NO ACTION WAS TAKEN TO AUTHORIZE EMERGENCY ALLOWANCES FOR HER.

PARAGRAPH 4306 OF THE JOINT TRAVEL REGULATIONS, AS APPEARING IN CHANGE 61 TO THE REGULATIONS DATED AUGUST 1, 1957, IN EFFECT WHEN THE DEPENDENT IN QUESTION WAS EVACUATED TO LEGHORN, PROVIDES FOR THE PAYMENT TO A MEMBER WHOSE DEPENDENTS ARE ORDERED TO BE EVACUATED FROM THE VICINITY OF HIS DUTY STATION TO ANOTHER OVERSEAS AREA OF AN EMERGENCY COST-OF-LIVING ALLOWANCE TO BE PRESCRIBED BY SPECIAL DETERMINATION OF THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE, AT THE REQUEST OF THE COMMANDER ORDERING THE EVACUATION, OR OTHER COMPETENT AUTHORITY, ON THE BASIS OF A REPORT OF ACTUAL DETAILED COSTS OF QUARTERS AND SUBSISTENCE BEING EXPERIENCED BY DEPENDENTS IN THE AREA TO WHICH EVACUATED, AS ASCERTAINED AND FURNISHED TO THE COMMITTEE BY THE SENIOR COMMANDER OF THAT AREA, OR ANY OTHER COMPETENT AUTHORITY, AS SOON AS POSSIBLE AFTER THE ARRIVAL THERE OF THE DEPENDENTS. IN CHANGE 73, WHICH IS DATED OCTOBER 1, 1958, AND HENCE NOT FOR APPLICATION HERE, FURTHER PROVISION IS MADE FOR THE PAYMENT OF AN EMERGENCY ALLOWANCE FOR A PERIOD NOT TO EXCEED 30 DAYS BASED ON THE DAILY TRAVEL PER DIEM RATE PRESCRIBED FOR THE AREA IN TABLE 3, APPENDIX B, PENDING THE PRESCRIBING OF AN EMERGENCY COST-OF-LIVING ALLOWANCE BY THE SECRETARY CONCERNED AND THE CHAIRMAN OF THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE. ALSO, IT IS PROVIDED THAT EMERGENCY COST-OF-LIVING ALLOWANCES ARE PAYABLE FROM THE DAY OF ARRIVAL OF THE DEPENDENTS IN THE DESIGNATED SAFE HAVEN AREA.

A RETROACTIVE APPLICATION OF REGULATIONS OR OTHER ADMINISTRATIVE ACTION TO EFFECT A DIVESTMENT OR INCREASE OF RIGHTS OF A MEMBER THAT HAVE ACCRUED AND BECOME FIXED, IS NOT PROPER. 23 COMP. GEN. 713. ALTHOUGH AN APPLICATION OF THAT PRINCIPLE WITH RESPECT TO THE RATES AT WHICH COST-OF- LIVING ALLOWANCES INCIDENT TO EMERGENCY EVACUATIONS ARE TO BE PAID WOULD NOT APPEAR TO BE APPROPRIATE, IT WOULD APPEAR THAT BOTH THE LAW AND THE PROVISIONS OF PARAGRAPH 4306 OF THE JOINT TRAVEL REGULATIONS REQUIRE A CONTEMPORANEOUS DETERMINATION OF SUCH RATES. ASSUMING, HOWEVER, THAT THE NECESSARY DATA WITH RESPECT TO THE COST OF LIVING AT LEGHORN, ITALY, DURING HIS DEPENDENT'S EVACUATION TO THAT PLACE REMAINS AVAILABLE, WE WILL NOT OBJECT TO THE PAYMENT OF A COST OF-LIVING ALLOWANCE TO THE MEMBER INVOLVED IN THE PRESENT SUBMISSION ON THE BASIS OF A SPECIAL DETERMINATION AS PROPOSED. YOUR QUESTIONS ARE ANSWERED ACCORDINGLY.