B-139637, JUL. 9, 1964

B-139637, JUL. 9, 1964

TO LIEUTENANT COLONEL EARL E. BENNETTS, RETIRED:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 29, 1964, FORWARDED TO OUR OFFICE BY THE FINANCE CENTER, U.S. ARMY, INDIANAPOLIS, INDIANA, REQUESTING RECONSIDERATION OF YOUR CLAIM FOR REIMBURSEMENT FOR MOVING YOUR HOUSE TRAILER FROM FORT POLK, LOUISIANA, TO PONTIAC, MICHIGAN, WHICH WAS THE SUBJECT OF OUR DECISION OF JUNE 23, 1959, B-139637, TO YOU.

ORDERS DATED JUNE 9, 1958, AS AMENDED ON JULY 3, 1958, TRANSFERRED YOU FROM FORT POLK, LOUISIANA, TO TAIPEI, TAIWAN, IN OCTOBER 1958, FOLLOWING TEMPORARY DUTY EN ROUTE AT ARLINGTON, VIRGINIA. ON JULY 14, 1958, CONCURRENT TRAVEL OF YOUR WIFE WAS AUTHORIZED FROM FORT POLK TO YOUR OVERSEAS STATION UPON CALL OF THE ARMY TERMINAL COMMANDER. UPON RECEIPT OF THE ORDERS AND AUTHORIZATION YOU HAD YOUR PERSONAL AND HOUSEHOLD EFFECTS SHIPPED (2,965 POUNDS FROM FORT POLK, LOUISIANA, AND 4,008 POUNDS FROM STORAGE IN MONTEREY, CALIFORNIA) TO OAKLAND ARMY TERMINAL, OAKLAND, CALIFORNIA, AND THENCE TO TAIWAN AT GOVERNMENT EXPENSE. ALSO, IN JULY 1958 YOU MOVED YOUR TRAILER FROM FORT POLK TO PONTIAC, MICHIGAN, AT PERSONAL EXPENSE. IN SEPTEMBER 1958, WHILE ON TEMPORARY DUTY IN ARLINGTON, YOU WERE ADVISED THAT DEPENDENT TRAVEL TO TAIWAN WAS SUSPENDED INDEFINITELY AND THAT NEITHER DEPENDENTS, HOUSEHOLD EFFECTS, PETS NOR PRIVATE VEHICLES SHOULD BE DELIVERED TO THE TERMINAL FOR SHIPMENT. YOUR WIFE, WHO HAD ACCOMPANIED YOU TO YOUR TEMPORARY STATION, TRAVELED TO PONTIAC, MICHIGAN, WHEN YOU WENT OVERSEAS, AND EVIDENTLY RESIDED THERE UNTIL DEPENDENT TRAVEL WAS RESUMED. SHE ARRIVED IN TAIWAN ON JANUARY 6, 1959.

BY SETTLEMENT DATED APRIL 7, 1959, YOUR CLAIM FOR MOVING YOUR HOUSE TRAILER FROM FORT POLK TO PONTIAC WAS DISALLOWED FOR THE REASON THAT SINCE YOUR HOUSEHOLD EFFECTS WERE SHIPPED TO TAIWAN INCIDENT TO ORDERS DATED JUNE 9, 1958, YOUR RIGHT TO MAKE AN ELECTION TO RECEIVE TRAILER ALLOWANCE AFTER THE SHIPMENT OF HOUSEHOLD EFFECTS WAS FORFEITED. YOU CONTEND THAT WHEN YOUR ORDERS WERE CHANGED TO DENY CONCURRENT TRAVEL YOU SHOULD HAVE BEEN PERMITTED TO CHANGE YOUR OPTION AS TO THE DISLOCATION ALLOWANCE, MOVEMENT OF TRAILER OR HOUSEHOLD GOODS, AND YOU FEEL THAT YOU SHOULD RECEIVE THE TRAILER ALLOWANCE UNDER THE PROVISIONS OF PUBLIC LAW 88-238 APPROVED DECEMBER 23, 1963.

YOU WERE ADVISED IN THE DECISION OF JUNE 23, 1959, THAT THE PERTINENT STATUTE, SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED (NOW 37 U.S.C. 406 AND 409), PROVIDES THAT UNDER SUCH REGULATIONS AS THE SECRETARIES CONCERNED MAY PRESCRIBE MEMBERS OF THE UNIFORMED SERVICES WHEN ORDERED TO MAKE A PERMANENT CHANGE OF STATION SHALL BE ENTITLED TO TRANSPORTATION OF BAGGAGE AND HOUSEHOLD EFFECTS, OR IN LIEU OF SUCH TRANSPORTATION TO AN ALLOWANCE FOR TRANSPORTING A HOUSE TRAILER OR MOBILE DWELLING WITHIN THE CONTINENTAL UNITED STATES FOR USE AS A RESIDENCE. YOU WERE ALSO ADVISED IN THE DECISION THAT NO PROVISION WAS FOUND IN THE APPLICABLE REGULATIONS INCREASING A MEMBER'S RIGHT ON ACCOUNT OF EARLY SHIPMENT OF HOUSEHOLD GOODS INCIDENT TO PERMANENT CHANGE OF STATION ORDERS WHICH ARE NEITHER MODIFIED NOR CANCELLED.

SECTION 1 OF THE ACT OF DECEMBER 23, 1963, PUB.L. 88-238, 77 STAT. 475, ON WHICH YOU BASE YOUR REQUEST FOR RECONSIDERATION OF YOUR CLAIM, 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.'"

SECTION 409, REFERRED TO ABOVE, PROVIDES THAT A MEMBER OTHERWISE ENTITLED TO TRANSPORTATION OF BAGGAGE AND HOUSEHOLD GOODS UNDER SECTION 406 MAY, IN PLACE OF SUCH TRANSPORTATION, RECEIVE AN ALLOWANCE FOR TRANSPORTING A HOUSE TRAILER WITHIN THE UNITED STATES FOR USE AS A RESIDENCE. UNDER THE ACT OF DECEMBER 23, 1963, AND IMPLEMENTING REGULATIONS, A MEMBER WHO TRANSPORTS A HOUSE TRAILER IN PLACE OF SHIPPING HIS HOUSEHOLD GOODS IS ENTITLED TO THE PRESCRIBED ALLOWANCE UPON A SHOWING THAT SUCH TRANSPORTATION WAS PERFORMED BEFORE THE EFFECTIVE DATE OF THE ORDERS DIRECTING HIM TO MAKE A CHANGE OF STATION THAT 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 YOUR ORDERS WERE NOT CANCELED, REVOKED OR MODIFIED TO DIRECT YOU TO RETURN TO YOUR OLD STATION OR MODIFIED TO DIRECT YOU TO MAKE A DIFFERENT CHANGE OF STATION, THE ACT OF DECEMBER 23, 1963, HAS NO APPLICATION IN YOUR CASE AND AFFORDS NO LEGAL BASIS TO ALLOW YOU A TRAILER ALLOWANCE FOR THE TRANSPORTATION OF THE TRAILER.