B-146695, SEP. 19, 1961

B-146695: Sep 19, 1961

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OTTNEY: FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 5. WAS TO PREPARE FOR FOREIGN SERVICE AND MOVEMENT FROM FORT BENNING TO BREMERHAVEN. CONCURRENT TRAVEL OF DEPENDENTS WAS AUTHORIZED WHEN APPROVED BY THE COMMANDER IN CHIEF OF THE UNITED STATES ARMY IN EUROPE. YOU WERE AUTHORIZED TRAVEL AS AN UNACCOMPANIED PERSON TO KITZINGEN. YOU WERE TO REPORT TO THE SAVANNAH STATE DOCKS AND WAREHOUSES. IT BEING STATED THAT TRAVEL OF DEPENDENTS AND SHIPMENT OF HOUSEHOLD GOODS TO THE UNITED STATES ARMY IN EUROPE WAS DISAPPROVED. THIS DISAPPROVAL WAS RESCINDED BY INDORSEMENT NO. 221 DATED MAY 15. MOVEMENT OF HOUSEHOLD GOODS AND PRIVATELY OWNED VEHICLE WAS ALSO AUTHORIZED. YOUR WIFE WAS DIRECTED TO PROCEED TO THE ST.

B-146695, SEP. 19, 1961

TO CAPTAIN JAMES B. OTTNEY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 5, 1961, WITH ENCLOSURES, IN EFFECT REQUESTING RECONSIDERATION OF OUR SETTLEMENT DATED AUGUST 1, 1961, WHICH DISALLOWED YOUR CLAIM FOR A DISLOCATION ALLOWANCE INCIDENT TO YOUR ASSIGNMENT TO OVERSEAS DUTY WITH THE UNITED STATES ARMY.

BY MOVEMENT ORDER NO. 4 DATED FEBRUARY 3, 1958, THE THIRD INFANTRY DIVISION, FORT BENNING, GEORGIA, WAS TO PREPARE FOR FOREIGN SERVICE AND MOVEMENT FROM FORT BENNING TO BREMERHAVEN, GERMANY, AND AERIAL PORTS AS DESIGNATED, VIA SAVANNAH, GEORGIA, AND OTHER PORTS DESIGNATED. CONCURRENT TRAVEL OF DEPENDENTS WAS AUTHORIZED WHEN APPROVED BY THE COMMANDER IN CHIEF OF THE UNITED STATES ARMY IN EUROPE. HOWEVER, BY INDORSEMENT DATED MARCH 17, 1958, TO MOVEMENT ORDER NO. 4, YOU WERE AUTHORIZED TRAVEL AS AN UNACCOMPANIED PERSON TO KITZINGEN, GERMANY, AND YOU WERE TO REPORT TO THE SAVANNAH STATE DOCKS AND WAREHOUSES, AREA HEADQUARTERS BUILDING, SAVANNAH, GEORGIA, ON APRIL 16, 1958, FOR PROCESSING PRIOR TO SURFACE TRANSPORTATION TO GERMANY, IT BEING STATED THAT TRAVEL OF DEPENDENTS AND SHIPMENT OF HOUSEHOLD GOODS TO THE UNITED STATES ARMY IN EUROPE WAS DISAPPROVED. THIS DISAPPROVAL WAS RESCINDED BY INDORSEMENT NO. 221 DATED MAY 15, 1958, TO MOVEMENT ORDER NO. 4, WHICH AUTHORIZED CONCURRENT TRAVEL OF YOUR WIFE TO KITZINGEN, GERMANY, AS WELL AS HER SEPARATE TRAVEL FROM COLUMBUS, GEORGIA, TO THE ARMY TRANSPORTATION TERMINAL AT BROOKLYN, NEW YORK. MOVEMENT OF HOUSEHOLD GOODS AND PRIVATELY OWNED VEHICLE WAS ALSO AUTHORIZED. AMENDATORY INDORSEMENT DATED MAY 20, 1958, YOUR WIFE WAS DIRECTED TO PROCEED TO THE ST. GEORGE HOTEL, BROOKLYN, NEW YORK, AND REPORT ON JUNE 16, 1958, FOR AIR TRAVEL TO GERMANY. YOUR WIFE WAS HONORABLY DISCHARGED FROM THE WOMEN'S ARMY CORPS ON MAY 15, 1958. OUR CLAIMS DIVISION DISALLOWED YOUR CLAIM FOR A DISLOCATION ALLOWANCE FOR THE REASON THAT YOUR WIFE WAS A MEMBER OF THE UNIFORMED SERVICES ON ACTIVE DUTY ON THE EFFECTIVE DATE OF YOUR ORDERS AND NOT ENTITLED TO PAYMENT OF THE DISLOCATION ALLOWANCE. IN YOUR LETTER OF AUGUST 5, 1961, YOU STATE THAT YOU ACCEPT THE DISALLOWANCE OF YOUR CLAIM BUT YOUR APPEAL IS MADE BECAUSE OF EXTENUATING CIRCUMSTANCES, AND YOU HAVE FURNISHED A COPY OF AN EXTRACT FROM SPECIAL ORDERS NO. 146 DATED JUNE 19, 1958, WHICH AMENDED YOUR CATEGORY FROM "II" TO "INDEFINITE.' YOU CLAIM THAT SUCH AMENDMENT GAVE YOU CERTAIN PRIVILEGES UNDER ARMY REGULATIONS.

SECTION 2 (12) OF THE CAREER INCENTIVE ACT OF 1955, 69 STAT. 21, AMENDING SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 253 (C), AUTHORIZES PAYMENT OF A DISLOCATION ALLOWANCE, UNDER REGULATIONS APPROVED BY THE SECRETARY CONCERNED, TO A MEMBER OF THE UNIFORMED SERVICES WHOSE DEPENDENTS ARE AUTHORIZED TO MOVE AND ACTUALLY DO MOVE IN CONNECTION WITH ORDERS DIRECTING A PERMANENT CHANGE OF STATION. THE PURPOSE OF A DISLOCATION ALLOWANCE IS TO PARTIALLY REIMBURSE A MEMBER WITH DEPENDENTS FOR THE EXPENSES INCURRED IN RELOCATING HIS HOUSEHOLD UPON A PERMANENT CHANGE OF STATION. PARAGRAPH 9003-1 OF THE JOINT TRAVEL REGULATIONS PROMULGATED PURSUANT TO THAT PROVISION OF LAW PROVIDES THAT:

"THE ALLOWANCE (DISLOCATION) CONTEMPLATED BY THIS CHAPTER WILL NOT BE PAYABLE IN CONNECTION WITH PERMANENT CHANGE-OF-STATION TRAVEL PERFORMED:

"1. UNDER THE CONDITIONS OUTLINED IN PAR. 7000, ITEM * * * 7 * * *.'

PARAGRAPH 7000-7 OF THE REGULATIONS PROVIDES THAT MEMBERS OF THE UNIFORMED SERVICES ARE NOT ENTITLED TO TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE UPON A PERMANENT CHANGE OF STATION WHEN THE DEPENDENT IS A MEMBER OF THE UNIFORMED SERVICE ON ACTIVE DUTY ON THE EFFECTIVE DATE OF THE ORDERS. PARAGRAPH 3003-1B OF THE REGULATIONS DEFINES THE EFFECTIVE DATE OF ORDERS AS THE DATE OF THE MEMBER'SRELIEF FROM HIS OLD STATION. SINCE YOU WERE TO REPORT TO THE SAVANNAH STATE DOCKS AND WAREHOUSES, AREA HEADQUARTERS BUILDING, SAVANNAH, GEORGIA, ON APRIL 16, 1958, FOR PROCESSING PRIOR TO TRAVELING TO GERMANY, YOUR RELIEF FROM YOUR OLD STATION AT FORT BENNING WAS ON OR BEFORE THAT DATE. HENCE, YOUR WIFE NOT BEING DISCHARGED FROM THE WOMEN'S ARMY CORPS UNTIL MAY 15, 1958, SHE WAS A MEMBER OF THE UNIFORMED SERVICE ON ACTIVE DUTY ON THE EFFECTIVE DATE OF YOUR ORDERS AND NO RIGHT ACCRUED TO YOU FOR PAYMENT OF THE DISLOCATION ALLOWANCE.

WITH REGARD TO THE CHANGE OF YOUR CATEGORY AND THE FACT THAT YOU BASE YOUR APPEAL ON EXTENUATING CIRCUMSTANCES, THE PAYMENT OF A DISLOCATION ALLOWANCE TO MEMBERS OF THE UNIFORMED SERVICE IS GOVERNED BY THE JOINT TRAVEL REGULATIONS. THERE DOES NOT APPEAR TO BE ANYTHING IN THOSE REGULATIONS WHICH PERMITS PAYMENT OF THE ALLOWANCE IN YOUR CASE BECAUSE OF A CHANGE OF CATEGORY FROM "II" TO "INDEFINITE.' SPECIAL OR EXTENUATING CIRCUMSTANCES IN A PARTICULAR CASE AFFORD NO BASIS UPON WHICH WE MAY IGNORE THE APPLICABLE STATUTES AND REGULATIONS IN THE SETTLEMENT OF CLAIMS.

ACCORDINGLY, ON THE PRESENT RECORD, THE SETTLEMENT OF AUGUST 1, 1961, WAS CORRECT AND IS SUSTAINED.