B-148027, MAR. 30, 1962

B-148027: Mar 30, 1962

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W3100412: REFERENCE IS MADE TO YOUR LETTER OF JANUARY 14. YOUR CLAIM WAS DISALLOWED ON THE BASIS THAT (1) SINCE YOUR CHANGE OF STATION ORDERS DATED FEBRUARY 20. WERE REVOKED PRIOR TO THEIR EFFECTIVE DATE THE MOVEMENT TO RICHMOND WAS NOT IN CONNECTION WITH A PERMANENT CHANGE OF STATION. PROHIBITS PAYMENT OF DISLOCATION ALLOWANCE FOR THE MOVE TO GERMANY SINCE IT WAS FROM THE PLACE FROM WHICH ORDERED TO ACTIVE DUTY TO FIRST PERMANENT DUTY STATION. INASMUCH AS YOU CONSIDER YOU WERE COMPLYING THEREWITH WHEN YOU DEPARTED YOUR LEAVE ADDRESS IN RICHMOND. THE VERBAL ORDERS DIRECTING YOU TO REPORT BACK TO FORT MONROE WERE NOT RECEIVED UNTIL YOU STOPPED EN ROUTE TO VISIT FRIENDS IN THE PENTAGON. YOU WERE RELIEVED FROM YOUR ASSIGNMENT AT THAT STATION AND REASSIGNED TO HEADQUARTERS.

B-148027, MAR. 30, 1962

TO WARRANT OFFICER OSCAR A. GERNER, JR., W3100412:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 14, 1962, REQUESTING RECONSIDERATION OF SETTLEMENT DATED JANUARY 3, 1962, WHICH DISALLOWED YOUR CLAIM FOR (1) REIMBURSEMENT FOR TRAVEL AND DISLOCATION ALLOWANCE FOR THE MOVEMENT OF YOUR DEPENDENTS FROM FORT MONROE, VIRGINIA, TO RICHMOND, VIRGINIA, ON MARCH 27, 1961; AND (2) DISLOCATION ALLOWANCE FOR THE MOVEMENT OF YOUR DEPENDENTS FROM HAMPTON, VIRGINIA, TO DARMSTADT, GERMANY, DURING THE PERIOD SEPTEMBER 22 TO 24, 1961.

YOUR CLAIM WAS DISALLOWED ON THE BASIS THAT (1) SINCE YOUR CHANGE OF STATION ORDERS DATED FEBRUARY 20, 1961, AS AMENDED, WERE REVOKED PRIOR TO THEIR EFFECTIVE DATE THE MOVEMENT TO RICHMOND WAS NOT IN CONNECTION WITH A PERMANENT CHANGE OF STATION, AND (2) PARAGRAPH 9003 3, JOINT TRAVEL REGULATIONS, PROHIBITS PAYMENT OF DISLOCATION ALLOWANCE FOR THE MOVE TO GERMANY SINCE IT WAS FROM THE PLACE FROM WHICH ORDERED TO ACTIVE DUTY TO FIRST PERMANENT DUTY STATION.

YOU REQUEST CLARIFICATION AS TO THE EFFECTIVE DATE OF THE ORDERS OF FEBRUARY 20, 1961, AS AMENDED, INASMUCH AS YOU CONSIDER YOU WERE COMPLYING THEREWITH WHEN YOU DEPARTED YOUR LEAVE ADDRESS IN RICHMOND, VIRGINIA, AT NOON, APRIL 14, 1961, TO REPORT AT FORT DIX, NEW JERSEY, NOT LATER THAN NOON, APRIL 15, 1961, AND THE VERBAL ORDERS DIRECTING YOU TO REPORT BACK TO FORT MONROE WERE NOT RECEIVED UNTIL YOU STOPPED EN ROUTE TO VISIT FRIENDS IN THE PENTAGON. YOU ALSO QUESTION THE APPLICATION OF PARAGRAPH 9003-3, JOINT TRAVEL REGULATIONS, TO YOUR DEPENDENTS' MOVEMENT TO GERMANY, IT BEING NOTED THAT IN PRESENTING YOUR CLAIM FOR DISLOCATION ALLOWANCE IN CONNECTION WITH THE OVERSEAS MOVEMENT YOU ENCLOSED IN SUPPORT THEREOF AN EXCERPT TAKEN FROM OUR DECISION, B-143238, NOVEMBER 2, 1960, 40 COMP. GEN. 251.

BY SPECIAL ORDERS NO. 34, DATED FEBRUARY 20, 1961, AS AMENDED BY SPECIAL ORDERS NO. 49, DATED MARCH 14, 1961, ISSUED BY HEADQUARTERS, UNITED STATES CONTINENTAL ARMY COMMAND, FORT MONROE, VIRGINIA, YOU WERE RELIEVED FROM YOUR ASSIGNMENT AT THAT STATION AND REASSIGNED TO HEADQUARTERS, ADJUTANT GENERAL DIVISION (3700), APO403, NEW YORK, NEW YORK. WHILE THE ORDERS ARE NOT ENTIRELY CLEAR, IT APPEARS REASONABLE THAT YOU INFERRED FROM THE LANGUAGE USED THAT YOU WERE TO PROCEED ON MARCH 20, 1961, TO FORT DIX, NEW JERSEY, REPORTING THERE NOT LATER THAN NOON, APRIL 15, 1961, FOR TRANSPORTATION BY AIR ON APRIL 17, 1961, TO YOUR NEW ASSIGNMENT. YOU WERE AUTHORIZED 30 DAYS' DELAY CHARGEABLE AS LEAVE AT YOUR HOME OR LEAVE ADDRESS PROVIDED IT DID NOT INTERFERE WITH THE SPECIFIED REPORTING DATE. THAT PART OF THESE ORDERS RELIEVING YOU OF YOUR ASSIGNMENT AT FORT MONROE AND DIRECTING OVERSEAS TRAVEL WAS REVOKED BY SPECIAL ORDERS NO. 76, DATED APRIL 19, 1961, CONFIRMING VERBAL ORDERS OF THE ADJUTANT GENERAL OF APRIL 14, 1961, AND YOU WERE DIRECTED TO DEPART WASHINGTON, D.C., AND RETURN TO YOUR ORGANIZATION AND STATION AT FORT MONROE, VIRGINIA.

PARAGRAPH 3003-1B1 OF THE JOINT TRAVEL REGULATIONS, ISSUED PURSUANT TO SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 253 (A), PROVIDES THAT WHEN LEAVE OR DELAY PRIOR TO REPORTING TO A NEW STATION IS AUTHORIZED IN THE ORDERS OR THE MEMBER IS GRANTED ADDITIONAL TRAVEL TIME TO PERMIT TRAVEL BY A SPECIFIC MODE OF TRANSPORTATION, THE AMOUNT OF SUCH LEAVE, DELAY, OR ADDITIONAL TRAVEL TIME WILL BE ADDED TO THE DATE OF RELIEF (DETACHMENT) TO DETERMINE THE EFFECTIVE DATE OF THE ORDERS. THIS IS IN ACCORD WITH THE LONG-ESTABLISHED RULE THAT NO OFFICIAL TRAVEL IS REQUIRED UNDER CHANGE OF STATION ORDERS UNTIL SUCH TIME AS THE TRAVELER IS REQUIRED TO DEPART FROM HIS OLD STATION BY ORDINARY MEANS OF TRANSPORTATION (RAIL UNLESS OTHERWISE SPECIFIED) TO REACH HIS DESTINATION ON THE DATE DESIGNATED IN THE ORDERS. IN CASES SUCH AS HERE INVOLVED, WHERE THE MEMBER IS GRANTED LEAVE AS REQUESTED, OR WHEN HE IS AUTHORIZED TO DELAY IN THE PERFORMANCE OF THE REQUIRED TRAVEL FOR PERSONAL REASONS, IT HAS BEEN CONSIDERED THAT NO OFFICIAL TRAVEL IS REQUIRED UNTIL THE EXPIRATION DATE OF SUCH LEAVE OR DELAY, AND THAT, IF THE ORDERS ARE MODIFIED OR CANCELED PRIOR TO SUCH TIME, ANY TRAVEL PERFORMED IS INCIDENT TO THE PERIOD OF LEAVE OR DELAY AND IS NOT OFFICIAL TRAVEL. PARAGRAPHS 7006-6 AND 9003-1 OF THE REGULATIONS PROVIDE THAT MEMBERS ARE NOT ENTITLED TO TRANSPORTATION FOR DEPENDENTS OR DISLOCATION ALLOWANCE INCIDENT TO DEPENDENTS' TRAVEL WHERE THE MEMBER FAILS TO RECEIVE REVOCATION OF THE ORDERS BECAUSE HE TOOK ADVANTAGE OF A LEAVE OF ABSENCE AND NOTICE OF THE REVOCATION WAS RECEIVED AT THE OLD STATION BEFORE DEPARTURE UNDER THE ORIGINAL ORDERS WOULD HAVE BEEN NECESSARY.

SINCE UNDER ORDINARY CIRCUMSTANCES YOU WOULD HAVE BEEN REQUIRED TO COMMENCE TRAVEL FROM FORT MONROE UNDER THE ORDERS OF FEBRUARY 20, AS AMENDED MARCH 14, 1961, ON APRIL 14 TO ENABLE YOU TO REACH FORT DIX BY RAIL BY NOON, APRIL 15, 1961, AND INASMUCH AS THE VERBAL ORDERS REVOKING THE CHANGE IN PERMANENT STATION WERE GIVEN TO YOU WHILE YOU WERE VISITING AT THE PENTAGON ON THE AFTERNOON OF APRIL 14, 1961, THERE APPEARS TO BE NO REASON TO ASSUME THAT SUCH ORDERS COULD HAVE BEEN RECEIVED BY YOU, OR THAT YOU WOULD HAVE OTHERWISE BEEN NOTIFIED OF THE CHANGED ORDERS, HAD YOU DELAYED YOUR DEPARTURE FROM FORT MONROE UNTIL APRIL 14, 1961. UNDER SUCH CIRCUMSTANCES IT SEEMS EVIDENT THAT YOUR FAILURE TO RECEIVE ORDERS CANCELING THE CHANGE IN PERMANENT STATION PRIOR TO YOUR ARRIVAL IN WASHINGTON, D.C., WAS NOT DUE TO YOUR EARLY DEPARTURE FROM FORT MONROE ON AUTHORIZED LEAVE. ACCORDINGLY, YOUR DEPENDENTS' TRAVEL AND RELOCATION OF THEIR HOUSEHOLD FROM FORT MONROE TO RICHMOND, VIRGINIA, ON MARCH 27, 1961, MAY BE CONSIDERED AS HAVING BEEN PERFORMED INCIDENT TO AN ORDERED CHANGE OF PERMANENT STATION FOR WHICH THE PAYMENT OF TRAVEL AND DISLOCATION ALLOWANCES IS AUTHORIZED, AND A SETTLEMENT WILL ISSUE ON THAT BASIS IN DUE COURSE.

REGARDING YOUR CLAIM FOR DISLOCATION ALLOWANCE FOR YOUR DEPENDENTS' MOVE TO GERMANY, LETTER ORDER A-05-114, DATED MAY 2, 1961, ISSUED BY HEADQUARTERS, SECOND UNITED STATES ARMY, FORT GEORGE G. MEADE, MARYLAND, SHOWS THAT WHILE YOU WERE ON ACTIVE DUTY AS A SERGEANT WITH HEADQUARTERS COMPANY, UNITED STATES CONTINENTAL ARMY COMMAND, FORT MONROE, VIRGINIA, YOU WERE ORDERED TO DUTY EFFECTIVE MAY 10, 1961, AS A WARRANT OFFICER, USAR, AND ASSIGNED TO THE UNITED STATES OVERSEA REPLACEMENT STATION, UNITED STATES ARMY PERSONNEL CENTER, FORT DIX, NEW JERSEY, FOR FURTHER ASSIGNMENT TO UNITED STATES ARMY, EUROPE (GERMANY), WITH THE REPORTING DATE AT FORT DIX BEING DESIGNATED AS NOT LATER THAN NOON, JULY 20, 1961. YOU WERE DIRECTED TO PROCEED ON TEMPORARY DUTY EN ROUTE TO FORT BENJAMIN HARRISON, INDIANA, FOR THE PURPOSE OF ATTENDING A FIVE-WEEK MILITARY PERSONNEL OFFICER COURSE, REPORTING NOT LATER THAN MAY 12, 1961, WITH 30 DAYS' DELAY CHARGEABLE AS LEAVE BEING AUTHORIZED UPON COMPLETION OF THE TEMPORARY DUTY PROVIDED IT DID NOT INTERFERE WITH THE SPECIFIED REPORTING DATE. THE ORDERS FURTHER PROVIDED FOR DISCHARGE FROM YOUR ENLISTED STATUS ON THE DAY PRIOR TO THE EFFECTIVE DATE OF DUTY UNDER THOSE ORDERS. ACCORDANCE WITH THIS AUTHORITY AND ARMY REGULATIONS NO. 635-205 AND SPN215, SPECIAL ORDERS NO. 87, DATED MAY 3, 1961, WERE ISSUED AT HEADQUARTERS, UNITED STATES CONTINENTAL ARMY COMMAND, FORT MONROE, VIRGINIA, RELIEVING YOU FROM YOUR ASSIGNMENT AT THAT STATION AND PROVIDING FOR YOUR DISCHARGE FROM THE SERVICE ON MAY 9, 1961. WHILE ON TEMPORARY DUTY AT FORT BENJAMIN HARRISON YOU WERE REASSIGNED FROM FORT DIX TO SECOND GUN BATTALION, 38TH ARTILLERY, DARMSTADT, GERMANY, BY SPECIAL ORDERS NO. 119, DATED JUNE 19, 1961, ISSUED BY HEADQUARTERS, UNITED STATES CONTINENTAL ARMY COMMAND, FORT MONROE, VIRGINIA, WHICH SPECIFIED JULY 3, 1961, AS THE PORT CALL AVAILABLE DATE AND DIRECTED THAT YOU PROCEED TO FORT DIX IN THE EVENT THE PORT CALL WAS NOT RECEIVED BY JUNE 30, 1961, THE LAST DAY OF LEAVE AUTHORIZED UPON COMPLETION OF TEMPORARY DUTY. APPEARS THAT YOU PROCEEDED TO DARMSTADT PURSUANT TO THESE ORDERS AND YOUR DEPENDENTS JOINED YOU THERE DURING SEPTEMBER 1961.

ARMY REGULATIONS NO. 635-205 (PARAGRAPH 3A (1) ( AND SEPARATION PROGRAM NUMBER 215, CITED IN THE SPECIAL ORDERS OF MAY 3, 1961, AS AUTHORITY FOR THE DISCHARGE, PERTAIN TO ENLISTED PERSONNEL DISCHARGED FOR THE CONVENIENCE OF THE GOVERNMENT TO ACCEPT APPOINTMENTS AS WARRANT OFFICERS IN THE ARMY. HENCE, IT IS CLEAR THAT YOUR DISCHARGE AS AN ENLISTED MAN WAS NOT FOR THE PURPOSE OF TERMINATING YOUR ACTIVE DUTY OR SEVERING ALL CONNECTIONS WITH YOUR MILITARY SERVICE, AND THAT YOUR TRANSFER UPON A PERMANENT CHANGE OF STATION OVERSEAS WAS IN CONJUNCTION WITH YOUR CONTINUATION IN THE SERVICE AS AN OFFICER. IN SUCH CIRCUMSTANCES AND WITHIN THE PRINCIPLE OF OUR DECISION, B 143238,NOVEMBER 2, 1960, 40 COMP. GEN. 251, CITED IN SUPPORT OF YOUR CLAIM, THE TRAVEL PERFORMED BY YOU FROM YOUR OLD PERMANENT STATION AT FORT MONROE TO YOUR NEW PERMANENT STATION IN GERMANY INCIDENT TO YOUR ORDERS TO ACTIVE DUTY AS AN OFFICER IS NOT CONSIDERED AS BEING TRAVEL FROM THE PLACE FROM WHICH ORDERED TO ACTIVE DUTY TO FIRST PERMANENT DUTY STATION UPON APPOINTMENT OR CALL TO ACTIVE DUTY WITHIN THE MEANING OF PARAGRAPH 9003-3 OF THE JOINT TRAVEL REGULATIONS. HOWEVER, PARAGRAPH 9003-8 OF THE REGULATIONS RESTRICTS PAYMENT OF DISLOCATION ALLOWANCE TO ONE PERMANENT CHANGE OF STATION DURING ANY FISCAL YEAR, WITH CERTAIN EXCEPTIONS NOT HERE CONCERNED, WHICH GIVES EFFECT TO THE STATUTORY PROHIBITION IN SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 253 (C), AGAINST SUCH PAYMENTS. PARAGRAPH 9004-1, JOINT TRAVEL REGULATIONS, PROVIDES THAT FOR THE PURPOSE OF DETERMINING THE FISCAL YEAR IN WHICH ENTITLEMENT TO A DISLOCATION ALLOWANCE OCCURS, THE DATE OF DEPARTURE (DETACHMENT) OF THE MEMBER FROM THE OLD PERMANENT DUTY STATION IN COMPLIANCE WITH PERMANENT CHANGE OF STATION ORDERS SHALL GOVERN. PARAGRAPH 9006 OF SUCH REGULATIONS DISCLOSES THAT THE DRAFTERS OF CHAPTER 9 OF THE REGULATIONS WERE AWARE OF THE EFFECTIVE DATE OF ORDERS PROVISIONS OF PARAGRAPH 3003-1B, JOINT TRAVEL REGULATIONS, AND SINCE ANOTHER DATE--- DATE OF DEPARTURE--- WAS SELECTED FOR THE PURPOSE OF DETERMINING THE FISCAL YEAR IN WHICH ENTITLEMENT TO A DISLOCATION ALLOWANCE OCCURS, THERE IS NO BASIS FOR ADDING ON THE DAYS OF LEAVE AND TEMPORARY DUTY TO THE DEPARTURE DATE, AS IS DONE WHEN ARRIVING AT THE EFFECTIVE DATE OF ORDERS, FOR THE PURPOSE OF DETERMINING THE FISCAL YEAR IN WHICH ENTITLEMENT OCCURS.

BY LETTER ORDER A-05-114, DATED MAY 2, 1961, ASSIGNING YOU TO PERMANENT DUTY IN GERMANY, YOU WERE REQUIRED TO DEPART FORT MONROE, YOUR OLD PERMANENT DUTY STATION, AND REPORT FOR TEMPORARY DUTY EN ROUTE AT FORT BENJAMIN HARRISON NOT LATER THAN MAY 12, 1961, THEREBY MAKING THE FISCAL YEAR 1961 APPLICABLE TO THE CHANGE OF STATION FOR ENTITLEMENT PURPOSES IN THE PAYMENT OF DISLOCATION ALLOWANCE. AS HEREINBEFORE STATED, YOU ARE ENTITLED TO A DISLOCATION ALLOWANCE FOR YOUR DEPENDENTS' MOVEMENT TO RICHMOND, VIRGINIA, ON MARCH 27, 1961, INCIDENT TO YOUR PRIOR CHANGE OF STATION ORDERS DATED FEBRUARY 20, 1961, AS AMENDED MARCH 14, 1961, PURSUANT TO WHICH YOU DEPARTED YOUR OLD PERMANENT STATION (FORT MONROE) DURING MARCH 1961. THAT DEPARTURE IS ALSO WITHIN THE FISCAL YEAR 1961. ACCORDINGLY, IN VIEW OF THE PREVIOUSLY AUTHORIZED PAYMENT OF A DISLOCATION ALLOWANCE FOR THE FISCAL YEAR 1961, AND SINCE, UNDER THE CITED PROVISIONS OF THE REGULATIONS, YOUR CHANGE OF STATION FROM FORT MONROE TO GERMANY CONSTITUTED A SECOND PERMANENT CHANGE OF STATION DURING THE FISCAL YEAR 1961, PAYMENT OF A DISLOCATION ALLOWANCE FOR YOUR DEPENDENTS' MOVEMENT INCIDENT THERETO IS NOT AUTHORIZED.