B-148174, MAR. 13, 1962

B-148174: Mar 13, 1962

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

LAMB: RECEIPT IS ACKNOWLEDGED OF YOUR COMMUNICATION OF JANUARY 30. YOU WERE ALERTED FOR OVERSEA SERVICE (KOREA) BY YOUR COMMANDING OFFICER BY REASON OF LEVY INSTRUCTIONS FROM THE ADJUTANT GENERAL APPLYING YOU TO THE OCTOBER 1961 LEVY FOR ASSIGNMENT TO THE EIGHTH UNITED STATES ARMY. PERMANENT CHANGE OF STATION ORDERS WERE NOT ISSUED DUE TO THE NONRECEIPT OF THE UNIT OF ASSIGNMENT FROM THE OVERSEAS COMMAND PRIOR TO YOUR REMOVAL FROM THE OCTOBER LEVY PURSUANT TO DEPARTMENT OF ARMY MESSAGE 569422. OF WHICH YOU WERE NOTIFIED ON AUGUST 23. YOU WERE RELIEVED OF YOUR ASSIGNMENT WITH THE DELAWARE-EASTERN PENNSYLVANIA SECTOR COMMAND. YOU WERE DIRECTED TO PROCEED ON SEPTEMBER 25. THE AUTHORITY FOR ISSUANCE OF THESE ORDERS IS SHOWN AS A DEPARTMENT OF THE ARMY LETTER DATED SEPTEMBER 14.

B-148174, MAR. 13, 1962

TO EUGUENE B. LAMB:

RECEIPT IS ACKNOWLEDGED OF YOUR COMMUNICATION OF JANUARY 30, 1962, ENCLOSING A CERTIFICATE BY YOUR COMMANDING OFFICER OMITTED FROM YOUR LETTER OF JANUARY 8, 1962, WHEREIN YOU REQUESTED RECONSIDERATION OF SETTLEMENT DATED JANUARY 3, 1962, WHICH DISALLOWED YOUR CLAIM FOR DEPENDENTS' TRAVEL AND DISLOCATION ALLOWANCE INCIDENT TO THE MOVEMENT OF YOUR FAMILY FROM DREXEL HILL TO LANSDOWNE, PENNSYLVANIA, ON SEPTEMBER 1, 1961.

THE RECORD SHOWS THAT ON AUGUST 1, 1961, WHILE ASSIGNED TO THE TWENTY- FIRST UNITED STATES ARMY CORPS, YOU WERE ALERTED FOR OVERSEA SERVICE (KOREA) BY YOUR COMMANDING OFFICER BY REASON OF LEVY INSTRUCTIONS FROM THE ADJUTANT GENERAL APPLYING YOU TO THE OCTOBER 1961 LEVY FOR ASSIGNMENT TO THE EIGHTH UNITED STATES ARMY, AVAILABILITY DATE SEPTEMBER 25, 1961. PERMANENT CHANGE OF STATION ORDERS WERE NOT ISSUED DUE TO THE NONRECEIPT OF THE UNIT OF ASSIGNMENT FROM THE OVERSEAS COMMAND PRIOR TO YOUR REMOVAL FROM THE OCTOBER LEVY PURSUANT TO DEPARTMENT OF ARMY MESSAGE 569422, DATED AUGUST 21, 1961, OF WHICH YOU WERE NOTIFIED ON AUGUST 23, 1961.

BY ORDERS DATED SEPTEMBER 18, 1961, YOU WERE RELIEVED OF YOUR ASSIGNMENT WITH THE DELAWARE-EASTERN PENNSYLVANIA SECTOR COMMAND, TWENTY-FIRST UNITED STATES ARMY CORPS (WITH DUTY AT NORTH PHILADELPHIA UNITED STATES ARMY RECORDS CENTER, PHILADELPHIA, PENNSYLVANIA) AND REASSIGNED TO THE UNITED STATES ARMY OVERSEA REPLACEMENT STATION, FORT DIX, NEW JERSEY, FOR FURTHER ASSIGNMENT TO THE UNITED STATES ARMY, EUROPE. YOU WERE DIRECTED TO PROCEED ON SEPTEMBER 25, 1961, WITH TWO DAYS' AUTHORIZED DELAY EN ROUTE CHARGEABLE AS LEAVE, REPORTING ON SEPTEMBER 28, 1961. THE AUTHORITY FOR ISSUANCE OF THESE ORDERS IS SHOWN AS A DEPARTMENT OF THE ARMY LETTER DATED SEPTEMBER 14, 1961.

YOU STATE THAT WHEN YOU RECEIVED THE ALERT NOTICE OF YOUR ASSIGNMENT TO KOREA, YOU NOTIFIED YOUR LANDLORD YOU WOULD VACATE YOUR APARTMENT AS OF SEPTEMBER 1, 1961. YOU FURTHER STATE THAT WHEN YOU WERE NOTIFIED ON AUGUST 23, 1961, THAT YOUR KOREA ASSIGNMENT HAD BEEN REVOKED THE APARTMENT HAD ALREADY BEEN RENTED TO ANOTHER PERSON AND IT WAS NECESSARY TO MOVE YOUR FAMILY INTO YOUR OWN HOME AT LANSDOWNE, PENNSYLVANIA, ON SEPTEMBER 1, 1961. YOU HAVE NOW FURNISHED A CERTIFICATE FROM YOUR PRESENT COMMANDING OFFICER IN RESPONSE TO THE SETTLEMENT DATED JANUARY 3, 1962, WHICH DISALLOWED YOUR CLAIM ON THE BASIS THAT PAYMENT OF A DISLOCATION ALLOWANCE IS NOT AUTHORIZED IN THE ABSENCE OF A CERTIFICATE FROM THE COMMANDING OFFICER AT YOUR NEW DUTY STATION THAT THE RELOCATION OF YOUR HOUSEHOLD WAS NECESSARY AS A DIRECT RESULT OF THE PERMANENT CHANGE OF STATION, AS PROVIDED BY PARAGRAPH 9002, JOINT TRAVEL REGULATIONS.

SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 253 (C), PROVIDES THAT UNDER SUCH CONDITIONS AND LIMITATIONS AS MAY BE PRESCRIBED BY THE SECRETARIES CONCERNED, MEMBERS OF THE UNIFORMED SERVICES "WHEN ORDERED TO MAKE A CHANGE OF PERMANENT STATION" SHALL BE ENTITLED TO TRANSPORTATION FOR DEPENDENTS. THIS SECTION FURTHER AUTHORIZES, UNDER REGULATIONS APPROVED BY THE SECRETARY CONCERNED, PAYMENT OF A DISLOCATION ALLOWANCE TO A MEMBER OF THE UNIFORMED SERVICES WHOSE DEPENDENTS ARE AUTHORIZED TO MOVE AND ACTUALLY MOVE "IN CONNECTION WITH HIS PERMANENT CHANGE OF STATION.' A RIGHT TO A DISLOCATION ALLOWANCE CANNOT ARISE UNDER THE STATUTE UNTIL A PERMANENT CHANGE OF STATION HAS BEEN ORDERED AND THE MEMBER'S DEPENDENTS ACTUALLY MOVE IN CONNECTION WITH SUCH CHANGE OF STATION. WHILE PARAGRAPH 9002-1 OF THE JOINT TRAVEL REGULATIONS, PROMULGATED PURSUANT TO THAT ACT, PROVIDES FOR THE FURNISHING BY THE COMMANDING OFFICER AT THE NEW STATION OF A STATEMENT AS TO THE NECESSITY OF THE MOVE WHEN THE RELOCATION OF THE MEMBER'S HOUSEHOLD IS BETWEEN PLACES LOCATED IN PROXIMITY TO EACH OTHER, IT IS ALSO STATED THEREIN THAT THE DISLOCATION ALLOWANCE IS PAYABLE TO A MEMBER WHENEVER DEPENDENTS RELOCATE THEIR HOUSEHOLD IN CONNECTION WITH A PERMANENT CHANGE OF STATION EXCEPT AS PROVIDED IN PARAGRAPH 9003. PARAGRAPH 9003-1 OF THE REGULATIONS PROVIDES THAT SUCH ALLOWANCE WILL NOT BE PAYABLE IN CONNECTION WITH PERMANENT CHANGE OF STATION TRAVEL PERFORMED UNDER CERTAIN CONDITIONS INCLUDING THAT CONTEMPLATED BY PARAGRAPH 7000-9 OF THE REGULATIONS.

PARAGRAPH 7000-9, JOINT TRAVEL REGULATIONS, PROVIDES THAT MEMBERS OF THE UNIFORMED SERVICES ARE NOT ENTITLED TO TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE UPON A PERMANENT CHANGE OF STATION WHERE THE DEPENDENTS DEPARTED THE OLD PERMANENT STATION PRIOR TO THE ISSUANCE OF THE ORDERS, AND THE VOUCHER IS NOT SUPPORTED BY A CERTIFICATE OF THE COMMANDING OFFICER, OR HIS DESIGNATED REPRESENTATIVE, OF THE HEADQUARTERS ISSUING THE ORDERS THAT THE MEMBER WAS ADVISED PRIOR TO THE ISSUANCE OF THE CHANGE OF STATION ORDERS THAT SUCH ORDERS WOULD BE ISSUED. THEREFORE, IT HAS BEEN THE RULE THAT THE REGULATION IS APPLICABLE ONLY WHERE DEPARTURE OF THE DEPENDENTS IS DURING THE COMPARATIVELY SHORT PERIOD OF TIME WHICH MAY ELAPSE BETWEEN THE TIME OF AN ADMINISTRATIVE DETERMINATION TO ORDER A MEMBER TO MAKE A CHANGE OF STATION AND THE DATE ON WHICH ORDERS DIRECTING SUCH CHANGE ACTUALLY ARE ISSUED. MERE GENERAL INFORMATION OF AN IMPENDING CHANGE IS NOT SUFFICIENT TO MEET THE REQUIREMENTS OF THE REGULATION. COMP. GEN. 241.

IT WOULD APPEAR FROM YOUR STATEMENTS AND THE OTHER EVIDENCE OF RECORD THAT YOUR DEPENDENTS' MOVE ON SEPTEMBER 1, 1961, WAS MADE NECESSARY BECAUSE YOU TERMINATED THE LEASE ON YOUR APARTMENT INCIDENT TO THE ALERT FOR MOVEMENT TO KOREA RATHER THAN BECAUSE OF YOUR TRANSFER TO EUROPE. ORDERS, HOWEVER, WERE ISSUED FOR YOUR TRANSFER TO KOREA AND THE CONTEMPLATED TRANSFER WAS NOT EFFECTED. UNDER THE LAW AND THE REGULATIONS, THE RIGHT TO A DISLOCATION ALLOWANCE CANNOT ARISE UNTIL A PERMANENT CHANGE OF STATION HAS BEEN ORDERED, THE ORDERS BECOME EFFECTIVE AND THE DEPENDENTS ACTUALLY MOVE IN CONNECTION WITH SUCH CHANGE OF STATION. HENCE, PAYMENT OF THE ALLOWANCES CLAIMED IS NOT AUTHORIZED INCIDENT TO THE CONTEMPLATED TRANSFER TO KOREA. SINCE THE ORDERS OF SEPTEMBER 18, 1961, WERE THE ONLY PERMANENT CHANGE OF STATION ORDERS ISSUED, PAYMENT OF DISLOCATION AND DEPENDENTS' TRAVEL ALLOWANCES IS NOT AUTHORIZED INCIDENT TO THOSE ORDERS IN THE ABSENCE OF THE REQUIRED CERTIFICATE BY YOUR FORMER COMMANDING OFFICER, OR HIS DESIGNATED REPRESENTATIVE, THAT YOU WERE ADVISED PRIOR TO THE ISSUANCE OF SUCH ORDERS THAT THEY WOULD BE ISSUED AS MENTIONED ABOVE.

WHILE WE REGRET THAT THIS ADDITIONAL CERTIFICATE REQUIREMENT WAS NOT MENTIONED IN THE SETTLEMENT OF JANUARY 3, 1962, WE TRUST YOU WILL UNDERSTAND THAT WE MAY NOT IGNORE THE PLAIN TERMS OF THE APPLICABLE STATUTES AND REGULATIONS IN THE SETTLEMENT OF CLAIMS THAT ARE PRESENTED TO US FOR CONSIDERATION. THEREFORE, ON THE PRESENT RECORD, THE DISALLOWANCE OF YOUR CLAIM IS SUSTAINED.