B-148321, MAR. 28, 1962

B-148321: Mar 28, 1962

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AF17255784: REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 29. WHICH WAS ADDRESSED TO THE BASE FINANCE OFFICE AT ANDREWS AIR FORCE BASE. WAS TRANSMITTED TO OUR OFFICE BY THE DEPARTMENT OF THE AIR FORCE WITH A REQUEST FOR CONSIDERATION UNDER THE PROVISIONS OF THE MERITORIOUS CLAIMS ACT OF APRIL 10. UNDER THESE ORDERS YOU AND YOUR WIFE AND CHILDREN WERE TO PROCEED FROM ATHENS. YOU WERE INFORMED THAT YOU WERE BEING HELD PENDING INVESTIGATION AND YOU WOULD HAVE TO REMAIN IN GREECE. YOU STATE THAT YOU COULD NOT LEAVE THE HOTEL AND MOVE ON THE BASE WITH YOUR WIFE AND TWO CHILDREN AS THERE WERE NO QUARTERS OR MESSING FACILITIES FOR MEMBERS WITH OR WITHOUT DEPENDENTS ON THE BASE AS ALL PERSONNEL LIVED ON THE LOCAL ECONOMY.

B-148321, MAR. 28, 1962

TO STAFF SERGEANT PAUL T. SUMNERS, AF17255784:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 29, 1961, IN WHICH YOU CLAIM ADDITIONAL TEMPORARY LODGING ALLOWANCE, OR REIMBURSEMENT FOR LIVING EXPENSES, FOR THE PERIOD JUNE 21 TO JULY 17, 1961, INCIDENT TO AN OVERSEAS TOUR OF DUTY IN ATHENS, GREECE. YOUR LETTER, WHICH WAS ADDRESSED TO THE BASE FINANCE OFFICE AT ANDREWS AIR FORCE BASE, WAS TRANSMITTED TO OUR OFFICE BY THE DEPARTMENT OF THE AIR FORCE WITH A REQUEST FOR CONSIDERATION UNDER THE PROVISIONS OF THE MERITORIOUS CLAIMS ACT OF APRIL 10, 1928, 31 U.S.C. 236.

THE RECORD BEFORE US IN YOUR CASE SHOWS THAT SPECIAL ORDERS NO. A 165, HEADQUARTERS, 7206TH SUPPORT GROUP (USAFE), UNITED STATES AIR FORCE, APO 223, PROVIDED FOR YOUR RELEASE FROM ASSIGNMENT WITH THAT ORGANIZATION AND ASSIGNMENT TO ANDREWS AIR FORCE BASE, MARYLAND. UNDER THESE ORDERS YOU AND YOUR WIFE AND CHILDREN WERE TO PROCEED FROM ATHENS, GREECE, ON OR ABOUT JUNE 23, 1961, AND REPORT TO RHEIN/MAIN AIR BASE, GERMANY, NOT LATER THAN JUNE 24, 1961, FOR FURTHER TRANSPORTATION TO THE CONTINENTAL UNITED STATES VIA MILITARY AIR TRANSPORT SERVICE.

IT APPEARS FROM YOUR LETTER AND THE RECEIPTS YOU SUBMITTED WITH SUCH LETTER, THAT YOU ENTERED THE HOTEL FLORIDA AT ATHENS, GREECE, ON JUNE 1, 1961, AFTER VACATING YOUR LOCAL QUARTERS. YOU STATE THAT YOU REALIZED THAT ALL EXPENSES FOR THE PERIOD JUNE 1 TO JUNE 20 WOULD BE BORNE BY YOURSELF BUT FOR THE PERIOD JUNE 11 TO JUNE 20 YOU WOULD RECEIVE PAYMENT OF TEMPORARY LODGING ALLOWANCE FROM THE AIR FORCE. YOU ALLEGE THAT ON JUNE 21, 1961, YOUR SCHEDULED DATE OF DEPARTURE, YOU WERE INFORMED THAT YOU WERE BEING HELD PENDING INVESTIGATION AND YOU WOULD HAVE TO REMAIN IN GREECE. YOU STATE THAT YOU COULD NOT LEAVE THE HOTEL AND MOVE ON THE BASE WITH YOUR WIFE AND TWO CHILDREN AS THERE WERE NO QUARTERS OR MESSING FACILITIES FOR MEMBERS WITH OR WITHOUT DEPENDENTS ON THE BASE AS ALL PERSONNEL LIVED ON THE LOCAL ECONOMY. YOU STATE FURTHER THAT DURING THE PERIOD OF INVESTIGATION IN YOUR CASE YOU STAYED AT THE HOTEL WITH YOUR FAMILY UNTIL YOU WERE GIVEN A SUMMARY COURT-MARTIAL ON JULY 14, 1961, AND THAT YOU WERE FOUND NOT GUILTY BY SUCH COURT-MARTIAL. THEREAFTER, BY SPECIAL ORDERS NO. A 220, DATED JULY 17, 1961, YOUR ORDERS OF MAY 23, 1961, WERE AMENDED TO READ THAT,"SPONSOR AND DEPENDENTS WILL REPORT TO COMMANDER, FRANKFURT AIR PASSENGER CENTER, ROOM 114, RHEIN/MAIN AB, GERMANY, NOT LATER THAN 0900 HOURS 19 JULY 1961 FOR FURTHER TRANSPORTATION TO CONUS.' THE DEPARTMENT OF THE AIR FORCE HAS INDICATED THAT YOU ACTUALLY DEPARTED GREECE ON JULY 18, 1961, FOR YOUR RETURN TO THE UNITED STATES.

IN YOUR LETTER YOU SAY THAT YOUR HOTEL BILL AMOUNTED TO 7,431 DRACHMAE OR $247.70 AT 30 DRACHMAE TO ONE U.S. DOLLAR; YOUR FOOD BILL WAS $329 AT $7 PER DAY; YOUR TRANSPORTATION BILL FROM THE HOTEL TO YOUR PLACE OF DUTY AND RETURN AND FOR YOUR FAMILY AND YOURSELF TO RESTAURANTS AND RETURN IS ESTIMATED AT $100. THESE EXPENSES APPARENTLY COVER THE PERIOD FROM JUNE 1 THROUGH JULY 17, 1961. IN VIEW OF THESE EXPENSES YOU REQUEST REIMBURSEMENT "FOR THE PERIOD BEYOND THE AUTHORIZED 10 DAY STAY AT THE HOTEL FOR ALL EXPENSES INCURRED DURING THIS PERIOD.' IT IS NOT ENTIRELY CLEAR WHETHER YOU ARE CLAIMING ADDITIONAL TEMPORARY LODGING ALLOWANCE TO COVER THE PERIOD FROM JUNE 21 TO JULY 17, 1961, WHILE YOU RESIDED WITH YOUR DEPENDENTS AT THE HOTEL OR WHETHER THE CLAIM IS FOR REIMBURSEMENT OF THE ACTUAL EXPENSES INCURRED DURING SUCH PERIOD LESS THE 10 DAYS FOR WHICH YOU RECEIVED TEMPORARY LODGING ALLOWANCE.

SECTION 303 (B) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C 253 (B), PROVIDES THAT THE SECRETARIES OF THE UNIFORMED SERVICES MAY AUTHORIZE THE PAYMENT TO MEMBERS OF THE UNIFORMED SERVICES ON DUTY OUTSIDE THE CONTINENTAL UNITED STATES AT A PER DIEM CONSIDERING ALL ELEMENTS OF COST OF LIVING OF MEMBERS AND THEIR DEPENDENTS, INCLUDING THE COST OF QUARTERS, SUBSISTENCE, AND OTHER NECESSARY INCIDENTAL EXPENSES. UNDER THE PROVISIONS OF PARAGRAPH 4303 2C OF THE JOINT TRAVEL REGULATIONS, PROMULGATED PURSUANT TO SUCH AUTHORITY, A TEMPORARY LODGING ALLOWANCE IS PAYABLE FOR THE PERIOD OF OCCUPANCY OF A HOTEL OR HOTEL-LIKE ACCOMMODATIONS AND THE USE OF PUBLIC RESTAURANTS BY THE MEMBER OR HIS DEPENDENTS, AFTER SURRENDER OF PERMANENT QUARTERS, FOR THE LAST 10 DAYS PRECEDING THE DATE OF DEPARTURE OF THE MEMBER FROM HIS PERMANENT DUTY STATION IN COMPLIANCE WITH CHANGE-OF-STATION ORDERS. UNDER SUCH REGULATION IT IS CLEAR THAT A MEMBER MAY NOT BE PAID MORE THAN A 10-DAY MAXIMUM TEMPORARY LODGING ALLOWANCE INCIDENT TO LEAVING HIS OVERSEAS STATION, NOTWITHSTANDING THAT HE AND HIS DEPENDENTS MAY HAVE OCCUPIED HOTEL ACCOMMODATIONS FOR A LONGER PERIOD PRECEDING HIS DEPARTURE BECAUSE OF CIRCUMSTANCES BEYOND HIS CONTROL. THE PERTINENT AIR FORCE REGULATIONS IN THIS RESPECT PROVIDE IN AFM177-105, PARAGRAPH 2160D (2), AS FOLLOWS:

"/2) IMMEDIATELY PRECEDING DEPARTURE. TEMPORARY LODGING ALLOWANCES ARE AUTHORIZED IMMEDIATELY PRECEDING DEPARTURE ON A PERMANENT CHANGE OF STATION AFTER TERMINATION OF ASSIGNMENT TO GOVERNMENT QUARTERS OR SURRENDER OF OTHER PERMANENT LIVING ACCOMMODATIONS. THE PERIOD OF ENTITLEMENT TO SUCH ALLOWANCES WILL NOT EXCEED TEN DAYS PRECEDING THE DATE OF DEPARTURE OF THE MEMBER FROM HIS PERMANENT DUTY STATION IN COMPLIANCE WITH PERMANENT CHANGE OF STATION OTHERS.'

IN VIEW OF THE FOREGOING REGULATIONS THERE IS NO AUTHORITY FOR PAYMENT TO YOU OF ADDITIONAL TEMPORARY LODGING ALLOWANCE BEYOND THE 10 DAYS AUTHORIZED BY LAW WHICH YOU INDICATE YOU HAVE ALREADY RECEIVED. NEITHER IS THERE ANY AUTHORITY TO REIMBURSE YOU FOR THE ACTUAL EXPENSES INCURRED DURING THE PERIOD INVOLVED.

THE DEPARTMENT OF THE AIR FORCE IN TRANSMITTING YOUR CLAIM TO OUR OFFICE APPARENTLY RECOGNIZED THAT THERE WAS NO AUTHORITY FOR PAYMENT OF YOUR CLAIM ADMINISTRATIVELY. HOWEVER, IT RECOMMENDED THAT YOUR CLAIM BE GIVEN FAVORABLE CONSIDERATION UNDER THE PROVISIONS OF THE MERITORIOUS CLAIMS ACT OF APRIL 10, 1928, 31 U.S.C. 236.

THAT ACT PROVIDES FOR THE SUBMISSION TO THE CONGRESS BY THIS OFFICE OF THOSE CLAIMS AGAINST THE UNITED STATES WHICH MAY NOT BE LAWFULLY ADJUSTED BUT WHICH ARE DETERMINED TO CONTAIN "SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS TO BE DESERVING OF THE CONSIDERATION OF THE CONGRESS.' WE HAVE POINTED OUT THAT UNDER THE CONTROLLING REGULATIONS THERE IS NO LEGAL LIABILITY ON THE PART OF THE GOVERNMENT TO PAY YOU ADDITIONAL TEMPORARY LODGING ALLOWANCES OTHER THAN THAT AUTHORIZED BY LAW AND REGULATION. NEITHER IS THERE ANY LEGAL LIABILITY TO REIMBURSE YOU FOR THE ACTUAL EXPENSES INCURRED.

AS TO THE POSSIBLE ELEMENTS OF EQUITY IN YOUR CASE, IT IS RECOGNIZED THAT A MEMBER OF THE ARMED FORCES MAY SUFFER SOME FINANCIAL LOSS WHEN CHANGE OF STATION ORDERS ARE CANCELLED OR AMENDED PRIOR TO THEIR EFFECTIVE DATE AND HE HAS INCURRED CERTAIN EXPENSES PREPARATORY TO COMPLYING WITH THE ORDERS. THIS, HOWEVER, HAS UNIFORMLY BEEN VIEWED AS A RISK WHICH HE ASSUMES IN MAKING SUCH EXPENDITURES PRIOR TO THE EFFECTIVE DATE OF HIS ORDERS. IN THIS CONNECTION IT IS ASSUMED THAT YOU HAVE BEEN PAID THE REGULAR QUARTERS AND SUBSISTENCE ALLOWANCES AUTHORIZED FOR THE PERIOD COVERED BY YOUR CLAIM AS WELL AS THE OVERSEAS STATION ALLOWANCES AUTHORIZED FOR SUCH PERIOD. IF WE WERE TO CONSIDER THE EQUITABLE FEATURES IN YOUR CASE AS WARRANTING PAYMENT OF TEMPORARY LODGING ALLOWANCES BEYOND THE 10-DAY MAXIMUM SET OUT UNDER THE CONTROLLING LAW AND REGULATIONS, SUCH ACTION WOULD BE DISCRIMINATORY AGAINST OTHER MEMBERS WHO UNIFORMLY HAVE BEEN LIMITED TO A 10-DAY MAXIMUM IN PAYMENT OF TEMPORARY LODGING ALLOWANCE IN SIMILAR SITUATIONS. THEREFORE, WE DO NOT VIEW YOUR CLAIM AS CONTAINING SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS TO WARRANT REPORTING THE MATTER FOR THE CONSIDERATION OF THE CONGRESS.

WE ARE FORWARDING A COPY OF THIS LETTER TO THE HONORABLE STUART SYMINGTON, UNITED STATES SENATE.