B-148487, APR. 26, 1962

B-148487, APR. 26, 1962

TO CHARLES A HOWELL, SP-5, 19636916:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 9, 1962, AND ENCLOSURES, REQUESTING RECONSIDERATION OF SETTLEMENT DATED JANUARY 31, 1962, WHICH DISALLOWED YOUR CLAIM FOR DISLOCATION ALLOWANCE AND DEPENDENTS' TRAVEL FROM COALINGA, CALIFORNIA, TO BUCKHORN, KENTUCKY, DURING THE PERIOD OCTOBER 9 TO 15, 1961.

YOUR CLAIM WAS DISALLOWED FOR THE REASON THAT YOUR DEPENDENTS TRAVELED TO COALINGA, CALIFORNIA, A PLACE DESIGNATED BY YOU, PURSUANT TO SPECIAL ORDERS NO. 201, DATED AUGUST 13, 1960, WHICH REASSIGNED YOU FROM FORT HOOD, TEXAS, TO FORT BRAGG, NORTH CAROLINA, FOR OVERSEA SHIPMENT, AND UNDER THE APPLICABLE REGULATIONS FURTHER TRAVEL OF DEPENDENTS WAS NOT AUTHORIZED IN THE ABSENCE OF ADDITIONAL ORDERS PROVIDING THEREFOR.

IT IS YOUR CONTENTION THAT SPECIAL ORDER NO. 201, SHOULD BE CONSIDERED AS EFFECTING ONLY A PERMANENT CHANGE OF STATION FROM FORT HOOD TO FORT BRAGG INASMUCH AS THAT WAS ALL THAT WAS CONTEMPLATED BY THE ORIGINATING AUTHORITY CITED FOR ISSUANCE OF THE ORDERS AND THE OVERSEA SHIPMENT PROVISION WAS INCLUDED THROUGH ADMINISTRATIVE ERROR. YOU FURTHER CONTEND THAT SINCE FORT BRAGG WAS MADE YOUR NEW PERMANENT DUTY STATION, YOUR SUBSEQUENT TRANSFER FROM THAT STATION TO YOUR OVERSEA ASSIGNMENT PURSUANT TO NEW AUTHORITY SHOULD NOT BE VIEWED AS A COMPLETION OF THE OVERSEA SHIPMENT INSERTED IN ERROR IN SPECIAL ORDERS NO. 201, BUT SHOULD BE CONSIDERED AS A SEPARATE CHANGE OF PERMANENT STATION THEREBY ENTITLING YOU TO ADDITIONAL DISLOCATION AND DEPENDENTS' TRAVEL ALLOWANCES.

ON AUGUST 13, 1960, SPECIAL ORDERS NO. 201 WERE ISSUED BY HEADQUARTERS, SECOND ARMORED DIVISION, FORT HOOD, TEXAS, RELIEVING YOU FROM YOUR ASSIGNMENT WITH THAT DIVISION AND REASSIGNING YOU TO THE FIRST RADIO BROADCASTING AND LEAFLET BATTALION, FORT BRAGG, NORTH CAROLINA. THE ORDERS CONTAINED THE PHRASE "FOR OS SHPMT," HOWEVER, NO OVERSEA UNIT WAS DESIGNATED. YOU WERE DIRECTED TO PROCEED ON OR ABOUT AUGUST 19, 1960, AND REPORT AT FORT BRAGG ON SEPTEMBER 10, 1960, WITH 17 DAYS' DELAY EN ROUTE AND 5 DAYS' TRAVEL TIME BEING AUTHORIZED. THE REASSIGNMENT WAS DESIGNATED AS A PERMANENT CHANGE OF STATION AND THE AUTHORITY FOR ISSUANCE OF THE ORDERS WAS SHOWN AS A MESSAGE DATED AUGUST 11, 1960, FROM THE COMMANDING GENERAL, UNITED STATES ARMY FOUR, FORT SAM HOUSTON, TEXAS, AND MAIL MESSAGE AGPA-D 77200, DATED JULY 25, 1960, FROM THE ADJUTANT GENERAL, DEPARTMENT OF THE ARMY, CHARGING THE ASSIGNMENT TO THE FIRST RADIO BROADCASTING AND LEAFLET BATTALION UNDER REQUISITION RBL-12-59-1, DATED DECEMBER 7, 1959. YOU STATE THAT ON AUGUST 17, 1960, YOU MADE A REQUEST AT FORT HOOD FOR DEPENDENT TRAVEL AND WERE ADVISED THAT YOU WERE GOING TO GERMANY AND BECAUSE OF AN APPROXIMATELY 47WEEKS' WAIT FOR PORT CALL IT WOULD BE ADVISABLE TO SEND YOUR FAMILY TO AN INTERIM POINT. IN VIEW OF THIS INFORMATION YOU TOOK YOUR FAMILY TO COALINGA, CALIFORNIA, THE PLACE YOU DESIGNATED FOR THEIR RESIDENCE WHILE AWAITING AUTHORIZATION TO JOIN YOU IN GERMANY WHERE YOU BELIEVED YOUR OVERSEA STATION WOULD BE LOCATED.

AFTER YOUR ARRIVAL AT FORT BRAGG ON SEPTEMBER 5, 1960, YOU WERE ADVISED THAT YOU WERE TO REMAIN AT FORT BRAGG SINCE THERE HAD NEVER BEEN AN OVERSEA LEVY FOR YOU AND THAT YOUR FAMILY WOULD NOT BE MOVED TO THAT STATION AT GOVERNMENT EXPENSE INASMUCH AS THEY COULD NOT MOVE A SECOND TIME ON THE SAME ORDER. IN RESPONSE TO YOUR REQUEST MADE TO THE INSPECTOR GENERAL, EIGHTEENTH AIRBORNE CORPS AND FORT BRAGG, FOR MOVEMENT OF YOUR FAMILY TO FORT BRAGG OR REASSIGNMENT, SPECIAL ORDERS NO. 218, AS AMENDED, WERE ISSUED ON OCTOBER 21, 1960, BY HEADQUARTERS, EIGHTEENTH AIRBORNE CORPS AND FORT BRAGG, FORT BRAGG, NORTH CAROLINA, REASSIGNING YOU TO THE ARMY OVERSEA REPLACEMENT STATION AT OAKLAND, CALIFORNIA, FOR ASSIGNMENT TO THE TWELFTH UNITED STATES ARMY SECURITY AGENCY FIELD STATION (9403), APO 181, SAN FRANCISCO, CALIFORNIA, AS A PERMANENT CHANGE OF STATION. YOU WERE AUTHORIZED 30 DAYS' DELAY EN ROUTE AND DECEMBER 15, 1960, WAS DESIGNATED AS YOUR REPORTING DATE AT THE REPLACEMENT STATION. THE ORDERS DID NOT PROVIDE FOR CONCURRENT TRAVEL OF DEPENDENTS AND THE ASSIGNMENT WAS CHARGED TO THE ARMY SECURITY AGENCY, MAY-2 REQUISITION DATED MAY 25, 1960, THE AUTHORITY BEING SHOWN AS "LTR AGPA-D (25 MAY 60) TAG DA 28 SEP 60, SUBJ: "ENL PERS LEVY FOR USASA JAPAN" .' YOU STATE THAT YOU WERE ADVISED THAT YOUR FAMILY COULD GO WITH YOU ON THE ASSIGNMENT; HOWEVER, WHEN YOU ARRIVED AT OAKLAND THE DEPENDENTS' OVERSEA TRAVEL BAN WAS ON, PROHIBITING THEIR CONCURRENT TRAVEL, AND WHEN THE RESTRICTION WAS REMOVED YOU DID NOT HAVE SUFFICIENT TIME REMAINING IN YOUR ENLISTMENT TO TAKE THEM TO YOUR OVERSEA STATION.

WHETHER AN ASSIGNMENT TO A PARTICULAR STATION IS TEMPORARY OR PERMANENT IS A QUESTION OF FACT TO BE DETERMINED FROM THE ORDERS UNDER WHICH THE ASSIGNMENT IS MADE AND, WHERE NECESSARY, THE CHARACTER OF THE ASSIGNMENT, THE DURATION THEREOF, THE NATURE OF THE DUTY ENJOINED, THE INTENTION OF THE ISSUING OFFICER, WHETHER THERE EXISTS ANOTHER STATION TO WHICH THERE WILL BE ULTIMATE ASSIGNMENT, THE EXIGENCIES OF THE SERVICE, ETC. SEE 24 COMP. GEN. 667. AS POINTED OUT BY YOU IN YOUR LETTER, THE ORIGINAL AUTHORIZATION FOR THE ASSIGNMENT TO FORT BRAGG OF A MEMBER OF YOUR QUALIFICATIONS WAS CONTAINED IN A MAIL MESSAGE DATED JULY 25, 1960, FROM THE ADJUTANT GENERAL, DEPARTMENT OF THE ARMY, CITED IN SPECIAL ORDERS NO. 201. THAT AUTHORIZATION DID NOT PROVIDE FOR FURTHER ASSIGNMENT TO AN OVERSEA STATION AND YOU SAY YOU WERE ADVISED THAT THERE HAD NEVER BEEN AN OVERSEA LEVY FOR YOU AT FORT BRAGG. YOUR SUBSEQUENT REASSIGNMENT FROM THAT STATION WAS PURSUANT TO A DIFFERENT AND UNRELATED AUTHORITY. HENCE, IT APPEARS REASONABLE TO CONCLUDE AS YOU CONTEND, THAT A PERMANENT CHANGE OF STATION WAS EFFECTED BY YOUR ASSIGNMENT TO FORT BRAGG.

THE TRANSPORTATION AT GOVERNMENT EXPENSE OF DEPENDENTS OF MEMBERS OF THE UNIFORMED SERVICES AND PAYMENT OF A DISLOCATION ALLOWANCE TO A MEMBER WHOSE DEPENDENTS ARE AUTHORIZED TO MOVE AND ACTUALLY MOVE IN CONNECTION WITH HIS PERMANENT CHANGE OF STATION ARE GOVERNED BY PROVISIONS CONTAINED IN THE JOINT TRAVEL REGULATIONS ISSUED PURSUANT TO SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 253 (C). PARAGRAPH 7057 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT A MEMBER IN RECEIPT OF PERMANENT CHANGE OF STATION ORDERS IS ENTITLED TO TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE FROM THE OLD PERMANENT STATION TO OTHER THAN THE NEW PERMANENT STATION, AND PARAGRAPH 9002 PROVIDES, WITH CERTAIN EXCEPTIONS NOT HERE INVOLVED, THAT DISLOCATION ALLOWANCE IS PAYABLE TO A MEMBER WHENEVER DEPENDENTS RELOCATE THEIR HOUSEHOLD IN CONNECTION WITH A PERMANENT CHANGE OF STATION. THE RECORD SHOWS THAT AS AUTHORIZED BY THOSE PROVISIONS OF THE REGULATIONS YOU RECEIVED A DISLOCATION ALLOWANCE AND REIMBURSEMENT FOR MOVEMENT OF YOUR DEPENDENTS FROM COPPERAS COVE, TEXAS, TO COALINGA, CALIFORNIA (COMPUTED ON THE BASIS OF THE OFFICIAL DISTANCE FROM FORT HOOD TO FORT BRAGG), PURSUANT TO SPECIAL ORDERS NO. 201 WHICH CHANGED YOUR PERMANENT STATION FROM FORT HOOD, TEXAS, TO FORT BRAGG, NORTH CAROLINA.

REGARDING YOUR SUBSEQUENT PERMANENT CHANGE OF STATION FROM FORT BRAGG TO YOUR OVERSEA ASSIGNMENT BY SPECIAL ORDERS NO. 218, WHICH DID NOT AUTHORIZE CONCURRENT TRAVEL OF DEPENDENTS, PARAGRAPH 7005 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT WHEN A MEMBER IS TRANSFERRED OR ASSIGNED BY PERMANENT CHANGE OF STATION ORDERS TO A RESTRICTED AREA, HE WILL BE ENTITLED TO TRANSPORTATION OF DEPENDENTS FROM THE PLACE DEPENDENTS ARE LOCATED TO ANY PLACE IN THE UNITED STATES THE MEMBER MAY DESIGNATE NOT TO EXCEED ENTITLEMENT FROM THE MEMBER'S LAST DUTY STATION OR FROM THE LAST PLACE DEPENDENTS WERE TRANSPORTED AT GOVERNMENT EXPENSE. ACCORDINGLY, UNDER THAT PROVISION YOU ARE AUTHORIZED REIMBURSEMENT FOR YOUR DEPENDENTS' TRAVEL FROM THEIR LOCATION AT COALINGA, CALIFORNIA, TO THE DESIGNATED PLACE, BUCKHORN, KENTUCKY, NOT TO EXCEED THE APPROPRIATE TRAVEL ALLOWANCE FROM YOUR LAST DUTY STATION, FORT BRAGG, NORTH CAROLINA, WHICH ALSO WAS THE POINT TO WHICH TRAVEL WAS LAST COMPUTED AT GOVERNMENT EXPENSE. SETTLEMENT WILL ISSUE ON THAT BASIS IN DUE COURSE.

THE ABOVE-CITED SECTION 303 (E) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, WHICH AUTHORIZES THE PAYMENT OF A DISLOCATION ALLOWANCE TO A MEMBER OF A UNIFORMED SERVICE PROVIDES THAT "THE MEMBER SHALL BE ENTITLED TO THE PAYMENT OF A DISLOCATION ALLOWANCE FOR NOT MORE THAN ONE PERMANENT CHANGE OF STATION DURING ANY FISCAL YEAR, EXCEPT ON THE FINDING OF THE SECRETARY OF THE DEPARTMENT CONCERNED THAT THE EXIGENCIES OF THE SERVICE REQUIRE MORE THAN ONE SUCH CHANGE OF STATION DURING ANY FISCAL YEAR.' THE ABSENCE OF SUCH A FINDING BY THE SECRETARY CONCERNED, PARAGRAPH 9003-8 OF THE JOINT TRAVEL REGULATIONS LIKEWISE RESTRICTS PAYMENT OF DISLOCATION ALLOWANCE TO ONE PERMANENT CHANGE OF STATION DURING ANY FISCAL YEAR, AND PARAGRAPH 9004 1 PROVIDES THAT FOR THE PURPOSE OF DETERMINING THE FISCAL YEAR IN WHICH ENTITLEMENT TO THE 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. BOTH OF YOUR DEPARTURES FROM FORT HOOD AND FORT BRAGG PURSUANT TO PERMANENT CHANGE OF STATION ORDERS NO. 201, DATED AUGUST 13, 1960, AND NO. 218, AS AMENDED, DATED OCTOBER 21, 1960, OCCURRED DURING THE FISCAL YEAR ENDING JUNE 30, 1961. THEREFORE, IN VIEW OF THE SPECIFIC REQUIREMENTS IN THE STATUTE AND REGULATIONS AND SINCE THERE IS NO SHOWING THAT THE REQUIRED DETERMINATION HAS BEEN MADE BY THE SECRETARY OF THE ARMY IN YOUR CASE, THE PAYMENT TO YOU OF A SECOND DISLOCATION ALLOWANCE FOR THE FISCAL YEAR 1961 IS NOT AUTHORIZED AND THAT PORTION OF SETTLEMENT DATED JANUARY 31, 1962, WHICH DISALLOWED YOUR CLAIM FOR DISLOCATION ALLOWANCE INCIDENT TO YOUR DEPENDENTS' MOVE FROM COALINGA TO BUCKHORN IS SUSTAINED.