B-149463, SEP. 4, 1962

B-149463, SEP. 4, 1962

TO SERGEANT MAJOR CLIFFORD F. CLARRY, USA, RETIRED:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 28, 1962, REQUESTING REVIEW OF THE SETTLEMENT OF FEBRUARY 12, 1962, WHICH DISALLOWED YOUR CLAIM FOR COST- OF-LIVING ALLOWANCES AS A MEMBER WITH DEPENDENTS FOR THE PERIOD FROM JUNE 23, 1959, TO JUNE 23, 1960, DURING WHICH TIME YOUR DEPENDENTS RESIDED AT HILO, HAWAII.

BY SPECIAL ORDERS NO. 46, DATED MARCH 9, 1959, AS AMENDED BY SPECIAL ORDERS NO. 51, DATED MARCH 16, 1959, YOU WERE TRANSFERRED FROM SYRACUSE UNIVERSITY, SYRACUSE, NEW YORK, TO UNITED STATES ARMY OVERSEAS REPLACEMENT STATION, OAKLAND, CALIFORNIA, FOR FURTHER ASSIGNMENT TO EIGHTH U.S. ARMY. BY DEPENDENT TRAVEL ORDER 3-45, DATED MARCH 31, 1959, YOUR DEPENDENTS WERE AUTHORIZED TO TRAVEL FROM SYRACUSE, NEW YORK, TO HILO, HAWAII. SPECIAL ORDERS NO. 170, DATED JUNE 19, 1959, DIRECTED YOU TO REPORT TO FORT MASON, CALIFORNIA, FOR COORDINATED TRAVEL WITH YOUR DEPENDENTS TO HAWAII WHERE YOU WERE AUTHORIZED SEVEN DAYS' LEAVE BEFORE SUBSEQUENT MOVEMENT TO FINAL OVERSEAS DESTINATION, KOREA. THE ORDERS STATED THAT YOUR DEPENDENTS WERE NOT AUTHORIZED TO ACCOMPANY YOU TO YOUR FINAL DESTINATION. YOUR DEPENDENTS ARRIVED AT HILO ON JUNE 22, 1959, AND REMAINED THERE UNTIL JUNE 23, 1960, WHEN THEY DEPARTED FOR TRAVEL TO THE CONTINENTAL UNITED STATES PURSUANT TO LETTER ORDER 4-185, DATED APRIL 15, 1960. YOUR CLAIM WAS DISALLOWED BY THE SETTLEMENT OF FEBRUARY 12, 1962, IN WHICH REFERENCE WAS MADE TO PARAGRAPH 4300 OF THE JOINT TRAVEL REGULATIONS. IN YOUR REQUEST FOR REVIEW, YOU EXPRESS THE BELIEF THAT PARAGRAPHS 4305 AND 4305-5 OF THE JOINT TRAVEL REGULATIONS RATHER THAN PARAGRAPH 4300 SHOULD BE APPLIED TO YOUR CLAIM. ALSO, YOU REFER TO PARAGRAPH 4304 OF THE SAME REGULATIONS.

SECTION 303/B) OF THE CAREER COMPENSATION ACT OF 1949, 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 OR IN ALASKA, WHETHER OR NOT IN A TRAVEL STATUS, OF A PER DIEM CONSIDERING ALL ELEMENTS OF COST OF LIVING TO MEMBERS AND THEIR DEPENDENTS, INCLUDING THE COST OF QUARTERS, SUBSISTENCE AND OTHER NECESSARY INCIDENTAL EXPENSES, PROVIDED THAT DEPENDENTS SHALL NOT BE CONSIDERED IN DETERMINING PER DIEM ALLOWANCE FOR MEMBERS IN A TRAVEL STATUS.

THIS STATUTORY AUTHORITY FOR PAYMENT OF PER DIEM, OR COST-OF-LIVING ALLOWANCES, TO MEMBERS ON DUTY OUTSIDE THE CONTINENTAL UNITED STATES OR ALASKA, INSOFAR AS IT CONCERNS THE LIVING COSTS OF DEPENDENTS HAS BEEN CONSTRUED AS APPLICABLE ONLY IN CASES OF MEMBERS, ACCOMPANIED BY DEPENDENTS, WHO ARE SERVING AT PERMANENT DUTY STATIONS OVERSEAS. CONSONANCE WITH THIS CONSTRUCTION, THE TERM "A MEMBER WITH DEPENDENTS" IS DEFINED IN PARAGRAPH 4300 OF THE JOINT TRAVEL REGULATIONS IN EFFECT AT THE TIME HERE INVOLVED, AS ONE WHOSE DEPENDENTS RESIDE IN THE VICINITY OF HIS DUTY STATION OUTSIDE THE UNITED STATES, THAT IS, IN THE SAME COUNTRY WITHIN WHICH HIS PERMANENT DUTY STATION IS LOCATED, OR IN AN ADJACENT COUNTRY IF HE ACTUALLY RESIDES THERE WITH HIS DEPENDENTS AND COMMUTES TO HIS PERMANENT DUTY STATION. 38 COMP. GEN. 583. THUS, PARAGRAPH 8-41, ARMY REGULATIONS 37-104, FEBRUARY 5, 1959, PROVIDES THAT HOUSING AND COST- OF-LIVING ALLOWANCES ARE AUTHORIZED TO COVER INCREASED COSTS OF HOUSING AND COST OF LIVING "AT OVERSEAS STATIONS," AND THAT MEMBERS ARE ENTITLED TO RECEIVE THE ALLOWANCE WHEN GOVERNMENT QUARTERS OR MESSING FACILITIES OR BOTH ARE NOT AVAILABLE AT THE OVERSEAS PERMANENT STATION.

AT THE TIME HERE INVOLVED THERE ALSO WAS IN EFFECT PARAGRAPHS 4305 AND 4305-5 OF THE JOINT TRAVEL REGULATIONS (CHANGE 77, FEBRUARY 1, 1959). PARAGRAPH 4305 PROVIDES GENERALLY THAT A MEMBER WITH DEPENDENTS ASSIGNED TO DUTY IN A RESTRICTED AREA OUTSIDE THE UNITED STATES IN WHICH DEPENDENTS ARE NOT PERMITTED TO ESTABLISH A RESIDENCE MAY BE AUTHORIZED TO RECEIVE STATION ALLOWANCES FOR MEMBERS AS AUTHORIZED UNDER THAT PARAGRAPH. UNDER THAT PARAGRAPH, SUBPARAGRAPH 5 (PARAGRAPH 4305-5) ENTITLED "ENTRY PERMISSION WITHDRAWN WHILE DEPENDENTS EN ROUTE," PROVIDES THAT IF DEPENDENTS ARE EN ROUTE TO A MEMBER'S PERMANENT DUTY STATION, OR TO A DESIGNATED PLACE TO WHICH TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE HAS BEEN AUTHORIZED WHEN THE MEMBER'S DUTY STATION IS DECLARED A RESTRICTED AREA, OR FURTHER ORDERS ARE ISSUED ASSIGNING THE MEMBER TO ANOTHER RESTRICTED AREA, THE ENTITLEMENT TO STATION ALLOWANCES WILL ACCRUE (1) WHEN DEPENDENTS WHO ARE EN ROUTE ARE DIVERTED TO A PLACE OTHER THAN THEIR INTENDED DESTINATION, OR (2) WHEN THE MEMBER'S COMMANDING OFFICER CERTIFIES THAT THE DEPENDENTS WERE NOTIFIED THAT PERMISSION TO COMPLETE THEIR TRAVEL HAD BEEN WITHDRAWN AND THAT DEPENDENTS WERE DIRECTED TO PROCEED TO A SPECIFIED PLACE TO AWAIT FURTHER ORDERS.

IN YOUR CASE, YOUR DEPENDENTS WERE AUTHORIZED TO TRAVEL TO HAWAII ON THE BASIS OF THE ORDERS OF MARCH 9 AND 16, 1959, ASSIGNING YOU TO DUTY OVERSEAS WITH THE EIGHTH U.S. ARMY. THE ORDERS OF JUNE 19, 1959, DESIGNATING KOREA, A RESTRICTED AREA, AS YOUR DUTY STATION DID NOT RESULT IN YOUR DEPENDENTS BEING DIVERTED FROM THEIR DESTINATION, NOR WERE THEY NOTIFIED THAT PERMISSION TO COMPLETE THEIR TRAVEL WAS WITHDRAWN. THUS, PARAGRAPH 4305-5 OF THE REGULATIONS DOES NOT AFFORD A BASIS FOR ALLOWING YOUR CLAIM. THE REGULATIONS DO NOT PROVIDE FOR PAYMENT OF THE ALLOWANCE IN A CASE WHERE DEPENDENTS TRAVEL FROM THE UNITED STATES TO A DESIGNATED LOCATION OVERSEAS INCIDENT TO THE MEMBER'S ASSIGNMENT TO A RESTRICTED AREA OVERSEAS.

ACCORDINGLY, THE SETTLEMENT OF FEBRUARY 12, 1962, WAS CORRECT AND IS SUSTAINED.