B-150863, MAR. 15, 1963

B-150863, MAR. 15, 1963

TO COLONEL DAN E. CRAIG:

REFERENCE IS MADE TO LETTER DATED JANUARY 29, 1963, WITH ENCLOSURES, FROM THE COMMANDING GENERAL, U.S. MILITARY MISSION WITH THE IRANIAN ARMY AND U.S. MILITARY ASSISTANCE ADVISORY GROUP TO IRAN, APO 205, NEW YORK, NEW YORK, WRITTEN IN YOUR BEHALF AND IN EFFECT REQUESTING REVIEW OF SETTLEMENT DATED MARCH 12, 1962. IN THAT SETTLEMENT OUR CLAIMS DIVISION DISALLOWED YOUR CLAIM FOR TEMPORARY LODGING ALLOWANCE AS A MEMBER WITH TWO DEPENDENTS FOR THE PERIOD SEPTEMBER 3 TO 16, 1961, WHILE OCCUPYING TEMPORARY QUARTERS IN KENYAN HOTEL, TEHERAN, IRAN, INCIDENT TO ORDERS OF FEBRUARY 21, 1961, TRANSFERRING YOU FROM FORT RILEY, KANSAS, TO TEHERAN, IRAN.

THE RECORD SHOWS THAT PURSUANT TO ORDERS OF FEBRUARY 21, 1961, YOU ARRIVED IN TEHERAN ON JUNE 29, 1961, AND OCCUPIED GOVERNMENT QUARTERS. YOUR DEPENDENTS ARRIVED IN TEHERAN ON SEPTEMBER 2, 1961. YOUR CLAIM FOR TEMPORARY LODGING ALLOWANCE WAS DENIED BY THE ADMINISTRATIVE OFFICE FOR THE REASON THAT YOUR DEPENDENTS ARRIVED AT TEHERAN MORE THAN 60 DAYS AFTER YOU FIRST REPORTED THERE AND PARAGRAPH 4303-2B OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT THE PERIOD OF ENTITLEMENT TO TEMPORARY LODGING ALLOWANCE UPON INITIAL ASSIGNMENT WILL NOT EXCEED 60 DAYS AFTER ARRIVAL OF THE MEMBER. YOUR CLAIM WAS DISALLOWED BY OUR OFFICE IN SETTLEMENT OF MARCH 12, 1962, FOR THE REASON THAT YOUR COMMANDING OFFICER DID NOT CERTIFY THAT OCCUPANCY OF TEMPORARY LODGING BY YOU AND YOUR DEPENDENTS WAS NECESSARY DURING THE INITIAL 60-DAY PERIOD AND SUCH CERTIFICATE IS REQUIRED BY THE PERTINENT ADMINISTRATIVE REGULATIONS TO SUPPORT A CLAIM FOR TEMPORARY LODGING ALLOWANCE.

IN THE LETTER OF JANUARY 29, 1963, REQUESTING REVIEW OF THE SETTLEMENT, IT IS STATED THAT DURING THE INITIAL 60 DAYS OF YOUR TOUR OF DUTY IN IRAN YOU ACTUALLY WERE AWAY FOR 14 DAYS FROM YOUR PERMANENT DUTY STATION AS IT IS PRESENTLY CONSTITUTED, BUT AT THAT TIME, IT COULD NOT BE CONSIDERED TEMPORARY DUTY BECAUSE YOU WERE WITHIN THE LIMITS OF YOUR PERMANENT DUTY STATION, AS THE LIMITS OF THE STATION WERE THEN DEFINED IN THE APPLICABLE REGULATION, CIRCULAR 55-1, HEADQUARTERS, ARMISH MAAG, DATED SEPTEMBER 8, 1959. FURTHER, IT IS STATED THAT THE CURRENT REGULATION, ARMISH MAAG CIRCULAR 55-1, DATED JANUARY 23, 1962, HAS CHANGED THE AREA COVERED BY YOUR PERMANENT DUTY STATION AND IT IS INDICATED THAT IF YOU WERE ORDERED TO PERFORM A SIMILAR ASSIGNMENT AT THE PRESENT TIME YOU WOULD BE IN A TEMPORARY DUTY STATUS.

APPARENTLY, YOU BELIEVE THAT THE FACT THAT THE CURRENT REGULATION HAS CHANGED THE PRIOR REGULATION IS A BASIS TO CONCLUDE THAT THE PRIOR REGULATION WAS INVALID AND OF NO LEGAL EFFECT. THEREFORE, YOU URGE THAT THE CURRENT REGULATION BE GIVEN RETROACTIVE APPLICATION IN YOUR CASE SO THAT YOU MAY BE CONSIDERED AS HAVING BEEN AWAY FROM YOUR PERMANENT DUTY STATION FOR 14 DAYS. THIS WOULD PERMIT EXTENSION OF THE 60-DAY PERIOD TO COVER AN ACTUAL PERIOD OF 60 DAYS WHEN YOU WERE PRESENT AT WHAT IS NOW CONSIDERED YOUR PERMANENT DUTY STATION.

IN LETTER DATED MAY 8, 1962, TO YOU FROM THE ADMINISTRATIVE OFFICE CONCERNING THE CONSIDERATION OF YOUR CLAIM IT IS STATED THAT CIRCULAR 55- 1, HEADQUARTERS, U.S. MILITARY MISSION WITH THE IRANIAN ARMY AND U.S. MILITARY ASSISTANCE ADVISORY GROUP TO IRAN, DATED SEPTEMBER 8, 1959, WHICH WAS IN EFFECT DURING THE PERIOD IN QUESTION, DEFINED THE AREA OF PERMANENT STATION FOR THOSE ASSIGNED TO FIELD ADVISORY TEAM NUMBER ONE WHICH WAS YOUR ASSIGNMENT. (THE RECORD INDICATES THIS INCLUDED AN AREA OF APPROXIMATELY 280,000 SQUARE MILES). IT IS ALSO STATED THAT YOU DID NOT TRAVEL BEYOND YOUR PERMANENT DUTY STATION AND THEREFORE NO EXTENSION OF THE 60-DAY PERIOD OF ENTITLEMENT FOR TEMPORARY LODGING ALLOWANCE WAS AUTHORIZED. FURTHER, IT IS STATED THAT THE SUBSEQUENT REVISION OF CIRCULAR 55-1 HAS NO RETROACTIVE EFFECT UPON YOUR STATUS DURING THE PERIOD INVOLVED AND CONSEQUENTLY THERE WAS NO AUTHORITY TO ISSUE A CERTIFICATE TO THE EFFECT THAT YOU PERFORMED TEMPORARY DUTY OUTSIDE OF YOUR PERMANENT DUTY STATION DURING SUCH PERIOD.

THE ADMINISTRATIVE REFUSAL TO ISSUE THE CERTIFICATE WAS BASED ON THE WELL -SETTLED PRINCIPLE OF LAW THAT ONCE ADMINISTRATIVE REGULATIONS ARE ISSUED, THE RIGHTS THEREUNDER BECOME FIXED, AND ALTHOUGH SUCH REGULATIONS MAY BE AMENDED PROSPECTIVELY TO INCREASE OR DECREASE THE RIGHTS GIVEN THEREBY, THEY MAY NOT BE SO AMENDED RETROACTIVELY. COMPARE ARIZONA GROCERY V. ATCHISON RY., 284 U.S. 370. CERTAINLY, YOU WOULD PROPERLY INSIST UPON THE APPLICATION OF THIS PRINCIPLE IF THE EFFECT OF THE SUBSEQUENT REVISION OF CIRCULAR 55-1, DATED SEPTEMBER 8, 1959, WAS TO DECREASE RETROACTIVELY ANY ALLOWANCE PREVIOUSLY AUTHORIZED FOR YOU. SIMILARLY, IT SHOULD BE CLEAR TO YOU THAT A DIFFERENT RULE MAY NOT BE APPLIED IF THE EFFECT OF THE REVISION WOULD BE TO INCREASE RETROACTIVELY THE OBLIGATIONS ON THE GOVERNMENT. RECOGNIZE SUCH ADMINISTRATIVE AUTHORITY WOULD MEAN THAT THE GOVERNMENT'S OBLIGATION UNDER EXISTING AND PREEXISTING REGULATIONS WOULD NEVER BE FIXED OR FINALLY SETTLED. SEE 32 COMP. GEN. 315.

WE HAVE NOT BEEN FURNISHED A COPY OF THE CIRCULAR OF JANUARY 23, 1962, BUT INSOFAR AS THE RECORD SHOWS, IT DOES NOT PURPORT TO BE RETROACTIVELY EFFECTIVE OR TO DECLARE ILLEGAL THE PRIOR CIRCULAR AND IT APPEARS TO HAVE PROPERLY BEEN GIVEN ONLY A PROSPECTIVE APPLICATION BY THE ADMINISTRATIVE OFFICE. THE FACT THAT IT REDUCED THE BOUNDARIES OF YOUR OFFICIAL STATION CONSTITUTES NO BASIS FOR CONCLUDING THAT THE PRIOR CIRCULAR WHICH DEFINED YOUR OFFICIAL STATION AS INCLUDING A LARGER AREA WAS ILLEGAL. IN THESE CIRCUMSTANCES, WE MUST CONCLUDE THAT THE RECORD PRESENTS NO LEGAL BASIS TO RETROACTIVELY APPLY THE CURRENT REGULATION WITH RESPECT TO THE LIMITS OF YOUR PERMANENT DUTY STATION AND THAT THE ADMINISTRATIVE REFUSAL TO ISSUE A CERTIFICATE THAT YOU PERFORMED TEMPORARY DUTY OUTSIDE OF YOUR PERMANENT DUTY STATION WAS PROPER.

ACCORDINGLY, WE ARE WITHOUT AUTHORITY TO ALLOW YOUR CLAIM. THE SETTLEMENT OF MARCH 12, 1962, IS CORRECT AND IS SUSTAINED.