B-152330, JANUARY 10, 1964, 43 COMP. GEN. 505

B-152330: Jan 10, 1964

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WHICH IS IN THE NATURE OF A PERMANENT CHANGE OF STATION EMOLUMENT. THE MEMBERS ARE NOT ENTITLED TO THE TEMPORARY LODGING ALLOWANCE PRIOR TO THE EFFECTIVE DATE OF THE CHANGE IN THE HOME PORT. THE REQUEST FOR DECISION WAS ASSIGNED PDTATAC CONTROL NO. 63-18 BY THE PER DIEM. THE ENTRY OF THE MEMBER'S DEPENDENTS INTO JAPAN WAS PRIOR TO THE EFFECTIVE DATE OF THE CHANGE OF THE HOME PORT OF THE U.S.S. WHICH IS STATED TO HAVE BEEN JULY 1. IT IS CERTIFIED THAT HE AND HIS DEPENDENTS OCCUPIED ACCOMMODATIONS AT THE KAN KO HOTEL. CERTIFICATION IS MADE THAT HE AND HIS DEPENDENTS OCCUPIED HOTEL TYPE ACCOMMODATIONS AT THE ZUSHI BEACH HOTEL. EXCEPT THAT THE MEMBER WAS AT SEA DURING THE PERIODS JUNE 2-8 AND 18-20.

B-152330, JANUARY 10, 1964, 43 COMP. GEN. 505

STATION ALLOWANCES - MILITARY PERSONNEL - TEMPORARY LODGINGS - CONDITIONS OF ENTITLEMENT - PRIOR TO EFFECTIVE DATE OF ORDERS WHEN THE DEPENDENTS OF MEMBERS OF THE NAVY ASSIGNED TO VESSEL DUTY ARRIVE IN THE VICINITY OF AN OVERSEAS HOME PORT OF THE VESSEL AND OCCUPY TEMPORARY LODGINGS PRIOR TO THE EFFECTIVE DATE OF THE CHANGE OF THE HOME PORT OF THE VESSEL FROM THE UNITED STATES TO THE OVERSEAS HOME PORT, THE CONDITION FOR ENTITLEMENT TO THE TEMPORARY LODGING ALLOWANCE, WHICH IS IN THE NATURE OF A PERMANENT CHANGE OF STATION EMOLUMENT, HAS NOT BEEN MET UNTIL THE NEW HOME PORT OF THE VESSEL BECOMES THE MEMBER'S PERMANENT DUTY STATION ON THE EFFECTIVE DATE OF THE ORDERS AND, THEREFORE, THE MEMBERS ARE NOT ENTITLED TO THE TEMPORARY LODGING ALLOWANCE PRIOR TO THE EFFECTIVE DATE OF THE CHANGE IN THE HOME PORT.

TO ENSIGN W. J. NELSON, DEPARTMENT OF THE NAVY, JANUARY 10, 1964:

BY FIFTH INDORSEMENT DATED AUGUST 15, 1963, THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE FORWARDED YOUR LETTER OF MARCH 25, 1963, WITH ENCLOSURES, REQUESTING AN ADVANCE DECISION AS TO THE LEGALITY OF PAYMENT OF TEMPORARY LODGING ALLOWANCE TO COMMANDER RICHARD J. COAD, USN; LIEUTENANT COMMANDER JOHN B. OREM, JR., USN; AND BMCA RICHARD A. PIZZO, USN, IN THE CIRCUMSTANCES DISCLOSED. THE REQUEST FOR DECISION WAS ASSIGNED PDTATAC CONTROL NO. 63-18 BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

YOU STATE THAT IN EACH OF THE THREE CASES CITED, THE ENTRY OF THE MEMBER'S DEPENDENTS INTO JAPAN WAS PRIOR TO THE EFFECTIVE DATE OF THE CHANGE OF THE HOME PORT OF THE U.S.S. PROVIDENCE (CLG-6) FROM LONG BEACH, CALIFORNIA, TO YOKOSUKA, JAPAN, WHICH IS STATED TO HAVE BEEN JULY 1, 1962. IT APPEARS THAT THE PROVIDENCE DEPARTED THE CONTINENTAL UNITED STATES ON MAY 4, 1962, AND ARRIVED AT YOKOSUKA ON MAY 18, 1962. IN THE CASE OF COMMANDER COAD AND HIS DEPENDENTS, IT IS CERTIFIED THAT HE AND HIS DEPENDENTS OCCUPIED ACCOMMODATIONS AT THE KAN KO HOTEL, YOKOSUKA, JAPAN, DURING THE PERIOD JUNE 12 TO 18, 1962, PRIOR TO ASSIGNMENT TO GOVERNMENT QUARTERS. IN THE CASE OF COMMANDER OREM, CERTIFICATION IS MADE THAT HE AND HIS DEPENDENTS OCCUPIED HOTEL TYPE ACCOMMODATIONS AT THE ZUSHI BEACH HOTEL, YOKOSUKA, JAPAN, DURING THE PERIOD MAY 19 TO JUNE 20, 1962, EXCEPT THAT THE MEMBER WAS AT SEA DURING THE PERIODS JUNE 2-8 AND 18-20, 1962. IN THE CASE OF BMCA PIZZO AND DEPENDENTS, IT IS CERTIFIED THAT COMMERCIAL HOTEL-TYPE ACCOMMODATIONS AT THE KAN KO HOTEL WERE OCCUPIED FROM MAY 23 TO JUNE 22, 1962. IN EACH OF THESE CASES IT APPEARS THAT THE DEPENDENTS WERE AUTHORIZED TO ENTER JAPAN PRIOR TO THE EFFECTIVE DATE OF THE CHANGE OF HOME PORT; THAT THEY DEPARTED FOR JAPAN AFTER DEPARTURE OF THE VESSEL FROM THE UNITED STATES, AND THAT THEY ARRIVED AT YOKSUKA AFTER ARRIVAL OF THE SPONSOR. IN THE CASES OF OREM AND OF PIZZO, THE ADVANCE TRAVEL OF DEPENDENTS WAS PROMPTED BY PREGNANCY OF THE WIVES. YOU EXPRESS DOUBT AS TO THE PROPRIETY OF PAYING TEMPORARY LODGING ALLOWANCE FOR THE PERIODS INVOLVED SINCE THE CHANGE OF HOME PORT OF THE PROVIDENCE TO YOKOSUKA, JAPAN, DID NOT BECOME EFFECTIVE UNTIL JULY 1, 1962, AFTER THE PERIOD FOR WHICH THE ALLOWANCE IS CLAIMED.

THE CONTROLLING STATUTE, 37 U.S.C. 404, PROVIDES THAT UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, A MEMBER OF A UNIFORMED SERVICE IS ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES UPON A CHANGE OF PERMANENT STATION. IN THIS CONNECTION 37 U.S.C. 404 PROVIDES THAT THE SECRETARIES CONCERNED MAY AUTHORIZE THE PAYMENT OF A PER DIEM, CONSIDERING ALL ELEMENTS OF THE COST OF LIVING TO MEMBERS OF THE UNIFORMED SERVICES, INCLUDING A COST OF QUARTERS, SUBSISTENCE, AND OTHER NECESSARY INCIDENTAL EXPENSES TO SUCH A MEMBER WHO IS ON DUTY OUTSIDE OF THE UNITED STATES OR IN HAWAII OR ALASKA, WHETHER OR NOT HE IS IN A TRAVEL STATUS. PURSUANT TO SUCH AUTHORITY, AND WITH RESPECT TO PAYMENT OF TEMPORARY LODGING ALLOWANCES, PARAGRAPH 4303-2B OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT THE RULES GOVERNING THE DAYS OF COMMENCEMENT OF HOUSING AND COST-OF- LIVING ALLOWANCES IN PARAGRAPH 4301, JOINT TRAVEL REGULATIONS, ARE ALSO APPLICABLE TO THE COMMENCEMENT OF PAYMENT OF TEMPORARY LODGING ALLOWANCE. PARAGRAPH 4301-4 OF THE REGULATIONS STATES THAT TEMPORARY LODGING ALLOWANCE IS AUTHORIZED FOR THE PURPOSE OF PARTIALLY REIMBURSING A MEMBER FOR THE MORE THAN NORMAL EXPENSES INCURRED AT HOTEL OR HOTEL-LIKE ACCOMMODATIONS AND PUBLIC RESTAURANTS UPON INITIAL ARRIVAL AT A PERMANENT DUTY STATION OUTSIDE THE UNITED STATES AND PENDING ASSIGNMENT OF GOVERNMENT QUARTERS OR PENDING COMPLETION OF ARRANGEMENTS FOR OTHER PERMANENT LIVING ACCOMMODATIONS. REFERRING TO THE COMMENCEMENT OF ENTITLEMENT PROVISIONS OF THE REGULATIONS, PARAGRAPH 4301-4 PROVIDES IN PART AS FOLLOWS:

4. ARRIVAL OF DEPENDENTS PRIOR TO ARRIVAL OF MEMBER

B. OLD STATION OUTSIDE UNITED STATES. WHEN OLD STATION IS OUTSIDE THE UNITED STATES, ENTITLEMENT WILL COMMENCE WITH THE DAY OF ARRIVAL OF DEPENDENTS, IF ON OR AFTER THE EFFECTIVE DATE OF ORDERS DIRECTING THE CHANGE OF STATION, OR THE EFFECTIVE DATE OF THE CHANGE-OF-STATION ORDERS, WHICHEVER IS LATER.

C. OLD STATION IN UNITED STATES. WHEN OLD STATION IS IN THE UNITED STATES, ENTITLEMENT WILL BEGIN ON THE DAY OF ARRIVAL OF DEPENDENTS, IF ON OR AFTER THE EFFECTIVE DATE OF ORDERS DIRECTING THE CHANGE OF STATION, OR THE DATE OF DEPARTURE OF THE MEMBER FROM THE UNITED STATES, WHICHEVER IS LATER. IN CASE A VESSEL HAVING A HOME PORT OR HOME YARD OUTSIDE THE UNITED STATES IS AT A PORT IN THE UNITED STATES ON THE DATE MEMBER REPORTS FOR DUTY, THE DATE OF REPORTING WILL BE CONSIDERED TO BE THE DAY OF DEPARTURE FROM THE UNITED STATES.

THE ABOVE-QUOTED PROVISIONS DO NOT SPECIFICALLY COVER THE CASES PRESENTED SINCE THE DEPENDENTS IN EACH CASE ARRIVED AT YOKOSUKA AFTER THE MEMBER. HOWEVER, THE REGULATION APPEARS TO CLEARLY CONTEMPLATE THAT IF THE DEPENDENTS ARRIVE AT THE NEW STATION PRIOR TO THE EFFECTIVE DATE OF THE CHANGE OF STATION ORDERS, ENTITLEMENT WILL NOT COMMENCE PRIOR TO SUCH EFFECTIVE DATE. THIS WOULD APPEAR TO BE THE CASE WHETHER OR NOT THE DEPENDENTS ARRIVED PRIOR TO THE MEMBER SINCE TEMPORARY LODGING ALLOWANCE IS A PERMANENT STATION EMOLUMENT AND THERE WOULD SEEM TO BE NO BASIS FOR PAYMENT OF THE ALLOWANCE AT THE NEW STATION UNTIL THE CHANGE OF STATION ORDERS BECOME EFFECTIVE. A CHANGE IN HOME PORT CONSTITUTES A PERMANENT CHANGE OF STATION INSOFAR AS TRANSPORTATION OF THE DEPENDENTS OF A MEMBER ATTACHED TO A VESSEL IS CONCERNED AND SINCE YOKOSUKA DID NOT BECOME THE ASSIGNED HOME PORT OF THE VESSEL UNTIL JULY 1, 1962, IT COULD NOT BECOME THE PERMANENT STATION PRIOR TO THAT DATE AND THERE COULD BE NO COMMENCEMENT OF ENTITLEMENT TO TEMPORARY LODGING ALLOWANCE ON ACCOUNT OF DEPENDENTS WHO ARRIVED THERE PRIOR TO THAT DATE. THAT THIS IS THE CORRECT VIEW IS SUPPORTED BY PARAGRAPH 4304 OF THE JOINT TRAVEL REGULATIONS. THAT PARAGRAPH PROVIDES WITH RESPECT TO THE PAYMENT OF STATION ALLOWANCES TO MEMBERS ASSIGNED TO SHIPS OR FLEET UNITS, THAT THE TERMS "PERMANENT DUTY STATION" OR "MEMBER'S DUTY STATION" WILL BE CONSTRUED TO INCLUDE, AS THE CASE MAY BE, THE AUTHORIZED HOME YARD OR HOME PORT OF A VESSEL OR FLEET UNIT. THE TWO CASES CITED BY YOU, B-144933, DATED FEBRUARY 16, 1961, AND B-144362, DATED JANUARY 10, 1961, COVERED SITUATIONS INVOLVING SHORE-BASED UNITS AND HAVE NO APPLICATION TO THE CIRCUMSTANCES INVOLVED IN THE PRESENT CASE.

THUS, IT MUST BE CONCLUDED THAT SINCE THE PERIOD INVOLVED IN EACH CASE IS PRIOR TO THE EFFECTIVE DATE OF THE CHANGE IN THE HOME PORT OF THE U.S.S. PROVIDENCE (JULY 1, 1962), NO RIGHT TO TEMPORARY LODGING ALLOWANCE ACCRUED TO THE MEMBERS AND THEIR DEPENDENTS UNDER THE CIRCUMSTANCES RELATED. THE QUESTION PRESENTED IS ANSWERED ACCORDINGLY. THE PAPERS RECEIVED WITH YOUR LETTER WILL BE RETAINED HERE.