B-153558, JUNE 18, 1964, 43 COMP. GEN. 810

B-153558, JUNE 18, 1964, 43 COMP. GEN. 810

TRANSPORTATION - DEPENDENTS - MILITARY PERSONNEL - VESSEL AND PORT CHANGES A NAVY ENLISTED MEMBER RELIEVED FROM DUTY ON BOARD THE U.S.S. BLACK, HOME PORT LONG BEACH, CALIFORNIA, AND ASSIGNED TO TEMPORARY DUTY AT THE BOSTON NAVAL SHIPYARD IN CONNECTION WITH FITTING OUT THE U.S.S. WORDEN, HOME PORT SAN DIEGO, CALIFORNIA, AND TO DUTY ON BOARD THE VESSEL WHEN COMMISSIONED, IS ENTITLED TO PAYMENT FOR THE ADVANCE TRAVEL OF HIS DEPENDENTS TO FALL RIVER, MASSACHUSETTS, IN AN AMOUNT NOT TO EXCEED THE MONETARY ALLOWANCE FOR THE DISTANCE BETWEEN THE TWO HOME PORTS--- LONG BEACH TO SAN DIEGO--- AND TO A DISLOCATION ALLOWANCE, NOTWITHSTANDING ORDERS ISSUED BY THE WORDEN DIRECTING THE MEMBER TO REPORT TO THE U.S.S. LEAHY AT BOSTON (HOME PORT, CHARLESTON, SOUTH CAROLINA), THE TRANSFER TO BE EFFECTED AT NO COST TO THE GOVERNMENT, THE MEMBER HAVING REPORTED ON BOARD THE WORDEN PRIOR TO BEING TRANSFERRED, COMPLIANCE WITH HIS INITIAL ORDERS DIRECTING A PERMANENT CHANGE OF STATION ENTITLES HIM TO TRANSPORTATION FOR HIS DEPENDENTS NOT TO EXCEED TRAVEL FROM LONG BEACH TO SAN DIEGO, AND TO A DISLOCATION ALLOWANCE UNDER 37 U.S.C. 406 AND 407.

TO LIEUTENANT (JG) F. Y. FELLOWS, DEPARTMENT OF THE NAVY, JUNE 18, 1964:

BY SECOND INDORSEMENT DATED FEBRUARY 19, 1964, THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE FORWARDED HERE YOUR LETTER OF JANUARY 5, 1964, WITH ENCLOSURES, REQUESTING AN ADVANCE DECISION CONCERNING THE LEGALITY OF PAYMENT FOR DEPENDENT'S TRAVEL AND DISLOCATION ALLOWANCE IN THE CASE OF JACK D. MILLER, 525 35 24, BM2, USN, UNDER THE CIRCUMSTANCES DISCLOSED. THE REQUEST FOR DECISION WAS ASSIGNED CONTROL NO. 64-5 BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

BY ORDERS DATED FEBRUARY 20, 1963, THE MEMBER WAS RELIEVED FROM HIS DUTY ASSIGNMENT ON BOARD THE U.S.S. BLACK (DD-666) AT LONG BEACH, CALIFORNIA, AND ORDERED TO PROCEED TO THE FLEET TRAINING CENTER, NEWPORT, RHODE ISLAND, AND THE BOSTON NAVAL SHIPYARD, BOSTON, MASSACHUSETTS, FOR TEMPORARY DUTY IN CONNECTION WITH THE COMMISSIONING AND FITTING OUT OF THE U.S.S. WORDEN (DLG-18), AND FOR DUTY ON BOARD WHEN COMMISSIONED. THE RECORD SHOWS THAT MILLER WAS DETACHED FROM THE U.S.S. BLACK ON MAY 15, 1963, AND REPORTED IN AT THE FLEET TRAINING CENTER, NEWPORT, RHODE ISLAND, ON JUNE 2, 1963. ON JULY 26, 1963, HE WAS ORDERED TO PROCEED TO THE COMMANDER, BOSTON NAVAL SHIPYARD, BOSTON, MASSACHUSETTS, AND HE REPORTED THERE ON THAT DAY. MEMORANDUM ENDORSEMENTS ON HIS ORDERS OF FEBRUARY 20, 1963, SHOW THAT HE REPORTED FOR DUTY ON THE U.S.S. WORDEN AT BOSTON, MASSACHUSETTS, ON AUGUST 3, 1963.

BY ORDERS OF THE U.S.S. WORDEN PREPARED AUGUST 2, 1963, HE WAS ORDERED TO REPORT FOR DUTY NOT LATER THAN AUGUST 11, 1963, TO THE COMMANDING OFFICER, U.S.S. LEAHY (DLG-16) AT BOSTON, MASSACHUSETTS, WITH DELAY OF 5 DAYS EN ROUTE TO COUNT AS LEAVE. THE ORDERS INDICATED A DETACHMENT DATE OF AUGUST 5. THE DATES OF AUGUST 11 AND 5 WERE CHANGED IN INK TO AUGUST 8 AND AUGUST 2, RESPECTIVELY. HOWEVER, THE DATE ON WHICH THIS CHANGE WAS MADE IS NOT SHOWN. NEITHER IS THERE ANY INDORSEMENT ON THESE ORDERS SHOWING THE ACTUAL DATE OF DETACHMENT FROM THE U.S.S. WORDEN. IN THE ORDERS IT WAS STATED THAT THE TRANSFER WAS TO BE EXECUTED AT NO EXPENSE TO THE GOVERNMENT AND THAT IN CASE THE MEMBER DID NOT DESIRE TO BEAR THE EXPENSE OF THE TRANSFER HE SHOULD REGARD THE AUTHORIZATION AS REVOKED. THE ITINERARY FURNISHED WITH THE MEMBER'S CLAIM SHOWS THAT HIS DEPENDENT LEFT LONG BEACH, CALIFORNIA, ON MAY 18, 1963, AND COMPLETED TRAVEL TO FALL RIVER, MASSACHUSETTS, ON JUNE 2, 1963. ON AUGUST 4, 1963, THE U.S.S. WORDEN WAS COMMISSIONED WITH SAN DIEGO, CALIFORNIA, ASSIGNED AS ITS HOME PORT.

IN YOUR LETTER OF JANUARY 5, 1964, IT IS STATED THAT PRIOR TO THE WORDEN'S COMMISSIONING, MILLER ARRANGED FOR A SWAP AND ORDERS WERE PREPARED AUGUST 2, 1963, TRANSFERRING HIM TO THE U.S.S. LEAHY AT NO EXPENSE TO THE GOVERNMENT. YOU SAY THAT SINCE HE WAS TRANSFERRED FROM THE WORDEN AT NO EXPENSE TO THE GOVERNMENT AND PRIOR TO THE DATE OF COMMISSIONING, AN ELEMENT OF DOUBT EXISTS AS TO THE PROPRIETY OF PAYMENT FOR HIS DEPENDENT'S TRAVEL AND DISLOCATION ALLOWANCE.

IN THE SECOND INDORSEMENT OF FEBRUARY 19, 1963, FROM THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE, IT IS STATED THAT THE ORDERS OF FEBRUARY 20, 1963, DIRECTED A PERMANENT CHANGE OF STATION FROM THE U.S.S. BLACK (HOME PORT, LONG BEACH, CALIFORNIA), AND SINCE THE MEMBER DID NOT COMPLETE THE PERMANENT CHANGE OF STATION BEFORE THE ORDERS OF AUGUST 2, 1963, WERE ISSUED DIRECTING ASSIGNMENT TO DUTY ABOARD THE U.S.S. LEAHY (HOME PORT, CHARLESTON, SOUTH CAROLINA), THEY WERE OF THE VIEW THAT THE LATTER ORDERS SHOULD BE CONSIDERED AS EFFECTING A MODIFICATION OF THE FIRST INCOMPLETED ORDERS. ALSO IT IS STATED THAT THE RESTRICTION INVOLVED IN THE PERMISSIVE ASSIGNMENT TO THE U.S.S. LEAHY SHOULD NOT ACT TO NULLIFY THE RIGHT TO TRANSPORTATION FOR DEPENDENTS AND PAYMENT OF DISLOCATION ALLOWANCE THAT ACCRUED BY REASON OF ORDERS THAT ORIGINALLY INITIATED A PERMANENT CHANGE OF STATION WHICH WAS NOT AT THE REQUEST OF THE MEMBER. THEREFORE THE COMMITTEE BELIEVES THAT THE MEMBER IS ENTITLED TO REIMBURSEMENT FOR THE TRAVEL PERFORMED BY HIS DEPENDENT NOT TO EXCEED THE MONETARY ALLOWANCE FOR THE DISTANCE BETWEEN LONG BEACH, CALIFORNIA, AND SAN DIEGO, CALIFORNIA, AND TO THE PAYMENT OF DISLOCATION ALLOWANCE.

UNDER THE PROVISIONS OF 37 U.S.C. 406 AND 407 AUTHORITY IS PROVIDED FOR THE TRANSPORTATION OF A MEMBER'S DEPENDENTS AND FOR THE PAYMENT OF A DISLOCATION ALLOWANCE INCIDENT TO A DIRECTED PERMANENT CHANGE OF STATION. EXCEPT AS PROVIDED OTHERWISE BY THE ACT OF DECEMBER 23, 1963, 77 STAT. 475, 37 U.S.C. 406A, THE RIGHT TO THOSE BENEFITS IS CONTINGENT UPON THE COMPLETION OF THE MEMBER'S CHANGE OF STATION IN COMPLIANCE WITH HIS ORDERS, AND SUBJECT TO ADJUSTMENT WHERE EARLY TRAVEL PERFORMED BY DEPENDENTS IN ANTICIPATION OF THE CHANGE OF STATION IS MADE PARTIALLY OR WHOLLY UNNECESSARY BECAUSE OF A CANCELLATION OR MODIFICATION OF THE ORDERS.

IN THE CIRCUMSTANCES SHOWN, HOWEVER, IT IS NOT UNDERSTOOD HOW JURISDICTION OF THE MEMBER COULD HAVE BEEN ASSUMED BY THE COMMAND OF THE U.S.S. WORDEN ON AUGUST 2, 1963, WHILE HE WAS STILL ATTACHED TO THE BOSTON NAVAL SHIPYARD FOR TEMPORARY DUTY, TO TRANSFER HIM FROM THE WORDEN TO THE U.S.S. LEAHY. AS INDICATED ABOVE THE PROVISIONS OF SUCH ORDERS INITIALLY INDICATED AN ANTICIPATED DETACHMENT OF THE MEMBER FOR THAT PURPOSE ON AUGUST 5, 1963, SUBSEQUENT TO HIS REPORTING ABOARD IN COMPLIANCE WITH THE ORDERS OF FEBRUARY 20, 1963, AND THE RECORD SHOWS THAT THE MEMBER DID IN FACT REPORT ABOARD THE WORDEN ON AUGUST 3, 1963. HENCE, WE WILL CONSIDER THAT HE HAD COMPLIED WITH THE REQUIREMENTS OF THE ORDERS OF FEBRUARY 20, 1963, PRIOR TO HIS ACTUAL TRANSFER TO THE LEAHY, AND SO IS ENTITLED TO TRANSPORTATION FOR HIS DEPENDENTS, NOT TO EXCEED THAT FOR TRAVEL FROM LONG BEACH, CALIFORNIA, HOME PORT OF THE U.S.S. BLACK, TO SAN DIEGO, CALIFORNIA, HOME PORT OF THE U.S.S. WORDEN, UNDER THOSE ORDERS, AND TO A DISLOCATION ALLOWANCE.