B-154398, AUG. 13, 1964

B-154398, AUG. 13, 1964

TO COMMANDER JOSEPH E. SPAULDING, SC, USN:

REFERENCE IS MADE TO YOUR LETTER DATED MAY 12, 1964, CLAIMING PARTIAL REFUND OF A CHECK AGE AGAINST YOUR PAY ACCOUNT FOR EXCESS COSTS INVOLVED IN THE SHIPMENT OF YOUR HOUSEHOLD EFFECTS INCIDENT TO PERMANENT CHANGE OF STATION ORDERS DATED MAY 20, 1963. YOUR CLAIM WAS TRANSMITTED MAY 28, 1964, TO OUR OFFICE BY THE U.S. NAVY FINANCE CENTER, WASHINGTON, D.C., FOR CONSIDERATION UNDER THE PROVISIONS OF PARAGRAPH 58119 OF THE BUREAU OF SUPPLIES AND ACCOUNTS MANUAL.

BY BUREAU OF NAVAL PERSONNEL ORDER DATED MAY 20, 1963, YOU WERE TO BE DETACHED FROM DUTY UNDER INSTRUCTION AT THE ARMED FORCES STAFF COLLEGE, NORFOLK, VIRGINIA, WHEN DIRECTED ON OR ABOUT JUNE 28, 1963, AND WERE TO PROCEED TO BRUNSWICK, MAINE, AND REPORT TO THE COMMANDING OFFICER, NAVAL AIR STATION, FOR DUTY AS SUPPLY OFFICER. DELAY IN REPORTING NOT LATER THAN JULY 22, 1963, WAS AUTHORIZED. ENDORSEMENT ON THE ORDERS INDICATES YOU REPORTED AS DIRECTED ON JULY 22, 1963. ON JULY 8, 1963, YOU WERE TEMPORARILY APPOINTED COMMANDER IN THE SUPPLY CORPS OF THE U.S. NAVY, PURSUANT TO THE PROVISIONS OF 10 U.S.C. 5773, RETROACTIVELY EFFECTIVE JULY 1, 1963, TO RANK FROM JULY 1, 1963, WHICH APPOINTMENT YOU ACCEPTED ON JULY 23, 1963.

THE RECORD SHOWS THAT INCIDENT TO THE ORDERS OF MAY 20, 1963, YOU MADE FOUR SHIPMENTS OF HOUSEHOLD EFFECTS, WHICH HAD A TOTAL NET WEIGHT OF 10,687 POUNDS. YOUR EXCESS COST WAS COMPUTED TO BE $110.06, BASED ON THE AUTHORIZED WEIGHT ALLOWANCE OF 9,500 POUNDS AS A LIEUTENANT COMMANDER. YOU BASE YOUR CLAIM FOR A PARTIAL REFUND ON THE FACT THAT ON THE EFFECTIVE DATE OF THE ORDERS OF MAY 20, 1963, YOUR GRADE WAS THAT OF A COMMANDER AND YOUR AUTHORIZED WEIGHT ALLOWANCE WAS 10,000 POUNDS INSTEAD OF 9,500 POUNDS USED IN THE COMPUTATION. ON THAT BASIS YOU COMPUTE YOUR EXCESS COST TO BE $63.54 RATHER THAN $110.06 AND CLAIM REFUND OF $46.52.

PARAGRAPH 8003 OF THE JOINT TRAVEL REGULATIONS AS THEN IN EFFECT, PROMULGATED PURSUANT TO STATUTORY AUTHORITY, 37 U.S.C. 406, LISTS THE PERMANENT CHANGE OF STATION WEIGHT ALLOWANCES FOR LIEUTENANT COMMANDERS AND COMMANDERS OF THE NAVY TO BE 9,500 AND 10,000 POUNDS, RESPECTIVELY. THE FIRST FOOTNOTE TO THAT PARAGRAPH PROVIDES THAT THE WEIGHT ALLOWANCE OF A MEMBER WILL BE BASED ON THE GRADE OR RATING HELD BY HIM ON THE DATE THE ORDERS AUTHORIZING SHIPMENT OF HOUSEHOLD EFFECTS BECOME EFFECTIVE. PARAGRAPH 3003-1B OF THE REGULATIONS PROVIDES THAT THE EFFECTIVE DATE OF ORDERS IS THE DATE OF THE MEMBER'S RELIEF (DETACHMENT) FROM THE OLD STATION, EXCEPT WHEN LEAVE OR DELAY PRIOR TO REPORTING TO THE NEW STATION IS AUTHORIZED IN THE ORDERS OR THE MEMBER IS GRANTED ADDITIONAL TRAVEL TIME TO PERMIT TRAVEL BY A SPECIFIC MODE OF TRANSPORTATION, THE AMOUNT OF SUCH LEAVE, DELAY, OR ADDITIONAL TRAVEL TIME WILL BE ADDED TO THE DATE OF RELIEF (DETACHMENT) TO DETERMINE THE EFFECTIVE DATE. SECTION 5775 OF TITLE 10, U.S.C.PROVIDES IN PERTINENT PART THAT EACH OFFICER WHO IS PROMOTED UNDER SECTION 5773 OF THAT TITLE IS ENTITLED TO THE PAY AND ALLOWANCES OF THE GRADE TO WHICH PROMOTED FROM THE DATE ON WHICH HIS RUNNING MATE IN THAT GRADE BECAME ELIGIBLE FOR PROMOTION TO THAT GRADE.

IN DECISION B-153797, DATED JULY 21, 1964, COPY ENCLOSED, CONSIDERING A SOMEWHAT SIMILAR CASE, WE STATED THAT THE PROVISIONS OF 37 U.S.C. 406 DO NOT PROVIDE TRANSPORTATION OF HOUSEHOLD EFFECTS IN THE FORM OF A MONETARY ALLOWANCE BUT AUTHORIZE SUCH TRANSPORTATION ON AN IN-KIND BASIS, AND CONSEQUENTLY, UNDER THE RULING STATED IN 22 COMP. GEN. 1107, THE PROVISIONS OF 10 U.S.C. 5775 DO NOT OPERATE TO CREATE ENTITLEMENT OF THE WEIGHT ALLOWANCES OF THE HIGHER GRADE FROM THE DATE OF THE APPOINTMENT IF PRIOR TO DATE OF RECEIPT OF NOTICE OF PROMOTION, OF THE APPOINTMENT IF PRIOR TO DATE OF RECEIPT OF NOTICE OF PROMOTION, THE OFFICER BEING PRESUMED TO BE FUNCTIONING IN THE LOWER GRADE UNTIL RECEIPT OF SUCH NOTICE. WE THEREFORE HELD THAT SINCE THE EFFECTIVE DATE OF THE OFFICER'S CHANGE OF STATION ORDERS WAS JANUARY 2, 1962, AND THE ORDERS ANNOUNCING HIS APPOINTMENT TO CAPTAIN WERE NOT ISSUED UNTIL JANUARY 9, 1962, HE WAS LIMITED TO THE WEIGHT ALLOWANCE PRESCRIBED FOR THE LOWER GRADE ON THE EFFECTIVE DATE OF ORDERS.

IN 22 COMP. GEN. 1107, AT PAGE 1109, IT WAS STATED THAT AN OFFICER, PRIOR TO RECEIPT OF INFORMATION OR KNOWLEDGE OF A TEMPORARY PROMOTION, WEARS THE INSIGNIA OF THE LOWER RANK IN WHICH HE IS SERVING, HAS PRECEDENCE IN SUCH LOWER RANK, AND ACTUALLY RECEIVES THE ALLOWANCES PRESCRIBED IN KIND OF SUCH LOWER RANK. IN YOUR CASE, ALTHOUGH THE ORDERS ANNOUNCING YOUR TEMPORARY APPOINTMENT TO COMMANDER WERE ISSUED JULY 8, 1963, THEY APPARENTLY WERE DELIVERED TO YOU ON JULY 23, 1963, AFTER YOU ARRIVED AT YOUR DUTY STATION ON JULY 22, 1963, AND THERE IS NOTHING IN THE RECORD TO INDICATE THAT YOU OTHERWISE RECEIVED NOTICE OF YOUR PROMOTION PRIOR TO THAT DATE. ACCORDINGLY, IN THE ABSENCE OF EVIDENCE THAT YOU HAD KNOWLEDGE OF YOUR TEMPORARY APPOINTMENT TO COMMANDER PRIOR TO THE EFFECTIVE DATE OF THE ORDERS OF MAY 20, 1963, IT MUST BE HELD THAT YOU WERE LIMITED TO THE WEIGHT ALLOWANCE PRESCRIBED FOR A LIEUTENANT COMMANDER IN THE SHIPMENT OF YOUR HOUSEHOLD EFFECTS TO BRUNSWICK, MAINE, INCIDENT TO SUCH ORDERS. THEREFORE, ON THE BASIS OF THE PRESENT RECORD, THE CHECK AGE OF THE EXCESS COST IN THE AMOUNT OF $110.06 WAS PROPER.