B-154730, AUGUST 25, 1964, 44 COMP. GEN. 102

B-154730: Aug 25, 1964

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THE DATE THE JOINT TRAVEL REGULATIONS WERE CHANGED TO GIVE MEMBERS A RIGHT TO ELECT A POSTPONEMENT OF THE START OF THE PERIOD OF ENTITLEMENT FOR TEMPORARY LODGING ALLOWANCE PAYMENTS UNTIL THE DEPENDENTS ARRIVE. MUST BE REGARDED AS HAVING HIS RIGHT FIXED UNDER THE FORMER REGULATIONS WHEN IT WAS MANDATORY THAT THE TEMPORARY LODGING ALLOWANCE BEGIN UPON ARRIVAL OF THE MEMBER. THE MEMBER IS NOT ENTITLED TO POSTPONE THE COMMENCEMENT OF THE TIME FOR THE TEMPORARY LODGING ALLOWANCE. 1964: FURTHER REFERENCE IS MADE TO LETTER OF JUNE 26. REQUESTING A DECISION ON CERTAIN QUESTIONS WHICH HAVE ARISEN IN CONNECTION WITH A REVISION OF PARAGRAPH 4303-2B OF THE JOINT TRAVEL REGULATIONS. WILL NOT EXCEED 60 DAYS.

B-154730, AUGUST 25, 1964, 44 COMP. GEN. 102

STATION ALLOWANCES - MILITARY PERSONNEL - TEMPORARY LODGINGS - TIME LIMITATION - COMMENCEMENT POSTPONEMENT A MEMBER OF THE UNIFORMED SERVICES WHO ARRIVED AT HIS OVERSEAS DUTY STATION WITHOUT HIS DEPENDENTS PRIOR TO APRIL 20, 1964, THE DATE THE JOINT TRAVEL REGULATIONS WERE CHANGED TO GIVE MEMBERS A RIGHT TO ELECT A POSTPONEMENT OF THE START OF THE PERIOD OF ENTITLEMENT FOR TEMPORARY LODGING ALLOWANCE PAYMENTS UNTIL THE DEPENDENTS ARRIVE, MUST BE REGARDED AS HAVING HIS RIGHT FIXED UNDER THE FORMER REGULATIONS WHEN IT WAS MANDATORY THAT THE TEMPORARY LODGING ALLOWANCE BEGIN UPON ARRIVAL OF THE MEMBER, AND, THEREFORE, EVEN THOUGH THE MEMBER'S DEPENDENTS DID NOT ARRIVE AT THE OVERSEAS STATION UNTIL AFTER APRIL 20, 1964, THE MEMBER IS NOT ENTITLED TO POSTPONE THE COMMENCEMENT OF THE TIME FOR THE TEMPORARY LODGING ALLOWANCE.

TO THE SECRETARY OF THE NAVY, AUGUST 25, 1964:

FURTHER REFERENCE IS MADE TO LETTER OF JUNE 26, 1964, AND ENCLOSURE, FROM THE UNDER SECRETARY OF THE NAVY, FORWARDED HERE BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE (PDTATAC CONTROL NO. 64 23) ON JUNE 30, 1964, REQUESTING A DECISION ON CERTAIN QUESTIONS WHICH HAVE ARISEN IN CONNECTION WITH A REVISION OF PARAGRAPH 4303-2B OF THE JOINT TRAVEL REGULATIONS.

THAT PARAGRAPH REVISED EFFECTIVE APRIL 20, 1964, PROVIDES:

B. ALLOWANCE UPON INITIAL ASSIGNMENT. THE PERIOD OF ENTITLEMENT, UPON INITIAL ASSIGNMENT TO A PERMANENT DUTY STATION OUTSIDE THE UNITED STATES OR UPON TRANSFER BETWEEN PERMANENT STATIONS OUTSIDE THE UNITED STATES REQUIRING CHANGE IN RESIDENCE, WILL NOT EXCEED 60 DAYS. A MEMBER WHO ARRIVES AT AN OVERSEAS STATION PRIOR TO THE ARRIVAL OF HIS DEPENDENTS MAY, AT HIS OPTION, ELECT TO HAVE THE TEMPORARY LODGING ALLOWANCE COMMENCE EITHER UPON HIS ARRIVAL OR UPON THE ARRIVAL OF ONE OR MORE OF HIS DEPENDENTS. THE RULES GOVERNING THE DAYS OF COMMENCEMENT OF ALLOWANCES IN PAR. 4301 ARE ALSO APPLICABLE TO THE TEMPORARY LODGING ALLOWANCE. WHEN A MEMBER WITH DEPENDENTS IS ENTITLED TO TRAVEL PER DIEM OR MILEAGE ON THE DAY OF ARRIVAL, NO ENTITLEMENT FOR TEMPORARY LODGING ALLOWANCE FOR THE MEMBER HIMSELF EXISTS FOR THAT DAY. THE NUMBER OF DEPENDENTS ACTUALLY OCCUPYING HOTEL ACCOMMODATIONS WILL DETERMINE THE RATE PAYABLE FOR THAT DAY UNDER SUBPAR. 3A.

THE CHANGE IN THE PROVISIONS OF THAT PARAGRAPH IS CONTAINED IN THE SECOND SENTENCE WHICH GRANTS A MEMBER WITH DEPENDENTS WHO ARRIVES AT AN OVERSEAS DUTY STATION PRIOR TO THE ARRIVAL OF HIS DEPENDENTS THE RIGHT TO ELECT TO DRAW TEMPORARY LODGING ALLOWANCES EITHER ON HIS OWN REQUIREMENTS ON ARRIVAL OR ON THE REQUIREMENTS OF HIS DEPENDENTS WHO ARRIVE AT A LATER DATE. THE UNDER SECRETARY STATES THAT THIS CHANGE WAS MADE DUE TO INDICATIONS THAT THE FREQUENT DELAYED ARRIVAL OF DEPENDENTS WAS RESULTING IN HEAVY FINANCIAL DISTRESS CAUSED BY THE REQUIRED USE OF HOTELS AND RESTAURANTS FOR THE WHOLE FAMILY PENDING ARRIVAL OF HOUSEHOLD GOODS AND DELIVERY INTO QUARTERS. HE FURTHER STATES THAT THE DELAY IN ARRIVAL OF HOUSEHOLD GOODS IS USUALLY UNAVOIDABLE SINCE HOUSEHOLD GOODS ARE REQUIRED IN THE UNITED STATES UNTIL DEPARTURE OF DEPENDENTS FROM THEIR RESIDENCES AND PERSONAL TRAVEL IS ALWAYS ACCOMPLISHED MORE EXPEDITIOUSLY THAN THE MOVEMENT OF HOUSEHOLD GOODS.

THE UNDER SECRETARY SAYS THAT QUESTION HAS ARISEN IN THE CASE OF AN AIR FORCE OFFICER ASSIGNED TO THE UNITED STATES AIR FORCE MISSION TO VENEZUELA WHO REPORTED FOR DUTY AT HIS OVERSEAS STATION ON PERMANENT CHANGE OF STATION FROM HEADQUARTERS, UNITED STATES AIR FORCE, ON FEBRUARY 8, 1964, AS AN UNACCOMPANIED MEMBER. HIS FAMILY WAS LEFT IN THE UNITED STATES BY PERSONAL PREFERENCE UNTIL JUNE 15, 1964, TO PERMIT HIS CHILDREN TO COMPLETE THE SCHOOL YEAR. IT IS STATED FURTHER THAT ALTHOUGH FAMILY HOUSING MAY BE OBTAINED PRIOR TO THE ARRIVAL OF DEPENDENTS, SUCH HOUSING CANNOT BE OCCUPIED UNTIL THE ARRIVAL OF THE MEMBER'S FURNITURE PRESENTLY BEING USED BY HIS DEPENDENTS IN THE UNITED STATES, AND THAT THE ARRIVAL OF THE FURNITURE AT HIS OVERSEAS DUTY STATION WILL BE DELAYED APPROXIMATELY 30 DAYS BEYOND THE DATE OF ARRIVAL OF DEPENDENTS. IT IS INDICATED THAT ALTHOUGH ENTITLED THERETO, THE MEMBER HAS NEITHER CLAIMED NOR DRAWN TEMPORARY LODGING ALLOWANCES IN HIS OWN RIGHT UPON HIS ARRIVAL IN THE HOPE THAT HE COULD CLAIM AND DRAW SUCH AN ALLOWANCE FOR AN EQUIVALENT PERIOD COVERING HIMSELF AND HIS DEPENDENTS UPON THEIR ARRIVAL. THE REGULATIONS DID NOT AT THAT TIME AUTHORIZE AN ELECTION AS TO WHEN THE TEMPORARY LODGING ALLOWANCE PERIOD WOULD BEGIN TO RUN AND THE UNDER SECRETARY POINTS OUT THAT THE OFFICER'S PERIOD OF ENTITLEMENT UNDER THE REGULATIONS IN EFFECT ON THE DATE OF HIS ARRIVAL OVERSEAS TECHNICALLY EXPIRED ON APRIL 7, 1964.

IN RESOLVING THIS AND SIMILAR CASES, OUR DECISION IS REQUESTED ON THE FOLLOWING QUESTIONS:

1. MAY A MEMBER, UNDER THE CIRCUMSTANCES ENUMERATED ABOVE, ELECT TO RECEIVE TEMPORARY LODGING ALLOWANCES SUBSEQUENT TO ARRIVAL OF HIS DEPENDENTS?

2. IF YOUR REPLY IS IN THE NEGATIVE, WOULD YOUR REPLY BE THE SAME IF THE MEMBER'S PERIOD OF ENTITLEMENT AS A MEMBER WITHOUT DEPENDENTS HAD COMMENCED PRIOR TO 20 APRIL 1964, BUT HAD NOT EXPIRED ON THE DATE THE REGULATION WAS AMENDED TO PERMIT AN ELECTION?

3. IF YOUR REPLY IS IN THE AFFIRMATIVE TO QUESTION 1, WOULD YOUR ANSWER BE THE SAME IF THE MEMBER HAD ACCEPTED ALLOWANCES IN HIS OWN RIGHT PRIOR TO 20 APRIL 1964, BUT SEEKS TO REFUND THE AMOUNT RECEIVED IN ORDER TO CLAIM THE GREATER ALLOWANCE?

PARAGRAPH 4303-2B OF THE REGULATIONS, IN EFFECT BEFORE APRIL 20, 1964, PROVIDED THAT A MEMBER'S PERIOD OF ENTITLEMENT TO THE TEMPORARY LODGING ALLOWANCE UPON INITIAL ASSIGNMENT TO A PERMANENT STATION OUTSIDE THE UNITED STATES WOULD NOT EXCEED 60 DAYS. THE 60-DAY PERIOD COMMENCED ON THE DAY OF THE MEMBER'S ARRIVAL (THE NEXT DAY IF WITHOUT DEPENDENTS AND ENTITLED TO MILEAGE OR TRAVEL PER DIEM ON THE DAY OF ARRIVAL), OR, UNDER CERTAIN CIRCUMSTANCES, THE DAY OF ARRIVAL OF HIS DEPENDENTS WHEN THEIR ARRIVAL PRECEDED THAT OF THE MEMBER. UNDER THE REGULATIONS SUCH PERIOD OF ENTITLEMENT WAS CONTINUOUS IN ALL CASES EXCEPT WHEN INTERRUPTED BY THE HOSPITALIZATION OF THE MEMBER OR HIS ASSIGNMENT TO TEMPORARY DUTY, AND CONSEQUENTLY INVOLVED A RIGHT FIXED AND ESTABLISHED AS OF A DATE NO LATER THAN THAT OF THE MEMBER'S ARRIVAL.

UNDER THE QUOTED REVISED PROVISIONS THAT RIGHT WAS CHANGED ONLY TO THE EXTENT THAT EFFECTIVE ON AND AFTER APRIL 20, 1964, THE MEMBER IS GIVEN THE OPTION TO ELECT A POSTPONEMENT OF THE START OF THE PERIOD OF ENTITLEMENT, IF DESIRED, TO THE DATE OF ARRIVAL OF DEPENDENTS WHERE OCCURRING SUBSEQUENT TO THE MEMBER'S ARRIVAL. IT NECESSARILY FOLLOWS THAT ANY MEMBER WHOSE PERIOD OF ENTITLEMENT ACTUALLY COMMENCED UNDER REGULATIONS IN EFFECT PRIOR TO APRIL 20, 1964, COULD HAVE NO RIGHT TO ELECTION THEREAFTER BY VIRTUE OF THE REVISED PROVISIONS OF PARAGRAPH 4303-2B WHICH BECAME EFFECTIVE ON THAT DATE. ACCORDINGLY, ANY MEMBER WHO ARRIVED AT HIS OVERSEAS STATION PRIOR TO APRIL 20, 1964, WHEN THE REGULATIONS THEN IN EFFECT MADE IT MANDATORY THAT THE PERIOD OF ENTITLEMENT TO THE TEMPORARY LODGING ALLOWANCE COMMENCE UPON HIS ARRIVAL, OR PRIOR THERETO, CANNOT ELECT UNDER THE NEW PARAGRAPH 4303-2B OF THE REGULATIONS TO HAVE THE PERIOD OF HIS ENTITLEMENT TO THE ALLOWANCE COMMENCE WHEN HIS DEPENDENTS ARRIVE AT HIS OVERSEAS STATION.

QUESTION 1 IS ANSWERED IN THE NEGATIVE AND THE ANSWER WOULD BE THE SAME UNDER THE CIRCUMSTANCES OF QUESTION 2.

SINCE QUESTION 1 IS ANSWERED IN THE NEGATIVE, NO ANSWER IS REQUIRED TO QUESTION 3.