B-155532, JAN. 18, 1965

B-155532: Jan 18, 1965

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GEARHART: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 12. WERE TRANSMITTED TO OUR OFFICE FOR CONSIDERATION AND REPLY. WHICH YOU BELIEVE MIGHT HAVE SOME BEARING ON YOUR CLAIM. WE DO NOT HAVE A COPY OF THAT ISSUE. IT IS PRESUMED THE ARTICLE YOU MENTIONED REFERRED TO THE PROVISIONS OF PUBLIC LAW 88 238. IT AUTHORIZED PAYMENT OF TRAVEL AND TRANSPORTATION ALLOWANCES TO MEMBERS OF THE UNIFORMED SERVICES WHO HAD PERFORMED TRAVEL BEFORE THE EFFECTIVE DATE OF ORDERS WHICH WERE LATER CANCELLED. REVOKED OR MODIFIED AND IT DIRECTED PAYMENT TO SUCH MEMBERS FOR ANY AMOUNT THEY WOULD HAVE BEEN PAID HAD THE ACT BEEN IN EFFECT DURING THE PERIOD OCTOBER 1. SINCE YOUR HUSBAND'S CLAIM DID NOT PERTAIN TO TRAVEL PERFORMED UNDER ORDERS WHICH WERE LATER CANCELLED OR MODIFIED.

B-155532, JAN. 18, 1965

TO MRS. MARIAN E. GEARHART:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 12, 1964, TO THE U.S. ARMY FINANCE CENTER, INDIANAPOLIS, INDIANA, PERTAINING TO THE CLAIM OF YOUR LATE HUSBAND, GALEN D. GEARHART, REGULAR ARMY, RETIRED, FOR REIMBURSEMENT OF COST OF TRAVEL PERFORMED BY HIS DEPENDENTS FROM REDWOOD CITY, CALIFORNIA, TO WOODBRIDGE, VIRGINIA, FROM JUNE 14 TO 27, 1950, INCIDENT TO SPECIAL ORDERS NO. 153, DATED JUNE 2, 1950. YOUR LETTER AND CLAIM DATED JULY 28, 1964, WERE TRANSMITTED TO OUR OFFICE FOR CONSIDERATION AND REPLY.

YOUR LETTER REFERS TO AN ARTICLE IN THE MARCH 1964 ISSUE OF THE RETIRED ARMY PERSONNEL BULLETIN, RELATIVE TO RETROACTIVE REIMBURSEMENT FOR TRAVEL PAY, WHICH YOU BELIEVE MIGHT HAVE SOME BEARING ON YOUR CLAIM. WE DO NOT HAVE A COPY OF THAT ISSUE, BUT IT IS PRESUMED THE ARTICLE YOU MENTIONED REFERRED TO THE PROVISIONS OF PUBLIC LAW 88 238, APPROVED DECEMBER 23, 1963, 77 STAT. 475. THIS ACT BECAME EFFECTIVE OCTOBER 1, 1949, AND IT AUTHORIZED PAYMENT OF TRAVEL AND TRANSPORTATION ALLOWANCES TO MEMBERS OF THE UNIFORMED SERVICES WHO HAD PERFORMED TRAVEL BEFORE THE EFFECTIVE DATE OF ORDERS WHICH WERE LATER CANCELLED, REVOKED OR MODIFIED AND IT DIRECTED PAYMENT TO SUCH MEMBERS FOR ANY AMOUNT THEY WOULD HAVE BEEN PAID HAD THE ACT BEEN IN EFFECT DURING THE PERIOD OCTOBER 1, 1949, TO DECEMBER 23, 1963. SINCE YOUR HUSBAND'S CLAIM DID NOT PERTAIN TO TRAVEL PERFORMED UNDER ORDERS WHICH WERE LATER CANCELLED OR MODIFIED, THE ACT IS NOT APPLICABLE TO HIS CLAIM. HOWEVER, WE WILL CONSIDER YOUR LETTER AS A REQUEST FOR RECONSIDERATION OF OUR SETTLEMENT OF JANUARY 23, 1953, WHICH DISALLOWED THE CLAIM OF YOUR LATE HUSBAND.

BY PARAGRAPH 27, SPECIAL ORDERS NO. 153, HEADQUARTERS 4TH INFANTRY DIVISION, FORT ORD, CALIFORNIA, DATED JUNE 2, 1950, YOUR HUSBAND, THEN A CORPORAL, WAS RELIEVED FROM ASSIGNMENT WITH COMPANY E, 8TH INFANTRY AT THAT STATION AND WAS TRANSFERRED TO STUDENT DETACHMENT ENGINEER SCHOOL, FORT BELVOIR, VIRGINIA, TO ATTEND A CONSTRUCTION COURSE THERE. HE WAS DIRECTED TO PROCEED ON OR ABOUT JUNE 14, 1950, WAS AUTHORIZED 3 DAYS' DELAY AS LEAVE AND WAS DIRECTED TO REPORT TO THE COMMANDING OFFICER AT FORT BELVOIR PRIOR TO 2400 HOURS ON JUNE 29, 1950. THIS WAS A PERMANENT CHANGE OF STATION AND YOUR HUSBAND WAS AUTHORIZED TO TRAVEL BY PRIVATELY OWNED AUTOMOBILE. THE RECORD SHOWS THAT YOU AND YOUR SON DEPARTED REDWOOD CITY, CALIFORNIA, JUNE 14, 1950, AND ARRIVED AT WOODBRIDGE, VIRGINIA, JUNE 27, 1950.

YOUR HUSBAND'S CLAIM WAS DISALLOWED BY OFFICE SETTLEMENT DATED JANUARY 23, 1953, FOR THE REASON THAT HE HELD THE GRADE OF CORPORAL (FOURTH PAY GRADE) AT THE TIME OF TRANSFER AND UNDER THE PROVISIONS OF SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 365, ONLY ENLISTED MEMBERS ABOVE THE FOURTH PAY GRADE WERE ENTITLED TO TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE UPON A PERMANENT CHANGE OF STATION. THE SETTLEMENT STATED FURTHER THAT EFFECTIVE JUNE 25, 1950, ARMY REGULATIONS WERE AMENDED TO PROVIDE THAT ENLISTED PERSONNEL IN GRADE E-4, WITH 7 OR MORE YEARS' SERVICE WERE ENTITLED TO THE TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE, BUT YOUR HUSBAND WAS NOT ELIGIBLE UNDER SUCH REGULATIONS SINCE THE EFFECTIVE DATE OF HIS ORDERS WAS PRIOR TO THE EFFECTIVE DATE OF THE AMENDED REGULATIONS.

SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 814, PROVIDED THAT UNDER SUCH CONDITIONS AND LIMITATIONS AND FOR SUCH RANKS, GRADES OR RATINGS AND TO AND FROM SUCH LOCATIONS AS MAY BE PRESCRIBED BY THE SECRETARIES CONCERNED, MEMBERS OF THE UNIFORMED SERVICES WHEN ORDERED TO MAKE A PERMANENT CHANGE OF STATION SHALL BE ENTITLED TO TRANSPORTATION IN KIND FOR DEPENDENTS OR TO REIMBURSEMENT THEREFOR, OR TO A MONETARY ALLOWANCE IN LIEU OF SUCH TRANSPORTATION IN KIND. SECTION 303 (H) PROVIDED, HOWEVER, THAT REGULATIONS SHOULD BE PROMULGATED BY THE SECRETARIES OF THE UNIFORMED SERVICES IMPLEMENTING THE PROVISIONS OF SECTION 303 AND THAT NONE OF THE PROVISIONS IN SECTION 303 SHOULD BECOME EFFECTIVE UNTIL SUCH REGULATIONS WERE ISSUED. IT WAS FURTHER PROVIDED THAT THE PAYMENT OF TRAVEL AND TRANSPORTATION ALLOWANCE SHOULD CONTINUE TO BE MADE UNDER PROVISIONS OF LAW IN EFFECT PRIOR TO THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT UNTIL SUCH REGULATIONS WERE ISSUED. JOINT TRAVEL REGULATIONS PROMULGATED PURSUANT TO SECTION 303 BECAME EFFECTIVE APRIL 1, 1951, AFTER THE PERIOD COVERED BY YOUR CLAIM. PRIOR TO APRIL 1, 1951, THE PERTINENT STATUTORY AUTHORITY FOR THE PAYMENT OF TRAVEL AND TRANSPORTATION ALLOWANCES WAS CONTAINED IN PARAGRAPH 5, SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 365, WHICH LIMITED THE RIGHT OF TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE TO ENLISTED MEMBERS ABOVE THE FOURTH PAY GRADE. SINCE DURING THE PERIOD COVERED BY YOUR HUSBAND'S CLAIM HE HELD THE GRADE OF CORPORAL (FOURTH PAY GRADE) HE WAS THEREFORE NOT ELIGIBLE TO HAVE HIS DEPENDENTS TRAVEL AT GOVERNMENT EXPENSE UNDER ORDERS DIRECTING HIS TRAVEL UNDER PERMANENT CHANGE OF STATION ORDERS.

ACCORDINGLY, THE SETTLEMENT OF JANUARY 23, 1953, IS SUSTAINED. THE PAPERS ENCLOSED WITH YOUR LETTER ARE RETURNED.