B-155769, FEB. 10, 1965

B-155769: Feb 10, 1965

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USAF: REFERENCE IS MADE TO YOUR LETTER DATED DECEMBER 2. YOU WERE RELIEVED FROM ASSIGNMENT WITH THAT UNIT AND WERE ASSIGNED TO 839TH AIR DIVISION. THE EFFECTIVE DATE OF STRENGTH ACCOUNTABILITY WAS STATED TO BE SEPTEMBER 10. YOUR TRANSFER TO THE UNITED STATES WAS POSTPONED. YOUR ASSIGNMENT TO SEWARD AIR FORCE BASE WAS CANCELLED AND THE DATE YOU WERE ELIGIBLE TO RETURN FROM OVERSEAS WAS EXTENDED TO AUGUST 6. THIS WAS CONFIRMED BY PARAGRAPH 1. YOUR CLAIM FOR TEMPORARY LODGING ALLOWANCE WAS ADMINISTRATIVELY DENIED FOR THE REASON THAT SUCH ALLOWANCES ARE PAYABLE FOR A PERIOD OF 60 DAYS OR LESS WHEN AN INDIVIDUAL FIRST ARRIVES AT A NEW STATION OF ASSIGNMENT OVERSEAS. NO CHANGE OF STATION ASSIGNMENT WAS EFFECTED IN 1963.

B-155769, FEB. 10, 1965

TO MASTER SERGEANT JAMES A. HYATT, USAF:

REFERENCE IS MADE TO YOUR LETTER DATED DECEMBER 2, 1964, REQUESTING RECONSIDERATION OF OUR SETTLEMENT OF JULY 21, 1964, WHICH DISALLOWED YOUR CLAIM FOR TEMPORARY LODGING ALLOWANCE FOR A 60-DAY PERIOD COMMENCING AUGUST 17, 1963.

BY SPECIAL ORDER NO. A-506, HEADQUARTERS 66TH TACTICAL RECONNAISSANCE WING (USAFE), UNITED STATES AIR FORCE, APO 17, NEW YORK, NEW YORK, DATED JULY 8, 1963, YOU WERE RELIEVED FROM ASSIGNMENT WITH THAT UNIT AND WERE ASSIGNED TO 839TH AIR DIVISION, TAC, SEWARD AIR FORCE BASE, TENNESSEE, TO REPORT NOT LATER THAN 33 DAYS AFTER DEPARTURE FROM THE CONTINENTAL UNITED STATES PORT OF ENTRY. THE EFFECTIVE DATE OF STRENGTH ACCOUNTABILITY WAS STATED TO BE SEPTEMBER 10, 1963. IT APPEARS THAT DUE TO YOUR MARRIAGE ON AUGUST 17, 1963, AND THE SUBSEQUENT HOSPITALIZATION OF YOUR WIFE AND YOURSELF, YOUR TRANSFER TO THE UNITED STATES WAS POSTPONED. BY MESSAGE FROM HEADQUARTERS, UNITED STATES AIR FORCES IN EUROPE, APO 653, DATED SEPTEMBER 12, 1963, YOUR ASSIGNMENT TO SEWARD AIR FORCE BASE WAS CANCELLED AND THE DATE YOU WERE ELIGIBLE TO RETURN FROM OVERSEAS WAS EXTENDED TO AUGUST 6, 1964. THIS WAS CONFIRMED BY PARAGRAPH 1, SPECIAL ORDER NO. A- 716, DATED SEPTEMBER 23, 1963, AND PARAGRAPH 3, SPECIAL ORDER NO. P-228, DATED SEPTEMBER 27, 1963.

YOU STATE THAT AS A RESULT OF YOUR TOUR BEING EXTENDED 1 YEAR, YOU AND YOUR DEPENDENTS HAD TO LIVE IN A HOTEL WHILE YOU LOOKED FOR ADEQUATE HOUSING AND THAT ON JANUARY 10, 1964, YOU MOVED INTO AN APARTMENT. YOUR CLAIM FOR TEMPORARY LODGING ALLOWANCE WAS ADMINISTRATIVELY DENIED FOR THE REASON THAT SUCH ALLOWANCES ARE PAYABLE FOR A PERIOD OF 60 DAYS OR LESS WHEN AN INDIVIDUAL FIRST ARRIVES AT A NEW STATION OF ASSIGNMENT OVERSEAS, AND SINCE YOU HAD BEEN ASSIGNED TO YOUR OVERSEAS STATION IN AUGUST 1961, AND NO CHANGE OF STATION ASSIGNMENT WAS EFFECTED IN 1963, YOU DID NOT QUALIFY FOR SUCH ALLOWANCE. YOUR CLAIM WAS SUBSEQUENTLY TRANSMITTED TO OUR OFFICE FOR SETTLEMENT, AND BY SETTLEMENT DATED JULY 21, 1964, IT WAS DISALLOWED FOR THE REASONS STATED THEREIN.

IN YOUR LETTER OF DECEMBER 2, 1964, YOU CONTEND THAT A CHANGE OF STATION IS IRRELEVANT IN DETERMINING YOUR CLAIM, ALTHOUGH YOU ALLEGE SUCH CHANGE DID OCCUR ON THE MORNING REPORT AND YOUR HAND BAGGAGE WAS SHIPPED. HOWEVER, YOU BELIEVE THAT THE PHRASE "UPON INITIAL ARRIVAL" AS CONTAINED IN THE JOINT TRAVEL REGULATIONS COVERING TEMPORARY LODGING ALLOWANCE REFERS TO THE ARRIVAL OF DEPENDENTS, AND SINCE THAT OCCURRED WHEN YOUR TOUR WAS CHANGED TO AN "ACCOMPANIED STATUS," YOU ARE ENTITLED TO THE TEMPORARY LODGING ALLOWANCE.

THE PERTINENT STATUTE, 37 U.S.C. 405, 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 UNDER THEIR JURISDICTION AND THEIR DEPENDENTS, 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. PARAGRAPH 4303 OF THE JOINT TRAVEL REGULATIONS, ISSUED PURSUANT THERETO, AND IN EFFECT DURING THE PERIOD OF YOUR CLAIM AUTHORIZES A TEMPORARY LODGING ALLOWANCE FOR A PERIOD OF NOT TO EXCEED 60 DAYS UPON INITIAL ASSIGNMENT TO A PERMANENT STATION OUTSIDE THE UNITED STATES AND FOR A PERIOD NOT TO EXCEED 10 DAYS IMMEDIATELY PRECEDING DEPARTURE FROM A PERMANENT STATION OUTSIDE THE UNITED STATES ON CHANGE OF STATION DURING WHICH PERIODS THE MEMBER AND/OR HIS DEPENDENTS ARE REQUIRED TO OCCUPY HOTEL OR HOTEL-LIKE ACCOMMODATIONS. IT PROVIDES THAT ENTITLEMENT TO THE INITIAL 60-DAY ALLOWANCE BEGINS ON THE DAY OF ARRIVAL OF THE MEMBER, OR THE DAY OF ARRIVAL OF ONE OR MORE OF HIS DEPENDENTS IN CASES WHERE DEPENDENTS ARRIVE AT OR IN THE VICINITY OF THE MEMBER'S PERMANENT DUTY STATION OUTSIDE THE UNITED STATES IN ADVANCE OF THE MEMBER, AND THAT THE PERIOD FOR ALLOWANCE UPON DEPARTURE WILL BE THE LAST 10 DAYS PRECEDING THE MEMBER'S DEPARTURE UNDER PERMANENT CHANGE OF STATION ORDERS, OR IN CERTAIN CIRCUMSTANCES THE DEPARTURE UNDER PERMANENT CHANGE OF STATION ORDERS, OR IN CERTAIN CIRCUMSTANCES THE DEPARTURE OF THE DEPENDENTS. NO PROVISION IS MADE FOR THE COMMENCEMENT OF SUCH ALLOWANCES AT THE TIME DEPENDENTS ARRIVE, IF THEY ARRIVE AFTER THE MEMBER REPORTED AT HIS OVERSEAS STATION, ALTHOUGH COMMENCING APRIL 20, 1964, PARAGRAPH 4303- 2B OF THE JOINT TRAVEL REGULATIONS WAS AMENDED TO GRANT A MEMBER WITH DEPENDENTS, WHEN HE ARRIVES AT AN OVERSEAS STATION PRIOR TO THE ARRIVAL OF HIS DEPENDENTS, THE RIGHT TO ELECT TO HAVE TEMPORARY LODGING ALLOWANCE COMMENCE EITHER ON HIS OWN ARRIVAL OR UPON THE ARRIVAL OF ONE OR MORE OF HIS DEPENDENTS.

UNDER THE CITED REGULATIONS IN EFFECT BEFORE APRIL 20, 1964, THE RIGHT TO TEMPORARY LODGING ALLOWANCE IS A RIGHT FIXED AND ESTABLISHED AS OF A DATE NO LATER THAN THAT OF A MEMBER'S ARRIVAL AT HIS DUTY STATION, MAKING IT MANDATORY THAT THE PERIOD OF ENTITLEMENT COMMENCE UPON HIS ARRIVAL, OR PRIOR THERETO, AND THAT ANY MEMBER WHO ARRIVES AT HIS OVERSEAS STATION PRIOR TO APRIL 20, 1964, 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.

DECISION

ALTHOUGH YOUR ORDERS OF JULY 8, 1963, DIRECTED A PERMANENT CHANGE OF STATION, THEIR CANCELLATION PRIOR TO YOUR DEPARTURE FROM THE OLD STATION HAD THE EFFECT OF EXTENDING YOUR PRIOR ASSIGNMENT THERE. SINCE YOU WERE ASSIGNED TO YOUR OVERSEAS STATION IN AUGUST 1961 AND NO EFFECTIVE CHANGE OF STATION ASSIGNMENT WAS MADE IN 1963, THERE WAS NO INITIAL ASSIGNMENT FOR YOU AT AN OVERSEAS DUTY STATION UNDER THE 1963 ORDERS AS REQUIRED UNDER THE PROVISIONS OF THE CITED REGULATIONS IN EFFECT PRIOR TO APRIL 20, 1964, TO QUALIFY YOU FOR TEMPORARY LODGING ALLOWANCE FOR THE TIME YOU AND YOUR DEPENDENTS RESIDED IN A HOTEL SUBSEQUENT TO YOUR MARRIAGE. ACCORDINGLY, YOU WERE NOT ELIGIBLE FOR TEMPORARY LODGING ALLOWANCE FOR THE PERIOD OF YOUR CLAIM AND THE SETTLEMENT OF JULY 21, 1964, DISALLOWING YOUR CLAIM WAS CORRECT AND IS SUSTAINED.

WITH RESPECT TO YOUR INQUIRY CONCERNING YOUR ENTITLEMENT TO THE TEMPORARY LODGING ALLOWANCE INCIDENT TO BEING TRANSFERRED TO THE UNITED STATES ON AUGUST 14, 1964, YOU STATE THAT YOUR FAMILY REMAINED IN THE APARTMENT MENTIONED IN YOUR PREVIOUS CORRESPONDENCE AND THAT YOU MAINTAINED YOUR BILLET IN THE BARRACKS, PRESUMABLY UNTIL YOUR DEPARTURE FOR THE UNITED STATES. SINCE, AS INDICATED ABOVE, THE TEMPORARY LODGING ALLOWANCE IS AUTHORIZED ONLY FOR PERIODS OF OCCUPANCY OF HOTEL OR HOTEL-LIKE ACCOMMODATIONS, NO AUTHORITY WOULD EXIST FOR ITS PAYMENT TO YOU IN THOSE CIRCUMSTANCES.