B-156826, AUG. 5, 1965

B-156826, AUG. 5, 1965

TO JEAN C. WINFREE, CMA2, 605 20 09:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 8, 1965, REQUESTING RECONSIDERATION OF YOUR CLAIM FOR FAMILY SEPARATION ALLOWANCE FOR THE PERIOD OCTOBER 1963 TO OCTOBER 12, 1964, WHICH WAS DISALLOWED BY SETTLEMENT DATED MAY 4, 1965.

THE RECORD SHOWS THAT AT THE TIME YOU REPORTED TO THE U.S. NAVAL AIR FACILITY, NAPLES, ITALY, IN SEPTEMBER 1963 YOU DID NOT INDICATE THAT YOU DESIRED AN "ALL OTHERS" TOUR IN LIEU OF THE "WITH DEPENDENTS" TOUR AND YOUR FIRST REQUEST OF RECORD FOR AN "ALL OTHERS" TOUR WAS ON OCTOBER 13, 1964. IN YOUR LETTER OF MAY 8, 1965, YOU CONTEND THAT YOU APPLIED FOR THE "ALL OTHERS" TOUR WITHIN 30 DAYS OF APRIL 1, 1964, BUT PERSONNEL AT THE NAVAL AIR FACILITY WOULD NOT LET YOU APPLY IN WRITING SINCE THEY WERE INSTRUCTED NOT TO BOTHER WITH UNMARRIED PEOPLE APPLYING FOR THE FAMILY SEPARATION ALLOWANCE.

THE PERTINENT STATUTE, 37 U.S.C. 427 (B), AS ADDED BY SECTION 11 OF THE UNIFORM SERVICES PAY ACT OF 1963, APPROVED OCTOBER 2, 1963, PUB.L. 88-132, 77 STAT. 217, PROVIDES FOR PAYMENT OF FAMILY SEPARATION ALLOWANCE OF $30 A MONTH TO CERTAIN MEMBERS UNDER SPECIFIED CIRCUMSTANCES INCLUDING CASES WHERE THE MOVEMENT OF DEPENDENTS TO THE MEMBERS' PERMANENT STATION OR A PLACE NEAR THAT STATION IS NOT AUTHORIZED AT THE EXPENSE OF THE UNITED STATES UNDER SECTION 406 OF THE SAME TITLE AND THE DEPENDENTS DO NOT RESIDE AT OR NEAR THAT STATION. SEE PARAGRAPH 3B, SECNAV INSTRUCTION 7220.46A DATED MARCH 27, 1964. SECTION 406 OF TITLE 37, UNITED STATES CODE, PROVIDES IN EFFECT THAT A MEMBER OF THE UNIFORMED SERVICES WHO IS ORDERED TO MAKE A PERMANENT CHANGE OF STATION IS ENTITLED TO TRANSPORTATION IN KIND FOR HIS DEPENDENTS, REIMBURSEMENT THEREFOR, OR A MONETARY ALLOWANCE IN PLACE OF THAT TRANSPORTATION SUBJECT TO SUCH CONDITIONS AND LIMITATIONS, FOR SUCH GRADES AND RATINGS, AND TO AND FROM SUCH PLACES AS MAY BE PRESCRIBED BY THE SECRETARIES CONCERNED. THE CONDITIONS AND LIMITATIONS ARE SET FORTH IN CHAPTER 7 OF THE JOINT TRAVEL REGULATIONS.

PARAGRAPH 4G, SECNAV INSTRUCTION 7220.46A, PRESCRIBES REGULATIONS FOR PAYMENT OF FAMILY SEPARATION ALLOWANCE INCIDENT TO AN OVERSEAS ASSIGNMENT DEPENDING ON WHETHER THE MEMBER ELECTED UNDER BUPERS INSTRUCTION 1300.26C DATED MARCH 27, 1964 (SUPERSEDED BY 1300.26D DATED SEPTEMBER 25, 1964), TO SERVE THE LONGER TOUR PRESCRIBED FOR VARIOUS OVERSEAS STATIONS WHEN "WITH DEPENDENTS" OR THE SHORTER "ALL OTHERS" TOUR UNDER WHICH THE MOVEMENT OF DEPENDENTS TO THE OVERSEAS STATION IS NOT AUTHORIZED AT GOVERNMENT EXPENSE. PARAGRAPH 3A OF BUPERS INSTRUCTION 1300.26C DEFINED OVERSEAS DUTY FOR THE PURPOSE OF THAT INSTRUCTION AS MILITARY DUTY PERFORMED WHILE ASSIGNED TO A MILITARY INSTALLATION OR ACTIVITY PERMANENTLY LOCATED AT A LAND STATION OUTSIDE THE UNITED STATES OR IN ALASKA OR HAWAII. PARAGRAPH 6G OF THE SAME INSTRUCTION PROVIDED THAT IF A MEMBER WAS ON DUTY, OR EN ROUTE TO AN OVERSEAS DUTY STATION ON APRIL 1, 1964, HE WOULD BE GIVEN 30 DAYS FROM THAT DATE, OR 30 DAYS FROM THE DATE HE REPORTED TO HIS OVERSEAS DUTY STATION, WHICHEVER WAS LATER, TO SELECT THE "ALL OTHERS" OR "WITH DEPENDENTS" TOUR. IF HE SELECTED THE "ALL OTHERS" TOUR, HIS ORDERS WERE TO BE MODIFIED TO THE EFFECT THAT TRANSPORTATION OF HIS DEPENDENTS TO HIS DUTY STATION WAS NOT AUTHORIZED.

IT IS ADMINISTRATIVELY REPORTED THAT IN APRIL 1964, YOU APPARENTLY WERE TOLD BY A CHIEF YEOMAN THAT YOU WERE NOT ELIGIBLE FOR THE FAMILY SEPARATION ALLOWANCE BUT IT WAS NOT UNTIL OCTOBER 13, 1964, THAT YOU MADE YOUR FIRST OFFICIAL REQUEST TO THE PERSONNEL OFFICE FOR AN "ALL OTHERS" TOUR. IT IS ALSO ADMINISTRATIVELY REPORTED THAT ALL PERSONNEL YEOMEN HAVE STANDING INSTRUCTIONS TO PROCESS ANY LEGITIMATE REQUEST PROMPTLY AND ALTHOUGH ERRORS OCCUR, EVERY EFFORT IS MADE TO KEEP THEM TO A MINIMUM. IS REGRETTED IF YOU WERE MISINFORMED AS TO YOUR RIGHTS IN THE MATTER, BUT IT IS WELL ESTABLISHED THAT, IN THE ABSENCE OF SPECIFIC STATUTORY PROVISIONS TO THE CONTRARY, THE UNITED STATES IS NOT LIABLE FOR THE NEGLIGENT ACTIONS OF ITS OFFICERS, AGENTS OR EMPLOYEES EVEN THOUGH COMMITTED IN THE PERFORMANCE OF THEIR OFFICIAL DUTIES. ROBERTSON V. SICHEL, 127 U.S. 507, 515. FOR THIS REASON AND SINCE THERE IS NO RECORD THAT YOU ELECTED THE "ALL OTHERS" TOUR PRIOR TO OCTOBER 13, 1964, YOU ARE NOT ENTITLED TO PAYMENT OF THE FAMILY SEPARATION ALLOWANCE FOR ANY PERIOD BEFORE THAT DATE.

ACCORDINGLY, THE DISALLOWANCE OF YOUR CLAIM WAS CORRECT AND IS SUSTAINED.