B-156983, JUL. 8, 1965

B-156983: Jul 8, 1965

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RA 14 144 483: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 4. THE AMOUNT CLAIMED WAS PAID TO YOU AS A MEMBER WITH FOUR DEPENDENTS DURING THE PERIOD OCTOBER 21 THROUGH DECEMBER 20. IS NOW BEING COLLECTED FROM YOUR PAY AS AN ERRONEOUS PAYMENT. THE RECORD SHOWS THAT YOU WERE TRANSFERRED FROM FORT RUCKER. PROVIDED THAT CONCURRENT TRAVEL OF YOUR DEPENDENTS WAS AUTHORIZED PROVIDED YOUR DEPENDENTS WOULD RESIDE AT CORSO LUNGO DORA FIRENZA 19. UNTIL QUARTERS WERE AVAILABLE AT YOUR NEW DUTY STATION. WHICH WERE ISSUED ON THE UNDERSTANDING THAT YOU WOULD ACCEPT A TWO BEDROOM HOUSE WHICH WAS THEN AVAILABLE IN THE VICINITY OF THAT STATION. YOUR PRESENT CONTENTION IS THAT YOUR ASSIGNMENT TO VERDUN WAS CONDITIONED ON QUARTERS BEING AVAILABLE AT YOUR DUTY STATION AND THAT UPON YOUR ARRIVAL AT VERDUN YOU DID NOT RECEIVE SUCH QUARTERS AND HAD TO LIVE IN A HOTEL FROM OCTOBER 22.

B-156983, JUL. 8, 1965

TO SP/5 SANFORD BURNETT, RA 14 144 483:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 4, 1965, IN EFFECT REQUESTING REVIEW OF THE SETTLEMENT OF MAY 25, 1965, WHICH DISALLOWED YOUR CLAIM FOR $653 REPRESENTING REFUND OF TEMPORARY LODGING ALLOWANCE INCIDENT TO YOUR ASSIGNMENT TO DUTY AT VERDUN, FRANCE. THE AMOUNT CLAIMED WAS PAID TO YOU AS A MEMBER WITH FOUR DEPENDENTS DURING THE PERIOD OCTOBER 21 THROUGH DECEMBER 20, 1964, AND IS NOW BEING COLLECTED FROM YOUR PAY AS AN ERRONEOUS PAYMENT.

THE RECORD SHOWS THAT YOU WERE TRANSFERRED FROM FORT RUCKER, ALABAMA, TO DUTY AT APO 288 BY PARAGRAPH 3, SPECIAL ORDERS NO. 155, DATED AUGUST 4, 1964, AS AMENDED BY PARAGRAPH 6 OF SPECIAL ORDERS NO. 157, DATED AUGUST 6, 1964, AND TO APO 58 WITH DUTY STATION AT VERDUN, FRANCE, BY PARAGRAPH 2, SPECIAL ORDERS NO. 248, DATED OCTOBER 21, 1964. THE ORDERS OF AUGUST 4, 1964, PROVIDED THAT CONCURRENT TRAVEL OF YOUR DEPENDENTS WAS AUTHORIZED PROVIDED YOUR DEPENDENTS WOULD RESIDE AT CORSO LUNGO DORA FIRENZA 19, TORINE, ITALY, UNTIL QUARTERS WERE AVAILABLE AT YOUR NEW DUTY STATION. THE RECORD SHOWS THAT UPON YOUR ARRIVAL AT TOUL, FRANCE, YOUR NEW DUTY STATION UNDER THOSE ORDERS, YOU REQUESTED ASSIGNMENT WHERE ONE OF YOUR SONS COULD RECEIVE HOSPITALIZATION. THIS REQUEST RESULTED IN YOUR REASSIGNMENT TO VERDUN, FRANCE, BY THE ORDERS OF OCTOBER 21, 1964, WHICH WERE ISSUED ON THE UNDERSTANDING THAT YOU WOULD ACCEPT A TWO BEDROOM HOUSE WHICH WAS THEN AVAILABLE IN THE VICINITY OF THAT STATION.

YOUR PRESENT CONTENTION IS THAT YOUR ASSIGNMENT TO VERDUN WAS CONDITIONED ON QUARTERS BEING AVAILABLE AT YOUR DUTY STATION AND THAT UPON YOUR ARRIVAL AT VERDUN YOU DID NOT RECEIVE SUCH QUARTERS AND HAD TO LIVE IN A HOTEL FROM OCTOBER 22, 1964, UNTIL YOU WERE ABLE TO FIND QUARTERS ON THE FRENCH ECONOMY ON FEBRUARY 8, 1965. FOR THAT REASON YOU CONTEND THAT PARAGRAPH M4303-1 (1) OF THE JOINT TRAVEL REGULATIONS, CITED IN THE SETTLEMENT, DOES NOT APPLY TO YOUR CLAIM.

PARAGRAPH M4303-1 (1) OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT THE TEMPORARY LODGING ALLOWANCE IS AUTHORIZED FOR THE PURPOSE OF PARTIALLY REIMBURSING A MEMBER FOR THE MORE THAN NORMAL EXPENSES INCURRED AT A HOTEL OR HOTEL-LIKE ACCOMMODATIONS UPON INITIAL ARRIVAL AT A PERMANENT DUTY STATION OUTSIDE THE UNITED STATES, AND PENDING ASSIGNMENT OF GOVERNMENT QUARTERS, OR PENDING COMPLETION OF ARRANGEMENTS FOR OTHER PERMANENT LIVING ACCOMMODATIONS WHEN GOVERNMENT QUARTERS ARE NOT AVAILABLE. PARAGRAPH M4303-2 OF THE SAME REGULATIONS PROVIDES THAT THE TEMPORARY LODGING ALLOWANCE IS PAYABLE UPON ARRIVAL IN AN OVERSEAS AREA (IN CONJUNCTION WITH A PERMANENT CHANGE OF STATION) WHEN GOVERNMENT QUARTERS ARE NOT FURNISHED A MEMBER AND HIS DEPENDENTS, THE MEMBER IS REQUIRED TO SECURE TEMPORARY LODGING, AND HOTEL OR HOTEL-LIKE ACCOMMODATIONS ARE ACTUALLY OCCUPIED AT PERSONAL EXPENSE. PARAGRAPH M4300-1 OF THE REGULATIONS PROVIDES THAT THE TERM "MEMBER WITH DEPENDENTS" AS USED IN CONNECTION WITH TEMPORARY LODGING ALLOWANCE MEANS A MEMBER IN PAY GRADE E-4 WITH MORE THAN 4 YEARS' SERVICE AND A MEMBER OF A HIGHER GRADE WHO IS AUTHORIZED BY THE APPROPRIATE MILITARY COMMANDER TO HAVE HIS DEPENDENTS RESIDE "AT OR IN THE VICINITY OF" HIS DUTY STATION OUTSIDE THE UNITED STATES AND HIS DEPENDENTS DO SO RESIDE.

ONE OF THE CONDITIONS PRECEDENT TO PAYMENT OF THE ALLOWANCE IS THAT THE MEMBER HAS MADE APPLICATION FOR TRANSPORTATION OF HIS DEPENDENTS TO HIS OVERSEAS STATION AND THAT THE APPLICATION HAS BEEN APPROVED. IN YOUR CASE CONCURRENT TRAVEL OF YOUR DEPENDENTS TO AN OVERSEAS AREA WAS CONDITIONED ON THEIR RESIDENCE IN ITALY UNTIL QUARTERS WERE AVAILABLE AT YOUR DUTY STATION. HAD YOUR DEPENDENTS RESIDED IN ITALY THERE WOULD BE NO QUESTION THAT THERE WOULD BE NO ENTITLEMENT TO THE TEMPORARY LODGING ALLOWANCE SINCE YOUR STATION UNDER THE ORDERS OF AUGUST 4, 1964, WAS AT TOUL, FRANCE. FURTHER, THE RECORD SHOWS THAT YOUR TRANSFER FROM TOUL TO VERDUN BY THE ORDERS OF OCTOBER 21, 1964, WAS CONDITIONAL ON YOUR ACCEPTANCE OF A TWO BEDROOM RGH HOUSE IN ETAIN, FRANCE. IT IS REPORTED THAT IT WAS EXPLAINED TO YOU THAT THIS HOUSING WOULD BE SMALL FOR THE SIZE OF YOUR FAMILY; THAT IT WAS APPROXIMATELY 15 OR 20 MILES DISTANT FROM YOUR STATION; THAT BUS SERVICE WAS AVAILABLE, AND THAT NO TEMPORARY LODGING ALLOWANCE WOULD BE AUTHORIZED IF YOU ACCEPTED THE ASSIGNMENT. IT IS FURTHER REPORTED THAT AFTER SUCH EXPLANATION OF THE BASIS ON WHICH THE ASSIGNMENT WOULD BE MADE YOU STATED THAT YOU WOULD ACCEPT THE ASSIGNMENT TO VERDUN, THEREFORE THE ORDERS WERE ISSUED. IT IS ADMINISTRATIVELY REPORTED THAT UPON ARRIVAL AT VERDUN YOU WERE OFFERED THE HOUSING AT ETAIN AND THAT IT WAS REFUSED. IT IS REPORTED THAT MRS. BURNETT EXPLAINED TO THE BILLETING OFFICE THAT, BECAUSE OF YOUR CHILD'S HEALTH, HOUSING IN THAT AREA COULD NOT BE ACCEPTED SINCE THE LOCAL HOSPITAL DID NOT HAVE ADEQUATE FACILITIES FOR THE TREATMENT OF A CHILD WITH A HEART CONDITION. THEREFORE, CONTRARY TO YOUR STATEMENTS, THE RECORD SHOWS THAT HOUSING WAS MADE AVAILABLE UPON YOUR ARRIVAL AT VERDUN. HAD YOU ACCEPTED SUCH HOUSING IT WOULD BE REGARDED AS GOVERNMENT HOUSING FOR YOUR DEPENDENTS AT OR IN THE VICINITY OF YOUR STATION. THUS, THE FACT THAT YOUR DEPENDENTS OCCUPIED QUARTERS IN A HOTEL DID NOT ARISE FROM THE FACT THAT GOVERNMENT QUARTERS WERE NOT AVAILABLE AT OR IN THE VICINITY OF YOUR STATION, BUT BECAUSE YOU REFUSED TO OCCUPY THE QUARTERS WHICH WERE OFFERED AND ON WHICH THE ORDERS OF OCTOBER 21, 1964, WERE BASED. ANY ERRONEOUS ADVICE WHICH YOU MAY HAVE RECEIVED WITH RESPECT TO ENTITLEMENT TO TEMPORARY LODGING ALLOWANCE WHILE RESIDING AT THE HOTEL CONSTITUTES NO BASIS FOR THE ALLOWANCE OF YOUR CLAIM.

SINCE THE RECORD SHOWS THAT QUARTERS WERE AVAILABLE AT OR NEAR YOUR STATION UPON YOUR ARRIVAL AT VERDUN, YOU WERE NOT ENTITLED TO A TEMPORARY LODGING ALLOWANCE. ACCORDINGLY, THE SETTLEMENT OF MAY 25, 1965, WAS CORRECT AND IS SUSTAINED.