B-158108, FEB. 21, 1966

B-158108, FEB. 21, 1966

TO LIEUTENANT COLONEL RICHARD A. NALDRETT, USAF:

FURTHER REFERENCE IS MADE TO YOUR CLAIM FOR HOUSING AND COST-OF LIVING ALLOWANCES FOR YOURSELF AND YOUR DEPENDENTS IN BANGKOK, THAILAND, FOR THE PERIOD MARCH 16 TO JUNE 18, 1965.

BY ORDERS DATED FEBRUARY 8, 1965, AS AMENDED, HEADQUARTERS, UNITED STATES MILITARY ASSISTANCE COMMAND VIETNAM, YOUR DEPENDENTS (WIFE AND 2 CHILDREN) WERE DIRECTED TO EVACUATE SAIGON, VIETNAM, AND REPORT FOR TRANSPORTATION TO TEMPORARY LOCATION (SAFE HAVEN) AT BANKGOK, THAILAND, AND SUBSEQUENT RETURN TO CONTINENTAL UNITED STATES.

THE RECORD SHOWS THAT ON FEBRUARY 11, 1965, YOUR DEPENDENTS TRAVELED BY MILITARY AIRCRAFT TO BANGKOK, THAILAND; THAT FURTHER TRANSPORTATION FOR THEIR TRAVEL TO CONTINENTAL UNITED STATES WAS AVAILABLE ON MARCH 15, 1965; AND THAT DUE TO IMPENDING PERMANENT CHANGE OF STATION ORDERS ASSIGNING YOU TO BANGKOK, YOUR DEPENDENTS CHOSE TO REMAIN THERE INSTEAD OF TRAVELING ON TO THE UNITED STATES AND RETURN. IT FURTHER APPEARS THAT THE OVERSEAS COMMAND HAD NO OBJECTION TO PERMITTING YOUR DEPENDENTS TO REMAIN IN BANGKOK IN A MILITARY DEPENDENT STATUS PENDING YOUR TRANSFER THERE, WITH THE UNDERSTANDING THAT SUCH PERMISSION DID NOT CONSTITUTE AUTHORITY TO EXTEND PAYMENT OF EMERGENCY COST-OF-LIVING ALLOWANCES PAST THE DATE TRANSPORTATION TO THE UNITED STATES WAS MADE AVAILABLE; AND THAT YOU WERE PAID THE EMERGENCY COST-OF-LIVING ALLOWANCES FOR YOUR DEPENDENTS FOR THE PERIOD FEBRUARY 11 TO MARCH 15, 1965. BY PERMANENT CHANGE OF STATION ORDERS DATED APRIL 26, 1965, AS AMENDED, YOUR WERE TRANSFERRED TO BANGKOK EFFECTIVE JUNE 18, 1965.

IN YOUR LETTER DATED SEPTEMBER 29, 1965, PRESENTING YOUR CLAIM, YOU SAY THAT THE HOUSING AND COST-OF-LIVING ALLOWANCES FOR BANGKOK SHOULD BE AUTHORIZED BEGINNING MARCH 16, 1965; THAT HAD YOU KNOWN THESE ALLOWANCES WOULD NOT BE AUTHORIZED YOU WOULD HAVE HAD YOUR DEPENDENTS RETURN TO CONTINENTAL UNITED STATES; THAT THE GOVERNMENT EFFECTED A SAVINGS OF APPROXIMATELY $2,000 BECAUSE YOUR DEPENDENTS DID NOT PROCEED TO CONTINENTAL UNITED STATES BY COMMERCIAL CARRIER AS AUTHORIZED, AND A SIMILAR SAVINGS IN THEIR RETURN TRANSPORTATION COSTS AND SHIPMENT OF HOUSEHOLD GOODS AND PRIVATELY OWNED VEHICLE TO CONTINENTAL UNITED STATES AND RETURN TO BANGKOK WAS EFFECTED.

THE CONTROLLING STATUTE, 37 U.S.C. 404, PROVIDES THAT UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, A MEMBER OF A UNIFORMED SERVICE IS ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES UPON A CHANGE OF PERMANENT STATION. IN THIS CONNECTION 37 U.S.C. 405PROVIDES 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, 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.

REGULATIONS PROMULGATED THEREUNDER ARE CONTAINED IN PART G, CHAPTER 4, OF THE JOINT TRAVEL REGULATIONS. PARAGRAPH M4300 THEREOF CLEARLY AUTHORIZES THE PAYMENT OF STATION ALLOWANCES FOR MEMBERS WITH OR WITHOUT DEPENDENTS WHILE RESIDING AT OR IN THE VICINITY OF THE MEMBER'S PERMANENT DUTY STATION OUTSIDE THE UNITED STATES. PARAGRAPH M4300-4 PROVIDES THAT THOSE STATION ALLOWANCES INCLUDE HOUSING AND COST-OF-LIVING ALLOWANCES, INTERIM HOUSING ALLOWANCES AND TEMPORARY LODGING ALLOWANCES. PARAGRAPH M4301-1 OF THE REGULATIONS PROVIDES THAT HOUSING AND COST-OF-LIVING ALLOWANCES ARE AUTHORIZED FOR THE PURPOSE OF DEFRAYING THE AVERAGE EXCESS COSTS EXPERIENCED BY MEMBERS ON PERMANENT DUTY AT PLACES OUTSIDE THE UNITED STATES. REFERRING TO THE COMMENCEMENT OF ENTITLEMENT PROVISIONS OF THE REGULATIONS, PARAGRAPH M4301-4 PROVIDES IN PART AS FOLLOWS:

"4. ARRIVAL OF DEPENDENTS PRIOR TO ARRIVAL OF MEMBER

"B. OLD STATION OUTSIDE UNITED STATES. WHEN OLD STATION IS OUTSIDE THE UNITED STATES, ENTITLEMENT WILL COMMENCE WITH THE DAY OF ARRIVAL OF DEPENDENTS, IF ON OR AFTER THE EFFECTIVE DATE OF ORDERS DIRECTING THE CHANGE OF STATION, OR THE EFFECTIVE DATE OF THE CHANGE-OF-STATION ORDERS, WHICHEVER IS LATER.'

PARAGRAPH M4303-2B OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT THE RULES GOVERNING THE DAYS OF COMMENCEMENT OF HOUSING AND COST-OF-LIVING ALLOWANCES IN PARAGRAPH M4301 OF THOSE REGULATIONS ARE ALSO APPLICABLE TO THE COMMENCEMENT OF PAYMENT OF TEMPORARY LODGING ALLOWANCE.

IN OUR DECISION OF JANUARY 10, 1964, B-152330, 43 COMP. GEN. 505, COPY HEREWITH, WE CONSIDERED THE LEGALITY OF PAYMENT OF TEMPORARY LODGING ALLOWANCE TO MEMBERS WHOSE DEPENDENTS ARRIVED IN THE VICINITY OF THE DESIGNATED HOME PORT OF THE U.S.S. PROVIDENCE (CLG-6), LOCATED OVERSEAS, PRIOR TO THE EFFECTIVE DATE OF THE CHANGE OF THE HOME PORT OF THAT VESSEL TO SUCH DESIGNATED PLACE. WE POINTED OUT THAT TEMPORARY LODGING ALLOWANCE IS AUTHORIZED BY THE REGULATIONS (PARAGRAPH M4303) AS A PERMANENT STATION EMOLUMENT AND THAT A CHANGE IN HOME PORT CONSTITUTES A PERMANENT CHANGE OF STATION INSOFAR AS TRANSPORTATION OF DEPENDENTS OF A MEMBER ATTACHED TO A VESSEL IS CONCERNED. THEREFORE, WE HELD THAT INASMUCH AS THE DEPENDENTS ARRIVED AT THE NEW HOME PORT PRIOR TO THE EFFECTIVE DATE OF THE CHANGE OF HOME PORT, ENTITLEMENT TO THE TEMPORARY LODGING ALLOWANCE COULD NOT COMMENCE UNTIL THE CHANGE OF STATION ORDERS BECAME EFFECTIVE.

SINCE THE HOUSING AND COST-OF-LIVING ALLOWANCES ALSO ARE PERMANENT DUTY STATION EMOLUMENTS AND SINCE YOUR DEPENDENTS ARRIVED AT BANGKOK PRIOR TO THE EFFECTIVE DATE OF YOUR TRANSFER THERE, IT IS CLEAR THAT THE CIRCUMSTANCES IN YOUR CASE ARE COMPARABLE TO THOSE INVOLVED IN OUR DECISION OF JANUARY 10, 1964, AND THEREFORE, THE RULES SET FORTH IN THAT DECISION ARE EQUALLY APPLICABLE HERE. IN THESE CIRCUMSTANCES THERE IS NO AUTHORITY FOR PAYMENT OF THE HOUSING AND COST-OF-LIVING ALLOWANCES CLAIMED FOR THE PERIOD PRIOR TO THE EFFECTIVE DATE OF YOUR TRANSFER TO BANGKOK.

WITH RESPECT TO YOUR STATEMENT THAT HAD YOU KNOWN THE ALLOWANCES WOULD NOT BE AUTHORIZED FOR YOUR DEPENDENTS YOU WOULD HAVE HAD YOUR DEPENDENTS RETURN TO THE UNITED STATES, THE RECORD SHOWS THAT YOUR DEPENDENTS HAD RECEIVED COMMERCIAL AIRLINES TICKETS TO THE UNITED STATES PRIOR TO THEIR DEPARTURE FROM SAIGON; THAT THEY INDICATED THEY INTENDED TO REMAIN IN BANGKOK UNTIL YOUR ROTATION FROM SAIGON; THAT FURTHER TRANSPORTATION TO THE UNITED STATES WAS REFUSED BY THEM ON MARCH 15, 1965; THAT NORMALLY DEPENDENTS WHO ELECT TO REMAIN IN A SAFE HAVEN AFTER THEY ARE OFFERED TRANSPORTATION TO THE UNITED STATES MUST REMAIN IN A TOURIST STATUS, BUT AT YOUR REQUEST AND IN VIEW OF YOUR IMPENDING TRANSFER TO BANGKOK THE OVERSEAS COMMAND PERMITTED YOUR DEPENDENTS TO REMAIN IN THAILAND IN A MILITARY DEPENDENTS STATUS WITH THE UNDERSTANDING THAT SUCH STATUS DID NOT CONSTITUTE AUTHORITY TO EXTEND PAYMENT OF EMERGENCY COST-OF-LIVING ALLOWANCES AUTHORIZED INCIDENT TO THEIR EVACUATION FROM SAIGON PAST THE DATE THEY REFUSED AVAILABLE TRANSPORTATION TO THE UNITED STATES. WHILE APPROVAL WAS GIVEN FOR YOUR DEPENDENTS TO REMAIN IN BANGKOK IN THE STATUS OF MILITARY DEPENDENTS PENDING YOUR TRANSFER THERE, SUCH STATUS APPARENTLY WAS GRANTED TO PERMIT DUTY FREE ENTRY OF EFFECTS, COMMISSARY AND POST EXCHANGE PRIVILEGES, AND MEDICAL BENEFITS. SUCH STATUS, HOWEVER, PROVIDED NO BASIS TO PAY YOU THE STATION ALLOWANCES CLAIMED FOR THE PERIOD PRIOR TO YOUR TRANSFER TO BANGKOK.

CONCERNING YOUR STATEMENT THAT YOUR CLAIM SHOULD BE FAVORABLY CONSIDERED BECAUSE THE GOVERNMENT EFFECTED A SAVINGS IN TRANSPORTATION OF YOUR DEPENDENTS AND THEIR HOUSEHOLD EFFECTS TO AND FROM THE UNITED STATES, THE FACT THAT YOU CHOSE NOT TO AVAIL YOURSELF OF THE RIGHT TO HAVE THE GOVERNMENT MOVE YOUR DEPENDENTS AND HOUSEHOLD EFFECTS DOES NOT INCREASE YOUR RIGHTS TO OTHER ALLOWANCES OR RESULT IN A CREDIT TO YOUR ACCOUNT TO BE APPLIED IN THE FORM OF ADDITIONAL BENEFITS.

THE DEPARTMENT OF THE AIR FORCE IN TRANSMITTING THE CLAIM TO THIS OFFICE RECOGNIZED THERE WAS NO AUTHORITY FOR PAYMENT OF THE CLAIM. HOWEVER, IT RECOMMENDED THAT THE CLAIM BE GIVEN FAVORABLE CONSIDERATION UNDER THE PROVISIONS OF THE MERITORIOUS CLAIMS ACT OF APRIL 10, 1928, 31 U.S.C. 236. THAT ACT PROVIDES FOR THE SUBMISSION TO THE CONGRESS BY THIS OFFICE OF THOSE CLAIMS AGAINST THE UNITED STATES WHICH MAY NOT BE LAWFULLY ADJUSTED BUT WHICH ARE DETERMINED TO CONTAIN "SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS TO BE DESERVING OF THE CONSIDERATION OF THE CONGRESS.' WE HAVE POINTED OUT THAT UNDER THE CONTROLLING REGULATIONS THERE IS NO LEGAL LIABILITY ON THE PART OF THE GOVERNMENT TO PAY YOU ANY ADDITIONAL COST-OF-LIVING ALLOWANCE OR HOUSING ALLOWANCE FOR THE PERIOD INVOLVED IN YOUR CLAIM.

AS TO THE POSSIBLE ELEMENTS OF EQUITY IN YOUR CASE, SINCE IT IS CLEAR THAT YOUR DEPENDENTS CHOSE TO REMAIN IN BANGKOK RATHER THAN RETURN TO THE UNITED STATES AND THEY REMAINED IN BANGKOK FOR THEIR OWN CONVENIENCE RATHER THAN FOR THE CONVENIENCE OF THE GOVERNMENT WE DO NOT VIEW YOUR CLAIM AS CONTAINING THE EQUITY ELEMENTS CONTEMPLATED BY THE ACT OF APRIL 10, 1928, SO AS TO WARRANT REPORTING IT FOR THE CONSIDERATION OF THE CONGRESS UNDER THAT STATUTE.

ACCORDINGLY THE RECORD AFFORDS NO BASIS FOR FAVORABLE CONSIDERATION OF YOUR CLAIM BY OUR OFFICE.