B-158217, FEB. 18, 1966, 45 COMP. GEN. 510

B-158217: Feb 18, 1966

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ON THE BASIS THE OVERSEAS COMMANDING OFFICER DETERMINED THE MOVE TO THE NEW POST WAS NECESSARY. 1966: FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 7. REQUESTING A DECISION AS TO WHETHER TEMPORARY LODGING ALLOWANCE IS PAYABLE TO STAFF SERGEANT JOSEPH A. THE REQUEST WAS ASSIGNED PDTATAC CONTROL NO. 65-28 BY THE PER DIEM. MERITT WAS TRANSFERRED ON PERMANENT CHANGE OF STATION FROM DETACHMENT 15. THE REPORTING DATE DIRECTED FOR PERMANENT DUTY WAS FEBRUARY 22. THE TEMPORARY DUTY REPORTING DATE SHOWN IN THE ORDERS WAS FEBRUARY 12. ARE THAT ON FEBRUARY 15. HIS HOUSEHOLD EFFECTS WERE PICKED UP AT PORDENONE. CERTIFIED THAT STAFF SERGEANT MERITT WAS REQUIRED TO RESIDE IN THE IMMEDIATE VICINITY OF HIS STATION.

B-158217, FEB. 18, 1966, 45 COMP. GEN. 510

STATION ALLOWANCES - MILITARY PERSONNEL - TEMPORARY LODGINGS - USE NECESSITY DETERMINATION A STAFF SERGEANT STATIONED OVERSEAS WHO INCIDENT TO ORDERS DIRECTING HIM TO REPORT TO A NEW PERMANENT DUTY STATION ON FEBRUARY 22, 1965, WITH PRIOR PERFORMANCE OF 10 DAYS TEMPORARY DUTY AT THE NEW STATION WITHOUT RETURN TO HIS OLD STATION LOCATED 25 MILES AWAY, SHIPS HIS HOUSEHOLD EFFECTS ON FEBRUARY 15, 1965, MOVING HIS DEPENDENTS FIRST TO A HOTEL AT THE OLD STATION AND THEN TO ONE AT THE NEW STATION, WHERE THEY REMAINED UNTIL APRIL 15, 1965, MAY NOT BE PAID A TEMPORARY LODGING ALLOWANCE, EVEN THOUGH ENTITLED TO ONE UNDER PARAGRAPH M4303-2 OF THE JOINT TRAVEL REGULATIONS FOR A PERIOD NOT TO EXCEED 60 DAYS FROM FEBRUARY 12, 1965, THE DATE HE REPORTED FOR TEMPORARY DUTY AT HIS NEW PERMANENT DUTY POST, ON THE BASIS THE OVERSEAS COMMANDING OFFICER DETERMINED THE MOVE TO THE NEW POST WAS NECESSARY, ALTHOUGH THE MEMBER'S DEPENDENTS LIVED ONLY A SHORT DISTANCE FROM THAT POST, THE REQUIRED DETERMINATION OF NECESSITY FOR THE USE OF THE TEMPORARY LODGINGS NOT HAVING BEEN MADE BY THE COMMANDER.

TO FIRST LIEUTENANT J. E. JONES, DEPARTMENT OF THE AIR FORCE, FEBRUARY 18, 1966:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 7, 1965, REQUESTING A DECISION AS TO WHETHER TEMPORARY LODGING ALLOWANCE IS PAYABLE TO STAFF SERGEANT JOSEPH A. MERITT, AF 18383838, FOR THE PERIOD FEBRUARY 15 TO 21, 1965, AND FROM FEBRUARY 22 TO APRIL 14, 1965, UNDER THE CIRCUMSTANCES SET FORTH IN YOUR LETTER. THE REQUEST WAS ASSIGNED PDTATAC CONTROL NO. 65-28 BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

BY SPECIAL ORDER NO. 96, 2189TH COMMUNICATIONS SQUADRON (AFCS), USAF, APO 09019, DATED FEBRUARY 3, 1965, STAFF SERGEANT JOSEPH A. MERITT WAS TRANSFERRED ON PERMANENT CHANGE OF STATION FROM DETACHMENT 15, 2189TH COMMUNICATIONS SQUADRON, AVIANO AIR BASE, ITALY, TO DETACHMENT 9, 2189TH COMMUNICATIONS SQUADRON, PORTOGRUARO, ITALY, A REPORTED DISTANCE OF 25 MILES. THE REPORTING DATE DIRECTED FOR PERMANENT DUTY WAS FEBRUARY 22, 1965. THE SAME ORDERS ALSO DIRECTED HIM TO PERFORM 10 DAYS' TEMPORARY DUTY AT THE NEW PERMANENT STATION WITHOUT RETURN TO THE OLD PERMANENT STATION. THE TEMPORARY DUTY REPORTING DATE SHOWN IN THE ORDERS WAS FEBRUARY 12, 1965, AND STAFF SERGEANT MERITT REPORTED FOR TEMPORARY DUTY ON THAT DATE.

THE FACTS INVOLVED, AS SET FORTH IN YOUR LETTER, ARE THAT ON FEBRUARY 15, 1965, HIS HOUSEHOLD EFFECTS WERE PICKED UP AT PORDENONE, ITALY, FOR SHIPMENT TO HIS NEW STATION. ON THE SAME DATE HE MOVED HIS DEPENDENTS INTO A HOTEL IN AVIANO, HIS OLD STATION. ON FEBRUARY 22, 1965, HE MOVED HIS DEPENDENTS TO A HOTEL IN PORTOGRUARO. ON APRIL 15, 1965, STAFF SERGEANT MERITT AND HIS DEPENDENTS MOVED INTO PERMANENT HOUSING IN PORTOGRUARO. DURING THE INTERIM BETWEEN FEBRUARY 12 AND 22 STAFF SERGEANT MERITT MADE SEVERAL TRIPS BACK TO AVIANO. ON FEBRUARY 14, 15 AND 21 HE RETURNED TO AVIANO FOR PERSONAL REASONS, AND ON FEBRUARY 15, 18 AND 22 HE RETURNED ON GOVERNMENT BUSINESS, BUT WITHOUT TRAVEL ORDERS.

AS TO THE REASON FOR THE RELOCATION OF THE MEMBER'S HOUSEHOLD, THE COMMANDING OFFICER OF DETACHMENT 9,2189TH COMMUNICATIONS SQUADRON, PORTOGRUARO, CERTIFIED THAT STAFF SERGEANT MERITT WAS REQUIRED TO RESIDE IN THE IMMEDIATE VICINITY OF HIS STATION, AND THE MEMBER HAS STATED THAT HIS DUTIES AS DETACHMENT COMMANDER REQUIRED HIM TO BE IN THE PROXIMITY OF THE COMMUNICATIONS SITE AT PORTOGRUARO. THE MEMBER ALSO STATES THAT HE VACATED HIS PERMANENT QUARTERS IN PORDENONE ON FEBRUARY 15, 1965, SO HE COULD SHIP HIS HOUSEHOLD GOODS, SURRENDER HIS HOUSE AND MOVE HIS DEPENDENTS TO JOIN HIM IN PORTOGRUARO AS SOON AS POSSIBLE; THAT HIS DEPENDENTS REMAINED IN AVIANO FROM FEBRUARY 15 TO 22, 1965, SO HIS WIFE COULD MAKE FINAL ARRANGEMENTS FOR RETURNING THE HOUSE TO THE LANDLORD, AND TO SETTLE OTHER PERSONAL AFFAIRS PRIOR TO MOVING TO PORTOGRUARO. FURTHER STATES THAT THE LONG STAY OF DEPENDENTS IN HOTELS WAS DUE TO A HOUSING SHORTAGE IN PORTOGRUARO AND THE DIFFICULTY OF FINDING ADEQUATE QUARTERS FOR HIMSELF AND DEPENDENTS.

YOU QUESTION WHETHER THE TEMPORARY LODGING ALLOWANCE IS PAYABLE FOR THE PERIODS CLAIMED BECAUSE OF THE UNCERTAINTY OF THE EFFECTIVE DATE OF THE ORDERS AND THE PROXIMITY OF THE NEW PERMANENT STATION. ALSO, DEPENDING ON THE EFFECTIVE DATE OF THE ORDERS YOU SAY THERE IS A POSSIBILITY THE DEPENDENTS WERE OCCUPYING PERMANENT TYPE LIVING QUARTERS IN THE VICINITY OF THE NEW PERMANENT STATION ON THE EFFECTIVE DATE OF THE ORDERS. THEREFORE, YOU ASK THE FOLLOWING QUESTIONS:

A. WHAT IS THE EFFECTIVE DATE OF SSGT MERITT'S PCS ORDERS?

B. IF THE EFFECTIVE DATE OF THE PCS ORDERS IS ON OR PRIOR TO 15 FEBRUARY 1965, WOULD THE FACT THAT HIS DEPENDENTS WERE OCCUPYING PERMANENT QUARTERS 18 MILES AWAY FROM HIS NEW PERMANENT DUTY STATION AFFECT HIS ENLISTMENT TO TLA ON ARRIVAL AT THE NEW PERMANENT DUTY STATION?

C. IF THE EFFECTIVE DATE OF THE PCS ORDERS IS AFTER 15 FEBRUARY 1965, WOULD THE FACT THAT HIS DEPENDENTS HAD BEEN OCCUPYING PERMANENT QUARTERS 18 MILES AWAY FROM HIS NEW PERMANENT DUTY STATION AFFECT HIS ENTITLEMENT TO TLA ON ARRIVAL AT HIS NEW PERMANENT DUTY STATION?

D. IF THE ANSWER TO EITHER OF THE QUESTIONS IN SUBPARAGRAPHS "B" AND "C" IS YES, DOES HIS COMMANDER'S DETERMINATION THAT IT IS NECESSARY FOR HIM TO LIVE IMMEDIATELY ADJACENT TO THE LOCATION OF DET. 9, 2189TH COMMUNICATIONS SQUADRON AT PORTOGRUARO HAVE ANY BEARING ON HIS ENTITLEMENT AS FAR AS DISTANCES ARE INVOLVED?

SECTION 405 OF TITLE 37, U.S. CODE, PROVIDES THAT THE SECRETARIES OF THE UNIFORMED SERVICES MAY AUTHORIZE PAYMENT TO MEMBERS OF THE UNIFORMED SERVICES ON DUTY OUTSIDE THE CONTINENTAL UNITED STATES OR IN HAWAII OR ALASKA, WHETHER OR NOT IN A TRAVEL STATUS, OF A PER DIEM CONSIDERING ALL ELEMENTS OF COST OF LIVING TO MEMBERS AND THEIR DEPENDENTS, INCLUDING THE COST OF QUARTERS, SUBSISTENCE, AND OTHER INCIDENTAL EXPENSES. PARAGRAPH M4303-1 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT TEMPORARY LODGING ALLOWANCES ARE AUTHORIZED FOR THE PURPOSE OF PARTIALLY REIMBURSING THE MEMBER FOR MORE THAN NORMAL EXPENSES INCURRED AT HOTELS OR HOTEL-LIKE ACCOMMODATIONS AND PUBLIC RESTAURANTS IMMEDIATELY PRECEDING DEPARTURE ON A PERMANENT CHANGE OF STATION FROM A PERMANENT DUTY STATION OUTSIDE THE UNITED STATES AND AFTER TERMINATION OF ASSIGNMENT TO GOVERNMENT QUARTERS OR AFTER SURRENDER OF OTHER LIVING ACCOMMODATIONS.

PARAGRAPH M4303-2 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT THE PERIOD OF ENTITLEMENT UPON DEPARTURE FROM THE OLD PERMANENT STATION WILL BE THE LAST 10 DAYS PRECEDING THE DEPARTURE OF THE MEMBER FROM HIS OLD PERMANENT STATION EXCEPT WHERE ONE OR MORE DEPENDENTS DEPART LATER IN WHICH CASE IT WILL BE THE LAST 10 DAYS PRECEDING THE DEPARTURE OF THE LAST DEPENDENT OR THE EFFECTIVE DATE OF THE PERMANENT CHANGE-OF STATION ORDERS, WHICHEVER IS EARLIER. THE SAME PARAGRAPH PROVIDES THAT UPON TRANSFER BETWEEN PERMANENT STATIONS OUTSIDE THE UNITED STATES REQUIRING CHANGE OF RESIDENCE THE ENTITLEMENT AT THE NEW STATION WILL NOT EXCEED 60 DAYS. PARAGRAPH M4303-1 OF THE SAME REGULATIONS PROVIDES THAT THE UNIFORMED SERVICES CONCERNED MAY ISSUE SUCH REGULATIONS AS ARE CONSIDERED NECESSARY TO IMPLEMENT AND JUDICIOUSLY ADMINISTER THE ALLOWANCE. PARAGRAPH 11011C, AIR FORCE MANUAL 177-105, PROVIDES THAT THE OVERSEAS COMMANDER DETERMINES IF IT IS NECESSARY FOR MEMBERS TO OCCUPY TEMPORARY LODGINGS (HOTELS OR HOTEL-LIKE ACCOMMODATIONS) WHEN THEY FIRST ARRIVE AT AN ASSIGNMENT AND IMMEDIATELY BEFORE THEY LEAVE, AND THAT THE TEMPORARY LODGING ALLOWANCE "WILL NOT BE PAID UNLESS THE COMMANDER DECIDES THAT TEMPORARY LODGINGS ARE NECESSARY.' THERE IS NOTHING TO SHOW THAT SUCH DETERMINATION WAS MADE IN THE PRESENT CASE. HENCE, ON THE PRESENT RECORD THE ALLOWANCE IS NOT PAYABLE, AND THE PAY ORDERS WILL BE RETAINED HERE.

SINCE THE TEMPORARY LODGING ALLOWANCE IS NOT PAYABLE, ANSWERS TO THE QUESTIONS PRESENTED DO NOT APPEAR NECESSARY. IT MAY BE POINTED OUT, HOWEVER, THAT WHILE PARAGRAPH M3003-1B (1) 3 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT WHEN THE ORDERS INVOLVE TEMPORARY DUTY EN ROUTE TO A PERMANENT STATION IN A RESTRICTED AREA, THE EFFECTIVE DATE IS THE DATE OF DETACHMENT FROM THE OLD PERMANENT STATION PLUS LEAVE, DELAY, OR ADDITIONAL TRAVEL TIME PRIOR TO REPORTING AT THE FIRST TEMPORARY STATION, IT LONG HAS BEEN THE RULE THAT WHEN TEMPORARY DUTY IS TO BE PERFORMED AT THE DESIGNATED PERMANENT STATION, THAT PLACE BECOMES THE MEMBER'S PERMANENT STATION UPON HIS ARRIVAL THERE. SEE 34 COMP. GEN. 427. THEREFORE, LEAVE, DELAY, OR ADDITIONAL TRAVEL TIME NOT BEING INVOLVED, THE EFFECTIVE DATE OF STAFF SERGEANT MERITT'S PERMANENT CHANGE OF STATION WAS FEBRUARY 12, 1965, THE DATE HE REPORTED AT PORTOGRUARO. ALTHOUGH THE DEPENDENTS LIVED ONLY 18 MILES FROM THE NEW PERMANENT STATION IT APPEARS THAT THE COMMANDER'S DETERMINATION THAT IT WAS NECESSARY FOR THE MEMBER TO LIVE IMMEDIATELY ADJACENT TO HIS NEW POST OF DUTY WOULD FORM A BASIS FOR PAYMENT OF THE TEMPORARY LODGING ALLOWANCE IF THE COMMANDER HAD FURTHER DETERMINED THAT TEMPORARY LODGINGS WERE NECESSARY AT THE OLD PERMANENT STATION AND THE NEW IN CONNECTION WITH THE MOVE.