B-160305, NOV. 18, 1966

B-160305, NOV. 18, 1966

TO MASTER SERGEANT RUBEN L. SMITH, USA, RETIRED:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED OCTOBER 17, 1966, REQUESTING RECONSIDERATION OF OUR SETTLEMENT DATED JULY 6, 1966, WHICH DISALLOWED YOUR CLAIM FOR ADDITIONAL TEMPORARY LODGING ALLOWANCE FOR THE PERIOD FROM DECEMBER 29, 1965, THROUGH FEBRUARY 7, 1966.

BY ORDERS DATED NOVEMBER 30, 1965, HEADQUARTERS, 25TH INFANTRY DIVISION, APO SAN FRANCISCO 96225, YOU WERE TRANSFERRED ON OR ABOUT DECEMBER 25, 1965, TO OAKLAND, CALIFORNIA, FOR RELEASE FROM ACTIVE DUTY FOR THE PURPOSE OF RETIREMENT FROM THE SERVICE EFFECTIVE JANUARY 1, 1966. YOU AND YOUR DEPENDENTS (WIFE AND 2 CHILDREN) WERE SCHEDULED FOR DEPARTURE FROM THE OVERSEAS COMMAND ON DECEMBER 26, 1965. INCIDENT TO THESE ORDERS YOU ARRANGED FOR THE SALE OF YOUR HOME AT YOUR OVERSEAS STATION ON DECEMBER 19, 1965, AND YOUR HOUSEHOLD EFFECTS WERE SURRENDERED TO THE TRANSPORTATION OFFICER ON DECEMBER 27, 1965.

BY ORDERS DATED DECEMBER 23, 1965, THE ORDERS OF NOVEMBER 30, 1965, WERE REVOKED. YOU AND YOUR DEPENDENTS OCCUPIED HOTEL ACCOMMODATIONS FROM DECEMBER 29, 1965, TO FEBRUARY 17, 1966. BY ORDERS DATED FEBRUARY 4, 1966, YOU WERE RELEASED FROM ACTIVE DUTY FOR THE PURPOSE OF RETIREMENT EFFECTIVE MARCH 1, 1966, AND ON FEBRUARY 18, 1966, YOU AND YOUR DEPENDENTS DEPARTED FROM THE OVERSEAS COMMAND.

YOU WERE PAID TEMPORARY LODGING ALLOWANCE FOR THE PERIOD FEBRUARY 8 THROUGH 17, 1966. YOUR CLAIM FOR ADDITIONAL TEMPORARY LODGING ALLOWANCE FOR THE PERIOD DECEMBER 29, 1965, THROUGH FEBRUARY 7, 1966, WAS DISALLOWED BY SETTLEMENT DATED JULY 6, 1966, FOR THE REASONS STATED THEREIN.

IN YOUR PRESENT LETTER YOU SAY THAT THE DELAY IN YOUR DEPARTURE FROM THE OVERSEAS COMMAND WHICH CAUSED YOU TO INCUR ADDITIONAL HOTEL EXPENSES WAS DUE TO ADMINISTRATIVE DETERMINATION TO RETAIN YOU FOR MEDICAL BOARD EVALUATION. YOU BELIEVE THAT SINCE THIS WAS A CIRCUMSTANCE OVER WHICH YOU HAD NO CONTROL THAT YOU SHOULD BE ALLOWED THE ADDITIONAL TEMPORARY LODGING ALLOWANCE AS CLAIMED.

THE PERTINENT STATUTE, 37 U.S.C. 405, PROVIDES THAT THE SECRETARIES CONCERNED MAY AUTHORIZE THE PAYMENT TO MEMBERS OF THE UNIFORMED SERVICES ON DUTY OUTSIDE THE CONTINENTAL UNITED STATES OF A PER DIEM CONSIDERING ALL ELEMENTS OF COST OF LIVING OF MEMBERS AND THEIR DEPENDENTS, INCLUDING THE COST OF QUARTERS, SUBSISTENCE, AND OTHER NECESSARY INCIDENTAL EXPENSES.

PARAGRAPH M4303-2C OF THE JOINT TRAVEL REGULATIONS ISSUED PURSUANT TO 37 U.S.C. 405 AND IN EFFECT DURING THE PERIOD INVOLVED, PROVIDES THAT A TEMPORARY LODGING ALLOWANCE IS PAYABLE FOR THE PERIOD OF OCCUPANCY OF A HOTEL OR HOTEL-LIKE ACCOMMODATIONS AND THE USE OF PUBLIC RESTAURANTS BY THE MEMBER OR HIS DEPENDENTS, AFTER SURRENDER OF PERMANENT QUARTERS, FOR THE LAST 10 DAYS PRECEDING THE DATE OF DEPARTURE OF THE MEMBER FROM HIS PERMANENT DUTY STATION IN COMPLIANCE WITH CHANGE OF STATION ORDERS.

APPLICABLE ARMY REGULATIONS ARE CONTAINED IN ARMY REGULATIONS 37 104, WHICH PROVIDE IN PARAGRAPH 11011-2 (2) AS FOLLOWS:

"/2) IMMEDIATELY PRECEDING DEPARTURE (TLA-DEP). TLA-DEP NOT TO EXCEED 10 DAYS IS AUTHORIZED WHEN MEMBER GIVES UP HIS GOVERNMENT QUARTERS OR OTHER PERMANENT LIVING ACCOMMODATIONS JUST BEFORE HE LEAVES FOR A PCS. THE PERIOD OF ENTITLEMENT BEGINS ON THE DAY IT IS NECESSARY TO OCCUPY TEMPORARY LODGING. IT IS THE LAST 10 DAYS BEFORE THE MEMBER LEAVES HIS PERMANENT DUTY STATION ON PCS ORDERS; EXCEPT, WHEN ONE OR MORE DEPENDENTS REMAIN AFTER THE MEMBER LEAVES, THE PERIOD WILL BE THE LAST 10 DAYS BEFORE THE DAY THE LAST DEPENDENT LEAVES OR THE EFFECTIVE DATE OF THE PCS ORDERS, WHICHEVER IS EARLIER. SEE PARAGRAPHS 3003 AND 4303-2C, JTR, FOR METHOD OF DETERMINING EFFECTIVE DATE OF ORDERS.'

UNDER SUCH REGULATIONS A MEMBER MAY NOT BE PAID TEMPORARY LODGING FOR MORE THAN 10 DAYS INCIDENT TO LEAVING HIS OVERSEAS STATION, EVEN THOUGH HE AND HIS DEPENDENTS MAY HAVE OCCUPIED HOTEL ACCOMMODATIONS FOR A LONGER PERIOD PRECEDING HIS DEPARTURE BECAUSE OF CIRCUMSTANCES BEYOND HIS CONTROL.

ACCORDINGLY, THERE IS NO AUTHORITY FOR THE PAYMENT TO YOU OF ADDITIONAL TEMPORARY LODGING ALLOWANCE BEYOND THE 10 DAYS AUTHORIZED BY LAW, WHICH YOU HAVE RECEIVED. THE SETTLEMENT OF JULY 6, 1966, WAS CORRECT AND IS SUSTAINED.