B-160372, DEC. 23, 1966

B-160372, DEC. 23, 1966

TO LIEUTENANT COLONEL ROMAN J. LUTZ:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 17, 1966, IN WHICH YOU REQUEST REVIEW OF OUR SETTLEMENT OF NOVEMBER 25, 1964. THIS SETTLEMENT DISALLOWED YOUR CLAIM FOR TEMPORARY LODGING ALLOWANCE FOR THE PERIOD FROM FEBRUARY 17, 1964, TO APRIL 3, 1964, INCIDENT TO YOUR ASSIGNMENT IN VIETNAM.

THE RECORD SHOWS THAT YOU ARRIVED IN VIETNAM ON FEBRUARY 3, 1964, ACCOMPANIED BY YOUR WIFE. AT THAT TIME, THERE WERE NO GOVERNMENT QUARTERS AVAILABLE FOR ASSIGNMENT TO YOU, SO IT APPEARS THAT YOU MADE ARRANGEMENTS TO RENT QUARTERS IN AN APPROVED PRIVATE RESIDENCE AND MOVED INTO THE HOUSE ON FEBRUARY 10, 1964. YOU RELATE THAT ON THE NIGHT OF FEBRUARY 17, 1964, A PACKAGE BELIEVED TO BE A BOMB WAS AFFIXED TO YOUR NEIGHBOR'S DOOR, ADJACENT TO YOUR QUARTERS. UPON NOTIFICATION, YOU SAY BOTH FAMILIES VACATED THE HOUSE AND YOU WENT TO THE FRONT OF THE HOUSE TO LISTEN TO THE RADIO IN A U.S. INTELLIGENCE CAR THAT HAD BEEN CALLED TO THE SCENE. WHILE THERE AWAITING A SQUAD TO ARRIVE TO REMOVE THE SUSPECTED BOMB, YOU SAY THAT YOU AND THE OTHERS AT THE CAR BECAME THE TARGET FOR A FRAGMENTATION HAND GRENADE THROWN FROM A MOVING VEHICLE IN THE STREET, INJURING TWO OF THOSE PRESENT.

YOU FURTHER RELATE THAT AS SOON AS OTHER TRANSPORTATION WAS AVAILABLE, THE TWO FAMILIES WERE DRIVEN TO SAFER QUARTERS AND YOU MOVED YOUR WIFE TO A HOTEL. THE SUSPECTED BOMB, YOU SAY, TURNED OUT TO BEA DECOY FOR THE GRENADE BUT YOU AND YOUR NEIGHBOR, ALSO AN AMERICAN, CONCLUDED THAT THE INCIDENT WAS PRE-PLANNED FOR THAT LOCATION AND THAT YOUR SUPERIOR OFFICER TOLD YOU THAT "HE THOUGHT MOVING OUT WAS A GOOD IDEA.' ON THIS BASIS, YOU CLAIMED TEMPORARY LODGING ALLOWANCE FROM FEBRUARY 17, TO APRIL 3, 1964, THE END OF THE 60-DAY PERIOD AFTER YOU ARRIVED IN SAIGON.

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.

ONE OF THE CONDITIONS PRECEDENT TO PAYMENT OF THE TEMPORARY LODGING ALLOWANCE IS THAT THE MEMBER IS AWAITING COMPLETION OF ARRANGEMENTS FOR OTHER PERMANENT LIVING ACCOMMODATIONS WHEN GOVERNMENT QUARTERS ARE NOT AVAILABLE. ONCE THE MEMBER HAS ARRANGED FOR, AND MOVES INTO SUCH QUARTERS, THE ENTITLEMENT TO TEMPORARY LODGING ALLOWANCE CEASES. IN YOUR CASE YOU CONTEND THAT YOU SHOULD BE PAID THE ALLOWANCE FOR THE BALANCE OF THE 60-DAY PERIOD AFTER YOU VACATED PERMANENT TYPE ACCOMMODATIONS FOR SECURITY REASONS AND MOVED TO A HOTEL.

IN YOUR LETTER OF JUNE 6, 1966, YOU SAY THAT YOUR SUPERIOR OFFICER ADVISED YOU TO MOVE FROM THE LOCATION WHERE YOU HAD PERMANENT QUARTERS. HOWEVER, AS INDICATED ABOVE, IN YOUR CLAIM OF APRIL 9, 1964, YOU SAID THAT SUCH OFFICER TOLD YOU THAT HE "THOUGHT MOVING OUT WAS A GOOD IDEA.' THAT STATEMENT INDICATES THAT YOU WERE NOT DIRECTED TO MOVE, BUT RATHER, IT WOULD SEEM THAT SUCH OFFICER MERELY CONCURRED IN THE DETERMINATION YOU HAD MADE TO MOVE FOR PERSONAL REASONS. THERE IS NO SHOWING OF A DETERMINATION BY THE COMMANDING OFFICER, AS PROVIDED BY ARMY REGULATIONS, OF THE NECESSITY TO OCCUPY TEMPORARY LODGING DURING THE PERIOD OF YOUR CLAIM. ARE NOT UNMINDFUL OF THE SECURITY CONDITIONS WHICH PREVAILED IN SAIGON AT THE TIME CONCERNED BUT PRESUMABLY YOU WERE AWARE OF THOSE CONDITIONS WHEN YOU OBTAINED PERMISSION TO HAVE YOUR WIFE ACCOMPANY YOU TO THAT PLACE.

ACCORDINGLY, SINCE THERE IS NOTHING IN THE RECORD TO SHOW YOU WERE DIRECTED TO VACATE THE QUARTERS WHICH YOU HAD OBTAINED AND AS YOU APPARENTLY COULD HAVE CONTINUED TO RESIDE THERE DURING THE PERIOD INVOLVED, THE DISALLOWANCE OF YOUR CLAIM WAS CORRECT AND IS SUSTAINED.