B-160892, APR. 3, 1967

B-160892: Apr 3, 1967

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DISBURSING OFFICER: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 18. THE REQUEST FOR DECISION WAS ASSIGNED CONTROL NO. 67-2 BY THE PER DIEM. IT APPEARS THAT IN MARCH 1965 HE WAS PERMANENTLY ASSIGNED TO THE 2D BATTALION. CAPTAIN HEHNEN STATES THAT AFTER DEPARTING FROM HAWAII THE MEMBERS OF HIS UNIT WERE INFORMED THAT THEIR DESTINATION WAS OKINAWA FOR A STAY OF INDETERMINATE LENGTH. HIS UNIT LANDED IN VIETNAM IN A TEMPORARY ADDITIONAL DUTY STATUS WHICH WAS TERMINATED ON MAY 25. WHEN CERTIFICATES IN LIEU OF ORDERS WERE ISSUED TO MEMBERS OF THE UNIT. IN THE CERTIFICATE IT IS STATED THAT THE MEMBER WAS PERMANENTLY ASSIGNED TO THE UNIT WHEN IT WAS TRANSFERRED ON PERMANENT CHANGE OF STATION TO 3RD MARINE DIVISION.

B-160892, APR. 3, 1967

TO LIEUTENANT (JG) H. E. BUTNER, DISBURSING OFFICER:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 18, 1967, WITH ENCLOSURES, ADDRESSED TO THE COMPTROLLER GENERAL OF THE UNITED STATES, VIA COMMAND CHANNELS, REQUESTING A DECISION AS TO THE LEGALITY OF PAYMENT OF DEPENDENTS' TRAVEL AND DISLOCATION ALLOWANCES TO CAPTAIN MARK T. HEHNEN, USMC 084219, UNDER THE CIRCUMSTANCES DESCRIBED. THE REQUEST FOR DECISION WAS ASSIGNED CONTROL NO. 67-2 BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

ON THE BASIS OF STATEMENTS MADE BY THE MEMBER IN HIS LETTER OF SEPTEMBER 13, 1966, IT APPEARS THAT IN MARCH 1965 HE WAS PERMANENTLY ASSIGNED TO THE 2D BATTALION, 4TH MARINES (REIN) III AMPHIBIOUS FORCE. ON MARCH 10, 1965, HE SAYS HIS UNIT DEPARTED WITH LITTLE PRIOR NOTICE FROM THE PERMANENT DUTY STATION AT HAWAII FOR AN UNDISCLOSED DESTINATION. CAPTAIN HEHNEN STATES THAT AFTER DEPARTING FROM HAWAII THE MEMBERS OF HIS UNIT WERE INFORMED THAT THEIR DESTINATION WAS OKINAWA FOR A STAY OF INDETERMINATE LENGTH. WHILE AT OKINAWA, HOWEVER, HE SAYS THEY RECEIVED NO ORDERS OR INFORMATION AS TO THEIR STATUS, BUT HE EXPLAINS THAT LATE IN APRIL 1965, APPARENTLY AFTER DEPARTING FROM OKINAWA, THEY RECEIVED TEMPORARY ADDITIONAL DUTY ORDERS RETROACTIVE TO THE DAY THEY LEFT HAWAII.

ON APRIL 15, 1965, HIS DEPENDENTS (WIFE AND DAUGHTER) LEFT HAWAII AND TRAVELED TO ARLINGTON, WASHINGTON, AT PERSONAL EXPENSE. ON MAY 7, 1965, HIS UNIT LANDED IN VIETNAM IN A TEMPORARY ADDITIONAL DUTY STATUS WHICH WAS TERMINATED ON MAY 25, 1965, WHEN CERTIFICATES IN LIEU OF ORDERS WERE ISSUED TO MEMBERS OF THE UNIT. IN THE CERTIFICATE IT IS STATED THAT THE MEMBER WAS PERMANENTLY ASSIGNED TO THE UNIT WHEN IT WAS TRANSFERRED ON PERMANENT CHANGE OF STATION TO 3RD MARINE DIVISION, FMF, EFFECTIVE MAY 25, 1965.

THE MEMBER'S CLAIM FOR REIMBURSEMENT FOR HIS DEPENDENTS' TRAVEL PERFORMED ON APRIL 15, 1965, AND FOR PAYMENT OF DISLOCATION ALLOWANCE WAS DENIED BY THE MARINE CORPS FOR THE REASON THAT THE TRAVEL WAS PERFORMED PRIOR TO ORDERS AND THE MARINE CORPS WAS UNABLE TO CERTIFY THAT BEFORE HIS DEPENDENTS TRAVELED HE HAD BEEN ADVISED THAT PERMANENT CHANGE-OF-STATION ORDERS WOULD BE ISSUED.

IN YOUR LETTER YOU SAY THAT SINCE THE MEMBER WAS TRANSPORTED WITH HIS BATTALION FROM HIS OLD DUTY STATION TO A RESTRICTED AREA WITHOUT PRIOR KNOWLEDGE AS TO DESTINATION AND PERMANENTLY ASSIGNED TO THE RESTRICTED AREA FOR DUTY, AN ELEMENT OF DOUBT EXISTS AS TO THE PROPRIETY OF DENYING HIM ENTITLEMENT TO DISLOCATION ALLOWANCE AND REIMBURSEMENT FOR HIS DEPENDENTS' TRAVEL FROM HAWAII TO ARLINGTON, WASHINGTON.

UNDER THE PROVISIONS OF 37 U.S.C. 406 AND 407 AUTHORITY IS PROVIDED, IN ACCORDANCE WITH THE REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, FOR THE TRANSPORTATION OF A MEMBER'S DEPENDENTS AND FOR THE PAYMENT OF A DISLOCATION ALLOWANCE INCIDENT TO A DIRECTED PERMANENT CHANGE OF STATION.

JOINT TRAVEL REGULATIONS PROMULGATED PURSUANT TO THAT PROVISION, AND IN EFFECT AT THE TIME (PARAGRAPH M7000-8, CHANGE 142, NOVEMBER 1, 1964) SPECIFICALLY PROVIDE THAT TRANSPORTATION IS NOT AUTHORIZED WHERE THE DEPENDENTS DEPART THE OLD STATION "PRIOR TO THE ISSUANCE OF ORDERS" AND THE VOUCHER IS NOT SUPPORTED BY A CERTIFICATE OF THE COMMANDING OFFICER, OR HIS DESIGNATED REPRESENTATIVE, OF THE HEADQUARTERS ISSUING THE ORDERS THAT THE MEMBER WAS ADVISED PRIOR TO THE ISSUANCE OF THE CHANGE-OF-STATION ORDERS THAT SUCH ORDERS WOULD BE ISSUED. PARAGRAPH M9003-1 OF THE REGULATIONS PROVIDES FURTHER THAT A DISLOCATION ALLOWANCE IS NOT PAYABLE IN THE CIRCUMSTANCES OUTLINED IN PARAGRAPH M7000-8 WHERE THE DEPENDENTS TRAVELED PRIOR TO THE ISSUANCE OF ORDERS AND THE VOUCHER IS NOT SUPPORTED BY A CERTIFICATION AS TO PRIOR NOTICE TO THE MEMBER. THESE ARE STATUTORY REGULATIONS WHICH HAVE THE FORCE AND EFFECT OF LAW.

THE PURPOSE OF THE STATUTE AUTHORIZING TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE IS TO RELIEVE A MEMBER OF THE BURDEN OF PERSONALLY DEFRAYING THE TRAVEL EXPENSES OF HIS DEPENDENTS WHEN SUCH TRAVEL IS MADE NECESSARY BY AN ORDERED CHANGE OF STATION. FOR THAT REASON, THE CITED REGULATIONS AUTHORIZE DEPENDENTS' TRANSPORTATION AND DISLOCATION ALLOWANCE ONLY WHEN THE TRAVEL IS PERFORMED AFTER THE ORDERS HAVE BEEN ISSUED OR BEFORE ISSUANCE WHERE THE MEMBER HAS BEEN SPECIFICALLY ADVISED THAT ORDERS WILL BE ISSUED. 34 COMP. GEN. 241.

THE RECORD SHOWS THAT THE MEMBER DID NOT KNOW AT THE TIME OF HIS DEPARTURE ON MARCH 10, 1965, THAT HIS UNIT WAS TO RECEIVE ORDERS EFFECTING A CHANGE OF PERMANENT DUTY STATIONS. WHILE THERE MAY HAVE BEEN RUMORS THAT A PERMANENT CHANGE OF STATION WAS INVOLVED, HE HAD NOT BEEN OFFICIALLY INFORMED THAT A PERMANENT REASSIGNMENT WAS IMPENDING AND SHORTLY THEREAFTER, IN APRIL 1965, HE RECEIVED TEMPORARY ADDITIONAL DUTY ORDERS WHICH MADE IT CLEAR TO HIM THAT HE WAS STILL ATTACHED TO HIS DUTY STATION IN HAWAII. IN A LETTER DATED OCTOBER 20, 1966, TO CAPTAIN HEHNEN THE COMMANDANT OF THE MARINE CORPS POINTED OUT THAT THE CLAIM COULD NOT BE SUPPORTED BY A CERTIFICATE OF ADVANCE NOTICE AS CONTEMPLATED IN PARAGRAPHS M7000-8 AND M9003-1 OF THE REGULATIONS SINCE AUTHORITY FOR THE PERMANENT CHANGE-OF-STATION ORDERS WAS NOT ISSUED UNTIL MAY 21, 1965.

SINCE THE OFFICER'S DEPENDENTS TRAVELED FROM HAWAII TO ARLINGTON, WASHINGTON, WHILE HE WAS ON TEMPORARY DUTY AND BEFORE THE CERTIFICATE IN LIEU OF PERMANENT CHANGE-OF-STATION ORDERS WAS ISSUED AND SINCE THE REGULATIONS DO NOT AUTHORIZE TRANSPORTATION ALLOWANCE FOR ADVANCE TRAVEL OF DEPENDENTS OR PAYMENT OF DISLOCATION UNDER SUCH CIRCUMSTANCES THERE IS NO LEGAL BASIS FOR ALLOWING HIS CLAIM.

ACCORDINGLY, PAYMENT OF THE VOUCHER IS NOT AUTHORIZED AND IT WILL BE RETAINED HERE.