B-162529, OCT. 24, 1967

B-162529: Oct 24, 1967

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FOR SEPARATION MAY NOT BE PAID ADDITIONAL TEMPORARY LODGING ALLOWANCE SINCE PAYMENT FOR THE LONGER PERIOD WAS NOT APPROVED AS REQUIRED BY THE REGULATIONS. NOEL: REFERENCE IS MADE TO THE LETTERS FROM YOUR WIFE CONCERNING YOUR CLAIM FOR ADDITIONAL TEMPORARY LODGING ALLOWANCE FOR THE PERIOD NOVEMBER 10 TO DECEMBER 6. YOU WERE REASSIGNED FROM COMPANY D. YOUR QUARTERS ASSIGNMENT AT 5A DEFONTAINE HOUSING AREA WAS TERMINATED EFFECTIVE THE SAME DATE. YOU WERE DIRECTED TO REPORT DECEMBER 17. YOU WERE DISCHARGED FROM THE ARMY ON DECEMBER 19. DISALLOWED YOUR CLAIM FOR ADDITIONAL TEMPORARY LODGING ALLOWANCE FOR THE REASON THAT YOU HAVE BEEN PAID THE ALLOWANCE FOR 10 DAYS (DECEMBER 7 TO 16. 1966) AND NO ADDITIONAL ENTITLEMENT WAS AUTHORIZED OR APPROVED BY PROPER AUTHORITY.

B-162529, OCT. 24, 1967

ARMED SERVICES - LODGING ALLOWANCE, TEMPORARY - APPROVAL REQUIREMENT DECISION TO FORMER ARMY MEMBER CONCERNING CLAIM FOR ADDITIONAL TEMPORARY LODGING ALLOWANCE AFTER TERMINATION OF QUARTERS AT OVERSEAS BASE AND PRIOR TO RETURN TO U.S. FOR SEPARATION. MEMBER WHO DURING 10 DAY PERIOD OF OCCUPANCY OF TEMPORARY QUARTERS DID NOT OBTAIN APPROVAL FOR ADDITIONAL 10 DAYS FOR DELAY PRIOR TO RETURN TO U.S. FOR SEPARATION MAY NOT BE PAID ADDITIONAL TEMPORARY LODGING ALLOWANCE SINCE PAYMENT FOR THE LONGER PERIOD WAS NOT APPROVED AS REQUIRED BY THE REGULATIONS. HOWEVER, IF CLAIMANT BELIEVES CASE COMES UNDER HARD SHIP RULE IN M4303-2F, J.T.R FACTS OF CASE MAY BE REFERRED TO ADVISORY PANEL OF PER DIEM COMMITTEE.

TO MR. RICHARD A. NOEL:

REFERENCE IS MADE TO THE LETTERS FROM YOUR WIFE CONCERNING YOUR CLAIM FOR ADDITIONAL TEMPORARY LODGING ALLOWANCE FOR THE PERIOD NOVEMBER 10 TO DECEMBER 6, 1966, INCIDENT TO YOUR SERVICE IN THE UNITED STATES ARMY.

BY SPECIAL ORDERS 193, DATED NOVEMBER 4, 1966, YOU WERE REASSIGNED FROM COMPANY D, 102D SIGNAL BATTALION, APO NEW YORK 09011, TO THE U.S. ARMY TRANSFER STATION, FORT DIX, NEW JERSEY, FOR SEPARATION FROM THE SERVICE AND DIRECTED TO REPORT TO THE HOTEL LITTRE, PARIS, FRANCE, FOR TRANSPORTATION TO THE CONTINENTAL UNITED STATES. BY SPECIAL ORDERS 194 DATED NOVEMBER 9, 1966, YOUR QUARTERS ASSIGNMENT AT 5A DEFONTAINE HOUSING AREA WAS TERMINATED EFFECTIVE THE SAME DATE; AND BY SPECIAL ORDERS 217 DATED DECEMBER 6, 1966, YOU WERE DIRECTED TO REPORT DECEMBER 17, 1966, AT ORLY FIELD, FOR AIR TRANSPORTATION TO THE UNITED STATES. YOU WERE DISCHARGED FROM THE ARMY ON DECEMBER 19, 1966, AT FORT HAMILTON, NEW YORK. THE SETTLEMENT OF AUGUST 21, 1967, DISALLOWED YOUR CLAIM FOR ADDITIONAL TEMPORARY LODGING ALLOWANCE FOR THE REASON THAT YOU HAVE BEEN PAID THE ALLOWANCE FOR 10 DAYS (DECEMBER 7 TO 16, 1966) AND NO ADDITIONAL ENTITLEMENT WAS AUTHORIZED OR APPROVED BY PROPER AUTHORITY. YOUR WIFE SAYS IN EFFECT IN HER LETTERS THAT YOUR COMPANY DID NOT KNOW THE REGULATIONS REQUIRED THAT APPROVAL FOR ADDITIONAL TEMPORARY LODGING ALLOWANCE MUST BE MADE WITHIN 10 DAYS AFTER THE EARLIEST DAY COVERED THEREBY, AND THAT IT DOES NOT SEEM RIGHT THAT YOU SHOULD PAY FOR THE ERRORS OF YOUR COMPANY.

SECTION 405 OF TITLE 37, U.S.C. PROVIDES 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 UNDER THEIR JURISDICTION AND THEIR DEPENDENTS, 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. PARAGRAPH M4303 2D (1) AND (2) OF THE JOINT TRAVEL REGULATIONS, PROMULGATED PURSUANT TO THIS AUTHORITY, PROVIDES THAT GENERALLY THE PERIOD OF ENTITLEMENT TO TEMPORARY LODGING ALLOWANCE UPON DEPARTURE WILL BE THE LAST 10 DAYS PRECEDING THE DAY OF DEPARTURE FROM THE PERMANENT STATION PURSUANT TO ORDERS, BUT WHEN THE PERIOD OF ENTITLEMENT AUTHORIZED FOR THE TEMPORARY LODGING ALLOWANCE BEGINS AND ACTUAL DEPARTURE IS DELAYED THROUGH NO FAULT OF THE MEMBER OF HIS DEPENDENTS, ADDITIONAL ENTITLEMENT MAY BE AUTHORIZED OR APPROVED BY THE COMMANDER CONCERNED OR HIS DESIGNEE, IN INCREMENTS OF 10 DAYS OR LESS, FOR THE ENTIRE PERIOD THAT TEMPORARY LODGINGS ARE REQUIRED TO BE UTILIZED. APPROVAL BY THE COMMANDER CONCERNED OF SUCH ADDITIONAL PERIODS, HOWEVER, MUST BE ISSUED NO LATER THAN THE 10TH DAY AFTER THE EARLIEST DAY COVERED THEREBY.

UNDER SUCH REGULATIONS THE TEMPORARY LODGING ALLOWANCE IS PAYABLE FOR PERIODS LONGER THAN 10 DAYS WHEN AN ADDITIONAL PERIOD NOT IN EXCESS OF 10 DAYS FOR WHICH APPROVAL IS REQUESTED IS APPROVED WITHIN THAT PERIOD. THERE IS NO AUTHORITY FOR OUR OFFICE TO AUTHORIZE PAYMENT OF TEMPORARY LODGING ALLOWANCE FOR LONGER THAN THE 10-DAY PERIOD FOR WHICH YOU HAVE BEEN PAID SINCE PAYMENT FOR A LONGER PERIOD WAS NOT APPROVED AS REQUIRED BY THE REGULATIONS. IT IS REGRETTED THAT YOUR COMPANY COMMANDER MAY NOT HAVE BEEN FAMILIAR WITH THE REGULATIONS CONCERNING THE TEMPORARY LODGING ALLOWANCE. SUCH FACT, HOWEVER, DOES NOT PROVIDE A LEGAL BASIS UPON WHICH WE MAY AUTHORIZE PAYMENT OF YOUR CLAIM CONTRARY TO THE APPLICABLE LAW AND REGULATIONS.

ACCORDINGLY, ON THE PRESENT RECORD, THE SETTLEMENT OF AUGUST 21, 1967, DISALLOWING YOUR CLAIM IS SUSTAINED.

YOU ARE ADVISED, HOWEVER, THAT PARAGRAPH M4303-2F OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT THE ADVISORY PANEL OF THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE, BY MEANS OF A DETERMINATION SIGNED BY THE COMMITTEE EXECUTIVE, IN HIS CAPACITY AS ADVISORY PANEL CHAIRMAN, MAY AUTHORIZE OR APPROVE NECESSARY ADDITIONAL PERIODS OF TEMPORARY LODGING ALLOWANCES IN CERTAIN CIRCUMSTANCES, PROVIDED THE DELAY IN DEPARTURE FROM THE DUTY STATION WAS NOT DUE TO REASONS WITHIN THE CONTROL OF THE MEMBER OR HIS DEPENDENTS AND THAT UNDUE HARDSHIP WILL RESULT IF SUCH ADDITIONAL PERIODS OF TEMPORARY LODGING ALLOWANCES ARE NOT AUTHORIZED. IF YOU BELIEVE THAT ADDITIONAL TEMPORARY LODGING ALLOWANCES SHOULD BE AUTHORIZED UNDER THE PROVISIONS OF THIS PARAGRAPH, IT IS SUGGESTED THAT YOU CONTACT THE ADVISORY PANEL OF THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE, C/O SECRETARY OF THE ARMY, WASHINGTON, D.C., EXPLAINING IN DETAIL THE FACTS ON WHICH YOUR CLAIM IS BASED.