B-163301, APRIL 19, 1968, 47 COMP. GEN. 575

B-163301: Apr 19, 1968

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

1968: FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 14. THE DEPENDENTS OF COLONEL YEP WERE AUTHORIZED TO PROCEED FROM HEADQUARTERS 7272 FLYING TRAINING WING (USAFE). THEY WERE AUTHORIZED FURTHER TRANSPORTATION BY THIS ORDER TO A PLACE IN THE UNITED STATES. THAT COLONEL YEP'S DEPENDENTS WERE EVACUATED FROM WHEELUS AIR BASE TO BITBURG AIR BASE ON JUNE 9. THEY ARE NOT ENTITLED TO DISLOCATION ALLOWANCE UNDER PARAGRAPH M9008 OF THE JOINT TRAVEL REGULATIONS. A MEMBER OF A UNIFORMED SERVICE WHOSE DEPENDENTS ARE COVERED BY SECTION 405A (A) OF THAT TITLE. IS ENTITLED TO A DISLOCATION ALLOWANCE. WHEN DEPENDENTS OF MEMBERS OF THE UNIFORMED SERVICES ARE ORDERED EVACUATED BY COMPETENT AUTHORITY.

B-163301, APRIL 19, 1968, 47 COMP. GEN. 575

TRANSPORTATION - DEPENDENTS - MILITARY PERSONNEL - DISLOCATION ALLOWANCE - EMERGENCY, ETC., CONDITIONS AN OFFICER OF THE UNIFORMED SERVICES WHOSE DEPENDENTS FOLLOWING EVACUATION FROM HIS OVERSEAS DUTY STATION TO A TEMPORARY SAFE HAVEN IN EUROPE, PURSUANT TO 37 U.S.C. 405 (A), UNDER ORDERS AUTHORIZING FURTHER TRANSPORTATION TO A PLACE TO BE DESIGNATED WITHIN THE UNITED STATES, ETC., RETURN INSTEAD TO HIS DUTY STATION, MAY NOT BE PAID THE DISLOCATION ALLOWANCE PRESCRIBED IN 37 U.S.C. 407, FOR THE PURPOSE OF PARTIALLY REIMBURSING A MEMBER WITH DEPENDENTS FOR THE EXPENSES INCURRED IN RELOCATING HIS HOUSEHOLD, PARAGRAPH M9008 OF THE JOINT TRAVEL REGULATIONS PROPERLY OPERATING TO DENY THE MEMBER A DISLOCATION ALLOWANCE INCIDENT TO THE MOVEMENT OF HIS DEPENDENTS TO A TEMPORARY SAFE HAVEN OUTSIDE THE UNITED STATES, WHERE THEY DID NOT LOCATE THEIR HOUSEHOLD OR ESTABLISH A RESIDENCE AND, THEREFORE, DID NOT INCUR THE RELOCATION COSTS CONTEMPLATED BY 37 U.S.C. 407.

TO CAPTAIN W. A. YOHEY, DEPARTMENT OF THE AIR FORCE, APRIL 19, 1968:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 14, 1967 (REF: BAAF), AND ATTACHMENTS, FORWARDED HERE ON JANUARY 11, 1968, BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE (PDTATAC CONTROL NO. 67-40), REQUESTING A DECISION AS TO THE ENTITLEMENT OF LIEUTENANT COLONEL GEORGE YEP, FR 48789, TO DISLOCATION ALLOWANCE UNDER THE CIRCUMSTANCES DESCRIBED.

BY SPECIAL ORDER TB-234 DATED JUNE 9, 1967, THE DEPENDENTS OF COLONEL YEP WERE AUTHORIZED TO PROCEED FROM HEADQUARTERS 7272 FLYING TRAINING WING (USAFE), APO NEW YORK 09231 (WHEELUS AIR BASE, LIBYA), TO BITBURG AIR BASE, GERMANY, ON JUNE 9, 1967, AS A RESULT OF PROJECT SAFEHAVEN. THEY WERE AUTHORIZED FURTHER TRANSPORTATION BY THIS ORDER TO A PLACE IN THE UNITED STATES, INCLUDING ALASKA AND HAWAII, PUERTO RICO, OR A TERRITORY OR POSSESSION OF THE UNITED STATES DESIGNATED BY THE MEMBER OR HIS DEPENDENTS.

YOU SAY IN YOUR LETTER OF SEPTEMBER 14, 1967, THAT COLONEL YEP'S DEPENDENTS WERE EVACUATED FROM WHEELUS AIR BASE TO BITBURG AIR BASE ON JUNE 9, 1967; THAT THEY RETURNED TO WHEELUS AIR BASE ON JULY 26, 1967, AND THAT THEY RECEIVED EVACUATION ALLOWANCES FOR THE ENTIRE PERIOD. YOU ALSO SAY THAT SINCE THEY REMAINED IN THE SAFE HAVEN (TEMPORARY) IN EUROPE, THEY ARE NOT ENTITLED TO DISLOCATION ALLOWANCE UNDER PARAGRAPH M9008 OF THE JOINT TRAVEL REGULATIONS. HOWEVER, YOU POINT OUT THAT PUBLIC LAW 89-608 APPROVED SEPTEMBER 30, 1966, CHANGED THE LIMITATIONS IMPOSED IN 37 U.S.C. 405A (A) WITH RESPECT TO EVACUATION ALLOWANCES AND THAT 37 U.S.C. 407 AUTHORIZES DISLOCATION ALLOWANCE FOR THOSE PERSONNEL ENTITLED TO EVACUATION ALLOWANCES UNDER SECTION 405A (A).

SECTION 407 OF TITLE 37, U.S.C. PROVIDES WITH CERTAIN EXCEPTIONS NOT PERTINENT HERE THAT UNDER REGULATIONS APPROVED BY THE SECRETARY CONCERNED, A MEMBER OF A UNIFORMED SERVICE WHOSE DEPENDENTS ARE COVERED BY SECTION 405A (A) OF THAT TITLE, IS ENTITLED TO A DISLOCATION ALLOWANCE. SECTION 405A (A) PROVIDES THAT UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, WHEN DEPENDENTS OF MEMBERS OF THE UNIFORMED SERVICES ARE ORDERED EVACUATED BY COMPETENT AUTHORITY, THEY MAY BE AUTHORIZED SUCH ALLOWANCES AS THE SECRETARY CONCERNED DETERMINES NECESSARY TO OFFSET THE EXPENSES INCIDENT TO THE EXCAVATION. SECTION 405A (A) ALSO PROVIDES THAT A DEPENDENT ORDERED EVACUATED BY COMPETENT AUTHORITY INCLUDES:

(1) A DEPENDENT WHO IS PRESENT AT OR IN THE VICINITY OF THE MEMBER'S DUTY STATION WHEN THE EVACUATION OF DEPENDENTS IS ORDERED BY COMPETENT AUTHORITY AND WHO ACTUALLY MOVES TO AN AUTHORIZED SAFE HAVEN DESIGNATED BY THAT AUTHORITY, WHETHER SUCH SAFE HAVEN IS AT OR IN THE VICINITY OF THE MEMBER'S DUTY STATION OR ELSEWHERE; * * *

PARAGRAPH M9008 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT WHEN DEPENDENTS ARE EVACUATED TO A PLACE DESIGNATED BY THE MEMBER OR THE DEPENDENTS UNDER THE PROVISIONS OF PARAGRAPH M7101, ITEM 1, AS THE PLACE AT WHICH THE DEPENDENTS INTEND TO RESIDE UNTIL SUCH TIME AS THEY MAY REJOIN THE MEMBER AT HIS DUTY STATION, A DISLOCATION ALLOWANCE IN AN AMOUNT EQUAL TO 1 MONTH'S BASIC ALLOWANCE FOR QUARTERS IS PAYABLE.

PARAGRAPH M7101 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT WHEN, DUE TO UNUSUAL OR EMERGENCY CIRCUMSTANCES (SUCH AS WAR, RIOTS, CIVIL UPRISINGS OR UNREST, ADVERSE POLITICAL CONDITIONS, DENIAL OR REVOCATION BY HOST GOVERNMENT OF PERMISSION TO REMAIN, NATIONAL DISASTER, EPIDEMIC, OR SIMILAR CIRCUMSTANCES OF COMPARABLE MAGNITUDE), THE EVACUATION OF DEPENDENTS OF A MEMBER OF THE UNIFORMED SERVICES IS AUTHORIZED OR APPROVED BY THE SECRETARY OF THE SERVICE CONCERNED, HIS DESIGNATED REPRESENTATIVE, OR OTHER COMPETENT AUTHORITY, TRANSPORTATION FOR SUCH DEPENDENTS (WITHOUT REGARD TO RANK OR GRADE OF THE MEMBER) WILL BE AUTHORIZED FROM THE OVERSEAS AREA TO:

1. A PLACE IN THE UNITED STATES, INCLUDING ALASKA AND HAWAII, PUERTO RICO, OR A TERRITORY OR POSSESSION OF THE UNITED STATES DESIGNATED BY THE MEMBER OR HIS DEPENDENTS; OR

2. A TEMPORARY (SAFE HAVEN) LOCATION INSIDE OR OUTSIDE THE UNITED STATES AS MAY BE AUTHORIZED OR APPROVED BY THE SECRETARY OF THE SERVICE CONCERNED, OR HIS DESIGNATED REPRESENTATIVE, PENDING SUBSEQUENT TRANSPORTATION TO A PLACE DESIGNATED UNDER ITEM 1.

IN A LETTER DATED AUGUST 24, 1967, ACCOMPANYING HIS CLAIM, COLONEL YEP POINTS OUT THAT SECTION 405A (A), PRIOR TO ITS AMENDMENT BY PUBLIC LAW 89- 608 APPROVED SEPTEMBER 30, 1966, PROVIDED FOR PAYMENT OF EVACUATION ALLOWANCES ONLY WHEN DEPENDENTS WERE EVACUATED BY COMPETENT AUTHORITY "FROM PLACES OUTSIDE THE UNITED STATES TO PLACES INSIDE THE UNITED STATES," BUT THAT SUCH RESTRICTION WAS REMOVED BY THE 1966 AMENDMENT. THAT BASIS, HE CONTENDS THAT THE RESTRICTION IN PARAGRAPH M9008 IS CONTRARY TO THE LAW AND WITHOUT EFFECT TO DENY HIM A DISLOCATION ALLOWANCE.

SECTION 405A DOES NOT PRESCRIBE THE ALLOWANCES PAYABLE INCIDENT TO THE EVACUATION OF A MEMBER'S DEPENDENTS, BUT PROVIDES THAT UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, THEY MAY BE AUTHORIZED SUCH ALLOWANCES AS THE SECRETARY DETERMINES NECESSARY TO OFFSET EXPENSES INCIDENT TO THE EVACUATION.

LIKEWISE, AS WE HAVE INDICATED ABOVE, SECTION 407 PROVIDES THAT UNDER REGULATIONS APPROVED BY THE SECRETARY CONCERNED, A MEMBER WHOSE DEPENDENTS ARE COVERED BY SECTION 405A (A) IS ENTITLED TO A DISLOCATION ALLOWANCE. THUS, NEITHER SECTION 405A NOR SECTION 407 IS SELF EXECUTING, BUT BOTH SECTIONS REQUIRE IMPLEMENTING REGULATIONS ISSUED WITHIN THE SCOPE OF THE SECTIONS TO CARRY THEM INTO EFFECT.

THE PURPOSE OF THE DISLOCATION ALLOWANCE (PARAGRAPH M9000) IS TO PARTIALLY REIMBURSE A MEMBER WITH DEPENDENTS FOR THE EXPENSES INCURRED IN RELOCATING HIS HOUSEHOLD. PARAGRAPH M9008 CONTEMPLATES PAYMENT OF THE ALLOWANCE WHEN DEPENDENTS ARE EVACUATED TO A PLACE DESIGNATED UNDER PARAGRAPH M7101-1 AS A PLACE WHERE THEY WILL LOCATE THEIR HOUSEHOLD AND ESTABLISH A RESIDENCE UNTIL SUCH TIME AS THEY WILL REJOIN THE MEMBER. DEPENDENTS WHO ARE EVACUATED TO A TEMPORARY (SAFE HAVEN) LOCATION UNDER PARAGRAPH M7101-2, WITH THE EXPECTATION OF BEING MOVED TO THE PLACE DESIGNATED UNDER ITEM 1 OF THAT PARAGRAPH OR RETURNED TO THE MEMBER'S STATION, ORDINARILY DO NOT LOCATE THEIR HOUSEHOLD AND ESTABLISH A RESIDENCE AT THE TEMPORARY LOCATION AND THE EXPENSES OF RELOCATING THE HOUSEHOLD TO SUCH TEMPORARY LOCATION GENERALLY ARE NOT INCURRED.

THEREFORE, WE ARE OF THE OPINION THAT THE PROVISIONS OF PARAGRAPH M9008 WHICH OPERATE TO DENY A DISLOCATION ALLOWANCE INCIDENT TO THE MOVEMENT OF DEPENDENTS TO A TEMPORARY (SAFE HAVEN) LOCATION ARE IN ACCORD WITH THE INTENT OF SECTION 407 AND THAT IT WAS CLEARLY WITHIN THE AUTHORITY OF THE SECRETARIES CONCERNED TO ISSUE SUCH IMPLEMENTING REGULATIONS.

ACCORDINGLY, PAYMENT OF THE DISLOCATION ALLOWANCE TO COLONEL YEP IS NOT AUTHORIZED AND THE ENCLOSURES WHICH ACCOMPANIED YOUR REQUEST FOR DECISION WILL BE RETAINED HERE.