B-163763, JUL. 25, 1968

B-163763: Jul 25, 1968

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BERNSTEIN: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 15. PRIOR TO YOUR DEPARTURE TO YOUR RESTRICTED OVERSEAS DUTY STATION TO WHICH THE MOVEMENT OF YOUR DEPENDENTS WAS NOT AUTHORIZED. THE DATE YOU SAY YOU WERE SEPARATED FROM YOUR FAMILY. YOU STATED IN THAT CLAIM THAT SINCE YOUR DEPENDENTS WERE NOT AUTHORIZED TO REMAIN IN GOVERNMENT QUARTERS IN FORT LEWIS. IN ORDER TO RELOCATE THEM AND THAT YOU WERE AUTHORIZED 20 DAYS' PREDEPLOYMENT LEAVE. BECAUSE THE ORDERS WERE "MODIFIED. YOUR CLAIM WAS DENIED BY THE FINANCE CENTER. YOU CONTENDED THAT BECAUSE OF COMPETENT MILITARY ORDERS YOU WERE REQUIRED TO MOVE YOUR FAMILY AND THIS CAUSED A SEPARATION. OUR CLAIMS DIVISION DISALLOWED YOUR CLAIM FOR THE REASON THAT YOU FURNISHED NOTHING TO SHOW THAT YOU WERE OFFICIALLY REQUIRED TO RELOCATE YOUR FAMILY AT A PLACE WHERE YOU COULD NOT RESIDE WITH THEM DURING THE PERIOD OF YOUR CLAIM.

B-163763, JUL. 25, 1968

TO MAJOR DONALD I. BERNSTEIN:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 15, 1968, IN EFFECT REQUESTING RECONSIDERATION OF YOUR CLAIM FOR FAMILY SEPARATION ALLOWANCE (FSA, TYPE II) FOR THE PERIOD APRIL 6 TO 24, 1967, PRIOR TO YOUR DEPARTURE TO YOUR RESTRICTED OVERSEAS DUTY STATION TO WHICH THE MOVEMENT OF YOUR DEPENDENTS WAS NOT AUTHORIZED.

THE RECORD SHOWS THAT ON MAY 8, 1967, YOU PRESENTED A CLAIM TO THE ARMY FOR FAMILY SEPARATION ALLOWANCE FOR THE PERIOD APRIL 6, 1967, THE DATE YOU SAY YOU WERE SEPARATED FROM YOUR FAMILY, TO APRIL 24, 1967, THE DATE YOU DEPARTED FROM YOUR PERMANENT DUTY STATION, FORT LEWIS, WASHINGTON, UNDER ORDERS TRANSFERRING YOU TO DUTY IN VIETNAM. YOU STATED IN THAT CLAIM THAT SINCE YOUR DEPENDENTS WERE NOT AUTHORIZED TO REMAIN IN GOVERNMENT QUARTERS IN FORT LEWIS, YOU LEFT THAT STATION ON MARCH 17, 1967, IN ORDER TO RELOCATE THEM AND THAT YOU WERE AUTHORIZED 20 DAYS' PREDEPLOYMENT LEAVE. YOU STATED FURTHER THAT YOU RETURNED TO FORT LEWIS ON APRIL 6, 1967, PREPARED TO DEPART FROM THAT STATION AS OFFICER IN CHARGE OF AN ADVANCE PARTY OF THE 225TH AVIATION COMPANY, BUT BECAUSE THE ORDERS WERE "MODIFIED, CHANGED, DELAYED, CANCELLED AND FINALLY ISSUED" YOU DID NOT DEPART THEREFROM UNTIL APRIL 24, 1967.

YOUR CLAIM WAS DENIED BY THE FINANCE CENTER, U.S. ARMY, INDIANAPOLIS, INDIANA, ON JUNE 27, 1967. IN A LETTER DATED OCTOBER 9, 1967, YOU REQUESTED THAT WE EXAMINE YOUR CLAIM AND RESOLVE IT IN YOUR FAVOR. ADDITION TO REITERATING THE FACTUAL INFORMATION CONTAINED IN YOUR CLAIM OF MAY 8, 1967, MENTIONED ABOVE, YOU RELATED IN THE LETTER OF OCTOBER 9, 1967, THAT DURING THE PERIOD APRIL 6 TO 24, 1967, YOU LIVED IN BACHELOR OFFICERS' QUARTERS, THAT BECAUSE OF MILITARY CONSIDERATIONS RATHER THAN ANY FAULT ON YOUR PART YOU DID NOT DEPART FROM FORT LEWIS ON SCHEDULE, AND THAT IN FOLLOWING ARMY INSTRUCTIONS YOU INCURRED EXTRA EXPENSES. ALSO, YOU CONTENDED THAT BECAUSE OF COMPETENT MILITARY ORDERS YOU WERE REQUIRED TO MOVE YOUR FAMILY AND THIS CAUSED A SEPARATION.

BY SETTLEMENT DATED DECEMBER 7, 1967, OUR CLAIMS DIVISION DISALLOWED YOUR CLAIM FOR THE REASON THAT YOU FURNISHED NOTHING TO SHOW THAT YOU WERE OFFICIALLY REQUIRED TO RELOCATE YOUR FAMILY AT A PLACE WHERE YOU COULD NOT RESIDE WITH THEM DURING THE PERIOD OF YOUR CLAIM.

IN YOUR LETTER OF JANUARY 15, 1968, YOU REQUESTED THAT WE CONSIDER YOUR CLAIM ON THE BASIS OF ADDITIONAL DATA WHICH YOU SAY IS SUFFICIENT TO SHOW THAT THE ARMY OFFICIALLY AUTHORIZED AND APPROVED THE RELOCATION OF YOUR FAMILY TO YOUR HOME STATE OF RECORD, NEW YORK STATE. YOU ADD THAT SINCE YOUR FAMILY RESIDED IN NEW YORK STATE AND YOU WERE IN A DUTY STATUS AT FORT LEWIS, A DISTANCE OF 3,000 MILES, YOU COULD NOT HAVE RESIDED WITH THEM DURING THE PERIOD OF YOUR CLAIM. SUBSEQUENTLY, YOU FORWARDED HERE THAT DATA, CONSISTING OF COPIES OF THE VOUCHER COVERING PAYMENT OF MILEAGE FOR DEPENDENT TRAVEL TO SPRING VALLEY, NEW YORK, VOUCHER COVERING PAYMENT OF DISLOCATION ALLOWANCE, AND LETTER DATED MARCH 16, 1967, FROM HEADQUARTERS FORT LEWIS TERMINATING ASSIGNMENT OF GOVERNMENT FAMILY QUARTERS.

SECTION 427 (B), TITLE 37, OF THE U.S.C. AUTHORIZES THE PAYMENT OF A FAMILY SEPARATION ALLOWANCE OF $30 PER MONTH TO CERTAIN MEMBERS ENTITLED TO BASIC ALLOWANCE FOR QUARTERS IF --

"/1) THE MOVEMENT OF HIS DEPENDENTS TO HIS PERMANENT STATION OR A PLACE NEAR THAT STATION IS NOT AUTHORIZED AT THE EXPENSE OF THE UNITED STATES UNDER SECTION 406 OF THIS TITLE AND HIS DEPENDENTS DO NOT RESIDE AT OR NEAR THAT STATION; "

IMPLEMENTING REGULATIONS OF THE DEPARTMENT OF DEFENSE ARE CONTAINED IN PARAGRAPHS 30301 THROUGH 30325 AND TABLES 3-3-1 THROUGH 3-3-6 OF THE MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL. TABLE 3-3-5, RULE 1, PROVIDES THAT CREDIT FOR FAMILY SEPARATION ALLOWANCE, TYPE II, FOR AN ELIGIBLE MEMBER DEPARTING FROM HIS PERMANENT STATION ON PERMANENT CHANGE OF STATION OR TEMPORARY DUTY FOR A PERIOD OF MORE THAN 30 DAYS STARTS ON DATE OF DETACHMENT FROM OLD STATION, IF TRAVEL IS OFFICIALLY REQUIRED ON THAT DATE.

SINCE THE ABOVE REGULATION PRESCRIBED THAT AN ELIGIBLE MEMBER BECOMES ENTITLED TO A FAMILY SEPARATION ALLOWANCE ONLY UPON DETACHMENT FROM HIS OLD PERMANENT DUTY STATION, IF TRAVEL IS OFFICIALLY REQUIRED ON THAT DATE IN PROCEEDING TO HIS NEW DUTY STATION TO WHICH THE MOVEMENT OF HIS DEPENDENTS IS NOT AUTHORIZED, IT IS CLEAR THAT THIS REGULATION PRECLUDES PAYMENT TO SUCH MEMBER OF THE ALLOWANCE FOR ANY PERIOD PRIOR TO THE DATE OF SUCH DETACHMENT IF HIS DEPENDENTS RESIDED AT, OR COULD HAVE CONTINUED TO RESIDE AT, HIS OLD STATION DURING SUCH PERIOD.

FORT LEWIS WAS NOT A RESTRICTED STATION TO WHICH THE MOVEMENT OF DEPENDENTS WAS NOT AUTHORIZED AND THE FACT THAT YOUR ASSIGNMENT OF QUARTERS WAS TERMINATED ON MARCH 16, 1967, DID NOT REQUIRE THE MOVEMENT OF YOUR DEPENDENTS FROM THE VICINITY OF THAT STATION. THE FACT THAT YOU WERE PERMITTED TO RELOCATE THE HOUSEHOLD OF YOUR DEPENDENTS AT GOVERNMENT EXPENSE BEFORE THE REQUIRED DATE OF YOUR DEPARTURE FROM FORT LEWIS WAS FOR YOUR CONVENIENCE AND NOT BECAUSE OF ANY REQUIREMENT OF THE GOVERNMENT. CONSEQUENTLY, THE SEPARATION FROM YOUR DEPENDENTS THAT RESULTED FROM YOUR MOVEMENT OF THEM TO NEW YORK STATE BEFORE THE DATE OF YOUR DETACHMENT FROM FORT LEWIS AFFORDS NO BASIS FOR PAYMENT OF FAMILY SEPARATION ALLOWANCE PRIOR TO THAT DATE.

IT LONG HAS BEEN THE RULE THAT NO OFFICIAL TRAVEL IS REQUIRED UNDER CHANGE-OF-STATION ORDERS UNTIL SUCH TIME AS THE TRAVELER MUST DEPART FROM THE OLD STATION BY ORDINARY MEANS OF TRANSPORTATION (UNLESS OTHERWISE DIRECTED) TO REACH HIS DESTINATION ON THE DATE DESIGNATED BY THE TRAVEL ORDERS. THE TERMS AND CONDITIONS OF TRAVEL ORDERS ISSUED TO MEMBERS OF THE ARMED FORCES ARE SUBJECT TO MODIFICATION OR REVOCATION AT ANY TIME PRIOR TO THE EXECUTION OF THE TRAVEL AS DIRECTED AND IT IS WELL SETTLED THAT IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY PROVIDING FOR REIMBURSEMENT, ANY EXPENSES INCURRED BY THE MEMBER PREPARATORY TO COMPLYING WITH THE ORDERS MUST BE BORNE BY HIM IF THE ORDERS ARE RESCINDED, CANCELED OR MODIFIED PRIOR TO THE EFFECTIVE DATE THEREOF. COMP. GEN. 34; 33 COMP. GEN. 289; AND 19 COMP. GEN. 315.

CONSEQUENTLY, THE FACT THAT AFTER YOUR RETURN TO FORT LEWIS ON APRIL 6, 1967, YOUR ORDERS WERE MODIFIED OR CHANGED TO DELAY THE DEPARTURE DATE FOR YOUR OVERSEAS STATION TO APRIL 24, 1967, LIKEWISE DOES NOT PROVIDE ANY LEGAL BASIS TO PAY YOU FAMILY SEPARATION ALLOWANCE FOR THAT INTERIM PERIOD CONTRARY TO THE PROVISIONS OF THE ABOVE REGULATION. YOU HAVE NOT FURNISHED COPIES OF YOUR TRAVEL ORDERS, BUT INASMUCH AS IT APPEARS THAT YOU WERE DETACHED FROM FORT LEWIS ON APRIL 24, 1967, UNDER YOUR ORDERS AS MODIFIED OR CHANGED, YOUR ENTITLEMENT TO A FAMILY SEPARATION ALLOWANCE UNDER THE REGULATION DID NOT COMMENCE PRIOR TO THAT DATE.