B-163848, AUG. 7, 1968

B-163848: Aug 7, 1968

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FLEMING: FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 12. WE ALSO HAVE YOUR LETTERS OF JUNE 17 AND JULY 19. YOU WERE REASSIGNED TO HEADQUARTERS. THAT YOU WERE TRANSFERRED IN ORDER TO FILL A VACANT BILLET. THAT YOU WERE UNABLE TO SUBMIT A STATEMENT AS REQUIRED BY REGULATIONS BECAUSE THE APPROPRIATE AUTHORITY HAD DECLINED TO EXECUTE SUCH STATEMENT IN YOUR CASE. IT WAS DISALLOWED BECAUSE A CERTIFICATE THAT THE RELOCATION OF YOUR HOUSEHOLD WAS NECESSARY DID NOT ISSUE IN ACCORDANCE WITH PARAGRAPH M9003-7. YOU CONTEND THAT THE SETTLEMENT OBVIOUSLY IS IN ERROR SINCE PARAGRAPH M9003-7 DOES NOT MENTION THAT "THE DISLOCATION ALLOWANCE IS NOT PAYABLE FOR ANY PERMANENT CHANGE OF STATION BETWEEN STATIONS LOCATED IN CLOSE PROXIMITY TO EACH OTHER.'.

B-163848, AUG. 7, 1968

TO MAJOR JAMES P. FLEMING:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 12, 1968, WITH ENCLOSURES, REQUESTING RECONSIDERATION OF SETTLEMENT DATED FEBRUARY 23, 1968, WHICH DISALLOWED YOUR CLAIM FOR DISLOCATION ALLOWANCE INCIDENT TO THE MOVEMENT OF YOUR FAMILY FROM SCHOFIELD BARRACKS, OAHU, HAWAII, TO FORT SHAFTER, OAHU, HAWAII. WE ALSO HAVE YOUR LETTERS OF JUNE 17 AND JULY 19, 1968, INQUIRING RELATIVE TO THE STATUS OF THE CLAIM.

BY PARAGRAPH 1, SPECIAL ORDERS NO. 162, HEADQUARTERS, UNITED STATES ARMY SECURITY AGENCY, PACIFIC, APO SAN FRANCISCO 96545 (HELEMANO MILITARY RESERVATION, OAHU, HAWAII), DATED AUGUST 16, 1967, YOU WERE REASSIGNED TO HEADQUARTERS, UNITED STATES ARMY, PACIFIC, APO SAN FRANCISCO 96558 (FORT SHAFTER, OAHU, HAWAII), AND DIRECTED TO REPORT NOT LATER THAN AUGUST 31, 1967. PARAGRAPH 8 OF SPECIAL ORDER NO. 181 OF THE SAME COMMAND, DATED SEPTEMBER 11, 1967, REVOKED THE ORDERS OF AUGUST 16, 1967, AND PARAGRAPH 9 THEREOF DIRECTED THE SAME REASSIGNMENT WITH AN ADDED TRAVEL AUTHORIZATION AND SHOWING OF PERMANENT CHANGE OF STATION.

IN A LETTER DATED NOVEMBER 8, 1967, SUBMITTED IN SUPPORT OF YOUR CLAIM FOR DISLOCATION ALLOWANCE, YOU STATED THAT ON AUGUST 31, 1967, YOU RELOCATED YOUR HOUSEHOLD FROM SCHOFIELD BARRACKS TO FORT SHAFTER, A DISTANCE OF APPROXIMATELY 20 MILES, AND THAT YOU INCURRED CONSIDERABLE EXPENSES, AS DETAILED THEREIN, IN CONNECTION WITH THIS MOVEMENT. YOU STATED ALSO, AMONG OTHER THINGS, THAT YOU WERE TRANSFERRED IN ORDER TO FILL A VACANT BILLET, THAT YOU HAD THE ALTERNATIVE OF RETAINING YOUR HOUSEHOLD AT SCHOFIELD BARRACKS AND DRIVING 40 MILES EACH DAY ON EXTREMELY CONGESTED HIGHWAYS IN COMMUTING TO FORT SHAFTER, AND THAT YOU WERE UNABLE TO SUBMIT A STATEMENT AS REQUIRED BY REGULATIONS BECAUSE THE APPROPRIATE AUTHORITY HAD DECLINED TO EXECUTE SUCH STATEMENT IN YOUR CASE.

THE FINANCE CENTER, U.S. ARMY, INDIANAPOLIS, INDIANA, FORWARDED YOUR CLAIM TO OUR CLAIMS DIVISION AND BY SETTLEMENT DATED FEBRUARY 23, 1968, IT WAS DISALLOWED BECAUSE A CERTIFICATE THAT THE RELOCATION OF YOUR HOUSEHOLD WAS NECESSARY DID NOT ISSUE IN ACCORDANCE WITH PARAGRAPH M9003-7, JOINT TRAVEL REGULATIONS, AND PARAGRAPH 12-2E, ARMY REGULATION 37-106.

WITH YOUR LETTER OF MARCH 12, 1968, YOU ENCLOSED A COPY OF THE SETTLEMENT CERTIFICATE OF FEBRUARY 23, 1968, AND A COPY OF PART A, CHAPTER 9, JOINT TRAVEL REGULATIONS. YOU CONTEND THAT THE SETTLEMENT OBVIOUSLY IS IN ERROR SINCE PARAGRAPH M9003-7 DOES NOT MENTION THAT "THE DISLOCATION ALLOWANCE IS NOT PAYABLE FOR ANY PERMANENT CHANGE OF STATION BETWEEN STATIONS LOCATED IN CLOSE PROXIMITY TO EACH OTHER.' YOU FURTHER SAY THAT THE REFERENCE TO PARAGRAPH 12-2E, ARMY REGULATION 37-106, ALSO IS ERRONEOUS INASMUCH AS CHANGE 28, DATED DECEMBER 12, 1966, TO THAT REGULATION ELIMINATES PARAGRAPH 12-2E.

IN ADDITION, YOU ASK WHETHER THE G1, UNITED STATES ARMY, PACIFIC, CAN LEGALLY REQUIRE AS A CONDITION TO PAYMENT OF THE ALLOWANCE A LETTER FROM AN OFFICE CHIEF OF THE RELOCATED INDIVIDUAL THAT THE RELOCATION OF HIS HOUSEHOLD IS A "MILITARY NECESSITY TO SATISFY OPERATIONAL REQUIREMENTS" WHEN THE APPLICABLE PARAGRAPH IN THE JOINT TRAVEL REGULATIONS REQUIRES "ONLY THAT THE RELOCATION OF THE HOUSEHOLD WAS NECESSARY AS A DIRECT RESULT OF THE PERMANENT CHANGE OF STATION.' IF THE ANSWER TO THIS QUESTION IS IN THE AFFIRMATIVE THEN YOU ASK WHY THIS REQUIREMENT IS NOT APPLICABLE TO ALL COMMANDS AND SUBORDINATE ELEMENTS WITHIN UNITED STATES ARMY, PACIFIC. IN THIS CONNECTION, YOU REFER TO YOUR LETTER OF MARCH 12, 1968, IN WHICH YOU SAID THAT THE DISLOCATION ALLOWANCE HAS BEEN PAID TO SEVERAL MEMBERS OF AN INFANTRY ORGANIZATION, A SUBORDINATE COMMAND OF UNITED STATES ARMY, PACIFIC, WHO RELOCATED THEIR HOUSEHOLD FROM FORT SHAFTER TO SCHOFIELD BARRACKS AND TO ARMY PERSONNEL WHO RELOCATED FROM SCHOFIELD BARRACKS TO FORT SHAFTER.

SECTION 407 (A), TITLE 37, U.S. CODE, PROVIDES THAT UNDER REGULATIONS APPROVED BY THE SECRETARY CONCERNED, A MEMBER OF THE UNIFORMED SERVICES WHOSE DEPENDENTS MAKE AN AUTHORIZED MOVE IN CONNECTION WITH HIS PERMANENT CHANGE OF STATION IS ENTITLED TO A DISLOCATION ALLOWANCE. PARAGRAPH M9002 -1, JOINT TRAVEL REGULATIONS, IN EFFECT AT THE TIME INVOLVED (NOW PARAGRAPH M9003-1), AUTHORIZES THE PAYMENT OF THE DISLOCATION ALLOWANCE, EXCEPT AS THERE PROVIDED, WHENEVER DEPENDENTS RELOCATE THEIR HOUSEHOLD IN CONNECTION WITH A PERMANENT CHANGE OF STATION. IT ALSO SPECIFICALLY PROVIDES THAT A STATEMENT FROM THE COMMANDING OFFICER OF THE NEW PERMANENT DUTY STATION THAT THE RELOCATION WAS NECESSARY AS A DIRECT RESULT OF THE PERMANENT CHANGE OF STATION (OTHER THAN TO A RESTRICTED AREA) IS REQUIRED WHEN THE PERMANENT CHANGE OF STATION IS BETWEEN STATIONS LOCATED IN PROXIMITY TO EACH OTHER, OR WHEN THE RELOCATION OF THE HOUSEHOLD IS BETWEEN PLACES LOCATED IN PROXIMITY TO EACH OTHER WHETHER OR NOT WITHIN THE SAME CITY.

SINCE YOU VOLUNTARILY RELOCATED YOUR HOUSEHOLD TO A PLACE IN OAHU IN CLOSE PROXIMITY TO YOUR FORMER PLACE ON THAT ISLAND, THE PROVISIONS OF PARAGRAPH M9002-1, JOINT TRAVEL REGULATIONS, ARE FOR APPLICATION IN YOUR CASE. IN OTHER WORDS, PAYMENT OF THE DISLOCATION ALLOWANCE TO YOU IN CONNECTION WITH SUCH MOVEMENT IS NOT AUTHORIZED SINCE YOUR CLAIM IS NOT SUPPORTED BY A STATEMENT BY THE COMMANDING OFFICER AT FORT SHAFTER, YOUR NEW STATION, AS REQUIRED BY THAT REGULATION.

ON THE BASIS OF THE PRESENT RECORD WHICH SHOWS THAT YOU WERE NOT REQUIRED TO VACATE YOUR QUARTERS AT SCHOFIELD BARRACKS AND THAT THE REQUIRED STATEMENT BY THE APPROPRIATE AUTHORITY HAS NOT BEEN SUBMITTED IN CONNECTION WITH YOUR RELOCATION, IT HAVING BEEN ADMINISTRATIVELY DETERMINED THAT THE RELOCATION OF YOUR HOUSEHOLD WAS NOT REQUIRED TO SATISFY OPERATIONAL REQUIREMENTS, THERE IS NO LEGAL AUTHORITY FOR PAYMENT TO YOU OF THE DISLOCATION ALLOWANCE. SEE, IN THIS RESPECT, OUR DECISION OF FEBRUARY 23, 1965, 44 COMP. GEN. 513, COPY ENCLOSED, IN WHICH WE HELD THAT THE DISLOCATION ALLOWANCE WAS NOT PAYABLE TO AN ARMY MEMBER WHO IN SIMILAR CIRCUMSTANCES RELOCATED HIS HOUSEHOLD FROM SCHOFIELD BARRACKS TO FORT SHAFTER.

THE QUESTIONS PRESENTED BY YOU CONCERN THE PROPRIETY OF INSTRUCTIONS ISSUED BY YOUR HEADQUARTERS IN IMPLEMENTATION OF PARAGRAPH M9002, JOINT TRAVEL REGULATIONS, AS CONTAINED IN "DF TO CHIEFS, ALL STAFF OFFICES, HQ USARPAC" DATED OCTOBER 14, 1966, SUBJECT: "PAYMENT OF DISLOCATION ALLOWANCE UPON PCS MOVE ON OAHU.' PARAGRAPH 3 OF THIS DF IS AS FOLLOWS:

"PARAGRAPH M9002, JOINT TRAVEL REGULATIONS, GOVERNS THE PAYMENT OF DISLOCATION ALLOWANCE. STATEMENTS REQUIRED BY THIS REGULATION FOR PAYMENT OF DISLOCATION ALLOWANCE WILL BE SIGNED BY THE G1. REQUESTS FOR STATEMENTS MUST BE SUPPORTED BY A LETTER FROM OFFICE CHIEF TO G1 STATING THAT RELOCATION OF THE INDIVIDUAL'S HOUSEHOLD IS A MILITARY NECESSITY TO SATISFY OPERATIONAL REQUIREMENTS.'

ANSWERING YOUR FIRST QUESTION, IT IS OUR OPINION THAT THE SUBJECT INSTRUCTIONS ISSUED BY HEADQUARTERS, UNITED STATES ARMY, PACIFIC, ON OCTOBER 14, 1966, APPEAR TO BE REASONABLE AND CONSISTENT WITH THE PURPOSE OF PARAGRAPH M9002-1 (NOW PARAGRAPH M9003-1), JOINT TRAVEL REGULATIONS, AND, THEREFORE, THE ISSUANCE OF SUCH INSTRUCTIONS REPRESENTS A VALID EXERCISE OF ADMINISTRATIVE AUTHORITY IN THE MATTER.

AS TO YOUR SECOND QUESTION, THE FACT, IF ESTABLISHED, THAT SUCH INSTRUCTIONS ARE NOT UNIFORMLY FOLLOWED BY ALL COMMANDS AND SUBORDINATE ELEMENTS OF HEADQUARTERS, UNITED STATES ARMY, PACIFIC, WITH RESPECT TO RELOCATION OF HOUSEHOLDS ON OAHU WOULD NOT SERVE TO ENTITLE YOU TO PAYMENT OF THE AMOUNT CLAIMED CONTRARY TO THE GOVERNING REGULATIONS. THE FACT THAT DISLOCATION ALLOWANCE HAS BEEN PAID INCIDENT TO SOME HOUSEHOLD RELOCATIONS ON OAHU DOES NOT ESTABLISH, HOWEVER, THAT THE REGULATIONS ARE NOT BEING UNIFORMLY APPLIED. PRESUMABLY THOSE PAYMENTS WERE SUPPORTED BY A DETERMINATION IN EACH CASE THAT, BECAUSE OF THE CIRCUMSTANCES INVOLVED, THE RELOCATION WAS A MILITARY NECESSITY TO SATISFY OPERATIONAL REQUIREMENTS.

ACCORDINGLY, FOR THESE REASONS, THE SETTLEMENT OF FEBRUARY 23, 1968, IS SUSTAINED.