B-165445, OCT. 30, 1968

B-165445: Oct 30, 1968

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MCKINLEY: WE ARE IN RECEIPT OF YOUR LETTER OF OCTOBER 8. YOUR CLAIM WAS DISALLOWED BECAUSE YOU DID NOT BEGIN THE USE OF TEMPORARY QUARTERS UNTIL MORE THAN 30 DAYS AFTER THE DATE YOU REPORTED FOR DUTY AT YOUR NEW OFFICIAL DUTY STATION AS REQUIRED BY APPLICABLE REGULATIONS. YOU REFER TO THE APPLICABLE REGULATIONS AS BEING CONTAINED IN SECTION 2.5B (6) OF THE JOINT TRAVEL REGULATIONS OF THE DEPARTMENT OF DEFENSE AND YOU SUGGEST THAT SUCH SECTION IS "ARBITRARY AND CAPRICIOUS" WHEN APPLIED TO SITUATIONS SUCH AS YOURS. YOU SAY THAT YOU WERE UNABLE TO OBTAIN OCCUPANCY OF A NEW HOUSE WHICH YOU HAD PURCHASED IN THE VICINITY OF FORT SHERIDAN UNTIL JULY 22. WERE ONLY ABLE TO MAINTAIN YOUR FAMILY IN THE OLD HOUSE THROUGH JUNE 28.

B-165445, OCT. 30, 1968

TO MR. HUGH F. MCKINLEY:

WE ARE IN RECEIPT OF YOUR LETTER OF OCTOBER 8, 1968, IN WHICH YOU REQUEST RECONSIDERATION OF THE DISALLOWANCE OF YOUR CLAIM FOR SUBSISTENCE EXPENSES WHILE OCCUPYING TEMPORARY QUARTERS INCIDENT TO A PERMANENT TRANSFER OF EMPLOYMENT.

YOUR CLAIM WAS DISALLOWED BECAUSE YOU DID NOT BEGIN THE USE OF TEMPORARY QUARTERS UNTIL MORE THAN 30 DAYS AFTER THE DATE YOU REPORTED FOR DUTY AT YOUR NEW OFFICIAL DUTY STATION AS REQUIRED BY APPLICABLE REGULATIONS. YOU REFER TO THE APPLICABLE REGULATIONS AS BEING CONTAINED IN SECTION 2.5B (6) OF THE JOINT TRAVEL REGULATIONS OF THE DEPARTMENT OF DEFENSE AND YOU SUGGEST THAT SUCH SECTION IS "ARBITRARY AND CAPRICIOUS" WHEN APPLIED TO SITUATIONS SUCH AS YOURS.

THE RECORD INDICATES THAT PURSUANT TO TRANSFER OF DUTY STATION ORDERS YOU REPORTED TO YOUR NEW DUTY STATION AT FORT SHERIDAN, ILLINOIS (OLD STATION CHICAGO), A DISTANCE OF 29 MILES ON MAY 19, 1967. YOU SAY THAT YOU WERE UNABLE TO OBTAIN OCCUPANCY OF A NEW HOUSE WHICH YOU HAD PURCHASED IN THE VICINITY OF FORT SHERIDAN UNTIL JULY 22, 1967, AND WERE ONLY ABLE TO MAINTAIN YOUR FAMILY IN THE OLD HOUSE THROUGH JUNE 28, 1967. IN VIEW OF SUCH CIRCUMSTANCES YOU WERE REQUIRED TO OCCUPY TEMPORARY QUARTERS FROM JUNE 29 THROUGH JULY 21, 1967.

IT SHOULD BE NOTED THAT THE LAW WHICH CREATED THE SUBSISTENCE ALLOWANCE FOR THE OCCUPANCY OF TEMPORARY QUARTERS, 5 U.S.C. 5724A (A) (3), ALSO AUTHORIZED THE PRESIDENT TO ISSUE REGULATIONS FOR ITS IMPLEMENTATION. THE APPLICABLE PROVISION IN PERTINENT PART STATES: "UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE AND TO THE EXTENT CONSIDERED NECESSARY AND APPROPRIATE * * *.' THE PRESIDENT HAS DELEGATED HIS POWER TO ISSUE REGULATIONS UNDER THIS STATUTE TO THE BUREAU OF THE BUDGET. THE BUREAU OF THE BUDGET ACCORDINGLY ISSUED ITS REGULATIONS FOR THE IMPLEMENTATION OF 5 U.S.C. 5724A IN ITS CIRCULAR NO. A-56 WHICH IN SECTION 2.5B (6) CONTAINS THE IDENTICAL LANGUAGE ADOPTED BY THE DEPARTMENT OF DEFENSE IN ITS JOINT TRAVEL REGULATIONS, APPENDIX A, SECTION 2.5B (6).

ABSENT A FINDING THAT THE PARTICULAR REGULATION AS ISSUED BY THE BUREAU OF THE BUDGET WAS CLEARLY UNREASONABLE, WHICH DOES NOT APPEAR TO BE THE CASE HERE, IT HAS THE SAME FORCE AND EFFECT AS THE STATUTE WHICH CREATED THE SUBSISTENCE ENTITLEMENT.

WHILE IT COULD BE ARGUED THAT THERE SHOULD BE SOME PROVISION FOR EXCEPTIONAL CIRCUMSTANCES NEVERTHELESS THE BUREAU OF THE BUDGET DID NOT SEE FIT TO INCLUDE SUCH A PROVISION AND, AS STATED ABOVE, ABSENT A SHOWING OF UNREASONABLENESS, THIS OFFICE MUST FOLLOW THE REGULATION AS WRITTEN.