B-165630, DEC. 26, 1968

B-165630, DEC. 26, 1968

TO SERGEANT MAJOR EDDIE F. HUDSON:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 13, 1968, PERTAINING TO YOUR CLAIMS FOR DISLOCATION ALLOWANCE AND TEMPORARY LODGING ALLOWANCE INCIDENT TO ORDERS DATED AUGUST 28 AND NOVEMBER 28,1967, DIRECTING YOUR RETURN TO THE UNITED STATES FOR PROCESSING FOR SEPARATION AND PLACEMENT ON THE RETIRED LIST.

YOUR CLAIMS WERE DISALLOWED BY SETTLEMENT OF OUR OFFICE DATED OCTOBER 3, 1968, FOR THE REASONS STATED. IN YOUR LETTER OF OCTOBER 13, YOU INQUIRE WHETHER IN VIEW OF THAT RULING IT MIGHT BE CONSIDERED THAT SCHOFIELD BARRACKS, HAWAII, WAS YOUR LAST DUTY STATION, AND THAT YOU WERE ENTITLED TO TRAVEL ALLOWANCES FROM THAT POINT TO YOUR HOME OF RECORD OR PLACE FROM WHICH YOU WERE ORDERED TO ACTIVE DUTY. ALTHOUGH YOU HAVE NOT PREVIOUSLY ASSERTED THIS CLAIM, INASMUCH AS IT APPEARS TO HAVE BEEN BASED ON THE STATEMENTS MADE IN OUR DISALLOWANCE OF OCTOBER 3, 1968, YOUR LETTER WILL BE CONSIDERED AS IN THE NATURE OF A REQUEST FOR RECONSIDERATION OF THE ACTION PREVIOUSLY TAKEN.

BY PARAGRAPH 10, SPECIAL ORDERS NO. 196, HEADQUARTERS 106TH GENERAL HOSPITAL, APO SAN FRANCISCO, DATED AUGUST 28, 1967, YOU WERE DIRECTED TO REPORT WITH YOUR DEPENDENTS NO LATER THAN SEPTEMBER 29, 1967, AT TACHIKAWA AIR FORCE BASE, JAPAN, FOR TRANSPORTATION TO SCHOFIELD BARRACKS, HAWAII, FOR PROCESSING FOR SEPARATION FROM THE SERVICE. PURSUANT TO PARAGRAPH 10, SPECIAL ORDERS NO. 233, U.S. ARMY PERSONNEL CENTER, SCHOFIELD BARRACKS, DATED NOVEMBER 28, 1967, YOU WERE RELIEVED FROM ACTIVE DUTY EFFECTIVE NOVEMBER 30, 1967, AND WERE PLACED ON THE RETIRED LIST AND TRANSFERRED TO THE U.S. ARMY RESERVE (RETIRED RESERVE) THE FOLLOWING DAY. THE ORDERS SHOWED YOUR HOME OF RECORD AS LINTON, INDIANA.

YOUR ITINERARY SHOWS THAT YOU AND YOUR DEPENDENTS TRAVELED FROM YOUR LAST DUTY STATION IN JAPAN TO HONOLULU, HAWAII, ARRIVING ON SEPTEMBER 29, 1967. YOU REMAINED IN HAWAII UNTIL DECEMBER 14, 1967, AT WHICH TIME YOU AND YOUR DEPENDENTS TRAVELED BY AIR TO LOS ANGELES, CALIFORNIA, ARRIVING DECEMBER 15, 1967. IT HAS BEEN ADMINISTRATIVELY REPORTED THAT YOU WERE NOT ASSIGNED FAMILY QUARTERS AT SCHOFIELD BARRACKS WHILE AWAITING SEPARATION AND THAT YOU WERE IN RECEIPT OF BASIC ALLOWANCE FOR QUARTERS AND SEPARATE RATIONS DURING THE PERIOD FROM SEPTEMBER 29, 1967, TO NOVEMBER 30, 1967. MESSING FACILITIES WERE AVAILABLE FOR YOU. RECEIPTS EVIDENCING YOUR STAY AT AN APARTMENT HOTEL NEAR YOUR ASSIGNED STATION FROM OCTOBER 2 THROUGH DECEMBER 3, 1967, WERE FURNISHED IN SUPPORT OF YOUR CLAIM FOR TEMPORARY LODGING ALLOWANCE.

YOUR ORDERS OF AUGUST 28, 1967, DID NOT DIRECT YOU TO SCHOFIELD BARRACKS FOR DUTY, THE ASSIGNMENT THERE BEING INTENDED AS TEMPORARY DUTY FOR PROCESSING FOR SEPARATION FROM ACTIVE DUTY. IN SUCH CIRCUMSTANCES, THAT STATION MUST BE CONSIDERED AS A TEMPORARY STATION EN ROUTE FROM YOUR LAST DUTY STATION IN JAPAN TO A HOME OF SELECTION UPON RETIREMENT. SINCE PARAGRAPH M4303, JOINT TRAVEL REGULATIONS, THE AUTHORITY FOR PAYMENT OF TEMPORARY LODGING ALLOWANCE, PROMULGATED PURSUANT TO 37 U.S.C. 405, AUTHORIZES THAT ALLOWANCE FOR CERTAIN DESIGNATED PERIODS OF DUTY AT PERMANENT DUTY STATIONS OUTSIDE THE UNITED STATES, SUCH ALLOWANCE WAS NOT AUTHORIZED UPON YOUR REPORTING AT SCHOFIELD BARRACKS, YOUR TEMPORARY DUTY STATION.

FURTHERMORE, WITH RESPECT TO YOUR CLAIM FOR DISLOCATION ALLOWANCE, 37 U.S.C. 407 (C), PROVIDES THAT A MEMBER IS NOT ENTITLED TO PAYMENT OF THAT ALLOWANCE WHEN ORDERED FROM HIS LAST DUTY STATION TO HIS HOME. THEREFORE, NO RIGHT TO SUCH ALLOWANCE ACCRUED INCIDENT TO YOUR ORDERS OF AUGUST 28, 1967, WHICH DIRECTED THE PROCESSING OF YOUR SEPARATION FROM ACTIVE DUTY. SEE B-155603, JANUARY 27, 1965, AND 42 COMP. GEN. 183, COPIES ENCLOSED.

HOWEVER, IT APPEARS THAT BY REASON OF YOUR TEMPORARY DUTY STATUS DURING THE PERIOD YOU WERE AT SCHOFIELD BARRACKS UNDERGOING RETIREMENT PROCESSING UNDER THE ORDERS OF AUGUST 28, 1967, YOU WERE ENTITLED TO A TRAVEL PER DIEM ALLOWANCE TO THE EXTENT AUTHORIZED AND PRESCRIBED BY PARAGRAPHS M4253 AND M4256 OF THE JOINT TRAVEL REGULATIONS.

WITH RESPECT TO YOUR INQUIRY AS TO YOUR ENTITLEMENT TO TRAVEL AND TRANSPORTATION ALLOWANCES FROM SCHOFIELD BARRACKS TO YOUR HOME OF RECORD OR PLACE FROM WHICH ORDERED TO ACTIVE DUTY, PARAGRAPH M4158-1, JOINT TRAVEL REGULATIONS, PROVIDES THAT A MEMBER ON ACTIVE DUTY WHO IS RETIRED UNDER CONDITIONS SUCH AS THOSE INVOLVED IN YOUR CASE MAY SELECT HIS HOME AND RECEIVE TRAVEL ALLOWANCE UPON TRAVEL PERFORMED THERETO WITHIN ONE YEAR AFTER THE TERMINATION OF ACTIVE DUTY. IT PROVIDES FURTHER THAT ONCE A HOME IS SELECTED AND TRAVEL ALLOWANCE RECEIVED FOR TRAVEL OR TRANSPORTATION TO THAT POINT, SUCH SELECTION IS IRREVOCABLE. ALSO THE MEMBER IS ENTITLED TO THE TRANSPORTATION OF HIS DEPENDENTS AND HOUSEHOLD EFFECTS TO THE HOME OF SELECTION UNDER PROVISIONS OF PARAGRAPHS M7010 AND M8260, JOINT TRAVEL REGULATIONS, RESPECTIVELY, PROVIDED SUCH TRANSPORTATION WAS COMPLETED WITHIN ONE YEAR AFTER TERMINATION OF ACTIVE DUTY.

UNDER THE REGULATIONS CITED ABOVE, THERE WAS NO ENTITLEMENT UPON RETIREMENT TO TRAVEL AND TRANSPORTATION ALLOWANCES TO YOUR HOME OF RECORD OR PLACE FROM WHICH ORDERED TO ACTIVE DUTY UNLESS EITHER OF THESE PLACES WAS SELECTED BY YOU AS YOUR HOME UPON RETIREMENT AND TRAVEL THERETO PERFORMED WITHIN ONE YEAR AFTER TERMINATION OF ACTIVE DUTY. IN THE ABSENCE OF INFORMATION TO THE CONTRARY, IT MUST BE PRESUMED THAT YOU SELECTED YOUR HOME INCIDENT TO YOUR RETIREMENT AND WERE PAID FOR YOUR TRAVEL AND THE TRANSPORTATION OF YOUR DEPENDENTS AND HOUSEHOLD EFFECTS TO THE HOME OF SELECTION.

WE ARE INSTRUCTING OUR CLAIMS DIVISION TO INVESTIGATE THE PAYMENTS MADE TO YOU FOR THE PERIOD OF DUTY AT SCHOFIELD BARRACKS AND IF PER DIEM WAS NOT PAID TO ISSUE A SETTLEMENT ALLOWING YOU THE PER DIEM ALLOWANCE TO WHICH YOU ARE ENTITLED UNDER THE APPLICABLE REGULATIONS FOR THE PERIOD YOU WERE UNDERGOING RETIREMENT PROCESSING AT YOUR TEMPORARY DUTY STATION. SETTLEMENT OF THE AMOUNT DETERMINED TO BE DUE, IF ANY, WILL ISSUE IN DUE COURSE.

IF ON THE BASIS OF THE REGULATIONS CITED YOU BELIEVE YOU ARE ENTITLED TO ADDITIONAL TRAVEL AND TRANSPORTATION ALLOWANCES FOR TRAVEL PERFORMED TO YOUR HOME OF SELECTION UPON RETIREMENT, FURTHER CONSIDERATION WILL BE GIVEN YOUR CLAIM THEREFOR, ADDRESSED TO OUR CLAIMS DIVISION.