B-166374, APR. 30, 1969

B-166374: Apr 30, 1969

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WEBB: FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 13. YOU WERE ORDERED TO ACTIVE DUTY AS AN ARMY RESERVE WARRANT OFFICER AND DIRECTED TO PROCEED FROM THE PLACE YOU WERE THEN LOCATED AND REPORT TO THE ARMY AVIATION SCHOOL. YOU WERE PAID A DISLOCATION ALLOWANCE FOR THE MOVEMENT OF YOUR DEPENDENTS FROM OZARK. PROVIDES THAT A MEMBER IS NOT ENTITLED TO PAYMENT OF A DISLOCATION ALLOWANCE WHEN ORDERED FROM HIS HOME TO HIS FIRST DUTY STATION OR FROM HIS LAST DUTY STATION TO HIS HOME. PROVIDES THAT THE DISLOCATION ALLOWANCE WILL NOT BE PAYABLE IN CONNECTION WITH PERMANENT CHANGE-OF- STATION TRAVEL PERFORMED FROM HOME OR FROM PLACE FROM WHICH ORDERED TO ACTIVE DUTY TO FIRST PERMANENT DUTY STATION UPON APPOINTMENT.

B-166374, APR. 30, 1969

TO CHIEF WARRANT OFFICER ROSCOE E. WEBB:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 13, 1969, AND ENCLOSURES, FORWARDED HERE BY THE LEXINGTON-BLUE GRASS ARMY DEPOT REQUESTING RECONSIDERATION OF SETTLEMENT DATED JANUARY 31, 1968, WHICH DISALLOWED YOUR CLAIM FOR A DISLOCATION ALLOWANCE INCIDENT TO THE MOVEMENT OF YOUR DEPENDENTS FROM POPE AIR FORCE BASE, NORTH CAROLINA, TO OZARK, ALABAMA, ON DECEMBER 29 AND 30, 1966.

BY LETTER ORDER A-10-349 DATED OCTOBER 26, 1966, YOU WERE ORDERED TO ACTIVE DUTY AS AN ARMY RESERVE WARRANT OFFICER AND DIRECTED TO PROCEED FROM THE PLACE YOU WERE THEN LOCATED AND REPORT TO THE ARMY AVIATION SCHOOL, FORT RUCKER, ALABAMA, ON JANUARY 2, 1967, WITH THE EFFECTIVE DATE OF YOUR ACTIVE DUTY SHOWN AS DECEMBER 16, 1966. BY SPECIAL ORDER A-1147 DATED NOVEMBER 30, 1966, THE DEPARTMENT OF THE AIR FORCE RELIEVED YOU FROM ASSIGNMENT AT POPE AIR FORCE BASE, NORTH CAROLINA, AND HONORABLY DISCHARGED YOU EFFECTIVE DECEMBER 15, 1966.

DEPARTMENT OF THE ARMY MESSAGE 08047 DATED MAY 1967, AND AMENDMENTS, REASSIGNED YOU FROM FORT RUCKER, ALABAMA, TO OVERSEAS DUTY EFFECTIVE JUNE 30, 1967, AND DIRECTED YOU TO REPORT ON JUNE 26, 1967, AT THE ARMY OVERSEAS REPLACEMENT STATION, FORT LEWIS, WASHINGTON, FOR PORT CALL. YOU WERE PAID A DISLOCATION ALLOWANCE FOR THE MOVEMENT OF YOUR DEPENDENTS FROM OZARK, ALABAMA, TO OAKLEY, MICHIGAN, DURING THE PERIOD MAY 31 TO JUNE 4, 1967, INCIDENT TO THIS OVERSEAS ASSIGNMENT.

SECTION 407 OF TITLE 37, U.S.C. AUTHORIZES PAYMENT OF A DISLOCATION ALLOWANCE, UNDER REGULATIONS PRESCRIBED BY THE SECRETARY CONCERNED, TO A MEMBER OF A UNIFORMED SERVICE WHOSE DEPENDENTS MAKE AN AUTHORIZED MOVE IN CONNECTION WITH HIS CHANGE OF PERMANENT STATION, BUT PROVIDES THAT A MEMBER IS NOT ENTITLED TO PAYMENT OF A DISLOCATION ALLOWANCE WHEN ORDERED FROM HIS HOME TO HIS FIRST DUTY STATION OR FROM HIS LAST DUTY STATION TO HIS HOME.

PARAGRAPH M9004-1 (FORMERLY M9003-3) OF THE JOINT TRAVEL REGULATIONS, PROMULGATED PURSUANT TO THAT AUTHORITY, PROVIDES THAT THE DISLOCATION ALLOWANCE WILL NOT BE PAYABLE IN CONNECTION WITH PERMANENT CHANGE-OF- STATION TRAVEL PERFORMED FROM HOME OR FROM PLACE FROM WHICH ORDERED TO ACTIVE DUTY TO FIRST PERMANENT DUTY STATION UPON APPOINTMENT, CALL TO ACTIVE DUTY, ENLISTMENT, REENLISTMENT OR INDUCTION. ALSO, PARAGRAPH M9004 -3 (FORMERLY M9003-5) OF THE REGULATIONS PROVIDES THAT THE DISLOCATION ALLOWANCE WILL NOT BE PAYABLE FOR TRAVEL PERFORMED FROM THE LAST DUTY STATION IN ONE PERIOD OF SERVICE TO THE FIRST DUTY STATION IN ANOTHER PERIOD OF SERVICE WHEN THERE WAS NO ORDERED PERMANENT CHANGE OF STATION BETWEEN THOSE STATIONS.

PARAGRAPH M9003-4 (FORMERLY M9002-4) OF THE JOINT TRAVEL REGULATIONS FURTHER PROVIDES THAT WHEN A MEMBER IS TRANSFERRED UNDER AUTHORITY OF 10 U.S.C. 716 OR SIMILAR STATUTORY AUTHORITY FROM ONE SERVICE TO ANOTHER WITH NO BREAK IN SERVICE, HE IS ENTITLED TO A DISLOCATION ALLOWANCE WHEN HE RELOCATES HIS HOUSEHOLD INCIDENT TO AN ORDERED CHANGE OF STATION RESULTING FROM SUCH CHANGE OF SERVICE.

SECTION 716 OF TITLE 10, U.S.C. PROVIDES THAT NOTWITHSTANDING ANY OTHER PROVISION OF LAW, THE PRESIDENT MAY, WITHIN AUTHORIZED STRENGTHS, TRANSFER ANY "COMMISSIONED OFFICER" WITH HIS CONSENT FROM THE ARMY, NAVY, AIR FORCE, OR MARINE CORPS TO, AND APPOINT HIM IN, ANY OTHER OF THOSE ARMED FORCES. SECTION 101 OF TITLE 37, U.S.C. PROVIDES THAT AN "OFFICER" MEANS COMMISSIONED OR WARRANT OFFICER; "COMMISSIONED OFFICER" INCLUDES A COMMISSIONED WARRANT OFFICER; AND "WARRANT OFFICER" MEANS A PERSON WHO HOLDS A COMMISSION OR WARRANT IN A WARRANT OFFICER GRADE.

THUS, 10 U.S.C. 716 AUTHORIZING THE TRANSFER OF COMMISSIONED OFFICERS BETWEEN THE SERVICES IS NOT APPLICABLE IN YOUR CASE SINCE YOU WERE DISCHARGED AS A MASTER SERGEANT IN THE AIR FORCE. EFFECTIVE THE FOLLOWING DAY YOU WERE APPOINTED A RESERVE WARRANT OFFICER IN THE ARMY AND ORDERED TO ACTIVE DUTY AT FORT RUCKER. YOUR SERVICE AS A MEMBER OF THE UNIFORMED SERVICES WAS TERMINATED WHEN YOU WERE DISCHARGED BY THE AIR FORCE, NO TRANSFER TO THE ARMY BEING DIRECTED PURSUANT TO STATUTORY AUTHORITY SIMILAR TO 10 U.S.C. 716. POPE AIR FORCE BASE WAS NOT YOUR PERMANENT STATION ON THE EFFECTIVE DATE YOU ACCEPTED AN APPOINTMENT AS A WARRANT OFFICER IN THE ARMY AND WERE ASSIGNED TO FORT RUCKER. IT SEEMS CLEAR THAT YOUR DEPENDENTS' MOVE WAS FROM THE PLACE FROM WHICH YOU WERE ORDERED TO ACTIVE DUTY TO YOUR FIRST PERMANENT DUTY STATION INCIDENT TO A NEW APPOINTMENT, A MOVE FOR WHICH PAYMENT OF THE DISLOCATION ALLOWANCE IS NOT AUTHORIZED. ACCORDINGLY, THE DISALLOWANCE OF YOUR CLAIM IS SUSTAINED.

THE ENCLOSURES TO YOUR LETTER OF FEBRUARY 13, 1969, INCLUDE AN AMENDMENT DATED FEBRUARY 5, 1969, TO ARMY MESSAGE 08047 TO THE EFFECT THAT AN ADDITIONAL FISCAL YEAR MOVE IS AUTHORIZED BY THE SECRETARY OF THE ARMY. IT IS REGRETTED THAT THE SETTLEMENT OF JANUARY 31, 1968, WHICH DISALLOWED YOUR CLAIM DID NOT INCLUDE AN EXPLANATION THAT YOUR CLAIM MAY NOT BE ALLOWED FOR THE REASONS STATED HEREIN, AS WELL AS FOR THE REASON STATED IN THE SETTLEMENT THAT YOU HAD ALREADY BEEN PAID A DISLOCATION ALLOWANCE FOR THE FISCAL YEAR INVOLVED. THE AMENDMENT OF FEBRUARY 5, 1969, APPARENTLY WAS ISSUED AS A RESULT OF THIS SETTLEMENT. WE TRUST YOU WILL UNDERSTAND, HOWEVER, THAT OUR OFFICE MAY NOT DISREGARD THE APPLICABLE LAW AND REGULATIONS IN THE SETTLEMENT OF CLAIMS AGAINST THE UNITED STATES. THE FACT THAT THE SETTLEMENT OF JANUARY 31, 1968, TO YOU DID NOT FULLY EXPLAIN WHY YOU ARE NOT ENTITLED TO THE ALLOWANCE AFFORDS NO LEGAL BASIS TO ALLOW YOU AN AMOUNT NOT OTHERWISE AUTHORIZED BY THE LAW AND REGULATIONS.