B-168794, APR. 7, 1970

B-168794: Apr 7, 1970

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FAILURE TO ELECT SETTLEMENT DISALLOWING CLAIM FOR RETROACTIVE FAMILY SEPARATION ALLOWANCE TO MEMBER TRANSFERRED OVERSEAS WHOSE ELECTION OF "ALL OTHERS" TOUR WAS MADE AFTER ARRIVAL. WAS APPROVED 14 MONTHS LATER DUE TO ARMY'S FAULT AND DELAY. IS SUSTAINED SINCE MEMBER WHO FAILS TO ELECT "ALL OTHERS" TOUR PRIOR TO DEPARTURE. WHEN CONCURRENT TRAVEL OF DEPENDENTS IS AUTHORIZED. IS PRESUMED TO CONTINUE IN "WITH DEPENDENTS" TOUR STATUS. UNTIL OTHER TOUR ELECTION IS MADE AND APPROVED BY OVERSEAS COMMANDER AS BEING IN BEST INTEREST OF SERVICE. WE HAVE REVIEWED YOUR CLAIM FOR FAMILY SEPARATION ALLOWANCE. YOU WERE REASSIGNED FROM FORT LEWIS. CONCURRENT TRAVEL OF DEPENDENTS WAS AUTHORIZED. AS A BASIS FOR THAT CLAIM YOU STATED THAT UPON ARRIVAL AT YOUR STATION IN MARCH 1968 YOU WERE INFORMED THAT YOU COULD NOT RECEIVE THE FAMILY SEPARATION ALLOWANCE.

B-168794, APR. 7, 1970

FAMILY ALLOWANCES--SEPARATION--TYPE 2--TOUR ELECTION--FAILURE TO ELECT SETTLEMENT DISALLOWING CLAIM FOR RETROACTIVE FAMILY SEPARATION ALLOWANCE TO MEMBER TRANSFERRED OVERSEAS WHOSE ELECTION OF "ALL OTHERS" TOUR WAS MADE AFTER ARRIVAL, BUT WAS APPROVED 14 MONTHS LATER DUE TO ARMY'S FAULT AND DELAY, IS SUSTAINED SINCE MEMBER WHO FAILS TO ELECT "ALL OTHERS" TOUR PRIOR TO DEPARTURE, WHEN CONCURRENT TRAVEL OF DEPENDENTS IS AUTHORIZED, IS PRESUMED TO CONTINUE IN "WITH DEPENDENTS" TOUR STATUS, UNDER APPLICABLE REGULATIONS, FOR PURPOSES OF FAMILY SEPARATION ALLOWANCE ENTITLEMENT, UNTIL OTHER TOUR ELECTION IS MADE AND APPROVED BY OVERSEAS COMMANDER AS BEING IN BEST INTEREST OF SERVICE.

TO SERGEANT NILGER D. MOORE:

IN VIEW OF YOUR LETTER DATED NOVEMBER 28, 1969, WE HAVE REVIEWED YOUR CLAIM FOR FAMILY SEPARATION ALLOWANCE, TYPE II, FOR THE PERIOD APRIL 1968 TO JUNE 1969 WHILE ON DUTY AT AN OVERSEA STATION.

BY PARAGRAPH 156, SPECIAL ORDERS NO. 67, DATED MARCH 7, 1968, YOU WERE REASSIGNED FROM FORT LEWIS, WASHINGTON, TO FORT DIX, NEW JERSEY, FOR FURTHER ASSIGNMENT TO THE 24TH SIGNAL CORPS BATTALION, APO NEW YORK 09112 (GERMANY). CONCURRENT TRAVEL OF DEPENDENTS WAS AUTHORIZED. HOWEVER, YOUR DEPENDENTS DID NOT ACCOMPANY YOU TO YOUR DUTY STATION BUT REMAINED IN THE UNITED STATES.

ON JULY 18, 1969, YOU PRESENTED A CLAIM THROUGH THE LOCAL FINANCE OFFICE IN GERMANY FOR RETROACTIVE FAMILY SEPARATION ALLOWANCE FOR THE PERIOD APRIL 1968 TO JUNE 1969. AS A BASIS FOR THAT CLAIM YOU STATED THAT UPON ARRIVAL AT YOUR STATION IN MARCH 1968 YOU WERE INFORMED THAT YOU COULD NOT RECEIVE THE FAMILY SEPARATION ALLOWANCE, BUT THAT IN JANUARY 1969 YOU WERE INFORMED OTHERWISE. YOU ALSO STATED THAT PAPERWORK WAS IMMEDIATELY SUBMITTED AND THAT UPON LEARNING IN MARCH 1969 THAT SUCH PAPERWORK HAD BEEN LOST BY THE DIVISION FINANCE OFFICE YOU SUBMITTED NEW PAPERWORK TO THAT OFFICE.

YOU STATED FURTHER THAT THEREAFTER YOU RECEIVED THE ALLOWANCE FOR TWO MONTHS AND THAT WHEN NO FURTHER PAYMENTS WERE RECEIVED AFTER YOU WERE ASSURED BY THE DIVISION FINANCE CLERK THAT THE ERROR WOULD BE CORRECTED, YOU SUBMITTED NEW PAPERWORK ALONG WITH A REQUEST FOR AN ALL OTHERS TOUR AT YOUR OVERSEA STATION. THE RECORDS SHOW THAT THIS REQUEST, WHICH IS DATED MAY 29, 1969, WAS RETURNED WITHOUT APPROVAL ON JUNE 12, 1969, BECAUSE OF A MISUNDERSTANDING THAT YOUR GRADE AT THE TIME OF ARRIVAL IN THE AREA WAS E- 3 (PRIVATE FIRST CLASS) AND, THEREFORE, YOU DID NOT QUALIFY FOR THE ALLOWANCE. SINCE, HOWEVER, IT WAS ESTABLISHED THAT YOU WERE IN FACT SERVING IN GRADE E-5 (SERGEANT) THE REQUEST WAS APPROVED EFFECTIVE JULY 2, 1969.

THE ARMY DENIED YOUR CLAIM FOR THE ALLOWANCE RETROACTIVELY FROM JULY 2, 1969. HOWEVER, THE RECORDS INDICATE THAT YOU WERE PAID THE ALLOWANCE FOR 60 DAYS PLUS TRAVEL, MARCH 18 TO MAY 25, 1969, AND THAT PAYMENT WAS RESUMED EFFECTIVE JULY 2, 1969.

YOUR CLAIM WAS DISALLOWED BY SETTLEMENT DATED NOVEMBER 6, 1969, OF OUR CLAIMS DIVISION. IT WAS EXPLAINED IN THE SETTLEMENT THAT IN VIEW OF YOUR FAILURE TO MAKE A REQUIRED ELECTION FOR AN ALL OTHERS TOUR PURSUANT TO GOVERNING ARMY REGULATIONS, YOU MUST BE CONSIDERED AS SERVING UNDER THE WITH DEPENDENTS TOUR AND THUS NOT ENTITLED TO THE ALLOWANCE.

IN YOUR LETTER OF NOVEMBER 28, 1969, YOU SAY THAT WHILE YOU HAVE READ AND UNDERSTAND THE GOVERNING ARMY REGULATIONS YOU WERE NOT TIMELY INFORMED OF THE REGULATIONS. ALSO YOU SAY THAT WHEN YOU WERE AT FORT DIX, NEW JERSEY, YOU WERE ADVISED TO WAIT UNTIL YOU ARRIVED AT YOUR PARENT UNIT TO APPLY FOR THE ALLOWANCE. YOU SAY FURTHER THAT WHEN YOU FINALLY ARRIVED AT YOUR HOME STATION YOU WERE INFORMED THAT THERE WAS NO URGENCY FOR APPLYING FOR THE ALLOWANCE AS THE PAYMENTS WOULD BE RETROACTIVE AND THAT THERE WOULD BE A 60 TO 70-WEEK WAITING PERIOD. ON THE BASIS THAT THE DELAYS IN PROCESSING YOUR REQUEST FOR THE ALLOWANCE WERE OCCASIONED BY THE ARMY AND WERE NOT DUE TO ANY FAULT ON YOUR PART, YOU URGE THAT FAVORABLE ACTION SHOULD BE ACCORDED YOUR CLAIM.

THE PERTINENT STATUTE, 37 U.S.C. 427 (B), PROVIDES FOR PAYMENT OF A FAMILY SEPARATION ALLOWANCE OF $30 PER MONTH IN CERTAIN CASES TO A MEMBER OF THE UNIFORMED SERVICES WHEN 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 AND HIS DEPENDENTS DO NOT RESIDE AT OR NEAR THAT STATION.

SECTION 406 OF TITLE 37, U.S. CODE, PROVIDES IN MATERIAL PART THAT, UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES OF THE UNIFORMED SERVICES, A MEMBER OF THE UNIFORMED SERVICES WHO IS ORDERED TO MAKE A PERMANENT CHANGE OF STATION IS ENTITLED TO TRANSPORTATION IN KIND FOR HIS DEPENDENTS, REIMBURSEMENT THEREFOR OR A MONETARY ALLOWANCE IN LIEU OF TRANSPORTATION, SUBJECT TO SUCH CONDITIONS AND LIMITATIONS, FOR SUCH GRADES AND RATINGS, AND TO AND FROM SUCH PLACES AS MAY BE PRESCRIBED BY THE SECRETARIES CONCERNED. THE GOVERNING REGULATIONS ARE CONTAINED IN CHAPTER 7 OF THE JOINT TRAVEL REGULATIONS AND UNDER THOSE REGULATIONS THE TRANSPORTATION OF YOUR DEPENDENTS TO YOUR OVERSEAS DUTY STATION WAS AUTHORIZED.

PARAGRAPH 15C OF ARMY REGULATION NO. 55-46 PROVIDES THAT A MEMBER ASSIGNED TO AN AREA WHERE APPLICATION FOR CONCURRENT TRAVEL IS AUTHORIZED WILL BE REQUIRED TO ELECT TO SERVE EITHER THE WITH DEPENDENTS TOUR OR THE ALL OTHERS TOUR PRIOR TO DEPARTURE FROM THE CONTINANTAL UNITED STATES. FURTHER PROVIDES THAT IF FOR ANY REASON THE MEMBER DOES NOT MAKE SUCH AN ELECTION HE WILL, SO FAR AS ENTITLEMENT TO THE FAMILY SEPARATION ALLOWANCE IS CONCERNED, BE CONSIDERED AS SERVING THE WITH DEPENDENTS TOUR. PARAGRAPH 29A OF THAT REGULATION PROVIDES THAT AFTER ARRIVAL IN THE OVERSEA COMMAND AND IN ACCORDANCE WITH THE PROCEDURES ESTABLISHED BY THE OVERSEA COMMANDER A MEMBER MAY APPLY FOR AN ALL OTHERS TOUR AND THAT THE APPLICATION WILL BE APPROVED BY THE OVERSEA COMMANDER ONLY WHEN CONSIDERED TO BE IN THE BEST INTEREST OF THE SERVICE.

THE RECORD DOES NOT SHOW THAT PRIOR TO DEPARTURE FROM THE UNITED STATES YOU ELECTED THE ALL OTHERS TOUR. THEREFORE, UNDER THE PROVISIONS OF THE CITED ARMY REGULATIONS YOU WERE SERVING THE WITH DEPENDENTS TOUR SO FAR AS THE FAMILY SEPARATION ALLOWANCE IS CONCERNED UNTIL THE DATE YOUR REQUEST FOR THE ALL OTHERS TOUR WAS APPROVED BY YOUR OVERSEA COMMANDER. IT IS REPORTED THAT THE ALL OTHERS TOUR WAS APPROVED IN YOUR CASE ON JULY 2, 1969.

RULE 14, TABLE 3-3-4, OF THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL PROVIDES THAT IF AN ELIGIBLE MEMBER WHO IS ASSIGNED OVERSEAS HAS FAILED TO MAKE A TOUR ELECTION BEFORE ARRIVAL AT THE NEW DUTY STATION BUT MAKES THE TOUR ELECTION AFTER ARRIVAL AT HIS OVERSEAS STATION, HE IS ENTITLED TO THE ALLOWANCE ON AND AFTER THE DATE THE ELECTION IS APPROVED IF HE SELECTS THE ALL OTHERS TOUR. THIS RULE IS BASED ON THE FACT THAT UNTIL SUCH TIME AS THE ALL OTHERS TOUR IS APPROVED, TRANSPORTATION OF THE DEPENDENT TO TO THE OVERSEAS STATION IS AUTHORIZED AND THE ALLOWANCE IS NOT LEGALLY PAYABLE WHEN SUCH TRANSPORTATION IS AUTHORIZED.

SINCE YOU MADE AN ELECTION FOR THE ALL OTHERS TOUR AFTER YOUR ARRIVAL AT YOUR OVERSEA STATION AND SINCE THE ALLOWANCE IS NOT LEGALLY PAYABLE PRIOR TO THE APPROVAL OF YOUR ELECTION, YOUR ENTITLEMENT TO THE ALLOWANCE AROSE ON THE DATE THE ELECTION WAS APPROVED, JULY 2, 1969. PAYMENT OF THE ALLOWANCE FOR PERIODS PRIOR THAT DATE IS NOT AUTHORIZED.

IT IS UNFORTUNATE THAT YOU MAY NOT HAVE BEEN MADE AWARE AT AN EARLIER DATE OF THE CONDITIONS AND REQUIREMENTS FOR PAYMENT OF THE ALLOWANCE AND THAT ARMY PERSONNEL MAY HAVE DELAYED ACTION ON YOUR APPLICATION FOR THE ALL OTHERS TOUR. SUCH MATTERS, HOWEVER, AFFORD NO LEGAL BASIS FOR THE ALLOWANCE OF YOUR CLAIM CONTRARY TO THE REQUIREMENTS OF THE GOVERNING LAW AND REGULATIONS. ACCORDINGLY, THE SETTLEMENT OF NOVEMBER 6, 1969, MUST BE AND IS SUSTAINED.

IN ACCORDANCE WITH YOUR REQUEST, COPIES OF PERTINENT PAPERS INCLUDED WITH THE FILE ARE ENCLOSED.