B-171279, FEB 3, 1971, 50 COMP GEN 537

B-171279: Feb 3, 1971

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WHEN THE DEPARTURE OF A MEMBER WITH DEPENDENTS FROM AN OVERSEAS DUTY STATION IS DELAYED BEYOND THE 10 DAY PERIOD OF ENTITLEMENT THROUGH NO FAULT OF THE MEMBER OR HIS DEPENDENTS. SHOULD NOT HAVE BEEN PAID TO A MEMBER WHOSE DEPARTURE WAS DELAYED AWAITING COURT-MARTIAL PROCEEDINGS SINCE THE CHARGES OF MISCONDUCT AGAINST THE MEMBER ESTABLISHED PRIMA FACIE THAT HE WAS NOT WITHOUT FAULT FOR THE DELAY. THERE WAS NO ENTITLEMENT TO THE ALLOWANCE FOR THE PERIOD DURING WHICH CHARGES WERE PENDING. HAVING BEEN FOUND GUILTY - AND IT IS IMMATERIAL IF CHARGES WERE MADE IN A CIVIL ACTION OR UNDER THE UNIFORM CODE OF MILITARY JUSTICE - THE ERRONEOUS ALLOWANCE PAYMENTS WOULD BE FOR RECOUPMENT BUT FOR THE FACT THE ADMINISTRATIVE REGULATIONS WERE NOT CLEAR.

B-171279, FEB 3, 1971, 50 COMP GEN 537

STATION ALLOWANCES - MILITARY PERSONNEL - TEMPORARY LODGING - DELAYED DEPARTURE NO FAULT OF MEMBER OR DEPENDENTS THE ADDITIONAL TEMPORARY LODGING ALLOWANCE PROVIDED BY PARAGRAPH M4303- 2E(2), JOINT TRAVEL REGULATIONS, WHEN THE DEPARTURE OF A MEMBER WITH DEPENDENTS FROM AN OVERSEAS DUTY STATION IS DELAYED BEYOND THE 10 DAY PERIOD OF ENTITLEMENT THROUGH NO FAULT OF THE MEMBER OR HIS DEPENDENTS, SHOULD NOT HAVE BEEN PAID TO A MEMBER WHOSE DEPARTURE WAS DELAYED AWAITING COURT-MARTIAL PROCEEDINGS SINCE THE CHARGES OF MISCONDUCT AGAINST THE MEMBER ESTABLISHED PRIMA FACIE THAT HE WAS NOT WITHOUT FAULT FOR THE DELAY. THEREFORE, THERE WAS NO ENTITLEMENT TO THE ALLOWANCE FOR THE PERIOD DURING WHICH CHARGES WERE PENDING, AND THE MEMBER WOULD BE ELIGIBLE TO RECEIVE THE ALLOWANCE ONLY IF EXONERATED FROM BLAME. HOWEVER, HAVING BEEN FOUND GUILTY - AND IT IS IMMATERIAL IF CHARGES WERE MADE IN A CIVIL ACTION OR UNDER THE UNIFORM CODE OF MILITARY JUSTICE - THE ERRONEOUS ALLOWANCE PAYMENTS WOULD BE FOR RECOUPMENT BUT FOR THE FACT THE ADMINISTRATIVE REGULATIONS WERE NOT CLEAR.

TO THE SECRETARY OF THE ARMY, FEBRUARY 3, 1971:

BY LETTER DATED OCTOBER 7, 1970, THE ASSISTANT SECRETARY OF THE ARMY REQUESTS A DECISION WHETHER A STAFF SERGEANT, USAF, IS ENTITLED TO TEMPORARY LODGING ALLOWANCE UNDER THE CIRCUMSTANCES DISCLOSED. THE REQUEST HAS BEEN ASSIGNED CONTROL NO. 70-51 BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

THE ASSISTANT SECRETARY REFERS TO PARAGRAPH M4303-2E(2), JOINT TRAVEL REGULATIONS, WHICH PROVIDES FOR THE PAYMENT OF ADDITIONAL TEMPORARY LODGING ALLOWANCE TO A MEMBER WITH DEPENDENTS WHEN THE 10-DAY PERIOD OF ENTITLEMENT UPON DEPARTURE FROM AN OVERSEAS PERMANENT DUTY STATION AUTHORIZED BY SUBPARAGRAPH (1) BEGINS AND DEPARTURE IS DELAYED THROUGH NO FAULT OF THE MEMBER OR HIS DEPENDENTS. HE SAYS THAT THE SERGEANT, WHOSE DEPARTURE FROM HIS PERMANENT DUTY STATION WAS DELAYED WHILE HE WAS AWAITING COURT-MARTIAL, WAS IN RECEIPT OF TEMPORARY LODGING ALLOWANCE DURING PART OF THE PERIOD OF DELAY. THE ACTION OF THE OVERSEAS COMMANDER IN AUTHORIZING ADDITIONAL TEMPORARY LODGING ALLOWANCE HAS BEEN QUESTIONED ON THE BASIS THAT THE MEMBER CAUSED THE DELAY IN DEPARTURE FROM HIS PERMANENT DUTY STATION BY ALLEGEDLY COMMITTING THE OFFENSES FOR WHICH HE WAS HELD FOR TRIAL BY COURT MARTIAL AND, THEREFORE, WAS NOT ENTITLED TO ADDITIONAL PERIODS OF TEMPORARY LODGING ALLOWANCE. THIS DOES NOT APPEAR, HOWEVER, TO BE THE VIEW OF ALL COMPONENTS OF THE DEPARTMENT OF THE AIR FORCE.

ACCORDINGLY, THE ASSISTANT SECRETARY REQUESTS A DECISION AS TO WHETHER THE COMMISSION OF ACTS LEADING TO A MEMBER'S BEING HELD FOR COURT-MARTIAL SHOULD BE CONSIDERED THE PROXIMATE CAUSE OF DELAY IN DEPARTURE FROM A PERMANENT DUTY STATION, AND WHETHER SUCH DELAY WAS THE FAULT OF THE MEMBER SO AS TO CAUSE LOSS OF ENTITLEMENT TO TEMPORARY LODGING ALLOWANCE FOR THE PERIOD OF DELAY. ALSO, HE ASKS WHETHER A FINDING OF NOT GUILTY IN THE COURT-MARTIAL PROCEEDINGS WOULD RESULT IN A DIFFERENT HOLDING FROM THAT REACHED IF THE FINDING WERE GUILTY.

THE FILE SHOWS THAT THE SERGEANT WAS REASSIGNED FROM A STATION IN HOLLAND TO MCCONNELL AIR FORCE BASE, KANSAS, WITH EFFECTIVE DATE OF TRANSFER FOR RECORD PURPOSES SHOWN AS OCTOBER 10, 1969. THE ORDERS STIPULATED A PORT CALL DATE OF NOVEMBER 29, 1969, FOR THE MEMBER AND HIS DEPENDENTS AND AUTHORIZED THE MEMBER A 30-DAY DELAY IN THE COUNTRY WHERE HIS OVERSEAS DUTY STATION WAS LOCATED. HE AND HIS FAMILY HAD BEEN LIVING ON THE LOCAL ECONOMY, AND HIS LEASE EXPIRED ON NOVEMBER 29, 1969, AT WHICH TIME HE WAS REQUIRED TO VACATE THE PREMISES TO MAKE ROOM FOR AN INCOMING MILITARY FAMILY.

THE FILE SHOWS FURTHER THAT THE MEMBER'S HOUSEHOLD GOODS WERE PICKED UP FOR TRANSOCEANIC SHIPMENT ON NOVEMBER 11, 1969. HOWEVER, THE MEMBER'S GOODS WERE LATER SEIZED BY CUSTOMS OFFICERS AND HE WAS DETAINED FOR INVESTIGATION BY THE OFFICE OF SPECIAL INVESTIGATIONS, FOR POSSIBLE COURT- MARTIAL PROCEEDINGS. SINCE IT WAS DETERMINED THAT THE MEMBER'S WIFE, BEING OF DUTCH NATIONALITY, WOULD SUFFER HARDSHIP IF SHE WENT TO THE UNITED STATES WITHOUT HER HUSBAND, THE PORT CALL WAS CANCELED. THE MEMBER WAS UNABLE TO LOCATE FURNISHED HOUSING ON THE LOCAL ECONOMY AND WAS THEREFORE REQUIRED TO OCCUPY HOTEL OR HOTEL-LIKE ACCOMMODATIONS. IT IS SHOWN FURTHER THAT THE SERGEANT'S WIFE WAS PREGNANT AND ON DECEMBER 5, 1969, SHE WAS WITHIN A 60-DAY TRAVEL RESTRICTION APPLICABLE TO DEPENDENTS IN THAT CONDITION.

ON MARCH 12, 1970, THE MEMBER'S WIFE GAVE BIRTH TO A CHILD AND THEREFORE WAS FURTHER RESTRICTED FROM PERMANENT CHANGE-OF-STATION TRAVEL. ON MARCH 17, 1970, THE MEMBER WAS TRIED BY GENERAL COURT MARTIAL, FOUND GUILTY OF THE CHARGES PREFERRED AGAINST HIM AND WAS SENTENCED TO 3 MONTHS' HARD LABOR WITHOUT CONFINEMENT AND REDUCTION IN GRADE. THE RECORD SHOWS THAT HE WAS PAID TEMPORARY LODGING ALLOWANCE FOR THE PERIOD FROM NOVEMBER 29, 1969, THROUGH JANUARY 8, 1970, AND FROM FEBRUARY 21 THROUGH MARCH 13, 1970.

PARAGRAPH M4303-2(E)(1), JOINT TRAVEL REGULATIONS, IMPLEMENTING SECTION 405 OF TITLE 37, UNITED STATES CODE, AND IN EFFECT DURING THE PERIOD INVOLVED, PROVIDES THAT THE PERIOD OF ENTITLEMENT UPON DEPARTURE TO TEMPORARY LODGING ALLOWANCES - AUTHORIZED FOR THE PURPOSE OF PARTIALLY REIMBURSING A MEMBER FOR THE MORE THAN NORMAL EXPENSES INCURRED IN HOTELS OR HOTEL-LIKE ACCOMMODATIONS AND PUBLIC RESTAURANTS WILL BE THE LAST 10 DAYS PRECEDING THE DAY OF DEPARTURE OF THE MEMBER FROM HIS PERMANENT OVERSEAS DUTY STATION IN COMPLIANCE WITH PERMANENT CHANGE-OF-STATION ORDERS, WITH CERTAIN EXCEPTIONS NOT HERE PERTINENT. SUBPARAGRAPH (2) PROVIDES IN PERTINENT PART THAT WHEN THE PERIOD OF ENTITLEMENT BEGINS AND ACTUAL DEPARTURE IS DELAYED THROUGH NO FAULT OF THE MEMBER OR HIS DEPENDENTS, ADDITIONAL ENTITLEMENT MAY BE AUTHORIZED OR APPROVED BY THE COMMANDER CONCERNED, OR HIS DESIGNEE, IN INCREMENTS OF 10 DAYS OR LESS, FOR THE ENTIRE PERIOD THAT TEMPORARY LODGINGS ARE REQUIRED TO BE UTILIZED.

THE FILE SHOWS AN ADMINISTRATIVE DISAGREEMENT AS TO THE INTERPRETATION OF THE WORD "FAULT" CONTAINED IN PARAGRAPH M4303-2E(2) OF THE REGULATIONS. BY LETTER DATED JUNE 19, 1970, HEADQUARTERS, USAFE, EXPRESSED THE OPINION THAT THE SERGEANT'S DELAY WAS WITHIN HIS CONTROL AND THEREFORE IF HE HAD NOT TAMPERED WITH U.S. MAIL NOR ATTEMPTED TO INCLUDE ALCOHOLIC BEVERAGES IN HIS HOUSEHOLD GOODS, HE WOULD NOT HAVE BEEN DETAINED BEYOND HIS ORIGINAL DEPARTURE DATE. CONSEQUENTLY, IT WAS CONCLUDED THAT ALL OF THE TEMPORARY LODGING ALLOWANCE RECEIVED BY THE MEMBER SHOULD BE RECOUPED.

IN A LETTER DATED JULY 2, 1970, HEADQUARTERS, UNITED STATES AIR FORCE, WASHINGTON, D.C., CONTENDED, HOWEVER, THAT THE WORD "FAULT" IS NOT SYNONYMOUS WITH "BLAME" IN THE LEGAL OR MORAL SENSE, BUT, RATHER, IT REFERS TO A CHOICE OR ELECTION IN REGARD TO TEMPORARY LODGING ALLOWANCE. SINCE IN THIS CASE THE DELAY WAS NOT OF THE MEMBER'S CHOICE, THE VIEW WAS EXPRESSED THAT HE WAS ENTITLED TO TEMPORARY LODGING ALLOWANCE BOTH BEFORE AND AFTER THE COURT-MARTIAL. ALSO, THE LETTER MADE REFERENCE TO USAFE SUPPLEMENT 1, AIR FORCE MANUAL 177-105, A COPY OF WHICH WAS ENCLOSED, AND DIRECTED ATTENTION TO ITEM 5 OF ATTACHMENT 2 THERETO. THAT ATTACHMENT RELATES TO EXTENSION OF TLA UPON DELAYED DEPARTURE THROUGH NO FAULT OF THE MEMBER OR HIS DEPENDENTS, AND UNDER ITEM 5 REASONS LISTED FOR EXTENSION OF TEMPORARY LODGING ALLOWANCE BEYOND 10 DAYS INCLUDE CHANGE IN PORT REPORTING DATE, AND ILLNESS OR INVOLVEMENT IN CIVIL COURT ACTIONS OF THE MEMBER OR DEPENDENTS. THE CONTENTION IS MADE THAT SINCE THERE IS NO INDICATION WHETHER SUCCESS OR FAILURE IN CIVIL COURT ACTION WOULD HAVE A BEARING ON RECOUPMENT OF TEMPORARY LODGING ALLOWANCE; AND SINCE NO MENTION IS MADE OF ACTION UNDER THE UNIFORM CODE OF MILITARY JUSTICE (UCMJ), MEMBERS FACING CHARGES UNDER UCMJ SHOULD RECEIVE SIMILAR TREATMENT.

THE WORD "FAULT" GENERALLY CONNOTES AN ACT TO WHICH BLAME, CENSURE, IMPROPRIETY, SHORTCOMING, OR CULPABILITY ATTACHES, 35 C.J.S. "FAULT," PAGE 960, AND AUTHORITIES CITED. THOUGH THAT WORD MAY BE SUSCEPTIBLE TO DIFFERENT CONSTRUCTIONS, IT IS OUR OPINION THAT IN THE CONTEXT OF THE PROVISIONS UNDER CONSIDERATION, IT SHOULD BE GIVEN THE GENERALLY ACCEPTED MEANING OF "BLAMEWORTHY," "WRONGFUL," OR "CULPABLE."

WE ARE OF THE OPINION THAT IF A MEMBER'S DEPARTURE FROM HIS OVERSEAS STATION IS DELAYED BEYOND 10 DAYS BECAUSE OF CHARGES INVOLVING MISCONDUCT, SUCH CHARGES WOULD ESTABLISH PRIMA FACIE THAT THE DELAY WAS NOT WITHOUT HIS FAULT; AND PAYMENT OF ADDITIONAL TEMPORARY LODGING ALLOWANCE IS NOT AUTHORIZED WHILE SUCH CHARGES ARE PENDING AND AFTER CONVICTION, IF TRIED AND FOUND GUILTY, REGARDLESS OF WHETHER THE MEMBER IS CHARGED IN A CIVIL ACTION OR UNDER THE UNIFORM CODE OF MILITARY JUSTICE.

IF, HOWEVER, THE MEMBER IS TRIED AND ACQUITTED OF THE CHARGES, OR THE CHARGES ARE DISMISSED WITHOUT TRIAL, OR ARE DISMISSED UPON REVIEW AFTER CONVICTION, RESULTING IN HIS EXONERATION FROM BLAME, WE ARE ALSO OF THE OPINION THAT TEMPORARY LODGING ALLOWANCE WOULD THEN BE PAYABLE, AS OTHERWISE AUTHORIZED, FOR THE PERIOD OF DELAYED DEPARTURE.

IN THE CASE PRESENTED, SINCE THE SERGEANT WAS FOUND GUILTY IN A COURT MARTIAL PROCEEDING OF ACTIONS WHICH RESULTED IN HIS DEPARTURE BEING DELAYED, IT IS EVIDENT THAT THE MEMBER'S DELAYED DEPARTURE WAS NOT WITHOUT HIS FAULT. HOWEVER, AS INDICATED ABOVE, THE ADMINISTRATIVE REGULATIONS WERE NOT CLEAR WITH REGARD TO WITHHOLDING PAYMENT PENDING THE DISPOSITION OF CHARGES UNDER THE UNIFORM CODE OF MILITARY JUSTICE. IN THESE CIRCUMSTANCES, AND SINCE WE DO NOT APPEAR TO HAVE CONSIDERED THE MATTER IN PRIOR DECISIONS, RECOUPMENT OF THE AMOUNT OF TEMPORARY LODGING ALLOWANCE PAID PRIOR TO THIS DECISION IN THIS AND OTHER CASES WILL NOT BE REQUIRED IF THE PAYMENTS WERE CORRECT IN OTHER RESPECTS. THE QUESTIONS PRESENTED ARE ANSWERED ACCORDINGLY.