B-180505, NOV 4, 1974

B-180505, NOV 4, 1974

NAVY MEMBER WHO UPON PERMANENT CHANGE OF STATION (PCS) TO WASHINGTON, D.C., IN APRIL 1970, REMAINED WITH DEPENDENTS IN ANNAPOLIS, MARYLAND, IN LEASED HOUSE, WAS DIVORCED IN MAY 1972, AND WHEN LEASE WAS TERMINATED BY OWNER IN ACCORDANCE WITH PROVISIONS IN THE LEASE MOVED HIS HOUSEHOLD TO ARLINGTON, VIRGINIA, IN JUNE 1972, IS NOT ENTITLED TO DISLOCATION ALLOWANCE FOR MEMBER WITHOUT DEPENDENTS AS RELOCATION TO NEARBY METROPOLITAN AREA WAS FOR PERSONAL REASONS. SEE 1 JTR SUBPARAGRAPH M9003- 1 (CHANGE 222, JULY 1, 1971).

CLAIM FOR DISLOCATION ALLOWANCE - CAPTAIN CHARLES D. POLLAK, USN:

THIS ACTION IS IN RESPONSE TO LETTER DATED NOVEMBER 21, 1973, FROM CAPTAIN CHARLES D. POLLAK, USN, WHO REQUESTS RECONSIDERATION OF THE TRANSPORTATION AND CLAIMS DIVISION SETTLEMENT DATED NOVEMBER 15, 1973, WHICH DISALLOWED HIS CLAIM FOR A DISLOCATION ALLOWANCE IN CONNECTION WITH THE MOVEMENT OF HIS HOUSEHOLD FROM ANNAPOLIS, MARYLAND, TO ARLINGTON, VIRGINIA, IN JUNE 1972.

ACCORDING TO THE RECORD, THE MEMBER ESTABLISHED A RESIDENCE FOR HIMSELF AND HIS DEPENDENTS ON JULY 29, 1969, IN ANNAPOLIS, MARYLAND. ON FEBRUARY 24, 1970, BY BUREAU OF NAVAL PERSONNEL ORDER NO. 04372(1), HE WAS ASSIGNED FROM U.S.S. LAFAYETTE, HOMEPORTED AT CHARLESTON, SOUTH CAROLINA, TO THE NAVAL ORDNANCE SYSTEMS COMMAND, WASHINGTON, D.C., TO WHICH HE REPORTED ON APRIL 24, 1970, AND WHERE GOVERNMENT QUARTERS AND MESSING FACILITIES WERE NOT AVAILABLE. ON MAY 3, 1972, CAPTAIN POLLAK WAS DIVORCED, AND ON JUNE 2, 1972, HE MOVED HIS HOUSEHOLD FROM ANNAPOLIS, MARYLAND, TO ARLINGTON, VIRGINIA. SUBSEQUENTLY, HE MADE CLAIM FOR A DISLOCATION ALLOWANCE AS A MEMBER WITHOUT DEPENDENTS, WHICH WAS DISALLOWED BY THE TRANSPORTATION AND CLAIMS DIVISION OF THE GENERAL ACCOUNTING OFFICE ON THE BASIS THAT HE HAD RELOCATED HIS RESIDENCE FOR PERSONAL REASONS AND NOT BECAUSE OF HIS PERMANENT CHANGE OF STATION.

IN HIS LETTER DATED NOVEMBER 21, 1973, CAPTAIN POLLAK SAYS THAT IN 1969 HE WAS AUTHORIZED TO MOVE FROM NEWPORT NEWS, VIRGINIA, TO CHARLESTON, SOUTH CAROLINA, AS A RESULT OF A PERMANENT CHANGE OF THE HOME PORT OF HIS SHIP, AND, ANTICIPATING ORDERS TO WASHINGTON, D.C., IN 1970 HE DECIDED TO MOVE TO THE WASHINGTON AREA IN LIEU OF GOING TO CHARLESTON.

CAPTAIN POLLAK SAYS THAT IN 1969 HE ENTERED INTO A 2-YEAR LEASE OF THE HOME OF A FRIEND (ALSO A NAVAL OFFICER) WHICH LEASE CONTAINED A CLAUSE ENABLING THE OWNER TO REOCCUPY THE PREMISES IN THE EVENT HE RECEIVED ORDERS ASSIGNING HIM TO THE ANNAPOLIS/WASHINGTON/BALTIMORE AREA. THE MEMBER SAYS FURTHER THAT AT THE EXPIRATION OF THE LEASE IN JUNE 1971, HE CONSULTED NAVY OFFICIALS WHO ADVISED HIM THAT HIS ORDERS RELOCATING HIM FROM CHARLESTON TO WASHINGTON, D.C., REMAINED OPERATIVE AND THAT HE COULD MOVE TO WASHINGTON AT THAT TIME OR UPON COMPLETION OF ANOTHER YEAR. THE MEMBER SAYS FURTHER THAT BASED UPON THIS ADVICE, HE RENEWED THE LEASE FOR ANOTHER YEAR.

THE MEMBER INDICATES THAT THE OWNER WHO RECEIVED ORDERS ASSIGNING HIM TO THE ANNAPOLIS/WASHINGTON/BALTIMORE AREA ON JULY 1, 1972, TERMINATED THE LEASE WHICH REQUIRED CAPTAIN POLLAK TO VACATE THE PREMISES, AND AS A RESULT HE MOVED TO ARLINGTON, VIRGINIA, IN JUNE 1972.

IN ADDITION, CAPTAIN POLLAK SAYS THAT ALTHOUGH HE CHOSE TO COMMUTE FROM ANNAPOLIS TO WASHINGTON, D.C., FOR A FAIRLY EXTENDED PERIOD OF TIME, THAT WAS A PERSONAL DECISION THAT DID NOT PRECLUDE HIS RIGHT TO COME INTO THE VICINITY OF THE DUTY STATION AT A TIME OF HIS OWN CHOOSING, AND THAT HIS MOVE FROM ANNAPOLIS TO THE WASHINGTON, D.C., METROPOLITAN AREA WOULD HAVE OCCURRED REGARDLESS OF HIS DIVORCE. HE CONTENDS THAT HE MADE AN AUTHORIZED MOVE AND THEREFORE IS ENTITLED TO A DISLOCATION ALLOWANCE AS A MEMBER WITHOUT DEPENDENTS.

SECTION 407(A), TITLE 37, U.S.C. PROVIDES THAT UNDER REGULATIONS PRESCRIBED BY THE SECRETARY CONCERNED, A MEMBER OF A UNIFORMED SERVICE WHOSE DEPENDENTS MAKE AN AUTHORIZED MOVE IN CONNECTION WITH HIS CHANGE OF PERMANENT STATION, OR A MEMBER WITHOUT DEPENDENTS WHO IS TRANSFERRED TO A PERMANENT STATION WHERE HE IS NOT ASSIGNED TO QUARTERS OF THE UNITED STATES, IS ENTITLED TO A DISLOCATION ALLOWANCE.

IN ACCORD WITH THE FOREGOING STATUTORY AUTHORITY, 1 JOINT TRAVEL REGULATIONS, SUBPARAGRAPH M9001-2, DEFINES A MEMBER WITHOUT DEPENDENTS AS ONE WHO HAS NO DEPENDENTS OR WHO IS NOT ENTITLED TO TRANSPORTATION OF DEPENDENTS IN CONNECTION WITH A CHANGE OF PERMANENT STATION. SUBPARAGRAPH M9003-1 (CHANGE 222, JULY 1, 1971) PROVIDES THAT A MEMBER WITHOUT DEPENDENTS IS ENTITLED TO DISLOCATION ALLOWANCE WHENEVER HE IS TRANSFERRED TO A PERMANENT DUTY STATION WHERE HE IS NOT ASSIGNED TO GOVERNMENT QUARTERS. IT FURTHER PROVIDES THAT WHEN THE RELOCATION OF A HOUSEHOLD IS BETWEEN PLACES LOCATED IN PROXIMITY TO EACH OTHER WHETHER OR NOT WITHIN THE SAME CITY, THE RELOCATION MUST BE NECESSARY AS A DIRECT RESULT OF THE PERMANENT CHANGE OF STATION, AND A STATEMENT TO THAT EFFECT FROM THE COMMANDING OFFICER OF THE NEW PERMANENT DUTY STATION IS REQUIRED.

WHEN A MEMBER RELOCATES HIS HOUSEHOLD TO AN ADJOINING OR NEARBY METROPOLITAN AREA, HIS ENTITLEMENT TO A DISLOCATION ALLOWANCE IS DEPENDENT UPON A CLEAR AND POSITIVE SHOWING THAT HIS CHANGE OF RESIDENCE WAS NECESSARY AS A DIRECT RESULT OF AN ORDERED CHANGE OF PERMANENT STATION IN THE SAME MANNER AS INDICATED IN SUBPARAGRAPH M9003 1 FOR RELOCATION OF A HOUSEHOLD BETWEEN PLACES LOCATED IN PROXIMITY TO EACH OTHER BUT NOT LOCATED IN THE SAME CITY.

THE MEMBER HAS NOT FURNISHED A STATEMENT FROM HIS COMMANDING OFFICER AS REQUIRED BY SUBPARAGRAPH M9003-1, NOR DOES IT APPEAR THAT SUCH STATEMENT PROPERLY COULD BE ISSUED IN THE CIRCUMSTANCES.

THE MEMBER RELOCATED HIS HOUSEHOLD 27 MONTHS AFTER HIS CHANGE OF STATION TO WASHINGTON, D.C., DURING WHICH TIME HE COMMUTED TO HIS DUTY STATION FROM ANNAPOLIS, WHICH IS LOCATED NEAR THE WASHINGTON METROPOLITAN AREA. THIS OCCURRED SHORTLY AFTER HIS DIVORCE AND THE TERMINATION OF HIS LEASE FOR THE PREMISES LOCATED IN ANNAPOLIS. ACCORDING TO THE MEMBER THE RELOCATION WAS PRECIPITATED BY THE LEASE TERMINATION. IN SUCH CIRCUMSTANCES, IT APPEARS THAT THE HOUSEHOLD RELOCATION WAS NOT THE DIRECT RESULT OF HIS PERMANENT CHANGE OF STATION TO WASHINGTON, D.C., BUT OCCURRED FOR PERSONAL REASONS, I.E., THE TERMINATION OF HIS LEASE ON THE ANNAPOLIS RESIDENCE. SEE DECISION B 166739, JULY 11, 1960.

ACCORDINGLY, THE SETTLEMENT OF NOVEMBER 15, 1973, IS SUSTAINED.