B-160795, MAR. 10, 1967

B-160795: Mar 10, 1967

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RA: REFERENCE IS MADE TO YOUR LETTER OF JANUARY 11. YOU WERE ORDERED ON PERMANENT CHANGE OF STATION TO OVERSEAS DUTY. SUPPLEMENTAL STATEMENTS INDICATE THAT YOU HAVE MAINTAINED A RESIDENCE FOR YOUR DEPENDENT WIFE AT COLUMBUS. DURING YOUR OVERSEAS ASSIGNMENT AND THAT THE REASON YOU CHOSE AN UNACCOMPANIED TOUR WAS YOUR WIFE'S HEALTH. SHOWING THAT YOUR WIFE WAS TREATED AS AN OUTPATIENT AND/OR HOSPITALIZED AT THAT HOSPITAL AT VARIOUS TIMES FROM JANUARY 31. WHICH WAS PRESUMABLY LOST AT FORT DIX. IT HAS BEEN ADMINISTRATIVELY REPORTED THAT THERE IS NO RECORD OF RECEIPT OF A CLAIM FROM YOU PRIOR TO THE ONE DATED MARCH 1. THAT THERE IS NO DOCUMENTARY EVIDENCE TO SUPPORT YOUR STATEMENT THAT YOU SELECTED THE "ALL OTHERS" TOUR AS REQUIRED BY REGULATIONS GOVERNING PAYMENT OF FAMILY SEPARATION ALLOWANCE.

B-160795, MAR. 10, 1967

TO SERGEANT FIRST CLASS DWIGHT L. WELLS, RA:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 11, 1967, REQUESTING RECONSIDERATION OF OUR SETTLEMENT DATED JANUARY 9, 1967, WHICH DISALLOWED YOUR CLAIM FOR FAMILY SEPARATION ALLOWANCE FOR THE PERIOD FROM OCTOBER 1, 1963, TO AUGUST 1, 1965.

BY PARAGRAPH 110, SPECIAL ORDERS NO. 157, HEADQUARTERS, FORT LEONARD WOOD, MISSOURI, DATED AUGUST 2, 1963, YOU WERE ORDERED ON PERMANENT CHANGE OF STATION TO OVERSEAS DUTY, TO REPORT FOR TRANSPORTATION OVERSEAS AT FORT DIX, NEW JERSEY, ON SEPTEMBER 14, 1963. THESE ORDERS DID NOT CONTAIN ANY RESTRICTION ON THE TRANSPORTATION OF DEPENDENTS TO YOUR OVERSEAS STATION. THE RECORD INDICATES THAT YOU REMAINED AT YOUR OVERSEAS STATION UNTIL YOU DEPARTED FRANKFURT, GERMANY, ON AUGUST 7, 1965, ARRIVING IN THE UNITED STATES THE SAME DAY AND THAT YOUR DEPENDENT WIFE DID NOT TRAVEL TO YOUR OVERSEAS STATION DURING THE PERIOD OF YOUR TOUR.

IN YOUR CLAIM DATED MARCH 1, 1966, YOU STATED THAT ON OR ABOUT OCTOBER 10, 1963, YOU APPLIED FOR FAMILY SEPARATION ALLOWANCE, HAVING PREVIOUSLY MADE A STATEMENT INCIDENT TO YOUR ORDERS OF AUGUST 2, 1963, THAT YOUR TOUR WOULD BE UNACCOMPANIED. YOU STATED FURTHER THAT YOU APPLIED AGAIN FOR SUCH ALLOWANCE ON APRIL 14 AND JUNE 16, 1965. SUPPLEMENTAL STATEMENTS INDICATE THAT YOU HAVE MAINTAINED A RESIDENCE FOR YOUR DEPENDENT WIFE AT COLUMBUS, NEW JERSEY, DURING YOUR OVERSEAS ASSIGNMENT AND THAT THE REASON YOU CHOSE AN UNACCOMPANIED TOUR WAS YOUR WIFE'S HEALTH. TO SUBSTANTIATE THIS YOU SUBMITTED A STATEMENT FROM WALSON ARMY HOSPITAL, FORT DIX, NEW JERSEY, DATED AUGUST 18, 1966, SHOWING THAT YOUR WIFE WAS TREATED AS AN OUTPATIENT AND/OR HOSPITALIZED AT THAT HOSPITAL AT VARIOUS TIMES FROM JANUARY 31, 1963, TO DECEMBER 10, 1965.

YOU SAY THAT THE FORM YOU SIGNED TO THE EFFECT THAT YOU HAD CHOSEN AN UNACCOMPANIED TOUR HAD BEEN ATTACHED TO YOUR ORIGINAL CLAIM, INITIATED SEPTEMBER 9, 1965, WHICH WAS PRESUMABLY LOST AT FORT DIX. IN THAT CONNECTION, IT HAS BEEN ADMINISTRATIVELY REPORTED THAT THERE IS NO RECORD OF RECEIPT OF A CLAIM FROM YOU PRIOR TO THE ONE DATED MARCH 1, 1966, AND THAT THERE IS NO DOCUMENTARY EVIDENCE TO SUPPORT YOUR STATEMENT THAT YOU SELECTED THE "ALL OTHERS" TOUR AS REQUIRED BY REGULATIONS GOVERNING PAYMENT OF FAMILY SEPARATION ALLOWANCE.

YOUR CLAIM WAS DISALLOWED BY SETTLEMENT OF JANUARY 9, 1967, FOR THE REASONS STATED. IN YOUR LETTER DATED JANUARY 11, 1967, YOU STATE THAT YOU SIGNED THE "ALL OTHERS" TOUR STATEMENT SOMETIME IN APRIL 1964, WHILE ON DUTY WITH THE 3RD ARMORED DIVISION IN GERMANY AND THAT THIS STATEMENT WAS IN YOUR 201 FILE AT THE TIME YOU INITIATED YOUR ORIGINAL CLAIM AT FORT DIX ON SEPTEMBER 9, 1965. YOU AGAIN SAY THAT THIS STATEMENT AND THE STATEMENT YOU HAD SIGNED AT FORT LEONARD WOOD WERE ATTACHED TO THAT CLAIM WHICH WAS LOST SOMEWHERE IN FORT DIX. YOU THEREFORE CONTEND THAT SINCE YOU WERE NOT RESPONSIBLE FOR THE LOSS OF THESE DOCUMENTS YOU ARE ENTITLED TO THE PAYMENT CLAIMED.

THE PERTINENT STATUTE, 37 U.S.C. 427 (B), PROVIDES FOR PAYMENT OF A FAMILY SEPARATION ALLOWANCE, DESIGNATED BY THE SERVICES AS TYPE II, TO CERTAIN MEMBERS UNDER SPECIFIED CIRCUMSTANCES, INCLUDING 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 UNDER SECTION 406 OF THIS TITLE" AND HIS DEPENDENTS DO NOT RESIDE AT OR NEAR THAT STATION.

SECTION 406 OF TITLE 37, U.S. CODE, PROVIDES THAT 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 CONDITIONS AND LIMITATIONS ARE SET FORTH IN CHAPTER 7 OF THE JOINT TRAVEL REGULATIONS.

THE RECORD DOES NOT SHOW THAT YOUR DEPENDENTS WERE NOT PERMITTED TO JOIN YOU IN GERMANY AND THAT TRANSPORTATION WAS DENIED UNDER SECTION 406 OF TITLE 37, U.S.C. THUS, AS FAR AS THE RECORD SHOWS, THERE WAS NO ENFORCED SEPARATION.

PARAGRAPH 5-177A, ARMY REGULATIONS 37-104, DATED APRIL 1, 1964, PROVIDED THAT ENTITLEMENT TO FAMILY SEPARATION ALLOWANCE IS DEPENDENT UPON WHETHER THE MEMBER WILL SERVE A "WITH DEPENDENTS" OR "ALL OTHERS" TOUR AT HIS OVERSEA STATION. SUBPARAGRAPH E THEREOF PROVIDED THAT THESE PROVISIONS WERE EQUALLY APPLICABLE TO MEMBERS ON DUTY AT THE OVERSEA STATION ON APRIL 1, 1964. IT FURTHER PROVIDES THAT ENTITLEMENT FOR THOSE MEMBERS PLACED IN THE "ALL OTHERS" TOUR WOULD BE EFFECTIVE FROM OCTOBER 1, 1963, OR THE DATE OF ARRIVAL AT THE PERMANENT DUTY STATION WHICHEVER IS LATER. DEPARTMENT OF THE ARMY MESSAGE 960038, DATED MARCH 18, 1964, PROVIDED THAT IF A MEMBER WAS ON DUTY OR ENROUTE TO AN OVERSEAS STATION ON THE EFFECTIVE DATE OF THE IMPLEMENTING SERVICE REGULATIONS, HE SHOULD BE GIVEN 30 DAYS FROM THE DATE SUCH REGULATIONS WERE ISSUED, OR 30 DAYS FROM THE DATE OF REPORTING TO HIS OVERSEAS STATION, WHICHEVER WAS LATER, TO SELECT THE "ALL OTHERS" OR "WITH DEPENDENTS" TOUR.

YOU STATE THAT YOU HAD SIGNED THE "ALL OTHERS" TOUR STATEMENT SOMETIME IN APRIL 1964, AND THAT IT WAS IN YOUR 201 FILE AT THE TIME YOU INITIATED YOUR ORIGINAL CLAIM ON SEPTEMBER 9, 1965. YOU STATE FURTHER THAT THIS STATEMENT, WHICH WAS WITH THAT CLAIM TOGETHER WITH THE STATEMENT YOU ALLEGE YOU SIGNED AT FORT LEONARD WOOD, WAS LOST WHILE THE CLAIM WAS BEING PROCESSED AT FORT DIX. HOWEVER, NO DOCUMENTS IN SUPPORT OF YOUR STATEMENTS HAVE BEEN LOCATED AND THERE IS NO EVIDENCE OF A CLAIM PRESENTED BY YOU IN THE MATTER PRIOR TO MARCH 1, 1966. THEREFORE, IN THE ABSENCE OF DOCUMENTARY EVIDENCE IN SUPPORT OF YOUR CLAIM, THERE IS NO BASIS UPON WHICH IT MAY BE ALLOWED. THE LOSS OF THE DOCUMENTS CONCERNED, EVEN THOUGH SUCH LOSS MAY HAVE BEEN THE FAULT OF THE PERSONNEL AT FORT DIX, DOES NOT AFFORD A LEGAL BASIS FOR THE PAYMENT OF YOUR CLAIM BY THE GOVERNMENT.

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