B-205639 L/M, FEB 9, 1982

B-205639 L/M, FEB 9, 1982

DIGEST: A SERVICE MEMBER HAS AN INDEPENDENT RIGHT TO TRAVEL AND TRANSPORTATION ALLOWANCES UPON DISCHARGE, NOTWITHSTANDING THAT THE DISCHARGED MEMBER'S SPOUSE IS IN SERVICE OR THAT THEIR HOUSEHOLD GOODS ARE JOINTLY OWNED. HENCE, THE FACT THAT A FORMER AIR FORCE MEMBER SHIPPED HER FAMILY'S HOUSEHOLD GOODS FROM SATELLITE BEACH TO MELBOURNE, FLORIDA, UNDER HER DISCHARGE ORDERS AT THE TIME HER SERVICEMAN-HUSBAND RECEIVED PCS ORDERS FOR AN UNACCOMPANIED TOUR OF DUTY OVERSEAS DID NOT PRECLUDE THE HUSBAND FROM THEN EXERCISING HIS ONE-TIME RIGHT UNDER HIS PCS ORDERS TO HAVE DEPENDENT TRAVEL AND DISLOCATION ALLOWANCES WHEN HIS WIFE AND CHILDREN MADE ONE FURTHER MOVE FROM FLORIDA TO CALIFORNIA. 37 U.S.C. 404, 406, AND 407.

LAWTON CHILES, UNITED STATES SENATOR:

WE REFER FURTHER TO YOUR LETTER DATED OCTOBER 23, 1981, WITH ENCLOSURES, CONCERNING QUESTIONS RAISED BY STAFF SERGEANT DAVID W. NEWTON, USAF, AND HIS WIFE, GAYLE NEWTON, ABOUT THEIR MILITARY PAY AND ALLOWANCE ENTITLEMENTS. THE NEWTONS CURRENTLY RESIDE AT 418 BULLOCK BOULEVARD, NICEVILLE, FLORIDA 32578.

WE HAVE CAREFULLY CONSIDERED THE QUESTIONS POSED BY THE NEWTONS AND HAVE CONCLUDED, IN LIGHT OF THE FACTS PRESENTED AND THE APPLICABLE PROVISIONS OF LAW AND REGULATION, THAT SERGEANT NEWTON IS ENTITLED TO TRAVEL AND DISLOCATION ALLOWANCES PREVIOUSLY DENIED TO HIM. HOWEVER, MRS. NEWTON IS NOT ENTITLED TO A REFUND OF REENLISTMENT BONUS MONIES COLLECTED FROM HER AT THE TIME OF HER DISCHARGE FROM MILITARY SERVICE IN 1978.

IN 1978 THE NEWTONS WERE BOTH SERVING ON ACTIVE DUTY WITH THE AIR FORCE AT PATRICK AIR FORCE BASE (AFB), FLORIDA. MRS. NEWTON WAS HONORABLY DISCHARGED FROM THE AIR FORCE UPON HER APPLICATION ON DECEMBER 29 OF THAT YEAR, BUT HER HUSBAND HAS REMAINED IN SERVICE.

IN OCTOBER 1979 SERGEANT NEWTON RECEIVED PERMANENT CHANGE-OF-STATION (PCS) ORDERS DIRECTING HIM TO PERFORM A TOUR OF DUTY UNACCOMPANIED BY HIS FAMILY AT INCIRLIK, TURKEY, BEGINNING EARLY IN 1980. IN DECEMBER 1979 THE NEWTONS MOVED FROM THEIR GOVERNMENT QUARTERS AT SATELLITE BEACH, FLORIDA, TO PRIVATE HOUSING NEARBY IN MELBOURNE, FLORIDA. THEIR HOUSEHOLD GOODS WERE TRANSPORTED FROM SATELLITE BEACH TO MELBOURNE AT GOVERNMENT EXPENSE. SERGEANT NEWTON SUBSEQUENTLY REPORTED TO INCIRLIK, TURKEY, IN FEBRUARY 1980, AND AIR FORCE ACCOUNTING AND FINANCE OFFICERS THERE PAID HIM A DISLOCATION ALLOWANCE BASED ON AN ASSUMPTION THAT THE NEWTONS' MOVE FROM SATELLITE BEACH TO MELBOURNE HAD BEEN MADE UNDER HIS PCS ORDERS.

LATER ON IN AUGUST 1980 MRS. NEWTON AND THEIR TWO CHILDREN MOVED FROM MELBOURNE, FLORIDA, TO HER HOMETOWN OF BAKERSFIELD, CALIFORNIA, FOR THE DURATION OF SERGEANT NEWTON'S OVERSEAS TOUR OF DUTY. IN MARCH 1981 THE CLAIMS GROUP OF OUR OFFICE DETERMINED THAT SERGEANT NEWTON WAS NOT ENTITLED TO TRAVEL ALLOWANCES TO COVER HIS FAMILY'S AUGUST 1980 MOVE TO CALIFORNIA. THAT DETERMINATION WAS, AGAIN, BASED ON AN ASSUMPTION THAT THE FAMILY'S DECEMBER 1979 MOVE FROM SATELLITE BEACH TO MELBOURNE, FLORIDA, HAD BEEN MADE UNDER THE AUTHORITY OF SERGEANT NEWTON'S PCS ORDERS, AND THAT HIS ONE-TIME ENTITLEMENT TO RELOCATE HIS FAMILY UNDER THOSE ORDERS HAD THEREFORE BEEN EXHAUSTED BY THAT MOVE. AS A RESULT OF OUR CLAIMS GROUP'S DETERMINATION IN THE MATTER, THE AIR FORCE HAS APPARENTLY INITIATED ACTION TO RECOUP FROM SERGEANT NEWTON THE COSTS INCURRED BY THE GOVERNMENT IN 1980 IN TRANSPORTING THE NEWTONS' HOUSEHOLD GOODS FROM FLORIDA TO CALIFORNIA. ON THE BASIS OF THAT DETERMINATION SERGEANT NEWTON HAS APPARENTLY ALSO BEEN DENIED TRAVEL AND TRANSPORTATION ALLOWANCES TO FULLY COVER THE MOVE HIS FAMILY MADE IN 1981 FROM CALIFORNIA BACK TO FLORIDA TO REJOIN HIM AFTER HE WAS REASSIGNED TO EGLIN AFB, FLORIDA, FOLLOWING HIS TOUR OF DUTY IN TURKEY.

THE NEWTONS FIRST OF ALL QUESTION THE CORRECTNESS OF THE DETERMINATION MADE THAT MRS. NEWTON AND THEIR CHILDREN WERE NOT ELIGIBLE TO MOVE TO CALIFORNIA AT GOVERNMENT EXPENSE UNDER SERGEANT NEWTON'S PCS ORDERS. THEY HAVE NOW SUBMITTED COPIES OF MRS. NEWTON'S DISCHARGE ORDERS AND OTHER DOCUMENTS SHOWING THAT THEIR DECEMBER 1979 SHIPMENT OF HOUSEHOLD GOODS FROM SATELLITE BEACH TO MELBOURNE, FLORIDA, HAD, IN FACT, BEEN UNDERTAKEN UNDER THE AUTHORITY OF THOSE DISCHARGE ORDERS. THEY SUGGEST THAT THEIR DECEMBER 1979 MOVE THEREFORE DID NOT EXHAUST SERGEANT NEWTON'S RIGHT TO RELOCATE HIS FAMILY UNDER HIS PCS ORDERS.

IN ADDITION, THE NEWTONS QUESTION THE CORRECTNESS OF ACTION TAKEN BY THE AIR FORCE IN 1978 TO RECOUP CERTAIN MILITARY BONUS MONIES FROM MRS. NEWTON. SHE INDICATES THAT WHEN SHE APPLIED FOR HER DISCHARGE PRIOR TO THE EXPIRATION OF HER TERM OF ENLISTMENT, SHE WAS ADVISED BY A PERSONNEL SPECIALIST THAT SHE WOULD BE ALLOWED TO KEEP ALL OF A REENLISTMENT BONUS THAT HAD PREVIOUSLY BEEN PAID TO HER. HOWEVER, A PORTION OF THAT BONUS WAS LATER COLLECTED BACK FROM HER THROUGH SETOFF AGAINST AMOUNTS DUE TO HER IN THE FINAL SETTLEMENT OF HER MILITARY PAY ACCOUNTS. THE NEWTONS QUESTION THIS.

AT THE OUTSET, IT IS TO BE OBSERVED THAT EVERY SERVICE MEMBER'S ENTITLEMENT TO MILITARY PAY AND ALLOWANCES IS COMPLETELY DEPENDENT UPON THE APPLICABLE PROVISIONS OF STATUTORY LAW AND IMPLEMENTING SERVICE REGULATIONS, AND NEITHER THE COMMON LAW GOVERNING PRIVATE EMPLOYMENT CONTRACTS NOR EQUITABLE CONSIDERATIONS HAVE A PLACE IN ANY DETERMINATION REGARDING A MEMBER'S LEGAL ENTITLEMENT TO MILITARY PAY. SEE, E.G., UNITED STATES V. LARIONOFF, 431 U.S. 864, 869 (1977); 56 COMP.GEN. 943 (1977).

CONCERNING THE PARTIAL RECOUPMENT OF A REENLISTMENT BONUS FROM MRS. NEWTON AT THE TIME OF HER VOLUNTARY SEPARATION FROM SERVICE IN 1978, THE APPLICABLE STATUTORY LAW SET FORTH IN SUBSECTION 308(D) OF TITLE 37, U.S.C. PROVIDES IN PERTINENT PART THAT:

"(D) A MEMBER WHO VOLUNTARILY *** DOES NOT COMPLETE THE TERM OF ENLISTMENT FOR WHICH A BONUS WAS PAID *** SHALL REFUND THAT PERCENTAGE OF THE BONUS THAT THE UNEXPIRED PART OF HIS ADDITIONAL OBLIGATED SERVICE IS OF THE TOTAL REENLISTMENT *** FOR WHICH THE BONUS WAS PAID."

THIS STATUTORY PROVISION CLEARLY REQUIRES REFUND OF A PORTION OF A REENLISTMENT BONUS ON ACCOUNT OF A MEMBER'S EARLY DISCHARGE. THEREFORE, THE AIR FORCE'S ACTION IN COLLECTING THE REQUIRED AMOUNT FROM MRS. NEWTON IN THE FINAL SETTLEMENT OF HER MILITARY PAY ACCOUNTS APPEARS CORRECT, NOTWITHSTANDING ANY MISLEADING ADVICE TO THE CONTRARY THAT SHE MAY HAVE RECEIVED FROM A PERSONNEL SPECIALIST.

AS TO THE QUESTION RAISED BY THE NEWTONS CONCERNING THEIR TRAVEL AND TRANSPORTATION ENTITLEMENTS, SUBSECTION 404(A)(3) OF TITLE 37, U.S.C. PROVIDES THAT UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED A MEMBER OF A UNIFORMED SERVICE IS ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES FOR TRAVEL HOME UPON SEPARATION FROM SERVICE. IMPLEMENTING PROVISIONS OF THE DEFENSE DEPARTMENT'S JOINT TRAVEL REGULATIONS DIRECT THAT AN HONORABLY DISCHARGED SERVICE MEMBER IS ENTITLED TO SHIPMENT OF HOUSEHOLD GOODS TO THE PLACE HE SELECTS ANYTIME WITHIN 1 YEAR OF THE DATE OF DISCHARGE.

IN OUR VIEW, MRS. NEWTON HAD AN INDEPENDENT RIGHT TO THESE TRAVEL AND TRANSPORTATION ENTITLEMENTS PRESCRIBED BY 37 U.S.C. 404(A)(3) AND THE IMPLEMENTING REGULATIONS WHEN SHE WAS DISCHARGED FROM THE AIR FORCE, NOTWITHSTANDING THAT HER HUSBAND MAY HAVE REMAINED ON ACTIVE DUTY WITH THE AIR FORCE OR THAT THEIR HOUSEHOLD GOODS MAY HAVE BEEN JOINTLY OWNED. HAVE EXAMINED HER DISCHARGE ORDERS AND THE RELATED DOCUMENTS WHICH HAVE NOW BEEN SUBMITTED FOR CONSIDERATION, AND WE HAVE CONCLUDED THAT THE SHIPMENT OF THE NEWTONS' HOUSEHOLD GOODS FROM SATELLITE BEACH TO MELBOURNE, FLORIDA, WAS PROPERLY UNDERTAKEN IN A TIMELY MANNER UNDER THOSE DISCHARGE ORDERS. HENCE, WE HAVE ALSO CONCLUDED THAT THE NEWTONS' MOVE TO MELBOURNE, FLORIDA, IN DECEMBER 1979 HAD NO EFFECT ON SERGEANT NEWTON'S TRAVEL AND TRANSPORTATION ENTITLEMENTS UNDER HIS PCS ORDERS.

SECTIONS 406 AND 407 OF TITLE 37, U.S.C. AND IMPLEMENTING PROVISIONS OF THE JOINT TRAVEL REGULATIONS, GENERALLY PROVIDE THAT A SERVICE MEMBER ASSIGNED TO AN UNACCOMPANIED TOUR OF DUTY OVERSEAS UNDER PCS ORDERS HAS A ONE-TIME RIGHT TO MOVE HIS FAMILY TO ANOTHER LOCATION WITHIN THE UNITED STATES, AND HE IS ENTITLED TO DEPENDENT TRAVEL AND DISLOCATION ALLOWANCES IF HE EXERCISES THAT RIGHT. SINCE WE HAVE CONCLUDED THAT SERGEANT NEWTON DID NOT EXERCISE OR EXHAUST THOSE RIGHTS WHEN HIS FAMILY MOVED TO MELBOURNE, FLORIDA, IN DECEMBER 1979, IT IS OUR VIEW THAT HE IS ENTITLED UNDER 37 U.S.C. 406 AND 407 TO DEPENDENT TRAVEL AND DISLOCATION ALLOWANCES INCIDENT TO HIS FAMILY'S SUBSEQUENT MOVE TO BAKERSFIELD, CALIFORNIA, IN AUGUST 1980.

ACCORDINGLY, WE HAVE TODAY DIRECTED THAT THE FOLLOWING ACTIONS BE TAKEN:

1. SERGEANT NEWTON IS TO BE ALLOWED TRAVEL AND DISLOCATION ALLOWANCES INCIDENT TO HIS FAMILY'S MOVE FROM FLORIDA TO CALIFORNIA IN AUGUST 1980, SUBJECT TO SETOFF OF THE DISLOCATION ALLOWANCE ERRONEOUSLY PAID TO HIM IN FEBRUARY 1980;

2. ANY AMOUNT RECOUPED FROM SERGEANT NEWTON ON ACCOUNT OF THE TRANSPORTATION OF HIS FAMILY'S HOUSEHOLD GOODS FROM FLORIDA TO CALIFORNIA IN 1980 IS TO BE REFUNDED TO HIM; AND

3. SERGEANT NEWTON IS TO BE ALLOWED TRAVEL AND TRANSPORTATION ALLOWANCES FULLY COVERING HIS FAMILY'S MOVE FROM CALIFORNIA BACK TO FLORIDA IN 1981 INCIDENT TO HIS REASSIGNMENT TO EGLIN AFB. PAYMENT WILL ISSUE IN DUE COURSE. WE TRUST THIS WILL SERVE THE PURPOSE OF YOUR INQUIRY.

THE ENCLOSURES INCLUDED WITH YOUR LETTER ARE RETURNED AS REQUESTED.