B-157776, NOV. 5, 1965

B-157776, NOV. 5, 1965

TO MR. L. DEAN BENNER:

FURTHER REFERENCE IS MADE TO YOUR LETTER, RECEIVED SEPTEMBER 27, 1965, IN EFFECT REQUESTING REVIEW OF THE SETTLEMENT OF AUGUST 6, 1965, WHICH DISALLOWED YOUR CLAIM FOR DISLOCATION ALLOWANCE AND LIMITED REIMBURSEMENT ON YOUR CLAIM FOR TRAVEL OF YOUR DEPENDENTS FROM FORT LEWIS, WASHINGTON, TO KEY WEST, FLORIDA, AND FROM MOUNT HOLLY, NEW JERSEY, TO EVERETT, WASHINGTON, TO THE AMOUNT DUE FOR TRAVEL FROM FORT LEWIS TO EVERETT, WASHINGTON. THE AMOUNT ALLOWED, $4.38, WAS APPLIED IN PARTIAL LIQUIDATION OF YOUR INDEBTEDNESS TO THE UNITED STATES IN THE SUM OF $56.25 ARISING FROM NON-DEDUCTION OF CLASS B ALLOTMENT ($18.75 PER MONTH) FOR THE PERIOD DECEMBER 1963 THROUGH FEBRUARY 1964, AS REPORTED TO US BY THE ARMY FINANCE CENTER, INDIANAPOLIS, INDIANA.

BY PARAGRAPH 43, SPECIAL ORDERS NO. 183, DATED JULY 14, 1964, YOU WERE TRANSFERRED FROM FORT LEWIS, WASHINGTON, TO APO 827, AS A PERMANENT CHANGE OF STATION. THE ORDERS AUTHORIZED 45 DAYS' DELAY EN ROUTE CHARGEABLE AS LEAVE AND DIRECTED YOU TO REPORT AT FORT DIX, NEW JERSEY, ON SEPTEMBER 11, 1964, FOR TRANSPORTATION TO YOUR OVERSEAS STATION. CONCURRENT TRAVEL OF DEPENDENTS WAS NOT AUTHORIZED. ON OCTOBER 8, 1964, WHILE AT FORT DIX AWAITING TRANSPORTATION TO YOUR PERMANENT STATION OVERSEAS, YOU SUBMITTED A REQUEST FOR A DEPENDENCY DISCHARGE. THE REQUEST WAS APPROVED AND YOU WERE RELEASED FROM ACTIVE DUTY ON OCTOBER 30, 1964, BY SPECIAL ORDERS NO. 302, U.S. ARMY PERSONNEL CENTER, FORT DIX, DATED OCTOBER 28, 1964. NOVEMBER 7, 1964, YOU EXECUTED A CLAIM FOR TRAVEL OF YOUR DEPENDENTS (WIFE AND INFANT DAUGHTER) FROM FORT LEWIS, WASHINGTON, TO KEY WEST, FLORIDA, JULY 25 TO AUGUST 30, 1964, PLUS DISLOCATION ALLOWANCE, AND FROM MOUNT HOLLY, NEW JERSEY, TO EVERETT, WASHINGTON, OCTOBER 31 TO NOVEMBER 6, 1964. ON THE REVERSE OF THE CLAIM FORM YOU STATED THAT ON OR ABOUT SEPTEMBER 15, 1964, YOUR FAMILY JOINED YOU AT FORT DIX, NEW JERSEY, WHEN YOU FOUND OUT THAT YOU WOULD BE DISCHARGED UNEXPECTEDLY. YOUR CLAIMS WERE SUPPORTED BY AN AFFIDAVIT BY YOUR WIFE'S AUNT, MARTHA G. MATTHEWS, NORFOLK, VIRGINIA, DATED MARCH 9, 1965, THAT YOUR WIFE AND DAUGHTER RESIDED IN HER HOME FROM SEPTEMBER 1 TO OCTOBER 31, 1964.

IN THE SETTLEMENT MENTIONED ABOVE REIMBURSEMENT FOR TRAVEL OF DEPENDENTS IN EXCESS OF THE AMOUNT DUE FOR TRAVEL FROM FORT LEWIS, WASHINGTON (LAST PERMANENT DUTY STATION), TO EVERETT, WASHINGTON (HOME OF RECORD), WAS DENIED ON THE BASIS THAT THE JOINT TRAVEL REGULATIONS PROHIBIT TRANSPORTATION OF DEPENDENTS UPON PERMANENT CHANGE OF STATION TO A PLACE AT WHICH THEY DO NOT INTEND TO ESTABLISH A RESIDENCE. THE DISLOCATION ALLOWANCE WAS DISALLOWED FOR THE REASON THAT UNDER THE JOINT TRAVEL REGULATIONS SUCH ALLOWANCE IS NOT PAYABLE ON THE MOVE FROM LAST STATION TO HOME UPON SEPARATION FROM THE SERVICE.

IN YOUR PRESENT LETTER YOU CONTEND THAT YOUR DEPENDENTS ESTABLISHED A RESIDENCE IN NORFOLK WHERE THEY INTENDED TO REMAIN WHILE YOU WERE IN PANAMA; THAT, HOWEVER, WHEN YOU LEARNED THAT YOUR WIFE, WHO HAD BEEN UNDER MEDICAL TREATMENT FROM NOVEMBER 1963 TO JULY 1964, INTENDED TO FOLLOW YOU TO PANAMA WITHOUT YOUR KNOWLEDGE, YOU WERE COUNSELED TO APPLY FOR A DEPENDENCY DISCHARGE. YOU FURTHER SAY THAT YOUR WIFE RECEIVED MEDICAL TREATMENT AFTER HER ARRIVAL AT FORT DIX AND THAT YOU AND SHE LIVED IN MOUNT HOLLY, NEW JERSEY. WITH RESPECT TO THE INDEBTEDNESS OF $56.25 ARISING FROM NON-DEDUCTION OF CLASS B ALLOTMENT YOU SAY THAT THIS SUM WAS DEDUCTED FROM YOUR PAY IN MARCH 1964.

THE ORDERS OF JULY 14, 1964, INVOLVED A PERMANENT CHANGE OF STATION TO A DUTY STATION IN A RESTRICTED STATION OVERSEAS. INCIDENT TO SUCH AN ASSIGNMENT, 37 U.S.C. 406, AND THE JOINT TRAVEL REGULATIONS ISSUED THEREUNDER AUTHORIZE TRANSPORTATION OF DEPENDENTS TO ANY PLACE IN THE UNITED STATES SELECTED BY THE MEMBER FOR THEIR RESIDENCE UNTIL THE RESTRICTION AT THE DUTY STATION IS REMOVED OR THE MEMBER RECEIVES FURTHER TRANSFER.

IN YOUR LETTER OF MARCH 16, 1965, YOU STATED THAT YOUR WIFE ONLY TRAVELED AS FAR AS NORFOLK; THAT SHE INTENDED TO TRAVEL TO KEY WEST LATER BUT DID NOT DO SO BECAUSE OF ILLNESS IN HER AUNT'S FAMILY THERE, AND THAT YOU CLAIMED DEPENDENT TRAVEL TO KEY WEST IN ERROR. SINCE YOUR DEPENDENTS JOINED YOU AT FORT DIX IN MID-SEPTEMBER AND YOU EXECUTED THE CLAIM FOR THEIR TRAVEL IN NOVEMBER YOU MUST HAVE KNOWN AT THAT TIME, EVEN THOUGH YOU CERTIFIED IN THE CLAIM THAT THEY ACTUALLY TRAVELED TO KEY WEST WITH THE INTENT OF ESTABLISHING A BONA FIDE RESIDENCE, THAT YOUR DEPENDENTS HAD NOT IN FACT TRAVELED TO KEY WEST AS CLAIMED BUT HAD TRAVELED ONLY TO NORFOLK, A LESSER DISTANCE. THUS, YOUR CLAIM MAY NOT BE REGARDED AS MERELY ERRONEOUS.

CLAIMS AGAINST THE UNITED STATES MUST BE BASED ON TRUE FACTS, AND IT IS INCUMBENT UPON THE CLAIMANT TO FURNISH EVIDENCE SATISFACTORILY ESTABLISHING THE CLEAR LIABILITY OF THE UNITED STATES TO PAY THE CLAIM. WHERE A CLAIM IS OF DOUBTFUL VALIDITY IT IS THE PRACTICE OF THIS OFFICE TO DENY PAYMENT AND LEAVE THE CLAIMANT TO HIS REMEDY IN THE COURTS. SEE LONGWILL V. UNITED STATES, 17 CT.CL. 288, AND CHARLES V. UNITED STATES, 19 CT.CL. 316. COMPARE KAMEN SOAP PRODUCTS COMPANY INC. V. UNITED STATES, 129 CT.CL. 619. CLAIMS WHICH APPEAR TO INVOLVE A KNOWING MISREPRESENTATION OF A MATERIAL FACT ARE SUBJECT TO THAT RULE. IN THE CIRCUMSTANCES INVOLVED THE CLAIM FOR YOUR DEPENDENTS' TRAVEL TO NORFOLK IS TOO DOUBTFUL FOR ALLOWANCE BY THIS OFFICE AND WE HAVE NO ALTERNATIVE BUT TO SUSTAIN ITS DISALLOWANCE.

HOWEVER, SINCE IT APPEARS THAT YOU INTENDED TO GO OVERSEAS IN COMPLIANCE WITH YOUR ORDERS; THAT THEY WERE CANCELED AFTER THE EFFECTIVE DATE; THAT YOUR DEPENDENTS TRAVELED TO THE EAST COAST WITH THE ORIGINAL INTENTION OF ESTABLISHING A RESIDENCE WHILE YOU WERE OVERSEAS; AND THAT THEY WERE AT FORT DIX WHEN YOU WERE RELEASED FROM ACTIVE DUTY AND TRAVELED TO YOUR HOME OF RECORD, EVERETT, WASHINGTON, IT IS CONSIDERED THAT YOU ARE ENTITLED TO REIMBURSEMENT FOR TRAVEL OF DEPENDENTS NOT TO EXCEED FROM FORT DIX, NEW JERSEY, TO EVERETT, WASHINGTON. WITH RESPECT TO DISLOCATION ALLOWANCE, SINCE THE ONLY RECOGNIZED MOVE OF YOUR DEPENDENTS WAS INCIDENT TO YOUR RELEASE FROM ACTIVE DUTY, PAYMENT OF A DISLOCATION ALLOWANCE IS PROHIBITED BY 37 U.S.C. 407 (C), WHICH SPECIFICALLY PROVIDES THAT SUCH ALLOWANCE IS NOT PAYABLE IN CONNECTION WITH THE CHANGE OF STATION FROM LAST STATION TO HOME.

A TRANSCRIPT OF YOUR PAY RECORD FOR THE PERIOD MARCH 1, 1964, TO OCTOBER 30, 1964, SHOWS THAT IN MAY 1964, THE SUM OF $93.75, REPRESENTING NON- DEDUCTION OF CLASS B ALLOTMENT ($18.75 PER MONTH FOR DECEMBER 1963 THROUGH APRIL 1964), WAS DEDUCTED FROM YOUR PAY IN THAT MONTH. THEREFORE, THE RECORD NOW SHOWS YOU WERE NOT INDEBTED TO THE UNITED STATES BY REASON OF NON-DEDUCTION OF CLASS B ALLOTMENT.

ACCORDINGLY, A SETTLEMENT FOR THE AMOUNT DUE FOR TRAVEL OF DEPENDENTS ON THE BASIS INDICATED ABOVE WILL ISSUE IN DUE COURSE.