B-168892, MAY 27, 1970

B-168892, MAY 27, 1970

TO STAFF SERGEANT ELIE HALIOUA:

REFERENCE IS MADE TO YOUR LETTER DATED APRIL 15, 1970, IN WHICH YOU REQUEST RECONSIDERATION OF OUR DECISION OF MARCH 10, 1970, B-168892, SUSTAINING THE SETTLEMENT DATED APRIL 21, 1969, WHICH DISALLOWED YOUR CLAIM FOR TEMPORARY LODGING ALLOWANCE AS FOR A MEMBER WITH DEPENDENTS FOR THE PERIOD FROM AUGUST 7 TO OCTOBER 27, 1968.

IN YOUR LETTER YOU QUESTION THE STATEMENTS IN OUR DECISION OF MARCH 10, 1970, PERTAINING TO THE CONDITIONS UNDER WHICH ORDER NO. AA-1586, DATED JULY 16, 1968, WAS ISSUED TO AMEND ORDER NO. AA-1536, DATED JULY 12, 1968, BY AUTHORIZING CONCURRENT TRANSPORTATION OF DEPENDENTS TO YOUR ASSIGNED OVERSEAS STATION. YOU SAY THAT THE ORIGINAL ORDERS INVOLVED A HUMANITARIAN ASSIGNMENT FOR THE EXPRESS PURPOSE OF BRINGING YOUR WIFE OVERSEAS SO THAT SHE COULD BE WITH HER MOTHER WHO WAS SUFFERING FROM CANCER. FOR THAT REASON AND SINCE YOUR ASSIGNMENT WAS TO A STATION NEAR THE RESIDENCE OF HER MOTHER, YOU CONTEND THAT YOUR WIFE'S TRAVEL TO THE VICINITY OF YOUR STATION WAS NECESSARY IN ORDER TO CARRY OUT THE PURPOSE OF THE HUMANITARIAN TRANSFER.

YOU ALSO SAY THAT THE AMENDMENT OF JULY 16, 1968, TO YOUR ORDERS, REQUIRING THAT YOUR DEPENDENTS RESIDE WITH YOUR MOTHER-IN-LAW IN ITALY UNTIL HOUSING COULD BE OBTAINED, WAS DELIVERED TO YOU AT MATHER AIR FORCE BASE, CALIFORNIA, ON THE DAY YOU AND YOUR DEPENDENTS DEPARTED FROM THAT STATION; THAT A TRANSPORTATION REQUEST FOR FAMILY TRAVEL HAD ALREADY BEEN PROCESSED AND YOUR HOUSEHOLD GOODS SHIPPED BASED ON THE ORDERS OF JULY 12, 1968. THEREFORE, SINCE THE REQUIREMENT THAT YOUR FAMILY LIVE WITH YOUR MOTHER-IN-LAW WAS DELETED BY THE AMENDMENT OF SEPTEMBER 9, 1968, YOU CONTEND THAT THE ONLY EFFECT OF THE ORDERS OF JULY 16, 1968, WAS TO REGULARIZE THE PREVIOUS ORDERS UPON WHICH ALL THE MOVING ARRANGEMENTS HAD ALREADY BEEN MADE. YOU STATE FURTHER THAT THE AMENDMENT SUPPORTS YOUR CONTENTION THAT YOUR ORIGINAL APPLICATION FOR CONCURRENT TRAVEL WAS APPROVED.

YOUR LETTER OF APRIL 15, 1970, STRESSES THE FACT THAT THE ORDERS DIRECTING THE OVERSEAS ASSIGNMENT WERE ISSUED AS A HUMANITARIAN REASSIGNMENT FOR THE EXPRESS PURPOSE OF BRINGING YOUR WIFE OVERSEAS SO THAT SHE COULD BE WITH HER MOTHER WHO WAS SUFFERING FROM CANCER. THIS IS NOT CONSISTENT WITH YOUR STATEMENTS IN A MEMORANDUM DATED OCTOBER 30, 1968, THAT THE REASSIGNMENT WAS TO ENABLE YOU TO BRING YOUR MOTHER FROM RABAT, MOROCCO, TO ITALY SO THAT YOU COULD TAKE CARE OF HER IN HER TERMINAL ILLNESS. IN THIS CONNECTION, CHAPTER 5 OF AIR FORCE MANUAL 39 11 PROVIDES THAT TRANSFERS OF MEMBERS FROM ONE DUTY STATION TO ANOTHER MAY NOT BE AT GOVERNMENT EXPENSE SOLELY FOR HUMANITARIAN REASONS BUT THAT THE DETERMINING FACTOR FOR APPROVAL OF THE REQUEST MUST BE THE NEED OF THE SERVICE. SINCE THE ASSIGNMENT ORDERS CITE AIR FORCE MANUAL 39-11 AS AUTHORITY IN PART FOR THE TRANSFER, IT IS ASSUMED THAT THE TRANSFER WAS FOR THE NEED OF THE SERVICE AND ON PUBLIC BUSINESS AND NOT SOLELY ON THE BASIS OF YOUR NEED TO BE OVERSEAS TO TAKE CARE OF PERSONAL MATTERS.

WITH RESPECT TO A MEMBER'S RIGHT TO TRANSPORTATION OF HIS DEPENDENTS AT GOVERNMENT EXPENSE UPON AN ORDERED CHANGE OF PERMANENT STATION FOR THE NEED OF THE SERVICE, IT LONG HAS BEEN RECOGNIZED THAT SUCH RIGHT IS NOT AN ABSOLUTE ONE, BUT MAY BE ADMINISTRATIVELY SUSPENDED OR DENIED FOR REASONS OF MILITARY NECESSITY OR EXPEDIENCY. 35 COMP. GEN. 61 (1955). FOR THAT REASON, WE CITED IN OUR DECISION SEVERAL REGULATIONS GOVERNING THE TRANSPORTATION OF A MEMBER'S DEPENDENTS AT GOVERNMENT EXPENSE TO HIS OVERSEAS DUTY STATION.

THE REGULATIONS CITED INCLUDE PARAGRAPHS 3603, 3604, AND 3307, AIR FORCE MANUAL 75-4. PARAGRAPH 3603 REQUIRES THAT AN APPLICATION FOR THE CONCURRENT TRAVEL OF A MEMBER'S DEPENDENTS TO HIS OVERSEAS STATION MUST BE APPROVED BY THE OVERSEAS COMMANDER. PARAGRAPH 3604 REQUIRES THAT HOUSING FOR THE DEPENDENTS MUST BE AVAILABLE IN THE VICINITY OF THE MEMBER'S NEW DUTY STATION BEFORE AN APPLICATION FOR CONCURRENT TRAVEL MAY BE APPROVED BY THE OVERSEAS COMMANDER.

PARAGRAPH 3307 OF THE MANUAL AUTHORIZES THE OVERSEAS COMMANDER TO APPROVE DEPENDENTS' CONCURRENT TRAVEL WHEN THE MEMBER STATES IN HIS APPLICATION THAT LIVING ACCOMMODATIONS FOR HIS DEPENDENTS ARE AVAILABLE WITH RELATIVES NEAR HIS OVERSEAS DUTY STATION. AS A PREREQUISITE FOR APPROVAL, THE MEMBER MUST ALSO STATE IN HIS APPLICATION THAT HIS DEPENDENTS WILL CONTINUE TO USE SUCH ACCOMMODATIONS UNTIL LOCAL HOUSING IS MADE AVAILABLE WITHIN HIS NORMAL HOUSING PRIORITY. THE REGULATIONS CONTAIN NO PROVISION GIVING THE OVERSEAS COMMANDER THE AUTHORITY TO WAIVE OR OTHERWISE RESCIND THIS REQUIREMENT ONCE THE APPLICATION IS APPROVED AND THE DEPENDENTS ARE TRANSPORTED OVERSEAS AT GOVERNMENT EXPENSE ON THAT BASIS.

IN OUR DECISION WE REFERRED TO AN ADMINISTRATIVE DETERMINATION DATED JUNE 21, 1968, IN WHICH THE OVERSEAS COMMANDER DISAPPROVED YOUR REQUEST FOR CONCURRENT TRAVEL OF YOUR DEPENDENTS. THE REASONS GIVEN WERE THE NONAVAILABILITY OF SUITABLE ECONOMY QUARTERS TO ACCOMMODATE YOUR FAMILY, NO GOVERNMENT OR GUEST TYPE HOUSING AVAILABLE AT YOUR DUTY STATION AND THE FACT THAT THE LIMITED HOTEL ACCOMMODATIONS NEARBY WERE BELOW UNITED STATES STANDARDS. THE RECORD SHOWS, HOWEVER, THAT A SUBSEQUENT APPROVAL WAS GIVEN BY THE OVERSEAS COMMANDER ON THE BASIS OF YOUR STATEMENT THAT YOUR FAMILY COULD RESIDE WITH YOUR MOTHER-IN-LAW WHILE AWAITING QUARTERS. AND, ON THAT BASIS ORDER NO. AA-1586, DATED JULY 16, 1968, WAS ISSUED AUTHORIZING CONCURRENT TRAVEL OF YOUR DEPENDENTS SUBJECT TO THE REQUIREMENT THAT YOUR FAMILY RESIDE WITH YOUR MOTHER-IN-LAW AT PORDENONE, ITALY, "UNTIL APPROVED HOUSING CAN BE OBTAINED."

WE THEREFORE CONCLUDED THAT UNDER THE CITED REGULATIONS THERE WAS NO AUTHORITY FOR THE OVERSEAS COMMANDER TO ISSUE THE AMENDMENT DATED SEPTEMBER 9, 1968, WHICH PURPORTED TO DELETE THE RESIDENCE REQUIREMENT WHICH BECAME BINDING ON YOU UPON APPROVAL OF YOUR APPLICATION AND THE SUBSEQUENT TRANSPORTATION OF YOUR DEPENDENTS TO YOUR OVERSEAS STATION AT GOVERNMENT EXPENSE. FOR THAT REASON, WE HELD THAT YOUR DEPENDENTS WERE NOT REQUIRED TO OCCUPY HOTEL OR HOTEL-LIKE ACCOMMODATIONS AT PERSONAL EXPENSE WITHIN THE CONTEMPLATION OF PARAGRAPH M4303, JOINT TRAVEL REGULATIONS, SO AS TO ENTITLE YOU TO A TEMPORARY LODGING ALLOWANCE ON THEIR ACCOUNT. WE ALSO POINTED OUT THAT YOU HAVE FURNISHED NO RECEIPTS OR OTHER EVIDENCE TO ESTABLISH THAT YOU ATE AT PUBLIC RESTAURANTS TO SUPPORT A CLAIM FOR TEMPORARY LODGING ALLOWANCE FOR YOURSELF, AND IN THE ABSENCE OF SUCH EVIDENCE THERE IS NO BASIS UPON WHICH ANY PART OF YOUR CLAIM MAY BE ALLOWED.

YOU SEEM TO BE OF THE OPINION THAT THE AMENDMENT OF JULY 16, 1968, TO YOUR ORDERS SHOULD NOT AFFECT YOUR ENTITLEMENT TO TEMPORARY LODGING ALLOWANCE SINCE ARRANGEMENTS FOR THE CONCURRENT MOVEMENT OF YOUR DEPENDENTS TO YOUR NEW OVERSEAS STATION WERE MADE INCIDENT TO THE ORDERS OF JULY 12, 1968, THE AMENDMENT OF JULY 16 NOT HAVING BEEN DELIVERED TO YOU UNTIL THE DAY OF YOUR DEPARTURE FROM YOUR OLD STATION.

AS STATED IN OUR PRIOR DECISION, THE ORDERS OF JULY 12 CONTAIN NO PROVISION WITH RESPECT TO CONCURRENT TRAVEL OF DEPENDENTS, BUT EVEN IF IT BE ASSUMED THAT SUCH TRAVEL WAS AUTHORIZED UNDER THOSE ORDERS, YOU ARE ADVISED THAT A MEMBER'S TRAVEL ORDERS ARE SUBJECT TO CANCELLATION OR AMENDMENT AT ANY TIME BEFORE EXECUTION OF THE ORDERS.

YOU ADMIT THAT THE AMENDMENT OF JULY 16 WAS DELIVERED TO YOU BEFORE YOU DEPARTED FROM YOUR OLD STATION. HENCE, IT IS CLEAR THAT THE CONDITIONS IN THE AMENDMENT WERE APPLICABLE TO THE MOVEMENT OF YOUR DEPENDENTS TO YOUR OVERSEAS STATION AND THE FACT THAT YOU HAD MADE ARRANGEMENTS FOR THEIR CONCURRENT TRAVEL BEFORE RECEIVING THE AMENDMENT PROVIDES NO BASIS TO EXEMPT YOU FROM ITS CONDITIONS.

FOR THESE REASONS AND SINCE YOU HAVE NOT FURNISHED EVIDENCE THAT YOU ATE AT PUBLIC RESTAURANTS DURING ANY PORTION OF THE PERIOD INVOLVED, WE HAVE NO ALTERNATIVE OTHER THAN TO AFFIRM OUR PRIOR DECISION.

REGARDING YOUR REQUEST PERTAINING TO FURTHER APPEAL OF YOUR CLAIM, YOU ARE ADVISED THAT THE DECISIONS OF THIS OFFICE ARE CONCLUSIVE UPON THE EXECUTIVE DEPARTMENTS OF THE GOVERNMENT. INDEPENDENTLY OF THE JURISDICTION OF THE GENERAL ACCOUNTING OFFICE, HOWEVER, THE UNITED STATES COURT OF CLAIMS AND THE UNITED STATES DISTRICT COURTS HAVE JURISDICTION TO CONSIDER CERTAIN CLAIMS AGAINST THE GOVERNMENT. SEE 28 U.S.C. 1346 (A) (2), 1491, 2401 AND 2501.