B-149196, JUL. 6, 1962

B-149196: Jul 6, 1962

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REED: REFERENCE IS MADE TO YOUR LETTER OF APRIL 30. WHICH LETTER WAS FORWARDED TO THIS OFFICE AS A REQUEST FOR RECONSIDERATION OF YOUR CLAIM FOR TRANSPORTATION ALLOWANCE FOR THE TRAVEL OF YOUR DEPENDENTS FROM BARSTOW. YOU WERE ORDERED TO ACTIVE DUTY FROM KNOXVILLE. YOU WERE RELEASED FROM ACTIVE DUTY THAT DAY. WAS AUTHORIZED. YOU WERE ADVISED THAT YOUR CLAIM FOR REIMBURSEMENT FOR SUCH TRAVEL WAS ADMINISTRATIVELY DISALLOWED BECAUSE YOUR DEPENDENTS DEPARTED THE OLD PERMANENT STATION PRIOR TO ISSUANCE OF CHANGE OF STATION ORDERS AND THE VOUCHER WAS NOT SUPPORTED BY A CERTIFICATE OF THE COMMANDING OFFICER. THAT YOU WERE ADVISED PRIOR TO THE ISSUANCE OF THE CHANGE OF STATION ORDERS THAT SUCH ORDERS WOULD BE ISSUED.

B-149196, JUL. 6, 1962

TO MR. DONALD E. REED:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 30, 1962, TO THE ADJUTANT GENERAL, DEPARTMENT OF THE ARMY, WHICH LETTER WAS FORWARDED TO THIS OFFICE AS A REQUEST FOR RECONSIDERATION OF YOUR CLAIM FOR TRANSPORTATION ALLOWANCE FOR THE TRAVEL OF YOUR DEPENDENTS FROM BARSTOW, CALIFORNIA, TO KNOXVILLE, TENNESSEE, THE CLAIM HAVING BEEN DISALLOWED BY SETTLEMENT DATED APRIL 6, 1962.

BY LETTER ORDER A-09-682, HEADQUARTERS, THIRD UNITED STATES ARMY, FORT MCPHERSON, GEORGIA, DATED SEPTEMBER 14, 1961, YOU WERE ORDERED TO ACTIVE DUTY FROM KNOXVILLE, TENNESSEE, FOR ONE YEAR EFFECTIVE OCTOBER 9, 1961, UNDER THE PROVISIONS OF PUBLIC LAW 87-117, 75 STAT. 242, WITH ASSIGNED STATION AT FORT IRWIN, CALIFORNIA. PURSUANT TO PARAGRAPH 3, SPECIAL ORDERS NO. 9, U.S. ARMY ARMOR AND DESERT TRAINING CENTER, FORT IRWIN, CALIFORNIA, DATED JANUARY 10, 1962, YOU WERE RELEASED FROM ACTIVE DUTY THAT DAY. PAYMENT OF TRAVEL ALLOWANCE FOR YOUR OWN TRAVEL TO KNOXVILLE, TENNESSEE, WAS AUTHORIZED.

THE RECORD SHOWS THAT YOUR DEPENDENTS DEPARTED BARSTOW, CALIFORNIA, DECEMBER 22, 1961, AND ARRIVED AT KNOXVILLE, TENNESSEE, DECEMBER 25, 1961. BY LETTER FROM THE OFFICE, CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, DATED FEBRUARY 1, 1962, YOU WERE ADVISED THAT YOUR CLAIM FOR REIMBURSEMENT FOR SUCH TRAVEL WAS ADMINISTRATIVELY DISALLOWED BECAUSE YOUR DEPENDENTS DEPARTED THE OLD PERMANENT STATION PRIOR TO ISSUANCE OF CHANGE OF STATION ORDERS AND THE VOUCHER WAS NOT SUPPORTED BY A CERTIFICATE OF THE COMMANDING OFFICER, OR HIS DESIGNATED REPRESENTATIVE, THAT YOU WERE ADVISED PRIOR TO THE ISSUANCE OF THE CHANGE OF STATION ORDERS THAT SUCH ORDERS WOULD BE ISSUED.

IN YOUR LETTER DATED MARCH 7, 1962, YOU REQUESTED RECONSIDERATION OF YOUR CLAIM AND FORWARDED SEVERAL DOCUMENTS IN SUPPORT OF YOUR CONTENTION THAT YOU WERE OFFICIALLY NOTIFIED OF YOUR PENDING RELEASE FROM ACTIVE DUTY AT THE TIME YOU WERE GRANTED LEAVE EFFECTIVE DECEMBER 22, 1961. THE DOCUMENTS INCLUDED A COPY OF YOUR REQUEST FOR RELEASE FROM ACTIVE DUTY, DATED DECEMBER 14, 1961; A LETTER FROM THE ADJUTANT GENERAL, DEPARTMENT OF THE ARMY, DATED JANUARY 9, 1962, TO CONGRESSMAN HOWARD H. BAKER, STATING THAT IT HAD BEEN DETERMINED THAT YOU WERE ERRONEOUSLY ORDERED TO ACTIVE DUTY AND THAT INSTRUCTIONS HAD BEEN ISSUED DIRECTING YOUR SEPARATION, PROVIDED THERE WAS NO MILITARY REASON TO PRECLUDE THAT ACTION. ALSO THERE WAS FURNISHED A CERTIFICATE DATED FEBRUARY 28, 1962, BY THE ADJUTANT GENERAL OF YOUR STATION, STATING YOU WERE GRANTED 12 DAYS' ORDINARY LEAVE ON DECEMBER 22, 1961, TO VISIT YOUR HOME IN KNOXVILLE, TENNESSEE; THAT YOUR WIFE WAS RESIDING IN BARSTOW, CALIFORNIA; THAT ACTION ON YOUR REQUEST FOR RELEASE FROM ACTIVE DUTY WAS PENDING WITH A PROBABILITY THAT IT WOULD BE APPROVED, AND THAT AT THE TIME YOU DEPARTED ON LEAVE WITH YOUR WIFE, YOU WERE ADVISED THAT PERMANENT CHANGE OF STATION ORDERS COULD NOT BE ISSUED UNTIL APPROVAL WAS RECEIVED FROM THE DEPARTMENT OF THE ARMY.

SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 253 (C), PROVIDES THAT UNDER SUCH REGULATIONS AS MAY BE PRESCRIBED BY THE SECRETARIES CONCERNED, MEMBERS OF THE UNIFORMED SERVICES WHEN ORDERED TO MAKE A CHANGE OF PERMANENT STATION SHALL BE ENTITLED TO TRANSPORTATION OF DEPENDENTS OR TO REIMBURSEMENT THEREFOR. PARAGRAPH 7000 -9 OF THE JOINT TRAVEL REGULATIONS PROMULGATED PURSUANT TO THAT PROVISION OF LAW PROVIDES THAT TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE IS NOT AUTHORIZED WHERE THE DEPENDENTS DEPART THE OLD STATION PRIOR TO THE ISSUANCE OF ORDERS AND THE VOUCHER IS NOT SUPPORTED BY A CERTIFICATE OF THE COMMANDING OFFICER, OR HIS DESIGNATED REPRESENTATIVE, OF THE HEADQUARTERS ISSUING THE ORDERS THAT THE MEMBER WAS ADVISED PRIOR TO THE ISSUANCE OF CHANGE OF STATION ORDERS THAT SUCH ORDERS WOULD BE ISSUED. SEEMS CLEAR THAT THE REGULATION CONTEMPLATES THAT TRAVEL OF DEPENDENTS AT GOVERNMENT EXPENSE IS NOT AUTHORIZED UNTIL THE MEMBER HAS DEFINITE KNOWLEDGE OF AN IMPENDING PERMANENT CHANGE OF STATION. THEREFORE, IT HAS BEEN THE RULE THAT THE REGULATION IS APPLICABLE ONLY WHERE DEPARTURE OF THE DEPENDENTS IS DURING THE COMPARATIVELY SHORT PERIOD OF TIME WHICH MAY ELAPSE BETWEEN THE TIME OF AN ADMINISTRATIVE DETERMINATION TO ORDER A MEMBER TO MAKE A CHANGE OF STATION AND THE DATE ON WHICH ORDERS DIRECTING SUCH CHANGE ACTUALLY ARE ISSUED. MERE GENERAL INFORMATION OF AN IMPENDING CHANGE, INCLUDING RELEASE FROM ACTIVE DUTY, IS NOT SUFFICIENT TO MEET THE REQUIREMENTS OF THE REGULATION. 34 COMP. GEN. 241.

THE APPLICATION YOU FILLED OUT DECEMBER 14, 1961, REQUESTING RELEASE FROM ACTIVE DUTY REQUIRED ADMINISTRATIVE APPROVAL BEFORE YOUR RELEASE COULD BE EFFECTED. SINCE THE ADJUTANT'S CERTIFICATE OF FEBRUARY 28, 1962, STATED THAT A DEFINITE DETERMINATION APPROVING YOUR APPLICATION WAS MADE BY THE DEPARTMENT OF THE ARMY ON DECEMBER 27, 1961, AND INASMUCH AS YOUR DEPENDENTS LEFT BARSTOW, CALIFORNIA, DECEMBER 22, 1961, WHICH WAS PRIOR TO THE TIME THE DETERMINATION WAS MADE, THE ADJUTANT'S CERTIFICATE MAY NOT BE ACCEPTED AS ESTABLISHING THAT YOU HAD DEFINITE KNOWLEDGE OF A PENDING CHANGE OF STATION PRIOR TO YOUR DEPENDENT'S TRAVEL AS REQUIRED BY THE CITED REGULATIONS.

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    We dismiss the protest as untimely because it was filed more than 10 days after the protester knew, or should have known, the basis for its protest.
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