B-120526, SEP. 26, 1956

B-120526, SEP. 26, 1956

TO SERGEANT FIRST CLASS ELBERT H. FENTRESS, RA 33 004 503:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 29, 1956, WITH ENCLOSURES, REQUESTING RECONSIDERATION OF THE ACTION TAKEN IN OUR DECISION TO YOU DATED JANUARY 10, 1955, WHICH SUSTAINED THE DISALLOWANCE OF YOUR CLAIM FOR REIMBURSEMENT OF THE EXPENSES INCURRED IN SHIPPING YOUR HOUSEHOLD EFFECTS FROM OMAHA, NEBRASKA, TO FORT KNOX, KENTUCKY, ON AUGUST 14, 1951.

IT WAS POINTED OUT IN OUR DECISION THAT WHEN YOUR ORDERS WERE ISSUED ON APRIL 6, 1950, THE TRANSPORTATION OF HOUSEHOLD EFFECTS OF MILITARY PERSONNEL AT GOVERNMENT EXPENSE WAS GOVERNED BY REGULATIONS ISSUED IN EXECUTIVE ORDER NO. 10053, DATED APRIL 20, 1949, EFFECTIVE FEBRUARY 1, 1949, PURSUANT TO THE AUTHORITY CONTAINED IN THE ACT OF AUGUST 2, 1946, 60 STAT. 853. ON THE BASIS OF THE PROVISIONS OF PARAGRAPH 14 (B) OF SUCH REGULATIONS, WHICH PROVIDED THAT SHIPMENT OF HOUSEHOLD GOODS AT GOVERNMENT EXPENSE WAS NOT AUTHORIZED UPON REPORTING FOR DUTY ON FIRST APPOINTMENT IN THE REGULAR SERVICES, AND SINCE FORT KNOX, KENTUCKY, WHERE YOU WERE ASSIGNED BY ORDERS OF APRIL 6, 1950, WAS YOUR FIRST PERMANENT DUTY STATION FOLLOWING YOUR ENLISTMENT IN THE REGULAR SERVICES, WE CONCLUDED THAT THERE WAS NO AUTHORITY UNDER THE REGULATIONS FOR THE PAYMENT OF YOUR CLAIM. FURTHER, IT WAS POINTED OUT THAT THE PROVISION IN SECTION 303 (H) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 815, THAT "NO PROVISIONS OF THIS SECTION SHALL BECOME EFFECTIVE UNTIL SUCH REGULATIONS HAVE BEEN ISSUED" WOULD APPEAR TO NEGATIVE ANY IDEA THAT THE STATUTE INTENDED TO GO BACK AND GIVE REGULARS A RIGHT UNDER THEIR ORDERS TO FIRST DUTY STATION WHICH THEY DID NOT HAVE AT THE TIME THE ORDERS WERE ISSUED. HENCE, WE CONCLUDED THAT YOUR ORDERS OF APRIL 6, 1950, FIXED YOUR RIGHTS UNDER THE LAWS AND THE REGULATIONS IN EFFECT AT THAT TIME AND THAT THE JOINT TRAVEL REGULATIONS WERE NOT EFFECTIVE RETROACTIVELY.

YOU REQUEST RECONSIDERATION OF THE MATTER ON THE BASIS OF ORDERS DATED MAY 10, 1950, JUNE 28, 1951, AND JULY 2, 1951 (SUBMITTED BY YOU), AND THE PROVISIONS OF PARAGRAPH 4 (B), CHANGE 1 OF THE JOINT TRAVEL REGULATIONS DATED AUGUST 1, 1951. YOU STATE THAT THOSE ORDERS "CHANGED MAY STATUS IN JULY 1951.'

AN EXAMINATION OF THE ORDERS SHOW THAT EACH ORDER WAS ISSUED AT HEADQUARTERS, FORT KNOX, KENTUCKY, AND THEY PROVIDE AS FOLLOWS:

SPECIAL ORDERS NO. 130, DATED MAY 10, 1950.

"63. FENTRESS, ELBERT H. RO 33004503 (ARMY) CPL WEM MOS 0060 TOE AND BR 6 YRS UNASG ETS APR 56 14 MOS OS SVC RTN 12 DEC 49 REL ASG (PERM PARTY) SVC BTRY 67TH ARMD FA BN COB AND TRF FOOD SVC SCH 2128TH ASU FT KNOX KY. EDCMR 15 MAY 50. WP 15 MAY 50 W/NO. DELAY ENROUTE.

"PCS. NO TVL. AUTH: CONCURRENCE CG 3D ARMD DIV AND CG FT KNOX KY.'

SPECIAL ORDERS NO. 171, DATED JUNE 28, 1951.

"26. CPL ELBERT H. FENTRESS RO 33004503 PRIMARY MOS 3060 RACE WHITE COMPONENT RA TERM ENL 6 ETS APR 56 REL ASG 2128-4 FOOD SVC SCH (OPERATING) AND REAS6 3D ARMD DIV (OPERATING). EDCMR 2 JUL 51.'

SPECIAL ORDERS NO. 183, DATED JULY 2, 1951.

"124. FENTRESS, ELBERT H. RO33004503 CPL WEM MOS 3060 TOE AND BR 6 YRS UNASG ETS APR 56 PROFILE 211111 TRF THIS COMD PER PAR 26 S0 171 HQ FT KNOX KY 28 JUN 51 FROM 2128-4ASU FOOD SVC SCH FT KNOX AND HAVING REPT 2 JULY 51 ASG (PERM PARTY) CO D 84TH TK BN DIV TN FOR DY ASG 3060. EDCMR 2 JUL 51.'

PARAGRAPH 1 (F) OF EXECUTIVE ORDER NO. 10053, DATED APRIL 20, 1949, EFFECTIVE FEBRUARY 1, 1949, 3 CFR 1949 SUPP., P. 86, DEFINES PERMANENT CHANGE OF STATION TO MEAN ASSIGNMENT, DETAIL, OR TRANSFER OF AN INDIVIDUAL OR UNIT TO A "DIFFERENT DUTY STATION" (EVEN THOUGH WITHIN THE SAME CITY, TOWN OR METROPOLITAN AREA), UNDER COMPETENT ORDERS WHICH NEITHER SPECIFY THE DUTY AS TEMPORARY, NOR PROVIDE FOR FURTHER ASSIGNMENT TO A NEW DUTY STATION, OR TO DIRECT RETURN TO THE OLD DUTY STATION. THIS IDENTICAL LANGUAGE WAS CARRIED FORWARD AND INCORPORATED IN PARAGRAPH 8000-7 OF THE JOINT TRAVEL REGULATIONS, WHICH BECAME EFFECTIVE APRIL 1, 1951.

YOUR ORIGINAL ORDERS OF APRIL 6, 1950, ASSIGNING YOU TO DUTY AT FORT KNOX, KENTUCKY, FIXED YOUR RIGHTS UNDER THE PROVISIONS OF EXECUTIVE ORDER NO. 10053 IN EFFECT AT THAT TIME. SINCE NO RIGHT ACCRUED TO YOU UNDER THOSE ORDERS, THE ORDERS OF MAY 10, 1950, COULD NOT REVIVE A RIGHT WHICH DID NOT EXIST. THOSE ORDERS (MAY 10, 1950) RELEASED YOU FROM ASSIGNMENT WITH THE SERVICE BATTERY 67TH ARMORED FIELD ARTILLERY BATTALION, FORT KNOX, KENTUCKY, AND TRANSFERRED YOU TO THE FOOD SERVICE SCHOOL, FORT KNOX, KENTUCKY. THE ORDERS OF JUNE 28, 1951, AND JULY 2, 1951, RELEASED YOU FROM ASSIGNMENT AT THE FOOD SERVICE SCHOOL AND REASSIGNED YOU TO THE THIRD ARMORED DIVISION, FORT KNOX, KENTUCKY. WHILE THE ORDERS OF JUNE 28 AND JULY 2, 1951, WERE ISSUED SUBSEQUENT TO APRIL 1951, THE EFFECTIVE DATE OF THE JOINT TRAVEL REGULATIONS, AND PRIOR TO AUGUST 14, 1951, THE DATE YOUR HOUSEHOLD EFFECTS WERE SHIPPED FROM OMAHA, NEBRASKA, TO FORT KNOX, KENTUCKY, YOUR PERMANENT DUTY STATION AT THAT TIME WAS FORT KNOX, KENTUCKY, AND, UNDER THE ORDERS OF JUNE 28, 1951, YOUR NEW DUTY STATION WAS FORT KNOX, KENTUCKY. THE ORDERS OF MAY 10, 1950, JUNE 28, 1951, AND JULY 2, 1951, MERELY DIRECTED A CHANGE IN YOUR DUTY ASSIGNMENT FROM ONE ACTIVITY TO ANOTHER AT THE SAME INSTALLATION AT FORT KNOX, KENTUCKY. YOU WERE NOT TRANSFERRED TO A "DIFFERENT DUTY STATION" AS CONTEMPLATED BY THE REGULATIONS. EVEN IF THE ORDERS OF JUNE 28, 1951, COULD BE CONSIDERED AS TRANSFERRING YOU TO A DUTY STATION OTHER THAN FORT KNOX, KENTUCKY, THE MOST TO WHICH YOU WOULD BE ENTITLED, UNDER THE PROVISIONS OF PARAGRAPH 8009-4 OF THE REGULATIONS, IS REIMBURSEMENT OF THE COST OF SHIPPING YOUR HOUSEHOLD EFFECTS FROM OMAHA, NEBRASKA, TO YOUR NEW DUTY STATION, NOT TO EXCEED THE COST FROM YOUR OLD DUTY STATION WHICH WAS FORT KNOX, KENTUCKY, TO YOUR NEW DUTY STATION.

ACCORDINGLY, THE ACTION PREVIOUSLY TAKEN ON YOUR CLAIM MUST BE AFFIRMED.