B-129499, SEPTEMBER 21, 1964, 44 COMP. GEN. 158

B-129499, SEPTEMBER 21, 1964, 44 COMP. GEN. 158

TRANSPORTATION - DEPENDENTS - MILITARY PERSONNEL - DISLOCATION ALLOWANCE - MOVE PRIOR TO EFFECTIVE DATE OF RATE INCREASE THE FACT THAT THE DEPENDENTS OF MEMBERS OF THE UNIFORMED SERVICES TRAVELED BEFORE JANUARY 1, 1963, THE EFFECTIVE DATE OF THE JULY 10, 1962 ACT INCREASING MONTHLY RATES OF BASIC ALLOWANCE FOR QUARTERS (37 U.S.C. 403), AND IN ADVANCE OF CHANGE-OF-STATION ORDERS DATED JANUARY 1, 1963, OR THEREAFTER, DOES NOT AFFECT THE ENTITLEMENT OF THE MEMBERS TO THE DISLOCATION ALLOWANCE PROVIDED BY PARAGRAPH 9001 OF THE JOINT TRAVEL REGULATIONS, THE CAREER INCENTIVE ACT OF 1955 AUTHORIZING PAYMENT NOT HAVING BEEN CHANGED BY THE 1962 ACT, AND NO ENTITLEMENT TO THE DISLOCATION ALLOWANCE BEING INVOLVED BUT RATHER THE PROPER RATE ON WHICH TO BASE PAYMENT, DEPENDENT UPON A MEMBER'S GRADE ON THE EFFECTIVE DATE OF HIS ORDERS AND THE RATE OF BASIC ALLOWANCE APPLICABLE TO THAT GRADE AND IN EFFECT ON THAT DATE, THE MEMBERS WHOSE DEPENDENTS TRAVELED IN ADVANCE OF JANUARY 1, 1963 ORDERS, OR THEREAFTER, ARE ENTITLED TO DISLOCATION ALLOWANCES AT THE INCREASED BASIC ALLOWANCE FOR QUARTERS RATES.

TO THE SECRETARY OF THE ARMY, SEPTEMBER 21, 1964:

FURTHER REFERENCE IS MADE TO LETTER DATED JULY 16, 1964, FROM THE UNDER SECRETARY OF THE ARMY, REQUESTING A DECISION AS TO THE PROPRIETY OF PAYMENT OF DISLOCATION ALLOWANCE IN ACCORDANCE WITH PARAGRAPH 9001, JOINT TRAVEL REGULATIONS, AT THE RATE OF BASIC ALLOWANCE FOR QUARTERS EFFECTIVE JANUARY 1, 1963, INCIDENT TO PERMANENT CHANGE-OF-STATION ORDERS EFFECTIVE JANUARY 1, 1963, OR THEREAFTER IN CASES WHERE DEPENDENTS COMPLETED TRAVEL BEFORE THE EFFECTIVE DATE OF ORDERS. THIS REQUEST WAS ASSIGNED CONTROL NO. 64-26 BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

THE UNDER SECRETARY STATES THAT PARAGRAPH 9001, JOINT TRAVEL REGULATIONS, WHICH PROVIDES, AMONG OTHER THINGS, THAT THE AMOUNT PAYABLE AS A DISLOCATION ALLOWANCE IN AN AMOUNT EQUAL TO THE APPLICABLE MONTHLY RATE OF BASIC ALLOWANCE FOR QUARTERS OF THE MEMBER "ON THE EFFECTIVE DATE OF PERMANENT CHANGE-OF-STATION ORDERS," STEMS FROM A LONG ESTABLISHED RULE OF THIS OFFICE THAT THE RIGHT TO ANY PERMANENT CHANGE-OF-STATION ALLOWANCE DOES NOT ACCRUE UNTIL THE EFFECTIVE DATE OF THE ORDERS. HE FURTHER STATES THAT NOTWITHSTANDING THE PRECISE LANGUAGE OF THAT REGULATION, IN VIEW OF 36 COMP. GEN. 423, DOUBT HAS ARISEN IN THE AUDIT OF PAY RECORDS AS TO THE PROPRIETY OF PAYMENTS OF DISLOCATION ALLOWANCE MADE AT THE MONTHLY RATES OF BASIC ALLOWANCE FOR QUARTERS AS INCREASED EFFECTIVE JANUARY 1, 1963, BY SECTION 1 OF PUBLIC LAW 87-531, APPROVED JULY 10, 1962, 76 STAT. 152, 37 U.S.C. 403, IN CASES WHERE THE EFFECTIVE DATE OF THE CHANGE-OF STATION ORDERS IS JANUARY 1, 1963, OR THEREAFTER AND THE DEPENDENTS COMPLETED TRAVEL BEFORE JANUARY 1, 1963.

ALSO, THE UNDER SECRETARY HAS EXPRESSED THE OPINION THAT 36 COMP. GEN. 423--- A DECISION IN WHICH WE HELD THAT THE DISLOCATION ALLOWANCE, WHICH WAS AUTHORIZED BY THE CAREER INCENTIVE ACT OF 1955, 37 U.S.C. 253 (C) (1958 ED.), EFFECTIVE APRIL 1, 1955, WAS NOT PAYABLE WHERE THE DEPENDENTS WERE MOVED TO THE MEMBER'S NEW STATION PRIOR TO APRIL 1, 1955, EVEN THOUGH THE CHANGE-OF-STATION ORDERS WERE EFFECTIVE AFTER APRIL 1, 1955--- IS DISTINGUISHABLE SINCE THE ISSUE IN THE INSTANT CASE IS NOT THE ENTITLEMENT TO THE DISLOCATION ALLOWANCE BUT THE AMOUNT THEREOF PAYABLE TO THE MEMBER. FURTHER HE SAYS THAT THE HOLDING IN THAT DECISION WAS PREMISED ON THE PRINCIPLE THAT THE LAW COULD NOT BE RETROACTIVELY APPLIED WHEREAS IN THE INSTANT CASE A RETROACTIVE APPLICATION OF THE LAW IS NOT INVOLVED SINCE THE LAW WHICH PROVIDED FOR THE DISLOCATION ALLOWANCE, THE CAREER INCENTIVE ACT OF 1955 (NOW 37 U.S.C. 407), WAS NOT CHANGED BY THE 1962 ACT.

IN ADDITION TO OUR HOLDING IN 36 COMP. GEN. 423, WE HELD IN DECISION OF NOVEMBER 29, 1956, B-129410, COPY ENCLOSED, COVERING ANOTHER CASE INVOLVING A QUESTION CONCERNING BASIC ENTITLEMENT TO THE DISLOCATION ALLOWANCE, THAT WHERE ORDERS ARE EFFECTIVE PRIOR TO APRIL 1, 1955, THE DISLOCATION ALLOWANCE WAS NOT PAYABLE EVEN THOUGH THE TRAVEL WAS PERFORMED AFTER APRIL 1, 1955. THESE TWO DECISIONS CLEARLY LIMIT THE APPLICATION OF THE LAW IN ALL CASES TO THE PERIOD AFTER APRIL 1, 1955.

WE AGREE THAT THE PROBLEM HERE INVOLVED IS NOT CONCERNED WITH BASIC ENTITLEMENT TO THE DISLOCATION ALLOWANCE. UNDER 37 U.S.C. 407 AND THE IMPLEMENTING REGULATIONS A MEMBER'S RIGHT TO THE DISLOCATION ALLOWANCE IS CONDITIONED UPON HIS GRADE BEING E-4 WITH OVER 4 YEARS' SERVICE OR A HIGHER GRADE ON THE EFFECTIVE DATE OF HIS CHANGE-OF-STATION ORDERS AND AN ACTUAL MOVEMENT UNDER THOSE ORDERS OF HIS ELIGIBLE DEPENDENTS FOR THE PURPOSE OF RELOCATING HIS HOUSEHOLD. HENCE, WHEN A MEMBER'S ENTITLEMENT TO THE DISLOCATION ALLOWANCE BECOMES FIXED IN ACCORDANCE WITH THE GOVERNING LAW AND REGULATIONS THE QUESTION CONCERNING THE AMOUNT THEREOF IS NOT A QUESTION CONCERNING BASIC ENTITLEMENT, BUT ONE CONCERNING THE PROPER RATE ON WHICH THE PAYMENT IS TO BE BASED, DEPENDENT UPON THE MEMBER'S GRADE ON THE EFFECTIVE DATE OF HIS ORDERS AND THE RATE OF BASIC ALLOWANCE FOR QUARTERS APPLICABLE TO THAT GRADE AND IN EFFECT ON THAT DATE. IN EACH CASE UNDER DISCUSSION THE INCREASED RATE OF THE BASIC ALLOWANCE FOR QUARTERS WAS IN EFFECT ON THE EFFECTIVE DATE OF THE MEMBER'S ORDERS AND, THEREFORE, IT IS OUR VIEW THAT HE IS ENTITLED IF IN AN ELIGIBLE PAY GRADE TO PAYMENT OF THE DISLOCATION ALLOWANCE BASED ON HIS GRADE ON THAT DATE AND THE APPLICABLE INCREASED RATE AS SET FORTH IN 37 U.S.C. 403. THE FACT THAT THE MEMBER'S DEPENDENTS MAY HAVE PERFORMED TRAVEL PURSUANT TO HIS ORDERS PRIOR TO THE EFFECTIVE DATE THEREOF WOULD NOT AFFECT HIS FIXED ENTITLEMENT TO THE DISLOCATION ALLOWANCE AT THE INCREASED RATE EXCEPT WHERE BEFORE SUCH DATE THE ORDERS ARE CANCELED, REVOKED, OR MODIFIED TO DIRECT HIM TO RETURN TO THE STATION FROM WHICH HE WAS TRANSFERRED, OR MODIFIED TO DIRECT HIM TO MAKE A DIFFERENT CHANGE OF STATION. SEE B-149679, DATED APRIL 22, 1964, AND B-154249, DATED JUNE 11, 1964, COPIES ALSO ENCLOSED.

ACCORDINGLY AND IN CONSIDERATION OF THE REPRESENTATIONS OF THE UNDER SECRETARY WE FIND NO LEGAL BASIS TO QUESTION THE PROPRIETY OF THE PAYMENTS OF THE DISLOCATION ALLOWANCES MADE AT THE BASIC ALLOWANCE FOR QUARTERS RATES EFFECTIVE JANUARY 1, 1963, IF OTHERWISE CORRECT.