B-135409, APR. 22, 1958

B-135409, APR. 22, 1958

TO NATHAN S. WHITE, TECHNICAL SERGEANT, USAF:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 12, 1958, REQUESTING REVIEW OF OUR SETTLEMENT OF JUNE 8, 1956, WHICH DISALLOWED YOUR CLAIM FOR STATION PER DIEM ALLOWANCE FOR THE PERIOD FROM NOVEMBER 23, 1951, TO JANUARY 6, 1952, INCIDENT TO YOUR SERVICE AS AN ENLISTED MEMBER OF THE U.S. AIR FORCE WHILE STATIONED AT HICKAM AIR FORCE BASE, HAWAII. THE PER DIEM CLAIMED IS THAT AUTHORIZED IN PARAGRAPH 4303 OF THE JOINT TRAVEL REGULATIONS FOR PAYMENT UPON INITIAL FOREIGN ASSIGNMENT (REQUIRING A CHANGE IN RESIDENCE) TO A LOCATION WHERE GOVERNMENT QUARTERS ARE NOT FURNISHED.

UNDER ORDERS DATED OCTOBER 17, 1951, YOU WERE RELIEVED FROM DUTY ASSIGNMENT AT KIRTLAND AIR FORCE BASE, NEW MEXICO, AND DIRECTED TO PROCEED TO CAMP STONEMAN, CALIFORNIA, FOR FURTHER ASSIGNMENT TO DUTY OVERSEAS. YOU PROCEEDED TO CAMP STONEMAN, AND BEFORE RECEIVING THE OVERSEAS ASSIGNMENT YOUR DEPENDENTS TRAVELED TO THE HOME OF YOUR WIFE'S PARENTS AT KAHUKU, OAHU, HAWAII, ARRIVING THERE ON OCTOBER 25, 1951. BY ORDERS OF NOVEMBER 10, 1951, YOU WERE ASSIGNED TO DUTY AT HICKAM FIELD AND YOU REPORTED THERE ON NOVEMBER 22, 1951. YOU STATE THAT DURING THE PERIOD IN QUESTION YOU LIVED IN THE HOME OF YOUR WIFE'S PARENTS AT KAHUKU BECAUSE OF A LACK OF GOVERNMENT QUARTERS AT HICKAM FIELD AND THAT YOU COMMUTED DAILY TO YOUR STATION, INVOLVING ROUND TRIP TRAVEL OF 80 MILES.

PARAGRAPH 4300 OF THE JOINT TRAVEL REGULATIONS AUTHORIZES THE PAYMENT OF STATION PER DIEM ALLOWANCES TO MILITARY PERSONNEL AT OVERSEAS DUTY STATIONS ONLY ON THE BASIS OF NONAVAILABILITY OF GOVERNMENT QUARTERS AND MESS. FOR THE PURPOSE OF ESTABLISHING A RIGHT TO THOSE ALLOWANCES AS A MEMBER WITH DEPENDENTS, THE BASIS ON WHICH YOUR CLAIM WAS MADE, THE TERM "MEMBER WITH DEPENDENTS" IS DEFINED IN PARAGRAPH 4301-2 OF THE REGULATIONS AS BEING A MEMBER WHOSE DEPENDENTS "RESIDE WITH HIM AT OR IN THE VICINITY OF HIS FOREIGN DUTY STATION.' OTHERWISE HE MUST BE CONSIDERED AS A MEMBER WITHOUT DEPENDENTS FOR STATION ALLOWANCE PURPOSES. THE QUOTED PROVISION CONTEMPLATES THE SITUATION WHERE THE DEPENDENTS ACTUALLY LIVE WITH THE MEMBER AT A RESIDENCE LOCATED WITHIN THE PHYSICAL BOUNDARIES OF HIS DUTY STATION OR IN THE NEARBY ADJOINING LOCALITY, FOR IT IS THE ACTUAL LIVING EXPENSE INCREASE IN THAT PARTICULAR AREA THAT THE STATION PER DIEM ALLOWANCES WERE DESIGNED TO REPLACE. CLEARLY THE AREA WHICH COULD BE CONSIDERED AS IN THE VICINITY OF HICKAM FIELD UNDER THE REGULATIONS COULD NOT REASONABLY BE EXTENDED TO INCLUDE KAHUKU WHICH YOU STATE WAS LOCATED 40 MILES AWAY. ANY RIGHT THAT YOU MIGHT HAVE TO STATION PER DIEM FOR THE PERIOD IN QUESTION, THEREFORE, COULD ARISE ONLY ON THE BASIS THAT YOU WERE A MEMBER WITHOUT DEPENDENTS AND THAT GOVERNMENT QUARTERS AND MESS WERE NOT AVAILABLE TO YOU AT YOUR DUTY STATION IN THAT CAPACITY.

NO EVIDENCE APPEARS IN THE AVAILABLE RECORD TO ESTABLISH THAT GOVERNMENT QUARTERS AND MESS WOULD NT HAVE BEEN AVAILABLE TO YOU AT HICKAM FIELD AS A MEMBER WITHOUT DEPENDENTS HAD YOU CHOSEN TO AVAIL YOURSELF OF THEM. UNDER SUCH CIRCUMSTANCES, IT MUST BE CONCLUDED THAT NO PROPER BASIS EXISTS FOR THE PAYMENT TO YOU OF THE STATION ALLOWANCES CLAIMED IRRESPECTIVE OF THE QUESTION OF WHETHER AND TO WHAT EXTENT YOU INCURRED ADDITIONAL LIVING COSTS AT KAHUKU DURING THE PERIOD IN QUESTION. ACCORDINGLY, ON THE BASIS OF THE PRESENT RECORD, THE SETTLEMENT OF JUNE 8, 1958, MUST ..END :