B-140091, SEP. 18, 1959

B-140091, SEP. 18, 1959

TO WALTER M. SHIMODA, SP5:

REFERENCE IS MADE TO YOUR UNDATED LETTER, WITH ENCLOSURES, RECEIVED HERE ON JUNE 11, 1959, REQUESTING REVIEW OF OUR SETTLEMENT DATED APRIL 2, 1959, WHICH DISALLOWED YOUR CLAIM FOR DISLOCATION ALLOWANCE INCIDENT TO YOUR ORDERS OF MARCH 25, 1957.

BY PARAGRAPH 10, SPECIAL ORDERS NO. 71, HEADQUARTERS FIRST CAVALRY DIVISION, AFO 201, DATED MARCH 25, 1957, YOU WERE RELIEVED FROM YOUR DUTY ASSIGNMENT IN JAPAN, APO 547, AND REASSIGNED TO THE UNITED STATES ARMY TRANSFER STATION, PERSONNEL CENTER, SCHOFIELD BARRACKS, OAHU, TERRITORY OF HAWAII, FOR SEPARATION FROM SERVICE. THE ORDERS AUTHORIZED YOUR DEPENDENTS (WIFE AND TWO CHILDREN) TO TRAVEL TO YOUR HOME OF RECORD IN HONOLULU. PURSUANT TO PARAGRAPH 6, SPECIAL ORDERS NO. 85, SCHOFIELD BARRACKS, TERRITORY OF HAWAII, DATED APRIL 26, 1957, YOU WERE RELIEVED FROM YOUR ASSIGNMENT AT THE TRANSFER STATION, PERSONNEL CENTER, FOR FURTHER REASSIGNMENT. PARAGRAPH 8 OF THE SAME ORDERS DIRECTED YOUR ASSIGNMENT TO THE HEADQUARTERS COMPANY, U.S. ARMY GARRISON, FORT SHAFTER, HONOLULU, TERRITORY OF HAWAII. BY SPECIAL ORDERS NO. 84, FORT SHAFTER, DATED MAY 24, 1957, YOU WERE DISCHARGED AND IMMEDIATELY REENLISTED. YOUR CLAIM FOR DISLOCATION ALLOWANCE WAS DISALLOWED BY SETTLEMENT DATED APRIL 2, 1959, FOR THE REASON THATA DISLOCATION ALLOWANCE IS NOT PAYABLE IN CONNECTION WITH TRAVEL PERFORMED FROM LAST DUTY STATION TO HOME, AND FROM HOME TO FIRST DUTY STATION. IN YOUR LETTER YOU CONTEND, IN SUBSTANCE, THAT YOU ARE ENTITLED TO A DISLOCATION ALLOWANCE INCIDENT TO YOUR CHANGE OF STATION FROM JAPAN TO HAWAII SINCE YOU WERE NOT SEPARATED FROM THE SERVICE AT THE PERSONNEL CENTER, SCHOFIELD BARRACKS, BUT WERE DISCHARGED AT FORT SHAFTER FOR THE PURPOSE OF IMMEDIATE REENLISTMENT IN THE REGULAR ARMY.

SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 253 (C), AUTHORIZES PAYMENT OF A DISLOCATION ALLOWANCE, UNDER REGULATIONS APPROVED BY THE SECRETARY CONCERNED, TO A MEMBER OF THE UNIFORMED SERVICES WHOSE DEPENDENTS ARE AUTHORIZED TO MOVE AND ACTUALLY DO MOVE IN CONNECTION WITH HIS PERMANENT CHANGE OF STATION, BUT PROVIDES FURTHER THAT A MEMBER IS NOT ENTITLED TO PAYMENT OF A DISLOCATION ALLOWANCE WHEN ORDERED FROM HOME TO FIRST DUTY STATION OR FROM LAST DUTY STATION TO HOME. PARAGRAPH 9003-3, JOINT TRAVEL REGULATIONS, CHANGE 35, EFFECTIVE JUNE 1, 1955, PROVIDES THAT SUCH ALLOWANCE WILL NOT BE PAYABLE IN CONNECTION WITH PERMANENT CHANGE OF STATION TRAVEL PERFORMED FROM "HOME OR FROM PLACE FROM WHICH ORDERED TO ACTIVE DUTY TO FIRST PERMANENT DUTY STATION UPON APPOINTMENT, CALL TO ACTIVE DUTY, ENLISTMENT, REENLISTMENT, OR INDUCTION.'

WE HAVE CONSISTENTLY HELD THAT PAYMENT OF DISLOCATION ALLOWANCE INVOLVING MEMBERS ORDERED FROM OLD PERMANENT STATION TO PROCESSING OR SEPARATION STATIONS FOR DISCHARGE, WHO SUBSEQUENTLY REENLIST WITHOUT A BREAK IN SERVICE, IS NOT AUTHORIZED UNLESS IS APPEARS THAT HIS ORIGINAL PERMANENT CHANGE OF STATION ORDERS CONTEMPLATED HIS IMMEDIATE REENTRY INTO THE SERVICE. SEE 36 COMP. GEN. 71; 38 COMP. GEN. 405; B 135627, MAY 12, 1959.

ARMY REGULATIONS 612-50, NOVEMBER 17, 1954, ESTABLISH UNIFORM PROCEDURES IN OVERSEA COMMANDS FOR RETURNING TERRITORIAL RESIDENTS TO A TERRITORY OR POSSESSION, OR FORMER POSSESSION, OF THE UNITED STATES FOR REASSIGNMENT OR RELIEF FROM ACTIVE DUTY, TEMPORARY DUTY, OR LEAVE. PARAGRAPH 23 PROVIDES AS FOLLOWS:

"ALL TERRITORIAL RESIDENTS RETURNING FOR RELIEF FROM ACTIVE DUTY.-- * * * TERRITORIAL RESIDENTS OF HAWAII SUBSEQUENTLY WILL BE ASSIGNED TO THE TRANSFER STATION, 8320 AU, PERSONNEL CENTER, SCHOFIELD BARRACKS, OAHU, TERRITORY OF HAWAII. * * *"

CHANGES NO. 2 DATED JUNE 28, 1956, PROVIDES AS FOLLOWS:

"21. REASSIGNMENT OF ENLISTED TERRITORIAL RESIDENTS.

"C. (SUPERSEDED) OVERSEA COMMANDERS WILL RECEIVE ASSIGNMENT INSTRUCTIONS FROM THE ADJUTANT GENERAL FOR ALL TERRITORIAL PERSONNEL RETURNING FOR REASSIGNMENT PRIOR TO THEIR SCHEDULE DEPARTURE FROM THE OVERSEA COMMAND.'

THUS THE REGULATIONS SPECIFICALLY PRESCRIBE DIFFERENT PROCEDURES TO BE FOLLOWED BY THE ORDER ISSUING AUTHORITIES FOR TERRITORIAL RESIDENTS WHO ARE RETURNING TO HAWAII FOR REASSIGNMENT AND THOSE RETURNING FOR RELEASE FROM ACTIVE DUTY. IN ANY EVENT, SINCE YOU LEFT YOUR OLD PERMANENT STATION IN JAPAN UNDER ORDERS OF MARCH 25, 1957, WHICH PROVIDED ONLY FOR YOUR RETURN TO HAWAII FOR RELEASE FROM ACTIVE DUTY, NO RIGHT TO A DISLOCATION ALLOWANCE ACCRUED TO YOU NOTWITHSTANDING THE FACT THAT YOU WERE NOT SEPARATED FROM THE SERVICE AT SCHOFIELD BARRACKS AS CONTEMPLATED BY THESE ORDERS BUT WERE SUBSEQUENTLY TRANSFERRED TO FORT SHAFTER BY ORDERS OF APRIL 26, AND MAY 24, 1957, FOR DISCHARGE, REENLISTMENT AND ASSIGNMENT TO DUTY THERE.

ACCORDINGLY, THE SETTLEMENT OF APRIL 2, 1959, WAS CORRECT, AND IS SUSTAINED.