B-143401, NOV. 8, 1960

B-143401, NOV. 8, 1960

TO MR. BILL E. RENO, USAR, RETIRED:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 18, 1960, REQUESTING FURTHER CONSIDERATION OF YOUR CLAIM FOR A MONETARY ALLOWANCE IN LIEU OF TRANSPORTATION IN KIND FOR YOUR DEPENDENTS (CHILDREN) FROM FORT HAMILTON, NEW YORK, TO AUSTIN, TEXAS, INCIDENT TO YOUR RETIREMENT.

IN YOUR LETTER OF AUGUST 18, 1960, YOU REFER TO OUR LETTER DATED AUGUST 5, 1960, TO HONORABLE PAUL J. KILDAY, HOUSE OF REPRESENTATIVES, A COPY OF WHICH HE APPARENTLY SENT TO YOU. IN THAT LETTER WE POINTED OUT THE LAW AND REGULATIONS APPLICABLE TO YOUR CLAIM AND THE REASONS WHY YOU ARE NOT ENTITLED TO REIMBURSEMENT FOR THE TRAVEL OF YOUR CHILDREN FROM FORT HAMILTON, NEW YORK, TO AUSTIN, TEXAS, INCIDENT TO YOUR RETIREMENT. WE ARE REQUIRED TO SETTLE CLAIMS ON THE BASIS OF APPLICABLE PROVISIONS OF LAW AND REGULATIONS, AND WE MAY NOT AUTHORIZE THE PAYMENT OF CLAIMS ON ANY OTHER BASIS. YOUR PRESENT LETTER PRESENTS NO MATERIAL FACTS OR INFORMATION NOT HERETOFORE CONSIDERED AND FORMS NO PROPER BASIS FOR MODIFICATION OF THE PRIOR ACTION IN THE MATTER.

WE POINTED OUT IN OUR LETTER TO HONORABLE PAUL J. KILDAY THAT, UNDER THE PROVISIONS OF THE JOINT TRAVEL REGULATIONS (PARAGRAPH 7009-3) AUTHORIZING THE RETURN OF YOUR DEPENDENTS (CHILDREN) TO THE UNITED STATES PRIOR TO CHANGE OF STATION ORDERS DIRECTING YOUR RETURN, TRAVEL WAS AUTHORIZED ONLY TO THE PORT OF DEBARKATION IN THE UNITED STATES. FURTHER TRAVEL OF YOUR CHILDREN AT GOVERNMENT EXPENSE WAS NOT AUTHORIZED UNTIL ORDERS WERE ISSUED FOR YOUR RETURN TO THE UNITED STATES AND YOUR RETIREMENT. AT THAT TIME YOU BECAME ENTITLED TO TRANSPORTATION FOR YOUR CHILDREN FROM THE PLACE WHERE THEY WERE THEN LOCATED TO THE HOME OF YOUR SELECTION, NOT TO EXCEED THE COST FROM THE PORT OF DEBARKATION TO SUCH HOME. IF YOUR CHILDREN TRAVELED FROM THE PLACE WHERE THEY WERE LOCATED UPON YOUR RETURN TO THE UNITED STATES AND YOUR RETIREMENT, TO YOUR HOME, AUSTIN, TEXAS, FOR THE PURPOSE OF RESIDING WITH YOU AND NOT MERELY FOR A VISIT, SUCH TRAVEL WAS AUTHORIZED AT GOVERNMENT EXPENSE, NOT TO EXCEED THE COST FROM FORT HAMILTON, NEW YORK, TO AUSTIN, TEXAS. HOWEVER, YOU HAVE NOT CERTIFIED THAT ANY SUCH TRAVEL WAS PERFORMED BY YOUR CHILDREN.

ALSO IN YOUR PRESENT LETTER YOU ASK FOR AN EXPLANATION AS TO WHY YOU WERE TOLD AT FORT HAMILTON THAT YOU WERE NOT ENTITLED TO A DISLOCATION ALLOWANCE INCIDENT TO YOUR CHANGE OF STATION FROM NAPLES, ITALY, TO FORT HAMILTON, NEW YORK.

SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 814, AS AMENDED BY SECTION 2 (12) OF THE CAREER INCENTIVE ACT OF 1955, 69 STAT. 21, 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 9002-1, JOINT TRAVEL REGULATIONS, PROVIDES GENERALLY FOR THE PAYMENT OF A DISLOCATION ALLOWANCE TO A MEMBER WHENEVER HIS DEPENDENTS RELOCATE THEIR HOUSEHOLD IN CONNECTION WITH A PERMANENT CHANGE OF STATION. PARAGRAPH 9003-4 OF THE SAME REGULATIONS PROVIDES THAT SUCH ALLOWANCE WILL NOT BE PAYABLE IN CONNECTION WITH PERMANENT CHANGE OF STATION TRAVEL PERFORMED ,FROM LAST DUTY STATION TO HOME OR TO THE PLACE FROM WHICH ORDERED TO ACTIVE DUTY UPON SEPARATION FROM THE SERVICE, RELEASE FROM ACTIVE DUTY , PLACEMENT ON THE TEMPORARY DISABILITY RETIRED LIST, OR RETIREMENT.'

WHETHER AN ASSIGNMENT TO A PARTICULAR STATION IS TEMPORARY OR PERMANENT IS A QUESTION OF FACT TO BE DETERMINED FROM THE ORDERS UNDER WHICH THE ASSIGNMENT IS MADE AND, WHERE NECESSARY, FROM THE CHARACTER OF THE ASSIGNMENT--- PARTICULARLY AS TO ITS DURATION, THE NATURE OF THE DUTY ENJOINED, ETC. 24 COMP. GEN. 667, 670; AND 33 COMP. GEN. 98. WHILE YOU HAVE NOT FURNISHED US A COPY OF THE ORDERS TRANSFERRING YOU FROM DUTY IN NAPLES, ITALY, TO FORT HAMILTON, NEW YORK, YOU SAY IN YOUR LETTER OF AUGUST 18, 1960, THAT AT THE TIME YOUR CHILDREN RETURNED TO THE UNITED STATES FROM YOUR STATION IN NAPLES, ITALY, YOU HAD NO INTENTION OF RETIRING FROM THE SERVICE; AND THAT SUBSEQUENT TO THEIR RETURN YOU DECIDED TO RETIRE. IN YOUR LETTER OF APRIL 12, 1960, TO THE CHIEF, CLAIMS DIVISION, FINANCE CENTER, U.S. ARMY, INDIANAPOLIS, INDIANA, IT IS STATED THAT "FROM 20-30 NOVEMBER 1959 WHILE PROCESSING FOR RETIREMENT AT FORT HAMILTON, NEW YORK I MADE NUMEROUS ATTEMPTS TO SELECT MY PERMANENT HOME UPON RETIREMENT * * *.' THUS, IT APPEARS THAT WHILE YOU WERE ON DUTY IN ITALY YOU DECIDED TO RETIRE AND THAT YOU WERE TRANSFERRED FROM DUTY IN ITALY TO FORT HAMILTON, NEW YORK, FOR A SHORT PERIOD OF DUTY IN CONNECTION WITH YOUR PROCESSING FOR RETIREMENT EFFECTIVE DECEMBER 1, 1959. HENCE, FORT HAMILTON MUST BE REGARDED AS YOUR TEMPORARY DUTY STATION. YOUR PERMANENT CHANGE OF STATION WAS FROM OVERSEAS TO AUSTIN, TEXAS, YOUR SELECTED HOME UPON RETIREMENT.

SINCE THE STATUTE AND REGULATIONS BAR THE PAYMENT OF A DISLOCATION ALLOWANCE TO A MEMBER WHEN HE IS ORDERED FROM LAST DUTY STATION TO HOME, NO RIGHT TO SUCH ALLOWANCE ACCRUED TO YOU INCIDENT TO YOUR CHANGE OF STATION FROM NAPLES, ITALY, TO YOUR SELECTED HOME, AUSTIN, TEXAS, WITH TEMPORARY DUTY EN ROUTE AT FORT HAMILTON, NEW YORK.

SINCE THE PAPERS TRANSMITTED HERE AS A PART OF YOUR CLAIM NOW CONSTITUTE A PART OF THE PERMANENT RECORD UPON WHICH ACTION ON YOUR CLAIM WAS BASED, THEY ARE REQUIRED TO BE RETAINED HERE, AND MAY NOT BE RETURNED TO YOU AS REQUESTED IN YOUR LETTER. 21 COMP. GEN. 819, 823.