B-144654, FEB. 17, 1961

B-144654, FEB. 17, 1961

TO CLEMENT E. ST. MARTIN:

YOUR LETTER OF NOVEMBER 25, 1960, REQUESTS REVIEW OF OUR SETTLEMENT DATED NOVEMBER 10, 1960, WHICH DISALLOWED YOUR CLAIM FOR A SECOND DISLOCATION ALLOWANCE FOR THE FISCAL YEAR 1957 INCIDENT TO TRAVEL PERFORMED UNDER PERMANENT CHANGE OF STATION ORDERS OF MAY 3, 1957.

THE RECORD SHOWS THAT PURSUANT TO YOUR REQUEST FOR ASSIGNMENT TO ROTC OR CIVILIAN COMPONENT DUTY WITHIN THE FIRST ARMY AREA YOU WERE DISCHARGED FOR THE CONVENIENCE OF THE GOVERNMENT UNDER THE PROVISIONS OF PARAGRAPH 3B (1) (B) 4 ARMY REGULATIONS 635-205, DATED APRIL 2, 1956, IN EFFECT AT THE TIME, FOR THE PURPOSE OF ASSIGNMENT TO ARMY RESERVE DUTY WITH THE NEW YORK MILITARY DISTRICT. UPON YOUR DISCHARGE ON APRIL 25, 1957, AND REENLISTMENT THE FOLLOWING DAY AT FORT DIX, NEW JERSEY, AND PURSUANT TO ORDERS DATED MAY 3, 1957, YOU WERE RELIEVED FROM YOUR DUTY ASSIGNMENT AT FORT DIX, AND REASSIGNED TO HEADQUARTERS, UNITED STATES ARMY MILITARY DISTRICT, 90 CHURCH STREET, NEW YORK, NEW YORK. YOUR DEPENDENTS PERFORMED TRAVEL COMMENCING MAY 9, 1957, TO THEIR NEW RESIDENCE AT SUMMIT, NEW JERSEY.

YOUR CLAIM FOR DISLOCATION ALLOWANCE WAS DISALLOWED BY SETTLEMENT DATED NOVEMBER 10, 1960, FOR THE REASON THAT PARAGRAPH 9003-9 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT THE DISLOCATION ALLOWANCE WILL NOT BE PAYABLE FOR MORE THAN ONE PERMANENT CHANGE OF STATION DURING ANY FISCAL YEAR, EXCEPT ON THE FINDING OF THE SECRETARY OF THE DEPARTMENT CONCERNED THAT THE EXIGENCIES OF THE SERVICE REQUIRE MORE THAN ONE SUCH CHANGE OF STATION DURING THE CURRENT FISCAL YEAR.

IN YOUR PRESENT LETTER YOU SAY THAT WHEN YOU APPLIED FOR TRANSFER AND REASSIGNMENT TO THE NEW YORK MILITARY DISTRICT, THE ADJUTANT GENERAL OF FORT DIX, NEW JERSEY, FORWARDED YOUR APPLICATION TO HEADQUARTERS FIRST UNITED STATES ARMY. HE SPECIFICALLY STATED IN HIS INDORSEMENT THAT IN THE EVENT THIS REASSIGNMENT WAS APPROVED IT WOULD RESULT IN A SECOND PERMANENT CHANGE OF STATION AND HE THEREFORE RECOMMENDED THE TRANSFER BE DISAPPROVED. IT APPEARS TO BE YOUR VIEW THAT SINCE THE TRANSFER WAS APPROVED BY THE FIRST ARMY WITHOUT FIRST OBTAINING THE NECESSARY APPROVAL FROM THE SECRETARY OF THE ARMY AND SINCE THE MATTER WAS BEYOND YOUR CONTROL YOU SHOULD BE ALLOWED THE DISLOCATION ALLOWANCE.

SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 253 (C) AUTHORIZES THE PAYMENT OF A DISLOCATION ALLOWANCE TO A MEMBER OF A UNIFORMED SERVICE WHOSE DEPENDENTS ARE AUTHORIZED TO MOVE AND ACTUALLY DO MOVE IN CONNECTION WITH HIS PERMANENT CHANGE OF STATION UNDER REGULATIONS APPROVED BY THE SECRETARY CONCERNED, BUT PROVIDES FURTHER THAT "THE MEMBER SHALL BE ENTITLED TO THE PAYMENT OF A DISLOCATION ALLOWANCE FOR NOT MORE THAN ONE PERMANENT CHANGE OF STATION DURING ANY FISCAL YEAR, EXCEPT ON THE FINDING OF THE SECRETARY OF THE DEPARTMENT CONCERNED THAT THE EXIGENCIES OF THE SERVICE REQUIRE MORE THAN ONE SUCH CHANGE OF STATION DURING ANY FISCAL YEAR.'

PARAGRAPH 9003-9, JOINT TRAVEL REGULATIONS, PROVIDES THAT THE DISLOCATION ALLOWANCE IS NOT PAYABLE FOR MORE THAN ONE PERMANENT CHANGE OF STATION DURING ANY FISCAL YEAR, EXCEPT ON THE FINDING OF THE SECRETARY OF THE DEPARTMENT CONCERNED THAT THE EXIGENCIES OF THE SERVICE REQUIRE MORE THAN ONE SUCH CHANGE OF STATION DURING THE CURRENT FISCAL YEAR. IMPLEMENTING REGULATIONS CONTAINED IN PARAGRAPH 11, CHANGES NO. 1, DATED SEPTEMBER 6, 1956, ARMY REGULATIONS 35-3065, IN EFFECT AT THE TIME PROVIDE AS FOLLOWS:

"11. SECOND OR SUBSEQUENT MOVES REQUIRED BECAUSE OF SERVICE EXIGENCY. FOR ALL SECOND OR SUBSEQUENT PERMANENT CHANGE OF STATION MOVES WITHIN A SINGLE FISCAL YEAR (WITH THE EXCEPTION OF MOVES REFERRED TO IN PARAGRAPH 10), THE SECRETARY OF THE ARMY MUST FIND THAT THE EXIGENCIES OF THE SERVICE REQUIRE SUCH MOVE/S) BEFORE PAYMENT OF DISLOCATION ALLOWANCE IS AUTHORIZED. THE SECRETARY OF THE ARMY HAS PREDETERMINED THAT CERTAIN SPECIFIED PERMANENT CHANGE OF STATION MOVEMENTS ARE REQUIRED BY THE EXIGENCIES OF THE SERVICE. ORDERS AUTHORIZING SECOND OR SUBSEQUENT MOVES WHICH HAVE BEEN APPROVED BY THE SECRETARY OF THE ARMY WILL CONTAIN A STATEMENT THAT "THIS ADDITIONAL FISCAL YEAR MOVE IS AUTHORIZED BY THE SECRETARY OF THE ARMY PER ------ -----------------.' ORDERS ISSUED (CITE APPROPRIATE DIRECTIVE) BY THE DEPARTMENT OF THE ARMY WILL CONTAIN AUTHORITY FOR THE ADDITIONAL MOVE IN THE APPLICABLE FISCAL YEAR. SUCH STATEMENTS IN THE ORDERS WILL CONSTITUTE AUTHORITY FOR PAYMENT OF THE DISLOCATION ALLOWANCE, IF OTHERWISE PROPER.'

PARAGRAPH 3 (A) ARMY REGULATIONS 614-240 DATED AUGUST 30, 1956, PROVIDES IN PERTINENT PART AS FOLLOWS:

"3. CHANGES OF STATION FOR ENLISTED PERSONNEL.

A. CHIEFS OF SERVICES, COMMANDERS OF MAJOR COMMANDS, AND COMMANDING GENERALS, ARMY ANTIAIRCRAFT COMMAND AND CONTINENTAL ARMY COMMAND, ARE AUTHORIZED TO DIRECT NOT MORE THAN ONE PERMANENT CHANGE OF STATION FOR ANY INDIVIDUAL DURING ANY FISCAL YEAR, EXCEPT AS SHOWN BELOW:

"/10) ASSIGNMENT OF MILITARY PERSONNEL TO INITIAL DUTY STATION AFTER ENLISTMENT OR REENLISTMENT UNDER APPROPRIATE DEPARTMENT OF THE ARMY DIRECTIVES (MAJOR COMMANDERS MAY FURTHER DELEGATE TO RECRUITING MAIN STATION AND TRAINING ACTIVITY COMMANDERS SO MUCH OF THIS AUTHORITY AS PERTAINS TO ASSIGNMENT TO INITIAL DUTY STATION FOR THOSE INDIVIDUALS WHO REENLIST WITH A BREAK IN SERVICE). THIS AUTHORITY DOES NOT APPLY TO THOSE SITUATIONS WHERE THE INDIVIDUAL RE-ENLISTS FOR HIS OWN VACANCY AND IS SUBSEQUENTLY REASSIGNED.' ALSO, PARAGRAPH 3C OF THAT REGULATION PROVIDES THAT SECOND OR SUBSEQUENT CHANGE OF STATION WITHIN A FISCAL YEAR, IS PROHIBITED EXCEPT AS AUTHORIZED IN A. ABOVE, OR AS AUTHORIZED IN ADVANCE BY THE DEPARTMENT OF THE ARMY. SECOND OR SUBSEQUENT MOVES ACCOMPLISHED UNDER SUCH AUTHORITY ARE CONSIDERED TO BE REQUIRED BY THE EXIGENCIES OF THE SERVICE AND THE REGULATION PROVIDES THAT ORDERS ISSUED WILL SO INDICATE AND CITE THE APPROPRIATE AUTHORITY AS PROVIDED IN PARAGRAPH 11, ARMY REGULATIONS 35-3065, ABOVE. IT IS FURTHER PROVIDED THAT IN THE EVENT A SECOND OR SUBSEQUENT CHANGE OF STATION IS ACCOMPLISHED WITHOUT PROPER AUTHORITY, THE REQUEST FOR AUTHORIZATION OF THE MOVE MAY BE MADE AFTER THE INDIVIDUAL HAS COMPLETED THE TRAVEL TO THE NEW STATION.

THE ORDERS DIRECTING YOUR PERMANENT CHANGE OF STATION DO NOT CONTAIN A STATEMENT AS REQUIRED BY THE REGULATIONS REFLECTING A DETERMINATION THAT THE ADDITIONAL FISCAL YEAR MOVE HAD BEEN AUTHORIZED BY THE SECRETARY OF THE ARMY, NOR DOES IT APPEAR THAT HE HAS SUBSEQUENTLY DETERMINED THAT THE MOVE WAS REQUIRED BY THE EXIGENCIES OF THE SERVICE. IN VIEW OF THE SPECIFIC REQUIREMENTS IN THE STATUTE AND REGULATIONS AND SINCE THERE IS NO SHOWING THAT THE REQUIRED DETERMINATION HAS BEEN MADE IN YOUR CASE, WE ARE WITHOUT AUTHORITY TO ALLOW YOUR CLAIM.

WE MAY NOT COMPLY WITH YOUR REQUEST THAT WE FORWARD THE CLAIM FILE TO THE DEPARTMENT OF THE ARMY FOR THE PURPOSE OF OBTAINING THE SECRETARY'S AUTHORIZATION SINCE ALL PAPERS FILED IN CONNECTION WITH YOUR CLAIM CONSTITUTE THE BASIS FOR THE DECISION RENDERED IN YOUR CASE AND MUST REMAIN IN THE PERMANENT FILES OF THIS OFFICE. HOWEVER, WE WILL RECONSIDER THE MATTER IF THE SECRETARY OF THE ARMY SHOULD DETERMINE THAT THE SECOND MOVEMENT IN THE SAME FISCAL YEAR WAS REQUIRED BY THE EXIGENCIES OF THE SERVICE.