B-145314, APR. 14, 1961

B-145314, APR. 14, 1961

TO MASTER SERGEANT HARVEY A. HUTSON, SR:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 28, 1961, REQUESTING RECONSIDERATION OF SETTLEMENT DATED JANUARY 18, 1961, WHICH DISALLOWED YOUR CLAIM FOR DISLOCATION ALLOWANCE AND REIMBURSEMENT FOR DEPENDENTS' TRAVEL FROM FORT BENNING, GEORGIA, TO COLUMBUS, GEORGIA, ON JULY 25, 1960, INCIDENT TO SPECIAL ORDERS NO. 151, DATED JULY 6, 1960.

YOU CONTEND THAT THE STATEMENTS IN THE SETTLEMENT, THAT YOU WERE TRANSFERRED TO OAKLAND, CALIFORNIA, FOR FURTHER TRANSFER OVERSEAS, AND THAT THE TRAVEL FROM FORT BENNING TO COLUMBUS, GEORGIA, WAS INCIDENT TO LEAVE, ARE INCORRECT INASMUCH AS OAKLAND WAS TO SERVE ONLY AS A PROCESSING STATION EN ROUTE TO A PERMANENT OVERSEAS ASSIGNMENT AND THE TRAVEL TO COLUMBUS WAS A DELAY EN ROUTE INCIDENT TO A PERMANENT CHANGE OF STATION, CHARGEABLE AS LEAVE. YOU ALSO STATE THAT YOU TOOK THE ACTION NORMALLY FOLLOWED BY ANY SOLDIER UNDER SIMILAR CIRCUMSTANCES AND THAT YOU "DO NOT BELIEVE THAT IT IS THE INTENT OF THE UNITED STATES GOVERNMENT THAT AN INDIVIDUAL BE PENALIZED OR SUBJECT TO UNAVOIDABLE EXPENSE THROUGH AN ADMINISTRATIVE ERROR CAUSED THROUGH NO FAULT OF THE INDIVIDUAL COMPLYING WITH AN ORDER IN GOOD FAITH WITHOUT REIMBURSEMENT.'

BY PARAGRAPH 8, SPECIAL ORDERS NO. 151, ISSUED ON JULY 6, 1960, BY HEADQUARTERS, UNITED STATES ARMY INFANTRY CENTER, FORT BENNING, GEORGIA, YOU WERE RELIEVED FROM YOUR ASSIGNMENT AT THAT STATION AND ASSIGNED TO UNITED STATES ARMY OVERSEA REPLACEMENT STATION, OAKLAND ARMY TERMINAL, OAKLAND, CALIFORNIA, FOR SHIPMENT TO EIGHTH UNITED STATES ARMY OVERSEAS. YOU WERE ORDERED TO BE AVAILABLE FOR MOVEMENT TO AN EMBARKATION AREA ON OR ABOUT AUGUST 26, 1960. THE ORDERS FURTHER PROVIDED FOR AN AMENDMENT, TO BE FORWARDED TO YOUR LEAVE ADDRESS, TO ESTABLISH A FIRM REPORTING DATE AND INDICATE YOUR UNIT OF ASSIGNMENT. YOU WERE DIRECTED NOT TO PROCEED TO THE OVERSEA REPLACEMENT STATION OR TRANSPORTATION TERMINAL UNTIL SUCH ADDITIONAL INSTRUCTIONS WERE RECEIVED UNLESS THEY WERE NOT RECEIVED BY THE DESIGNATED AVAILABLE DATE, AUGUST 26, 1960, AT WHICH TIME YOU WERE TO PROCEED WITHOUT FURTHER DELAY. THE ORDERS AUTHORIZED 30 DAYS DELAY EN ROUTE CHARGEABLE AS LEAVE. IT APPEARS THAT ON JULY 25, 1960, PREPARATORY TO COMPLYING WITH SPECIAL ORDERS NO. 151, YOU MOVED YOUR FAMILY FROM FORT BENNING TO COLUMBUS, GEORGIA, AND ON JULY 30, 1960, YOU PROCEEDED FROM FORT BENNING IN A LEAVE STATUS. BY SPECIAL ORDERS NO. 185, DATED AUGUST 19, 1960, ISSUED BY HEADQUARTERS, UNITED STATES ARMY INFANTRY CENTER, FORT BENNING, GEORGIA, THE CHANGE IN YOUR STATION ASSIGNMENT AUTHORIZED BY PARAGRAPH 8 OF SPECIAL ORDERS NO. 151, WAS REVOKED.

THE TRAVEL OF MEMBERS OF THE UNIFORMED SERVICES AND THEIR DEPENDENTS IS GOVERNED BY THE JOINT TRAVEL REGULATIONS ISSUED PURSUANT TO SECTION 303 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813, 37 U.S.C. 253. PARAGRAPH 3003-1B OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT WHEN LEAVE OR DELAY PRIOR TO REPORTING TO THE NEW STATION IS AUTHORIZED IN THE ORDERS THE AMOUNT OF SUCH LEAVE OR DELAY WILL BE ADDED TO THE DATE OF RELIEF (DETACHMENT) FROM THE OLD STATION TO DETERMINE THE EFFECTIVE DATE OF THE ORDERS. THE PHRASE "LEAVE OR DELAY" AS USED IN THAT PARAGRAPH IS VIEWED AS REFERRING ONLY TO LEAVE, OR DELAY IN THE NATURE OF LEAVE, CHARGEABLE AGAINST THE TRAVELER AS LEAVE, AND NO DISTINCTION IS MADE IN THE APPLICATION OF THE REGULATION REGARDLESS OF WHICH OF THE TERMS,"LEAVE" OR "DELAY," WAS USED IN THE ORDERS.

IT HAS LONG BEEN THE RULE THAT NO OFFICIAL TRAVEL OF A MEMBER OR HIS DEPENDENTS IS REQUIRED UNDER CHANGE OF STATION ORDERS, EITHER OF A PERMANENT OR TEMPORARY NATURE, UNTIL SUCH TIME AS THE MEMBER IS REQUIRED TO DEPART THE OLD STATION BY ORDINARY MEANS OF TRANSPORTATION (RAIL UNLESS OTHERWISE SPECIFIED) TO REACH HIS NEW STATION ON THE DATE REQUIRED BY HIS TRAVEL ORDERS. WHERE A MEMBER IS GRANTED LEAVE OR AUTHORIZED DELAY IN THE PERFORMANCE OF TRAVEL, IT IS CONSIDERED THAT NO OFFICIAL TRAVEL IS REQUIRED UNTIL THE EXPIRATION OF SUCH LEAVE OR DELAY. IF THE ORDERS ARE CANCELLED PRIOR THERETO, ANY TRAVEL WHICH MAY HAVE BEEN PERFORMED BY THE MEMBER OR HIS DEPENDENTS IS REGARDED AS INCIDENT TO THE LEAVE OR DELAY AND THE EXPENSES OF SUCH TRAVEL MUST BE BORNE BY THE MEMBER CONCERNED. COMP. GEN. 524, 9 COMP. GEN. 315 AND 33 COMP. GEN. 289.

IT IS CLEAR THAT IN THE ABSENCE OF THE AMENDATORY ORDERS, SPECIAL ORDERS NO. 151 NEITHER AUTHORIZED NOR REQUIRED YOUR DEPARTURE FROM FORT BENNING TO THE PORT OF EMBARKATION PRIOR TO AUGUST 26, 1960, AND AS THESE ORDERS WERE REVOKED ON AUGUST 19, 1960, PRIOR TO THEIR EFFECTIVE DATE, THE TRAVEL PERFORMED BY YOUR DEPENDENTS ON JULY 25, 1960, MUST BE CONSIDERED AS HAVING BEEN MADE FOR PERSONAL REASONS RATHER THAN INCIDENT TO A CHANGE OF STATION AND THERE IS NO AUTHORITY UNDER WHICH YOU MAY BE PAID AN ALLOWANCE FOR SUCH TRAVEL.

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, UNDER REGULATIONS APPROVED BY THE SECRETARY CONCERNED, PAYMENT OF A DISLOCATION ALLOWANCE TO A MEMBER OF THE UNIFORMED SERVICES WHOSE DEPENDENTS ARE AUTHORIZED TO MOVE AND ACTUALLY MOVE IN CONNECTION WITH HIS PERMANENT CHANGE OF STATION. PARAGRAPH 9002 OF THE JOINT TRAVEL REGULATIONS, IN EFFECT DURING THE PERIOD INVOLVED, AUTHORIZES THE PAYMENT OF A DISLOCATION ALLOWANCE WHENEVER DEPENDENTS RELOCATE THEIR HOUSEHOLD IN CONNECTION WITH A PERMANENT CHANGE OF STATION. PARAGRAPH 9001 OF THE REGULATIONS PROVIDES THAT THE AMOUNT OF THE PAYMENT SHALL BE DETERMINED BY THE MEMBERS' MONTHLY RATE OF BASIC ALLOWANCE FOR QUARTERS ON THE EFFECTIVE DATE OF PERMANENT CHANGE OF STATION ORDERS. UNDER THE LAW AND REGULATIONS A RIGHT TO A DISLOCATION ALLOWANCE CANNOT ARISE UNTIL A PERMANENT CHANGE OF STATION HAS BEEN ORDERED, THE ORDERS BECOME EFFECTIVE, AND THE DEPENDENTS ACTUALLY MOVE IN CONNECTION WITH SUCH CHANGE OF STATION. ACCORDINGLY, SINCE THE ORDERS AUTHORIZING A PERMANENT CHANGE OF STATION WERE REVOKED PRIOR TO THEIR EFFECTIVE DATE, AS EXPLAINED IN THE PRECEDING PARAGRAPH, PAYMENT OF A DISLOCATION ALLOWANCE IS NOT AUTHORIZED.

RELATIVE TO YOUR STATEMENT THAT YOU DO NOT BELIEVE IT IS THE INTENT OF THE UNITED STATES GOVERNMENT THAT REIMBURSEMENT SHOULD NOT BE MADE IN SITUATIONS SUCH AS YOURS, YOU ARE ADVISED THAT WE HAVE FOUND NO EVIDENCE OF ANY CONGRESSIONAL INTENT TO AUTHORIZE THE PAYMENT OF ALLOWANCES, OR REIMBURSEMENT FOR EXPENSES INCURRED, IN CONNECTION WITH CHANGE OF STATION ORDERS WHICH ARE CANCELLED BEFORE THEIR EFFECTIVE DATE. WE TRUST YOU WILL UNDERSTAND THAT WE MAY NOT IGNORE THE PLAIN TERMS OF THE APPLICABLE STATUTES AND REGULATIONS IN THE SETTLEMENT OF CLAIMS THAT ARE PRESENTED TO US FOR CONSIDERATION.

FOR THE ABOVE REASONS, THE SETTLEMENT OF JANUARY 18, 1961, WAS CORRECT AND IS SUSTAINED.