B-148860, JUN 21, 1962

B-148860, JUN 21, 1962

TO MAJOR CHARLES A MUNFORD, RETIRED:

YOUR LETTER OF APRIL 24, 1962, REQUESTS REVIEW OF OUR SETTLEMENT PF APRIL 17, 1962, WHICH DISALLOWED YOUR CLAIM FOR A SECOND DISLOCATION ALLOWANCE FOR THE FISCAL YEAR 1959, INCIDENT TO TRAVEL PERFORMED UNDER PERMANENT CHANGE OF STATION ORDERS OF OCTOBER 28, 1958. THE CLAIM WAS DISALLOWED 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 UPON 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.

BY ORDERS DATED FEBRUARY 14, AND JULY 26, 1958, YOU WERE TRANSFERRED FROM DENVER, COLORADO, TO HEIDELBERG, GERMANY. YOU WERE PAID A DISLOCATION ALLOWANCE INCIDENT TO THIS CHANGE OF STATION. BY ORDERS DATED OCTOBER 28, 1958, YOU WERE TRANSFERRED FROM DUTY AT HEIDELBERG, GERMANY, TO DUTY AT BERLIN, GERMANY, A PERMANENT CHANGE OF STATION. YOUR DEPENDENTS PERFORMED TRAVEL TO BERLIN IN DECEMBER 1958. IN YOUR LETTER OF AUGUST 29, 1961, IT IS STATED THAT YOU WERE TRANSFERRED BECAUSE YOU WERE IN A TD POSITION IN G1 DIVISION, U.S. ARMY EUROPE, APO 403, WHICH WAS ELIMINATED.

IN YOUR PRESENT LETTER YOU REQUEST THAT THE APPROPRIATE RECORDS BE REVIEWED TO DETERMINE THE CIRCUMSTANCES WHICH CAUSED THE RELOCATION OF YOUR HOUSEHOLD FROM HEIDELBERG TO BERLIN IN 1958 AND THAT THIS INFORMATION AND YOUR CLAIM BE REFERRED TO THE SECRETARY OF THE ARMY FOR HIS RULING WHETHER EXIGENCIES OF THE SERVICE EXISTED IN 1958.

SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 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 8A OF ARMY REGULATIONS 614-100 DATED FEBRUARY 14, 1957, IN EFFECT AT THE TIME, PROVIDE THAT OVERSEAS COMMANDERS AS DEFINED IN ARMY REGULATIONS 614-30 WHICH INCLUDE UNITED STATES ARMY EUROPE, ARE AUTHORIZED TO REASSIGN AND/OR DIRECT CHANGE OF STATION FOR OFFICERS, WITH CERTAIN EXCEPTIONS NOT APPLICABLE HERE, UNDER THEIR JURISDICTION WITHIN THE LIMITS OF THEIR COMMAND OR TO THE CONTINENTAL UNITED STATES. PARAGRAPH 9A (3) OF THAT REGULATION PROVIDES THAT A SECOND OR SUBSEQUENT PERMANENT CHANGE OF STATION IN THE SAME FISCAL YEAR INCIDENT TO A DUTY ASSIGNMENT SUCH AS YOURS IS NOT AUTHORIZED EXCEPT UPON FINDING BY THE SECRETARY OF THE ARMY THAT THE EXIGENCIES OF THE SERVICE REQUIRE MORE THAN ONE PERMANENT CHANGE OF STATION. PARAGRAPH 9 (B) PROVIDES THAT COMMANDERS OF MAJOR COMMANDS ARE AUTHORIZED TO DETERMINE WHETHER THE PERMANENT CHANGE OF STATION OF ANY MEMBER IS OCCASIONED BY ANY OF THE SEVERAL SITUATIONS THERE LISTED, AND THAT IF SO DETERMINED, SUCH PERMANENT CHANGE OF STATION IS REQUIRED BY THE EXIGENCIES OF THE SERVICE. ONE OF THE SITUATIONS LISTED IN 9B (4) IS "REASSIGNMENT UPON INACTIVATION AND/OR REORGANIZATION OF THE UNIT TO WHICH THE OFFICER CONCERNED IS ASSIGNED, INCLUDING DISCONTINUANCE OF A TD ORGANIZATION.' PARAGRAPH 8 (C), CHANGE 2, DATED MAY 20, 1957, OF THE SAME REGULATION, PROVIDES THAT ORDERS INVOLVING A SECOND OR SUBSEQUENT CHANGE OF STATION APPROVED UNDER PARAGRAPH 9B (4) MUST CONTAIN THE STATEMENT: "THIS ADDITIONAL FISCAL YEAR MOVE AUTHORIZED BY THE SECRETARY OF THE ARMY PER AR 614-100.'

THE ORDERS OF OCTOBER 28, 1958, DIRECTING YOUR PERMANENT CHANGE OF STATION TO BERLIN 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 SUCH SECOND MOVE WAS REQUIRED BY THE EXIGENCIES OF THE SERVICE. IN VIEW OF THE SPECIFIC REQUIREMENTS IN THE STATUTE AND THE 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.

WITH REGARD TO YOUR REQUEST THAT WE REFER YOUR CLAIM TO THE SECRETARY OF THE ARMY FOR A RULING IN THE MATTER, THE CITED REGULATIONS APPEAR TO CONTEMPLATE THAT THE DETERMINATION BY THE SECRETARY THAT MORE THAN ONE CHANGE OF STATION IS REQUIRED BY THE EXIGENCIES OF THE SERVICE DURING THE SAME FISCAL YEAR WILL BE PREDICATED UPON A REPORT AND RECOMMENDATION BY THE APPROPRIATE COMMANDER IN THE FIELD WHO HAS KNOWLEDGE OF THE FACTS GIVING RISE TO THE EXIGENCY. OUR FILE CONTAINS NO SUCH REPORT AND RECOMMENDATION AND, HENCE, WE SUGGEST THAT YOU REQUEST HEADQUARTERS, UNITED STATES ARMY, EUROPE, THE COMMAND WHICH ISSUED YOUR ORDERS OF OCTOBER 28, 1958, TO SUBMIT A REPORT AND RECOMMENDATION THROUGH CHANNELS TO THE SECRETARY OF THE ARMY WITH A VIEW TOWARD OBTAINING HIS DETERMINATION IN YOUR CASE. SHOULD THE SECRETARY HAVE NEED FOR ANY OF OUR RECORDS PERTAINING TO YOUR CLAIM, SUCH RECORDS WILL, OF COURSE, BE MADE AVAILABLE TO HIM UPON RECEIPT OF HIS REQUEST THEREFOR. IF AND WHEN A FAVORABLE DETERMINATION BY THE SECRETARY ON YOUR CLAIM IS RECEIVED, THE MATTER WILL BE GIVEN FURTHER CONSIDERATION.