B-150057, NOV. 23, 1962

B-150057, NOV. 23, 1962

TO STAFF SERGEANT MERVIN H. SCHAKOWSKY, USAR:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 27, 1962, REQUESTING REVIEW OF OUR ACTION IN SETTLEMENT DATED SEPTEMBER 4, 1962, WHICH DISALLOWED YOUR CLAIM FOR TRANSPORTATION ALLOWANCE FOR YOUR DEPENDENTS' TRAVEL FROM AYER, MASSACHUSETTS, TO CHICAGO, ILLINOIS, INCIDENT TO YOUR RELEASE FROM ACTIVE DUTY UNDER ORDERS OF JULY 10, 1962.

BY SPECIAL ORDERS NO. 88, HEADQUARTERS, 324TH U.S. ARMY SECURITY AGENCY BATTALION, FORT DEVENS, MASSACHUSETTS, DATED JULY 10, 1962, YOU WERE DIRECTED TO BE RELIEVED FROM ACTIVE DUTY EFFECTIVE AUGUST 6, 1962, AND TO PROCEED JULY 26, 1962, TO YOUR HOME OF RECORD, CHICAGO, ILLINOIS. THE ORDERS SHOW THE AUTHORITY FOR SUCH ACTION TO BE DEPARTMENT OF THE ARMY MESSAGE 599936 DATED MAY 2, 1962. ON AUGUST 6, 1962, YOU FILED A CLAIM FOR TRANSPORTATION ALLOWANCE FOR THE TRAVEL OF YOUR DEPENDENTS FROM AYER, MASSACHUSETTS, TO CHICAGO, ILLINOIS, PERFORMED FEBRUARY 4, 1962. THE CLAIM WAS SUPPORTED BY A CERTIFICATE FROM YOUR COMMANDING OFFICER DATED JULY 17, 1962, THAT YOU WERE ADVISED PRIOR TO THE ISSUANCE OF CHANGE OF STATION ORDERS THAT SUCH ORDERS WOULD BE ISSUED AND THAT YOU COULD MOVE YOUR DEPENDENTS BEFORE THE ISSUANCE OF THE ORDERS WITHOUT FORFEITURE OF TRAVEL REIMBURSEMENT FOR THOSE DEPENDENTS. YOUR CLAIM WAS DISALLOWED BY SETTLEMENT DATED SEPTEMBER 4, 1962, FOR THE REASON THAT THE CERTIFICATE FROM THE COMMANDING OFFICER MERELY RECITED THAT YOU WERE ADVISED PRIOR TO THE ISSUANCE OF CHANGE OF STATION ORDERS THAT SUCH ORDERS WOULD BE ISSUED AND MAY NOT BE ACCEPTED AS BRINGING YOUR CASE WITHIN THE EXCEPTION IN PARAGRAPH 7000-9 OF THE JOINT TRAVEL REGULATIONS.

IN YOUR LETTER OF SEPTEMBER 27, 1962, YOU ENCLOSED A COPY OF A LETTER DATED SEPTEMBER 12, 1962, FROM THE COMMANDING OFFICER OF THE HEADQUARTERS WHICH ISSUED YOUR RELEASE ORDERS, STATING THAT YOU WERE FOLLOWING INSTRUCTIONS FROM THE TRANSPORTATION OFFICER AT FORT DEVENS, MASSACHUSETTS, ISSUED EARLY IN 1962 WHEN A NUMBER OF ENLISTED PERSONNEL RETURNED THEIR FAMILIES AND FURNISHINGS TO THEIR RESPECTIVE HOMES. THE LETTER STATES FURTHER THAT HOUSEHOLD GOODS WERE SHIPPED UPON A SUBMISSION BY THAT HEADQUARTERS OF A CERTIFICATE INDICATING THAT PERMANENT CHANGE OF STATION ORDERS WOULD BE ISSUED IN SEPTEMBER 1962 AND INDIVIDUALS WERE INSTRUCTED TO HOLD CLAIMS FOR DEPENDENT TRAVEL UNTIL PERMANENT CHANGE OF STATION ORDERS WERE ISSUED.

SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 253 (C), PROVIDES THAT UNDER SUCH REGULATIONS AS MAY BE PRESCRIBED BY THE SECRETARIES CONCERNED, MEMBERS OF THE UNIFORMED SERVICES WHEN ORDERED TO MAKE A CHANGE OF PERMANENT STATION SHALL BE ENTITLED TO TRANSPORTATION OF DEPENDENTS OR TO REIMBURSEMENT THEREFOR. PARAGRAPH 7000 -9 OF THE JOINT TRAVEL REGULATIONS, PROMULGATED PURSUANT TO THAT PROVISION OF LAW, PROVIDES, HOWEVER, THAT TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE IS NOT AUTHORIZED WHERE THE DEPENDENTS DEPART THE OLD STATION PRIOR TO ISSUANCE OF ORDERS AND THE VOUCHER IS NOT SUPPORTED BY A CERTIFICATE BY THE COMMANDING OFFICER OR HIS DESIGNATED REPRESENTATIVE OF THE HEADQUARTERS ISSUING THE ORDERS THAT THE MEMBER WAS ADVISED PRIOR TO THE ISSUANCE OF CHANGE OF STATION ORDERS THAT SUCH ORDERS WOULD BE ISSUED. UNDER SUCH REGULATIONS, TRAVEL OF DEPENDENTS AT GOVERNMENT EXPENSE IS NOT AUTHORIZED UNTIL THE MEMBER HAS DEFINITE KNOWLEDGE OF AN IMPENDING PERMANENT CHANGE OF STATION. IT HAS BEEN THE RULE, THEREFORE, THAT THE REGULATION CAN BE APPLICABLE ONLY WHERE DEPARTURE OF DEPENDENTS IS DURING THE COMPARATIVELY SHORT PERIOD OF TIME WHICH MAY ELAPSE BETWEEN THE TIME OF AN ADMINISTRATIVE DETERMINATION TO ORDER A MEMBER TO MAKE A CHANGE OF STATION AND THE DATE ON WHICH ORDERS DIRECTING SUCH CHANGE ACTUALLY ARE ISSUED. MERE GENERAL INFORMATION AS TO THE TIME OF EVENTUAL RELEASE FROM ACTIVE DUTY WHICH NOT INFREQUENTLY IS CONTAINED IN THE ORDER TO ACTIVE DUTY ITSELF IS INSUFFICIENT TO MEET THE REQUIREMENTS OF THE REGULATIONS. 34 COMP. GEN. 241.

THE RELEASE FROM ACTIVE DUTY ORDERS OF JULY 10, 1962, CONTAINS INFORMATION THAT THE AUTHORITY FOR SUCH RELEASE WAS CONTAINED IN DEPARTMENT OF THE ARMY MESSAGE 599936 DATED MAY 2, 1962. THIS APPEARS TO HAVE BEEN THE EARLIEST TIME A DEFINITE ADMINISTRATIVE DETERMINATION COULD HAVE BEEN MADE TO ORDER YOUR RELEASE FROM ACTIVE DUTY. IN VIEW THEREOF, THE INFORMATION CONTAINED IN THE CERTIFICATE OF YOUR COMMANDING OFFICER DATED JULY 17, 1962, THAT YOU WERE ADVISED PRIOR TO THE ISSUANCE OF CHANGE OF STATION ORDERS THAT SUCH ORDERS WOULD BE ISSUED, APPEARS TO BE A STATEMENT OF GENERAL INFORMATION AS TO THE TIME OF EVENTUAL RELEASE AND NOT THAT IT HAD BEEN DETERMINED TO RELEASE YOU ON A SPECIFIC DATE. SUCH THE CERTIFICATE IS NOT EFFECTIVE TO MEET THE REQUIREMENTS OF THE REGULATION. IT MUST APPEAR THAT SPECIFIC ADVICE WAS GIVEN YOU PRIOR TO THE TIME YOUR DEPENDENTS LEFT YOUR DUTY STATION AND THAT THE ADVICE WAS BASED UPON A DEFINITE ADMINISTRATIVE DETERMINATION BY THE COMMANDING OFFICER OF THE HEADQUARTERS WHICH ISSUED THE RELEASE FROM ACTIVE DUTY ORDERS THAT YOU OR YOUR UNIT WERE TO BE RELEASED FROM ACTIVE DUTY AT A STATED TIME OR PERIOD IN THE NEAR FUTURE. IN THE ABSENCE OF A CLEAR SHOWING THAT SUCH AN ADMINISTRATIVE DETERMINATION WAS MADE PRIOR TO THE TIME YOUR DEPENDENTS LEFT YOUR DUTY STATION FEBRUARY 4, 1962, THERE IS NO BASIS UPON WHICH PAYMENT OF THE TRANSPORTATION ALLOWANCE FOR THE TRAVEL OF YOUR DEPENDENTS MAY BE MADE. ACCORDINGLY, THE SETTLEMENT OF SEPTEMBER 4, 1962, WAS CORRECT AND IS SUSTAINED.