B-152327, SEP. 23, 1963

B-152327, SEP. 23, 1963

TO STAFF SERGEANT JAMES G. CASE:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 9, 1963, REQUESTING REVIEW OF SETTLEMENT DATED MAY 14, 1963, WHICH DISALLOWED YOUR CLAIM FOR A DISLOCATION ALLOWANCE IN CONNECTION WITH YOUR DEPENDENTS' TRAVEL INCIDENT TO YOUR DISCHARGE ON SEPTEMBER 19, 1962, FROM THE UNITED STATES ARMY AND IMMEDIATE REENLISTMENT.

BY SPECIAL ORDERS NO. 177, DATED AUGUST 18, 1962, PREVIOUS ORDERS ARE REVOKED AND YOU WERE REASSIGNED FROM YOUR OVERSEAS STATION TO THE OAKLAND ARMY TERMINAL, OAKLAND, CALIFORNIA, FOR RELEASE FROM ACTIVE DUTY. SPECIAL ORDERS NO. 263, DATED SEPTEMBER 19, 1962, YOU WERE HONORABLY DISCHARGED FROM THE UNITED STATES ARMY EFFECTIVE SEPTEMBER 19, 1962, AND ASSIGNMENT AT OAKLAND UNDER YOUR NEW REENLISTMENT AND ASSIGNED YOU TO FORT KNOX, KENTUCKY, WITH 45 DAYS OF REENLISTMENT LEAVE AUTHORIZED. SPECIAL ORDERS NO. 282, DATED DECEMBER 29, 1962, AMENDED SPECIAL ORDERS NO. 177 TO SHOW THAT YOU WERE RETURNED FROM OVERSEAS FOR SEPARATION, IMMEDIATE REENLISTMENT AND FURTHER ASSIGNMENT RATHER THAN FOR RELEASE FROM ACTIVE DUTY. THE SETTLEMENT OF MAY 14, 1963, DISALLOWED YOUR CLAIM FOR THE REASON THAT THE DISLOCATION ALLOWANCE IS NOT PAYABLE IN CONNECTION WITH PERMANENT CHANGE OF STATION TRAVEL FROM HOME OR FROM PLACE FROM WHICH ORDERED TO ACTIVE DUTY TO FIRST PERMANENT DUTY STATION UPON ENLISTMENT OR REENLISTMENT IN THE SERVICE. YOU CONTEND THAT YOU SHOULD BE PAID THE DISLOCATION ALLOWANCE FOR THE REASONS THAT SPECIAL ORDERS NO. 177 WERE AMENDED TO SHOW THAT YOU WERE RETURNED TO OAKLAND FOR SEPARATION, REENLISTMENT AND FURTHER ASSIGNMENT; THAT YOU HAD NO BREAK IN SERVICE DURING THE PERIOD INVOLVED; AND THAT THE UNUSUAL CIRCUMSTANCES OF YOUR OVERSEAS ASSIGNMENT PLACED YOU AT A DISADVANTAGE IN THAT THEY UPSET NORMAL REASSIGNMENT PROCEDURES.

SECTION 407 OF TITLE 37 OF THE U.S.C. AUTHORIZES THE PAYMENT OF A DISLOCATION ALLOWANCE, UNDER REGULATIONS APPROVED BY THE SECRETARY CONCERNED, TO A MEMBER OF THE UNIFORMED SERVICES WHOSE DEPENDENTS MAKE AN AUTHORIZED MOVE IN CONNECTION WITH HIS PERMANENT CHANGE OF STATION EXCEPT IN THE CASE WHERE HE IS ORDERED FROM HOME TO FIRST DUTY STATION OR FROM LAST DUTY STATION TO HOME. PARAGRAPH 9003-4 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT SUCH ALLOWANCE WILL NOT BE PAYABLE IN CONNECTION WITH PERMANENT CHANGE OF STATION TRAVEL 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. ALSO, UNDER PARAGRAPH 9003-5 OF THE REGULATIONS THE DISLOCATION ALLOWANCE IS NOT PAYABLE IN CONNECTION WITH PERMANENT CHANGE OF STATION TRAVEL FROM LAST DUTY STATION IN ONE PERIOD OF SERVICE TO FIRST DUTY STATION IN ANOTHER PERIOD OF SERVICE WHEN THERE WAS NO ORDERED PERMANENT CHANGE OF STATION BETWEEN THOSE STATIONS.

WE HAVE CONSISTENTLY HELD THAT PAYMENT OF DISLOCATION ALLOWANCE IS NOT AUTHORIZED IN THE CASE OF A MEMBER ORDERED FROM HIS OLD PERMANENT STATION TO A PROCESSING OR SEPARATION STATION FOR DISCHARGE AND WHO REENLISTS WITHOUT A BREAK IN SERVICE, UNLESS IT APPEARS THAT THE MEMBER'S ORIGINAL PERMANENT CHANGE OF STATION ORDERS CONTEMPLATED HIS IMMEDIATE ENTRY INTO THE SERVICE. SEE 36 COMP. GEN. 71; 38 COMP. GEN. 405.

ARMY REGULATIONS 37-106, CHAPTER 12, DEALING WITH DISLOCATION ALLOWANCE, PROVIDE IN PARAGRAPH 12-4C (2) AS FOLLOWS:

"A MEMBER ORDERED FROM HIS OLD PERMANENT STATION TO A TRANSFER ACTIVITY FOR DISCHARGE OR SEPARATION WHO ENLISTS OR REENLISTS AT A TRANSFER ACTIVITY WITHOUT A BREAK IN ACTIVE SERVICE AND IS ASSIGNED A NEW PERMANENT STATION IS NOT ENTITLED TO PAYMENT OF THE DISLOCATION ALLOWANCE.'

THE ORDERS DATED AUGUST 18, 1962, RETURNING YOU TO THE UNITED STATES ONLY PROVIDED FOR YOUR RELEASE FROM ACTIVE DUTY. THUS, UNDER CONTROLLING REGULATIONS, NO RIGHT TO A DISLOCATION ALLOWANCE ACCRUED TO YOU INCIDENT TO YOUR RELEASE FROM ACTIVE DUTY AT OAKLAND, CALIFORNIA, AND SUBSEQUENT REENLISTMENT IN THE ARMY.

WITH REGARD TO THE ORDERS DATED DECEMBER 29, 1962, AMENDING YOUR ORDERS AUGUST 18, 1962, TO SHOW THAT YOU WERE RETURNED TO THE UNITED STATES FOR SEPARATION, IMMEDIATE REENLISTMENT AND FURTHER ASSIGNMENT, YOU ARE ADVISED THAT LEGAL RIGHTS AND LIABILITIES RELATIVE TO TRAVEL ALLOWANCES VEST AS AND WHEN THE TRAVEL IS PERFORMED UNDER THE ORDERS, AND THAT SUCH ORDERS MAY NOT BE REVOKED OR MODIFIED RETROACTIVELY SO AS TO INCREASE OR DECREASE THE RIGHTS WHICH HAVE BECOME FIXED UNDER THE APPLICABLE STATUTES OR REGULATIONS UNLESS ERROR IS APPARENT ON THE FACE OF THE ORDERS, OR ALL THE FACTS AND CIRCUMSTANCES CLEARLY DEMONSTRATE THAT SOME PROVISION PREVIOUSLY DETERMINED AND DEFINITELY INTENDED HAD BEEN OMITTED THROUGH ERROR AND INADVERTENCE IN PREPARING THE ORDERS. KATZER V. UNITED STATES, 52 CT.CL. 32; 24 COMP. GEN. 439; 34 COMP. GEN. 427. SUCH ELEMENTS DO NOT APPEAR TO BE PRESENT IN YOUR CASE. YOUR ORDERS OF AUGUST 18, 1962, WERE CLEAR AND UNAMBIGUOUS, AND THE SUBSEQUENT AMENDMENT OF DECEMBER 29, 1962, IS OF NO EFFECT. ACCORDINGLY, ..END :