B-152709, DEC. 6, 1963

B-152709, DEC. 6, 1963

TO STAFF SERGEANT RAYMOND L. MICHAEL, JR.:

REFERENCE IS MADE TO YOUR LETTER DATED OCTOBER 4, 1963, REQUESTING REVIEW OF THE SETTLEMENT OF APRIL 1, 1963, WHICH DISALLOWED YOUR CLAIM FOR DISLOCATION ALLOWANCE INCIDENT TO YOUR RETURN FROM OVERSEAS PURSUANT TO ORDERS OF APRIL 12, 1962, AS AMENDED BY ORDERS OF SEPTEMBER 4, 1962.

BY SPECIAL ORDERS NO. 73, HEADQUARTERS, 1ST RECONNAISSANCE SQUADRON, 14TH ARMORED CAVALRY, APO 26, U.S. FORCES, DATED APRIL 12, 1962, YOU WERE RELEASED FROM YOUR OVERSEAS ASSIGNMENT AND REASSIGNED TO THE UNITED STATES TRANSFER STATION (1386), FORT HAMILTON, NEW YORK, FOR PROCESSING FOR SEPARATION FROM THE SERVICE. YOUR DEPENDENT WIFE AND TWO CHILDREN WERE AUTHORIZED CONCURRENT TRAVEL. THE AUTHORITY CITED FOR THESE ORDERS WAS ARMY REGULATIONS 635-200, PERSONNEL SEPARATIONS, DATED APRIL 8, 1959, WHICH CONTAINS GENERAL PROVISIONS FOR DISCHARGE OR RELEASE FROM ACTIVE DUTY. THE RECORD SHOWS THAT YOU WERE DISCHARGED AT FORT HAMILTON, NEW YORK, ON MAY 7, 1962, AND BY SPECIAL ORDERS NO. 111, HEADQUARTERS FORT HAMILTON, NEW YORK, DATED MAY 8, 1962, YOU REENLISTED IN THE ARMY FOR A PERIOD OF THREE YEARS AND WERE ASSIGNED TO PERMANENT DUTY AT FORT KNOX, KENTUCKY. BY ORDERS DATED SEPTEMBER 4, 1962, YOUR OVERSEAS COMMAND ISSUED AN AMENDMENT TO YOUR ORDERS OF APRIL 12, 1962, TO SHOW THAT YOU WERE REASSIGNED FOR THE PURPOSE OF DISCHARGE, REENLISTMENT AND FURTHER REASSIGNMENT.

YOUR CLAIM FOR DISLOCATION ALLOWANCE WAS DISALLOWED BY SETTLEMENT DATED APRIL 1, 1963, FOR THE REASON THAT YOUR ORDERS OF APRIL 12, 1962, DID NOT MENTION REENLISTMENT OR INDICATE ANY NEW PERMANENT DUTY STATION OTHER THAN YOUR HOME ADDRESS, A DISLOCATION ALLOWANCE NOT BEING PAYABLE INCIDENT TO ORDERS FROM THE LAST DUTY STATION TO THE HOME. IT WAS FURTHER STATED THAT NO RETROACTIVE EFFECT MAY BE GIVEN TO THE ORDERS OF SEPTEMBER 4, 1962, WHICH AMENDED YOUR ORDERS OF APRIL 12, 1962, TO PROVIDE FOR DISCHARGE, REENLISTMENT AND FURTHER ASSIGNMENT.

IN YOUR LETTER REQUESTING REVIEW YOU SAY THAT WHEN YOU RECEIVED YOUR ORDERS YOU QUESTIONED THE STATEMENT "EDCSA FOR PROCESSING AND SEPARATION," AND WERE ADVISED THAT IT WAS INCLUDED DUE TO A PERSONNEL ACTION FOR HELICOPTER TRAINING STILL PENDING WHICH PREVENTED YOUR FALLING UNDER RECAP AT THAT TIME, BUT THAT YOU WERE TOLD THAT AN AMENDMENT TO THE ORDERS WAS UNNECESSARY AND THAT YOU WERE ENTITLED TO DISLOCATION ALLOWANCE UPON REENLISTMENT. FURTHER, YOU SAY THAT THE FACT THAT YOUR OVERSEAS COMMAND ISSUED THE AMENDING ORDERS OF SEPTEMBER 4, 1962, IS AN ADMISSION THAT THE ORDERS OF APRIL 12, 1962, WERE ERRONEOUS AND DID NOT REFLECT THE TRUE INTENT OF THE ORDER-ISSUING AUTHORITY.

WE HAVE BEEN INFORMALLY ADVISED BY THE DEPARTMENT OF THE ARMY THAT THE FACT THAT YOU HAD AN APPLICATION PENDING FOR HELICOPTER TRAINING WOULD NOT HAVE EXCLUDED YOU FROM BEING CONSIDERED UNDER THE REENLISTMENT OPTION PROGRAM PROVIDED FOR IN ARMY REGULATIONS 601-225 DATED JANUARY 30, 1961. MOREOVER, IF YOU HAD SO DESIRED, YOU COULD HAVE REENLISTED AT YOUR OVERSEAS STATION.

THE PERTINENT STATUTE, 37 U.S.C. 407, AUTHORIZES 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, BUT EXPRESSLY PROVIDES THAT A MEMBER IS NOT ENTITLED TO PAYMENT OF A DISLOCATION ALLOWANCE WHEN ORDERED FROM HOME TO FIRST DUTY STATION OR FROM LAST DUTY STATION TO HOME. PARAGRAPH 9003-4, JOINT TRAVEL REGULATIONS, PROVIDES THAT SUCH ALLOWANCE WILL NOT BE PAYABLE 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, 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 TO MEMBERS ORDERED FROM OLD PERMANENT STATION TO PROCESSING OR SEPARATION STATIONS FOR DISCHARGE, WHO SUBSEQUENTLY REENLIST WITHOUT A BREAK IN SERVICE, IS NOT AUTHORIZED UNLESS IT APPEARS THAT THE MEMBER'S ORIGINAL PERMANENT CHANGE-OF-STATION ORDERS CONTEMPLATED HIS IMMEDIATE RE-ENTRY INTO THE SERVICE. SEE 36 COMP. GEN. 71; 38 COMP. GEN. 405; B-135627, MAY 12, 1959.

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 OF APRIL 12, 1962, RETURNING YOU TO THE UNITED STATES, ONLY PROVIDED FOR YOUR RELEASE FROM ACTIVE DUTY AND CONCURRENT TRAVEL OF YOUR DEPENDENTS. THUS, UNDER CONTROLLING REGULATIONS, NO RIGHT TO A DISLOCATION ALLOWANCE ACCRUED TO YOU INCIDENT TO YOUR RELEASE FROM ACTIVE DUTY AT FORT HAMILTON, NEW YORK, AND SUBSEQUENT REENLISTMENT IN THE ARMY.

WITH REGARD TO THE ORDERS OF SEPTEMBER 4, 1962, AMENDING YOUR ORDERS OF APRIL 12, 1962, TO SHOW THAT YOU WERE RETURNED TO THE UNITED STATES FOR THE PURPOSE OF DISCHARGE, 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 OF 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. CONCERNING YOUR STATEMENT THAT THE OVERSEAS COMMAND IN EFFECT ADMITTED ERROR IN THE ISSUANCE OF YOUR ORDERS OF APRIL 12, 1962, THE RECORD CONTAINS A STATEMENT OF THAT COMMAND THAT THE AMENDING ORDERS OF SEPTEMBER 4, 1962, WERE CUT AND FORWARDED IN ACCORDANCE WITH A REQUEST RECEIVED FROM THE TRANSFER STATION, FORT HAMILTON, NEW YORK, AND THAT NO ADMINISTRATIVE ERROR WAS INVOLVED. YOUR ORDERS OF APRIL 12, 1962, WERE CLEAR AND UNAMBIGUOUS, AND THE AMENDMENT OF SEPTEMBER 4, 1962, IS OF NO EFFECT. ACCORDINGLY, THE SETTLEMENT OF APRIL 1, 1963, WAS CORRECT AND IS SUSTAINED.