B-154781, AUG. 12, 1964

B-154781, AUG. 12, 1964

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO LETTER OF JULY 16, 1964, FROM THE UNDER SECRETARY OF THE ARMY, REQUESTING A DECISION WHETHER WE WOULD HAVE ANY OBJECTION TO THE ISSUANCE OF A DETERMINATION IN CONNECTION WITH CHAPTER 4, JOINT TRAVEL REGULATIONS, WHICH WOULD PERMIT THE PAYMENT FOR AN INTERIM PERIOD COMMENCING JULY 1, 1964, OF THE COST-OF-LIVING ALLOWANCE TO MEMBERS IN PAY GRADES E-4 WITH 4 YEARS' SERVICE OR LESS, E-3, E-2 AND E-1 WHO HAVE ACCOMPANYING DEPENDENTS AND WHO HAVE BEEN AUTHORIZED TO MESS SEPARATELY. THIS REQUEST WAS ASSIGNED CONTROL NO. 64-25 BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

THE UNDER SECRETARY'S LETTER STATES THAT IN RESPONSE TO RECOMMENDATIONS MADE IN OUR REPORT TO THE CONGRESS DATED AUGUST 7, 1963, B-146800, COVERING UNJUSTIFIED COST-OF-LIVING ALLOWANCES PAID IN THE ALASKAN COMMAND TO MILITARY PERSONNEL NOT ACCOMPANIED BY DEPENDENTS, PARAGRAPH 4301-3B (1), ITEM 3, JOINT TRAVEL REGULATIONS, WAS AMENDED IN CHANGE 138, EFFECTIVE JULY 1, 1964, TO REQUIRE, AS A CONDITION PRECEDENT TO THE ENTITLEMENT OF A MEMBER WITHOUT DEPENDENTS TO THE COST-OF-LIVING ALLOWANCE, THAT GOVERNMENT QUARTERS BE NOT AVAILABLE IN ADDITION TO THE THEN CURRENT REQUIREMENT OF AUTHORITY TO MESS SEPARATELY. IT IS ALSO STATED THAT SOME 2 WEEKS AFTER THE ABOVE CHANGE TO THE REGULATIONS WAS MADE IT WAS BROUGHT TO THE ATTENTION OF THE SERVICES THAT, IN ADDITION TO ACCOMPLISHING THE CHANGE THAT WE REQUESTED, TO TERMINATE UNJUSTIFIED ALLOWANCES TO UNACCOMPANIED ENLISTED MEMBERS LIVING IN BACHELOR ENLISTED GOVERNMENT QUARTERS, THE CHANGE HAD THE ADDITIONAL EFFECT OF TERMINATING ALLOWANCES OF ACCOMPANIED MEMBERS WHO HAVE LONG ENJOYED COST-OF-LIVING ALLOWANCES AS A MEMBER WITHOUT DEPENDENTS WHEN AUTHORIZED TO MESS SEPARATELY. IT IS FURTHER STATED THAT IT WAS THEREAFTER DETERMINED THAT THIS CHANGE WAS NOT INTENDED TO SHEAR THE ALLOWANCE FROM THESE ACCOMPANIED MEMBERS WHO ARE CONSIDERED TO BE MEMBERS WITHOUT DEPENDENTS UNDER THE JOINT TRAVEL REGULATIONS.

IN DISCUSSING THE PROBLEM THE UNDER SECRETARY POINTS OUT THAT, SINCE THERE WAS NO EXPRESS INTENTION OF CURTAILING PAYMENT OF ALLOWANCES TO THE CLASS OF PERSONNEL MENTIONED, ACTION HAS ALREADY BEEN TAKEN TO RESTORE ALLOWANCES ON THE EARLIEST PRACTICABLE FUTURE DATE, AND THAT FINANCIAL HARDSHIP WILL RESULT IF ALLOWANCES ARE DENIED FOR THE PERIOD JULY 1, 1964, TO THE DATE THE ALLOWANCES ARE RESTORED.

THIS OFFICE HAS LONG AND CONSISTENTLY ADHERED TO THE WELL ESTABLISHED RULE THAT WHEN REGULATIONS ARE PROPERLY ISSUED RIGHTS THEREUNDER BECOME FIXED AND, ALTHOUGH SUCH REGULATIONS MAY BE AMENDED PROSPECTIVELY TO INCREASE OR DECREASE RIGHTS GIVEN THEREBY, THEY MAY NOT BE SO AMENDED RETROACTIVELY EXCEPT TO CORRECT OBVIOUS ERRORS IN THE REGULATIONS WHICH IT IS INTENDED TO CORRECT. 27 COMP. GEN. 339; 32 ID. 315 AND 527; 33 ID. 174 AND 505; 40 ID. 242; AND 41 ID. 392. CF. ARIZONA GROCERY V. ATCHISON RY., 284 U.S. 370 (1932) AND HELVERING V. GRIFFITHS, 318 U.S. 371, 395 (1943). AS SUGGESTED BY THE UNDER SECRETARY, CHANGE 138 TO PARAGRAPH 4301-3B (1), ITEM 3, JOINT TRAVEL REGULATIONS, APPEARS TO HAVE HAD THE COROLLARY UNINTENDED EFFECT OF EXCLUDING EFFECTIVE JULY 1, 1964, A CLASS OF OTHERWISE ELIGIBLE MILITARY PERSONNEL FROM ENTITLEMENT TO THE COST-OF- LIVING ALLOWANCE TO WHICH THEY THERETOFORE HAD BEEN ENTITLED. SUCH ADVERSE EFFECT, ARISING THROUGH OVERSIGHT IN THE PROMULGATION OF CHANGE 138, REASONABLY MAY BE VIEWED AS RESULTING FROM OBVIOUS ERROR IN THE STATEMENT OF ADMINISTRATIVE INTENT BY THE LANGUAGE USED. ACCORDINGLY A DETERMINATION OR AMENDMENT RETROACTIVELY EFFECTIVE FROM JULY 1, 1964, THE EFFECTIVE DATE OF CHANGE 138, DESIGNED FOR THE SOLE PURPOSE OF RESTORING THE SAME RIGHTS OR BENEFITS PREVIOUSLY ACCORDED TO THE AFFECTED MILITARY PERSONNEL WOULD APPEAR TO COME WITHIN THE PURVIEW OF THE STATED EXCEPTION RATHER THAN THE PROHIBITION IN THE ABOVE ENUNCIATED RULE.

IN VIEW OF THE FOREGOING THIS OFFICE WOULD INTERPOSE NO OBJECTION TO THE ISSUANCE OF A DETERMINATION PERMITTING THE PAYMENTS IN QUESTION. COMPARE DECISION OF FEBRUARY 1, 1956, TO THE CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION, B-104080, COPY ENCLOSED.