B-155309, NOV. 20, 1964

B-155309, NOV. 20, 1964

TO CAPTAIN WILLIAM A. HAMILTON:

FURTHER REFERENCE IS MADE TO YOUR LETTER RECEIVED SEPTEMBER 21, 1964, REQUESTING REVIEW OF THE SETTLEMENT OF MARCH 26, 1962, WHICH DISALLOWED YOUR CLAIM FOR TRAVEL ALLOWANCE FOR TRAVEL PERFORMED FROM FORT HOLABIRD, MARYLAND, TO FORT LEWIS, WASHINGTON, THEN TO PRESIDIO OF MONTEREY, CALIFORNIA, LESS TRAVEL ALLOWANCE PAID FROM FORT HOLABIRD TO PRESIDIO OF MONTEREY, CALIFORNIA, INCIDENT TO ORDERS OF JUNE 17, 1960, AS AMENDED, ORDERS OF JANUARY 18, 1961, AND DEPARTMENT OF ARMY MESSAGE DATED JANUARY 23, 1961.

THE RECORD SHOWS THAT BY ORDERS DATED JUNE 17, 1960, YOU WERE RELEASED FROM DUTY ASSIGNMENT WITH 4TH INFANTRY DIVISION, FORT LEWIS, WASHINGTON, AND ASSIGNED TO PRESIDIO OF SAN FRANCISCO, CALIFORNIA, WITH DUTY STATION AT FORT LEWIS, WASHINGTON, AND WITH TEMPORARY DUTY EN ROUTE AT FORT HOLABIRD, MARYLAND, FOR A PERIOD OF APPROXIMATELY 14 WEEKS FOR THE PURPOSE OF INSTRUCTION, TO REPORT THERE NOT LATER THAN SEPTEMBER 21, 1960. THOSE ORDERS WERE AMENDED BY DEPARTMENT OF THE ARMY MESSAGE OF AUGUST 23, 1960, TO AUTHORIZE 11 DAYS' LEAVE PRIOR TO REPORTING AT FORT HOLABIRD, MARYLAND, AND 11 DAYS' LEAVE UPON COMPLETION OF THE TEMPORARY DUTY THERE. ON AUGUST 24, 1960, VERBAL ORDERS OF THE SECRETARY OF THE ARMY, SUBSEQUENTLY CONFIRMED IN WRITING, REVOKED THE RELEASED FROM DUTY ASSIGNMENT AT FORT LEWIS, WASHINGTON, AND ASSIGNED TO DUTY AT PRESIDIO OF MONTEREY, CALIFORNIA, FOR THE PURPOSE OF ATTENDING A SIX MONTHS' COURSE IN LANGUAGE, WITH TEMPORARY DUTY EN ROUTE FOR A PERIOD OF APPROXIMATELY 14 WEEKS AT FORT HOLABIRD, MARYLAND; ALSO, 11 DAYS' LEAVE PRIOR TO REPORTING FOR TEMPORARY DUTY AND 11 DAYS' LEAVE UPON COMPLETION OF THE TEMPORARY DUTY WAS AUTHORIZED.

YOU DEPARTED FORT LEWIS, WASHINGTON, ON AUGUST 31, 1960. AT THAT TIME THE VERBAL ORDERS OF AUGUST 24, 1960, HAD BEEN ISSUED; HOWEVER, IT IS NOT APPARENT THAT THEY HAD BEEN RECEIVED AT FORT LEWIS SINCE YOU WERE ALLOWED TO RETAIN YOUR QUARTERS AND ORGANIZATIONAL EQUIPMENT THERE. YOU ARRIVED AT FORT HOLABIRD ON SEPTEMBER 17, 1960. ORDERS DATED DECEMBER 22, 1960, STATED THAT YOU WERE RELEASED FROM ASSIGNMENT AT PRESIDIO OF SAN FRANCISCO AND ASSIGNED TO PRESIDIO OF MONTEREY AND FURTHER STATED YOU WERE THEN ON TEMPORARY DUTY AT FORT LEWIS. AN AMENDMENT DATED JANUARY 6, 1961, STATED THAT YOU WERE RELEASED FROM ASSIGNMENT TO PRESIDIO OF SAN FRANCISCO WITH STATION AT FORT LEWIS AND THAT YOU WERE THEN ON TEMPORARY DUTY AT FORT HOLABIRD. HOWEVER, ORDERS DATED JANUARY 18, 1961, REVOKED THE ORDERS OF DECEMBER 22, 1960,AND JANUARY 6, 1961, AND DIRECTED YOU TO COMPLY WITH THE ORDERS OF JUNE 17, 1960, AS AMENDED. YOU DEPARTED FORT HOLABIRD IN A LEAVE STATUS ON JANUARY 19, 1961. BY DEPARTMENT OF THE ARMY MESSAGE DATED JANUARY 23, 1961, ADDRESSED TO YOU AT ANADARKO, OKLAHOMA, WHILE ON LEAVE, YOU WERE RELEASED FROM ASSIGNMENT AT PRESIDIO OF SAN FRANCISCO, CALIFORNIA, WITH STATION AT FORT LEWIS, WASHINGTON, EFFECTIVE UPON THE EXPIRATION OF YOUR LEAVE AND ASSIGNED TO PRESIDIO OF MONTEREY, CALIFORNIA, FOR THE PURPOSE OF ATTENDING A SIX MONTHS' COURSE OF INSTRUCTION. FOLLOWING RECEIPT OF THOSE ORDERS YOU TRAVELED FROM YOUR LEAVE ADDRESS TO FORT LEWIS TO SURRENDER YOUR QUARTERS AND TURN IN EQUIPMENT BEFORE REPORTING AT PRESIDIO OF MONTEREY.

YOU WERE PAID FOR TRAVEL FROM FORT HOLABIRD TO PRESIDIO OF MONTEREY. YOUR CLAIM FOR ADDITIONAL TRAVEL VIA FORT LEWIS, WASHINGTON, WAS DISALLOWED BY THE SETTLEMENT MENTIONED ABOVE FOR THE REASONS STATED THEREIN. YOUR REQUEST FOR REVIEW APPARENTLY IS BASED ON PUBLIC LAW 88- 238, APPROVED DECEMBER 23, 1963.

SECTION 1 OF THE ACT OF DECEMBER 23, 1963, PUB.L. 88-238, 77 STAT. 475, PROVIDES:

"* * * CHAPTER 7 OF TITLE 37, U.S.C. IS AMENDED AS FOLLOWS:

"/1) THE FOLLOWING NEW SECTION IS INSERTED AFTER SECTION 406:

" "SEC. 406A. TRAVEL AND TRANSPORTATION ALLOWANCES: AUTHORIZED FOR TRAVEL PERFORMED UNDER ORDERS THAT ARE CANCELED, REVOKED, OR MODIFIED

" "UNDER UNIFORM REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, A MEMBER OF A UNIFORM SERVICE IS ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES UNDER SECTION 404 OF THIS TITLE, AND TO TRANSPORTATION OF HIS DEPENDENTS, BAGGAGE, AND HOUSEHOLD EFFECTS UNDER SECTIONS 406 AND 409 OF THIS TITLE, IF OTHERWISE QUALIFIED, FOR TRAVEL PERFORMED BEFORE THE EFFECTIVE DATE OF ORDERS THAT DIRECT HIM TO MAKE A CHANGE OF STATION AND THAT ARE LATER---

" "/1) CANCELED, REVOKED, OR MODIFIED TO DIRECT HIM TO RETURN TO THE STATION FROM WHICH HE WAS BEING TRANSFERRED; OR

" "/2) MODIFIED TO DIRECT HIM TO MAKE A DIFFERENT CHANGE OF STATION.'"

SECTION 2 PROVIDES THAT THE ACT SHALL BE EFFECTIVE ON OCTOBER 1, 1949.

IMPLEMENTING REGULATIONS ARE CONTAINED IN PARAGRAPH 3003-LB OF THE JOINT TRAVEL REGULATIONS, CHANGE 139, AUGUST 1, 1964, AND PROVIDE IN PERTINENT PART AS FOLLOWS:

"B. EFFECTIVE DATE

"/2) MODIFIED, CANCELED, OR REVOKED ORDERS. FOR THE PURPOSE OF DETERMINING ENTITLEMENT TO ALLOWANCES FOR TRAVEL AND TRANSPORTATION UNDER PERMANENT CHANGE-OF-STATION ORDERS WHICH ARE MODIFIED, CANCELED, OR REVOKED PRIOR TO THEIR EFFECTIVE DATE, THE ORDERS WILL BE CONSIDERED AS EFFECTIVE WHEN RECEIVED FOR ANY TRAVEL PERFORMED THEREUNDER BY THE MEMBER OF HIS DEPENDENTS, OR ANY TRANSPORTATION OF HOUSEHOLD GOODS OR HOUSE TRAILERS COMMENCED OR COMPLETED THEREUNDER, EVEN THOUGH LEAVE, DELAY, PROCEED TIME, OR TEMPORARY DUTY EN ROUTE ARE INVOLVED.

"/3) ADJUSTMENT OF TRAVEL AND TRANSPORTATION ALLOWANCES FOR THE PERIOD 1 OCTOBER 1949 THROUGH 22 DECEMBER 1963 AUTHORIZED BY 37 U.S.C. 406A. FOR PERMANENT CHANGE-OF-STATION TRAVEL PERFORMED BY A MEMBER OR HIS DEPENDENTS, OR FOR TRANSPORTATION OF HOUSEHOLD GOODS OR HOUSE TRAILERS ON OR AFTER 1 OCTOBER 1949, UNDER ORDERS EFFECTIVE SUBSEQUENT TO SUCH DATE, A MEMBER OR FORMER MEMBER OF THE UNIFORMED SERVICES WHO WOULD HAVE BEEN ENTITLED TO TRAVEL OR TRANSPORTATION ALLOWANCES UNDER THE REGULATIONS APPLICABLE AT THE TIME THE TRAVEL OR TRANSPORTATION WAS PERFORMED HAD SUBPAR. (2) THEN BEEN IN EFFECT, WILL BE ENTITLED TO PAYMENT, OR REPAYMENT, OF SUCH ALLOWANCES, IF OTHERWISE PROPER, AND CLAIM THEREFOR IS SUBMITTED WITHIN 1 YEAR AFTER 23 DECEMBER 1963. CLAIMS WILL BE PROCESSED AND PAID IN ACCORDANCE WITH REGULATIONS OF THE SERVICE CONCERNED. HOWEVER, A MEMBER WHOSE ORDERS WERE EFFECTIVE ON 1 OCTOBER 1949 AND WHO TRAVELED ON THAT DATE PRIOR TO BEING NOTIFIED THAT HIS ORDERS WERE CANCELED, REVOKED, OR MODIFIED, WAS ENTITLED TO PAYMENT UNDER PRIOR LAWS AND IS NOT AFFECTED BY THIS LEGISLATION.'

UNDER THE ACT AND IMPLEMENTING REGULATIONS, A MEMBER IS ENTITLED TO THE TRANSPORTATION ALLOWANCE FOR HIS TRAVEL UPON A SHOWING THAT SUCH TRAVEL WAS PERFORMED BEFORE THE EFFECTIVE DATE OF THE ORDERS DIRECTING HIM TO MAKE A PERMANENT CHANGE OF STATION WHICH ARE LATER CANCELED, REVOKED, OR MODIFIED TO DIRECT HIM TO RETURN TO THE STATION FROM WHICH HE WAS BEING TRANSFERRED, OR THE ORDERS ARE MODIFIED TO DIRECT HIM TO MAKE A DIFFERENT CHANGE OF STATION.

IN YOUR CASE, WHILE THE ORDERS OF JUNE 17, 1960, REFERRED TO A PERMANENT CHANGE OF STATION THEY ACTUALLY EFFECTED ONLY A TRANSFER FOR RECORD PURPOSES FROM FORT LEWIS, WASHINGTON, TO PRESIDIO OF SAN FRANCISCO, CALIFORNIA, WITH TEMPORARY DUTY AT FORT HOLABIRD, MARYLAND. FORT LEWIS CONTINUED TO BE YOUR PERMANENT DUTY STATION TO WHICH YOU WERE TO RETURN UPON COMPLETION OF THE TEMPORARY DUTY AT FORT HOLABIRD. AT THE TIME YOU DEPARTED FORT HOLABIRD, YOUR TEMPORARY STATION, ON LEAVE, THE ORDERS OF JUNE 17, 1960, WERE IN EFFECT. WHILE YOU WERE ON LEAVE THE DEPARTMENT OF THE ARMY MESSAGE OF JANUARY 23, 1961, CHANGED YOUR PERMANENT STATION FROM FORT LEWIS TO PRESIDIO OF MONTEREY. YOU WERE NOT UNDER PERMANENT CHANGE OF STATION ORDERS WHEN YOU TRAVELED TO YOUR LEAVE POINT NOR WERE THE PERMANENT CHANGE OF STATION ORDERS OF JANUARY 23, 1961, SUBSEQUENTLY CHANGED BEFORE THEIR EFFECTIVE DATE. THUS, THERE WAS NOT INVOLVED TRAVEL PERFORMED BEFORE THE EFFECTIVE DATE OF ORDERS DIRECTING A PERMANENT CHANGE OF STATION WHICH WERE LATER CANCELED, REVOKED OR MODIFIED, AS REQUIRED BY THE ACT OF DECEMBER 23, 1963. SINCE THAT ACT DOES NOT APPLY IN SITUATIONS WHERE A MEMBER'S PERMANENT STATION IS CHANGED WHILE HE IS ON LEAVE FROM A TEMPORARY STATION IT AFFORDS NO BASIS FOR THE ALLOWANCE OF YOUR CLAIM.

IN YOUR CASE THERE IS FOR APPLICATION PARAGRAPH 4156, CASE 8 OF THE JOINT TRAVEL REGULATIONS, WHICH PROVIDES THAT IF A MEMBER ON TEMPORARY DUTY IS GRANTED A LEAVE OF ABSENCE, DURING WHICH HIS PERMANENT STATION IS CHANGED, THE TEMPORARY DUTY POINT WILL BE REGARDED AS THE OLD PERMANENT STATION IN THE COMPUTATION OF ALLOWANCES. IN THOSE CIRCUMSTANCES MILEAGE IS PAYABLE FROM THE TEMPORARY STATION TO THE NEW PERMANENT STATION. SINCE YOU WERE PAID ON THAT BASIS THE SETTLEMENT OF MARCH 26, 1962, IS SUSTAINED.