B-156123, APR. 27, 1965, 44 COMP. GEN. 655

B-156123, APR. 27, 1965, 44 COMP. GEN. 655

ORDERS - CANCELED, REVOKED, OR MODIFIED - PERSONAL CONVENIENCE REQUEST AN OFFICER OF THE UNIFORMED SERVICES WHO WHILE ON LEAVE PRIOR TO REPORTING FOR AN OVERSEAS ASSIGNMENT IS GRANTED A COMPASSIONATE DEFERMENT OF THE OVERSEAS ASSIGNMENT, REASSIGNED TO AN ACTIVITY WITHIN THE VICINITY OF HIS LEAVE ADDRESS, AND PAID PERSONAL TRAVEL FROM THE LEAVE ADDRESS TO THE NEW DUTY STATION IS NOT ENTITLED TO PERSONAL AND DEPENDENT TRAVEL AND DISLOCATION ALLOWANCE FROM THE OLD TO THE NEW DUTY STATION, THE REIMBURSEMENT ENTITLEMENT TO TRAVEL AND TRANSPORTATION ALLOWANCES AUTHORIZED BY THE ACT OF DECEMBER 23, 1963, WHEN TRAVEL IS PERFORMED BEFORE THE EFFECTIVE DATE OF CHANGE-OF-STATION ORDERS ACCRUING ONLY INCIDENT TO ORDERS THAT ARE CANCELED, REVOKED, OR MODIFIED FOR THE CONVENIENCE OF THE GOVERNMENT AND/OR IN CIRCUMSTANCES OVER WHICH THE MEMBER HAS NO CONTROL, AND THE MEMBER HAVING REQUESTED DEFERMENT OF HIS OVERSEAS ASSIGNMENT IS ENTITLED ONLY TO TRAVEL ALLOWANCES FROM HIS OLD TO HIS NEW DUTY STATION IN AN AMOUNT NOT TO EXCEED THE DISTANCE FROM THE PLACE OF LEAVE TO THE NEW DUTY STATION.

TO LIEUTENANT COLONEL P. M. CALLINAN, DEPARTMENT OF THE ARMY, APRIL 27, 1965:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 14, 1964, WITH ENCLOSURES, FORWARDED HERE BY THIRD INDORSEMENT OF FEBRUARY 8, 1965, OF THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE, IN WHICH YOU REQUEST AN ADVANCE DECISION AS TO THE LEGALITY OF PAYMENT OF TRAVEL AND TRANSPORTATION ALLOWANCES TO STAFF SERGEANT JAMES W. EDGINGTON, RA 19310114, UNDER THE CIRCUMSTANCES DESCRIBED. THE REQUEST WAS ASSIGNED PDTATAC CONTROL NO. 65-4 BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

BY PARAGRAPH 30, SPECIAL ORDERS NO. 98, HEADQUARTERS, FORT RILEY, FORT RILEY, KANSAS, DATED APRIL 25, 1960, THE MEMBER WAS RELIEVED FROM HIS DUTY ASSIGNMENT AT FORT RILEY, KANSAS, AND ORDERED TO PROCEED ON OR ABOUT APRIL 25, 1960, TO FORT DIX, NEW JERSEY, FOR FURTHER ASSIGNMENT TO UNITED STATES ARMY EUROPE. THE ORDERS AUTHORIZED THE MEMBER TO REPORT NOT LATER THAN MAY 9, 1960, WITH 8 DAYS' DELAY EN ROUTE CHARGEABLE AS ORDINARY LEAVE AND SHOWED THE MEMBER'S LEAVE ADDRESS AS PORTLAND, OREGON. BY PARAGRAPH 59, SPECIAL ORDERS NO. 102, DATED APRIL 29, 1960, THE MEMBER'S ORDERS OR APRIL 25, 1960, WERE AMENDED TO EXTEND THE LEAVE TO 30 DAYS, AND TO CHANGE THE PROCEED DATE TO MAY 4, 1960. SINCE THE MEMBER WAS REQUIRED TO REPORT AT FORT DIX, NEW JERSEY, ON JUNE 9, 1960, THE EFFECTIVE DATE OF THE ORDERS WOULD APPEAR TO BE NOT EARLIER THAN JUNE 6, 1960.

ON MAY 4, 1960, THE MEMBER AND HIS DEPENDENTS LEFT HIS OLD DUTY STATION, FORT RILEY, KANSAS, AND ARRIVED AT LEAVE POINT PORTLAND, OREGON, ON MAY 7, 1960. WHILE THERE, HE APPLIED TO THE ADJUTANT GENERAL, FORT LEWIS, WASHINGTON, FOR COMPASSIONATE DEFERMENT OF OVERSEAS ASSIGNMENT. APPEARS FROM THE RECORD THAT THE COMMANDING GENERAL, SIXTH U.S. ARMY, SAN FRANCISCO, CALIFORNIA, WAS ADVISED BY WIRE MESSAGE OF MAY 25, 1960, FROM THE ADJUTANT GENERAL TO RETAIN THE MEMBER AT FORT LEWIS, WASHINGTON, PENDING APPROVAL OF HIS APPLICATION. SUBSEQUENTLY, THE MEMBER'S DEFERMENT APPLICATION WAS APPROVED AND BY ORDERS DATED JUNE 22, 1960, HE WAS REASSIGNED FROM FORT RILEY, KANSAS, TO FORT LEWIS, WASHINGTON. THE MEMBER AND HIS DEPENDENTS COMPLETED THE TRAVEL TO FORT LEWIS AND THE MEMBER WAS PAID FOR HIS PERSONAL TRAVEL FROM PORTLAND TO FORT LEWIS BUT NO DEPENDENT TRAVEL OR DISLOCATION ALLOWANCE WAS PAID. HE NOW CLAIMS PERSONAL AND DEPENDENT TRAVEL AND DISLOCATION ALLOWANCE BASED ON HIS PERMANENT CHANGE OF STATION FROM FORT RILEY, KANSAS, TO FORT LEWIS, WASHINGTON.

IN YOUR LETTER YOU STATE THAT UNDER PUBLIC LAW 88-238, 77 STAT. 475, APPROVED DECEMBER 23, 1963, THE MEMBER MAY BE DUE REIMBURSEMENT FOR PERSONAL TRAVEL FROM FORT RILEY, KANSAS, TO FORT LEWIS, WASHINGTON, LESS THE SUM OF $7.68 PAID FOR HIS TRAVEL FROM PORTLAND TO FORT LEWIS AND THAT HE WOULD ALSO BE DUE DEPENDENT TRAVEL FROM FORT RILEY TO PORTLAND TO FORT LEWIS AND DISLOCATION ALLOWANCE. YOU EXPRESS DOUBT AS TO THE VALIDITY OF THE PERSONAL AND DEPENDENT TRAVEL PAYMENTS IN VIEW OF THE MEMBER'S REQUEST FOR COMPASSIONATE DEFERMENT OF OVERSEAS ASSIGNMENT. IT APPEARS TO BE YOUR VIEW THAT THE CHANGE OF STATION FROM FORT RILEY TO FORT LEWIS WAS MADE FOR THE MEMBER'S CONVENIENCE AND THEREFORE THE TRAVEL BENEFITS ARE NOT PAYABLE.

UNDER THE ACT OF DECEMBER 23, 1963, PUBLIC LAW 88-238, 77 STAT. 475, AND IMPLEMENTING REGULATIONS, A MEMBER IS ENTITLED TO TRANSPORTATION ALLOWANCE FOR HIS TRAVEL AND HIS DEPENDENTS' TRAVEL UPON A SHOWING THAT SUCH TRAVEL WAS PERFORMED BEFORE THE EFFECTIVE DATE OF THE ORDERS DIRECTING HIM TO MAKE A 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.

THE LEGISLATIVE HISTORY OF THE ACT REASONABLY SUPPORTS THE VIEW THAT ITS BENEFITS ARE TO ACCRUE WHEN THE ORDERS ARE CANCELED, OR MODIFIED BEFORE THEIR EFFECTIVE DATE FOR THE CONVENIENCE OF THE GOVERNMENT AND/OR IN CIRCUMSTANCES OVER WHICH THE MEMBER HAS NO CONTROL. SEE B 148585, FEBRUARY 28, 1964, AND B-154249, JUNE 11, 1964. THERE IS NO EVIDENCE OF A LEGISLATIVE INTENT TO EXTEND THE BENEFITS OF THE STATUTE IN SITUATIONS WHERE THE ORDERS ARE ISSUED OR CANCELED, OR REVOKED OR MODIFIED AT THE MEMBER'S OWN REQUEST. SINCE IT APPEARS FROM THE RECORD THAT THE ORDERS OF APRIL 25, 1960, AS AMENDED, WERE CANCELED BEFORE THEIR EFFECTIVE DATE AS THE RESULT OF THE MEMBER'S REQUEST FOR DEFERMENT PUBLIC LAW 88-238 IS NOT APPLICABLE TO THE CASE. AT THE TIME OF THE CANCELLATION OF THE ORDERS THE MEMBER WAS AT HIS LEAVE ADDRESS AT PORTLAND, OREGON, WHERE HE APPARENTLY WAS NOTIFIED OF THE CHANGE. IN SUCH CIRCUMSTANCES THE MEMBER WAS ENTITLED ONLY TO TRAVEL ALLOWANCES FROM FORT RILEY TO FORT LEWIS NOT TO EXCEED THE DISTANCE BETWEEN PORTLAND AND FORT LEWIS, WASHINGTON. SINCE HE WAS PAID FOR HIS TRAVEL FROM PORTLAND TO FORT LEWIS, THERE IS NO AUTHORITY TO ALLOW HIM TRAVEL ALLOWANCES FOR PERSONAL AND DEPENDENT TRAVEL PERFORMED FROM FORT RILEY, KANSAS, TO FORT LEWIS, WASHINGTON.

ACCORDINGLY, PAYMENT IS NOT AUTHORIZED ON THE VOUCHERS WHICH WILL BE RETAINED IN THIS OFFICE.