B-157967, FEB. 8, 1966

B-157967, FEB. 8, 1966

TO MR. LOYD M. LANDSDOWN:

REFERENCE IS AGAIN MADE TO YOUR LETTER OF OCTOBER 14, 1965, IN EFFECT REQUESTING RECONSIDERATION OF SETTLEMENT DATED SEPTEMBER 30, 1965, WHICH DISALLOWED YOUR CLAIM FOR DISLOCATION ALLOWANCE ON ACCOUNT OF THE RELOCATION OF YOUR HOUSEHOLD INCIDENT TO CHANGE OF HOME PORT OF YOUR SQUADRON, AEWRON ELEVEN (VW-11), FROM PATUXENT RIVER, MARYLAND, TO ARGENTIA, NEWFOUNDLAND, IN 1958 WHILE YOU WERE A MEMBER OF THE UNITED STATES NAVY.

BY ORDERS ISSUED IN APRIL 1958, THE MEMBERS OF AIRBORNE EARLY WARNING SQUADRON ELEVEN (VW-11) WERE DIRECTED TO PROCEED ON OR ABOUT MAY 1, 1958, FROM THE NAVAL AIR STATION, PATUXENT RIVER, MARYLAND, TO THE NAVAL AIR STATION, ARGENTIA, NEWFOUNDLAND, FOR TEMPORARY ADDITIONAL DUTY FOR A PERIOD OF APPROXIMATELY 3 MONTHS AND UPON COMPLETION THEREOF TO RETURN TO THEIR DUTY STATION. BY DISPATCH DATED APRIL 29, 1958, THE PERMANENT DUTY STATION OF THE SQUADRON WAS CHANGED TO THE NAVAL AIR STATION, ARGENTIA, AUGUST 1, 1958, BEING STATED AS THE EFFECTIVE DATE.

THE RECORD SHOWS THAT YOUR DEPENDENTS WERE NOT AUTHORIZED TO PERFORM CONCURRENT TRAVEL TO YOUR DUTY STATION AT ARGENTIA, AND THAT YOU WERE AWAY ON A LEAVE OF ABSENCE FROM JUNE 5 TO JULY 5, 1958. DURING THAT PERIOD YOU MOVED YOUR DEPENDENTS FROM LEXINGTON PARK, MARYLAND, TO JACKSON, TENNESSEE, THE TRAVEL HAVING BEEN PERFORMED DURING THE PERIOD FROM JUNE 24 TO 26, 1958. IT APPEARS THAT ON JUNE 18, 1958, ORDERS WERE ISSUED DIRECTING THAT YOU BE TRANSFERRED TO THE U.S. NAVAL MISSILE TEST CENTER, POINT MUGU, CALIFORNIA, FOR DUTY. PURSUANT THERETO, ORDERS OF SEPTEMBER 22, 1958, WERE ISSUED TRANSFERRING YOU TO POINT MUGU. YOU DEPARTED ARGENTIA OCTOBER 1 AND ARRIVED AT POINT MUGU OCTOBER 15, 1958, WITH YOUR DEPENDENTS. YOU WERE PAID TRAVEL ALLOWANCE AND A DISLOCATION ALLOWANCE OF $96.90 INCIDENT TO THE MOVEMENT OF YOUR DEPENDENTS TO JACKSON, TENNESSEE, AND ADDITIONAL TRAVEL ALLOWANCE TOGETHER WITH A SECOND DISLOCATION ALLOWANCE INCIDENT TO THEIR MOVEMENT TO POINT MUGU.

OUR AUDITORS ISSUED AN EXCEPTION TO THE DISLOCATION ALLOWANCE PAYMENT INCIDENT TO THE MOVEMENT OF YOUR DEPENDENTS TO TENNESSEE SINCE THE MOVE WAS MADE SUBSEQUENT TO THE ORDERS OF JUNE 18, 1958, PROVIDING FOR YOUR TRANSFER TO POINT MUGU, AND THE AMOUNT WAS CHECKED IN YOUR PAY ACCOUNT. ON NOVEMBER 12, 1964, YOU PRESENTED A CLAIM UNDER PUBLIC LAW 88-238 APPROVED DECEMBER 23, 1963, 37 U.S.C. 406A, FOR SUCH AMOUNT, STATING THAT THE ORDERS WHICH TRANSFERRED YOU TO ARGENTIA WERE MODIFIED TO ASSIGN YOU TO THE NAVAL MISSILE CENTER, POINT MUGU, BUT THAT YOU DID NOT RECEIVE THE MODIFYING ORDERS UNTIL JULY 5, 1958, WHEN YOU RETURNED TO ARGENTIA FROM THE PERIOD OF LEAVE.

THE 1963 ACT, 37 U.S.C. 406A, PROVIDES THAT UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, A MEMBER OF THE UNIFORMED SERVICES IS ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES (FOR HIS OWN TRAVEL) UNDER SECTION 404 OF THAT TITLE AND TO TRANSPORTATION OF HIS DEPENDENTS, BAGGAGE AND HOUSEHOLD EFFECTS UNDER SECTIONS 406 AND 409 OF THAT TITLE, IF OTHERWISE QUALIFIED, FOR TRAVEL PERFORMED BEFORE THE EFFECTIVE DATE OF ORDERS THAT DIRECT A PERMANENT CHANGE OF STATION AND THAT ARE LATER CANCELED OR MODIFIED TO DIRECT HIM TO RETURN TO THE STATION FROM WHICH HE WAS BEING TRANSFERRED, OR TO MAKE A DIFFERENT CHANGE OF STATION.

THE PAYMENT OF DISLOCATION ALLOWANCE TO A MEMBER WHOSE DEPENDENTS MAKE AN AUTHORIZED MOVE IN CONNECTION WITH HIS PERMANENT CHANGE OF STATION IS AUTHORIZED BY SECTION 407 OF TITLE 37, U.S. CODE. THE ACT OF DECEMBER 23, 1963, DOES NOT RELATE TO THAT ALLOWANCE AND CONSTITUTES NO AUTHORITY FOR PAYMENT THEREOF IN CASES OF REVOKED OR MODIFIED ORDERS. CONSEQUENTLY, IT PROVIDES NO LEGAL BASIS TO ALLOW YOUR CLAIM.

IN OUR DECISION OF APRIL 15, 1959, 38 COMP. GEN. 697, WE CONSIDERED THE EFFECTIVE DATE OF THE PERMANENT CHANGE OF STATION OF MEMBERS OF AEWRON ELEVEN (VW-11) UNDER THE ORDERS TO PROCEED TO THE NAVAL AIR STATION, ARGENTIA, NEWFOUNDLAND, FOR TEMPORARY ADDITIONAL DUTY ON OR BEFORE MAY 1, 1958, AND THE DISPATCH OF APRIL 29, 1958, RECEIVED APRIL 30, 1958, WHICH DESIGNATED THE TEMPORARY DUTY STATION AS A PERMANENT STATION EFFECTIVE AUGUST 1, 1958. SINCE NO FURTHER TRAVEL WAS REQUIRED OF THE MEMBERS ON TEMPORARY ADDITIONAL DUTY AT ARGENTIA WHEN THE DISPATCH WAS RECEIVED THERE ON APRIL 30, 1958, DESIGNATING THAT STATION AS THE PERMANENT DUTY STATION EFFECTIVE UPON COMPLETION OF THE TEMPORARY ADDITIONAL DUTY (AUGUST 1, 1958), WE CONCLUDED THAT THE MEMBERS WERE IN FACT AT THEIR ASSIGNED DUTY STATION UPON RECEIPT OF THE DISPATCH AND THAT APRIL 30, 1958, MUST BE CONSIDERED AS THE EFFECTIVE DATE OF THE CHANGE OF STATION FOR PURPOSES OF TRAVEL AND TRANSPORTATION ALLOWANCES. THEREFORE, YOUR TRANSFER TO ARGENTIA AND BECOME EFFECTIVE BEFORE THE ORDERS PROVIDING FOR YOUR TRANSFER TO POINT MUGU WERE ISSUED ON JUNE 18, 1958, AND THE 1963 ACT WOULD HAVE NO APPLICATION IN YOUR CASE EVEN IF DISLOCATION ALLOWANCE HAD BEEN INCLUDED AS ONE OF THE BENEFITS AUTHORIZED UNDER THE CIRCUMSTANCES PRESCRIBED IN THE ACT.

IT HAS BEEN HELD THAT AN ORDER, INDIVIDUAL IN ITS OPERATION, DOES NOT BECOME EFFECTIVE UNTIL DELIVERED TO THE PERSON CONCERNED, OR, IF ABSENT FROM HIS DUTY STATION FOR HIS OWN CONVENIENCE OR THROUGH HIS OWN FAULT, UPON THE DATE NOTICE OF THE ORDER IS RECEIVED AT HIS DUTY STATION. SEE 27 COMP. GEN. 176; 43 COMP. GEN. 833. THIS RULE APPEARS TO BE APPLICABLE IN YOUR CASE SINCE YOU WERE ON AUTHORIZED LEAVE FOR YOUR OWN CONVENIENCE AT THE TIME THE ORDERS OF JUNE 18, 1958, WERE ISSUED DIRECTING YOUR TRANSFER FROM AEWRON ELEVEN (VW-11) TO THE NAVAL MISSILE CENTER, POINT MUGU, CALIFORNIA. WHILE THE RECORD DOES NOT SHOW WHEN THE ORDERS OF JUNE 18, 1958, WERE RECEIVED AT AEWRON ELEVEN (VW-11), IN THE ABSENCE OF INFORMATION TO THE CONTRARY, IT MUST BE ASSUMED THAT IF YOU HAD NOT BEEN AWAY FROM YOUR DUTY STATION ON AUTHORIZED LEAVE YOU WOULD HAVE RECEIVED THIS INFORMATION BEFORE YOUR DEPENDENTS MOVED. ON THIS BASIS, YOU ARE CHARGEABLE WITH KNOWLEDGE OF THE ORDERS OF JUNE 18, 1958, AT THE TIME YOUR DEPENDENTS TRAVELED FROM LEXINGTON PARK, MARYLAND, TO JACKSON, TENNESSEE, DURING THE PERIOD JUNE 24 TO 26, 1958.

PAYMENT OF DISLOCATION ALLOWANCE IS AUTHORIZED INCIDENT TO AN AUTHORIZED MOVE OF A MEMBER'S DEPENDENTS FOR THE PURPOSE OF ESTABLISHING A BONA FIDE RESIDENCE. IF YOU HAD BEEN AT YOUR STATION AND RECEIVED ACTUAL NOTICE OF THE ORDERED TRANSFER TO POINT MUGU BEFORE MOVING YOUR DEPENDENTS TO JACKSON, PAYMENT OF DISLOCATION ALLOWANCE WOULD NOT HAVE BEEN AUTHORIZED INCIDENT TO THAT MOVE, WITH A SECOND PAYMENT OF THE ALLOWANCE INCIDENT TO THE FURTHER MOVE TO POINT MUGU, SINCE THE MOVE TO JACKSON OBVIOUSLY WOULD NOT HAVE BEEN FOR THE PURPOSE OF ESTABLISHING A BONA FIDE RESIDENCE THERE BUT WOULD HAVE BEEN IN THE NATURE OF A VISIT WHILE AWAITING THE FURTHER MOVE TO CALIFORNIA. THEREFORE, SINCE YOU WERE CHARGEABLE WITH KNOWLEDGE OF THE ORDERS BY REASON OF YOUR ABSENCE FROM YOUR STATION FOR YOUR PERSONAL CONVENIENCE, AND SINCE YOU HAVE BEEN PAID A DISLOCATION ALLOWANCE FOR THE RELOCATION OF YOUR HOUSEHOLD AT POINT MUGU UNDER THE ORDERS OF JUNE 18 AND SEPTEMBER 22, 1958, YOU ARE NOT ENTITLED TO ANOTHER DISLOCATION ALLOWANCE. WHILE THE RECORD NOW SHOWS THAT THE ASSISTANT SECRETARY OF THE NAVY APPROVED A FINDING THAT THE EXIGENCIES OF THE SERVICE REQUIRED YOUR TRANSFER TO POINT MUGU, SUCH APPROVAL PROVIDES NO LEGAL BASIS FOR PAYMENT OF THE ALLOWANCE CLAIMED INCIDENT TO THE MOVE TO JACKSON, TENNESSEE.

ACCORDINGLY, FOR THE REASONS SET FORTH ABOVE, THE DISALLOWANCE OF YOUR CLAIM MUST BE AND IS SUSTAINED. YOUR ORIGINAL ORDERS ARE RETURNED HEREWITH.