B-158007, DEC. 21, 1965

B-158007, DEC. 21, 1965

TO ALBERT B. MAXWELL, A2C, UNITED STATES AIR FORCE:

REFERENCE IS MADE TO YOUR LETTER DATED OCTOBER 18, 1965, REQUESTING RECONSIDERATION OF OUR SETTLEMENT DATED JULY 14, 1965, WHICH DISALLOWED YOUR CLAIM FOR ADDITIONAL TRAVEL ALLOWANCE UNDER THE PROVISIONS OF PUBLIC LAW 88-238, APPROVED DECEMBER 23, 1963, 77 STAT. 475.

BY SPECIAL ORDER AB-4555, HEADQUARTERS, KEESLER TECHNICAL TRAINING CENTER (ATC), UNITED STATES AIR FORCE, KEESLER AIR FORCE BASE, MISSISSIPPI, DATED NOVEMBER 7, 1961, YOU WERE RELIEVED FROM ASSIGNMENT AT THAT STATION AND WERE ASSIGNED TO 2146 COMM SQ. CSO, APO 970, SAN FRANCISCO, CALIFORNIA. DELAY EN ROUTE CHARGEABLE AS LEAVE WAS AUTHORIZED. YOU WERE DIRECTED TO LEAVE THE OLD STATION NOT EARLIER THAN NOVEMBER 16, 1961, AND REPORT AT TRAVIS AIR FORCE BASE, CALIFORNIA, NOT LATER THAN DECEMBER 24, 1961, FOR A FLIGHT DEPARTING THAT DAY. PARAGRAPH 1, SPECIAL ORDER AB-5244, SAME HEADQUARTERS, DATED DECEMBER 19, 1961, RELIEVED YOU OF YOUR ASSIGNMENT UNDER SPECIAL ORDER AB-4555, AND ASSIGNED YOU TO 2045 COMM GP. AFCS, ANDREWS AIR FORCE BASE, MARYLAND, WITH DIRECTION TO REPORT NOT LATER THAN JANUARY 5, 1962. YOU APPARENTLY RECEIVED NOTICE ON DECEMBER 20, 1961, OF THE CHANGE IN STATION ASSIGNMENT MADE BY THE ORDERS OF DECEMBER 19, 1961, WHILE YOU WERE AT NOVATO, CALIFORNIA, EN ROUTE TO TRAVIS AIR FORCE BASE.

ALTHOUGH YOU WERE PAID ADVANCE TRAVEL IN THE AMOUNT OF $156.60 FOR THE DISTANCE FROM KEESLER AIR FORCE BASE, MISSISSIPPI, TO TRAVIS AIR FORCE BASE, CALIFORNIA, PURSUANT TO THE ORDERS DATED NOVEMBER 7, 1961, IT WAS DETERMINED THAT YOU WERE ENTITLED TO AN ALLOWANCE OF BUT $63.72 FOR THE DISTANCE FROM KEESLER AIR FORCE BASE TO ANDREWS AIR FORCE BASE, MARYLAND, THAT BEING THE ONLY TRAVEL REQUIRED BECAUSE OF THE MODIFYING ORDERS OF DECEMBER 19, 1961, SINCE THE TRAVEL EXCEEDING THAT DISTANCE WAS CONSIDERED AS PERFORMED INCIDENT TO THE LEAVE AUTHORIZED IN THE FIRST ORDERS. SEE 33 COMP. GEN. 289. ACCORDINGLY, THE OVERPAYMENT OF $92.88 WAS COLLECTED FROM YOUR MILITARY PAY ACCOUNT.

IN YOUR CLAIM DATED FEBRUARY 11, 1965, FOR ADDITIONAL TRAVEL ALLOWANCE UNDER THE PROVISIONS OF PUBLIC LAW 88-238, YOU STATED THAT YOU ATTEMPTED TO HAVE YOUR CLAIM WRITTEN UP BY THE LEGAL OFFICE AT ANDREWS AIR FORCE BASE IN AUGUST 1962 AND AGAIN AT THE LEGAL OFFICE IN FONTAINEBLEAU, FRANCE, IN JUNE 1963, BUT YOU RECEIVED NO ANSWERS. YOU STATED FURTHER THAT YOU WERE LATER TRANSFERRED TO A SMALL RADIO SITE IN LUXEMBOURG, WHERE NO LEGAL OR FINANCIAL HELP WAS AVAILABLE, AND THAT WHILE THERE DURING THE PERIOD FROM JULY 1963 TO NOVEMBER 1964 YOU WROTE MANY LETTERS TO FONTAINEBLEAU BUT RECEIVED NO ANSWERS. FINALLY, YOU SAY THAT WHEN YOU ARRIVED AT EGLIN AIR FORCE BASE, FLORIDA, IN DECEMBER 1964, YOU WERE ADVISED THAT YOU WERE NO LONGER ELIGIBLE FOR ANY BENEFITS UNDER PUBLIC LAW 88-238 SINCE IT WAS MORE THAN ONE YEAR AFTER THAT ACT HAD BEEN PASSED. A LETTER DATED JUNE 23, 1965, FROM THE AIR FORCE ACCOUNTING AND FINANCE CENTER, DENVER, COLORADO, TRANSMITTING YOUR CLAIM, IT WAS ADMINISTRATIVELY REPORTED THAT NO INFORMATION HAD BEEN RECEIVED FROM THE LEGAL OFFICERS AT EITHER ANDREWS AIR FORCE BASE, WASHINGTON, OR YOUR OVERSEAS STATION IN RESPONSE TO INQUIRIES CONCERNING YOUR CLAIM.

YOUR CLAIM WAS DISALLOWED BY THE SETTLEMENT OF JULY 14, 1965, FOR THE REASON THAT IT WAS NOT SUBMITTED WITHIN ONE YEAR FROM DECEMBER 23, 1963, THE DATE OF APPROVAL OF PUBLIC LAW 88-238, AS REQUIRED BY SECTION 2 OF THAT ACT. WITH YOUR LETTER OF OCTOBER 18, 1965, REQUESTING RECONSIDERATION OF YOUR CLAIM, YOU SUBMITTED AN AFFIDAVIT IN WHICH YOU AGAIN RECITE YOUR EFFORTS TO FILE A CLAIM AT FONTAINEBLEAU, AND WHILE IN LUXEMBOURG BY THE USE OF ALL AVAILABLE MEANS OF COMMUNICATION, AND AVER THAT UPON YOUR RETURN TO FONTAINEBLEAU IN NOVEMBER 1964, YOU FOUND THE LEGAL OFFICE NO LONGER EXISTED AND THAT RECORDS CONCERNING YOUR CLAIM WERE UNAVAILABLE. AS PROOF THAT YOU FILED YOUR CLAIM WITHIN THE REQUIRED PERIOD, YOU ENCLOSED A STATEMENT BY TECHNICAL SERGEANT ALFRED KAPA, AIR FORCE, WHO STATES HE WAS THE NONCOMMISSIONED OFFICER IN CHARGE AT YOUR STATION AT LUXEMBOURG FROM MAY 1963 UNTIL DECEMBER 1964, AND CERTIFIES THAT YOU HAD TRIED TO GET THE LEGAL OFFICE AT FONTAINEBLEAU TO ASSIST YOU WITH YOUR CLAIM BY USE OF THE MICROWAVE SYSTEM AND BY MESSAGES WITH PERSONNEL WHO WERE GOING BACK TO THAT STATION FROM TIME TO TIME.

PUBLIC LAW 88-238, APPROVED DECEMBER 23, 1963, 77 STAT. 475, CODIFIED AS 37 U.S.C. 406A, PROVIDES IN SECTION 1 THAT UNDER UNIFORM REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, A MEMBER OF THE UNIFORMED SERVICE IS ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES, 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 MODIFIED TO DIRECT HIM TO MAKE A DIFFERENT CHANGE OF STATION. SECTION 2 PROVIDES THAT THE ACT IS EFFECTIVE FROM OCTOBER 1, 1949, AND THAT ANY MEMBER OR FORMER MEMBER WHO, AFTER SEPTEMBER 30, 1949, BUT BEFORE THE DATE OF ENACTMENT OF THAT ACT, HAS NOT BEEN PAID, OR HAS REPAID THE UNITED STATES, AN AMOUNT TO WHICH HE OTHERWISE WOULD HAVE BEEN ENTITLED HAD SECTION 1 OF THE ACT BEEN IN EFFECT DURING THAT PERIOD, IS ENTITLED TO BE PAID OR REPAID THAT AMOUNT, IF OTHERWISE PROPER AND HE APPLIES FOR THE PAYMENT OR REPAYMENT WITHIN ONE YEAR AFTER THE DATE OF ENACTMENT OF THE ACT. APPLICABLE REGULATIONS ARE CONTAINED IN PARAGRAPH M3003-1B (3), JOINT TRAVEL REGULATIONS, WHICH PROVIDES THAT SUCH CLAIMS MUST BE SUBMITTED WITHIN ONE YEAR AFTER DECEMBER 23, 1963, AND WILL BE PROCESSED AND PAID IN ACCORDANCE WITH REGULATIONS OF THE SERVICE CONCERNED.

WHILE YOU HAVE FURNISHED YOUR STATEMENT AND THAT OF ANOTHER AIRMAN THAT YOU APPLIED TO A BASE LEGAL OFFICER AT YOUR OVERSEAS STATION FOR ASSISTANCE IN MAKING A CLAIM FOR REFUND UNDER PUBLIC LAW 88-238 WITHIN THE ONE YEAR PERIOD FIXED BY THAT ACT, IT IS ADMINISTRATIVELY REPORTED THAT NO INFORMATION IS AVAILABLE AS TO WHETHER SUCH APPLICATION WAS EVER FILED. IN THE ABSENCE OF SOME OFFICIAL RECOGNITION THAT A PROPER CLAIM WAS ACTUALLY PRESENTED BY YOU FOR THE ADDITIONAL TRAVEL ALLOWANCE WITHIN THE ONE YEAR PERIOD ENDING DECEMBER 23, 1964, THERE IS NO BASIS UPON WHICH WE MAY GIVE YOUR CLAIM FAVORABLE CONSIDERATION.

ACCORDINGLY, ON THE PRESENT RECORD, THE SETTLEMENT OF JULY 14, 1965, IS SUSTAINED.