B-158410, FEB. 16, 1966

B-158410, FEB. 16, 1966

TO MAJOR THOMAS W. HALL, CE:

REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 17, 1966, REQUESTING RECONSIDERATION OF OUR SETTLEMENT DATED JANUARY 3, 1966, WHICH DISALLOWED YOUR CLAIM FOR ADDITIONAL TEMPORARY LODGING ALLOWANCE FOR THE PERIOD FROM JUNE 21 THROUGH JULY 10, 1965.

BY PARAGRAPH 6, SPECIAL ORDERS NO. 57, HEADQUARTERS UNITED STATES ARMY FORCES SOUTHERN COMMAND, FORT AMADOR, CANAL ZONE, DATED MARCH 24, 1965, YOU WERE REASSIGNED FROM VENEZUELA PROJECT, INTER AMERICAN GEODETIC SURVEY, CARACAS, VENEZUELA, TO FORT KNOX, KENTUCKY, AND DIRECTED TO REPORT FOR TRANSPORTATION BY COMMERCIAL VESSEL TO NEW YORK, NEW YORK, ON OR ABOUT JUNE 25, 1965. CONCURRENT TRAVEL OF DEPENDENTS WAS AUTHORIZED. PARAGRAPH 6, SPECIAL ORDERS NO. 130, DATED JULY 7, 1965, AMENDED YOUR PREVIOUS ORDERS TO PROVIDE FOR YOU AND YOUR DEPENDENTS TO REPORT FOR TRANSPORTATION BY COMMERCIAL VESSEL ON OR ABOUT JULY 14, 1965, AND PARAGRAPH 11, SPECIAL ORDERS NO. 137, DATED JULY 16, 1965, FURTHER AMENDED PREVIOUS ORDERS TO PROVIDE FOR YOU AND YOUR DEPENDENTS TO REPORT ON OR ABOUT JULY 23, 1965, FOR TRAVEL BY COMMERCIAL AIR TO MIAMI, FLORIDA.

THE RECORD SHOWS THAT ON JUNE 20, 1965, YOU MOVED YOUR FAMILY INTO TEMPORARY HOTEL-LIKE ACCOMMODATIONS IN CARACAS, VENEZUELA, IN ANTICIPATION OF DEPARTING FROM VENEZUELA BY COMMERCIAL VESSEL ON JUNE 30, 1965. HOWEVER, AS A RESULT OF A DOCK STRIKE AT CARACAS, YOU WERE REQUIRED TO REMAIN IN THESE QUARTERS UNTIL JULY 21, 1965, AT WHICH TIME YOU AND YOUR FAMILY FINALLY DEPARTED VENEZUELA. THE RECORD SHOWS FURTHER THAT YOU WERE PAID TEMPORARY LODGING ALLOWANCE FOR THE PERIOD FROM JULY 11 TO 20, 1965.

YOUR CLAIM FOR ADDITIONAL TEMPORARY LODGING ALLOWANCE FOR THE PERIOD FROM JUNE 21 TO JUNE 10, 1965, WAS DISALLOWED BY SETTLEMENT DATED JANUARY 3, 1966, FOR THE REASONS STATED THEREIN. YOUR LETTER DATED JANUARY 17, 1966, REQUESTED FAVORABLE CONSIDERATION OF YOUR CLAIM ON ITS MERITS, STATING THAT THE 10-DAY LIMITATION AS SET OUT IN PARAGRAPH M4303-2 (C) OF THE JOINT TRAVEL REGULATIONS WAS REASONABLE IN NORMAL CASES, BUT THE CHANGES IN YOUR TRAVEL ORDERS, OVER WHICH YOU HAD NO CONTROL, DELAYED YOUR DEPARTURE AN ADDITIONAL 21 DAYS AND YOU HAD TO REMAIN IN THE HOTEL AT CARACAS WITH YOUR FAMILY UNTIL DATE OF DEPARTURE, INCURRING ADDITIONAL EXPENSE FOR FOOD, LODGING AND OTHER SERVICES NECESSARY FOR YOUR FAMILY. YOU REQUESTED FURTHER THAT IF FAVORABLE CONSIDERATION CANNOT BE GIVEN YOUR CLAIM, IT BE RETURNED TO YOU WITH ADVICE AS TO WHERE YOU CAN SEEK RELIEF IN THE MATTER.

THE PERTINENT STATUTE, 37 U.S.C. 405, PROVIDES THAT THE SECRETARIES CONCERNED MAY AUTHORIZE THE PAYMENT TO MEMBERS OF THE UNIFORMED SERVICES ON DUTY OUTSIDE THE CONTINENTAL UNITED STATES OF A PER DIEM CONSIDERING ALL ELEMENTS OF COST OF LIVING OF MEMBERS AND THEIR DEPENDENTS, INCLUDING THE COST OF QUARTERS, SUBSISTENCE, AND OTHER NECESSARY INCIDENTAL EXPENSES. PARAGRAPH M4303-2C OF THE JOINT TRAVEL REGULATIONS ISSUED PURSUANT TO SUCH AUTHORITY AND IN EFFECT DURING THE PERIOD INVOLVED, PROVIDES THAT A TEMPORARY LODGING ALLOWANCE IS PAYABLE FOR THE PERIOD OF OCCUPANCY OF A HOTEL OR HOTEL-LIKE ACCOMMODATIONS AND THE USE OF PUBLIC RESTAURANTS BY THE MEMBER OR HIS DEPENDENTS, AFTER SURRENDER OF PERMANENT QUARTERS, FOR THE LAST 10 DAYS PRECEDING THE DATE OF DEPARTURE OF THE MEMBER FROM HIS PERMANENT DUTY STATION IN COMPLIANCE WITH CHANGE OF STATION ORDERS. THE PERTINENT ARMY REGULATIONS ARE CONTAINED IN ARMY REGULATIONS 37-104, WHICH PROVIDES IN PARAGRAPH 11011-D (2) AS FOLLOWS:

"/2) IMMEDIATELY PRECEDING DEPARTURE (TLA-DEP). TLA-DEP NOT TO EXCEED 10 DAYS IS AUTHORIZED WHEN MEMBER GIVES UP HIS GOVERNMENT QUARTERS OR OTHER PERMANENT LIVING ACCOMMODATIONS JUST BEFORE HE LEAVES FOR A PCS. THE PERIOD OF ENTITLEMENT BEGINS ON THE DAY IT IS NECESSARY TO OCCUPY TEMPORARY LODGING. IT IS THE LAST 10 DAYS BEFORE THE MEMBER LEAVES HIS PERMANENT DUTY STATION ON PCS ORDERS; EXCEPT, WHEN ONE OR MORE DEPENDENTS REMAIN AFTER THE MEMBER LEAVES, THE PERIOD WILL BE THE LAST 10 DAYS BEFORE THE DAY THE LAST DEPENDENT LEAVES OR THE EFFECTIVE DATE OF THE PCS ORDERS, WHICHEVER IS EARLIER. SEE PARAGRAPHS 3003 AND 4303-2C, JTR, FOR METHOD OF DETERMINING EFFECTIVE DATE OF ORDERS.'

UNDER SUCH REGULATIONS A MEMBER MAY NOT BE PAID TEMPORARY LODGING FOR MORE THAN 10 DAYS INCIDENT TO LEAVING HIS OVERSEAS STATION, EVEN THOUGH HE AND HIS DEPENDENTS MAY HAVE OCCUPIED HOTEL ACCOMMODATIONS FOR A LONGER PERIOD PRECEDING HIS DEPARTURE BECAUSE OF CIRCUMSTANCES BEYOND HIS CONTROL. SEE DECISIONS B-148321, DATED MARCH 28, 1962, AND B-149298, DATED AUGUST 6, 1962 (COPIES ENCLOSED). ALTHOUGH PARAGRAPH M4303-2 OF THE JOINT TRAVEL REGULATIONS WAS AMENDED EFFECTIVE AUGUST 25, 1965, BY CHANGE 154, DATED NOVEMBER 1, 1965 (WHICH CHANGE WAS SUBSEQUENT TO THE PERIOD INVOLVED IN YOUR CLAIM), TO PROVIDE FOR AN EXTENSION OF THE 60-DAY PERIOD OF ENTITLEMENT UPON INITIAL ASSIGNMENT, UPON THE ISSUANCE OF A SPECIAL DETERMINATION BY THE SECRETARY OF THE SERVICE CONCERNED AND THE CHAIRMAN OF THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE IN ACCORDANCE WITH REGULATIONS OF THE SERVICE CONCERNED, NO SIMILAR PROVISION WAS MADE FOR THE EXTENSION OF THE PERIOD OF ENTITLEMENT UPON DEPARTURE. ACCORDINGLY, THE SETTLEMENT OF JANUARY 3, 1966, IS SUSTAINED.

WITH RESPECT TO THE RETURN OF YOUR CLAIM, YOU ARE ADVISED THAT THE PAPERS ARE THE BASIS UPON WHICH OUR ACTION WAS TAKEN AND THUS HAVE BECOME A PART OF THE PERMANENT RECORDS OF OUR OFFICE AND THEREFORE MAY NOT BE RETURNED. 8 GAO MANUAL 2010.10. AS TO THE FURTHER PURSUIT OF YOUR CLAIM, YOU ARE ADVISED THAT UNDER THE PROVISIONS OF 31 U.S.C. 71, THE SETTLEMENT OF CLAIM AGAINST THE GOVERNMENT OF THE UNITED STATES IS THE RESPONSIBILITY OF THE GENERAL ACCOUNTING OFFICE AND OUR DECISIONS WITH RESPECT TO SUCH CLAIMS ARE CONCLUSIVE ON THE EXECUTIVE BRANCH OF THE GOVERNMENT. SEE IN THIS CONNECTION 31 U.S.C. 74. HOWEVER, CERTAIN CLAIMS MAY BE THE BASIS OF SUITS IN THE UNITED STATES COURT OF CLAIMS. SUCH SUITS MUST BE FILED WITHIN 6 YEARS AFTER THE CLAIM FIRST ACCRUED. SEE 28 U.S.C. 2501.