B-159657, AUG. 22, 1966

B-159657, AUG. 22, 1966

TO SERGEANT RICHARD A. BUGBEE, E5, RA 11 296 314:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 28, 1966, AND ENCLOSURES, REQUESTING RECONSIDERATION OF SETTLEMENT DATED JANUARY 24, 1966, WHICH DISALLOWED YOUR CLAIM FOR ADDITIONAL TEMPORARY LODGING ALLOWANCE AND REIMBURSEMENT FOR TRANSPORTATION OF DEPENDENTS FROM FRANKFURT, GERMANY, TO NEW YORK, NEW YORK, ON OCTOBER 20 AND 21, 1964.

THE DATE ON WHICH YOU WERE DIRECTED TO REPORT TO BREMERHAVEN, GERMANY, FOR TRANSPORTATION TO THE UNITED STATES INCIDENT TO YOUR ASSIGNMENT FROM OVERSEAS TO THE U.S. ARMY ARMORED SCHOOL 2168, FORT KNOX, KENTUCKY, WAS CHANGED FROM SEPTEMBER 25, 1964, TO OCTOBER 31, 1964, AND LATER CHANGED TO NOVEMBER 14, 1964. YOU WERE PAID TEMPORARY LODGING ALLOWANCE FOR THE 10- DAY PERIOD SEPTEMBER 2 TO 11, 1964.

IN YOUR CLAIM YOU SAY THAT ON SEPTEMBER 2, 1964, YOUR HOUSEHOLD GOODS WERE PICKED UP AND THAT ON SEPTEMBER 5, 1964, YOU MOVED YOUR DEPENDENTS TO THE HOTEL VAIHINGER HOF, VAIHINGEN, GERMANY. ON SEPTEMBER 7, 1964, YOU MOVED YOUR FAMILY TO "PENSION-LANDHAUS" AUGUSSTE-MARGERATE, SCHWARZERD- BUCHENBERG, GERMANY, AND ON SEPTEMBER 21, 1964, YOU MOVED INTO THE GIESSLER HOTEL, STUTTGARD-BAD CANSTATT, GERMANY, WHERE YOU AND YOUR FAMILY REMAINED UNTIL OCTOBER 20, 1964, WHEN THEY RETURNED TO THE UNITED STATES VIA SCANDINAVIAN AIRLINES SYSTEM. WITH YOUR LETTER OF JUNE 28, 1966, YOU SUBMITTED A CERTIFICATE DATED APRIL 12, 1966, FROM THE MAINTENANCE OFFICER AT YOUR OVERSEAS STATION DURING THE PERIOD YOU WERE DELAYED IN RETURNING TO THE UNITED STATES, CERTIFYING THAT THE REASON FOR SUCH DELAY WAS HIS REQUEST FOR YOUR ASSISTANCE IN MAKING AN INVENTORY OF STATION PROPERTY. YOU SAY THAT FOR THIS REASON AND THE FACT THAT YOU BOOKED PASSAGE FOR YOUR DEPENDENTS THROUGH THE AMERICAN EXPRESS COMPANY, WHICH YOU ASSERT OPERATES AS A BANKING, TRAVEL AGENCY AND CURRENCY EXCHANGE FACILITY FOR MOST OF THE U.S. FORCES IN EUROPE, ALL REGULATIONS SHOULD BE CONSIDERED AS HAVING BEEN COMPLIED WITH BY YOU.

SECTION 405 OF TITLE 37, U.S.C. PROVIDES THAT THE SECRETARIES CONCERNED MAY AUTHORIZE THE PAYMENT OF A PER DIEM TO MEMBERS OF THE UNIFORMED SERVICES ON DUTY OUTSIDE THE CONTINENTAL UNITED STATES CONSIDERING ALL ELEMENTS OF COST OF LIVING OF MEMBERS AND THEIR DEPENDENTS, INCLUDING A COST OF QUARTERS, SUBSISTENCE, AND OTHER NECESSARY INCIDENTAL EXPENSES. IMPLEMENTING THOSE STATUTORY PROVISIONS PARAGRAPH M4303-2C OF THE JOINT TRAVEL REGULATIONS, PROVIDED DURING THE PERIOD INVOLVED THAT A TEMPORARY LODGING ALLOWANCE WAS PAYABLE FOR THE PERIOD OF OCCUPANCY OF HOTEL OR HOTEL-LIKE ACCOMMODATIONS AND THE USE OF PUBLIC RESTAURANTS BY THE MEMBER OR HIS DEPENDENTS, AFTER SURRENDER OF PERMANENT LIVING ACCOMMODATIONS, FOR THE LAST 10 DAYS PRECEDING THE DATE OF DEPARTURE OF THE MEMBER FROM HIS PERMANENT DUTY STATION IN COMPLIANCE WITH PERMANENT CHANGE OF STATION 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-158410, FEBRUARY 16, 1966; B-149298, AUGUST 6, 1962,COPIES ENCLOSED. THUS, THERE IS NO AUTHORITY TO PAY YOU TEMPORARY LODGING ALLOWANCE FOR MORE THAN THE 10 DAYS AUTHORIZED BY LAW EVEN THOUGH THE DELAY WAS BECAUSE OF CIRCUMSTANCES BEYOND YOUR CONTROL.

CHAPTER 7 OF THE JOINT TRAVEL REGULATIONS ISSUED TO IMPLEMENT THE STATUTORY AUTHORITY FOR TRANSPORTATION OF DEPENDENTS OF MILITARY PERSONNEL CONTAINED IN SECTION 406 OF TITLE 37, UNITED STATES CODE, PROVIDES IN PARAGRAPH M7000 THAT MEMBERS OF THE UNIFORMED SERVICES ARE ENTITLED TO TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE UPON A PERMANENT CHANGE OF STATION FROM THE OLD STATION TO THE NEW PERMANENT STATION OR BETWEEN POINTS OTHERWISE AUTHORIZED, WITH CERTAIN EXCEPTIONS INCLUDING THE FOLLOWING:

"7. FOR ANY PORTION OF TRAVEL PERFORMED BY A FOREIGN REGISTERED VESSEL OR AIRPLANE, IF AMERICAN REGISTERED VESSELS OR AIRPLANES ARE AVAILABLE BY THE USUALLY TRAVELED ROUTE.'

IN LINE WITH THIS EXCEPTION PARAGRAPH M2150 OF THE JOINT TRAVEL REGULATIONS REQUIRES THE USE OF VESSELS OR AIRCRAFT REGISTERED UNDER THE LAWS OF THE UNITED STATES FOR SUCH TRANSPORTATION UNLESS THEIR USE IS DETERMINED TO BE IMPRACTICAL OR THEY ARE UNAVAILABLE, FOR ALL TRAVEL AND TRANSPORTATION OUTSIDE THE CONTINENTAL UNITED STATES. SUCH REGULATORY PROVISIONS HAVE THE FORCE AND EFFECT OF LAW AND WE MAY MAKE NO EXCEPTION TO THEIR REQUIREMENTS IN THE SETTLEMENT OF CLAIMS BY OUR OFFICE. REIMBURSEMENT OF ANY PART OF THE EXPENSES INCURRED FOR YOUR DEPENDENTS' TRAVEL BY SCANDINAVIAN AIRLINES SYSTEM TO THE UNITED STATES IS CLEARLY PROHIBITED BY PARAGRAPHS M7000 AND M2150 OF THE JOINT TRAVEL REGULATIONS IN THE ABSENCE OF AN OFFICIAL DETERMINATION THAT THE TRAVEL INVOLVED COULD NOT HAVE BEEN PERFORMED ON OTHERWISE AVAILABLE SHIPS OR AIRCRAFT REGISTERED UNDER THE LAWS OF THE UNITED STATES.

ACCORDINGLY, THE SETTLEMENT OF JANUARY 24, 1966, WAS CORRECT AND IS SUSTAINED.