B-161141, JUN. 14, 1967

B-161141, JUN. 14, 1967

TO MAJOR PHILIP L. OZWALD, USA:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 17, 1967, AND ENCLOSURE, REQUESTING REVIEW OF SETTLEMENT DATED FEBRUARY 28, 1967, WHICH DISALLOWED YOUR CLAIM FOR ADDITIONAL TEMPORARY LODGING ALLOWANCE FOR THE PERIOD JULY 31 THROUGH AUGUST 4, 1966.

BY SPECIAL ORDER 53, DATED MAY 3, 1966, AS AMENDED, YOU WERE REASSIGNED FROM HEADQUARTERS U.S. ARMY ELEMENT AFCENT, APO NEW YORK 09011, TO HEADQUARTERS CONARC, FORT MONROE, VIRGINIA, AND DIRECTED TO REPORT TO THE HOTEL LITTRE, PARIS, FRANCE, ON JULY 31, 1966, FOR AIR TRANSPORTATION FOR YOURSELF AND YOUR DEPENDENTS. BY SPECIAL ORDERS 99, DATED JULY 29, 1966, THE DATE FOR YOU AND YOUR DEPENDENTS TO REPORT FOR AIR TRANSPORTATION WAS CHANGED FROM JULY 31, 1966 TO AUGUST 4, 1966. YOU WERE PAID TEMPORARY LODGING ALLOWANCE FOR THE PERIOD JULY 21 TO 30, 1966. IT IS REPORTED THAT YOUR RETURN TRANSPORTATION TO THE CONTINENTAL UNITED STATES WAS RESCHEDULED DUE TO THE LATE ARRIVAL OF YOUR REPLACEMENT IN THE OVERSEAS COMMAND ON JULY 28, 1966, WHO WAS ORIGINALLY DUE TO ARRIVE THERE JULY 20, 1966.

THE SETTLEMENT OF FEBRUARY 28, 1967 DISALLOWED YOUR CLAIM FOR THE REASON THAT THE JOINT TRAVEL REGULATIONS IN EFFECT DURING THE PERIOD INVOLVED PROVIDED THAT THE PERIOD OF ENTITLEMENT TO THE TEMPORARY LODGING ALLOWANCE WAS THE LAST 10 DAYS PRECEDING THE DAY OF DEPARTURE OF THE MEMBER FROM HIS STATION IN COMPLIANCE WITH ORDERS, AND THAT SINCE THE PERIOD OF YOUR CLAIM IS PRIOR TO SEPTEMBER 16, 1966, THE EFFECTIVE DATE OF A CHANGE IN THE REGULATIONS TO AUTHORIZE ENTITLEMENT TO ADDITIONAL TEMPORARY LODGING ALLOWANCE WHEN THE MEMBER'S DEPARTURE FROM HIS OLD STATION IS DELAYED THROUGH NO FAULT OF THE MEMBER OR HIS DEPENDENTS, SUCH EXCEPTION IS NOT APPLICABLE IN YOUR CASE. YOU SAY IN YOUR LETTER OF MARCH 17, 1967, THAT YOUR EXTENSION OF DUTY IN THE OVERSEAS COMMAND WAS SOLELY FOR THE CONVENIENCE OF THE GOVERNMENT AND SINCE THE ERROR, IF ANY, WAS CAUSED BY THE OVERSEAS COMMAND YOU FEEL THAT YOU HAVE A JUST CLAIM AGAINST THE GOVERNMENT.

SECTION 405 OF TITLE 37, U.S.C. PROVIDES THAT THE SECRETARIES CONCERNED MAY AUTHORIZE THE PAYMENT OF A PER DIEM, CONSIDERING ALL ELEMENTS OF THE COST OF LIVING TO MEMBERS OF THE UNIFORMED SERVICES UNDER THEIR JURISDICTION AND THEIR DEPENDENTS, INCLUDING THE COST OF QUARTERS, SUBSISTENCE AND OTHER NECESSARY INCIDENTAL EXPENSES, TO SUCH A MEMBER WHO IS ON DUTY OUTSIDE THE UNITED STATES OR IN HAWAII OR ALASKA, WHETHER OR NOT HE IS IN A TRAVEL STATUS.

PARAGRAPH 4303-2D OF THE JOINT TRAVEL REGULATIONS (CHANGE 162, DATED JULY 1, 1966), IN EFFECT DURING THE PERIOD INVOLVED, PROVIDED THAT THE 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 QUARTERS, FOR THE LAST 10 DAYS PRECEDING THE DAY OF DEPARTURE OF THE MEMBER FROM HIS PERMANENT DUTY STATION IN COMPLIANCE WITH PERMANENT CHANGE OF STATION ORDERS. PARAGRAPH 11011-D (2) OF ARMY REGULATIONS 37-104 PROVIDED, IN PART, 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 PSC ORDERS, WHICHEVER IS EARLIER.'

UNDER SUCH REGULATIONS A MEMBER WAS NOT ENTITLED TO BE PAID TEMPORARY LODGING ALLOWANCE 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).

PARAGRAPH M4303-2D OF THE JOINT TRAVEL REGULATIONS WAS AMENDED EFFECTIVE SEPTEMBER 16, 1966, (CHANGE 167, DATED DECEMBER 1, 1966), TO PROVIDE THAT WHEN THE PERIOD OF ENTITLEMENT AUTHORIZED BY SUBPARAGRAPH 1 BEGINS AND ACTUAL DEPARTURE IS DELAYED THROUGH NO FAULT OF THE MEMBER OR HIS DEPENDENTS, ADDITIONAL ENTITLEMENT MAY BE AUTHORIZED OR APPROVED BY THE COMMANDER CONCERNED OR HIS DESIGNEE, IN INCREMENTS OF 10 DAYS OR LESS, FOR THE ENTIRE PERIOD THAT TEMPORARY LODGINGS ARE REQUIRED TO BE UTILIZED. PARAGRAPH M4302-2D, AS AMENDED, ALSO PROVIDES THAT APPROVAL DETERMINATIONS EFFECTED UNDER THIS SUBPARAGRAPH MUST BE ISSUED NO LATER THAN THE 10TH DAY AFTER THE EARLIEST DAY COVERED THEREBY AND WILL NOT COVER ANY DAY PRIOR TO SEPTEMBER 16, 1966. SINCE THE PERIOD COVERED BY YOUR CLAIM IS PRIOR TO THIS DATE, THERE IS NO AUTHORITY TO PAY YOU TEMPORARY LODGING ALLOWANCE FOR MORE THAN THE 10 DAYS YOU HAVE RECEIVED.

ACCORDINGLY, THE SETTLEMENT OF FEBRUARY 28, 1967, DISALLOWING YOUR CLAIM WAS CORRECT AND IS ..END :