B-163270, MAR. 25, 1968

B-163270, MAR. 25, 1968

TO LIEUTENANT WILLIAM B. SOBECK:

BY ENDORSEMENT DATED DECEMBER 18, 1967, THE COMMANDANT, U.S. COAST GUARD, FORWARDED YOUR LETTER OF NOVEMBER 14, 1967, AND ENCLOSURES, REQUESTING RECONSIDERATION OF SETTLEMENT DATED DECEMBER 1, 1965, WHICH DISALLOWED YOUR CLAIM FOR TEMPORARY LODGING ALLOWANCE FOR THE PERIOD JUNE 9 TO AUGUST 4, 1964.

BY ORDERS DATED APRIL 23, 1964, YOU WERE DETACHED FROM YOUR ASSIGNMENT AS COMMANDER, GROUP HILO, AND REASSIGNED TO DUTY AS THE COMMANDING OFFICER OF THE USCGC CAPE PROVIDENCE (WPB-95335), AS A PERMANENT CHANGE OF STATION. THE ORDERS FURTHER REQUIRED YOU TO REPORT NOT LATER THAN JUNE 1, 1964, FOR TEMPORARY DUTY AS COMMANDING OFFICER OF THE VESSEL AT NAWILIWILI, KAUAI, HAWAII, UNTIL APPROXIMATELY AUGUST 1, 1964, WHICH WAS THE ESTIMATED DATE OF ARRIVAL OF THE CAPE PROVIDENCE AT PAGO PAGO, AMERICAN SAMOA.

MEMORANDUM ENDORSEMENT DATED MAY 22, 1964, ON THE ORDERS OF APRIL 23, 1964, STATES THAT YOU WERE ISSUED GOVERNMENT TRANSPORTATION REQUEST NO. 354744 FOR AIR TRAVEL FROM HILO, HAWAII, HAWAII, TO HONOLULU, OAHU, HAWAII, ONE WAY, FOR YOURSELF AND THREE OTHERS. FOURTH ENDORSEMENT DATED JUNE 1, 1964, STATES THAT YOU REPORTED THAT DAY TO THE CAPE PROVIDENCE FOR ASSIGNMENT TO DUTY IN ACCORDANCE WITH THE BASIC ORDERS. FIFTH ENDORSEMENT DATED AUGUST 14, 1964, STATES YOU WERE ISSUED GOVERNMENT TRANSPORTATION REQUEST NO. 355700 COVERING THE COST OF ONE WAY TRANSPORTATION FOR YOUR WIFE AND TWO CHILDREN VIA PAN AMERICAN AIRWAYS FROM HONOLULU, HAWAII, TO PAGO PAGO, AMERICAN SAMOA. ALSO, IT IS STATED THAT UPON ARRIVAL OF THE CAPE PROVIDENCE IN AMERICAN SAMOA ON AUGUST 4, 1964, YOUR TEMPORARY DUTY ASSIGNMENT WAS MADE PERMANENT.

BY OPERATING PLAN CHANGE ORDER 110-64 DATED JULY 9, 1964, THE PERMANENT STATION (HOME PORT) OF THE CAPE PROVIDENCE WAS CHANGED FROM NAWILIWILI, KAUAI, HAWAII, TO PAGO PAGO, AMERICAN SAMOA, EFFECTIVE "15 JULY 1964 OR AS SOON THEREAFTER AS PRACTICABLE.' BY LETTER DATED OCTOBER 6, 1964, FROM THE COMMANDANT, UNITED STATES COAST GUARD, OPERATING PLAN CHANGE ORDER 110 -64 OF JULY 9, 1964, WAS AMENDED TO DESIGNATE HONOLULU, HAWAII, AS THE HOME PORT OF THE CAPE PROVIDENCE FROM JUNE 9 TO AUGUST 4, 1964, THENCE TO PAGO PAGO, SAMOA.

IN THE COMMANDANT'S LETTER IT WAS STATED THAT THIS AMENDMENT WAS ISSUED PURSUANT TO THE REQUEST OF THE COMMANDER, FOURTEENTH COAST GUARD DISTRICT, IN LETTER OF AUGUST 19, 1964, IN ORDER THAT PERSONNEL OF THE CAPE PROVIDENCE WOULD BE ELIGIBLE FOR TEMPORARY LODGING ALLOWANCE THEREBY AVOIDING A FINANCIAL HARDSHIP ON THEIR FAMILIES. FURTHER, IT WAS EXPLAINED THAT A CHANGE IN HOME PORTS IN STAGES FROM NAWILIWILI TO HONOLULU TO PAGO PAGO WAS MADE NECESSARY BY UNUSUAL CIRCUMSTANCES IN REGARD TO THE LACK OF TEMPORARY HOUSING FOR DEPENDENTS IN PAGO PAGO, AMERICAN SAMOA. WITH RESPECT TO THIS, IT APPEARS FROM THE RECORD THAT THREE COAST GUARD FAMILIES WENT TO HONOLULU. PRESUMABLY, THE DEPENDENTS OF AT LEAST SOME OF THE OTHER MEMBERS WENT DIRECTLY TO PAGO PAGO.

YOUR CLAIM FOR TEMPORARY LODGING ALLOWANCE WAS DISALLOWED BY THE SETTLEMENT OF DECEMBER 1, 1965, FOR THE REASONS STATED THEREIN.

UNDER THE PERTINENT STATUTE, 37 U.S.C. 405, THE SECRETARIES OF THE UNIFORMED SERVICES MAY AUTHORIZE THE PAYMENT TO MEMBERS OF THE UNIFORMED SERVICES ON DUTY OUTSIDE THE UNITED STATES, OR IN HAWAII OR ALASKA, WHETHER OR NOT IN A TRAVEL STATUS, OF A PER DIEM CONSIDERING ALL ELEMENTS OF COST OF LIVING TO MEMBERS AND THEIR DEPENDENTS, INCLUDING THE COST OF QUARTERS, SUBSISTENCE, AND OTHER NECESSARY INCIDENTAL EXPENSES. REGULATIONS ISSUED UNDER THAT AUTHORITY ARE CONTAINED IN THE JOINT TRAVEL REGULATIONS.

THE PURPOSE OF THE TEMPORARY LODGING ALLOWANCE, AS STATED IN PARAGRAPH M4303 OF THE JOINT TRAVEL REGULATIONS, IS TO PARTIALLY REIMBURSE A MEMBER FOR THE MORE THAN NORMAL EXPENSES INCURRED AT HOTELS OR HOTEL-LIKE ACCOMMODATIONS AND PUBLIC RESTAURANTS UPON INITIAL ARRIVAL AT THE FOREIGN STATION PENDING COMPLETION OF PERMANENT LIVING ARRANGEMENTS, OR IMMEDIATELY PRECEDING DEPARTURE THEREFROM "ON PERMANENT CHANGE OF STATION" AND AFTER TERMINATION OF ASSIGNMENT TO GOVERNMENT QUARTERS OR SURRENDER OF OTHER PERMANENT LIVING ACCOMMODATIONS.

SECTION 411 (D) OF TITLE 37, U.S.C. PROVIDES IN PERTINENT PART THAT THE SECRETARY CONCERNED SHALL DEFINE THE WORDS "PERMANENT STATION," WHICH DEFINITION SHALL INCLUDE A SHORE STATION OR THE HOME YARD OR HOME PORT OF A VESSEL TO WHICH A MEMBER OF THE UNIFORMED SERVICES MAY BE ORDERED, AND THAT AN AUTHORIZED CHANGE IN THE HOME YARD OR HOME PORT OF SUCH A VESSEL IS A CHANGE OF PERMANENT STATION. PARAGRAPHS M1150-10A AND M3050 OF THE JOINT TRAVEL REGULATIONS AND DECISIONS OF THIS OFFICE RECOGNIZE THAT A VESSEL IS THE PERMANENT STATION OF A MEMBER WHO IS ASSIGNED TO DUTY ON BOARD SUCH VESSEL AND THAT THE HOME YARD AND HOME PORT OF THE VESSEL ARE PERMANENT STATIONS FOR THE PURPOSE OF TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS. 44 COMP. GEN. 262, 263.

IN THIS REGARD, IT HAS BEEN RECOGNIZED THAT A MEMBER ASSIGNED TO A VESSEL HAS TWO DUTY TATIONS; (1) HIS OWN ABOARD THE SHIP, CARRYING WITH IT A RIGHT TO MILEAGE AND OTHER TRAVEL ALLOWANCES FOR HIMSELF, MEASURED TO THE SHIP ITSELF AND (2) THE HOME YEARD OR HOME PORT OF THE VESSEL FOR THE PURPOSE OF ESTABLISHING A BASE ASHORE FOR DEPENDENTS, CARRYING WITH IT TRAVEL AND TRANSPORTATION ALLOWANCES FOR MOVEMENT OF DEPENDENTS AND HOUSEHOLD EFFECTS. PARAGRAPH B07A05-4, COAST GUARD TRAVEL MANUAL (CG-265) PROVIDES AS FOLLOWS:

"4. ORDERS INVOLVING CHANGE OF HOME PORT THE EFFECTIVE DATE OF ORDERS FOR A CHANGE IN HOME PORT OF A VESSEL OR OTHER MOBILE UNIT IS THE DATE SPECIFIED IN THE ORDERS ISSUED BY THE COMMANDANT (OFU) UPON WHICH SUCH CHANGE IS TO BECOME EFFECTIVE.'

IN THE ABSENCE OF EVIDENCE TO THE CONTRARY, IT IS ASSUMED THAT THE EFFECTIVE DATE OF THE ORDER OF JULY 9, 1964, FOR THE CHANGE OF HOME PORT OF THE CAPE PROVIDENCE WAS JULY 15, 1964, AS SPECIFIED IN THAT ORDER.

IT IS WELL SETTLED THAT OFFICIAL ORDERS PROVIDING A BASIS OF AUTHORITY FOR THE PAYMENT OF TRAVEL AND SUBSISTENCE ALLOWANCES MAY NOT BE REVOKED OR MODIFIED RETROACTIVELY SO AS TO INCREASE OR DECREASE THE RIGHTS WHICH HAVE BECOME FIXED UNDER THE APPLICABLE STATUTES OR REGULATIONS UNLESS ERROR IS APPARENT ON THE FACE OF THE ORDERS, OR ALL THE FACTS AND CIRCUMSTANCES CLEARLY DEMONSTRATE THAT SOME PROVISION PREVIOUSLY DETERMINED AND DEFINITELY INTENDED HAD BEEN OMITTED THROUGH ERROR OR INADVERTENCE IN PREPARING THE ORDERS. KATZER V UNITED STATES, 52 CT. CL. 32; 23 COMP. GEN. 713; 24 COMP. GEN. 439, AND 44 COMP. GEN. 405, 408.

THE RECORD SHOWS THAT OPERATING PLAN CHANGE ORDER 110-64 OF JULY 9, 1964, DESIGNATED PAGO PAGO AS THE HOME PORT OF THE CAPE PROVIDENCE WITH AN EFFECTIVE DATE SPECIFIED. FURTHER, THE RECORD SHOWS THAT THE ORDER- ISSUING AUTHORITY PREVIOUSLY DETERMINED AND DEFINITELY INTENDED THAT PAGO PAGO BE DESIGNATED AS THE HOME PORT OF THE CAPE PROVIDENCE AND THAT THERE WAS NO ERROR OR INADVERTENCE IN PREPARING THE ORDER OF JULY 9, 1964, SINCE THE PURPORTED AMENDMENT WAS NOT ISSUED UNTIL AFTER A REQUEST FOR SUCH AMENDMENT WAS MADE TO THE COMMANDANT, U.S. COAST GUARD BY THE COMMANDER, FOURTEENTH COAST GUARD DISTRICT, IN HIS LETTER OF AUGUST 19, 1964, FOR A REASON UNRELATED TO ERROR OF ISSUANCE.

MOREOVER, RECOGNITION OF SUCH AMENDMENT NECESSARILY WOULD MEAN THAT PAGO PAGO COULD NOT ALSO BE CONSIDERED THE HOME PORT OF THE CAPE PROVIDENCE DURING THE PERIOD JUNE 9 TO AUGUST 4, 1964. THEREFORE, THERE WOULD BE NO LEGAL BASIS TO ALLOW PERMANENT STATION COST-OF LIVING AND QUARTERS ALLOWANCES INCIDENT TO THE ORDERS OF JULY 9, 1964, TO THE OTHER MEMBERS WHOSE DEPENDENTS PRESUMABLY WENT DIRECTLY TO PAGO PAGO AS SUCH ACTION WOULD DIVEST THOSE MEMBERS OF THEIR RIGHT TO THE ALLOWANCES WHICH ACCRUED AND BECAME FIXED INCIDENT TO THE ORDERS OF JULY 9, 1964.

IN THESE CIRCUMSTANCES WE MUST VIEW THE PURPORTED AMENDATORY LETTER OF OCTOBER 6, 1964, AS BEING WITHOUT LEGAL EFFECT, WITH REGARD TO YOUR RIGHT TO THE ALLOWANCE CLAIMED.

CONCERNING YOUR STATEMENT IN THE ALTERNATIVE THAT THE REGULATIONS AUTHORIZE EXTENSION OF THE TEMPORARY LODGING ALLOWANCE BEYOND THE 10 DAY PERIOD WHEN A MEMBER IS REQUIRED TO VACATE HIS RESIDENCE AT HIS LAST PERMANENT DUTY STATION, SINCE FOR THE ABOVE STATED REASONS HILO WAS YOUR LAST PERMANENT DUTY STATION, WE MAY NOT CONSIDER YOUR CLAIM FOR TEMPORARY LODGING ALLOWANCE ON THE BASIS THAT HONOLULU WAS YOUR LAST PERMANENT DUTY STATION.

SINCE HONOLULU MAY NOT BE CONSIDERED THE HOME PORT OF THE CAPE PROVIDENCE FOR THE PERIOD JUNE 9 TO AUGUST 4, 1964, THE PAYMENT OF THE TEMPORARY LODGING ALLOWANCE CLAIMED IS NOT AUTHORIZED BY LAW.

ACCORDINGLY, THERE IS NO LEGAL BASIS TO ALLOW YOUR CLAIM. THE SETTLEMENT OF DECEMBER 1, 1965, IS SUSTAINED.