B-165319, OCT. 15, 1968

B-165319, OCT. 15, 1968

TO MASTER SERGEANT BERDIE R. CANION:

FURTHER REFERENCE IS MADE TO YOUR CLAIM FOR FAMILY SEPARATION ALLOWANCE, TYPE II, FOR THE PERIOD MARCH 24, 1965, THROUGH APRIL 3, 1967, WHILE YOU WERE SERVING AT HICKHAM AIR FORCE BASE, HAWAII, WHICH CLAIM WAS DISALLOWED BY SETTLEMENT DATED MARCH 22, 1968.

BY SPECIAL ORDER NO. 16, DATED JANUARY 21, 1965, YOU WERE TRANSFERRED FROM RANDOLPH AIR FORCE BASE, TEXAS, TO 1957 COMMUNICATIONS GROUP (AFCS), APO SAN FRANCISCO 96553 (HICKAM AIR FORCE BASE, HAWAII), AS A PERMANENT CHANGE OF STATION. THE ORDER DID NOT PROHIBIT TRANSPORTATION OF YOUR DEPENDENT (MOTHER) TO THE OVERSEAS STATION. IT APPEARS, HOWEVER, THAT YOUR MOTHER DID NOT TRAVEL TO YOUR OVERSEAS STATION. ORDERS RETURNING YOU FROM OVERSEAS HAVE NOT BEEN FURNISHED BUT YOU SAY YOU DEPARTED HICKAM AIR FORCE BASE ON MARCH 29, 1967. YOU WERE ASSIGNED TO WEBB AIR FORCE BASE, TEXAS, BY SPECIAL ORDER NO. A-624, DATED APRIL 14, 1967.

THE RECORD DOES NOT SHOW THAT YOU CLAIMED FAMILY SEPARATION ALLOWANCE, TYPE II, WHILE SERVING IN HAWAII. ON MAY 1, 1967, AFTER YOUR RETURN TO THE CONTINENTAL UNITED STATES, YOU CERTIFIED THAT WHEN TRANSFERRED FROM RANDOLPH AIR FORCE BASE TO HAWAII YOU ELECTED TO SERVE THE "ALL OTHERS" (UNACCOMPANIED) TOUR. YOU FURTHER STATED THAT WHILE YOU WERE NOT SURE A STATEMENT OF SUCH ELECTION WOULD BE FOUND IN YOUR RECORDS YOU BELIEVED PERSONNEL IN THE ASSIGNMENT SECTION AT RANDOLPH AIR FORCE BASE WOULD KNOW YOU HAD ELECTED THE "ALL OTHERS" TOUR. YOUR CLAIM WAS NOT ACCOMPANIED BY A CERTIFICATE OF ELECTION OF THE "ALL OTHERS" TOUR EXECUTED BY YOU PRIOR TO YOUR DEPARTURE FOR OVERSEAS SERVICE, AND IT APPEARS THAT NONE IS ON RECORD IN THE AIR FORCE. IN SUPPORT OF YOUR CONTENTION, HOWEVER, YOU FURNISHED A STATEMENT EXECUTED ON SEPTEMBER 12, 1967, BY AN AIRMAN, FIRST CLASS, STATING THAT YOU ELECTED THE "ALL OTHERS" TOUR BEFORE DEPARTING FOR HAWAII. YOU SAY THAT THIS AIRMAN WAS THE ADMINISTRATIVE CLERK, 2015TH COMMUNICATION SQUADRON, AT RANDOLPH AIR FORCE BASE AT THE TIME OF YOUR DEPARTURE FOR OVERSEAS SERVICE.

SINCE THAT STATEMENT, EXECUTED APPROXIMATELY 2-1/2 YEARS AFTER YOU DEPARTED RANDOLPH AIR FORCE BASE, WAS THE ONLY EVIDENCE SUBMITTED BY YOU TO SUPPORT YOUR CONTENTION THAT YOU SELECTED THE "ALL OTHERS" TOUR PRIOR TO DEPARTING RANDOLPH AIR FORCE BASE, THE AIR FORCE ACCOUNTING AND FINANCE CENTER, DENVER, COLORADO, ON JANUARY 30, 1968, FORWARDED YOUR CLAIM TO THIS OFFICE FOR SETTLEMENT BUT DID NOT RECOMMEND PAYMENT. YOUR CLAIM WAS DISALLOWED BY THE SETTLEMENT MENTIONED ABOVE FOR THE REASON STATED THEREIN.

ON SEPTEMBER 18, 1968, THE ACCOUNTING AND FINANCE CENTER SUBMITTED YOUR CLAIM FOR RECONSIDERATION FOR THE REASON THAT YOU HAD SUBMITTED SPECIAL ORDER M-3, DATED JULY 16, 1968, WHICH PURPORTS TO AMEND SPECIAL ORDER NO. 16 OF JANUARY 21, 1965, TO INCLUDE A STATEMENT THAT YOU ELECTED THE "ALL OTHERS TOUR.'

THE PERTINENT STATUTE, 37 U.S.C. 427 (B), PROVIDES FOR PAYMENT OF A FAMILY SEPARATION ALLOWANCE, DESIGNATED BY THE SERVICES AS TYPE II, TO CERTAIN MEMBERS UNDER SPECIFIED CIRCUMSTANCES INCLUDING WHEN "THE MOVEMENT OF HIS DEPENDENTS TO HIS PERMANENT STATION OR A PLACE NEAR THAT STATION IS NOT AUTHORIZED AT THE EXPENSE OF THE UNITED STATES UNDER SECTION 406 OF THIS TITLE" AND HIS DEPENDENTS DO NOT RESIDE AT OR NEAR THAT STATION. THE LEGISLATIVE HISTORY OF SECTION 427 (B) SHOWS THAT THE RATIONALE OF THE ALLOWANCE IS THAT "ENFORCED SEPARATION" OF SERVICEMEN FROM THEIR FAMILIES CAUSES ADDED HOUSEHOLD AND FAMILY EXPENSES WHERE THE MEMBER IS ABSENT FOR ANY SUBSTANTIAL PERIOD OF TIME.

SECTION 406 OF TITLE 37, U.S. CODE, PROVIDES IN EFFECT THAT A MEMBER OF THE UNIFORMED SERVICES WHO IS ORDERED TO MAKE A PERMANENT CHANGE OF STATION IS ENTITLED TO TRANSPORTATION IN KIND FOR HIS DEPENDENTS, REIMBURSEMENT THEREFOR OR A MONETARY ALLOWANCE IN LIEU OF TRANSPORTATION, SUBJECT TO SUCH CONDITIONS AND LIMITATIONS, FOR SUCH GRADES AND RATINGS, AND TO AND FROM SUCH PLACES AS MAY BE PRESCRIBED BY THE SECRETARIES CONCERNED. THE CONDITIONS AND LIMITATIONS ARE SET FORTH IN CHAPTER 7 OF THE JOINT TRAVEL REGULATIONS.

THE RECORD DOES NOT SHOW THAT YOUR DEPENDENT WAS NOT PERMITTED TO JOIN YOU AND THAT TRANSPORTATION WAS DENIED UNDER SECTION 406 OF TITLE 37 U.S.C. THUS, THE RECORD DOES NOT SHOW AN ENFORCED SEPARATION.

PARAGRAPH 10353, AIR FORCE MANUAL 177-105, 1964 EDITION, PROVIDES THAT ALL MEMBERS WITH DEPENDENTS WHO ARE SELECTED FOR PERMANENT CHANGE OF STATION TO AN OVERSEAS AREA WHERE DEPENDENTS ARE PERMITTED MUST ELECT WHETHER THEY WILL SERVE THE "ALL OTHERS" OR "WITH COMMAND SPONSORED DEPENDENTS" TOUR PRIOR TO DEPARTURE FROM THE CONTINENTAL UNITED STATES. WHERE THE MEMBER DOES NOT MAKE SUCH AN ELECTION PRIOR TO HIS DEPARTURE FROM THE UNITED STATES, HE WILL, INSOFAR AS ENTITLEMENT TO FAMILY SEPARATION ALLOWANCE IS CONCERNED, BE CONSIDERED AS SERVING THE "WITH COMMAND SPONSORED DEPENDENTS" TOUR.

SINCE THERE IS NO RECORD THAT YOU MADE THE REQUIRED ELECTION PRIOR TO YOUR DEPARTURE FROM THE CONTINENTAL UNITED STATES, IT MUST BE CONSIDERED THAT YOU WERE SERVING THE "WITH DEPENDENTS" TOUR SO FAR AS FAMILY SEPARATION ALLOWANCE IS CONCERNED NOTWITHSTANDING THAT YOU WERE RETURNED TO THE UNITED STATES AFTER TWO YEARS.

WITH RESPECT TO THE AMENDATORY ORDERS OF JULY 16, 1968, IT IS WELL SETTLED THAT OFFICIAL ORDERS PROVIDING A BASIS OF AUTHORITY FOR THE PAYMENT OF TRAVEL AND OTHER 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.

THERE IS NO ERROR APPARENT ON THE FACE OF THE ORDERS OF JANUARY 21, 1965, NOR IS THERE ANY ADMINISTRATIVE SHOWING OF FACTS TO DEMONSTRATE THAT SOME PROVISION PREVIOUSLY DETERMINED AND DEFINITELY INTENDED HAD BEEN OMITTED THROUGH ERROR OR INADVERTENCE IN PREPARING THE ORDER. IN THE CIRCUMSTANCES THE AMENDATORY ORDERS AFFORD NO BASIS FOR PAYMENT OF YOUR CLAIM.

ACCORDINGLY, YOU ARE ADVISED THAT THE SETTLEMENT DISALLOWING YOUR CLAIM IS SUSTAINED.