B-171875, MAR 18, 1971

B-171875, MAR 18, 1971

MILITARY PERSONNEL - TRAVEL ALLOWANCE - MISTAKE IN ORDERS ADVISING THAT DUE TO AN ERROR IN THE ORIGINAL ORDERS AUTHORIZING TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD GOODS INCIDENT TO TRANSFER OF MEMBER FROM OFFUTT AIR FORCE BASE, NEBRASKA, TO 6986 SECURITY GROUP, JAPAN, SERGEANT FREDERIC W. WEICHSELDORFER WAS NOT ENTITLED TO PAYMENT OF THE COSTS OF SHIPPING HIS HOUSEHOLD EFFECTS TO HOQUIAM, WASHINGTON. SINCE MEMBER DID NOT HAVE OVER 4 YEARS' SERVICE REQUIRED IN ORDER TO QUALIFY FOR THE PAYMENT OF THE EXPENSES, PAYMENT WILL NOT BE MADE.

TO CAPTAIN D. R. CHAMBERS:

REFERENCE IS MADE TO YOUR LETTER DATED NOVEMBER 13, 1970, REQUESTING A DECISION AS TO THE PROPRIETY OF PAYMENT OF DEPENDENT TRAVEL AND DISLOCATION ALLOWANCES TO SERGEANT FREDERIC W. WEICHSELDORFER, USAF, UNDER THE CIRCUMSTANCES PRESENTED. THE REQUEST HAS BEEN ASSIGNED PDTATAC CONTROL NO. 71-3 BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

BY SPECIAL ORDER NO. AA-2323, DATED APRIL 14, 1970, SERGEANT WEICHSELDORFER WAS TRANSFERRED FROM OFFUTT AIR FORCE BASE, NEBRASKA, TO 6986 SECURITY GROUP (USAFSS), JAPAN. THE ORDERS INDICATED THAT THE MEMBER HAD OVER 4 YEARS' SERVICE AND THAT HE ELECTED TO SERVE AN ACCOMPANIED TOUR, BUT THE WAITING PERIOD FOR TRANSPORTATION OF HIS DEPENDENTS WAS MORE THAN 20 WEEKS. THEREFORE, THE ORDERS PROVIDED THAT TRAVEL OF DEPENDENTS TO A DESIGNATED LOCATION WAS AUTHORIZED AND THAT SHIPMENT OF HOUSEHOLD GOODS TO A DESIGNATED LOCATION AND SUBSEQUENT SHIPMENT TO OVERSEAS WAS ALSO AUTHORIZED.

BY INDORSEMENT OF APRIL 20, 1970, TO HIS ORDERS, THE MEMBER WAS DIRECTED TO REPORT AT TRAVIS AIR FORCE BASE, CALIFORNIA, NOT LATER THAN 2300 JUNE 28, 1970, FOR AN OVERSEAS FLIGHT DEPARTING 0100 JUNE 29, 1970.

BY SPECIAL ORDER NO. AA-5404, DATED SEPTEMBER 16, 1970, THE ORIGINAL ORDERS OF APRIL 14, 1970, WERE AMENDED TO DELETE THE STATEMENTS INDICATING THAT THE MEMBER HAD OVER 4 YEARS' SERVICE, THAT HE ELECTED TO SERVE THE WITH DEPENDENTS TOUR, AND THAT SHIPMENT OF HOUSEHOLD GOODS TO A DESIGNATED LOCATION AND SUBSEQUENT SHIPMENT TO HIS OVERSEAS STATION WAS AUTHORIZED. THE EXPLANATION FURNISHED WAS THAT THE AMENDMENT WAS NEEDED DUE TO AN ADMINISTRATIVE ERROR IN THE INTERPRETATION OF A MESSAGE DATED MAY 20, 1970, FROM THE CHIEF OF STAFF, AIR FORCE.

IN A CERTIFIED STATEMENT DATED AUGUST 12, 1970, SERGEANT WEICHSELDORFER RELATED THAT PRIOR TO RECEIPT OF HIS ORDERS, HE WAS INFORMED AT HIS OLD STATION THAT HE WAS AUTHORIZED ALL BENEFITS AND ALLOWANCES OF AN E-4 GRADE, HAVING OVER 4 YEARS' SERVICE AT THE EFFECTIVE DATE OF ORDERS. STATED THAT HIS HOUSEHOLD GOODS WERE PICKED UP BY A GOVERNMENT CONTRACT CARRIER ON MAY 21, 1970, AND ULTIMATELY DELIVERED TO HIS DEPENDENTS' ADDRESS IN HOQUIAM, WASHINGTON. HOWEVER, ON JULY 6, 1970, AFTER REPORTING AT HIS NEW DUTY STATION IN JAPAN, HE SAYS HE WAS ADVISED THAT HIS ORDERS WERE IN ERROR SINCE HE DID NOT QUALIFY FOR DEPENDENT TRAVEL, DISLOCATION ALLOWANCE OR HOUSEHOLD GOODS SHIPMENT.

THE RECORD SHOWS THAT THE ORDER-ISSUING AUTHORITY, UPON BEING NOTIFIED BY THE MEMBER'S OVERSEAS STATION THAT HE HAD LESS THAN 4 YEARS' SERVICE AT THE TIME OF HIS TRANSFER, CONTENDED THAT ENTITLEMENT OF THE MEMBER MAY BE BASED UPON THE MESSAGE FROM THE CHIEF OF STAFF, AIR FORCE, DATED MAY 20, 1970, WHICH ADVISED THAT ENTITLEMENT FOR TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD GOODS WAS AUTHORIZED TO MEMBERS IN GRADE E-4 HAVING OVER 2 YEARS' SERVICE WITH AT LEAST 4 YEARS' ADDITIONAL OBLIGATED SERVICE. HOWEVER, UPON BEING SUBSEQUENTLY ADVISED THAT THE EFFECTIVE DATE OF SUCH CHANGE WAS JULY 1, 1970, AS SET OUT BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE IN JOINT DETERMINATION NO. 23-70, DATED MAY 5, 1970, THE AMENDATORY ORDERS DATED SEPTEMBER 16, 1970, WERE ISSUED.

IN YOUR LETTER OF NOVEMBER 13, 1970, YOU INDICATE THAT THE EVIDENCE PRESENTED SUPPORTS THE MEMBER'S STATEMENTS THAT HE WAS TOLD THAT HE WOULD BE ELIGIBLE FOR THE MOVEMENT OF HIS DEPENDENTS AND SHIPMENT OF HIS HOUSEHOLD GOODS ON THE EFFECTIVE DATE OF HIS PERMANENT CHANGE OF STATION AND THAT HE ACTED IN GOOD FAITH IN THE BELIEF THAT THE ORDERS WERE CORRECT. HOWEVER, YOU REQUEST A DECISION WHETHER PAYMENT MAY BE MADE IN VIEW OF THE ACTION TAKEN TO AMEND THE ORIGINAL ORDERS TO DELETE THE ERRONEOUS PROVISIONS.

SECTION 406 OF TITLE 37, U.S.C. PROVIDES IN PERTINENT PART THAT A MEMBER OF A UNIFORMED SERVICE ORDERED TO MAKE A CHANGE OF PERMANENT STATION IS ENTITLED TO TRANSPORTATION OF HIS DEPENDENTS AND HOUSEHOLD EFFECTS, SUBJECT TO SUCH CONDITIONS AND LIMITATIONS, FOR SUCH GRADES, RANKS, AND RATINGS, AND TO AND FROM SUCH PLACES PRESCRIBED BY THE SECRETARIES CONCERNED. SECTION 411(A) OF THAT TITLE PROVIDES THAT FOR THE ADMINISTRATION OF SECTION 406, AMONG OTHERS, THE SECRETARIES CONCERNED SHALL PRESCRIBE REGULATIONS THAT ARE, AS FAR AS PRACTICABLE, UNIFORM FOR ALL OF THE UNIFORMED SERVICES.

PARAGRAPH M7000, ITEM 1, JOINT TRAVEL REGULATIONS, PROMULGATED PURSUANT TO THE STATUTORY AUTHORITY CITED, PROVIDED PRIOR TO JULY 1, 1970, FOR THE TRANSPORTATION OF DEPENDENTS FOR MEMBERS OF THE UNIFORMED SERVICES UPON A PERMANENT CHANGE OF STATION EXCEPT FOR THOSE IN PAY GRADE E-4 WITH 4 YEARS' SERVICE OR LESS AND ENLISTED MEMBERS IN LOWER GRADES. PARAGRAPH M8003 OF THE REGULATIONS PRESCRIBED THE HOUSEHOLD GOODS WEIGHT ALLOWANCES THAT COULD BE SHIPPED AT GOVERNMENT EXPENSE BY MEMBERS IN PAY GRADES E-4 WITH MORE THAN 4 YEARS' SERVICE AND HIGHER GRADES INCIDENT TO A CHANGE OF STATION. PARAGRAPH M9001 OF THE REGULATIONS, RELATING TO ENTITLEMENT TO DISLOCATION ALLOWANCES, DEFINED A MEMBER WITH DEPENDENTS AS ONE IN PAY GRADE E-4 WITH MORE THAN 4 YEARS' SERVICE OR IN A HIGHER GRADE WHO HAS DEPENDENTS ENTITLED TO TRANSPORTATION IN CONNECTION WITH A PERMANENT CHANGE OF STATION. EFFECTIVE JULY 1, 1970, AS EVIDENCED BY CHANGE NO. 210 TO JOINT TRAVEL REGULATIONS, THESE PARAGRAPHS WERE AMENDED TO PROVIDE THAT MEMBERS IN PAY GRADE E-4 WITH OVER 2 YEARS' SERVICE AND WITH OBLIGATED CONTINUOUS ACTIVE SERVICE OF 6 YEARS OR MORE, ARE ENTITLED TO THE SAME PERMANENT CHANGE OF STATION BENEFITS AS THOSE ALREADY AUTHORIZED FOR MEMBERS IN GRADE E-4 WITH OVER 4 YEARS' SERVICE.

AS INDICATED IN THE SUPPORTING PAPERS YOU SUBMITTED, THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE JOINT DETERMINATION NO. 23-70, DATED MAY 5, 1970, STATED THAT SUCH DETERMINATION CHANGING PERMANENT CHANGE OF STATION ENTITLEMENTS FOR CERTAIN MEMBERS IN GRADE E 4 WOULD BECOME EFFECTIVE ON JULY 1, 1970, WHEN IT WOULD BE REPRINTED AS CHANGE NO. 210 TO THE JOINT TRAVEL REGULATIONS, VOLUME 1. THIS INFORMATION WAS DISSEMINATED AMONG THE AIR FORCE INSTALLATIONS BY CHIEF OF STAFF MESSAGE DATED MAY 20, 1970, A COPY OF WHICH WAS ALSO SUBMITTED.

IT IS WELL SETTLED THAT WHEN REGULATIONS ARE ISSUED, RIGHTS THEREUNDER BECOME FIXED AND ALTHOUGH SUCH REGULATIONS MAY BE AMENDED PROSPECTIVELY TO INCREASE OR DECREASE THE RIGHTS GIVEN THEREBY, THEY MAY NOT BE SO AMENDED RETROACTIVELY, EXCEPT TO CORRECT OBVIOUS ERRORS IN THE REGULATIONS WHICH IT IS INTENDED TO CORRECT. 33 COMP. GEN. 505 (1954); B-125300, JANUARY 26, 1956; B-142651, MAY 2, 1960; B-137617, JANUARY 12, 1965, AND B-157955, DECEMBER 10, 1965.

THE RECORD SHOWS THAT ON THE EFFECTIVE DATE OF THE ORDERS OF APRIL 16, 1970, SERGEANT WEICHSELDORFER DID NOT HAVE OVER 4 YEARS' SERVICE SO AS TO BE ENTITLED TO DEPENDENT TRANSPORTATION, SHIPMENT OF HOUSEHOLD GOODS AND DISLOCATION ALLOWANCE ON THAT BASIS. NOR WAS HE ELIGIBLE FOR THESE ENTITLEMENTS BY VIRTUE OF HAVING OVER 2 YEARS' SERVICE WITH OBLIGATED CONTINUOUS ACTIVE SERVICE OF 6 YEARS OR MORE ON THE EFFECTIVE DATE OF HIS ORDERS, SINCE AT THAT TIME, THE AMENDMENTS TO THE JOINT TRAVEL REGULATIONS, VOLUME 1, BY CHANGE NO. 210, DATED JULY 1, 1970, PROVIDING SUCH ENTITLEMENTS, HAD NOT BEEN ISSUED.

ACCORDINGLY, THERE IS NO AUTHORITY FOR THE PAYMENT OF THE MEMBER'S CLAIM FOR TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE AND DISLOCATION ALLOWANCE AS A MEMBER WITH DEPENDENTS AND THE SUBMITTED VOUCHER AND SUPPORTING PAPERS WILL BE RETAINED HERE.

THE RECORD BEFORE US DOES NOT DISCLOSE WHETHER THE MEMBER IS ENTITLED TO A DISLOCATION ALLOWANCE AS A MEMBER WITHOUT DEPENDENTS INCIDENT TO HIS TRANSFER, BUT IF IT SHOULD BE DETERMINED THAT HE IS ENTITLED TO SUCH ALLOWANCE THE AMOUNT DUE SHOULD BE CONSIDERED IN CONNECTION WITH THE LIQUIDATION OF ANY INDEBTEDNESS EXISTING ON ACCOUNT OF THE UNAUTHORIZED SHIPMENT OF HIS HOUSEHOLD EFFECTS TO HOQUIAM, WASHINGTON.