B-171975, APR 30, 1971

B-171975, APR 30, 1971

MILITARY EMPLOYEE - TRANSFERS - TEMPORARY QUARTERS ALLOWANCE DENYING CLAIM OF MEMBER OF THE ARMED FORCES FOR TEMPORARY LODGING ALLOWANCE BEYOND THE 60-DAY LIMIT ALLOWED FOLLOWING AN ASSIGNMENT AND THE 10-DAY LIMIT ALLOWED PRECEDING DEPARTURE, INCIDENT TO MEMBER'S CHANGE OF STATION FROM FORT DIX, N.J., TO ECUADOR AND THEN TO FORT EUSTIS, VA. UPON MEMBER'S INITIAL ASSIGNMENT TO ECUADOR, WHILE DRIVING A GOVERNMENT AUTOMOBILE, HE STRUCK AND KILLED A PEDESTRIAN. IN THE BEST INTERESTS OF THE U.S., HIS TRANSFER FROM ECUADOR WAS ARRANGED BUT WAS DELAYED BY THE ECUADORAN GOVERNMENT ON ACCOUNT OF DIFFICULTIES SURROUNDING THE ACCIDENT. THE REGULATIONS IN EFFECT AT THE TIME OF MEMBER'S DUTY IN ECUADOR MADE NO PROVISION FOR AUTHORIZING LODGING ALLOWANCES BEYOND THE MAXIMUM REGARDLESS OF CONDITIONS THAT ARE BEYOND THE CONTROL OF THE MEMBER.

TO SFC ANTONIO M. SOLA-ORTIZ:

IN A LETTER OF FEBRUARY 5, 1971, YOU REQUESTED A REVIEW OF THE SETTLEMENT OF SEPTEMBER 1, 1970, BY OUR CLAIMS DIVISION WHICH DISALLOWED YOUR CLAIM FOR ADDITIONAL TEMPORARY LODGING ALLOWANCE FOR A FOUR-MONTH PERIOD IN 1963 WHEN YOU WERE STATIONED IN QUITO, ECUADOR.

IT APPEARS THAT IN JUNE 1962, YOU WERE ORDERED ON TEMPORARY DUTY FROM FORT DIX, NEW JERSEY, TO ECUADOR AND WHILE THERE YOU WERE ASSIGNED ON A PERMANENT CHANGE OF STATION TO THE U.S. ARMY MISSION IN ECUADOR ON OCTOBER 12, 1962. IN APRIL 1963, YOUR WIFE AND SON TRAVELED FROM FORT DIX, NEW JERSEY, TO JOIN YOU. WHEN THEY ARRIVED ON APRIL 19, 1963, YOU FOUND TEMPORARY ACCOMMODATIONS IN A HOTEL WHERE YOU RESIDED WHILE AWAITING THE ARRIVAL OF HOUSEHOLD GOODS.

MEANWHILE, ON DECEMBER 20, 1962, WHILE DRIVING A GOVERNMENT AUTOMOBILE IN QUITO, YOU STRUCK A PEDESTRIAN WHO WAS AN ECUADORAN NATIONAL. ALTHOUGH THE PEDESTRIAN DIED JUNE 21, 1963, YOU ASSERT THAT YOU WERE CLEARED OF ALL LIABILITY FOR THE DEATH BY BOTH THE ECUADORAN GOVERNMENT AND THE UNITED STATES ARMY. HOWEVER, THE UNITED STATES AMBASSADOR DECIDED IN MAY 1963 THAT IT WOULD BE IN THE BEST INTEREST OF THE UNITED STATES TO TRANSFER YOU FROM ECUADOR.

YOU STATE THAT ON MAY 28 YOU RECEIVED A VERBAL ORDER FROM YOUR COMMANDING OFFICER NOT TO MOVE INTO PERMANENT HOUSING UNDER YOUR ORIGINAL ORDERS. ORDER FOR YOUR TRANSFER TO FORT EUSTIS, VIRGINIA, WAS ISSUED JUNE 4, 1963, BUT APPARENTLY THE DEPARTURE WAS DELAYED BY THE ECUADORAN GOVERNMENT ON ACCOUNT OF DIFFICULTIES SURROUNDING THE TRAFFIC ACCIDENT. YOU AND YOUR FAMILY CONTINUED TO RESIDE IN TEMPORARY LODGING IN QUITO UNTIL YOU WERE FINALLY ALLOWED TO LEAVE ECUADOR ON AUGUST 13, 1963. YOU HAVE BEEN PAID TEMPORARY LODGING ALLOWANCE FOR THE 60-DAY PERIOD FOLLOWING YOUR ASSIGNMENT TO ECUADOR AND FOR THE 10 DAY PERIOD PRECEDING YOUR DEPARTURE.

YOU CLAIM THAT YOU SHOULD RECEIVE PAYMENT OF TEMPORARY LODGING ALLOWANCE ON ACCOUNT OF THE HOTEL EXPENSE INCURRED DURING THE FOUR MONTHS FROM THE ARRIVAL OF YOUR DEPENDENTS IN ECUADOR ON APRIL 19, 1963, UNTIL YOU WERE ALLOWED TO LEAVE THE COUNTRY ON AUGUST 13, 1963. THE GROUNDS FOR YOUR CLAIM ARE SUPPORTED BY A LETTER OF JUNE 28, 1963, FROM YOUR FORMER MILITARY SUPERIOR, THE ACTING CHIEF OF THE MISSION IN QUITO.

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 OF THE UNITED STATES OR IN HAWAII OR ALASKA, WHETHER OR NOT HE IS IN A TRAVEL STATUS.

DURING THE PERIOD THAT YOU WERE STATIONED IN ECUADOR, REGULATIONS GOVERNING THE PAYMENT OF TEMPORARY LODGING ALLOWANCES WERE CONTAINED IN PARAGRAPH M4303 OF THE JOINT TRAVEL REGULATIONS, ISSUED PURSUANT TO THE ABOVE AUTHORITY. PARAGRAPH 4303-1 PROVIDED THAT TEMPORARY LODGING ALLOWANCES ARE AUTHORIZED FOR THE PURPOSE OF PARTIALLY REIMBURSING A MEMBER FOR THE MORE THAN NORMAL EXPENSES INCURRED AT HOTELS OR HOTEL LIKE ACCOMMODATIONS AND PUBLIC RESTAURANTS (1) UPON INITIAL ARRIVAL (REPORTING) AT A PERMANENT DUTY STATION OUTSIDE THE UNITED STATES AND PENDING ASSIGNMENT OF GOVERNMENT QUARTERS OR PENDING COMPLETION OF ARRANGEMENTS FOR OTHER PERMANENT LIVING ACCOMMODATIONS, AND (2) IMMEDIATELY PRECEDING DEPARTURE ON A PERMANENT CHANGE OF STATION FROM A PERMANENT STATION OUTSIDE THE UNITED STATES AND AFTER TERMINATION OF ASSIGNMENT TO GOVERNMENT QUARTERS OR AFTER SURRENDER OF OTHER PERMANENT ACCOMMODATIONS.

PARAGRAPH M4303-2(B) SPECIFICALLY PROVIDED THAT THE PERIOD OF ENTITLEMENT, UPON INITIAL ASSIGNMENT TO A PERMANENT DUTY STATION OUTSIDE THE UNITED STATES, WOULD NOT EXCEED 60 DAYS. PARAGRAPH M4303 2(C) PROVIDED THAT THE PERIOD OF ENTITLEMENT UPON DEPARTURE WOULD BE THE LAST 10 DAYS PRECEDING THE DEPARTURE OF THE MEMBER FROM HIS STATION IN COMPLIANCE WITH HIS ORDERS, EXCEPT THAT IF ONE OR MORE OF HIS DEPENDENTS REMAINED AFTER HIS DEPARTURE, THE PERIOD WOULD BE THE LAST 10 DAYS PRECEDING THE DEPARTURE OF THE LAST DEPENDENT OR THE EFFECTIVE DATE OF THE PERMANENT CHANGE-OF-STATION ORDERS, WHICHEVER WAS EARLIER.

THE REGULATIONS IN EFFECT AT THE TIME OF YOUR DUTY IN ECUADOR MADE NO PROVISION FOR AUTHORIZING OR APPROVING TEMPORARY LODGING ALLOWANCE BEYOND THE 60-DAY MAXIMUM UPON ARRIVAL AND THE 10-DAY MAXIMUM UPON DEPARTURE REGARDLESS OF ANY CONDITIONS WHICH WERE BEYOND THE CONTROL OF THE MEMBER. THEREFORE, SINCE YOU HAVE BEEN PAID FOR THE MAXIMUM PERIODS, NO FURTHER PAYMENT IS AUTHORIZED.

IT WILL BE NOTED FROM THE ENCLOSED COPIES OF DECISIONS, B-169449, MAY 14, 1970, AND B-161141, JUNE 14, 1967, THAT CERTAIN AMENDMENTS HAVE BEEN ISSUED TO PARAGRAPH M4303 OF THE REGULATIONS COMMENCING WITH CHANGE 154 EFFECTIVE AUGUST 25, 1965, WHICH PERMIT AN EXTENSION OF THE PERIODS OF ENTITLEMENT IN CERTAIN CIRCUMSTANCES BEYOND THE CONTROL OF THE MEMBER WHICH REQUIRE THE UTILIZATION OF HOTEL ACCOMMODATIONS. THESE AMENDMENTS ARE NOT RETROACTIVELY EFFECTIVE PRIOR TO THE DATE THEY WERE PROMULGATED, HOWEVER, AND PROVIDE NO BASIS FOR EXTENDING THE PERIOD OF ENTITLEMENT IN YOUR CASE.

ACCORDINGLY, THE SETTLEMENT OF SEPTEMBER 1, 1970, WHICH DISALLOWED YOUR CLAIM IS SUSTAINED.