B-173865, FEB 18, 1972, 51 COMP GEN 509

B-173865, FEB 18, 1972, 51 COMP GEN 509

TRANSPORTATION - HOUSEHOLD EFFECTS - MILITARY PERSONNEL - ELECTION OF BENEFITS - IRREVOCABLE THE ELECTION BY AN ARMY RESERVE SECOND LIEUTENANT INCIDENT TO GRADUATION FROM OFFICER CANDIDATE SCHOOL AT FORT BENNING AND ASSIGNMENT TO 2 YEARS' ACTIVE DUTY THERE, TO MOVE HIS HOUSEHOLD GOODS RATHER THAN HIS HOUSETRAILER FROM HIS HOME OF RECORD TO COLUMBUS, GEORGIA, WHERE HE HAD RENTED AN APARTMENT, BECAUSE HE ANTICIPATED DUTY IN VIETNAM, MAY NOT BE REVOKED WHEN THE OVERSEAS ORDERS WERE CANCELLED, AND THE MEMBER PAID THE TRAILER ALLOWANCE AUTHORIZED IN 37 U.S.C. 409 IN LIEU OF A DISLOCATION ALLOWANCE AND SHIPMENT OF BAGGAGE AND HOUSEHOLD GOODS. UNLESS ERRONEOUSLY INFORMED OF BENEFITS AND ELECTION IS IRREVOCABLE, FOR AN ADDITIONAL ELECTION OR REELECTION MAY NOT BE AUTHORIZED, AND FINALITY IN THE SETTLEMENT OF CLAIMS IS ESSENTIAL. SINCE THE MEMBER WAS AWARE OF THE AMOUNTS PAYABLE WHATEVER HIS ELECTION AND HE CHOSE TO MOVE HIS HOUSEHOLD GOODS AS THE MOST BENEFICIAL ARRANGEMENT FOR HIM, HE IS NOT ENTITLED TO AN ADJUSTMENT OF COST.

TO LIEUTENANT COLONEL R. E. VANDERLIKE, DEPARTMENT OF THE ARMY, FEBRUARY 18, 1972:

WE REFER FURTHER TO YOUR LETTER DATED MAY 20, 1971, WITH ATTACHMENTS, FORWARDED HERE BY INDORSEMENT DATED AUGUST 13, 1971, OF THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE (CONTROL NO. 71-32), IN WHICH YOU REQUEST AN ADVANCE DECISION REGARDING THE ENTITLEMENT OF SECOND LIEUTENANT DANIEL A. BIGLEY, USAR, TO REIMBURSEMENT OF THE COST OF TRANSPORTING HIS HOUSE TRAILER FROM DAMARISCOTTA, MAINE, TO COLUMBUS, GEORGIA.

AFTER GRADUATION FROM THE OFFICER CANDIDATE SCHOOL AT FORT BENNING, GEORGIA, LIEUTENANT BIGLEY WAS ORDERED TO 2 YEARS' ACTIVE DUTY AND WAS ASSIGNED TO FORT BENNING BY SPECIAL ORDERS NUMBER 105, MAY 6, 1970, HEADQUARTERS THE CANDIDATE BRIGADE, UNITED STATES ARMY INFANTRY CENTER, FORT BENNING, GEORGIA 31905. HIS HOME OF RECORD WAS NEW HARBOR, MAINE. THE MEMBER WAS AUTHORIZED TO SHIP HIS HOUSEHOLD GOODS TO FORT BENNING BY SPECIAL ORDERS NUMBER 109, MAY 11, 1970, SAME HEADQUARTERS.

IN MAY 1970, LIEUTENANT BIGLEY MOVED HIS HOUSEHOLD EFFECTS IN A U HAUL TRAILER FROM DAMARISCOTTA, MAINE, TO COLUMBUS, GEORGIA, FOR WHICH HE RECEIVED $49.60 AS REIMBURSEMENT FOR THE COST OF TRAILER RENTAL.

BY SPECIAL ORDERS NUMBER 279, OCTOBER 6, 1970, HEADQUARTERS UNITED STATES ARMY INFANTRY CENTER, FORT BENNING, LIEUTENANT BIGLEY WAS DIRECTED TO PROCEED IN MARCH 1971 ON A PERMANENT CHANGE OF STATION TO UNITED STATES ARMY REPUBLIC OF VIETNAM TRANSIENT DETACHMENT, APO SAN FRANCISCO, CALIFORNIA 96384. THE ISSUING AUTHORITY REVOKED THE PERMANENT CHANGE-OF- STATION ORDERS BY SPECIAL ORDERS NUMBER 351, DATED DECEMBER 17, 1970.

ON DECEMBER 28, 1970, THE MEMBER PERSONALLY AUTHORIZED THE SHIPMENT OF HIS HOUSE TRAILER (PURCHASED ON FEBRUARY 1, 1970), FROM DAMARISCOTTA, MAINE, TO COLUMBUS, GEORGIA, WHERE IT WAS DELIVERED IN JANUARY 1971. ACCORDING TO LIEUTENANT BIGLEY, SHIPPING CHARGES OF $1,875 WERE PAID BY HIM FROM HIS OWN FUNDS. HE HAS SUBMITTED A SUPLEMENTAL CLAIM FOR REIMBURSEMENT FOR THE COST OF TRANSPORTING THE HOUSE TRAILER.

LIEUTENANT BIGLEY HAS SAID THAT HE WAS ADVISED THAT IT WAS NORMAL ASSIGNMENT PROCEDURE FOR NEWLY COMMISSIONED SECOND LIEUTENANTS TO BE SENT TO THE REPUBLIC OF VIETNAM WITHIN 6 TO 9 MONTHS OF INITIAL ASSIGNMENT. THEREFORE, IN VIEW OF THE SHORT PERIOD HE EXPECTED TO REMAIN AT FORT BENNING, THE MEMBER SAYS HE WISHED TO AVOID THE PERSONAL EXPENSES IN EXCESS OF THE AUTHORIZED ALLOWANCE WHICH WOULD BE INCURRED IN MOVING HIS MOBILE HOME FROM MAINE TO GEORGIA AND BACK TO MAINE. CONSEQUENTLY, HE MOVED ONLY HIS HOUSEHOLD POSSESSIONS AND RENTED AN APARTMENT IN COLUMBUS, GEORGIA.

UPON REVOCATION OF ORDERS FOR DUTY IN VIETNAM, LIEUTENANT BIGLEY SAYS THAT HE WAS INFORMED BY THE OFFICER ASSIGNMENT BRANCH OF THE DEPARTMENT OF THE ARMY THAT HE WOULD REMAIN AT FORT BENNING UNTIL MAY 14, 1972, THE SCHEDULED DATE OF TERMINATION OF HIS ACTIVE DUTY. AFTER RECEIVING THIS ASSURANCE AND IN VIEW OF THE FINANCIAL BURDEN OF MAKING PAYMENTS ON THE MOBILE HOME IN MAINE WHICH LIEUTENANT BIGLEY SAYS HE HAD BEEN UNABLE TO RENT, PLUS THE RENT FOR A HOME IN COLUMBUS, HE DECIDED TO MOVE THE MOBILE HOME TO HIS DUTY STATION.

HE STATES THAT HE INQUIRED WITH RESPECT TO SUCH MOVEMENT AT THE TRANSPORTATION OFFICE AT FORT BENNING WHERE HE WAS TOLD THAT SINCE HE HAD BEEN PAID PREVIOUSLY FOR TRANSPORTATION OF HIS HOUSEHOLD GOODS UNDER HIS ORDERS DATED MAY 11, 1970, WHICH PROVIDED AUTHORITY FOR PERMANENT CHANGE- OF-STATION TRANSPORTATION ALLOWANCES, HE WAS NOT ENTITLED TO THE MOVEMENT OF HIS MOBILE HOME AT GOVERNMENT EXPENSE UNDER THOSE ORDERS AND HE WAS REFERRED TO THE LOCAL OFFICE OF A L COMMERCIAL TRANSPORTER. SHORTLY THEREAFTER, LIEUTENANT BIGLEY PERSONALLY AUTHORIZED THE COMMERCIAL SHIPMENT OF THE MOBILE HOME AT HIS EXPENSE.

IN THESE CIRCUMSTANCES, YOU ASK IF UNDER THE PROVISIONS OF PARAGRAPHS M10001 AND M10002-2 OF THE JOINT TRAVEL REGULATIONS, THE MEMBER VALIDLY MAY BE ALLOWED TO REPAY THE AMOUNT HE RECEIVED FOR THE MOVEMENT OF HIS HOUSEHOLD GOODS AND SUBMIT A CLAIM FOR TRAILER ALLOWANCE. IF SUCH CLAIM IS PERMISSIBLE, YOU WISH TO KNOW WHICH METHOD OF COMPUTATION WOULD BE PROPER: OFFICIAL DISTANCE AUTHORIZED AT $.74 PER MILE, LESS PREVIOUS PAYMENT OF $49.60; ACTUAL COST THE GOVERNMENT WOULD HAVE ALLOWED, $973.10, LESS THE PREVIOUS PAYMENT; OR COST COMPARISON BETWEEN THE ABOVE METHODS AND PAY LESSER AMOUNT AND DEDUCT THE PREVIOUS PAYMENT.

SECTION 406(B) OF TITLE 37, U.S.C. PROVIDES FOR THE TRANSPORTATION OF BAGGAGE AND HOUSEHOLD EFFECTS OF MEMBERS OF THE UNIFORMED SERVICES IN CONNECTION WITH A CHANGE OF STATION. SECTION 409 OF THE SAME TITLE STATES THAT UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED AND IN PLACE OF THE TRANSPORTATION OF BAGGAGE AND HOUSEHOLD EFFECTS OR PAYMENT OF A DISLOCATION ALLOWANCE, A MEMBER WHO WOULD OTHERWISE BE ENTITLED TO TRANSPORTATION OF BAGGAGE AND HOUSEHOLD EFFECTS UNDER SECTION 406 MAY TRANSPORT A HOUSE TRAILER OR MOBILE DWELLING WITHIN THE CONTINENTAL UNITED STATES, WITHIN ALASKA, OR BETWEEN THE CONTINENTAL UNITED STATES AND ALASKA, FOR USE AS A RESIDENCE.

PARAGRAPH M8253-4 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT FOR OFFICERS COMMISSIONED FROM THE RANKS, INCLUDING GRADUATES FROM OFFICER CANDIDATES' SCHOOLS, SHIPMENT OF HOUSEHOLD GOODS IS AUTHORIZED FROM HOME TO THE NEW PERMANENT DUTY STATION, INCLUDING THE PLACE AT WHICH THE MEMBER IS COMMISSIONED, IF SUCH PLACE IS, IN FACT, THE FIRST PERMANENT DUTY STATION AS A COMMISSIONED OFFICER.

PARAGRAPH M10001-1 DEFINES A HOUSE TRAILER AS A RESIDENCE DESIGNED TO BE MOVED OVERLAND. IT INCLUDES ALL HOUSEHOLD GOODS, PERSONAL EFFECTS AND PROFESSIONAL BOOKS, PAPERS, AND EQUIPMENT CONTAINED IN THE TRAILER AND OWNED OR INTENDED FOR USE BY THE MEMBER OR HIS DEPENDENTS.

PARAGRAPH M10002 OF THE REGULATIONS PROVIDES, WITH CERTAIN EXCEPTIONS NOT HERE APPLICABLE, THAT ANY MEMBER OF THE UNIFORMED SERVICES WHO WOULD OTHERWISE BE ENTITLED TO HAVE HIS HOUSEHOLD GOODS TRANSPORTED AT GOVERNMENT EXPENSE IS ENTITLED TO TRAILER ALLOWANCES PROVIDED CERTAIN CONDITIONS EXIST INCLUDING: (1) THAT THE HOUSE TRAILER IS ACQUIRED ON OR PRIOR TO THE EFFECTIVE DATE OF THE MEMBER'S ORDERS AND IS TO BE TRANSPORTED FOR USE BY THE MEMBER, HIS DEPENDENTS, OR BOTH, AS A RESIDENCE; AND (2) THE MEMBER ELECTS TRAILER ALLOWANCES IN LIEU OF BOTH THE DISLOCATION ALLOWANCE, IF ELIGIBLE THEREFOR, AND TRANSPORTATION OF BAGGAGE AND HOUSEHOLD GOODS (PAR. M10002-2).

PARAGRAPH M10014 OF THE REGULATIONS REQUIRES THAT APPLICATIONS FOR GOVERNMENT TRANSPORTATION OF A HOUSE TRAILER AND CLAIMS FOR REIMBURSEMENT FOR TRANSPORTATION OF A HOUSE TRAILER WILL BE SUPPORTED BY A STATEMENT OVER THE MEMBER'S SIGNATURE TO THE EFFECT THAT: HE UNDERSTANDS THAT APPLICATION FOR SHIPMENT OR ACCEPTANCE OF PAYMENT FOR THE TRANSPORTATION OF HIS HOUSE TRAILER PRECLUDES RECEIPT OF THE DISLOCATION ALLOWANCE AND SHIPMENT OF BAGGAGE AND HOUSEHOLD GOODS WITHIN THE UNITED STATES, WITHIN ALASKA, OR BETWEEN THE UNITED STATES AND ALASKA, AS APPLICABLE; HE HAS NOT MADE AND WILL NOT MAKE CLAIM FOR THE DISLOCATION ALLOWANCE; AND HE HAS NOT REQUESTED AND WILL NOT REQUEST SHIPMENT OF PERMANENT CHANGE-OF-STATION WEIGHT ALLOWANCE OF HOUSEHOLD GOODS AT GOVERNMENT EXPENSE WITHIN THE UNITED STATES, ALASKA, OR BETWEEN THE UNITED STATES AND ALASKA, AS APPLICABLE.

PURSUANT TO 37 U.S.C. 409, PARAGRAPH M10002 OF THE JOINT TRAVEL REGULATIONS PROVIDES FOR A MEMBER'S ELECTION OF TRAILER ALLOWANCES IN LIEU OF BOTH A DISLOCATION ALLOWANCE, IF ELIGIBLE THEREFOR, AND TRANSPORTATION OF BAGGAGE AND HOUSEHOLD GOODS. WHILE THE LAW DOES NOT SPECIFICALLY PRECLUDE A CHANGE IN THE MEMBER'S ELECTION FROM THE SHIPMENT OF HOUSEHOLD GOODS TO A TRAILER ALLOWANCE, IT APPEARS TO CONTEMPLATE THAT ONCE A MEMBER MAKES AN ELECTION AND RECEIVES REIMBURSEMENT FOR TRANSPORTATION OF HOUSEHOLD GOODS AT GOVERNMENT EXPENSE, THE ELECTION IS IRREVOCABLE AND HE MAY NOT THEREAFTER CHANGE HIS ELECTION. TO HOLD OTHERWISE WOULD IN EFFECT PERMIT AN ADDITIONAL ELECTION OR REELECTION WHICH IS NOT AUTHORIZED. ADDITIONALLY, THIS WOULD RESULT IN A LACK OF FINALITY IN THE SETTLEMENT OF SUCH CLAIMS.

WHERE A MEMBER WAS ERRONEOUSLY INFORMED AS TO THE BENEFITS TO WHICH HE WAS ENTITLED WE HAVE HELD THAT HE SHOULD NOT BE BOUND BY HIS ELECTION AND WE HAVE PERMITTED A CHANGE IN ELECTION. SEE DECISION B 158509, MARCH 22, 1966, COPY ENCLOSED. HOWEVER, SUCH CIRCUMSTANCES MUST BE DISTINGUISHED FROM THOSE IN WHICH A MEMBER HAS KNOWLEDGE OF HIS RIGHTS BUT A CHANGE IN CIRCUMSTANCES SUBSEQUENT TO HIS ELECTION INDICATES THAT A DIFFERENT ELECTION WOULD BE MORE BENEFICIAL.

THE RECORD BEFORE US SHOWS THAT LIEUTENANT BIGLEY WAS FULLY AWARE OF THE PROPER AMOUNTS TO BE RECEIVED EITHER FOR TRAILER ALLOWANCES OR FOR MOVEMENT OF HIS HOUSEHOLD GOODS AND THAT HE ELECTED TO MOVE HIS HOUSEHOLD EFFECTS BECAUSE HE THOUGHT THAT ARRANGEMENT WOULD BE THE MOST BENEFICIAL IN VIEW OF THE EXPECTED SHORT DURATION OF HIS STAY AT FORT BENNING. AFTERWARDS, ONLY WHEN HE HAD BEEN UNABLE TO RENT HIS HOUSE TRAILER IN MAINE AND IT BECAME CLEAR THAT HE WOULD REMAIN AT FORT BENNING FOR THE DURATION OF HIS TOUR OF DUTY DID LIEUTENANT BIGLEY SEEK TO TRANSPORT HIS HOUSE TRAILER TO HIS DUTY STATION. HOWEVER, THE FACT THAT HE COULD NOT RENT HIS HOUSE TRAILER AND DID NOT RECEIVE A CHANGE OF PERMANENT STATION AS HE HAD EXPECTED, A CIRCUMSTANCE COMMON TO MEMBERS OF THE UNIFORMED SERVICES, MAY NOT SERVE AS THE BASIS FOR THE INVALIDATION OF HIS PRIOR ELECTION TO RECEIVE REIMBURSEMENT FOR THE MOVEMENT OF HIS HOUSEHOLD GOODS.

IN VIEW OF THE FOREGOING, LIEUTENANT BIGLEY IS NOT ENTITLED TO REIMBURSEMENT OF THE COST OF TRANSPORTING HIS HOUSE TRAILER FROM DAMARISCOTTA, MAINE, TO COLUMBUS, GEORGIA. AS THE CLAIM FOR THE DIFFERENCE BETWEEN THE PREVIOUSLY PAID HOUSEHOLD GOODS ALLOWANCE AND A TRAILER ALLOWANCE MAY NOT BE ALLOWED, IT IS NOT NECESSARY TO CONSIDER THE METHOD OF COMPUTATION OF TRAILER ALLOWANCE IN SUCH CIRCUMSTANCES.