Claim for Reimbursement of Dependent Travel and Dislocation Allowance

B-175407, JAN 23, 1973

MILITARY PERSONNEL - CHANGE OF RESIDENCE - DEPENDENT TRAVEL - DISLOCATION ALLOWANCE DECISION DENYING THE CLAIM OF CWO VIRGIL E. DONOVAN FOR REIMBURSEMENT OF DEPENDENT TRAVEL AND DISLOCATION ALLOWANCE IN CONNECTION WITH A CHANGE OF STATION FROM A RESTRICTED AREA. A MEMBER'S ENTITLEMENT TO A DISLOCATION ALLOWANCE IS DEPENDENT UPON A CLEAR AND POSITIVE SHOWING THAT HIS CHANGE OF RESIDENCE WAS NECESSARY AS A DIRECT RESULT OF THE ORDERED CHANGE OF PERMANENT STATION, PARAGRAPH M9003- 1, JTR. WHERE THERE IS AN ADMINISTRATIVE DETERMINATION THAT A CHANGE OF RESIDENCE WAS NECESSARY AS A DIRECT RESULT OF THE CHANGE OF STATION BUT THE DETERMINATION IS NOT SUPPORTED BY THE RECORD AND IS SHOWN TO BE CONTRARY TO THE FACTS, IT IS NOT CONCLUSIVE IN THE MATTER. SEE 13 COMP. GEN. 140, 149 (1933). SINCE IT APPEARS THAT THE MEMBER WOULD HAVE HAD TO RELOCATE HIS HOUSEHOLD, REGARDLESS OF THE CHANGE OF STATION, BECAUSE OF THE SALE OF THE HOUSE BY THE OWNER, PAYMENT OF A DISLOCATION ALLOWANCE IS NOT AUTHORIZED. FOR THE SAME REASONS, PAYMENT MAY NOT BE MADE FOR THE DEPENDENT'S TRAVEL, PARAGRAPH M7005, JTR.

TO MR. W. F. GRICE:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 2, 1972, IN WHICH YOU REQUEST A DECISION CONCERNING THE PROPRIETY OF PAYMENT OF A CLAIM FOR REIMBURSEMENT OF DEPENDENT TRAVEL AND DISLOCATION ALLOWANCE IN THE CASE OF CHIEF WARRANT OFFICER VIRGIL E. DONOVAN. YOUR SUBMISSION HAS BEEN ASSIGNED PDTATAC CONTROL NO. 72-7 BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

BY ORDERS DATED JANUARY 18, 1971, MR. DONOVAN WAS DIRECTED TO PROCEED ON PERMANENT CHANGE OF STATION FROM HIS UNIT IN THE REPUBLIC OF VIETNAM TO FORT LEONARD WOOD, MISSOURI. BY ORDERS DATED FEBRUARY 25, 1971, THE PRIOR ORDERS WERE CHANGED TO AUTHORIZE MR. DONOVAN 30 DAYS' EMERGENCY LEAVE DUE TO THE ILLNESS OF HIS DAUGHTER. MR. DONOVAN WAS DIVERTED AND REASSIGNED ON PERMANENT CHANGE OF STATION FROM FORT LEONARD WOOD TO THE U.S. ARMY ELEMENT, DEFENSE DEPOT MEMPHIS, MEMPHIS, TENNESSEE, BY ORDERS DATED MARCH 30, 1971, WITH A REPORTING DATE OF MARCH 31, 1971.

YOU SAY THAT MR. DONOVAN SINCE REPORTING TO THE DEFENSE DEPOT MEMPHIS ON MARCH 31, 1971, COMMUTED DAILY FROM JONESBORO, ARKANSAS, TO THE DEFENSE DEPOT MEMPHIS UNTIL THE RELOCATION OF HIS HOUSEHOLD FROM JONESBORO TO HOXIE, ARKANSAS, ON JANUARY 13, 1972. HE DOES NOT COMMUTE DAILY FROM THE LATTER PLACE. IT IS INDICATED THAT MR. DONOVAN'S HOUSEHOLD IN HOXIE IS APPROXIMATELY 31 MILES FROM HIS FORMER HOUSEHOLD IN JONESBORO AND IS A GREATER DISTANCE FROM MEMPHIS THAN JONESBORO.

YOU ALSO SAY THAT THE RELOCATION OF THE HOUSEHOLD IS CONSIDERED TO BE BETWEEN PLACES LOCATED IN PROXIMITY TO EACH OTHER AND AS SUCH THE APPROPRIATE STATEMENT REQUIRED BY PARAGRAPH M9003 OF THE JOINT TRAVEL REGULATIONS IS NEEDED TO SUPPORT PAYMENT OF DISLOCATION ALLOWANCE. HOWEVER, SINCE MR. DONOVAN'S PERMANENT CHANGE OF STATION IS FROM A RESTRICTED AREA HIS STATEMENT IS ACCEPTABLE.

YOU STATE THAT UNDER THE PROVISIONS OF PARAGRAPH M9003 OF THE JOINT TRAVEL REGULATIONS THE RELOCATION OF THE MEMBER'S HOUSEHOLD MUST BE A DIRECT RESULT OF THE MEMBER'S PERMANENT CHANGE OF STATION. YOU INDICATE THAT THE DELAY OF NINE MONTHS IN RELOCATING HIS HOUSEHOLD APPEARS TO CONTRADICT HIS STATEMENT THAT THE RELOCATION WAS A DIRECT RESULT OF HIS PERMANENT CHANGE OF STATION. YOU, THEREFORE, EXPRESS THE VIEW THAT MR. DONOVAN'S CLAIM FOR A DISLOCATION ALLOWANCE IS FOR DISALLOWANCE.

HOWEVER, YOU INDICATE THAT THE PAYMENT OF DEPENDENT TRAVEL FOR THE DISTANCE OF 31 MILES IS RECOMMENDED SINCE THE STATEMENT FURNISHED TO SUPPORT THE VOUCHER GIVES A MORE EXACT LOCATION OF THE NEW HOUSEHOLD.

MR. DONOVAN'S STATEMENT OF JANUARY 24, 1972, WHICH YOU ENCLOSED WITH YOUR REQUEST STATES THAT AS A DIRECT RESULT OF HIS EMERGENCY CHANGE OF STATION FROM VIETNAM ON FEBRUARY 25, 1971, IT WAS NECESSARY TO SHIP HIS HOUSEHOLD GOODS FROM JONESBORO TO HOXIE, ARKANSAS, ON JANUARY 13, 1972.

HIS STATEMENT ALSO INDICATES THAT THE DELAY IN RELOCATING WAS DUE TO THE LACK OF ADEQUATE HOUSING NEAR HIS WIFE'S PARENTS. MR. DONOVAN INDICATES THAT THE REASON FOR THE MOVE TO A LOCATION NEAR HIS WIFE'S PARENTS WAS TO PROVIDE MORAL SUPPORT FOR HIS WIFE WHO IS EMOTIONALLY UPSET AS A RESULT OF HIS DAUGHTER'S ILLNESS. HE FURTHER STATES THAT ADDITIONALLY HE WAS FORCED TO RELOCATE DUE TO THE FACT THAT THE RESIDENCE WHICH HE WAS RENTING WAS SOLD AND AN ARRANGEMENT TO CONTINUE RENTING THE RESIDENCE COULD NOT BE MADE WITH THE NEW OWNER.

SECTION 407(A), TITLE 37, U.S.C. PROVIDES THAT UNDER REGULATIONS PRESCRIBED BY THE SECRETARY CONCERNED, A MEMBER OF A UNIFORMED SERVICE WHOSE DEPENDENTS MAKE AN AUTHORIZED MOVE IN CONNECTION WITH HIS CHANGE OF PERMANENT STATION IS ENTITLED TO A DISLOCATION ALLOWANCE.

PARAGRAPH M9003-1 OF THE JOINT TRAVEL REGULATIONS, PROMULGATED PURSUANT TO THAT AUTHORITY, PROVIDES THAT A DISLOCATION ALLOWANCE IS PAYABLE TO A MEMBER WITH DEPENDENTS WHENEVER THE DEPENDENTS RELOCATE THEIR HOUSEHOLD IN CONNECTION WITH A PERMANENT CHANGE OF STATION. ACTUAL TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE IS NOT A PREREQUISITE TO ENTITLEMENT. STATEMENT FROM THE COMMANDING OFFICER OF THE NEW PERMANENT DUTY STATION THAT THE RELOCATION OF THE HOUSEHOLD OF THE MEMBER WAS NECESSARY AS A DIRECT RESULT OF THE PERMANENT CHANGE OF STATION (OTHER THAN A PERMANENT CHANGE OF STATION FROM OR TO A RESTRICTED AREA) IS REQUIRED WHEN THE PERMANENT CHANGE OF STATION IS BETWEEN STATIONS LOCATED IN PROXIMITY TO EACH OTHER OR WHEN THE RELOCATION OF THE HOUSEHOLD IS BETWEEN PLACES LOCATED IN PROXIMITY TO EACH OTHER WHETHER OR NOT LOCATED WITHIN THE SAME CITY.

WHEN THE RELOCATION OF THE HOUSEHOLD IS A DIRECT RESULT OF THE MEMBER'S PERMANENT CHANGE OF STATION FROM OR TO A RESTRICTED AREA, THE REGULATION PROVIDES THAT THE MEMBER'S STATEMENT REGARDING THE MOVE WILL BE ACCEPTED.

A MEMBER'S ENTITLEMENT TO A DISLOCATION ALLOWANCE IS DEPENDENT UPON A CLEAR AND POSITIVE SHOWING THAT HIS CHANGE OF RESIDENCE WAS NECESSARY AS A DIRECT RESULT OF AN ORDERED CHANGE OF PERMANENT STATION. IN THIS CONNECTION, WHERE THERE IS AN ADMINISTRATIVE DETERMINATION, SUCH AS A COMMANDING OFFICER'S STATEMENT, THAT A CHANGE OF RESIDENCE IS NECESSARY AS A DIRECT RESULT OF A PERMANENT CHANGE OF STATION, AND IT IS NOT SUPPORTED BY THE RECORD AND IS SHOWN TO BE CONTRARY TO THE FACTS, IT IS NOT CONCLUSIVE IN THE MATTER. SEE 13 COMP. GEN. 140, 149 (1933) AND 36 COMP. GEN. 366 (1956) CF 39 COMP. GEN. 561 (1960). LIKEWISE, A MEMBER'S STATEMENT MADE IN CONNECTION WITH HIS CLAIM FOR A DISLOCATION ALLOWANCE IS NOT CONCLUSIVE AND MUST BE CONSIDERED IN LIGHT OF THE RECORD BEFORE US.

THUS, WHILE A PORTION OF MR. DONOVAN'S STATEMENT PROVIDES THAT NECESSITY OF RELOCATING WAS A DIRECT RESULT OF HIS PERMANENT CHANGE OF STATION, THE REMAINING PART OF THE STATEMENT CLEARLY INDICATES THAT THE REASONS FOR THE RELOCATION ARE PERSONAL RATHER THAN A DIRECT RESULT OF HIS PERMANENT CHANGE OF STATION. THAT IS, IT WOULD HAVE BEEN NECESSARY FOR HIM TO RELOCATE HIS HOUSEHOLD, REGARDLESS OF HIS CHANGE OF STATION, BECAUSE OF THE SALE OF THE HOUSE IN WHICH THEY WERE RESIDING AND BECAUSE OF THE HEALTH OF HIS WIFE.

ACCORDINGLY, PAYMENT OF THE DISLOCATION ALLOWANCE IS NOT AUTHORIZED.

SUBPARAGRAPH 4 OF PARAGRAPH M7005 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT WHEN A MEMBER IS:

"1. TRANSFERRED BY PERMANENT CHANGE OF STATION ORDERS FROM A RESTRICTED AREA TO AN UNRESTRICTED AREA;

HE WILL BE ENTITLED TO TRANSPORTATION OF DEPENDENTS FROM THE PLACE HIS DEPENDENTS ARE LOCATED ON RECEIPT OF PERMANENT CHANGE OF STATION ORDERS *** OR FROM THE PLACE TO WHICH DEPENDENTS WERE MOVED AT GOVERNMENT EXPENSE (INCIDENT TO HIS ASSIGNMENT TO THE RESTRICTED AREA) ***, WHICHEVER RESULTS IN THE LESSER ENTITLEMENT, TO THE CURRENT DUTY STATION OF THE MEMBER, *** OR TO A PLACE OTHER THAN THE CURRENT DUTY STATION. ***"

UNDER THE ABOVE-QUOTED PROVISION A MEMBER INCIDENT TO HIS ASSIGNMENT FROM A RESTRICTED AREA ORDINARILY WOULD BE ENTITLED TO TRANSPORTATION OF HIS DEPENDENTS FROM THE PLACE HIS DEPENDENTS ARE LOCATED ON RECEIPT OF PERMANENT CHANGE-OF-STATION ORDERS OR FROM THE PLACE THEY WERE MOVED AT GOVERNMENT EXPENSE INCIDENT TO THE ASSIGNMENT TO THE RESTRICTED AREA, TO HIS CURRENT DUTY STATION OR TO A PLACE OTHER THAN THE CURRENT DUTY STATION, WHICHEVER RESULTS IN THE LESSER ENTITLEMENT. HOWEVER, IN THE CASE BEFORE US, IT IS OUR VIEW THAT MR. DONOVAN'S MOVE FROM JONESBORO TO HOXIE ON JANUARY 13, 1972, AS EXPLAINED ABOVE, BEARS NO RELATIONSHIP TO HIS REASSIGNMENT BUT WAS FOR PERSONAL REASONS AND MAY NOT BE CONSIDERED AS INCIDENT TO HIS CHANGE OF STATION.

ACCORDINGLY, PAYMENT FOR THE DEPENDENT TRAVEL PERFORMED JANUARY 13, 1972, AND THE DISLOCATION ALLOWANCE IS NOT AUTHORIZED, AND THE VOUCHER WILL BE RETAINED HERE.