B-139680, JUL. 31, 1959

B-139680, JUL. 31, 1959

TO LIEUTENANT COLONEL THOMAS F. MCCORD, USA:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 2, 1959, WHICH HAS BEEN REFERRED TO THIS OFFICE BY THE DEPARTMENT OF THE ARMY. YOUR LETTER PROTESTS THE ACTION TAKEN IN OUR CLAIMS DIVISION SETTLEMENT DATED NOVEMBER 25, 1958, WHICH DISALLOWED YOUR CLAIM FOR A SECOND DISLOCATION ALLOWANCE FOR FISCAL YEAR 1956 INCIDENT TO TRAVEL PERFORMED UNDER PERMANENT CHANGE OF STATION ORDERS DATED SEPTEMBER 29, 1955.

FROM THE RECORD, IT APPEARS THAT BY ORDERS DATED AUGUST 10, 1955, YOU WERE TRANSFERRED FROM SALZBURG, AUSTRIA, TO LEGHORN, ITALY. IT IS SHOWN THAT YOU WERE PAID A DISLOCATION ALLOWANCE INCIDENT TO THAT CHANGE OF STATION. BY ORDERS DATED SEPTEMBER 29, 1955, YOU WERE TRANSFERRED FROM LEGHORN, ITALY, TO THE CONTINENTAL UNITED STATES, AND YOUR DEPENDENTS PERFORMED THE PERTINENT TRAVEL COMMENCING OCTOBER 26, 1955. YOUR CLAIM IS FOR AN ADDITIONAL DISLOCATION ALLOWANCE DURING FISCAL YEAR 1956 INCIDENT TO THE LATTER PERMANENT CHANGE OF STATION.

SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED BY SECTION 2 (12) OF THE ACT OF MARCH 31, 1955, 69 STAT. 21, AUTHORIZES PAYMENT OF A DISLOCATION ALLOWANCE TO A MEMBER OF A UNIFORMED SERVICE WHOSE DEPENDENTS ARE AUTHORIZED TO MOVE, AND ACTUALLY MOVE, IN CONNECTION WITH HIS PERMANENT CHANGE OF STATION UNDER REGULATIONS APPROVED BY THE SECRETARY OF THE DEPARTMENT CONCERNED. IT FURTHER PROVIDES THAT "THE MEMBER SHALL BE ENTITLED TO THE PAYMENT OF A DISLOCATION ALLOWANCE FOR NOT MORE THAN ONE PERMANENT CHANGE OF STATION DURING ANY FISCAL YEAR, EXCEPT ON THE FINDING OF THE SECRETARY OF THE DEPARTMENT CONCERNED THAT THE EXIGENCIES OF THE SERVICE REQUIRE MORE THAN ONE SUCH CHANGE OF STATION DURING ANY FISCAL YEAR.'

PROMULGATED PURSUANT TO THE AUTHORITY VESTED BY STATUTE, AND IN EFFECT AT THE TIME OF ISSUANCE OF THE ORDERS DIRECTING THE CHANGE OF STATION INVOLVED AND THE TRAVEL PERFORMED THEREUNDER WAS COMMENCED, PARAGRAPH 9003 -7, CHANGE 35, JOINT TRAVEL REGULATIONS, PROVIDED THAT A DISLOCATION ALLOWANCE IS NOT PAYABLE FOR MORE THAN ONE PERMANENT CHANGE OF STATION DURING ANY FISCAL YEAR EXCEPT ON THE FINDING OF THE SECRETARY OF THE DEPARTMENT CONCERNED THAT THE EXIGENCIES OF THE SERVICE REQUIRE MORE THAN ONE CHANGE OF STATION DURING THE CURRENT FISCAL YEAR.

ON APRIL 5, 1955, DEPARTMENT OF THE ARMY MESSAGE 301395 WAS ISSUED TO VARIOUS COMMANDS INCLUDING COMMANDING GENERAL, UNITED STATES FORCES IN AUSTRIA, SALZBURG, AUSTRIA, THE ORDER ISSUING AUTHORITY HERE INVOLVED. THAT MESSAGE IT WAS BROUGHT TO THE ATTENTION OF THAT HEADQUARTERS THAT A STATEMENT OF POLICY REGARDING PAYMENT OF DISLOCATION ALLOWANCE FOR MORE THAN ONE PERMANENT CHANGE OF STATION DURING ANY FISCAL YEAR WAS BEING FORMULATED. SUBSEQUENTLY, ALSO, TO IMPLEMENT THE STATUTORY PROVISIONS CONTAINED IN SECTION 303 (C), DEPARTMENT OF THE ARMY MESSAGE 346979, DATED SEPTEMBER 12, 1955, ON THE SUBJECT OF DISLOCATION ALLOWANCE, WAS ISSUED. IN THE LATTER MESSAGE, PARAGRAPH 3D PROVIDED THAT ALL PERMANENT CHANGES OF STATION EFFECTIVE ON OR AFTER APRIL 1, 1955, AND PRIOR TO SEPTEMBER 9, 1955, EXCEPT THOSE MADE AT THE REQUEST OF OR FOR THE PERSONAL CONVENIENCE OF THE INDIVIDUAL, WERE DETERMINED TO BE REQUIRED BY THE EXIGENCIES OF THE SERVICE. FOR SECOND OR SUBSEQUENT MOVES WITHIN A FISCAL YEAR OCCURRING DURING THAT PERIOD, SPECIAL ORDERS WOULD BE AMENDED TO INCLUDE THE STATEMENT INDICATED IN PARAGRAPH 6 (THAT ORDERS ISSUED PURSUANT TO AN APPROVED REQUEST WILL STATE: "THIS ADD FY MOV IS AUTH BY THE SA PER DA MCG -------") CITING THE MESSAGE AS AUTHORITY.

AS THE EFFECTIVE DATE OF THE PERMANENT CHANGE OF STATION AS AUTHORIZED BY YOUR ORDERS OF SEPTEMBER 29, 1955, OCCURRED SUBSEQUENT TO SEPTEMBER 8, 1955, YOUR ELIGIBILITY FOR ENTITLEMENT TO A SECOND DISLOCATION ALLOWANCE DURING THE SAME FISCAL YEAR WAS GOVERNED BY PARAGRAPH 4 OF THE DEPARTMENT OF THE ARMY MESSAGE 346979.

PARAGRAPH 4 OF DA 346979 PROVIDED THAT ANY TRAVEL OF INDIVIDUALS, WHICH TRAVEL CONSISTS OF A SECOND PERMANENT CHANGE OF STATION DURING AFISCAL YEAR AND IF NEITHER AUTHORIZED BY PARAGRAPH 3A (CONCERNING MOVES FROM OR BETWEEN SERVICE SCHOOLS) NOR REQUIRED BY THE EXIGENCIES OF THE SERVICE (PARAGRAPH 3B, CONCERNING PERMANENT CHANGE OF STATION OF THE UNIT TO WHICH THE MEMBER WAS ASSIGNED, AND PARAGRAPH 3C, CONCERNING MOVES OCCASIONED BY ASSIGNMENT IN A PATIENT STATUS TO, FROM OR BETWEEN MEDICAL DETACHMENTS) WAS PROHIBITED EXCEPT:

"A. AS AUTH IN ADV OF THE TVL BY THE SA.

"B. IN TIME OF WAR OR NATL EMERG.'

THUS, SUCH REGULATIONS, LIKE THE REGULATIONS CONTAINED IN ARMY REGULATIONS 35-3065, DATED JANUARY 6, 1956 (SUPERSEDING DA MESSAGE 301395) REQUIRED THE APPROVAL BY THE SECRETARY OF THE ARMY, IN ADVANCE OF TRAVEL, OF MORE THAN ONE PERMANENT CHANGE OF STATION IF DISLOCATION ALLOWANCE WAS TO BE PAID.

YOUR CLAIM WAS DISALLOWED ON THE GROUNDS THAT THE AMENDMENT OF YOUR ORDERS ON SEPTEMBER 3, 1958 (ALMOST THREE YEARS AFTER YOUR ORDERS DATED SEPTEMBER 29, 1955), WHICH AUTHORIZED YOUR ADDITIONAL PERMANENT CHANGE OF STATION FOR WHICH A SECOND DISLOCATION ALLOWANCE DURING ONE FISCAL YEAR IS CLAIMED, WAS NOT CONSIDERED AS MEETING THE REQUIREMENTS OF THE LAW AND REGULATIONS, AND THEREFORE, PAYMENT OF DISLOCATION ALLOWANCE WAS NOT AUTHORIZED.

IN VIEW OF THE REGULATIONS CONTAINED IN DA MESSAGE 346979, ISSUED PURSUANT TO STATUTE, THE AMENDATORY ORDERS ISSUED SEPTEMBER 3, 1958, COULD HAVE NO EFFECT TO SUPPLY THE APPROVAL BY THE SECRETARY OF THE ARMY OF MORE THAN ONE PERMANENT CHANGE OF STATION WHICH WAS REQUIRED AS A CONDITION PRECEDENT TO PAYMENT OF DISLOCATION ALLOWANCE. OUR OFFICE IS REQUIRED TO SETTLE CLAIMS ON THE BASIS OF APPLICABLE LAW AND REGULATIONS. B-131153, SEPTEMBER 26, 1957. THE CITED STATUTE AND REGULATIONS BAR PAYMENT OF A DISLOCATION ALLOWANCE INCIDENT TO MORE THAN ONE PERMANENT CHANGE OF STATION DURING ANY FISCAL YEAR AS THEREIN SPECIFIED, AND HENCE, NO RIGHT TO SUCH AN ALLOWANCE ACCRUED INCIDENT TO YOUR CHANGE OF STATION ORDERS DATED SEPTEMBER 29, 1955, BECAUSE IT IS SHOWN THAT YOU WERE PAID SUCH AN ALLOWANCE INCIDENT TO ORDERS OF AUGUST 10, 1955. ACCORDINGLY, ON THE PRESENT RECORD, PAYMENT OF YOUR CLAIM IS NOT AUTHORIZED AND OUR SETTLEMENT OF NOVEMBER 25, 1958, IS SUSTAINED.

THE PAPERS SUBMITTED HERE IN SUPPORT OF A CLAIM BECAME PART OF THE RECORDS OF THIS OFFICE AND MAY NOT BE RETURNED. FOR USE IN SUITS OR CLAIMS AGAINST THE UNITED STATES, PHOTOSTATIC COPIES MAY BE SUPPLIED UPON PAYMENT OF THE USUAL CHARGES THEREFOR.