B-155176, DEC. 9, 1964

B-155176, DEC. 9, 1964

TO TECHNICAL SERGEANT FRANCIS T. DEKORTE, USAF:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 4, 1964, REQUESTING RECONSIDERATION OF THE SETTLEMENT DATED JUNE 29, 1964, WHICH DISALLOWED YOUR CLAIM UNDER THE ACT OF DECEMBER 23, 1963, PUBLIC LAW 88-238, 77 STAT. 475, FOR REFUND OF $319.74 COLLECTED AS AN ERRONEOUS PAYMENT OF DISLOCATION ALLOWANCE AND TRANSPORTATION OF DEPENDENT (WIFE) FROM SHERMAN, TEXAS, TO FORT MASON, CALIFORNIA, AND FROM FORT MASON, CALIFORNIA, TO SAN ANTONIO, TEXAS, DURING THE PERIOD FEBRUARY 10 (OR 19) TO MARCH 2, 1958.

BY SPECIAL ORDERS 88 DATED APRIL 24, 1957, YOU WERE RELIEVED FROM ASSIGNMENT AT PERRIN AIR FORCE BASE, TEXAS, AND ASSIGNED TO THE 1501ST AIR TERMINAL SQUADRON, TRAVIS AIR FORCE BASE, CALIFORNIA, TO REPORT NOT LATER THAN JUNE 27, 1957, FOR TRANSPORTATION AND REASSIGNMENT TO THE NORTHERN AIR MATERIEL AREA, PACIFIC. THE ORDERS PROHIBITED CONCURRENT TRAVEL OF YOUR DEPENDENTS. BY TRAVEL AUTHORIZATION 1-27 DATED JANUARY 10, 1958, UPON CALL OF THE ARMY TERMINAL COMMANDER, YOUR WIFE, LUISE DEKORTE, WAS AUTHORIZED TO PROCEED FROM DENISON, TEXAS, TO THE PLACE DESIGNATED IN THE PORT CALL FOR MOVEMENT TO TACHIKAWA AIR BASE, JAPAN. ON FEBRUARY 11, 1958, SHE WAS ADVISED BY THE PERRIN AIR FORCE BASE THAT PORT CALL HAD BEEN RECEIVED FOR HER TO REPORT TO FORT MASON, SAN FRANCISCO, CALIFORNIA, ON MARCH 5, 1958, FOR TRAVEL OVERSEAS ON A VESSEL SAILING MARCH 6, 1958. YOUR WIFE'S TRAVEL AUTHORIZATION WAS CANCELED ON FEBRUARY 17, 1958, SINCE YOU HAD CONTRACTED PNEUMONIA AND WERE TO BE RETURNED TO THE UNITED STATES. SPECIAL ORDERS 35 DATED FEBRUARY 18, 1958, RELIEVED YOU FROM ASSIGNMENT WITH THE NORTHERN AIR MATERIEL AREA, PACIFIC, AND ASSIGNED YOU TO THE 6407TH AIR FORCE HOSPITAL, APO 323, EFFECTIVE THE SAME DATE; LETTER ORDER 146 DATED FEBRUARY 19, 1958, RELIEVED YOU FROM ASSIGNMENT WITH THE 6407TH AIR FORCE HOSPITAL AND ASSIGNED YOU TO THE 4167TH AIR FORCE HOSPITAL, TRAVIS AIR FORCE BASE, CALIFORNIA, TO REPORT NOT LATER THAN 10 DAYS AFTER YOUR DEPARTURE FROM THE 6407TH AIR FORCE HOSPITAL; AND A/E LETTER ORDER 46 DATED FEBRUARY 21, 1958, RELIEVED YOU FROM ASSIGNMENT TO THE 4167TH AIR FORCE HOSPITAL AND DIRECTED YOU TO PROCEED ON OR ABOUT FEBRUARY 22, 1958, TO THE 3700TH AIR FORCE HOSPITAL, LACKLAND AIR FORCE BASE, TEXAS. BY SPECIAL ORDERS A-210 DATED APRIL 21, 1958, YOU WERE RELIEVED FROM ASSIGNMENT AT THE 3700TH AIR FORCE HOSPITAL AND ASSIGNED TO DUTY AT LINCOLN AIR FORCE BASE, NEBRASKA, TO REPORT NOT LATER THAN APRIL 27, 1958.

IN YOUR LETTER OF SEPTEMBER 4, 1964, YOU REQUEST ANSWERS TO CERTAIN QUESTIONS INCLUDING INFORMATION WHETHER THE ACT OF DECEMBER 23, 1963, PUBLIC LAW 88-238, 77 STAT. 475, IS APPLICABLE TO YOUR CLAIM. SECTION 1 OF THAT ACT PROVIDES:

"* * * CHAPTER 7 OF TITLE 37, U.S.C. IS AMENDED AS FOLLOWS:

"/1) THE FOLLOWING NEW SECTION IS INSERTED AFTER SECTION 406:

" "SEC. 406A. TRAVEL AND TRANSPORTATION ALLOWANCES: AUTHORIZED FOR TRAVEL PERFORMED UNDER ORDERS THAT ARE CANCELED, REVOKED, OR MODIFIED

" "UNDER UNIFORM REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, A MEMBER OF A UNIFORMED SERVICE IS ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES UNDER SECTION 404 OF THIS TITLE, AND TO TRANSPORTATION OF HIS DEPENDENTS, BAGGAGE, AND HOUSEHOLD EFFECTS UNDER SECTIONS 406 AND 409 OF THIS TITLE, IF OTHERWISE QUALIFIED, FOR TRAVEL PERFORMED BEFORE THE EFFECTIVE DATE OF ORDERS THAT DIRECT HIM TO MAKE A CHANGE OF STATION AND THAT ARE LATER---

" "/1) CANCELED, REVOKED, OR MODIFIED TO DIRECT HIM TO RETURN TO THE STATION FROM WHICH HE WAS BEING TRANSFERRED; OR

" "/2) MODIFIED TO DIRECT HIM TO MAKE A DIFFERENT CHANGE OF STATION.'"

SECTION 2 MAKES THE ACT EFFECTIVE OCTOBER 1, 1949.

THE ACT PROVIDES THAT A MEMBER OF THE UNIFORMED SERVICES IS ENTITLED TO TRANSPORTATION ALLOWANCES FOR HIS DEPENDENTS WHEN TRAVEL IS PERFORMED BEFORE THE EFFECTIVE DATE OF THE ORDERS DIRECTING HIM TO MAKE A CHANGE OF STATION THAT ARE LATER CANCELED, REVOKED OR MODIFIED TO DIRECT HIM TO RETURN TO HIS STATION FROM WHICH HE WAS BEING TRANSFERRED, OR THE ORDERS ARE MODIFIED TO DIRECT HIM TO MAKE A DIFFERENT CHANGE OF STATION. WHEN THE MEMBER'S ORDERS ARE NOT CANCELED, REVOKED OR MODIFIED PRIOR TO THEIR EFFECTIVE DATE TO DIRECT HIM TO RETURN TO HIS STATION OR MODIFIED TO DIRECT HIM TO MAKE A DIFFERENT CHANGE OF STATION, THE ACT OF DECEMBER 23, 1963, HAS NO APPLICATION IN DETERMINING HIS ENTITLEMENT TO TRANSPORTATION ALLOWANCES FOR HIS DEPENDENT'S TRAVEL, HIS ENTITLEMENT BEING FOR DETERMINATION UNDER THE APPLICABLE STATUTE AND REGULATIONS IN EFFECT AT THE TIME THE TRAVEL WAS PERFORMED. YOU WERE TRANSFERRED TO THE NORTHERN AIR MATERIEL AREA, PACIFIC, BY YOUR ORDERS OF APRIL 24, 1957, AND YOUR WIFE'S PORT CALL WAS INCIDENT TO THAT ASSIGNMENT. THE ORDERS RETURNING YOU TO THE UNITED STATES IN FEBRUARY 1958 FOR HOSPITALIZATION WERE NOT ORDERS THAT CANCELED, REVOKED OR MODIFIED YOUR ORDERS OF APRIL 24, 1957, BEFORE THEIR EFFECTIVE DATE AND, OF COURSE, YOUR WIFE'S TRAVEL TO FORT MASON WAS NOT BEFORE THE EFFECTIVE DATE OF THOSE ORDERS. THEREFORE, THE 1963 ACT IS NOT APPLICABLE IN DETERMINING YOUR RIGHT TO TRANSPORTATION ALLOWANCES FOR THE TRAVEL OF YOUR WIFE FROM SHERMAN, TEXAS, TO FORT MASON, CALIFORNIA, AND FROM FORT MASON, CALIFORNIA, TO SAN ANTONIO, TEXAS, DURING THE PERIOD FEBRUARY 10 (OR 19) TO MARCH 2, 1958.

THE PROVISIONS OF PARAGRAPH 3003-1B (2) OF THE JOINT TRAVEL REGULATIONS, REFERRED TO IN YOUR LETTER OF SEPTEMBER 4, 1964, ARE BASED ON THE ACT OF DECEMBER 23, 1963, AND ARE NOT FOR APPLICATION IN YOUR CASE FOR THE SAME REASON THAT THE ACT IS NOT APPLICABLE.

PARAGRAPH 7005 OF THE JOINT TRAVEL REGULATIONS, IN EFFECT AT THE TIME INVOLVED, PROVIDED THAT WHEN A MEMBER WAS TRANSFERRED OR ASSIGNED UNDER PERMANENT CHANGE OF STATION ORDERS TO A PLACE WHERE HIS DEPENDENTS WERE NOT PERMITTED, FOR MILITARY REASONS, TO ACCOMPANY HIM, HE WAS ENTITLED TO TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE FROM THE PLACE AT WHICH THE DEPENDENTS WERE LOCATED ON THE DATE HE RECEIVED ORDERS TO ANY PLACE IN THE UNITED STATES WHICH HE DESIGNATED. THAT PARAGRAPH ALSO PROVIDED THAT WHEN THE RESTRICTION WAS REMOVED, HE WAS ENTITLED TO TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE FROM THE AFOREMENTIONED DESIGNATED PLACE TO HIS DUTY STATION. PARAGRAPH 7051 OF THE SAME REGULATIONS PROVIDED AT THE TIME INVOLVED THAT WHEN, UNDER PERMANENT CHANGE OF STATION ORDERS, THE DEPENDENTS ARE TRAVELING OVER THE DIRECT ROUTE BETWEEN THE OLD AND THE NEW STATIONS AND CHANGE OF STATION ORDERS ARE RECEIVED EN ROUTE ON OR AFTER THE EFFECTIVE DATE OF THE ORDERS, TRANSPORTATION AT GOVERNMENT EXPENSE IS AUTHORIZED FROM THE POINT WHERE THE MODIFIED ORDERS WERE RECEIVED TO THE ULTIMATE NEW STATION, IN ADDITION TO THAT FROM THE OLD STATION TO THE POINT WHERE THE MODIFIED ORDERS WERE RECEIVED.

GENERALLY, UNLESS OTHERWISE RESTRICTED, THE DEPENDENTS OF A MEMBER IN AN ELIGIBLE GRADE WHO IS TRANSFERRED ON A PERMANENT CHANGE OF STATION TO AN UNRESTRICTED STATION, MAY COMMENCE TRAVEL TO HIS NEW STATION AT ANY TIME AFTER THE EFFECTIVE DATE OF HIS ORDERS. WHILE YOUR TRANSFER OVERSEAS WAS TO A RESTRICTED STATION, THE AUTHORIZATION OF JANUARY 10, 1958, AND THE PORT CALL IN EFFECT NOTIFIED YOUR WIFE THAT THE RESTRICTION ON HER TRAVEL TO YOUR STATION NO LONGER EXISTED AND THAT GOVERNMENT WATER TRANSPORTATION WOULD BE PROVIDED AS STATED. IN THESE CIRCUMSTANCES IT IS CONCLUDED THAT THE RULES APPLICABLE IN DETERMINING THE AUTHORIZED TRAVEL TIME FOR A MEMBER INCIDENT TO PERMANENT CHANGE OF STATION ORDERS ARE NOT FOR APPLICATION HERE AND THAT AFTER ACCEPTANCE OF THE PORT CALL SHE WAS NOT RESTRICTED IN THE TIME SHE COULD COMMENCE TRAVEL TO THE PORT. THUS, IT APPEARS THAT UNDER PARAGRAPH 7051 OF THE REGULATIONS YOU ARE ENTITLED TO REIMBURSEMENT AS OTHERWISE AUTHORIZED FOR HER TRANSPORTATION FROM SHERMAN, TEXAS, TO FORT MASON, CALIFORNIA, AND FROM THERE TO LACKLAND AIR FORCE BASE,TEXAS, WHERE YOU WERE HOSPITALIZED. 41 COMP. GEN. 595.

SECTION 407 OF TITLE 37, U.S.C. PROVIDES THAT A MEMBER OF A UNIFORMED SERVICE IS NOT ENTITLED TO MORE THAN ONE DISLOCATION DURING A FISCAL YEAR UNLESS THE SECRETARY CONCERNED FINDS THAT THE EXIGENCIES OF THE SERVICE REQUIRE THE MEMBER TO MAKE MORE THAN ONE SUCH CHANGE OF STATION DURING THAT FISCAL YEAR. SINCE YOU WERE PAID A DISLOCATION ALLOWANCE INCIDENT TO YOUR TRANSFER FROM THE LACKLAND AIR FORCE BASE HOSPITAL TO THE LINCOLN AIR FORCE BASE, NEBRASKA, BY ORDERS DATED APRIL 21, 1958, AND IT DOES NOT APPEAR THAT THE REQUIRED FINDING WAS MADE BY THE SECRETARY OF THE AIR FORCE, THERE IS NO AUTHORITY ON THE PRESENT RECORD TO AUTHORIZE THE PAYMENT OF A SECOND DISLOCATION ALLOWANCE TO YOU FOR THE 1958 FISCAL YEAR.

A SETTLEMENT FOR THE AMOUNT FOUND DUE ON THE BASIS INDICATED ABOVE WILL ISSUE IN THE NEAR FUTURE.