B-157340, SEP. 17, 1965

B-157340, SEP. 17, 1965

TO CAPTAIN JOHN W. JOHNSON, INFANTRY:

FURTHER REFERENCE IS MADE TO YOUR LETTER IN EFFECT REQUESTING REVIEW OF THE SETTLEMENT OF JUNE 23, 1965, WHICH DISALLOWED YOUR CLAIM FOR STATION ALLOWANCE FOR THE PERIOD MAY 23 TO SEPTEMBER 5, 1964.

BY PARAGRAPH 149, SPECIAL ORDERS NO. 32, DATED FEBRUARY 4, 1964, AS AMENDED BY PARAGRAPH 1, SPECIAL ORDERS NO. 90, DATED MAY 7, 1964, YOU WERE TRANSFERRED FROM ALASKA TO KOREA EFFECTIVE MAY 23, 1964, WITH 60 DAYS DELAY ENROUTE AUTHORIZED IN FAIRBANKS, ALASKA. YOU DEPARTED YOUR STATION IN ALASKA ON MAY 23 AND FROM FAIRBANKS ON JULY 20, 1964. YOU ARRIVED AT YOUR NEW STATION IN KOREA ON JULY 25, 1964. THE RECORD SHOWS THAT YOUR COST-OF-LIVING ALLOWANCE IN ALASKA WAS TERMINATED ON MAY 22, 1964, AND THAT A STATION ALLOWANCE UNDER THE PROVISIONS OF PARAGRAPH 4305-2A OF THE JOINT TRAVEL REGULATIONS WAS APPROVED ON SEPTEMBER 9, 1964; THAT YOU HAD 2 DEPENDENTS RESIDING IN ALASKA, AND THAT THEIR TRANSPORTATION TO KOREA WAS NOT AUTHORIZED. YOUR CLAIM FOR STATION ALLOWANCE FOR THE PERIOD MAY 23 TO SEPTEMBER 5, 1964, WAS DENIED BY THE ARMY AND WAS DISALLOWED BY THE SETTLEMENT MENTIONED ABOVE FOR THE REASON THAT WHILE PARAGRAPH 4305-2A OF THE JOINT TRAVEL REGULATIONS PROVIDES FOR CONTINUATION OF STATION ALLOWANCES UNDER CERTAIN CIRCUMSTANCES, PARAGRAPH 4305-8 PROVIDES THAT SUCH STATION ALLOWANCES ARE AUTHORIZED FROM THE DATE OF APPROVAL ON THE BASIS THEREIN PRESCRIBED AND MAY NOT BE AUTHORIZED RETROACTIVELY.

IN YOUR PRESENT LETTER YOU STATE THAT PARAGRAPH 4305-2A OF THE JOINT TRAVEL REGULATIONS DOES NOT APPLY IN YOUR CASE SINCE YOU AND YOUR WIFE ARE ALASKA RESIDENTS AND NO APPROVAL WAS REQUIRED FOR HER TO CONTINUE TO RESIDE IN ALASKA; THAT WHEN YOU RECEIVED THE ORDERS OF FEBRUARY 4, 1964, YOU SPOKE TO ARMY PERSONNEL AT YOUR STATION INFORMING THEM THAT YOU DESIRED 60 DAYS' LEAVE WHICH WOULD BE SPENT IN FAIRBANKS; THAT YOU WERE INFORMED AT THAT TIME THAT YOUR STATION ALLOWANCE WOULD TERMINATE JULY 20, 1964; THAT YOU COULD BE PAID FOR THE 60 DAYS' LEAVE PERIOD AFTER YOU ARRIVED IN KOREA, AND THAT UPON YOUR ARRIVAL IN KOREA YOU WERE INFORMED CONTINUATION OF ALLOWANCES COULD HAVE BEEN AUTHORIZED SINCE YOUR DEPENDENTS REMAINED IN ALASKA. YOU CONTEND THAT HAD YOU BEEN PROPERLY ADVISED IN ALASKA YOU WOULD HAVE APPLIED TO THE ALASKA COMMAND FOR CONTINUATION OF THE ALLOWANCES.

PARAGRAPH 4305-2A OF THE JOINT TRAVEL REGULATIONS PROVIDES FOR THE PAYMENT OF STATION ALLOWANCES IN THE CASE OF A MEMBER ON DUTY OUTSIDE THE UNITED STATES WHOSE DEPENDENTS ARE RESIDING NEAR HIS DUTY STATION WHEN ORDERS ARE ISSUED REASSIGNING HIM TO DUTY IN A RESTRICTED AREA OUTSIDE THE UNITED STATES IN WHICH DEPENDENTS ARE NOT PERMITTED TO ESTABLISH A RESIDENCE, IN THE SAME MANNER AS IF THE MEMBER WERE PRESENT AT THE OLD DUTY STATION, IF APPROVED BY THE SECRETARY OF THE SERVICE CONCERNED OR HIS DESIGNATED REPRESENTATIVE, AND IF THE DEPENDENTS CONTINUE TO RESIDE IN THE VICINITY OF SUCH OLD DUTY STATION FOR THE ENTIRE PERIOD FOR WHICH ALLOWANCES ARE CLAIMED. CONSISTENT WITH THOSE REQUIREMENTS, PARAGRAPH 8- 84A (3), ARMY REGULATIONS 37-104 IN EFFECT AT THE TIME HERE INVOLVED PROVIDES THAT IF THE MEMBER IS IN RECEIPT OF HOUSING AND COST-OF-LIVING ALLOWANCES AS A MEMBER WITH DEPENDENTS AND THE DEPENDENTS CONTINUE TO RESIDE IN THE VICINITY OF THE MEMBER'S OLD DUTY STATION, THE MEMBER MAY BE AUTHORIZED THE CONTINUANCE OF THE ALLOWANCES AS A MEMBER WITH DEPENDENTS APPLICABLE TO THE OLD STATION; HOWEVER,"ADVANCE APPROVAL OF THE COMMANDING GENERAL OF THE AREA IN WHICH THE OLD DUTY STATION OF THE MEMBER IS LOCATED IS REQUIRED.' PARAGRAPH 4305-8 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT RETROACTIVE APPROVAL IS NOT AUTHORIZED AND THAT ENTITLEMENT TO THE STATION ALLOWANCES WILL BEGIN WHEN AUTHORIZED BY THE SECRETARY CONCERNED OR HIS DESIGNATED REPRESENTATIVE. PARAGRAPH 8-82, ARMY REGULATIONS 37- 104, PROVIDES THAT THE EFFECTIVE DATE OF STATION ALLOWANCES WILL BE THE ACTUAL DATE OF APPROVAL BY THE COMMANDING GENERAL AND THAT RETROACTIVE APPROVAL IS NOT AUTHORIZED.

SINCE YOUR DEPENDENTS CONTINUED TO RESIDE IN THE VICINITY OF THE OLD STATION YOU COULD HAVE APPLIED TO THE COMMANDING GENERAL IN ALASKA UPON RECEIPT OF THE ORDERS OF FEBRUARY 4, 1964, FOR THE CONTINUATION OF STATION ALLOWANCE APPLICABLE TO YOUR STATION IN ALASKA, AND THE ALLOWANCE YOU WERE RECEIVING COULD HAVE BEEN CONTINUED. HOWEVER, UNDER THE REGULATIONS, AN APPROVED APPLICATION WAS REQUIRED EVEN THOUGH YOUR WIFE WAS AN ALASKA RESIDENT AND AS NO SUCH APPLICATION WAS MADE OR APPROVED, YOUR COST-OF- LIVING ALLOWANCE WAS TERMINATED ON THE DAY PRIOR TO THE DATE OF YOUR DEPARTURE FROM YOUR OLD DUTY STATION PURSUANT TO PARAGRAPH 8-44A (1), ARMY REGULATIONS 37-104. ENTITLEMENT TO THE STATION ALLOWANCES AUTHORIZED BY PARAGRAPH 4305-2A OF THE JOINT TRAVEL REGULATIONS COMMENCED UPON APPROVAL OF YOUR APPLICATION AND UNDER THE REGULATIONS SUCH AUTHORIZATION COULD NOT INCLUDE A PRIOR PERIOD.

WHILE IT IS UNFORTUNATE THAT YOU MAY HAVE BEEN MISINFORMED BY CERTAIN ARMY PERSONNEL AS TO YOUR ENTITLEMENT TO STATION ALLOWANCES, SUCH FACT AFFORDS NO BASIS UPON WHICH WE MAY AUTHORIZE PAYMENT OF YOUR CLAIM CONTRARY TO THE EXPRESS PROVISIONS OF THE REGULATIONS.