B-142266, MAY 12, 1960

B-142266, MAY 12, 1960

TO MR. JERRY L. BALL:

REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 22, 1960, REQUESTING REVIEW OF OUR SETTLEMENT DATED JANUARY 28, 1960, WHICH DISALLOWED YOUR CLAIM FOR A COST OF LIVING ALLOWANCE AS A MEMBER WITH DEPENDENTS FOR THE PERIOD FROM AUGUST 18, 1958, THROUGH MAY 6, 1959, WHILE YOU WERE STATIONED AT FORT RICHARDSON, ALASKA, AS A SPECIALIST 5, UNITED STATES ARMY.

THE RECORDS SHOW THAT YOU ENLISTED ON JUNE 2, 1956, FOR A PERIOD OF 3 YEARS AND THAT YOU REPORTED TO FORT RICHARDSON ON JULY 22, 1957, AT WHICH TIME YOU WERE SERVING IN PAY GRADE E-3. YOU WERE APPOINTED CORPORAL (E-4) ON OCTOBER 18, 1957. IT IS RELATED THAT YOUR DEPENDENTS ARRIVED IN ALASKA ON FEBRUARY 13, 1958, AND THAT YOU WERE APPOINTED SPECIALIST 5 (E-5) EFFECTIVE AUGUST 15, 1958. ON THAT DATE YOU EXTENDED YOUR 3-YEAR ENLISTMENT FOR ANOTHER YEAR AND EXTENDED YOUR OVERSEAS TOUR FOR A PERIOD OF 1 YEAR, WHICH CHANGED THE DATE OF YOUR ELIGIBILITY TO RETURN TO THE CONTINENTAL LIMITS OF THE UNITED STATES TO MAY 1960.

IT APPEARS THAT ON OR ABOUT AUGUST 15, 1958, YOU APPLIED FOR AUTHORITY FOR YOUR DEPENDENTS TO RESIDE IN ALASKA IN A DEPENDENT STATUS; THAT THE DENIAL OF YOUR APPLICATION, ON OR ABOUT DECEMBER 17, 1958, WAS BASED ON PARAGRAPH 4300-1, JOINT TRAVEL REGULATIONS, WHICH WAS IN EFFECT AT THAT TIME; AND THAT YOU WERE CARRIED ON THE COMPANY SEPARATE RATIONS ROSTER DURING THE PERIOD AUGUST 1958 THROUGH DECEMBER 1958. IT IS FURTHER RELATED THAT YOUR OVERSEAS TOUR WAS CURTAILED ON DECEMBER 17, 1958, AND YOUR ELIGIBILITY DATE TO RETURN TO THE CONTINENTAL LIMITS OF THE UNITED STATES WAS RECOMPUTED TO JULY 1959; THAT YOU DEPARTED FROM FORT RICHARDSON ON MAY 6, 1959, IN AN EMERGENCY PERMANENT CHANGE OF STATION STATUS; AND THAT YOU WERE ASSIGNED TO FORT GEORGE G. MEADE, MARYLAND, EFFECTIVE MAY 23, 1959. YOU WERE DISCHARGED FROM THE ARMY ON AUGUST 27, 1959.

YOU SAY THAT IT HAD BEEN THE PRACTICE AT FORTH RICHARDSON WHEN AN ENLISTED PERSON BECAME ELIGIBLE BY RANK FOR THE EXTRA COST OF LIVING ALLOWANCE, ALL THAT WAS NECESSARY FOR SUCH PERSON TO OBTAIN THE ALLOWANCE WAS TO EXTEND HIS ENLISTMENT SO AS TO HAVE AN OVERSEAS TOUR OF 3 YEARS. YOU ALSO SAY THAT UPON YOUR PROMOTION TO THE ELIGIBLE GRADE (E-5) ON AUGUST 15, 1958, YOU EXTENDED YOUR ENLISTMENT FOR 1 YEAR AND THAT YOU APPLIED FOR THE EXTRA COST OF LIVING ALLOWANCE. YOU SAY THAT IT WAS NOT UNTIL DECEMBER 18, 1958, THAT YOUR APPLICATION WAS DENIED; THAT DURING SUCH PERIOD YOU WERE CARRIED ON THE SEPARATE RATIONS ROSTER OF THE COMPANY; AND THAT EVEN THOUGH MESSING FACILITIES WERE AVAILABLE IT WAS NECESSARY THAT YOU PAY FOR ANY MEALS THAT YOU ATE IN THE MESS HALL. YOU INDICATE THAT YOU BELIEVE YOUR CLAIM SHOULD RECEIVE FAVORABLE CONSIDERATION, AT LEAST FOR THE PERIOD FROM AUGUST 15, 1958, TO DECEMBER 17, 1958, SINCE IT WAS NOT YOUR FAULT THAT THE LOCAL FINANCE OFFICE DEPARTED FROM THE USUAL PROCEDURE AND SINCE THE AIR FORCE CONTINUED TO PAY THE ALLOWANCE UNDER THE SAME CONDITIONS. YOU ALSO INDICATE THAT YOU BELIEVE FAVORABLE CONSIDERATION OF YOUR CLAIM IS WARRANTED ON THE BASIS OF LATER CHANGES IN THE JOINT TRAVEL REGULATIONS.

SECTION 303 (B) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 253 (B); PROVIDES AS FOLLOWS:

"WITHOUT REGARD TO THE MONETARY LIMITATIONS IN THIS CHAPTER, THE SECRETARIES OF THE UNIFORMED SERVICES MAY AUTHORIZE THE PAYMENT TO MEMBERS OF THE UNIFORMED SERVICES ON DUTY OUTSIDE THE CONTINENTAL UNITED STATES OR IN ALASKA, WHETHER OR NOT IN A TRAVEL STATUS, OF A PER DIEM CONSIDERING ALL ELEMENTS OF COST OF LIVING TO MEMBERS AND THEIR DEPENDENTS, INCLUDING THE COST OF QUARTERS, SUBSISTENCE, AND OTHER NECESSARY INCIDENTAL EXPENSES: PROVIDED, THAT DEPENDENTS SHALL NOT BE CONSIDERED IN DETERMINING PER DIEM ALLOWANCES FOR MEMBERS IN A TRAVEL STATUS.'

THESE STATUTORY PROVISIONS FOR PAYMENT OF PER DIEM, OR COST OF LIVING ALLOWANCES, TO MEMBERS ON DUTY OUTSIDE THE CONTINENTAL UNITED STATES OR IN ALASKA, INSOFAR AS THEY CONCERN THE LIVING COSTS OF DEPENDENTS, HAVE BEEN CONSTRUED AS APPLICABLE ONLY IN CASES OF MEMBERS, ACCOMPANIED BY DEPENDENTS, WHO ARE SERVING AT PERMANENT DUTY STATIONS OVERSEAS. CONSONANCE WITH THIS CONSTRUCTION, THE TERM "A MEMBER WITH DEPENDENTS" IS DEFINED IN PARAGRAPH 4300-D OF THE JOINT TRAVEL REGULATIONS (CHANGE 67, MARCH 1, 1958), ISSUED PURSUANT TO SUCH STATUTORY PROVISIONS AND EFFECT DURING THE PERIOD INVOLVED IN YOUR CLAIM, AS ONE WHOSE DEPENDENTS RESIDE IN THE VICINITY OF HIS DUTY STATION OUTSIDE THE UNITED STATES AND WHO "IS ENTITLED TO TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE AND IS AUTHORIZED TO HAVE HIS DEPENDENTS PRESENT IN THE AREA IN A MILITARY DEPENDENT STATION.'

ACCORDINGLY, UNDER THESE REGULATIONS, IF A MEMBER WAS ON DUTY AT A STATION OUTSIDE THE UNITED STATES OR IN ALASKA WHERE A GOVERNMENT MESS WAS AVAILABLE AND IF SUCH MEMBER'S DEPENDENTS TRAVELED TO SUCH STATION AND ESTABLISHED A RESIDENCE IN THAT AREA, PAYMENT OF STATION SUBSISTENCE PER DIEM WAS AUTHORIZED AT THE RATE PRESCRIBED FOR A MEMBER WITH DEPENDENTS, UNLESS THE PLACE WHERE HE WAS ASSIGNED TO DUTY WAS IN AN AREA WHERE HIS DEPENDENTS WERE NOT PERMITTED TO ESTABLISH A RESIDENCE, IN WHICH EVENT PAYMENT WAS AUTHORIZED ONLY WHEN HE WAS AUTHORIZED TO HAVE HIS DEPENDENTS PRESENT IN THE AREA IN A MILITARY DEPENDENT STATUS.

IT IS SHOWN THAT DURING THE PERIOD INVOLVED YOUR DEPENDENTS RESIDED IN THE VICINITY OF YOUR DUTY STATION OUTSIDE THE UNITED STATES BUT IT IS ALSO SHOWN THAT DURING SUCH PERIOD YOU WERE NOT ENTITLED TO TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE AND THAT YOU WERE NEVER AUTHORIZED TO HAVE YOUR DEPENDENTS PRESENT IN THE AREA IN A MILITARY DEPENDENT STATUS. UNDER THE REGULATIONS IN EFFECT AT THAT TIME YOU WERE NOT, THEREFORE, ENTITLED TO THE COST OF LIVING ALLOWANCE AS A MEMBER WITH DEPENDENTS FOR ANY PART OF THE PERIOD COVERED BY YOUR CLAIM. THE FACT THAT THE REGULATIONS MAY HAVE BEEN CHANGED AT A LATER DATE CANNOT ADD TO OR DETRACT FROM YOUR RIGHTS UNDER THE REGULATIONS IN EFFECT DURING SUCH PERIOD. FURTHERMORE, NEITHER THE FACT THAT YOUR DEPENDENTS MAY HAVE BEEN ACCORDED SOME MEASURE OF ACCEPTANCE AT YOUR STATION BY PLACING YOUR NAME ON THE SEPARATE RATIONS ROSTER, NOR THE FACT THAT THE AIR FORCE MAY HAVE CONSISTENTLY MADE PAYMENTS IN SIMILAR CIRCUMSTANCES, MAY BE REGARDED AS NULLIFYING THE APPLICABLE REGULATIONS.

ACCORDINGLY, UPON REVIEW, THE SETTLEMENT OF JANUARY 28, 1960, IS SUSTAINED.