B-176405, OCT 30, 1972

B-176405, OCT 30, 1972

MILITARY PERSONNEL - TRAVEL EXPENSES - FOREIGN REGISTRY AIRCRAFT CONCERNING THE DISALLOWANCE OF A CLAIM FOR REIMBURSEMENT BY JAMES W. PARKER FOR AIR TRANSPORTATION FOR HIMSELF AND HIS DEPENDENTS FROM LANDSTUHL, GERMANY TO NEW YORK, N. Y. REIMBURSEMENT IS PROHIBITED WHERE TRAVEL IS MADE ON A VESSEL OR AIRCRAFT OF FOREIGN REGISTRY WHEN VESSELS OR AIRCRAFT OF U. S. REGISTRY ARE AVAILABLE. SINCE AN AMERICAN CARRIER WAS AVAILABLE AT THE TIME OF DEPARTURE, THIS CLAIM IS DISALLOWED.

TO DR. JAMES W. PARKER:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JUNE 6, 1972, IN EFFECT REQUESTING REVIEW OF SETTLEMENT BY OUR TRANSPORTATION AND CLAIMS DIVISION DATED MAY 18, 1972, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT OF THE COST THE GOVERNMENT WOULD HAVE INCURRED TO PROVIDE TRANSOCEANIC AIR TRANSPORTATION FOR YOU AND YOUR DEPENDENTS FROM LANDSTUHL, GERMANY, TO NEW YORK, NEW YORK, INCIDENT TO YOUR RETIREMENT FROM THE UNITED STATES ARMY.

YOUR CLAIM WAS DISALLOWED FOR THE REASON THAT YOUR TRANSOCEANIC TRAVEL WAS PERFORMED ON A FOREIGN FLAG CARRIER AND THAT THERE IS NO EVIDENCE IN THE FILE TO SHOW THAT A DETERMINATION HAD BEEN MADE BY APPROPRIATE ORDER ISSUING AUTHORITY THAT AN AMERICAN FLAG CARRIER WAS EITHER UNAVAILABLE OR IMPRACTICAL AS REQUIRED IN THE REGULATIONS.

IN REQUESTING REVIEW OF THE MATTER, YOU SAY THAT FOLLOWING YOUR RETIREMENT YOU TOURED VARIOUS PARTS OF EUROPE BEFORE TRAVELING TO YOUR HOME IN THE UNITED STATES AND THAT UPON ARRIVAL IN ATHENS, GREECE, YOU RECEIVED A CABLE WHICH STATED THAT YOUR MOTHER HAD PASSED AWAY IN HOUSTON, TEXAS, YOUR HOME OF RECORD. FURTHER, YOU SAY THAT YOUR FATHER HAD PREVIOUSLY SUFFERED A DISABLING STROKE AND SINCE YOU ARE THE ONLY SURVIVING CHILD, HE REQUIRED YOUR IMMEDIATE CARE. AS A RESULT, YOU WERE IN A DESPERATE HURRY TO GET TO HOUSTON AND CONTEND THAT YOU DID NOT HAVE TIME TO CONFER WITH ORDER ISSUING AUTHORITY. YOU SAY, HOWEVER, THAT YOU DID CONTACT THE AIRBASE NEAREST ATHENS BY TELEPHONE AND WERE ADVISED THAT YOUR CHANCES OF OBTAINING SPACE-AVAILABLE BOOKINGS THROUGH THAT SOURCE ON SUCH SHORT NOTICE WERE PRACTICALLY NIL AND THAT THERE WAS NO SPACE AVAILABLE ON TRANSWORLD AIRLINES OUT OF ATHENS AT THAT TIME OF YEAR.

THE RECORD SHOWS THAT BY SPECIAL ORDERS NO. 73, DATED APRIL 15, 1970, ISSUED BY HEADQUARTERS, DEPARTMENT OF THE ARMY, YOU WERE RELEASED FROM ACTIVE DUTY EFFECTIVE APRIL 29, 1970, BY REASON OF PHYSICAL DISABILITY AND WERE TRANSFERRED TO THE RETIRED LIST EFFECTIVE APRIL 30, 1970. AT THE TIME OF YOUR RETIREMENT IT APPEARS THAT YOUR LAST PERMANENT DUTY STATION WAS IN LANDSTUHL, GERMANY. YOU AND YOUR DEPENDENTS LEFT FOR THE UNITED STATES FROM ATHENS, GREECE ON AUGUST 31, 1970, TRAVELING FROM ATHENS TO NEW YORK, NEW YORK, WITH A LAYOVER STOP IN ROME, ITALY, ON A FOREIGN REGISTRY AIRCRAFT, BRITISH EUROPEAN AIRWAYS CORPORATION, ARRIVING IN NEW YORK ON SEPTEMBER 2, 1970. TRAVEL FROM NEW YORK, TO HOUSTON, TEXAS WAS BY EASTERN AIRLINES, ARRIVING IN HOUSTON ON SEPTEMBER 3, 1970. THE RECORD SHOWS THAT YOU WERE ALLOWED THE AMOUNT OF $301.14 ON DO VOUCHER NO. 888221, DATED MAY 10, 1971, WHICH AMOUNT REPRESENTS AN ALLOWANCE FOR THE TRAVEL FOR YOURSELF AND YOUR DEPENDENTS FROM NEW YORK, NEW YORK TO HOUSTON, TEXAS ON A MILEAGE BASIS.

THE ENTITLEMENT OF A MEMBER OF THE UNIFORMED SERVICE FOR TRAVEL AND TRANSPORTATION EXPENSES FOR HIMSELF AND HIS DEPENDENTS IS GOVERNED BY 37 U.S.C. 404 AND 406 AND THE PROVISIONS OF THE JOINT TRAVEL REGULATIONS PROMULGATED PURSUANT THERETO. PARAGRAPH M4158 OF THOSE REGULATIONS PROVIDES IN PERTINENT PART:

"1. GENERAL.

"A. TRAVEL TO HOME OF SELECTION AUTHORIZED. A MEMBER ON ACTIVE DUTY MAY SELECT HIS HOME AND BE ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES THERETO FROM HIS LAST DUTY STATION AS PRESCRIBED IN PAR. M4150 OR M4159, AS APPLICABLE WHEN HE:

"1. IS RETIRED FOR PHYSICAL DISABILITY ***."

PARAGRAPH M4159-4 OF THE JOINT TRAVEL REGULATIONS GOVERNS REIMBURSEMENT ENTITLEMENTS TO MEMBER FOR TRANSOCEANIC TRANSPORTATION IN ALL SITUATIONS, WITH SUBPARAGRAPH 4C OF THAT PARAGRAPH, SPECIFICALLY PROHIBITING REIMBURSEMENT FOR ANY TRAVEL ON VESSELS OR AIRCRAFT OF FOREIGN REGISTRY "EXCEPT WHEN THE USE OF CARRIERS OF UNITED STATES REGISTRY IS IMPRACTICAL OR CARRIERS OF UNITED STATES REGISTRY ARE NOT AVAILABLE." THIS PROHIBITION IS A RESTATEMENT OF SECTION 901 OF THE MERCHANT MARINE ACT OF 1936, 49 STAT. 2015, AS AMENDED, 46 U.S.C. 1241(A).

IN THIS CONNECTION, PARAGRAPH M2150 OF THE SAME REGULATIONS PROVIDES THAT SUBJECT TO CERTAIN EXCEPTIONS, VESSELS OR AIRCRAFT REGISTERED UNDER THE LAWS OF THE UNITED STATES WILL BE USED. THE ONLY EXCEPTIONS PERMITTED AND NOTED THEREIN, ARE IN CASES WHERE THE ORDER ISSUING AUTHORITY DETERMINES THAT THE USE OF VESSELS OR AIRCRAFT REGISTERED UNDER THE LAWS OF THE UNITED STATES WOULD SERIOUSLY INTERFERE WITH OR PREVENT THE PERFORMANCE OF OFFICIAL BUSINESS OR WHERE THE TRANSPORTATION OR OTHER OFFICER DETERMINES THAT VESSELS OR AIRCRAFT REGISTERED UNDER THE LAWS OF THE UNITED STATES ARE NOT AVAILABLE. IN THOSE LIMITED SITUATIONS, USE OF VESSELS OR AIRCRAFT OF FOREIGN REGISTRY MAY BE AUTHORIZED; HOWEVER, THAT PARAGRAPH REQUIRES THAT A STATEMENT OF THE FACTS AND OF SUCH DETERMINATION MUST BE CONTAINED IN OR APPENDED TO TRAVEL ORDERS OR OTHER APPROPRIATE TRANSPORTATION DOCUMENT. A FURTHER PROVISO IN THAT PARAGRAPH STATES THAT DETERMINATIONS OF IMPRACTICALITY OR NONAVAILABILITY

"MAY NOT BE BASED UPON MERE INCONVENIENCE IN SECURING TRANSPORTATION IN VESSELS OR AIRCRAFT OF UNITED STATES REGISTRY, SHORT DELAYS IN AWAITING SUCH TRANSPORTATION, THE DESIRE TO ARRANGE CIRCUITOUS ROUTES FOR THE CONVENIENCE OF A TRAVELER, OR ANY SIMILAR REASON. ISSUING AUTHORITIES AND TRANSPORTATION OFFICERS WILL BE PREPARED TO JUSTIFY BY ADEQUATE EVIDENCE DETERMINATIONS MADE BY THEM ***."

OUR RECORDS SHOW THAT TRANSWORLD AIRLINES OPERATES A REGULARLY SCHEDULED NONSTOP DAILY FLIGHT FROM ATHENS TO NEW YORK THAT ARRIVES IN NEW YORK ON THE SAME DATE AS ITS DEPARTURE FROM ATHENS. THE FLIGHT, NO. 881, DEPARTS ATHENS AT 12:45 HOURS AND ARRIVES IN NEW YORK AT 17:25 HOURS. WHILE YOU MAY HAVE BEEN INFORMED THAT SUCH TRANSPORTATION WAS NOT AVAILABLE ON THE DAY OF YOUR DEPARTURE FROM ATHENS, SINCE THE RECORD SHOWS THAT IT TOOK YOU THREE DAYS TO TRAVEL FROM ATHENS TO HOUSTON, WHICH APPARENTLY INCLUDED A LAY-OVER IN ROME, IT WOULD APPEAR THAT YOU COULD HAVE OBTAINED AMERICAN AIR-CARRIER SERVICE OR GOVERNMENT PROCURED TRANSPORTATION FOR YOUR TRANSOCEANIC TRAVEL WITHIN A REASONABLE TIME.

IT IS REGRETTABLE THAT YOU FELT IT NECESSARY TO PROCURE IMMEDIATE TRANSOCEANIC TRANSPORTATION FROM ATHENS TO NEW YORK, FOR YOURSELF AND YOUR DEPENDENTS, ON FOREIGN REGISTRY AIRCRAFT. HOWEVER, IT IS THE VIEW OF THIS OFFICE THAT THE REASONS WHICH YOU HAVE GIVEN ARE INSUFFICIENT TO PLACE YOUR SITUATION WITHIN THE EXCEPTIONS OF THE REGULATIONS REQUIRING USE OF AMERICAN REGISTRY AIRCRAFT.

ACCORDINGLY, THE ACTION TAKEN BY OUR TRANSPORTATION AND CLAIMS DIVISION IS SUSTAINED.