B-161426, JUN. 30, 1967

B-161426, JUN. 30, 1967

TO MR. MELTON ESSEX:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 18, 1967, REQUESTING RECONSIDERATION OF OUR SETTLEMENT DATED APRIL 4, 1967, ADDRESSED TO YOUR SON, JOHN D. ESSEX, USN, IN WHICH WE DISALLOWED HIS CLAIM FOR REIMBURSEMENT FOR HIS TRAVEL FROM IBIZA, BALEARES, SPAIN, TO NEW YORK, NEW YORK, ON JUNE 7, 1966.

ON JUNE 7, 1966, YOUR SON TRAVELED BY IBERIA AIR LINES FROM IBIZA, SPAIN, TO NEW YORK CITY AT PERSONAL EXPENSE AT A COST OF $294.30, FOR THE PURPOSE OF ENLISTING IN THE UNITED STATES NAVY. THE DEPARTMENT OF THE NAVY HAS REPORTED THAT HE EXECUTED AN APPLICATION FOR ENLISTMENT IN THE REGULAR NAVY AT NEW YORK ON JUNE 14, 1966, AND ENLISTED THERE ON JULY 11, 1966. AT THE TIME OF ENLISTMENT, HE LISTED HIS HOME OF RECORD AS IBIZA, SPAIN.

IT APPEARS FROM THE CORRESPONDENCE IN THE FILE THAT IN RELIANCE ON THE INFORMATION FURNISHED BY YOU BY THE AMERICAN CONSUL AT BARCELONA, SPAIN, THAT NO FACILITIES WERE AVAILABLE IN EUROPE FOR ENLISTMENT OF YOUR SON IN THE NAVY AND ON ERRONEOUS INFORMATION SUPPLIED BY A RECRUITING OFFICER IN NEW YORK TO THE SAME EFFECT, YOUR SON TRAVELED ON JUNE 7, 1966, BY COMMERCIAL AIRCRAFT NOT REGISTERED UNDER THE LAWS OF THE UNITED STATES FROM IBIZA, SPAIN, TO NEW YORK FOR THE PURPOSE OF ENLISTING THERE. THAT DAY, YOU RECEIVED A LETTER DATED JUNE 2, 1966, FROM THE COMMANDER, U.S. NAVAL ACTIVITIES, SPAIN, ADVISING THAT FACILITIES FOR ENLISTMENT WERE AVAILABLE AT ROTA, SPAIN, AND LISTING THE REQUIREMENTS FOR ENLISTMENT AT THAT STATION. THE LETTER STATED THAT UPON BEING SWORN INTO THE NAVY, TRANSPORTATION FOR YOUR SON'S TRANSFER TO THE UNITED STATES WOULD BE FURNISHED BY THE GOVERNMENT.

ON NOVEMBER 25, 1966, YOUR SON CLAIMED REIMBURSEMENT IN THE AMOUNT OF $294.30, FOR THE TRAVEL HE PERFORMED JUNE 7, 1966, FROM IBIZA, SPAIN, TO NEW YORK. HIS CLAIM WITH ATTACHED CORRESPONDENCE WAS TRANSMITTED TO YOUR OFFICE FOR SETTLEMENT AND BY SETTLEMENT DATED APRIL 4, 1967, IT WAS DISALLOWED FOR THE REASONS THERE STATED.

IN YOUR LETTER OF APRIL 18, 1967, REQUESTING RECONSIDERATION OF OUR SETTLEMENT, YOU CONTEND THAT YOU MADE TIMELY INQUIRY AT THE AMERICAN CONSULATE AS TO HOW AND WHERE YOUR SON COULD ENLIST; THAT YOU WERE SPECIFICALLY ADVISED THAT THERE WERE NO PROVISIONS FOR OVERSEAS ENLISTMENT, AND THAT YOUR SON WOULD HAVE TO RETURN TO THE UNITED STATES FOR THAT PURPOSE. YOU EXPRESSED THE BELIEF THAT THE SEVERAL LETTERS BETWEEN YOU AND THE CONSUL IN THE MATTER OF YOUR SON'S ENLISTMENT QUALIFIED HIM AS AN APPLICANT FOR ENLISTMENT WITHIN THE PURVIEW OF THE APPLICABLE REGULATIONS AND YOU MAINTAINED THAT NOT ONLY SHOULD TRANSPORTATION BE PAID BUT THAT HE SHOULD ALSO RECEIVE THE PER DIEM ALLOWANCE AUTHORIZED BY PARAGRAPH M4205-3 OF THE JOINT TRAVEL REGULATIONS. ACCORDINGLY, YOU REQUEST INFORMATION AS TO WHAT FURTHER STEPS TO TAKE TO SECURE REIMBURSEMENT FOR THE EXPENSES INCURRED AS A RESULT OF THE ERRONEOUS INFORMATION YOU RECEIVED.

PARAGRAPH M5050-1, JOINT TRAVEL REGULATIONS, PROMULGATED PURSUANT TO THE STATUTORY AUTHORITY CONTAINED IN SECTION 410 (A) (5) AND (B) OF TITLE 37, U.S.C. PROVIDES IN PERTINENT PART THAT APPLICANTS FOR ENLISTMENT IN THE REGULAR SERVICES SHALL BE FURNISHED TRANSPORTATION AND MEAL TICKETS, IF AVAILABLE, FOR TRAVEL FROM THE PLACE WHERE THEY MADE APPLICATION FOR ENLISTMENT OR FROM THEIR HOMES TO THE PLACE/S) OF PHYSICAL EXAMINATION, OR PLACE OF ACCEPTANCE FOR ENLISTMENT, OR BOTH, INCLUDING RETURN TRAVEL IN THE EVENT THE APPLICANT IS REJECTED OR IS ACCEPTED AND ORDERED TO RETURN HOME TO AWAIT FURTHER ORDERS. PARAGRAPH M5050-2 PROVIDES THAT IN THE EVENT TRANSPORTATION REQUESTS AND/OR MEAL TICKETS ARE NOT AVAILABLE FOR ISSUANCE TO APPLICANTS, REIMBURSEMENT FOR TRANSPORTATION PURCHASED FROM PERSONAL FUNDS, SUPPORTED BY RECEIPTS IF PULLMAN OR PARLOR CAR ACCOMMODATIONS ARE UTILIZED, WILL BE MADE ON AN ACTUAL COST BASIS (INCLUDING TAX) PLUS A PER DIEM ALLOWANCE FOR EACH DAY AS AUTHORIZED IN PARAGRAPH M4205-3.

PARAGRAPH M4205-3, JOINT TRAVEL REGULATIONS, PRESCRIBES REIMBURSEMENT FOR OCCASIONAL MEALS AND QUARTERS WHILE TRAVELING UNDER CONDITIONS OUTLINED IN THE VARIOUS PARAGRAPHS REFERRED TO IN THAT SUBPARAGRAPH. RELATIVE TO TRANSOCEANIC TRAVEL, PARAGRAPH M2150 OF THE JOINT TRAVEL REGULATIONS PROVIDES IN EFFECT THAT VESSELS OR AIRCRAFT REGISTERED UNDER THE LAWS OF THE UNITED STATES WILL BE USED FOR ALL TRAVEL AND TRANSPORTATION OUTSIDE CONTINENTAL UNITED STATES, EXCEPT WHERE SUCH CARRIERS ARE NOT AVAILABLE OR THEIR USE IS IMPRACTICABLE.

INASMUCH AS THE RECORD SHOWS THAT YOUR SON APPLIED FOR ENLISTMENT IN THE REGULAR NAVY IN NEW YORK CITY WHERE HE WAS THEN LOCATED, AND SINCE HE WAS ACCEPTED FOR ENLISTMENT IN THAT CITY, HIS ENTITLEMENT UNDER APPLICABLE REGULATIONS FOR ANY TRAVEL REQUIRED TO BE PERFORMED INCIDENT TO THE ENLISTMENT PROCEEDINGS, WAS REQUIRED TO BE DETERMINED ON THE BASIS OF NEW YORK CITY BEING THE PLACE WHERE HE WAS LOCATED WHEN HE MADE APPLICATION FOR ENLISTMENT. THE INQUIRIES YOU AND YOUR WIFE MADE AT THE AMERICAN CONSULATE IN BARCELONA, SPAIN, AND AT A RECRUITING OFFICE IN NEW YORK CITY AS TO WHETHER YOUR SON COULD ENLIST IN SPAIN DID NOT CONSTITUTE AN APPLICATION BY HIM FOR ENLISTMENT.

UNDER THE REGULATIONS, AN INDIVIDUAL WHO HAS SUBMITTED TO A UNIFORMED SERVICE AN APPLICATION FOR ENLISTMENT IS ENTITLED TO REIMBURSEMENT FOR TRAVEL HE IS ORDERED TO PERFORM TO THE PLACE OF PHYSICAL EXAMINATION OR THE PLACE OF ACCEPTANCE FOR ENLISTMENT. THE TRAVEL TO NEW YORK THAT YOUR SON PERFORMED, HOWEVER, WAS NOT PURSUANT TO ORDERS BUT WAS ENTIRELY VOLUNTARY FOR THE PURPOSE OF MAKING APPLICATION THERE UPON HIS ARRIVAL. THE REGULATIONS DO NOT PROVIDE FOR REIMBURSEMENT IN THESE CIRCUMSTANCES.

IT IS TO BE NOTED, ALSO, THAT AN AIR CARRIER NOT REGISTERED UNDER THE LAWS OF THE UNITED STATES WAS USED BY YOUR SON, AND THERE IS NO SHOWING OF AN ADMINISTRATIVE DETERMINATION THAT CARRIERS REGISTERED UNDER THE LAWS OF THE UNITED STATES WERE NOT AVAILABLE OR THAT THE USE OF SUCH CARRIERS WAS IMPRACTICABLE. THEREFORE IT IS DOUBTFUL THAT REIMBURSEMENT WOULD BE AUTHORIZED IN ANY EVENT.

IT IS UNFORTUNATE THAT YOUR SON'S TRAVEL WAS PERFORMED BECAUSE OF ERRONEOUS INFORMATION YOU RECEIVED. HOWEVER, THE ACTION TAKEN IN RELIANCE ON SUCH INFORMATION, EVEN THOUGH FURNISHED BY AN OFFICER OF THE GOVERNMENT, DOES NOT, IN OUR OPINION, AFFORD A LEGAL BASIS FOR REIMBURSEMENT OF THE EXPENSES INVOLVED.