B-161426, SEP. 15, 1967

B-161426, SEP. 15, 1967

TRANSPORTATION - DEPENDENTS - MILITARY PERSONNEL - ENLISTMENT DECISION TO CLAIMANT RE REIMBURSEMENT OF EXPENSES FOR TRAVEL OF SON BY COMMERCIAL AIR FROM SPAIN TO NEW YORK FOR PURPOSES OF ENLISTMENT. INDIVIDUAL WHO TRAVELED BY COMMERCIAL AIR FROM SPAIN TO NEW YORK WHERE HE SUBMITTED APPLICATION FOR ENLISTMENT AND ENLISTED MAY NOT BE REIMBURSED FOR TRAVEL EXPENSE NOR MAY THE APPLICANT'S FATHER BE REIMBURSED FOR SON'S TRAVEL EXPENSES.

TO MR. MELTON ESSEX:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 15, 1967, REQUESTING THAT WE RECONSIDER OUR DECISION OF JUNE 30, 1967, B-161426, SUSTAINING THE DISALLOWANCE OF THE CLAIM OF YOUR SON, JOHN D. ESSEX, FOR REIMBURSEMENT OF EXPENSES INVOLVED IN HIS TRAVEL BY COMMERCIAL AIR FROM IBIZA, BALEARES, SPAIN, TO NEW YORK, NEW YORK, ON JUNE 7, 1966, FOR THE PURPOSE OF ENLISTING IN THE UNITED STATES NAVY.

IN YOUR LETTER, YOU SAY THAT OUR DECISION WITHOUT JUSTIFICATION REFUTES THE INFORMATION ON WHICH YOU RELIED IN SENDING YOUR SON TO NEW YORK FOR ENLISTMENT AND APPEARS TO DENY RESPONSIBILITY ON THE PART OF THE GOVERNMENT FOR THE ERRONEOUS ACTIONS OF ITS PROPERLY APPOINTED OFFICIALS IN THE PERFORMANCE OF THEIR DUTIES. IN FURTHER EXPLANATION OF YOUR PREVIOUS STATEMENTS, YOU STATE THAT YOU RECEIVED THE LETTER FROM THE COMMANDER, U.S. NAVAL ACTIVITIES, SPAIN, A FEW HOURS AFTER YOUR SON'S DEPARTURE FOR NEW YORK, BUT WERE UNABLE TO REACH YOUR SON AT THE FINAL TERMINAL POINT IN MADRID, SPAIN, EN ROUTE TO THE UNITED STATES. WITH RESPECT TO THE USE OF AIR CARRIERS REGISTERED UNDER THE LAWS OF THE UNITED STATES, YOU STATE THAT THE IBERIA AIR LINES WAS THE ONLY CARRIER AT THAT TIME WHICH CONNECTED DIRECTLY FROM IBIZA, SPAIN, TO THE UNITED STATES. YOU THEREFORE REQUEST FURTHER RECONSIDERATION OF YOUR CLAIM.

AS STATED IN OUR DECISION OF JUNE 30, 1967, B-161426, UNDER THE REGULATIONS GOVERNING THE PROCEDURES FOR ENLISTMENT IN THE UNIFORMED SERVICES PROMULGATED PURSUANT TO THE STATUTORY AUTHORITY CONTAINED IN SECTION 410 (A) (5) AND (B) OF TITLE 37, U.S.C. AN INDIVIDUAL WHO HAS SUBMITTED AN APPLICATION FOR ENLISTMENT TO A UNIFORMED SERVICE, IS ENTITLED TO REIMBURSEMENT FOR TRAVEL HE IS ORDERED TO PERFORM TO THE PLACE OF PHYSICAL EXAMINATION OR THE PLACE OF ACCEPTANCE FOR ENLISTMENT. SINCE YOUR SON DID NOT SUBMIT AN APPLICATION FOR ENLISTMENT IN THE NAVY UNTIL HE REACHED NEW YORK CITY, HIS TRAVEL FROM SPAIN TO NEW YORK FOR THE PURPOSE OF ENLISTING WAS NOT UNDER ORDERS BY COMPETENT AUTHORITY WITHIN THE PURVIEW OF APPLICABLE REGULATIONS AND IT IS OUR VIEW THAT THERE IS NO LEGAL BASIS UPON WHICH REIMBURSEMENT OF HIS TRAVEL EXPENSE MAY BE AUTHORIZED.

OUR CLAIMS DIVISION SETTLEMENT OF APRIL 4, 1967, AND OUR DECISION OF JUNE 30, 1967, SUSTAINING THAT SETTLEMENT RELATED TO THE CLAIM OF YOUR SON FOR REIMBURSEMENT OF THE EXPENSES INCIDENT TO HIS TRAVEL FROM SPAIN TO NEW YORK. IN YOUR LETTER, HOWEVER, YOU REFER TO YOUR CLAIM AND APPARENTLY YOU ARE OF THE OPINION THAT YOU ARE ENTITLED TO REIMBURSEMENT FOR THESE EXPENSES. IN THIS CONNECTION, YOU ARE ADVISED THAT WHILE THE REGULATIONS PROVIDE FOR CERTAIN ORDERED TRAVEL AT GOVERNMENT EXPENSE BY AN APPLICANT FOR ENLISTMENT, WHATEVER RIGHT TO REIMBURSEMENT THAT MIGHT ARISE INCIDENT TO PERFORMING SUCH TRAVEL WOULD ACCRUE TO THE APPLICANT. IN THE ABSENCE OF ANY CONTRACTUAL PROVISIONS, HOWEVER, WE ARE NOT AWARE OF ANY AUTHORITY TO REIMBURSE A PARENT OF THE APPLICANT FOR THE COST OF SUCH TRANSPORTATION.

THIS OFFICE IS WITHOUT AUTHORITY TO SETTLE CLAIMS AGAINST THE UNITED STATES SOLELY ON THE BASIS OF EQUITABLE OR MORAL CONSIDERATIONS. WE MAY AUTHORIZE PAYMENT OF A CLAIM FROM PUBLIC FUNDS ONLY WHEN SUCH PAYMENT IS AUTHORIZED BY THE APPLICABLE LAW AND REGULATIONS. WHILE YOUR SON'S TRAVEL APPARENTLY WAS PERFORMED BECAUSE OF RELIANCE ON ERRONEOUS INFORMATION YOU AND HE RECEIVED, IT LONG HAS BEEN OUR VIEW IN SUCH CASES THAT EVEN IF THE ERRONEOUS INFORMATION RELIED ON WAS FURNISHED BY AN OFFICER OR EMPLOYEE OF THE GOVERNMENT, THAT FACT DOES NOT AFFORD A LEGAL BASIS FOR REIMBURSEMENT OF THE EXPENSES INCURRED.

WITH RESPECT TO THE AVAILABILITY OF AMERICAN REGISTERED TRANSPORTATION FOR THE AIR TRAVEL PERFORMED, SUCH DETERMINATION IS A MATTER FOR THE ADMINISTRATIVE OFFICE TO MAKE, DEPENDING ON THE CIRCUMSTANCES IN EACH CASE. WHILE YOU SAY THAT DIRECT TRANSPORTATION FROM IBIZA, BALEARES ISLANDS, TO NEW YORK BY UNITED STATES REGISTERED AIRCRAFT WAS NOT AVAILABLE, YOU ALSO SAY THAT YOUR SON DEPARTED FOR NEW YORK FROM MADRID. THEREFORE, THE AVAILABILITY OF UNITED STATES REGISTERED AIRCRAFT FOR THAT PORTION OF THE TRAVEL WOULD BE FOR CONSIDERATION IN DETERMINING HIS ENTITLEMENT IF REIMBURSEMENT WERE OTHERWISE AUTHORIZED.

UPON RECONSIDERATION OF THE MATTER, WE ARE OF THE OPINION THAT THE CONCLUSIONS REACHED IN THE DECISION OF JUNE 30, 1967, WERE CORRECT AND REQUIRED UNDER THE APPLICABLE LAW AND REGULATIONS. ACCORDINGLY, WE HAVE NO CHOICE OTHER THAN TO AFFIRM THAT DECISION.