B-158586, APR. 27, 1966

B-158586, APR. 27, 1966

TO MR. KENNETH WILLIAMS:

REFERENCE IS MADE TO YOUR LETTER DATED APRIL 2, 1966, CONCERNING OUR DECISION TO YOU DATED MARCH 29, 1966, B-158586. IN THAT DECISION, WE SUSTAINED THE ACTION OF OUR CLAIMS DIVISION IN SETTLEMENT DATED JANUARY 28, 1966, DISALLOWING YOUR CLAIM FOR ADDITIONAL REIMBURSEMENT OF THE COST OF COMMERCIAL AIR TRANSPORTATION FOR YOUR DEPENDENT WIFE FROM FRANKFURT, GERMANY, TO NEW YORK, NEW YORK, ON JULY 11, 1964, INCIDENT TO YOUR SERVICE IN THE UNITED STATES ARMY.

IN YOUR LETTER YOU STATE THAT YOU INTERPRET OUR DECISION TO INDICATE THAT YOUR WIFE DID NOT NEED ORDERS TO TRAVEL BY GOVERNMENT CONVEYANCE FROM FRANKFURT, GERMANY, TO THE UNITED STATES. HOWEVER, YOU STATE THAT IT IS YOUR UNDERSTANDING THAT ORDERS WERE NECESSARY AND THAT YOU WERE TOLD AT YOUR OVERSEAS STATION THAT YOUR WIFE WAS NOT AUTHORIZED TRAVEL AT GOVERNMENT EXPENSE. YOU THEREFORE REQUEST AN EXPLANATION AS TO WHY YOU WERE TOLD IN GERMANY THAT TRANSPORTATION OF YOUR DEPENDENT WIFE WAS NOT AUTHORIZED, AND WHEN YOU ARRIVED IN THE UNITED STATES, YOU WERE ADVISED THAT IT WAS AUTHORIZED.

AS INDICATED IN OUR DECISION OF MARCH 29, 1966, UNDER THE AUTHORITY CONTAINED IN SECTION 406 OF TITLE 37, U.S.C. AND THE APPLICABLE PROVISIONS OF THE JOINT TRAVEL REGULATIONS PROMULGATED THEREUNDER, YOU WERE ENTITLED TO THE TRANSPORTATION OF YOUR DEPENDENT WIFE AT GOVERNMENT EXPENSE FROM FRANKFURT, GERMANY, TO THE UNITED STATES, INCIDENT TO THE PROVISIONS OF SPECIAL ORDERS 162, DATED JUNE 25, 1964, WHICH DIRECTED A PERMANENT CHANGE OF STATION FROM YOUR OVERSEAS DUTY STATION TO THE UNITED STATES FOR SEPARATION FROM THE ARMY. WE CITED THE PROVISIONS OF PARAGRAPH M7002-LB OF THE JOINT TRAVEL REGULATIONS, WHICH REQUIRE THE USE BY DEPENDENTS OF AVAILABLE GOVERNMENT TRANSPORTATION, IF NOT INVOLVING A DELAY OF MORE THAN 30 DAYS, AND STATED THAT ACCORDINGLY THERE WAS NO AUTHORITY TO REPAY THE ACTUAL COSTS OF COMMERCIAL TRANSPORTATION USED BECAUSE GOVERNMENT TRANSPORTATION WAS SHOWN TO HAVE BEEN AVAILABLE FOR ALL QUALIFIED DEPENDENTS' TRAVEL. HOWEVER, WE INDICATED THAT WHERE DEPENDENTS ARE AUTHORIZED, AS DISTINGUISHED FROM DIRECTED, TO TRAVEL BY AVAILABLE GOVERNMENT CONVEYANCE BUT USED COMMERCIAL TRANSPORTATION FOR TRANSOCEANIC TRAVEL, REIMBURSEMENT MAY BE MADE AS WAS DONE IN YOUR CASE ON THE BASIS OF THE COST OF SUCH TRAVEL TO THE SPONSORING SERVICE HAD THE TRAVEL BEEN BY GOVERNMENT TRANSPORTATION.

IN OUR DECISION WE STATED THAT WHILE IT WAS ADMINISTRATIVELY REPORTED THAT CONCURRENT TRAVEL FROM GERMANY WAS NOT AUTHORIZED FOR YOUR WIFE, A REPORT FROM THE CHIEF, PASSENGER BRANCH, TRANSPORTATION MOVEMENTS DIVISION, DIRECTORATE OF TRANSPORTATION, DEPARTMENT OF THE ARMY, DATED SEPTEMBER 24, 1965, STATED THAT DURING THE PERIOD INVOLVED THE MILITARY AIR TRANSPORT SERVICE OPERATED REGULAR SCHEDULED FLIGHTS FROM FRANKFURT, GERMANY, TO MCGUIRE AIR FORCE BASE, NEW JERSEY, AND THE MILITARY SEA TRANSPORTATION SERVICE MAINTAINED REGULAR SAILINGS FROM BREMERHAVEN, GERMANY, TO NEW YORK, AND THAT, ACCORDINGLY, IT MUST BE PRESUMED THAT YOUR WIFE WOULD HAVE BEEN FURNISHED GOVERNMENT TRANSPORTATION IN DUE COURSE HAD PROPER APPLICATION THEREFOR BEEN MADE AND HAD SHE AWAITED AUTHORIZATION FOR SUCH TRANSPORTATION RATHER THAN TRAVELING IMMEDIATELY TO THE UNITED STATES BY PAN AMERICAN AIRWAY SYSTEM. WE THEREFORE HELD ON THE BASIS OF THAT PRESUMPTION THAT YOU WERE PROPERLY REIMBURSED IN THE AMOUNT IT WOULD HAVE COST THE GOVERNMENT HAD YOUR WIFE RETURNED TO THE UNITED STATES BY MILITARY AIR TRANSPORT SERVICE.

ALTHOUGH YOU STATE THAT YOU PERSONALLY INQUIRED ABOUT YOUR WIFE'S TRANSPORTATION FROM GERMANY AND WERE TOLD THAT SHE WAS NOT AUTHORIZED TRAVEL AT GOVERNMENT EXPENSE, THE EXACT REASON WHY YOU WERE REFUSED GOVERNMENT TRANSPORTATION TO THE UNITED STATES, IF SUCH WAS THE CASE, HAS NOT BEEN REPORTED TO US. HOWEVER, THE FACT THAT YOU MAY HAVE BEEN ERRONEOUSLY ADVISED IN THAT REGARD WOULD NOT AFFECT YOUR RIGHT IN THE MATTER, AS IT IS A WELL-SETTLED PRINCIPLE OF LAW THAT THE GOVERNMENT IS NOT BOUND BY THE NEGLIGENT OR ERRONEOUS ACTS OF ITS OFFICERS OR AGENTS IN THE ABSENCE OF A STATUTE SO PROVIDING. SEE ROBERTSON V. SICHEL, 127 U.S. 507, 515.