B-169483, APR. 22, 1970

B-169483, APR. 22, 1970

TRANSPORTATION--DEPENDENTS--MILITARY PERSONNEL--ELIGIBILITY OF MEMBER- LENGTH OF OVERSEAS TOUR OF DUTY RETURN TRAVEL EXPENSE OF OFFICER'S DEPENDENTS, WHOSE TRAVEL TO OVERSEAS STATION WAS NOT AUTHORIZED, IS NOT REIMBURSABLE NOTWITHSTANDING OFFICER'S RELIANCE ON ERRONEOUS ADVICE THAT DEPENDENTS WOULD BECOME COMMAND- SPONSORED 180 DAYS AFTER ARRIVAL, SINCE RIGHT TO DEPENDENTS' TRAVEL IS NOT ABSOLUTE, HERE HAVING BEEN PROHIBITED EXCEPT AS TO CERTAIN KEY PERSONNEL, AND IT COULD NOT BE AUTHORIZED BECAUSE OFFICER'S REMAINING OBLIGATED SERVICE PERIOD WAS INSUFFICIENT FOR "WITH DEPENDENTS" TOUR. MOREOVER, PERMISSION TO LIVE OFF BASE WITH DEPENDENTS COULD NOT CONFER MILITARY DEPENDENT STATUS, ABSENT APPROVAL OF DEPENDENTS' PRESENCE AT OVERSEAS STATION BY APPROPRIATE COMMANDER. SEE COMP. GEN. DECS. AND CT. CASE CITED.

TO MR. THOMAS F. ROBERTS:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 23, 1970, REQUESTING REVIEW OF THE SETTLEMENT OF MARCH 18, 1970, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT OF THE COST OF YOUR DEPENDENTS' TRAVEL (WIFE AND SON) FROM TAIPEI, TAIWAN, TO SEATTLE, WASHINGTON, ON AUGUST 26, 1969, WHILE YOU WERE SERVING ON ACTIVE DUTY AS A CAPTAIN, UNITED STATES AIR FORCE.

BY CHANGE OF PERMANENT STATION ORDERS DATED APRIL 12, 1968, YOU WERE RELIEVED FROM DUTY AT SANDIA BASE, ALBUQUERQUE, NEW MEXICO, AND DIRECTED TO PROCEED AND REPORT TO 6217 COMBAT SUPPORT GROUP (PACAF) (CHING CHUAN KANG AIR BASE) APO SAN FRANCISCO 96319. TRANSPORTATION OF YOUR DEPENDENTS TO YOUR OVERSEAS STATION AT GOVERNMENT EXPENSE WAS NOT AUTHORIZED. IT IS STATED IN THE REMARKS SECTION OF YOUR ORDERS THAT YOU WERE NOT REQUIRED TO SELECT TOUR OPTION SINCE YOU HAD AN ESTABLISHED DATE OF SEPARATION OF SEPTEMBER 9, 1969. THIS INDICATES THAT THE BALANCE OF YOUR OBLIGATED SERVICE WAS INSUFFICIENT TO PERMIT YOU TO SERVE A TOUR FOR WHICH TRANSPORTATION OF DEPENDENTS WAS AUTHORIZED.

IN SUBMITTING YOUR CLAIM YOU STATED THAT AFTER YOUR ARRIVAL AT YOUR DUTY STATION OVERSEAS AT TAIWAN YOU RECEIVED INFORMATION TO THE EFFECT THAT YOU COULD BRING YOUR DEPENDENTS THERE AT YOUR OWN EXPENSE AND THAT AFTER THEY HAD BEEN THERE FOR 180 DAYS THEY WOULD BECOME COMMAND SPONSORED DEPENDENTS. ALSO, YOU STATED THAT YOU WERE ADVISED THAT IF THEY REMAINED THERE FOR ONE YEAR YOU WOULD BE ENTITLED TO THEIR RETURN TRANSPORTATION AT GOVERNMENT EXPENSE. YOU STATED FURTHER THAT RELYING ON THIS INFORMATION YOUR DEPENDENTS TRAVELED TO YOUR OVERSEAS STATION ARRIVING THERE ON AUGUST 15, 1968, AND THAT YOU REQUESTED AND WERE GIVEN PERMISSION TO LIVE OFF BASE. BY ORDERS DATED AUGUST 14, 1969, YOU WERE DIRECTED TO PROCEED TO MCCHORD AIR FORCE BASE, WASHINGTON, FOR SEPARATION FROM THE SERVICE. TRANSPORTATION OF YOUR DEPENDENTS AT GOVERNMENT EXPENSE WAS REFUSED AND YOU HAD TO PAY FOR THEIR RETURN TRAVEL.

YOUR CLAIM FOR REIMBURSEMENT FOR THE COST OF YOUR DEPENDENTS' TRANSPORTATION WAS DISALLOWED BY SETTLEMENT DATED MARCH 18, 1970, FOR THE REASON THAT YOUR OVERSEA COMMANDER STATED THAT THE RECORD FAILS TO SHOW THAT YOUR DEPENDENTS HAD BEEN RECOGNIZED AS COMMAND SPONSORED.

IN YOUR PRESENT LETTER YOU REFER TO AF FORM 1098, PERSONNEL ACTION REQUEST DATED DECEMBER 30, 1968, AND TO THE ACTION TAKEN IN SECTION VII, REMARKS, INDICATING "ACCOMPANIED:1." YOU SAY THIS SHOWS THAT YOUR DEPENDENTS WERE CONSIDERED AS HAVING BEEN RECOGNIZED AS COMMAND SPONSORED. ALSO, YOU REFER TO YOUR LETTER DATED AUGUST 13, 1968, TO HEADQUARTERS COMMAND IN WHICH YOUR REQUEST TO RESIDE OFF BASE WAS APPROVED. YOU SAY THIS SHOWS THAT YOUR OVERSEA COMMANDER AUTHORIZED YOUR DEPENDENTS TO BE PRESENT IN THE VICINITY OF YOUR DUTY STATION.

THE STATUTORY AUTHORITY FOR TRANSPORTATION OF DEPENDENTS OF MEMBERS OF THE UNIFORMED SERVICES, 37 U.S.C. 406, EXPRESSLY PROVIDES THAT TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE UPON A MEMBER'S ORDERED CHANGE OF PERMANENT STATION SHALL BE SUBJECT TO SUCH CONDITIONS AND LIMITATIONS, FOR SUCH GRADES, RANKS, AND RATINGS, AND TO AND FROM SUCH PLACES AS THE SECRETARIES CONCERNED MAY PRESCRIBE. THE RIGHT TO DEPENDENTS' TRAVEL IS NOT AN ABSOLUTE ONE BUT MAY BE ADMINISTRATIVELY SUSPENDED OR DENIED FOR REASONS OF MILITARY NECESSITY OR EXPEDIENCE. CULP V. UNITED STATES, 76 CT. CL. 507; 35 COMP. GEN. 61 (1955); AND 47 COMP. GEN. 445, 446 (1968).

REGULATIONS IN THE MATTER, ISSUED BY THE SECRETARIES CONCERNED, ARE CONTAINED IN CHAPTER 7 OF THE JOINT TRAVEL REGULATIONS. PARAGRAPH M7000- 15 OF THE REGULATIONS PROVIDES THAT TRANSPORTATION OF DEPENDENTS TO A STATION OUTSIDE THE UNITED STATES IS NOT AUTHORIZED IN THE CASE OF A MEMBER WHOSE UNEXPIRED TERM OF SERVICE IS LESS THAN THE PRESCRIBED WITH DEPENDENTS OVERSEAS TOUR FOR THE AREA INVOLVED UNLESS THE MEMBER VOLUNTARILY EXTENDS HIS TERM OF SERVICE TO PERMIT COMPLETION OF THE PRESCRIBED TOUR. AND, PARAGRAPH M7000-17 OF THE REGULATIONS PROVIDES THAT TRANSPORTATION OF DEPENDENTS FROM AN OVERSEAS AREA TO THE UNITED STATES IS NOT AUTHORIZED WHEN THE PRESENCE OF THE DEPENDENTS AT THE OVERSEAS DUTY STATION WAS NOT AUTHORIZED OR APPROVED BY THE APPROPRIATE MILITARY COMMANDER.

A COMMAND-SPONSORED DEPENDENT IS DEFINED IN PARAGRAPH M1150 OF THE JOINT TRAVEL REGULATIONS, INSOFAR AS HERE MATERIAL, AS A DEPENDENT ENTITLED TO TRANSPORTATION AS PRESCRIBED IN PARAGRAPH M7000 AND ENDORSED BY THE APPROPRIATE MILITARY COMMANDER TO BE PRESENT IN A MILITARY DEPENDENT STATUS, EVEN THOUGH THE MEMBER WAS NOT ENTITLED TO TRANSPORTATION OF DEPENDENTS ON THE EFFECTIVE DATE OF ORDERS ASSIGNING HIM TO DUTY OUTSIDE THE UNITED STATES.

IMPLEMENTING REGULATIONS FOR THE DEPARTMENT OF THE AIR FORCE DURING THE PERIOD IN QUESTION, ATTACHMENT 36, AIR FORCE MANUAL 75-4J2 (C) DATED JUNE 28, 1968, STATE THAT TRAVEL OF DEPENDENTS TO CHING CHUAN KANG AIR BASE IS PROHIBITED EXCEPT FOR CERTAIN KEY POSITIONS. PARAGRAPH 4023, AIR FORCE MANUAL 36-11J DATED JUNE 27, 1968, PROVIDES RULES FOR STABLISHMENT OF DATA ELIGIBLE FOR RETURN FROM OVERSEAS (DEROS). PARAGRAPH 4024 PROVIDES FOR ALTERATIONS TO DEROS. RULE 7, TABLE 4-8, STATES THAT IF OFFICER IS JOINED BY DEPENDENTS, OR INDIVIDUALLY SPONSORED DEPENDENTS REMAIN IN AREA MORE THAN 120 DAYS, ADD "ACCOMPANIED BY DEPENDENTS" TOUR LENGTH TO DATE OFFICER DEPARTED CONTINENTAL UNITED STATES. NOTE 4 STATES THAT THE 120-DAY PERIOD WILL COMMENCE THE DAY THE DEPENDENT JOINED SPONSOR.

SINCE, EXCEPT FOR CERTAIN KEY-POSITION PERSONNEL, TRAVEL OF DEPENDENTS TO CHING CHUAN KANG AIR BASE WAS PROHIBITED AND THE REMAINDER OF YOUR PERIOD OF OBLIGATED SERVICE WAS LESS THAN THAT REQUIRED FOR A WITH DEPENDENTS TOUR WHEN YOU WERE ORDERED OVERSEAS, YOU WERE NOT ELIGIBLE FOR TRANSPORTATION OF YOUR DEPENDENTS AT GOVERNMENT EXPENSE UNDER YOUR CHANGE OF PERMANENT STATION ORDERS TO TAIWAN.

WITH RESPECT TO YOUR CONTENTION THAT UNDER THE UNITED STATES AIR FORCE REGULATION YOUR DEPENDENTS WERE RECOGNIZED AS COMMAND SPONSORED WHEN YOU WERE PERMITTED TO LIVE OFF BASE AND "ACCOMPANIED CODE 1" WAS ENTERED ON AF FORM 1098, THE DEPARTMENT OF THE AIR FORCE REPORTS THAT AS OF DECEMBER 30, 1968, "ACCOMPANIED CODE 1" MERELY REFLECTED THAT ONE OR MORE OF THE SPONSOR'S DEPENDENTS RESIDED WITH HIM IN THE LOCAL AREA. IT IS NOT REPORTED, NOR DOES IT OTHERWISE APPEAR, THAT THE QUOTED TERM CONSTITUTES AN ENDORSEMENT BY THE COMMANDER OF THE PRESENCE OF YOUR DEPENDENTS IN THE AREA IN A MILITARY DEPENDENT STATUS THE FACT THAT YOU WERE PERMITTED TO LIVE OFF BASE WITH YOUR DEPENDENTS DOES NOT AFFECT THEIR STATUS AS INDIVIDUALLY SPONSORED DEPENDENTS.

THE PURPOSE OF THE REGULATIONS IN PROVIDING THAT A MEMBER MAY BE CONSIDERED AS ACCOMPANIED BY DEPENDENTS AFTER THE DEPENDENTS HAVE BEEN IN THE AREA FOR 120 DAYS IS TO PERMIT HIM TO OBTAIN POST EXCHANGE AND COMMISSARY PRIVILEGES FOR THE DEPENDENTS. IT DOES NOT ESTABLISH ENTITLEMENT TO TRANSPORTATION OF DEPENDENTS. SEE B-157874, DECEMBER 10, 1965, COPY ENCLOSED. AND AF FORM 1098 DID NOT CHANGE EITHER YOUR ACTIVE DUTY SERVICE COMMITMENT, YOUR DATE OF RETURN FOR SEPARATION, OR THE LENGTH OF YOUR OVERSEAS TOUR.

SINCE YOUR DEPENDENTS DID NOT, AND UNDER THE REGULATIONS AS EXPLAINED ABOVE COULD NOT, LEGALLY HAVE THE STATUS OF COMMAND-SPONSORED DEPENDENTS FOR TRANSPORTATION PURPOSES YOU WERE NOT ENTITLED TO THEIR TRANSPORTATION TO OR FROM TAIPEI, TAIWAN. IN THE SETTLEMENT OF CLAIMS AGAINST THE UNITED STATES WE MUST COMPLY WITH THE APPLICABLE PROVISIONS OF THE GOVERNING LAW AND REGULATIONS. THE FACT THAT YOU ACTED IN GOOD FAITH AND RELIED ON ERRONEOUS ADMINISTRATIVE REPRESENTATIONS DOES NOT AFFORD US A LEGAL BASIS TO ALLOW YOUR CLAIM. ACCORDINGLY, THE SETTLEMENT OF MARCH 18, 1970, IS SUSTAINED.

IN THE STATEMENT MADE WITH YOUR CLAIM YOU SAY THAT CAPTAIN ROBERT D. CHRISTENSEN, A MEDICAL OFFICER WHOSE SITUATION WAS SIMILAR TO YOURS, WAS AUTHORIZED RETURN TRANSPORTATION FOR HIS DEPENDENTS ON SEPTEMBER 3, 1969, TWO DAYS AFTER YOU LEFT TAIWAN. IF CAPTAIN CHRISTENSEN WAS FURNISHED TRANSPORTATION UNDER CIRCUMSTANCES NOT FACTUALLY DISTINGUISHABLE FROM YOUR CASE, SUCH ERRONEOUS ACTION WOULD NOT, OF COURSE, PROVIDE A BASIS FOR ALLOWING YOUR CLAIM. THE QUESTION OF HIS ENTITLEMENT TO TRANSPORTATION OF HIS DEPENDENTS AT GOVERNMENT EXPENSE IS A MATTER FOR CONSIDERATION IN THE AUDIT OF THE ACCOUNTS OF THE DISBURSING OFFICER CONCERNED. SUCH ACTION AS MAY BE APPROPRIATE WILL BE TAKEN IN THE AUDIT OF THE ACCOUNT OF THE DISBURSING OFFICER.