B-147924, APR. 9, 1962

B-147924, APR. 9, 1962

TO LIEUTENANT COLONEL WILLIAM T. PHILLIPS, RETIRED:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 18, 1962, REQUESTING FURTHER CONSIDERATION OF YOUR CLAIM FOR REIMBURSEMENT OF THE COST OF TRAVEL PERFORMED BY YOU AND YOUR WIFE FROM NEW YORK, NEW YORK, TO FRANKFURT, GERMANY, SUBSEQUENT TO YOUR PLACEMENT ON THE ARMY OF THE UNITED STATES RETIRED LIST, SEPTEMBER 1, 1960.

IN YOUR LETTER YOU REFERRED TO OUR DECISION, B-147924, DATED FEBRUARY 8, 1962, WHICH SUSTAINED THE DISALLOWANCE OF YOUR CLAIM FOR REIMBURSEMENT FOR TRAVEL EXPENSES FOR YOUR WIFE AND YOURSELF ON THE SS LIBERTE, A FRENCH LINE VESSEL, FROM NEW YORK TO LE HAVRE, FRANCE, AND SUBSEQUENT TRAIN TRAVEL FROM PARIS, FRANCE, TO FRANKFURT, GERMANY, AND YOU APPARENTLY ACKNOWLEDGED THAT THE REGULATIONS CITED THEREIN WERE APPLICABLE IN THE DETERMINATION OF YOUR CLAIM. HOWEVER, YOU CONTEND THAT THEY WERE NOT PROPERLY IMPLEMENTED. YOU SAY YOU REQUESTED SPACE FOR OVERSEAS TRAVEL ONE YEAR IN ADVANCE, BUT THE PERSONNEL INVOLVED MADE NO EFFORT TO ARRANGE PROPER TRANSPORTATION AT THE TIME IT WAS REQUIRED. YOU FURTHER STATE THAT WHEN YOU WERE FINALLY ADVISED TO REPORT SEPTEMBER 6, 1960, AT THE U.S. ARMY TRANSPORTATION TERMINAL COMMAND, BROOKLYN, NEW YORK, ON A ,STAND-BY" BASIS YOUR PRIORITY WAS LOW AND YOU COULD NOT WAIT UNTIL TRANSPORTATION BECAME AVAILABLE, AS YOU WERE NOT FINANCIALLY ABLE TO REMAIN IN NEW YORK FOR MORE THAN A SHORT PERIOD. YOU ALSO SAY THAT THE PASSENGER CONTROL DIVISION AT THE BROOKLYN TERMINAL DID EVERYTHING POSSIBLE TO FIND SPACE FOR YOU AND YOUR WIFE, BUT YOU WERE ONLY ABLE TO OBTAIN SPACE ON THE FRENCH LINE. YOU THEREFORE URGE THAT SINCE YOU USED EVERY MEANS POSSIBLE TO ARRANGE GOVERNMENT APPROVED TRANSPORTATION, YOUR CLAIM FOR REIMBURSEMENT OF THE COST OF TRAVEL BY A FRENCH LINE VESSEL FROM NEW YORK, NEW YORK, TO LE HAVRE, FRANCE, AND LATER TO FRANKFURT, GERMANY, SHOULD BE FAVORABLY CONSIDERED.

AS STATED IN OUR DECISION OF FEBRUARY 8, 1962, APPLICABLE REGULATIONS PROVIDE THAT MILITARY PERSONNEL AUTHORIZED TO TRAVEL OUTSIDE THE CONTINENTAL UNITED STATES ON COMMERCIAL VESSELS AT GOVERNMENT EXPENSE ARE REQUIRED TO USE VESSELS REGISTERED UNDER THE LAWS OF THE UNITED STATES UNLESS THE NONAVAILABILITY OF SUCH VESSELS, OR THE NECESSITY OF THE MISSION REQUIRES THE USE OF A SHIP REGISTERED UNDER A FOREIGN FLAG. IT IS EVIDENT THAT THE NECESSITY OF THE MISSION REFERRED TO IN THESE REGULATIONS PERTAINS TO THE REQUIREMENTS OF GOVERNMENT BUSINESS AS DISTINGUISHED FROM PERSONAL REASONS. THESE REGULATIONS PROVIDE FURTHER THAT GOVERNMENT TRANSPORTATION, IF AVAILABLE, WILL HAVE PRECEDENCE OVER COMMERCIAL VESSELS FOR SUCH TRAVEL.

WE HAVE A REPORT FROM THE OFFICE, CHIEF OF TRANSPORTATION, DEPARTMENT OF THE ARMY, DATED SEPTEMBER 22, 1961, THAT GOVERNMENT TRANSPORTATION WAS AVAILABLE FROM THE UNITED STATES TO EUROPE DURING THE PERIOD SEPTEMBER 1, 1960, TO JUNE 30, 1961, REGULARLY SCHEDULED FLIGHTS HAVING BEEN MAINTAINED FROM MCGUIRE AIR FORCE BASE TO GERMANY BY THE MILITARY AIR TRANSPORT SERVICE AND SAILINGS FROM NEW YORK TO GERMANY BY MILITARY SEA TRANSPORTATION SERVICE. APPARENTLY SUCH TRANSPORTATION WOULD HAVE BEEN MADE AVAILABLE TO YOU WITHIN A REASONABLE PERIOD AND, HENCE, THE FACT THAT THERE MAY HAVE BEEN SOME DELAY IN THE PROCESSING OF YOUR REQUEST FOR AVAILABLE SPACE AFFORDED NO BASIS FOR A VIEW THAT YOU AND YOUR WIFE WERE AUTHORIZED TO TRAVEL TO EUROPE AT GOVERNMENT EXPENSE ON A VESSEL REGISTERED UNDER A FOREIGN FLAG. IN THAT CONNECTION THE RECORD INDICATES THAT YOU WAITED IN NEW YORK LESS THAN A WEEK FOR GOVERNMENT TRANSPORTATION. WHILE YOU SAY YOU REQUESTED OVERSEAS TRANSPORTATION A YEAR IN ADVANCE, SINCE THERE WAS NO ASSURANCE THAT YOU WOULD BE RETIRED AT YOUR REQUEST UNDER THE PROVISIONS OF 10 U.S.C. 3911, THERE WOULD APPEAR TO HAVE BEEN NO OBLIGATION ON THE PART OF THE GOVERNMENT TO ARRANGE FOR TRANSPORTATION PURSUANT TO SUCH AN EARLY REQUEST.

IN SUCH CIRCUMSTANCES WE MUST CONCLUDE THAT UNDER THE APPLICABLE LAWS AND REGULATIONS, YOU ARE NOT ENTITLED TO REIMBURSEMENT FOR ANY PART OF THE EXPENSE INCURRED FOR YOUR TRAVEL AND THAT OF YOUR DEPENDENT FROM NEW YORK, NEW YORK, TO FRANKFURT, GERMANY. ACCORDINGLY, WE HAVE NO CHOICE BUT TO AFFIRM THE PRIOR DECISION IN YOUR CASE.