A-21969, JUNE 29, 1928, 7 COMP. GEN. 836

A-21969: Jun 29, 1928

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IT MUST BE SHOWN THAT BY DILIGENT EFFORT IT WAS NOT POSSIBLE TO SECURE THEIR TRANSPORTATION BY GOVERNMENT TRANSPORT WITH REASONABLE RELATION TO THE DATE OF THE OFFICER'S RELIEF FROM DUTY AT THE OVERSEAS STATION. WHERE IT IS TO HIS ADVANTAGE TO BE CREDITED WITH THE COST OF COMMERCIAL TRANSPORTATION BY THE DIRECT ROUTE. TO AUTHORIZE PAYMENT THEREOF IT MUST BE CLEARLY SHOWN BY THE EVIDENCE THAT IT WOULD HAVE BEEN NECESSARY TO HAVE TRANSPORTED HIS DEPENDENTS BY COMMERCIAL VESSEL OVER THE DIRECT ROUTE. 1928: THERE IS FOR CONSIDERATION THE CLAIM OF LIEUT. YOU WILL MAKE ALL NECESSARY TRANSFERS. YOU WILL SETTLE ACCOUNTS AT THE U.S. UPON COMPLETION OF SETTLING ACCOUNTS YOU WILL REGARD YOURSELF DETACHED FROM DUTY AS SUPPLY OFFICER AT THE U.S.

A-21969, JUNE 29, 1928, 7 COMP. GEN. 836

TRANSPORTATION OF DEPENDENTS OF NAVAL OFFICERS FROM OVERSEAS STATIONS TO THE UNITED STATES - AVAILABILITY OF GOVERNMENT TRANSPORTS THE LAW AUTHORIZING TRANSPORTATION OF DEPENDENTS TO OR FROM OVERSEAS STATIONS REQUIRES THAT SUCH DEPENDENTS BE TRANSPORTED BY GOVERNMENT TRANSPORT "IF AVAILABLE," AND TO AUTHORIZE REIMBURSEMENT OF COMMERCIAL COST OF THEIR TRANSPORTATION, IT MUST BE SHOWN THAT BY DILIGENT EFFORT IT WAS NOT POSSIBLE TO SECURE THEIR TRANSPORTATION BY GOVERNMENT TRANSPORT WITH REASONABLE RELATION TO THE DATE OF THE OFFICER'S RELIEF FROM DUTY AT THE OVERSEAS STATION. IN THE CASE OF TRAVEL FROM THE PHILIPPINE ISLANDS, AND ESPECIALLY WHERE THE OFFICER TRAVELS BY A CIRCUITOUS ROUTE, WHERE IT IS TO HIS ADVANTAGE TO BE CREDITED WITH THE COST OF COMMERCIAL TRANSPORTATION BY THE DIRECT ROUTE, TO AUTHORIZE PAYMENT THEREOF IT MUST BE CLEARLY SHOWN BY THE EVIDENCE THAT IT WOULD HAVE BEEN NECESSARY TO HAVE TRANSPORTED HIS DEPENDENTS BY COMMERCIAL VESSEL OVER THE DIRECT ROUTE.

DECISION BY COMPTROLLER GENERAL MCCARL, JUNE 29, 1928:

THERE IS FOR CONSIDERATION THE CLAIM OF LIEUT. CYRUS B. KITCHEN FOR TRANSPORTATION EXPENSES OF HIS WIFE FOR TRAVEL BY COMMERCIAL VESSEL FROM MANILA, P.I., TO NEW YORK, N.Y., ON CHANGE OF STATION ORDERS DATED OCTOBER 5, 1927, AS FOLLOWS: FROM: THE COMMANDER IN CHIEF. TO: LIEUT. CYRUS B. KITCHEN (S.C.), U.S. NAVY. VIA: COMMANDANT SIXTEENTH NAVAL DISTRICT. SUBJECT: CHANGE OF DUTY.

1. ON 31 OCTOBER, 1927, AND WHEN DIRECTED BY YOUR COMMANDING OFFICER, YOU WILL MAKE ALL NECESSARY TRANSFERS, INCLUDING FUNDS ON HAND AND ON DEPOSIT AND GOVERNMENT PROPERTY IN YOUR POSSESSION TO YOUR RELIEF; YOU WILL SETTLE ACCOUNTS AT THE U.S. NAVAL STATION, OLONGAPO, P.I. UPON COMPLETION OF SETTLING ACCOUNTS YOU WILL REGARD YOURSELF DETACHED FROM DUTY AS SUPPLY OFFICER AT THE U.S. NAVAL STATION, OLONGAPO, P.I., AND FROM SUCH OTHER DUTY AS MAY HAVE BEEN ASSIGNED OU; WILL PROCEED VIA THE FIRST AVAILABLE COMMERCIAL CONVEYANCE TO SAN FRANCISCO, CALIFORNIA, THERE BEING NO GOVERNMENT CONVEYANCE AVAILABLE; THENCE BY RAIL TO NEW YORK, N.Y., AND REPORT TO THE COMMANDANT THIRD NAVAL DISTRICT, SOUTH AND WHITEHALL STREETS, FOR DUTY ON BOARD THE RECEIVING SHIP AT NEW YORK.

2. COMMERCIAL TRANSPORTATION FOR YOUR DEPENDENT FROM MANILA, P.I., TO SAN FRANCISCO, CALIFORNIA, IS AUTHORIZED, THERE BEING NO GOVERNMENT CONVEYANCE AVAILABLE; THENCE BY RAIL TO NEW YORK, N.Y.

3. SHOULD YOU SO DESIRE YOU ARE AUTHORIZED TO PROCEED VIA EUROPE AT YOUR OWN EXPENSE TO NEW YORK, N.Y., WITH THE UNDERSTANDING THAT YOU WILL NOT BE ENTITLED TO ANY EXPENSES IN EXCESS OF THAT AUTHORIZED BY YOUR ORDERS CONTAINED IN PARAGRAPH ONE, ABOVE.

4. YOU ARE AUTHORIZED TO DELAY FOR A PERIOD OF TWO MONTHS WITH THE UNDERSTANDING THAT YOU WILL ARRIVE IN NEW YORK NOT MORE THAN THREE MONTHS AND FIFTEEN DAYS AFTER YOU LEAVE THE ASIATIC STATION. THIS DELAY SHALL COUNT AS LEAVE.

5. KEEP THE BUREAU OF NAVIGATION INFORMED OF YOUR ADDRESS, AND REPORT DATED OF COMMENCEMENT AND EXPIRATION OF LEAVE ON FORM N.NAV. 296.

6. PRIOR TO YOUR DEPARTURE FROM THE ASIATIC STATION, YOU WILL REPORT TO THE COMMANDER IN CHIEF BY DISPATCH THE VESSEL IN WHICH TAKING PASSAGE, DATE OF SAILING FOR AND PROBABLE DATE OF ARRIVAL IN NEW YORK, N.Y.

7. THE TRAVEL INVOLVED IN THE EXECUTION OF THESE ORDERS IS REQUIRED BY THE PUBLIC INTERESTS.

8. PERMISSION TO PROCEED VIA EUROPE IS GRANTED ON THE UNDERSTANDING THAT ANY ADDITIONAL COST OF TRANSPORTATION MUST BE BORNE BY YOU. IN CASE YOU DO NOT DESIRE TO BEAR THE EXPENSE INVOLVED, THE AUTHORITY CONTAINED IN PARAGRAPHS THREE AND FOUR IS CANCELLED AND YOU WILL CARRY OUT THE ORDERS CONTAINED IN PARAGRAPHS ONE AND SIX.

9. IN CASE YOU FAIL TO AVAIL YOURSELF OF THE AUTHORIZATION TO PROCEED VIA EUROPE, ON ARRIVAL SAN FRANCISCO, YOU WILL TELEGRAPH THE BUREAU OF NAVIGATION FOR FURTHER INSTRUCTIONS AND PROCEED NO FURTHER UNTIL SUCH INSTRUCTIONS HAVE BEEN RECEIVED.

SECTION 12 OF THE ACT OF MAY 18, 1920, 41 STAT. 604, PROVIDES:

* * * THAT TRANSPORTATION SUPPLIED THE WIFE OR DEPENDENT CHILD OR CHILDREN OF SUCH OFFICER, TO OR FROM STATIONS BEYOND THE CONTINENTAL LIMITS OF THE UNITED STATES, SHALL NOT BE OTHER THAN BY GOVERNMENT TRANSPORT IF SUCH TRANSPORTATION IS AVAILABLE; * * *

CLAIMANT WAS DETACHED ON NOVEMBER 19, 1927, AND WITH HIS WIFE LEFT OLONGAPO, P.I., ON NOVEMBER 20, 1927, ARRIVING AT NEW YORK FEBRUARY 21, 1928. A DELAY OF TWO MONTHS IN REPORTING WAS AUTHORIZED.

SCHEDULE OF SAILINGS OF VESSELS OF THE GOVERNMENT TRANSPORT SERVICE SHOWS THAT THE U.S. NAVAL TRANSPORT HENDERSON SAILED FROM MANILA TO SAN FRANCISCO ON OCTOBER 24, 1927, AND THE U.S. ARMY TRANSPORT THOMAS SAILED FROM MANILA DECEMBER 6, 1927, AND ARRIVED AT SAN FRANCISCO DECEMBER 31, 1927.

IT IS NOT SHOWN IN WHAT MANNER IT WAS DETERMINED ON OCTOBER 5, 1927, THAT TRANSPORTATION ON GOVERNMENT TRANSPORT WOULD NOT BE AVAILABLE FOR THE OFFICER'S WIFE AT OR ABOUT THE TIME THE OFFICER WOULD BE RELIEVED FROM DUTY SOME SIX WEEKS THEREAFTER. UNDER DATE OF APRIL 16, 1928, IN REPLY TO REQUEST FROM THE BUREAU OF NAVIGATION FOR ADVICE WHETHER, FOR THE TRAVEL INVOLVED UNDER ORDERS OF OCTOBER 5, 1927, GOVERNMENT TRANSPORTATION WAS AVAILABLE FOR THE WIFE OF LIEUTENANT KITCHEN WITHIN 30 DAYS OF THE DATE OF HIS DETACHMENT, THE COMMANDER IN CHIEF ASIATIC FLEET MADE THE FOLLOWING STATEMENT:

2. GOVERNMENT TRANSPORTATION WAS NOT AVAILABLE FOR LIEUTENANT CYRUS B. KITCHEN (S.C.), OR FOR HIS DEPENDENT WIFE, WITHIN THIRTY DAYS FROM THE DATE OF HIS DETACHMENT 19 NOVEMBER, 1927.

3. THE CHAUMONT ARRIVED AT MANILA FROM THE UNITED STATES ON 4 OCTOBER, 1927, AND REMAINED ON THE ASIATIC STATION UNTIL 3 FEBRUARY, 1928, ON WHICH DATE THE VESSEL SAILED FROM MANILA FOR SAN FRANCISCO WITH A FULL CAPACITY OF PASSENGERS. THE HENDERSON SAILED FROM MANILA FOR SAN FRANCISCO ON 25 OCTOBER, 1927, WITH A FULL CAPACITY OF PASSENGERS, AND RETURNED TO MANILA FROM SAN FRANCISCO ON 4 FEBRUARY, 1928.

THE LAW IS SPECIFIC AND APPLIES TO TRANSPORTATION ON ARMY TRANSPORTS AS WELL AS ON NAVY TRANSPORTS. THE STATEMENT MADE BY THE COMMANDER IN CHIEF ASIATIC FLEET FAILED TO CONSIDER THE AVAILABILITY OF TRANSPORTATION ON THE ARMY TRANSPORT THOMAS, WHICH SAILED ON DECEMBER 6, 1927; NOR HAS THERE BEEN NEGATIVED THE PROBABILITY THAT HAD TIMELY APPLICATION BEEN MADE FOR TRANSPORTATION FOR LIEUTENANT KITCHEN'S WIFE THEREON IT COULD HAVE BEEN FURNISHED. THE EVIDENCE SUBMITTED IS UNSATISFACTORY AS ESTABLISHING THE FACT THAT TRANSPORTATION ON GOVERNMENT TRANSPORT FOR THE WIFE OF LIEUTENANT KITCHEN WAS NOT AVAILABLE AT OR ABOUT THE TIME THAT OFFICER WAS DETACHED FROM DUTY UNDER ORDERS OF OCTOBER 5, 1927, AND MAY NOT BE ACCEPTED AS ESTABLISHING HIS RIGHT TO REIMBURSEMENT FOR TRANSPORTATION OF HIS WIFE BY COMMERCIAL VESSEL.

THE CLAIM HAS BEEN SUBMITTED WITH A SUGGESTION THAT---

THE ONLY OFFICIAL COMPETENT TO DETERMINE WHETHER OR NOT GOVERNMENT TRANSPORTATION IS AVAILABLE FROM THE ASIATIC STATION TO THE UNITED STATES IS THE COMMANDER IN CHIEF ASIATIC FLEET.

IN AUTHORIZING, IN DECISION OF NOVEMBER 21, 1925, 5 COMP. GEN. 358, PAYMENT OF AN AMOUNT EQUIVALENT TO THE COST TO THE GOVERNMENT FOR TRANSPORTATION OF DEPENDENTS OF OFFICERS FROM THE ASIATIC STATION TO THE UNITED STATES WHERE THE DEPENDENTS ACTUALLY TRAVELED VIA EUROPE, IT IS CLEARLY INDICATED THAT CONCLUSIONS OF OFFICERS AS TO THE AVAILABILITY OF GOVERNMENT TRANSPORTS WOULD NOT BE ACCEPTABLE. IN THAT DECISION IT WAS SAID:

SECTION 12 OF THE ACT OF MAY 18, 1920, 41 STAT. 604, AUTHORIZED THE FURNISHING OF TRANSPORTATION FOR THE WIFE AND DEPENDENT CHILD OR CHILDREN OF AN OFFICER ORDERED TO MAKE A PERMANENT CHANGE OF STATION AND PROVIDED:

"* * * THAT IF THE COST OF SUCH TRANSPORTATION EXCEEDS THAT FOR TRANSPORTATION FROM THE OLD TO THE NEW STATION THE EXCESS COST SHALL BE PAID TO THE UNITED STATES BY THE OFFICER CONCERNED: PROVIDED FURTHER, THAT TRANSPORTATION SUPPLIED THE WIFE OR DEPENDENT CHILD OR CHILDREN OF SUCH OFFICER, TO OR FROM STATIONS BEYOND THE CONTINENTAL LIMITS OF THE UNITED STATES SHALL NOT BE OTHER THAN BY GOVERNMENT TRANSPORT, IF SUCH TRANSPORTATION IS AVAILABLE: * * *"

THE ISSUANCE OF TRANSPORTATION IN EXCESS OF THAT REQUIRED BY TRAVEL FROM THE OLD TO THE NEW STATION CHARGEABLE TO THE OFFICER AUTHORIZED IN THIS ACT IS TO PROVIDE FOR SITUATIONS WHERE THE DEPENDENTS OF THE OFFICER ARE NOT RESIDING WITH HIM AT HIS OLD STATION. IT DOES NOT CONTEMPLATE THE ISSUANCE OF TRANSPORTATION TO ANY POINT SELECTED TO THE AMOUNT IN VALUE OF TRANSPORTATION BETWEEN THE OLD AND THE NEW STATION. TRANSPORTATION FROM OVERSEAS STATIONS IS REQUIRED TO BE BY GOVERNMENT TRANSPORT. WHERE THERE IS A REGULAR SERVICE BY GOVERNMENT TRANSPORT BETWEEN AN OVERSEAS STATION AND THE UNITED STATES, SUCH TRANSPORT IS AVAILABLE UNLESS IT CAN BE SHOWN THAT ON THE VESSEL OR VESSELS SAILING AT OR ABOUT THE TIME OF THE OFFICER'S RELIEF FROM DUTY AT THE OVERSEAS STATION NO ACCOMMODATIONS WERE AVAILABLE FOR HIS DEPENDENTS ON SUCH GOVERNMENT TRANSPORT. THE MERE DIFFERENCE BETWEEN SAILING DATES OF GOVERNMENT TRANSPORTS AND COMMERCIAL VESSELS WILL NOT CONSTITUTE GOVERNMENT TRANSPORTS UNAVAILABLE ON THE DATE OF SAILING OF THE COMMERCIAL VESSEL; THAT IS, THERE MUST BE A GENUINE NONAVAILABILITY OF GOVERNMENT TRANSPORT BEFORE THERE IS A RIGHT TO TRANSPORTATION BY COMMERCIAL VESSEL. 29 MS. COMP. DEC. 903.

THE LAST PARAGRAPH OF SECTION 12 OF THE ACT OF JUNE 10, 1922,PROVIDES:

"IN LIEU OF THE TRANSPORTATION IN KIND AUTHORIZED BY SECTION 12 OF AN ACT ENTITLED "AN ACT TO (ETC.)" APPROVED MAY 18, 1920, TO BE FURNISHED BY THE UNITED STATES FOR DEPENDENTS, THE PRESIDENT MAY AUTHORIZE THE PAYMENT IN MONEY OF AMOUNTS EQUAL TO SUCH COMMERCIAL TRANSPORTATION COSTS WHEN SUCH TRAVEL SHALL HAVE BEEN COMPLETED. DEPENDENT CHILDREN SHALL BE SUCH AS ARE DEFINED IN SECTION 4 OF THIS ACT.'

THE RIGHT TO REIMBURSEMENT OF COMMERCIAL COSTS OF TRANSPORTATION AUTHORIZED BY THIS PROVISION AND THE REGULATIONS ISSUED THEREUNDER IS APPLICABLE TO TRANSPORTATION "FROM STATIONS BEYOND THE CONTINENTAL LIMITS OF THE UNITED STATES" ONLY WHEN GOVERNMENT TRANSPORT IS NOT AVAILABLE AS HEREIN INDICATED. IF GOVERNMENT TRANSPORT IS ACTUALLY AVAILABLE THERE IS NO RIGHT TO REIMBURSEMENT. YOU QUESTION (C) IS ANSWERED BY SAYING THAT WHERE GOVERNMENT TRANSPORT IS SHOWN TO BE NOT AVAILABLE, AS HEREIN INDICATED, REIMBURSEMENT MAY BE MADE OF THE COMMERCIAL COST OF TRANSPORTATION BETWEEN THE OVERSEAS STATION AND THE NEW STATION BY THE SHORTEST USUALLY TRAVELED ROUTE "WHEN SUCH TRAVEL SHALL HAVE BEEN COMPLETED.'

THAT DECISION IS THE BASIS AND AUTHORITY FOR PAYMENTS SUCH AS HERE CLAIMED. WITHOUT QUESTIONING THE CORRECTNESS OF THE CONCLUSION OF THE COMMANDER IN CHIEF, THE REQUIREMENT OF THE DECISION IS THAT EVIDENCE OF THE FACT MUST BE SUPPLIED AND IT MUST BE SHOWN IN ADDITION THAT BY DILIGENT EFFORT IT WOULD NOT HAVE BEEN POSSIBLE TO HAVE SECURED TRANSPORTATION FOR THE DEPENDENTS BY GOVERNMENT TRANSPORT WITH A REASONABLE RELATION TO THE DATE OF THE OFFICER'S RELIEF FROM DUTY AT THE OVERSEAS STATION. THE LAW HAS REQUIRED SUCH DEPENDENTS TO BE TRANSPORTED BY GOVERNMENT TRANSPORT "IF AVAILABLE; " THAT IS A QUESTION OF FACT EASILY SUSCEPTIBLE OF DEMONSTRATION IF IT IS DESIRED TO ESTABLISH THE FACT, AND THE CONCLUSION OF AN OFFICER, HOWEVER HIGH IN RANK, DOES NOT DISPENSE WITH THE NECESSITY FOR THE EVIDENCE ESTABLISHING THE FACT.

IN PERMITTING PAYMENT WHERE TRAVEL WAS NOT BY THE DIRECT ROUTE, THE PURPOSE OF THE DECISION WAS TO AUTHORIZE ONLY REIMBURSEMENT OF WHAT IT WOULD HAVE ACTUALLY COST THE GOVERNMENT IN THE CIRCUMSTANCES OF EACH PARTICULAR CASE HAD THE TRANSPORTATION BEEN BY THE DIRECT ROUTE; IF GOVERNMENT TRANSPORT IS AVAILABLE, ONLY THE COST OF TRANSPORTATION, IF ANY, PAYABLE FOR TRAVEL BY DEPENDENTS ON GOVERNMENT TRANSPORT IS AUTHORIZED TO BE INCLUDED IN THE COMPUTATION. REGULAR SCHEDULES ARE MAINTAINED FOR GOVERNMENT TRANSPORTS FROM THE PHILIPPINE ISLANDS, AND MOST OFFICERS AND THEIR FAMILIES TRAVEL THEREON. IN ANY CASE OF TRAVEL BY COMMERCIAL VESSEL FROM THE PHILIPPINES, AND ESPECIALLY WHERE THE OFFICER TRAVELS BY A CIRCUITOUS ROUTE WHERE IT IS TO HIS ADVANTAGE TO BE CREDITED WITH THE COST OF COMMERCIAL TRANSPORTATION BY THE DIRECT ROUTE, IT MUST BE CLEARLY SHOWN BY EVIDENCE THAT IT WOULD HAVE BEEN NECESSARY TO HAVE TRANSPORTED HIS DEPENDENTS BY COMMERCIAL VESSEL OVER THE DIRECT ROUTE. PAYMENT IS AUTHORIZED ON THE EVIDENCE FURNISHED IN THIS CASE ONLY OF THE COST OF RAIL TRAVEL IN THE UNITED STATES.

IT IS TO BE NOTED IN THIS CONNECTION THAT NOT ONLY IS THE OFFICER INFORMED SIX WEEKS BEFORE HIS DETACHMENT THAT NO GOVERNMENT TRANSPORTATION WILL BE AVAILABLE, ON HIS DETACHMENT, THE DATE OF WHICH WAS NOT DEFINITELY DETERMINED, BUT HE IS ADVISED THAT SHOULD HE NOT TRAVEL BY THE CIRCUITOUS ROUTE AND ARRIVE AT SAN FRANCISCO HE SHOULD NOT TRAVEL TO THE STATION ASSIGNED HIM IN THE ORDERS BUT AWAIT FURTHER ORDERS FROM THE BUREAU OF NAVIGATION. THE INFERENCES ARISING ARE APPARENT, AND SEE IN THIS CONNECTION, DECISION A-22630, 7 COMP. GEN. 840. AS WAS POINTED OUT IN DECISION 5 COMP. GEN. 358, PAYMENT, EXCEPT AS REIMBURSEMENT FOR ACTUALLY INCURRED EXPENSES FOR TRAVEL BY THE DIRECT AND OFFICIAL ROUTE, IS OF DOUBTFUL LEGALITY. IF THE RESULT OF AUTHORIZING PAYMENT EQUIVALENT TO THE COST TO THE GOVERNMENT BY THE DIRECT ROUTE WHERE TRAVEL IS BY CIRCUITOUS ROUTE IS TO INCREASE THE COST TO THE GOVERNMENT OVER THE COST IF TRAVEL IS CONFINED TO THE DIRECT AND OFFICIAL ROUTE, FURTHER CONSIDERATION OF THE MATTER WILL BE NECESSARY TO ASSURE WITHOUT QUESTION THE CONFINEMENT OF EXPENDITURES FOR SUCH TRAVEL WITHIN THE LIMITS FIXED BY LAW.