B-124056, JUL. 28, 1955

B-124056, JUL. 28, 1955

TO A. LIPMAN, DISBURSING OFFICER, DEPARTMENT OF THE NAVY:

YOUR LETTER OF MAY 5, 1955, REQUESTED AN ADVANCE DECISION ON A VOUCHER STATED IN FAVOR OF LIEUTENANT JOHN F. GILLESPIE, USNR, FOR REIMBURSEMENT OF THE COST OF TRANSPORTATION OF HIS DEPENDENTS (WIFE AND TWO CHILDREN) FROM SAN FRANCISCO, CALIFORNIA, TO TOKYO, JAPAN.

BY ORDERS DATED AUGUST 6, 1954, LIEUTENANT GILLESPIE WAS TRANSFERRED FROM DUTY IN THE UNITED STATES TO JAPAN FOR DUTY WITH NAVY SURGICAL TEAM NO. 17. THE ORDERS STATED THAT "BUPERS INSTRUCTION 4600.5 APPLIES.' UNDER THAT INSTRUCTION MEMBERS DESIRING TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE TO JAPAN WERE REQUIRED TO FIRST REPORT TO THEIR OVERSEAS STATIONS AND THEN MAKE APPLICATION FOR ENTRY APPROVAL AND TRAVEL AUTHORIZATION FOR THEIR DEPENDENTS. PRIOR TO THE OFFICER'S DEPARTURE FROM THE UNITED STATES, HE WAS OFFICIALLY ADVISED THAT BECAUSE OF THE NATURE OF HIS ASSIGNED DUTIES HE WOULD NOT BE ELIGIBLE FOR GOVERNMENT TRANSPORTATION FOR HIS DEPENDENTS TO JAPAN OR GOVERNMENT HOUSING FOR THEM IN JAPAN. AFTER REPORTING FOR DUTY OVERSEAS, HE WAS AGAIN ADVISED THAT TRAVEL AUTHORIZATION FOR HIS DEPENDENTS AND THEIR ENTRY INTO JAPAN WOULD NOT BE AUTHORIZED BECAUSE HE WAS ASSIGNED AS A MEMBER OF A SURGICAL TEAM AND HIS DUTIES WOULD REQUIRE PROLONGED PERIODS OF ADDITIONAL TEMPORARY DUTY AWAY FROM HIS PERMANENT DUTY STATION. NOTWITHSTANDING SUCH ADVICE, HIS DEPENDENTS (WIFE AND TWO CHILDREN) TRAVELED BY COMMERCIAL AIRCRAFT AT PERSONAL EXPENSE FROM SAN FRANCISCO, CALIFORNIA, TO TOKYO, JAPAN, BETWEEN OCTOBER 24 AND 26, 1954, FOR WHICH HE CLAIMS REIMBURSEMENT.

IT LONG HAS BEEN HELD, UNDER STATUTES WHICH PROVIDE THAT UPON A PERMANENT CHANGE OF STATION MILITARY PERSONNEL SHALL BE ENTITLED TO TRANSPORTATION OF THEIR DEPENDENTS AT GOVERNMENT EXPENSE FROM THE OLD TO THE NEW STATION, THAT THE RIGHT TO SUCH TRANSPORTATION AT GOVERNMENT EXPENSE IS NOT AN ABSOLUTE ONE BUT ONE WHICH MIGHT BE ADMINISTRATIVELY SUSPENDED OR DENIED FOR MILITARY REASONS. IT HAS BEEN FURTHER HELD THAT WHERE TRANSPORTATION OF DEPENDENTS IS ADMINISTRATIVELY REFUSED BY REASON OF MILITARY NECESSITY, OR EXPEDIENCY, AN OFFICER MAY NOT TRANSPORT THEM AT PERSONAL EXPENSE AND THEN RECOVER THE COST UNDER A STATUTE AUTHORIZING REIMBURSEMENT FOR TRAVEL OF DEPENDENTS ON A PERMANENT CHANGE OF STATION. CULP V. UNITED STATES, 76 C.CLS. 507.

THE CURRENT STATUTORY AUTHORITY FOR THE TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE IS CONTAINED IN SUBSECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 814, WHICH PROVIDES THAT MEMBERS OF THE UNIFORMED SERVICES WHEN ORDERED TO MAKE A CHANGE OF PERMANENT STATION SHALL BE ENTITLED TO TRANSPORTATION OF DEPENDENTS UNDER SUCH CONDITIONS AND LIMITATIONS AND TO AND FROM SUCH LOCATIONS AS MAY BE PRESCRIBED BY THE SECRETARIES CONCERNED. SUBSECTION 303 (H) OF THAT STATUTE PROVIDES THAT THE REGULATIONS PROMULGATED BY THE SECRETARIES OF THE UNIFORMED SERVICES SHALL BE UNIFORM FOR ALL SERVICES INSOFAR AS PRACTICABLE. UNDER THAT STATUTORY AUTHORITY THE RESPECTIVE SECRETARIES MAY SUSPEND, DELAY OR DENY, FOR MILITARY REASONS, THE TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE TO A MEMBER'S STATION. IN THIS CASE, IT WAS ADMINISTRATIVELY DETERMINED BY THE DEPARTMENT OF THE NAVY THAT BECAUSE OF MILITARY EXPEDIENCY LIEUTENANT GILLESPIE WAS NOT ELIGIBLE FOR TRANSPORTATION OF HIS DEPENDENTS TO JAPAN AT GOVERNMENT EXPENSE. WHILE IT MAY BE, AS INDICATED BY YOU, THAT THE RESTRICTION UPON THE TRAVEL OF DEPENDENTS IN CASES SUCH AS THIS WAS LATER RELAXED TO SOME EXTENT, SUCH FACT AFFORDS NO LEGAL BASIS FOR ALLOWING REIMBURSEMENT FOR TRAVEL ALREADY PERFORMED. HENCE, LIEUTENANT GILLESPIE IS NOT ENTITLED TO REIMBURSEMENT OF THE COST OF HIS DEPENDENTS' TRAVEL FROM SAN FRANCISCO, CALIFORNIA, TO TOKYO, JAPAN.

ACCORDINGLY, PAYMENT ON THE VOUCHER SUBMITTED WITH YOUR LETTER IS NOT AUTHORIZED AND IT WILL BE RETAINED HERE.