B-127051, JUL. 16, 1959

B-127051: Jul 16, 1959

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RETIRED: FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 4. YOUR CLAIM WAS DISALLOWED BY OUR SETTLEMENT DATED MAY 12. YOU WERE TRANSFERRED TO DUTY OVERSEAS BY PARAGRAPH 6. WERE AUTHORIZED TO PROCEED TO A PORT OF EMBARKATION FOR TRANSPORTATION TO WIESBADEN. WAS STATED TO HAVE BEEN PERFORMED ON THE ADVICE OF HER PHYSICIAN. THE RECORD INDICATES THAT NO ORDERS WERE ISSUED TO AUTHORIZE THAT TRAVEL. AT THE TIME THE TRAVEL IN QUESTION WAS PERFORMED THE BASIC AUTHORITY FOR TRANSPORTATION OF DEPENDENTS OF MEMBERS OF THE UNIFORMED SERVICES WAS CONTAINED IN SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942. WHICH AUTHORIZED TRANSPORTATION OF DEPENDENTS TO THE NEW DUTY STATION "WHEN" THE MEMBER WAS ORDERED TO MAKE A PERMANENT CHANGE OF STATION.

B-127051, JUL. 16, 1959

TO COLONEL STEVE J. GADLER, USAF, RETIRED:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 4, 1959, IN EFFECT REQUESTING REVIEW OF YOUR CLAIM FOR REIMBURSEMENT FOR TRAVEL OF YOUR DEPENDENT MOTHER BY COMMERCIAL AIR FROM WIESBADEN, GERMANY, TO RAPID CITY, SOUTH DAKOTA, IN APRIL 1948. YOUR CLAIM WAS DISALLOWED BY OUR SETTLEMENT DATED MAY 12, 1954.

YOU WERE TRANSFERRED TO DUTY OVERSEAS BY PARAGRAPH 6, SPECIAL ORDERS NO. 339, DATED DECEMBER 5, 1946, CAMP KILMER, NEW JERSEY. BY TRAVEL AUTHORIZATION OF DEPENDENTS DATED MAY 27, 1947, YOUR WIFE AND SON RESIDING IN ST. PAUL, MINNESOTA, AND YOUR MOTHER RESIDING IN LEAD, SOUTH DAKOTA, WERE AUTHORIZED TO PROCEED TO A PORT OF EMBARKATION FOR TRANSPORTATION TO WIESBADEN, GERMANY, YOUR OVERSEAS STATION, IN ACCORDANCE WITH THE PROVISIONS OF WAR DEPARTMENT CIRCULAR NO. 391, DATED DECEMBER 29, 1945. IT APPEARS THAT YOU RETURNED TO THE UNITED STATES FROM YOUR OVERSEAS ASSIGNMENT IN JUNE 1950, UNDER CHANGE OF STATION ORDERS DATED MAY 24, 1950. YOUR MOTHER'S RETURN TRAVEL MORE THAN TWO YEARS PRIOR TO YOUR CHANGE OF STATION ORDERS, WAS STATED TO HAVE BEEN PERFORMED ON THE ADVICE OF HER PHYSICIAN, DR. VERNON D. E. SMITH, OF ST. PAUL, MINNESOTA, THAT SHE RETURN TO HER HOME IN SOUTH DAKOTA FOR REASONS OF HEALTH. THE RECORD INDICATES THAT NO ORDERS WERE ISSUED TO AUTHORIZE THAT TRAVEL.

AT THE TIME THE TRAVEL IN QUESTION WAS PERFORMED THE BASIC AUTHORITY FOR TRANSPORTATION OF DEPENDENTS OF MEMBERS OF THE UNIFORMED SERVICES WAS CONTAINED IN SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 364, WHICH AUTHORIZED TRANSPORTATION OF DEPENDENTS TO THE NEW DUTY STATION "WHEN" THE MEMBER WAS ORDERED TO MAKE A PERMANENT CHANGE OF STATION. RIGHT TO TRANSPORTATION OF DEPENDENTS COULD ACCRUE TO A MEMBER UNDER SUCH PROVISION PRIOR TO THE ISSUANCE OF ORDERS DIRECTING A CHANGE OF HIS PERMANENT STATION, AND CONSEQUENTLY IT CANNOT BE CONSIDERED AS AUTHORITY FOR THE TRAVEL OF YOUR MOTHER IN 1948 INASMUCH AS YOUR CHANGE OF STATION ORDERS WERE NOT ISSUED UNTIL MAY 24, 1950.

THERE ALSO WAS IN EFFECT AT THAT TIME THE MILITARY APPROPRIATION ACT OF 1948, 61 STAT. 551, 554, WHICH PROVIDED THAT SUCH DEPENDENTS OF MILITARY AND CIVILIAN PERSONNEL IN AND UNDER THE MILITARY ESTABLISHMENT ON DUTY AT OVERSEAS STATIONS, AS MIGHT BE DETERMINED BY THE SECRETARY OF WAR, COULD, PRIOR OR SUBSEQUENT TO THE ISSUANCE OF ORDERS FOR THE RELIEF OF SUCH PERSONNEL FROM THEIR STATIONS, BE FURNISHED TRANSPORTATION TO THE UNITED STATES AT GOVERNMENT EXPENSE. WAR DEPARTMENT CIRCULAR NO. 83, MARCH 22, 1946, PROMULGATED UNDER A SIMILAR PROVISION IN AN EARLIER APPROPRIATION ACT AND CONTINUED IN EFFECT AT THE TIME HERE INVOLVED, AUTHORIZED THE MOVEMENT AT GOVERNMENT EXPENSE FROM OVERSEAS STATIONS OF "SPOUSES AND CHILDREN" WHO WERE ACQUIRED BY PERSONNEL WHILE ON DUTY OVERSEAS. CIRCULAR NO. 83 FURTHER SPECIFICALLY PROVIDED THAT DEPENDENTS MOVED FROM THE UNITED STATES TO AN OVERSEAS STATION UPON PERMANENT CHANGE OF STATION UNDER CIRCULAR NO. 391 OF DECEMBER 29, 1945, WERE NOT WITHIN ITS SCOPE, THAT IS, THEY WERE NOT ENTITLED TO TRANSPORTATION TO THE UNITED STATES PRIOR TO THE RETURN OF THE PERSON ON WHOM DEPENDENCY WAS CLAIMED. THUS, YOUR DEPENDENT MOTHER CLEARLY WAS NOT INCLUDED IN THE DEPENDENTS DETERMINED BY THE SECRETARY OF WAR AS ENTITLED TO TRANSPORTATION UNDER THE 1948 APPROPRIATION ACT.

ACCORDINGLY, YOU ARE ADVISED THAT THERE IS NO LEGAL BASIS FOR THE PAYMENT OF YOUR CLAIM. THE SETTLEMENT OF MAY 12, 1954, WAS CORRECT AND IS SUSTAINED.