B-128983, SEP. 24, 1956

B-128983: Sep 24, 1956

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THE DISALLOWANCE WAS PREDICATED UPON THE REPORT OF THE DEPARTMENT OF THE ARMY THAT AT THE TIME OF YOUR RETURN TO THE UNITED STATES YOU ELECTED TO RETURN BY COMMERCIAL AIR NOTWITHSTANDING THE AVAILABILITY OF GOVERNMENT AIR TRANSPORTATION. IN COMPLIANCE WITH YOUR REQUEST WE HAVE REVIEWED THE RECORD IN YOUR CASE AND FIND THAT THE TRAVEL AUTHORIZATION DATED MAY 14. WHILE WE ARE UNAWARE OF THE NATURE OF THE EMERGENCY IN YOUR CASE IT MAY BE PRESUMED THAT THE AUTHORIZING OFFICER AT YOUR FORMER HEADQUARTERS WAS FAMILIAR WITH THE FACTS AND IN DRAFTING YOUR TRAVEL ORDERS CONCLUDED THAT YOUR NEEDS WOULD BE SERVED BY REPORTING AT THE AIR TRAFFIC CENTER ON THE DATE DIRECTED THEREIN. WHETHER GOVERNMENT AIR TRANSPORTATION WOULD HAVE BEEN AVAILABLE TO YOU ON OR IMMEDIATELY AFTER MAY 16.

B-128983, SEP. 24, 1956

TO MR. JOSEPH G. BOLEK:

WE REFER TO YOUR LETTER REQUESTING RECONSIDERATION OF OUR SETTLEMENT DATED JUNE 26, 1956, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT OF COMMERCIAL AIR FARE FROM FRANKFURT, GERMANY, TO NEW YORK, NEW YORK, ON MAY 14, 1955, INCIDENT TO YOUR RETURN TO THE UNITED STATES UNDER REPATRIATION ORDERS. THE DISALLOWANCE WAS PREDICATED UPON THE REPORT OF THE DEPARTMENT OF THE ARMY THAT AT THE TIME OF YOUR RETURN TO THE UNITED STATES YOU ELECTED TO RETURN BY COMMERCIAL AIR NOTWITHSTANDING THE AVAILABILITY OF GOVERNMENT AIR TRANSPORTATION.

IN COMPLIANCE WITH YOUR REQUEST WE HAVE REVIEWED THE RECORD IN YOUR CASE AND FIND THAT THE TRAVEL AUTHORIZATION DATED MAY 14, 1955, UNDER WHICH YOU RETURNED TO THE UNITED STATES DIRECTED YOU TO REPORT TO THE AIR TRAFFIC CENTER, FRANKFURT, GERMANY, BETWEEN 0800 AND 1800 HOURS ON MAY 16, 1955. APPARENTLY YOU PREMATURELY REPORTED TO THE AIR TRAFFIC CENTER ON MAY 14, 1955, AND UPON BEING INFORMED, AS ALLEGED IN YOUR LETTER, THAT NO DEFINITE DATE COULD BE GIVEN WHEN SPACE UPON A MILITARY AIR TRANSPORT SERVICE PLANE WOULD BE AVAILABLE YOU IMMEDIATELY DECIDED TO USE COMMERCIAL AIR TRANSPORTATION WITH THE HOPE OR EXPECTATION OF BEING REIMBURSED THE AMOUNT OF YOUR FARE.

WHILE WE ARE UNAWARE OF THE NATURE OF THE EMERGENCY IN YOUR CASE IT MAY BE PRESUMED THAT THE AUTHORIZING OFFICER AT YOUR FORMER HEADQUARTERS WAS FAMILIAR WITH THE FACTS AND IN DRAFTING YOUR TRAVEL ORDERS CONCLUDED THAT YOUR NEEDS WOULD BE SERVED BY REPORTING AT THE AIR TRAFFIC CENTER ON THE DATE DIRECTED THEREIN. WHETHER GOVERNMENT AIR TRANSPORTATION WOULD HAVE BEEN AVAILABLE TO YOU ON OR IMMEDIATELY AFTER MAY 16, 1955, CAN NOW BE ONLY A MATTER OF SPECULATION.

IN REGARD TO THE MATTER OF THE NONAVAILABILITY OF QUARTERS, WHICH APPEARS TO HAVE INFLUENCED YOUR DECISION TO USE COMMERCIAL AIR TRANSPORTATION WITHOUT FURTHER WAITING FOR GOVERNMENT TRANSPORTATION, YOUR TRAVEL ORDERS AUTHORIZED $8 PER DIEM IN LIEU OF SUBSISTENCE DURING INVOLUNTARY DELAYS EN ROUTE TO THE UNITED STATES. WE ARE UNAWARE OF ANY REASON WHY PRIVATE QUARTERS COULD NOT HAVE BEEN OBTAINED IN FRANKFURT. ACCORDINGLY, CONCERNING THAT PART OF THE RECORD, WE CAN ONLY CONCLUDE THAT THE UNAVAILABILITY OF GOVERNMENT QUARTERS DOES NOT ALONE JUSTIFY YOUR PREMATURE DEPARTURE FROM FRANKFURT BY COMMERCIAL AIR.

AS A DIRECT CONSEQUENCE, HOWEVER, OF WHAT TRANSPIRED IN YOUR CASE THE DEPARTMENT OF THE ARMY IMMEDIATELY DIRECTED REMEDIAL ACTION AS SHOWN BY FIRST INDORSEMENT OF JULY 11, 1955, FROM HEADQUARTERS, UNITED STATES ARMY, EUROPE, TO THE COMMANDING GENERAL, NORTHERN AREA COMMAND, WHICH READS AS FOLLOWS:

"1. THE DIFFICULTY EXPERIENCED BY MR. BOLEK IN OBTAINING TRANSPORTATION IN CONNECTION WITH EMERGENCY LEAVE TO THE UNITED STATES IS REGRETTED. IS RECOGNIZED, HOWEVER, THAT THE INCIDENT COULD NOT BE AVOIDED, DUE TO THE ABSENCE OF SPECIFIC AUTHORITY FOR SUCH TRANSPORTATION FOR CIVILIAN EMPLOYEES. THIS CASE HAS ALSO BEEN BROUGHT TO THE ATTENTION OF THIS HEADQUARTERS BY MR. BOLEK'S BROTHER, THROUGH CONGRESSMAN O-BRIEN. A COPY OF THIS CORRESPONDENCE IS INCLOSED FOR YOUR INFORMATION.

"2. TO AVOID THE OCCURRENCE OF INCIDENTS SIMILAR TO THAT PRESENTED BY BASIC LETTER, THE DEPARTMENT OF THE ARMY WAS QUERIED RECENTLY AS TO THE EXISTENCE OF AUTHORITY FOR EMERGENCY LEAVE FOR CIVILIAN EMPLOYEES. AS A RESULT, IT IS NOW POSSIBLE TO ISSUE TRAVEL ORDERS TO CIVILIAN EMPLOYEES IN CONNECTION WITH EMERGENCY LEAVE, AUTHORIZING SPACE REQUIREMENT TRANSPORTATION TO AND FROM THE UNITED STATES PORT OF ENTRY. TRAVEL ORDERS WILL CITE MESSAGE DA 581875 AND AR 96-25 AS AUTHORITY. AN AIR PRIORITY OF 2D OR HIGHER, DEPENDENT UPON THE TYPE OF EMERGENCY INVOLVED, MAY BE ASSIGNED BY THE ORDER ISSUING OFFICIAL. IN THE VERY NEAR FUTURE AREA COMMANDERS WILL BE ABLE TO SECURE AIR PRIORITY DESIGNATORS FOR EMERGENCY LEAVE TRAVEL ORDERS BY DIRECT CONTACT WITH THE AIR TRAFFIC CENTER, FRANKFURT. SPECIFIC INSTRUCTIONS WILL BE ISSUED RELATIVE TO THIS PROCEDURE. IN THE INTERIM, AIR SPACE ALLOTTED FOR USE OF YOUR COMMAND FOR PERMANENT CHANGE OF STATION MAY BE USED FOR EMERGENCY LEAVE TRAVEL. APPROPRIATE PRIORITIES MAY BE ASSIGNED.

"3. WITH REGARD TO MATTER OF MR. BOLEK BEING REIMBURSED FOR PERSONAL FUNDS EXPENDED IN SECURING COMMERCIAL AIR TRANSPORTATION TO THE UNITED STATES, HE SHOULD BE ADVISED THAT UNDER EXISTING LAWS AND REGULATIONS, THERE IS NO AUTHORITY TO REIMBURSE AN EMPLOYEE FOR TRANSPORTATION PROCURED FROM PERSONAL FUNDS FOR PERSONAL REASONS, IF GOVERNMENT TRANSPORTATION WAS AVAILABLE WITHIN THIRTY DAYS FROM THE DATE SUCH TRANSPORTATION WAS REQUESTED. SINCE RECORDS INDICATE THAT DURING THE PERIOD 10 - 24 MAY 1955, THE MAXIMUM DELAY ON ANY PRIORITY CLASS OF PASSENGER WAS THREE DAYS, AND THE NORMAL DELAY WAS 24 HOURS, IT WILL NOT BE POSSIBLE TO REIMBURSE MR. BOLEK FOR ANY PART OF HIS TRANSPORTATION VIA PAN AMERICAN AIRWAYS FROM FRANKFURT TO NEW YORK. HE MAY, HOWEVER, BE REIMBURSED FOR THE COST OF AIR TRANSPORTATION FROM NEW YORK TO CHICAGO, IN ADDITION TO CONSTRUCTIVE COST OF PER DIEM (AND TRAVEL TIME) OVER THE ENTIRE ROUTE.'

SUBSEQUENTLY, ON JULY 20, 1955, THE COMMANDING GENERAL, NORTHERN AREA COMMAND, RECEIVED THE FOLLOWING COMMUNICATION FROM THE COMMANDER IN CHIEF, UNITED STATES ARMY, EUROPE:

"DA 330836. SUBJECT: EMERGENCY DEPARTURE JOSEPH BOLEK, CIVILIAN EMPLOYEE. FOLLOWING IS QUOTED FROM REFERENCED MESSAGE: "SINCE EMERGENCY APPARENTLY WAS NOT RECOGNIZED IN FURNISHING TRANSPORTATION TO BOLEK REIMBURSEMENT IS CONSIDERED APPROPRIATE AS PROVIDED IN CPR 5E.8 5.' DISREGARD CONTENT OF PARAGRAPH 3, 1ST INDORSEMENT GPA 300.4, DATED 11 JULY FROM THIS ADQUARTERS.'

APPARENTLY IN THE LIGHT OF THE LIBERALIZED REGULATIONS DISCLOSED BY THE ABOVE-QUOTED CORRESPONDENCE THE EUROPEAN COMMAND RECOMMENDED PAYMENT OF YOUR CLAIM NOTWITHSTANDING THE FACT THAT THE REGULATIONS IN FORCE AT THE TIME OF YOUR TRAVEL PROVIDED THAT YOU WOULD BE ENTITLED TO REIMBURSEMENT FOR COST OF TRAVEL BY COMMERCIAL AIR TRANSPORT ONLY IF GOVERNMENT TRANSPORTATION WAS NOT AVAILABLE WITHIN 30 DAYS AFTER THE DATE OF YOUR APPLICATION THEREFOR. AS A GENERAL RULE ADMINISTRATIVE REGULATIONS MAY BE APPLIED ONLY PROSPECTIVELY AND THUS IT APPEARS THE RECOMMENDATION REFERRED TO ABOVE HAS NO BASIS IN LAW. HOWEVER, IN VIEW OF THE FACT THAT YOU UNDOUBTEDLY WOULD HAVE RECEIVED GOVERNMENT TRANSPORTATION WITHIN 30 DAYS WITH ITS CONSEQUENT COST TO THE GOVERNMENT, THAT THE REGULATIONS PERTAINING TO CIVILIAN PRIORITIES IN AIR TRANSPORTATION WERE LIBERALIZED AS A DIRECT RESULT OF WHAT TRANSPIRED IN YOUR CASE AND THE FACT THAT THE EUROPEAN COMMAND BELIEVED YOUR CLAIM TO BE FOR ALLOWANCE ON THE MERITS, WE ARE WARRANTED IN ALLOWING YOU THE AMOUNT IT WOULD HAVE COST THE GOVERNMENT HAD YOU USED A MILITARY AIR TRANSPORT SERVICE PLANE IN RETURNING TO THE UNITED STATES. WE ARE INFORMED THAT THE COST RATE OF THAT SERVICE FROM FRANKFURT TO NEW YORK IS $150 AND A CHECK FOR THAT AMOUNT WILL BE ISSUED TO YOU IN REGULAR COURSE.

THE REMAINDER OF YOUR CLAIM MUST BE DISALLOWED FOR THE REASONS STATED ABOVE AND TO THAT EXTENT OUR SETTLEMENT OF JUNE 26, 1956, IS SUSTAINED.