B-129861, DEC. 11, 1956

B-129861: Dec 11, 1956

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YOU WERE RELIEVED FROM ASSIGNMENT AT FORT DEVENS. IT APPEARS THAT AT THE TIME OF SUCH TRANSFER YOUR WIFE AND SON WERE RESIDING IN AUSTRALIA AND YOUR ORDERS MADE NO PROVISION FOR THEM TO ACCOMPANY YOU TO YOUR NEW STATION IN FRANCE. YOUR APPLICATION FOR MOVEMENT OF YOUR DEPENDENTS FROM AUSTRALIA IS REFERRED TO IN A LETTER DATED MAY 7. IT WAS SUGGESTED THAT YOU CONSIDER UTILIZING COMMERCIAL FACILITIES FOR THEIR TRANSPORTATION DIRECT TO ENGLAND AND SUBSEQUENTLY TO YOUR DUTY STATION IN FRANCE. IT WAS STATED THAT "THESE EXPENDITURES WOULD BE SUBJECT TO RE-IMBURSEMENT" SINCE YOU WERE APPARENTLY ENTITLED TO TRANSPORTATION AT GOVERNMENT EXPENSE TO YOUR OVERSEAS DUTY STATION. YOU CLAIMED REIMBURSEMENT FOR THE COST OF THAT TRAVEL AND WERE ALLOWED THE SUM OF $67.44 REPRESENTING THE COST OF TRAVEL FROM TOWNSVILLE.

B-129861, DEC. 11, 1956

TO CLOVIS J. HEBERT, SP 2, USA, NA-20141838:

YOUR LETTER OF NOVEMBER 1, 1956, REQUESTS REVIEW OF THE ACTION TAKEN IN SETTLEMENT OF YOUR CLAIM FOR REIMBURSEMENT OF THE COST OF TRANSPORTATION OF YOUR WIFE FROM TOWNSVILLE, QUEENSLAND, AUSTRALIA, TO LA ROCHELLE, FRANCE, DURING THE PERIOD AUGUST 15, 1953, THROUGH OCTOBER 2, 1953.

THE RECORD SHOWS THAT BY ORDERS DATED JANUARY 19 AND APRIL 2, 1953, YOU WERE RELIEVED FROM ASSIGNMENT AT FORT DEVENS, MASSACHUSETTS, AND DIRECTED TO PROCEED ON PERMANENT CHANGE OF STATION, TO 28 GENERAL HOSPITAL, APO 219, CROIX CHAPEAU, FRANCE. IT APPEARS THAT AT THE TIME OF SUCH TRANSFER YOUR WIFE AND SON WERE RESIDING IN AUSTRALIA AND YOUR ORDERS MADE NO PROVISION FOR THEM TO ACCOMPANY YOU TO YOUR NEW STATION IN FRANCE. YOUR APPLICATION FOR MOVEMENT OF YOUR DEPENDENTS FROM AUSTRALIA IS REFERRED TO IN A LETTER DATED MAY 7, 1953, FROM HEADQUARTERS, UNITED STATES ARMY, EUROPE, AND IT WAS SUGGESTED THAT YOU CONSIDER UTILIZING COMMERCIAL FACILITIES FOR THEIR TRANSPORTATION DIRECT TO ENGLAND AND SUBSEQUENTLY TO YOUR DUTY STATION IN FRANCE. IT WAS STATED THAT "THESE EXPENDITURES WOULD BE SUBJECT TO RE-IMBURSEMENT" SINCE YOU WERE APPARENTLY ENTITLED TO TRANSPORTATION AT GOVERNMENT EXPENSE TO YOUR OVERSEAS DUTY STATION.

YOUR WIFE TRAVELED TO FRANCE BY COMMERCIAL CONVEYANCE AT PERSONAL EXPENSE. YOU CLAIMED REIMBURSEMENT FOR THE COST OF THAT TRAVEL AND WERE ALLOWED THE SUM OF $67.44 REPRESENTING THE COST OF TRAVEL FROM TOWNSVILLE, QUEENSLAND, AUSTRALIA, TO LA ROCHELLE, FRANCE, NOT TO EXCEED FROM FORT DEVENS, MASSACHUSETTS, TO BROOKLYN ARMY TERMINAL (PORT OF EMBARKATION), AND FROM BREMERHAVEN, GERMANY (PORT OF DEBARKATION OVERSEAS), TO LA ROCHELLE, FRANCE. NO REIMBURSEMENT WAS ALLOWED FOR WATER TRANSPORTATION FROM AUSTRALIA SINCE YOUR ENTITLEMENT UNDER THE ORDERS INDICATED ABOVE WAS LIMITED TO THE DISTANCE FROM YOUR OLD PERMANENT STATION IN THE UNITED STATES TO THE APPROPRIATE PORT OF EMBARKATION AND FROM THE PORT OF DEBARKATION OVERSEAS TO YOUR PERMANENT DUTY STATION.

IN YOUR LETTER YOU SAY THAT YOU RELIED ON THAT PART OF THE LETTER OF MAY 7, 1953, WHICH STATED YOU WOULD BE ENTITLED TO REIMBURSEMENT AND IF YOU HAD KNOWN REIMBURSEMENT FOR HER TRAVEL WOULD NOT BE MADE YOU WOULD HAVE SENT YOUR WIFE TO THE BROOKLYN ARMY BASE AND LET THE GOVERNMENT TRANSPORT HER FROM THERE.

SECTION 303/C) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 814, PROVIDES THAT UNDER SUCH CONDITIONS AND LIMITATIONS AND FOR SUCH RANKS, GRADES, OR RATINGS, AND TO AND FROM SUCH LOCATIONS AS MAY BE PRESCRIBED BY THE SECRETARIES CONCERNED, MEMBERS OF THE UNIFORMED SERVICES WHEN ORDERED TO MAKE A PERMANENT CHANGE OF STATION SHALL BE ENTITLED TO TRANSPORTATION IN KIND FOR DEPENDENTS OR TO REIMBURSEMENT THEREFOR, OR TO A MONETARY ALLOWANCE IN LIEU OF SUCH TRANSPORTATION IN KIND. REGULATIONS ISSUED UNDER THAT AUTHORITY ARE CONTAINED IN THE JOINT TRAVEL REGULATIONS. PARAGRAPH 7058 OF THOSE REGULATIONS, IN EFFECT AT THE TIME YOUR PERMANENT CHANGE OF STATION ORDERS WERE ISSUED, PROVIDES THAT TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE IS AUTHORIZED FOR TRAVEL PERFORMED FROM OTHER THAN THE OLD PERMANENT STATION TO THE NEW STATION NOT TO EXCEED THE ENTITLEMENT FROM THE OLD TO THE NEW STATION.

UNDER EARLIER STATUTES AUTHORIZING THE TRANSPORTATION AT GOVERNMENT EXPENSE OF DEPENDENTS OF MEMBERS OF THE UNIFORMED SERVICES WHEN ORDERED TO MAKE A PERMANENT CHANGE OF STATION, IT WAS THE RULE THAT THE TRAVEL OF DEPENDENTS FOR WHICH TRANSPORTATION IN KIND (OR REIMBURSEMENT UPON COMPLETION WHEN PERFORMED AT PERSONAL EXPENSE) WAS AUTHORIZED WAS LIMITED TO TRAVEL EQUAL TO THE DISTANCE FROM THE LAST PLACE WHERE THE DEPENDENTS WERE LOCATED TO THE NEW STATION, NOT TO EXCEED THE DISTANCE FROM THE MEMBER'S LAST OLD STATION TO HIS NEW PERMANENT STATION. THAT IS TO SAY, THE MAXIMUM AMOUNT REIMBURSABLE ON ACCOUNT OF DEPENDENT TRAVEL BETWEEN POINTS OTHER THAN THE OLD AND THE NEW STATION COULD NOT, IN ANY EVENT, EXCEED THE AMOUNT IT WOULD HAVE COST THE GOVERNMENT HAD TRAVEL BEEN BETWEEN THE OLD AND THE NEW PERMANENT STATIONS. THE APPLICABLE PROVISIONS OF THE JOINT TRAVEL REGULATIONS ISSUED PURSUANT TO THE AUTHORITY CONTAINED IN SECTION 303/C) OF THE CAREER COMPENSATION ACT OF 1949, MERELY CARRY FORWARD THIS LONG-ESTABLISHED RULE. 34 COMP. GEN. 467.

HAD YOUR DEPENDENTS TRAVELED FROM YOUR OLD PERMANENT STATION TO FRANCE, REIMBURSEMENT WOULD HAVE BEEN LIMITED TO MILEAGE AT THE RATE OF $0.06 A MILE FOR LAND TRAVEL FROM FORT DEVENS, MASSACHUSETTS, TO BROOKLYN ARMY TERMINAL (PORT OF EMBARKATION), AND FROM BREMERHAVEN, GERMANY, TO LA ROCHELLE, FRANCE, SINCE GOVERNMENT TRANSPORTATION WAS AVAILABLE FOR WATER TRAVEL FROM THE CONTINENTAL UNITED STATES TO EUROPE. THE COST TO YOU OF TRANSPORTING YOUR DEPENDENTS FROM AUSTRALIA TO FRANCE, AT PERSONAL EXPENSE CLEARLY EXCEEDED WHAT IT WOULD HAVE COST THE GOVERNMENT HAD THEY TRAVELED FROM YOUR OLD STATION AND YOU PROPERLY WERE ALLOWED REIMBURSEMENT EQUAL TO MILEAGE FOR CONSTRUCTIVE TRAVEL FROM FORT DEVENS TO BROOKLYN ARMY TERMINAL AND FROM BREMERHAVEN, GERMANY, TO LA ROCHELLE, FRANCE.

YOU WOULD NOT HAVE BEEN ENTITLED TO ANY GREATER ALLOWANCE HAD YOUR WIFE TRAVELED TO FRANCE BY WAY OF THE UNITED STATES. SHE HAD TRAVELED TO AUSTRALIA AT PERSONAL EXPENSE AND THE GOVERNMENT WAS NOT OBLIGATED TO RETURN HER TO THE UNITED STATES. THE RECOMMENDATION OF HEADQUARTERS, UNITED STATES ARMY, EUROPE, IN THE LETTER OF MAY 7, 1953, THAT SHE TRAVEL DIRECTLY TO ENGLAND FROM AUSTRALIA WAS ON THE BASIS THAT THE COMMERCIAL COST WOULD BE ONLY ABOUT HALF AS MUCH THAT WAY AS IT WOULD BE BY WAY OF BROOKLYN, NEW YORK, USING GOVERNMENT TRANSPORTATION FROM MANILA TO SAN FRANCISCO. HAD SHE TRAVELED BY WAY OF BROOKLYN THE ADDITIONAL COST WOULD HAVE FALLEN ON YOU, SINCE REIMBURSEMENT BY THE GOVERNMENT WOULD HAVE BEEN THE SAME IN EITHER EVENT. IT FOLLOWS THAT YOUR "RELIANCE" ON THE STATEMENT IN THE LETTER OF MAY 7, 1953, THAT SUCH EXPENDITURES WOULD "BE SUBJECT TO REIMBURSEMENT," SINCE YOU WERE "APPARENTLY" ENTITLED TO TRANSPORTATION AT GOVERNMENT EXPENSE, DID NOT CAUSE YOU ANY LOSS, UNLESS YOU OTHERWISE WOULD HAVE LEFT YOUR WIFE IN AUSTRALIA. BUT, EVEN IF THAT WERE THE CASE, YOU WOULD NOT BE ENTITLED TO ANY ADDITIONAL ALLOWANCE, IT HAVING BEEN LONG SETTLED THAT THE GOVERNMENT IS NOT BOUND BY THE NEGLIGENT OR ERRONEOUS ACTS OF ITS OFFICERS OR AGENTS IN THE ABSENCE OF A STATUTE SO PROVIDING. SEE ROBERTSON V. SICHEL, 127 U.S. 507, 515.

ACCORDINGLY, THE SETTLEMENT OF JUNE 22, 1956, WAS CORRECT AND IS SUSTAINED.