B-130695, APR. 1, 1957

B-130695: Apr 1, 1957

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USAF: FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 14. YOU WERE TRANSFERRED FROM NAVAL WAR COLLEGE. WERE SUPPLEMENTED BY CAMP STONEMAN ORDERS DATED JULY 10. YOUR WIFE WAS AUTHORIZED. NO PORT CALL FOR HER TRAVEL TO YOUR OVERSEAS STATION WAS ISSUED. FOR THE REASON THAT ALL TRAVEL OF DEPENDENTS TO PACIFIC DESTINATIONS WAS INDEFINITELY SUSPENDED EFFECTIVE JULY 14. THIS RESTRICTION ON TRAVEL OF DEPENDENTS TO JAPAN WAS NOT REMOVED UNTIL AUGUST 5. THE RECORD INDICATES THAT YOU EXECUTED A CERTIFICATE STATING THAT YOU DESIRED TO HAVE YOUR WIFE TRAVEL TO JAPAN ON THAT BASIS AT NO EXPENSE TO THE GOVERNMENT. THE ADJUTANT GENERAL OF THE ARMY ADVISED THE FAR EAST COMMAND THAT THE JUDGE ADVOCATE GENERAL HAD RENDERED AN OPINION TO THE EFFECT THAT THE POLICY OF RESTRICTING DEPENDENTS' TRAVEL BY COMMERCIAL MEANS AT NO EXPENSE TO THE GOVERNMENT IN CONNECTION WITH THE PRIVATE RENTAL AGREEMENT WAS LEGALLY OBJECTIONABLE AND THAT THE REQUIRED CERTIFICATE WAIVING STATUTORY RIGHT TO TRANSPORTATION AT GOVERNMENT EXPENSE WAS NOT LEGALLY BINDING.

B-130695, APR. 1, 1957

TO COLONEL LAMONT SAXTON, USAF:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 14, 1956, REQUESTING REVIEW OF THAT PART OF THE SETTLEMENT OF APRIL 15, 1954, WHICH DISALLOWED REIMBURSEMENT FOR YOUR WIFE'S TRAVEL FROM SAN FRANCISCO, CALIFORNIA, TO YOKOHAMA, JAPAN, SEPTEMBER 20 TO OCTOBER 4, 1951.

BY ORDERS DATED APRIL 28, 1950, MAXWELL AIR FORCE BASE, ALABAMA, YOU WERE TRANSFERRED FROM NAVAL WAR COLLEGE, NEWPORT, RHODE ISLAND, TO AIR FORCE OVERSEAS REPLACEMENT DEPOT, CAMP STONEMAN, PITTSBURGH, CALIFORNIA, FOR FURTHER ASSIGNMENT TO DUTY IN JAPAN. THE ORDERS AS AMENDED BY ORDERS DATED JUNE 13, 1950, AUTHORIZED COORDINATED TRAVEL OF DEPENDENT TO LOS ANGELES, CALIFORNIA. THE ORDERS OF APRIL 28, 1950, WERE SUPPLEMENTED BY CAMP STONEMAN ORDERS DATED JULY 10, 1950, ASSIGNING YOU TO DUTY IN YOKOHAMA, JAPAN. BY TRAVEL AUTHORIZATION OF DEPENDENTS TO JAPAN, DATED JUNE 13, 1950, AS AMENDED JUNE 30, 1950, YOUR WIFE WAS AUTHORIZED, UPON CALL OF THE PORT COMMANDER, SEATTLE PORT OF EMBARKATION, TO PROCEED FROM NEWPORT, RHODE ISLAND, TO JAPAN, IT BEING FURTHER STATED THAT SHE COULD BE CONTACTED AT AN ADDRESS IN LOS ANGELES.

THE RECORD INDICATES THAT YOUR WIFE TRAVELED FROM NEWPORT TO CAMP STONEMAN AND THENCE TO LOS ANGELES. NO PORT CALL FOR HER TRAVEL TO YOUR OVERSEAS STATION WAS ISSUED, HOWEVER, FOR THE REASON THAT ALL TRAVEL OF DEPENDENTS TO PACIFIC DESTINATIONS WAS INDEFINITELY SUSPENDED EFFECTIVE JULY 14, 1950, BY ADJUTANT GENERAL'S MESSAGE WCL-85304, DATED JULY 8, 1950. THIS RESTRICTION ON TRAVEL OF DEPENDENTS TO JAPAN WAS NOT REMOVED UNTIL AUGUST 5, 1951, WHEN GENERAL HEADQUARTERS, FAR EAST COMMAND, ISSUED A MESSAGE LIFTING THE SUSPENSION OF DEPENDENT TRAVEL TO JAPAN AND STATING THAT THE MOVEMENT OF DEPENDENTS TO THAT COMMAND WOULD BE STRICTLY IN ACCORDANCE WITH A PRIORITY SYSTEM; THAT THE INITIAL PRIORITY LIST WOULD BE PREPARED FOR MOVEMENT OF DEPENDENTS BEGINNING NOVEMBER 1951; THAT THE AVAILABILITY OF HOUSING WOULD BE A FACTOR, AND THAT APPLICATIONS SUBMITTED BY PERSONNEL UNDER THE PRIVATE RENTAL POLICY WHO ELECT TRAVEL OF DEPENDENTS BY COMMERCIAL TRANSPORTATION ON A NON-REIMBURSABLE BASIS WOULD BE CONSIDERED. THE RECORD INDICATES THAT YOU EXECUTED A CERTIFICATE STATING THAT YOU DESIRED TO HAVE YOUR WIFE TRAVEL TO JAPAN ON THAT BASIS AT NO EXPENSE TO THE GOVERNMENT. SHE TRAVELED BY COMMERCIAL VESSEL AT PERSONAL EXPENSE PURSUANT TO THAT AUTHORITY.

THEREAFTER, ON OCTOBER 14, 1951, THE ADJUTANT GENERAL OF THE ARMY ADVISED THE FAR EAST COMMAND THAT THE JUDGE ADVOCATE GENERAL HAD RENDERED AN OPINION TO THE EFFECT THAT THE POLICY OF RESTRICTING DEPENDENTS' TRAVEL BY COMMERCIAL MEANS AT NO EXPENSE TO THE GOVERNMENT IN CONNECTION WITH THE PRIVATE RENTAL AGREEMENT WAS LEGALLY OBJECTIONABLE AND THAT THE REQUIRED CERTIFICATE WAIVING STATUTORY RIGHT TO TRANSPORTATION AT GOVERNMENT EXPENSE WAS NOT LEGALLY BINDING, AND THAT THEREFORE THE NAMES OF DEPENDENTS WHO HAD BEEN AUTHORIZED ENTRY PURSUANT TO PRIVATE RENTAL AGREEMENTS SHOULD BE "ADDED TO THE END OF" THE REGULAR PRIORITY LIST. THE ADJUTANT GENERAL FURTHER STATED THAT IF SUCH DEPENDENTS ELECTED TO REFUSE GOVERNMENT TRANSPORTATION AND CHOSE TO TRAVEL BY COMMERCIAL TRANSPORTATION THEY MIGHT DO SO AT THEIR OWN EXPENSE. IN YOUR REQUEST FOR REVIEW, YOU QUESTION THE LEGALITY OF THE NON-REIMBURSABLE CLAUSE IN YOUR APPLICATION FOR YOUR WIFE'S TRAVEL, AND CONTEND THAT INASMUCH AS SHE HAD AUTHORITY TO PERFORM THE TRAVEL AND AT THE TIME SHE DEPARTED NO GOVERNMENT TRANSPORTATION WAS AVAILABLE, YOU SHOULD BE REIMBURSED FOR THE COST OF HER OCEAN TRAVEL.

IT LONG HAS BEEN RECOGNIZED THAT THE RIGHT TO TRANSPORTATION OF DEPENDENTS OF MILITARY PERSONNEL AT GOVERNMENT EXPENSE IS NOT AN ABSOLUTE RIGHT, BUT ONE WHICH MAY BE SUSPENDED OR DENIED FOR MILITARY REASONS. CULP V. UNITED STATES, 76 C.CLS. 507. FOR MANY YEARS THE TRANSPORTATION OF DEPENDENTS TO AND FROM OVERSEAS LOCATIONS HAS BEEN UNDER STRICT MILITARY CONTROL AND HAS BEEN HANDLED ON A PRIORITY BASIS. AT THE TIME YOU WERE GRANTED PERMISSION TO TRANSPORT YOUR DEPENDENT TO JAPAN BY COMMERCIAL MEANS WITHOUT EXPENSE TO THE GOVERNMENT, THE ARMY, IN THE EXERCISE OF PROPER AUTHORITY, WAS PREPARING TO TRANSPORT BY GOVERNMENT MEANS ALL DEPENDENTS DESIRING TRANSPORTATION TO JAPAN, THE TIME OF SUCH TRANSPORTATION TO BE ON AN EQUITABLE BASIS TAKING INTO CONSIDERATION THE LENGTH OF TIME SPONSORS HAD BEEN SEPARATED FROM THEIR DEPENDENTS, AND OTHER PERTINENT FACTORS. THE ADJUTANT GENERAL OF THE ARMY IN HIS MESSAGE OF OCTOBER 14, 1951, TO THE FAR EAST COMMAND,ADVISING OF THE DOUBTS AS TO WHETHER CERTIFICATES WAIVING GOVERNMENT TRANSPORTATION ARE LEGALLY BINDING, DID NOT ALTER THIS PROCEDURE IN ANY WAY, THE SOLE EFFECT OF THE MESSAGE BEING TO DISCONTINUE THE GRANTING OF ANY ASSISTANCE TO PERSONS DESIRING TO TRANSPORT THEIR DEPENDENTS TO JAPAN AT THEIR OWN EXPENSE IN ADVANCE OF THEIR PROPER ORDER ON THE PRIORITY LIST, OTHER THAN TO ADVISE THEM OF THEIR DEPENDENT'S RELATIVE POSITION ON SAID LIST. IN ANY EVENT, YOU WERE NOT AFFECTED, ADVERSELY OR OTHERWISE, BY THE DIRECTIONS CONTAINED IN SAID MESSAGE, YOUR DEPENDENT ALREADY HAVING BEEN TRANSPORTED TO JAPAN UNDER PERMISSION PREVIOUSLY GRANTED. FURTHER, IT SEEMS CLEAR THAT THE QUESTION OF WHETHER A CERTIFICATE WAIVING A STATUTORY RIGHT TO TRANSPORTATION AT GOVERNMENT EXPENSE IS LEGALLY BINDING, IS NOT AN ISSUE IN YOUR CASE. WHILE YOU WERE AUTHORIZED TO TRANSPORT YOUR DEPENDENT AT A TIME SELECTED BY YOU, PROVIDED YOU AGREED THAT SUCH TRANSPORTATION WOULD BE ON A NON REIMBURSABLE BASIS, YOU WERE AT NO TIME REFUSED GOVERNMENT TRANSPORTATION FOR HER IN HER REGULAR TURN ON THE PRIORITY LIST ON THE GROUND THAT YOU PREVIOUSLY HAD WAIVED SUCH TRANSPORTATION. ON THE CONTRARY, APPARENTLY ALL DEPENDENTS WHO WAITED THEIR PROPER TURN ON THE PRIORITY LIST WERE FURNISHED GOVERNMENT TRANSPORTATION, AND THERE CAN BE NO DOUBT BUT THAT UPON BEING REACHED ON SUCH LIST AND THUS BECOMING ELIGIBLE FOR TRANSPORTATION YOUR DEPENDENT WOULD, IN LIKE MANNER, HAVE BEEN FURNISHED TRANSPORTATION AT NO COST TO YOU. SINCE YOU WERE NOT FURNISHED TRANSPORTATION FOR YOUR DEPENDENT WHEN SHE WAS REACHED ON A REGULARLY ESTABLISHED PRIORITY LIST SOLELY BECAUSE SHE THEN COULD NOT UTILIZE GOVERNMENT TRANSPORTATION, HAVING ALREADY COMPLETED TRAVEL TO YOUR STATION WITHOUT A CURRENTLY EFFECTIVE AUTHORIZATION FOR TRAVEL AT GOVERNMENT EXPENSE AND IN ADVANCE OF HER PRIORITY ORDER, THERE IS NO LEGAL BASIS UPON WHICH WE NOW MAY REIMBURSE YOU FOR HER TRAVEL.