B-130865, APR. 1, 1957

B-130865: Apr 1, 1957

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YOU WERE RELEASED FROM ACTIVE DUTY BY REASON OF PHYSICAL DISABILITY. YOU WERE GRANTED PERMISSION TO RESIDE IN THE UNITED KINGDOM. YOU WERE ALLOWED MILEAGE IN THE SUM OF $13.62 FOR TRAVEL FROM WASHINGTON. YOU WERE ALSO ALLOWED THE SUM OF $9 FOR SUBSISTENCE. YOUR CLAIM FOR THE COST OF AIR TRANSPORTATION FROM NEW YORK TO LONDON WAS DISALLOWED ON THE BASIS THAT GOVERNMENT TRANSPORTATION WAS AVAILABLE. FOR OVERSEAS TRANSPORTATION AND YOU WERE ADVISED THAT SURFACE TRANSPORTATION WAS ON A SPACE AVAILABLE BASIS ONLY. FOR AIR TRAVEL AND WERE ADVISED THAT THERE WERE NO AIR FLIGHTS OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES FOR RETIRED PERSONNEL. YOU SAY YOU ARE NOT CLAIMING TOTAL REIMBURSEMENT BUT ONLY SIX CENTS A MILE.

B-130865, APR. 1, 1957

TO MR. ARTURO L. HERNANDEZ:

YOUR LETTER OF NOVEMBER 8, 1956, ADDRESSED TO THE DEPARTMENT OF THE ARMY, REQUESTS REVIEW OF THE ACTION TAKEN BY OUR OFFICE IN THE SETTLEMENT OF YOUR CLAIM FOR REIMBURSEMENT OF YOUR TRANSPORTATION EXPENSES FROM WASHINGTON, D.C., TO BIRMINGHAM, ENGLAND, DURING THE PERIOD FEBRUARY 29 TO MARCH 2, 1956.

BY ORDERS DATED FEBRUARY 7, 1956, YOU WERE RELEASED FROM ACTIVE DUTY BY REASON OF PHYSICAL DISABILITY, PLACED ON THE TEMPORARY DISABILITY RETIRED LIST, AND AUTHORIZED TO TRAVEL TO YOUR HOME. BY LETTER OF FEBRUARY 24, 1956, FROM THE ADJUTANT GENERAL, UNITED STATES ARMY, YOU WERE GRANTED PERMISSION TO RESIDE IN THE UNITED KINGDOM. YOU TRAVELED TO NEW YORK, NEW YORK, AND OBTAINED AIR TRANSPORTATION WITH THE BRITISH OVERSEAS AIRWAYS CORPORATION TO LONDON, ENGLAND, FOR WHICH YOU PAID THE SUM OF $290.92. OUR SETTLEMENT OF OCTOBER 9, 1956, YOU WERE ALLOWED MILEAGE IN THE SUM OF $13.62 FOR TRAVEL FROM WASHINGTON, D.C., TO NEW YORK AND $5.55 FOR TRAVEL FROM LONDON TO BIRMINGHAM. YOU WERE ALSO ALLOWED THE SUM OF $9 FOR SUBSISTENCE. YOUR CLAIM FOR THE COST OF AIR TRANSPORTATION FROM NEW YORK TO LONDON WAS DISALLOWED ON THE BASIS THAT GOVERNMENT TRANSPORTATION WAS AVAILABLE.

IN YOUR LETTER YOU SAY YOU APPLIED TO THE PORT OF EMBARKATION, BROOKLYN, NEW YORK, FOR OVERSEAS TRANSPORTATION AND YOU WERE ADVISED THAT SURFACE TRANSPORTATION WAS ON A SPACE AVAILABLE BASIS ONLY. YOU ALSO SAY YOU APPLIED TO THE MILITARY AIR TRANSPORT SERVICE, MCGUIRE AIR FORCE BASE, FOR AIR TRAVEL AND WERE ADVISED THAT THERE WERE NO AIR FLIGHTS OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES FOR RETIRED PERSONNEL. FURTHER, YOU SAY YOU ARE NOT CLAIMING TOTAL REIMBURSEMENT BUT ONLY SIX CENTS A MILE, TO WHICH YOU ARE ENTITLED UNDER CURRENT ARMY REGULATIONS.

SINCE MILEAGE IS ONLY PAYABLE FOR AUTHORIZED LAND TRAVEL, YOUR CLAIM MUST BE CONSIDERED ON YOUR RIGHT TO REIMBURSEMENT FOR COMMERCIAL AIR TRAVEL TO ENGLAND. SECTION 303/A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813, 814, PROVIDES THAT, UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, MEMBERS OF THE UNIFORMED SERVICES SHALL BE ENTITLED TO RECEIVE TRAVEL AND TRANSPORTATION ALLOWANCES FOR TRAVEL PERFORMED FROM THE LAST STATION TO HOME UNDER COMPETENT ORDERS UPON RETIREMENT. PARAGRAPH 4158 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT A MEMBER ON ACTIVE DUTY WHO IS RETIRED FOR PHYSICAL DISABILITY MAY SELECT HIS HOME AND RECEIVE TRAVEL ALLOWANCES THERETO FROM HIS LAST DUTY STATION IN ACCORDANCE WITH PARAGRAPH 4151 OR 4159, AS APPLICABLE, PROVIDED THAT TRAVEL IS COMPLETED TO THE SELECTED HOME WITHIN ONE YEAR AFTER TERMINATION OF ACTIVE DUTY. PARAGRAPH 4159 OF THE JOINT TRAVEL REGULATIONS PROVIDES FOR PERMANENT CHANGE OF STATION TRAVEL TO, FROM, OR BETWEEN POINTS OUTSIDE THE UNITED STATES. RESPECTING TRAVEL FROM THE PORT OF EMBARKATION IN THE UNITED STATES TO THE PORT OF DEBARKATION OVERSEAS, THE REGULATIONS PROVIDE THAT A MEMBER WILL BE ENTITLED TO GOVERNMENT TRANSPORTATION, IF AVAILABLE, OTHERWISE GOVERNMENT-FURNISHED TRANSPORTATION OR REIMBURSEMENT THEREFOR BETWEEN THE UNITED STATES AND THE APPROPRIATE AERIAL OR WATER PORT OF DEBARKATION OVERSEAS.

A REPORT FURNISHED BY THE CHIEF OF TRANSPORTATION, DEPARTMENT OF THE ARMY, STATES---

"1. RECORDS HERE INDICATE THAT THE USNS BUTNER DEPARTED NEW YORK 29 FEBRUARY 1956 FOR SOUTHAMPTON AND THAT MATS OPERATED APPROXIMATELY THREE FLIGHTS A WEEK TO PRESTWICK, SCOTLAND, FOR THE MOVEMENT OF MILITARY MEMBERS ENTITLED TO TRANSPORTATION.

"2. HAD SERGEANT HERNANDEZ REQUESTED GOVERNMENT TRANSPORTATION, IT WOULD HAVE BEEN PROVIDED.'

WHEN THERE IS A DISPUTE AS TO THE FACTS BETWEEN A CLAIMANT AND AN ADMINISTRATIVE OFFICE, THIS OFFICE, NOT HAVING FIRST HAND KNOWLEDGE OF THE FACTS, NECESSARILY MUST RELY ON THE FACTS AS REPORTED BY THE ADMINISTRATIVE OFFICE, IN ABSENCE OF CONVINCING EVIDENCE TO THE CONTRARY. SINCE THE ADMINISTRATIVE REPORT CLEARLY STATES THAT GOVERNMENT TRANSPORTATION WAS AVAILABLE, THERE IS NO LEGAL BASIS FOR REIMBURSEMENT TO YOU FOR THE COST OF THE TRANSPORTATION PERFORMED BY COMMERCIAL AIRCRAFT AT PERSONAL EXPENSE. MOREOVER, YOUR ATTENTION IS INVITED TO PARAGRAPH 2150 OF THE JOINT TRAVEL REGULATIONS. THIS REGULATION PROVIDES THAT, UNLESS OTHERWISE AUTHORIZED OR RESTRICTED BY LAW, WHEN COMMERCIAL TRANSPORTATION TO OR FROM POINTS OUTSIDE THE UNITED STATES IS REQUIRED AND AUTHORIZED, IT WILL BE SECURED ON A SHIP OR AIRCRAFT REGISTERED UNDER THE LAWS OF THE UNITED STATES IF AVAILABLE. THEREFORE, EVEN IF GOVERNMENT TRANSPORTATION HAD NOT BEEN AVAILABLE, AS STATED BY YOU, SINCE YOU TRAVELED BY FOREIGN AIRCRAFT, REIMBURSEMENT OF ANY PART OF THE EXPENSES INCURRED FOR THAT TRAVEL IS CLEARLY PROHIBITED BY PARAGRAPH 2150 OF THE JOINT TRAVEL REGULATIONS IN THE ABSENCE OF A SHOWING THAT THE TRAVEL COULD NOT HAVE BEEN PERFORMED ON A SHIP OR AIRCRAFT REGISTERED UNDER THE LAWS OF THE UNITED STATES.

ACCORDINGLY, THE SETTLEMENT OF OCTOBER 9, 1956, WHICH DISALLOWED THE PORTION OF YOUR CLAIM COVERING TRAVEL FROM NEW YORK TO LONDON WAS CORRECT AND IS SUSTAINED.