B-134728, FEB. 13, 1958

B-134728: Feb 13, 1958

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USAF: FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 9. THE ORDERS STATED THAT DEPENDENTS WOULD NOT ACCOMPANY THE MEMBERS NAMED IN THE ORDERS AND THAT THEIR TRAVEL TO A DESIGNATED PLACE IN THE UNITED STATES WAS AUTHORIZED. TO YOUR OVERSEAS STATION STATING THAT YOUR WIFE WAS PREGNANT AND THAT THE APPROXIMATE DATE OF DELIVERY WAS MAY 11. YOUR APPLICATION WAS SUPPORTED BY A PHYSICIAN'S CERTIFICATE SHOWING THAT THE EXPECTED DATE OF CONFINEMENT WAS MAY 18. YOUR APPLICATION WAS RETURNED WITHOUT ACTION IN VIEW OF THE ADVANCED PREGNANCY OF YOUR WIFE. IT BEING SUGGESTED THAT YOU RESUBMIT THE APPLICATION AFTER THE CHILD WAS BORN. YOU HAVE BEEN REIMBURSED FOR THEIR LAND TRAVEL IN THE UNITED STATES.

B-134728, FEB. 13, 1958

TO MAJOR JOHN K. STANIFER, USAF:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 9, 1957, REQUESTING REVIEW OF THE SETTLEMENT OF JULY 28, 1955, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT FOR TRAVEL OF YOUR DEPENDENTS FROM NEW YORK, NEW YORK, TO LUXEMBOURG, BELGIUM, BY AIR ON MARCH 15 AND 16, 1955.

ORDERS DATED NOVEMBER 5, 1954, TRANSFERRED YOU FROM GEORGE AIR FORCE BASE, VICTORVILLE, CALIFORNIA, TO CHAMBLEY AIR BASE, FRANCE, FOR DUTY. THE ORDERS STATED THAT DEPENDENTS WOULD NOT ACCOMPANY THE MEMBERS NAMED IN THE ORDERS AND THAT THEIR TRAVEL TO A DESIGNATED PLACE IN THE UNITED STATES WAS AUTHORIZED. ON FEBRUARY 2, 1955, YOU SUBMITTED AN APPLICATION TO YOUR OVERSEAS COMMANDER FOR TRANSPORTATION OF YOUR DEPENDENTS (WIFE AND SON) FROM APPLE VALLEY, CALIFORNIA, TO YOUR OVERSEAS STATION STATING THAT YOUR WIFE WAS PREGNANT AND THAT THE APPROXIMATE DATE OF DELIVERY WAS MAY 11, 1955. YOUR APPLICATION WAS SUPPORTED BY A PHYSICIAN'S CERTIFICATE SHOWING THAT THE EXPECTED DATE OF CONFINEMENT WAS MAY 18, 1955. BY 1ST INDORSEMENT DATED FEBRUARY 17, 1955, YOUR APPLICATION WAS RETURNED WITHOUT ACTION IN VIEW OF THE ADVANCED PREGNANCY OF YOUR WIFE, IT BEING SUGGESTED THAT YOU RESUBMIT THE APPLICATION AFTER THE CHILD WAS BORN. YOU THEREUPON ARRANGED FOR TRAVEL OF YOUR DEPENDENTS TO YOUR OVERSEAS STATION AT PERSONAL EXPENSE, AND YOU HAVE BEEN REIMBURSED FOR THEIR LAND TRAVEL IN THE UNITED STATES. REIMBURSEMENT FOR THE OCEAN TRAVEL WAS DISALLOWED BY THE SETTLEMENT MENTIONED ABOVE FOR THE REASON STATED THEREIN.

IN YOUR REQUEST FOR REVIEW OF THE SETTLEMENT YOU STATE THAT YOU WERE DENIED AUTHORIZATION FOR TRAVEL OF YOUR DEPENDENTS TO YOUR OVERSEAS STATION BECAUSE OF MISINTERPRETATION OR IGNORANCE OF THE PROVISIONS OF SPECIAL REGULATIONS 55-730-1 BY HEADQUARTERS 12TH AIR FORCE. YOU STATE THAT PARAGRAPH 3C (5) OF THOSE REGULATIONS PROVIDES THAT FEMALE DEPENDENTS WHO ARE NOT BEYOND THE END OF THE SEVENTH MONTH OF PREGNANCY AT THE TIME OF THEIR ARRIVAL AT THE PORT FOR OVERSEAS SHIPMENT MAY BE FURNISHED ACCOMMODATIONS ON AN ARMY TRANSPORT, PROVIDED THAT THEY ARE EMBARKED WITHIN TWO WEEKS AFTER THEIR ARRIVAL AT THE PORT AND THAT THEY FURNISH THE PORT SURGEON A CERTIFICATE SIGNED BY A REPUTABLE PHYSICIAN ATTESTING TO THE PERIOD OF PREGNANCY. IN VIEW OF THOSE REGULATIONS YOU CONTEND THAT YOUR WIFE COULD HAVE BEEN FURNISHED ACCOMMODATIONS ABOARD A TRANSPORT ON OR BEFORE MARCH 11, 1955, AND THEREFORE, THAT TRAVEL OF YOUR DEPENDENTS SHOULD HAVE BEEN AUTHORIZED. ALSO, YOU POINT OUT THAT YOU INDICATED ON THE APPLICATION YOUR WILLINGNESS TO HAVE YOUR DEPENDENTS TRAVEL BY COMMERCIAL MEANS AT PERSONAL EXPENSE SUBJECT TO SUCH REIMBURSEMENT AS MIGHT BE AUTHORIZED.

THE RIGHT TO DEPENDENTS' TRAVEL IS NOT AN ABSOLUTE ONE BUT MAY BE ADMINISTRATIVELY RESTRICTED, SUSPENDED OR DENIED FOR REASONS OF MILITARY NECESSITY OR EXPEDIENCY. CULP V. UNITED STATES, 76 C.CLS. 507. THE STATUTORY AUTHORITY FOR TRANSPORTATION OF DEPENDENTS IS CONTAINED IN SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 253, WHICH EXPRESSLY PROVIDES THAT TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE UPON A MEMBER'S ORDERED CHANGE OF PERMANENT STATION SHALL BE UNDER SUCH CONDITIONS AND LIMITATIONS, FOR SUCH RANKS, GRADES, OR RATINGS, AND TO AND FROM SUCH LOCATIONS AS THE SECRETARIES CONCERNED MAY PRESCRIBE. WHEN A MEMBER IS ORDERED TO DUTY OVERSEAS AND HIS DEPENDENTS ARE NOT AUTHORIZED TO TRAVEL TO THE NEW STATION AT THE SAME TIME, PARAGRAPH 7008-3, JOINT TRAVEL REGULATIONS, PROVIDES THAT THE DEPENDENTS ARE AUTHORIZED TO TRAVEL FROM THE OLD PERMANENT STATION TO ANY PLACE IN THE UNITED STATES THE MEMBER MAY DESIGNATE AND SUBSEQUENTLY FROM THAT PLACE TO THE MEMBER'S CURRENT DUTY STATION.

AT THE TIME HERE INVOLVED TRANSPORTATION OF DEPENDENTS TO OVERSEAS STATIONS TO WHICH, IN GENERAL, COORDINATED TRAVEL OF THE MEMBER AND HIS DEPENDENTS WAS NOT AUTHORIZED, WAS GOVERNED BY A PRIORITY SYSTEM AS PUBLISHED IN SPECIAL REGULATIONS 55-765-5, THE PURPOSE OF WHICH WAS TO ESTABLISH A FAIR AND EQUITABLE MEANS OF REUNITING FAMILIES SEPARATED BY OVERSEAS SERVICE. THE EFFECT OF THE REGULATIONS WAS TO RESTRICT TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE TO A DESIGNATED PLACE UNTIL THEIR TRANSPORTATION, ON A PRIORITY BASIS, WAS AUTHORIZED BY THE OVERSEAS COMMANDER CONCERNED. IN YOUR CASE, SINCE YOUR APPLICATION WAS NOT APPROVED BECAUSE OF THE ADVANCED PREGNANCY OF YOUR WIFE, IT SEEMS CLEAR THAT IT WAS KNOWN TRANSPORTATION, ON A PRIORITY BASIS, COULD NOT BE ARRANGED PRIOR TO THE SEVENTH MONTH OF HER PREGNANCY. THE REGULATIONS ON WHICH YOU RELY SIMPLY SPECIFY THE CIRCUMSTANCES UNDER WHICH DEPENDENTS WILL BE FURNISHED ACCOMMODATIONS ABOARD A GOVERNMENT TRANSPORT, THEY HAVING BEEN ISSUED THE PROPER AUTHORIZATION TO TRAVEL BY THAT MEANS. SINCE THE TRAVEL OF YOUR DEPENDENTS TO YOUR OVERSEAS STATION WAS NOT APPROVED, THERE IS NO LEGAL BASIS FOR REIMBURSING YOU FOR THEIR OCEAN TRAVEL.

ACCORDINGLY, THE SETTLEMENT OF JULY 28, 1955, WAS CORRECT AND IS SUSTAINED.