B-135824, MAY 21, 1958

B-135824, MAY 21, 1958

TO MASTER SERGEANT JOHN Y. BUTLER, RA 6,551,828:

REFERENCE IS MADE TO YOUR UNSIGNED LETTER OF APRIL 4, 1958, REQUESTING RECONSIDERATION OF OUR SETTLEMENT DATED JULY 30, 1948, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT OF THE EXPENSE INCURRED FOR TRANSPORTING THE REMAINS OF YOUR DEPENDENT (WIFE) FROM NEW YORK, NEW YORK, TO PORTLAND, OREGON, DURING DECEMBER 1947.

THE RECORD SHOWS THAT YOUR DEPENDENT (WIFE), THE LATE MARY C. BUTLER, WHO PROCEEDED FROM PORTLAND, OREGON, TO SALZBURG, AUSTRIA, DURING THE EARLY PART OF 1947, AT GOVERNMENT EXPENSE, DIED ON DECEMBER 19, 1947, IN MUNICH, GERMANY, WHILE YOU WERE SERVING AS A STAFF SERGEANT IN THE UNITED STATES ARMY, ASSIGNED TO ACTIVE DUTY IN EUROPE WITH SERVICE COMPANY, 16TH INFANTRY, APO 541, U.S. ARMY. IT IS SHOWN THAT HER REMAINS WERE TRANSPORTED FROM GERMANY TO THE NEW YORK PORT OF EMBARKATION ON GOVERNMENT TRANSPORTATION, THENCE TO PORTLAND, OREGON, THE DECEDENT'S HOME, BY COMMERCIAL MEANS OF TRANSPORTATION AT PERSONAL EXPENSE. PAYMENT OF YOUR CLAIM FOR $229.30, AS REIMBURSEMENT OF THE COST OF SUCH TRANSPORTATION WAS DISALLOWED BY THE SETTLEMENT OF JULY 30, 1948, FOR THE REASON THAT AS OF 1947 THERE EXISTED NO LAW OR REGULATION WHICH AUTHORIZED TRANSPORTATION OF THE REMAINS OF DEPENDENTS OF MILITARY PERSONNEL FROM PLACE OF DEATH OUTSIDE THE UNITED STATES TO THE HOME OF DECEDENT IN THE UNITED STATES AT GOVERNMENT EXPENSE.

IN YOUR RECENT LETTER YOU EXPRESS THE VIEW THAT YOU SHOULD BE REIMBURSED FOR THE TRANSPORTATION CHARGES CLAIMED. YOU MAKE SPECIFIC REFERENCE TO THE REGULATIONS CONTAINED IN DEPARTMENT OF THE ARMY PAMPHLET 608-2, ISSUED DURING SEPTEMBER 1957, PARAGRAPH 80A OF WHICH PROVIDES, AS FOLLOWS:

"REMAINS OF DEPENDENTS WHO DIE OUTSIDE CONTINENTAL UNITED STATES WHILE RESIDING WITH THE SPONSOR AT A PLACE OF DUTY OUTSIDE THE CONTINENTAL UNITED STATES MAY BE TRANSPORTED AT ARMY EXPENSE FROM PLACE OF DEATH TO THE HOME OF THE DECEDENT. TRANSPORTATION ONLY AT GOVERNMENT EXPENSE IS AUTHORIZED.'

(SEE, ALSO, PARAGRAPH 39B (1) OF ARMY REGULATIONS NO. 638-45, DATED AUGUST 17, 1955). THE ABOVE-CITED REGULATIONS WERE PROMULGATED PURSUANT TO THE PROVISIONS OF (SECTION 12) THE ACT OF JULY 15, 1954, 68 STAT. 478- 481. SECTION 7 (A) OF THAT ACT READS, IN PERTINENT PART, AS FOLLOWS:

"THE SECRETARY IS AUTHORIZED, IN THE CASE OF DEPENDENTS OF MILITARY PERSONNEL, INCLUDING COMMISSIONED OFFICERS OF THE COAST AND GEODETIC SURVEY AND THE PUBLIC HEALTH SERVICE, ON ACTIVE DUTY, WHO DIE WHILE RESIDING WITH SUCH MILITARY PERSONNEL AT A PLACE OF DUTY OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES OR IN ALASKA OR WHILE IN TRANSIT TO OR FROM SUCH PLACE OF DUTY, TO PROVIDE FOR, AND TO PAY THE NECESSARY EXPENSES INCURRED FOR, THE TRANSPORTATION OF REMAINS TO SUCH PERSON'S HOME OR TO SUCH OTHER PLACE AS THE SECRETARY SHALL DETERMINE TO BE THE APPROPRIATE PLACE OF INTERMENT * * *.,

PRIOR TO THAT LAW THERE WAS NO PROVISION FOR THE TRANSPORTATION OF THE REMAINS OF DEPENDENTS OF MILITARY PERSONNEL FROM THE MEMBER'S PLACE OF DUTY OUTSIDE THE UNITED STATES TO THE DECEDENT'S HOME, OR OTHER PLACE OF INTERMENT IN THE UNITED STATES AT GOVERNMENT EXPENSE. THE QUOTED STATUTORY PROVISIONS DID NOT BECOME EFFECTIVE UNTIL JULY 15, 1954, MORE THAN SIX YEARS AFTER YOUR WIFE'S DEATH, AND HENCE AFFORD NO LEGAL BASIS FOR ALLOWANCE OF YOUR CLAIM.

ACCORDINGLY, THE SETTLEMENT OF JULY 30, 1948, IS SUSTAINED. THE ENCLOSURES WHICH ACCOMPANIED YOUR LETTER ARE RETURNED HEREWITH.