B-135851, MAY 1, 1958

B-135851: May 1, 1958

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RA 12 340 310: FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 2. YOUR CLAIM FOR REIMBURSEMENT FOR THE TRAVEL PERFORMED BY YOUR DEPENDENTS WAS RECEIVED IN OUR CLAIMS DIVISION UNDER DATE OF JANUARY 24. ACCOMPANIED BY A REPORT SHOWING THAT GOVERNMENT SURFACE AND AIR TRANSPORTATION WAS AVAILABLE FOR ELIGIBLE DEPENDENTS TRAVELING FROM THE CONTINENTAL UNITED STATES TO JAPAN DURING THE PERIOD OF YOUR CLAIM. WAS REPORTED FURTHER THAT MILITARY SEA TRANSPORTATION VESSELS OPERATED BETWEEN SAN FRANCISCO. WAS BASED UPON THE FACT THAT REGULATIONS PROVIDE THAT TRANSPORTATION OF DEPENDENTS TO OR FROM STATIONS BEYOND THE CONTINENTAL LIMITS OF THE UNITED STATES SHALL NOT BE OTHER THAN BY GOVERNMENT TRANSPORTATION.

B-135851, MAY 1, 1958

TO JOSHUA FITZGERALD, SFC, RA 12 340 310:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 2, 1958, IN EFFECT REQUESTING RECONSIDERATION OF SETTLEMENT DATED MARCH 11, 1958, BY WHICH OUR CLAIMS DIVISION DISALLOWED YOUR CLAIM FOR REIMBURSEMENT OF THE EXPENSES INCURRED BY YOU IN CONNECTION WITH THE TRANSPORTATION OF YOUR DEPENDENTS (WIFE AND CHILDREN) BY COMMERCIAL AIR TRANSPORTATION FROM SEATTLE, WASHINGTON, TO TOKYO, JAPAN, ON OCTOBER 10, 1956.

YOUR CLAIM FOR REIMBURSEMENT FOR THE TRAVEL PERFORMED BY YOUR DEPENDENTS WAS RECEIVED IN OUR CLAIMS DIVISION UNDER DATE OF JANUARY 24, 1958, ACCOMPANIED BY A REPORT SHOWING THAT GOVERNMENT SURFACE AND AIR TRANSPORTATION WAS AVAILABLE FOR ELIGIBLE DEPENDENTS TRAVELING FROM THE CONTINENTAL UNITED STATES TO JAPAN DURING THE PERIOD OF YOUR CLAIM. WAS REPORTED FURTHER THAT MILITARY SEA TRANSPORTATION VESSELS OPERATED BETWEEN SAN FRANCISCO, CALIFORNIA, AND YOKOHAMA, JAPAN, AND THAT MILITARY AIR TRANSPORTATION SERVICE AIRCRAFT OPERATED BETWEEN TRAVIS AIR FORCE BASE AND TOKYO. THE ACTION TAKEN IN THE SETTLEMENT OF MARCH 11, 1958, DENYING YOUR CLAIM, WAS BASED UPON THE FACT THAT REGULATIONS PROVIDE THAT TRANSPORTATION OF DEPENDENTS TO OR FROM STATIONS BEYOND THE CONTINENTAL LIMITS OF THE UNITED STATES SHALL NOT BE OTHER THAN BY GOVERNMENT TRANSPORTATION, IF SUCH TRANSPORTATION IS AVAILABLE AS MAY BE DETERMINED BY THE HEAD OF THE DEPARTMENT CONCERNED.

YOU STATED IN YOUR LETTER OF APRIL 2 THAT YOUR DEPENDENTS WERE ELIGIBLE FOR CONCURRENT TRAVEL WITH YOU TO JAPAN BECAUSE YOU HAD A UNIT ASSIGNMENT IN THAT COUNTRY BEFORE YOU LEFT THE UNITED STATES; ALSO, THAT WHILE GOVERNMENT TRANSPORTATION FOR DEPENDENT TRAVEL WAS AVAILABLE AT THAT TIME, YOU EXPENDED THE SUM OF $781.80 FOR COMMERCIAL AIR TRANSPORTATION OF YOUR DEPENDENTS TO JAPAN BECAUSE OF ERRONEOUS INFORMATION IN REGARD TO TRAVEL GIVEN TO YOU BY THE PORT AUTHORITIES AT FORT LEWIS, WASHINGTON. FOR THOSE REASONS, YOU EXPRESS THE BELIEF YOU HAVE A LEGITIMATE CLAIM AGAINST THE UNITED STATES FOR REIMBURSEMENT OF THE EXPENSES INCURRED.

THE DECISIVE FACTOR IN THIS CASE IS NOT WHETHER YOUR DEPENDENTS WERE ELIGIBLE FOR CONCURRENT TRANSPORTATION TO JAPAN, AS YOU SEEM TO BELIEVE. IT IS RATHER, THAT THERE WAS FAILURE TO TRANSPORT YOUR DEPENDENTS IN ACCORDANCE WITH APPLICABLE REGULATIONS. JOINT TRAVEL REGULATIONS PROMULGATED PURSUANT TO SECTION 303 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813, PROVIDE IN PARAGRAPH 7002-1B THAT, WITH CERTAIN EXCEPTIONS NOT HERE MATERIAL, TRANSPORTATION FOR DEPENDENTS FOR TRAVEL TO AND FROM THE UNITED STATES WILL BE BY GOVERNMENT AIRCRAFT OR VESSELS, IF AVAILABLE. THERE IS NOTHING IN THE REGULATIONS PROVIDING FOR REIMBURSEMENT TO A MEMBER WHOSE DEPENDENTS DO NOT AVAIL THEMSELVES OF GOVERNMENT TRANSPORTATION AND VOLUNTARILY PERFORM COMMERCIAL TRAVEL AT HIS EXPENSE FOR THEIR PERSONAL CONVENIENCE. THE FACT THAT YOU MAY HAVE BEEN GIVEN ERRONEOUS INFORMATION BY THE PORT AUTHORITIES AT FORT LEWIS, WASHINGTON, CONCERNING THE TRANSPORTATION OF YOUR DEPENDENTS, CANNOT SERVE AS A BASIS FOR THE ALLOWANCE OF YOUR CLAIM.

ON THE BASIS OF THE FACTS APPEARING IN THIS CASE AND IN VIEW OF THE REQUIREMENTS OF THE CITED REGULATIONS, WE HAVE NO ALTERNATIVE BUT TO SUSTAIN THE ACTION TAKEN IN THE SETTLEMENT OF MARCH 11, 1958.