B-136149, JUN. 24, 1958

B-136149: Jun 24, 1958

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PARTRIDGE: FURTHER REFERENCE IS MADE TO YOUR CLAIM DATED DECEMBER 26. SINCE YOUR CLAIM IS A DUPLICATE OF THE CLAIM WHICH WAS DISALLOWED BY OUR SETTLEMENT OF MARCH 26. IT WILL BE CONSIDERED AS A REQUEST FOR REVIEW OF THAT SETTLEMENT. YOU WERE RECALLED TO ACTIVE DUTY AS CAPTAIN. UPON COMPLETION OF WHICH YOU WERE TO BE ASSIGNED TO DUTY AT HICKAM AIR FORCE BASE. YOU WERE ASSIGNED TO HICKAM AIR FORCE BASE FOR DUTY AND WERE DIRECTED TO PROCEED TO THAT STATION. IT BEING SPECIFICALLY PROVIDED THAT COORDINATED TRAVEL OF DEPENDENTS WAS NOT AUTHORIZED. THE TRAVEL WAS PERFORMED IN MARCH 1951. YOUR PERIOD OF ACTIVE DUTY WAS EXTENDED TO 21 MONTHS PURSUANT TO LAW. IN NOVEMBER OF THE SAME YEAR QUARTERS WERE FURNISHED YOUR DEPENDENTS AT HICKAM AIR FORCE BASE.

B-136149, JUN. 24, 1958

TO MAJOR RAYMOND B. PARTRIDGE:

FURTHER REFERENCE IS MADE TO YOUR CLAIM DATED DECEMBER 26, 1957, FOR REIMBURSEMENT FOR TRAVEL OF YOUR DEPENDENTS FROM NEW YORK, NEW YORK, TO HONOLULU, TERRITORY OF HAWAII, DURING THE PERIOD MARCH 6 TO 26, 1951. SINCE YOUR CLAIM IS A DUPLICATE OF THE CLAIM WHICH WAS DISALLOWED BY OUR SETTLEMENT OF MARCH 26, 1953, IT WILL BE CONSIDERED AS A REQUEST FOR REVIEW OF THAT SETTLEMENT.

BY SPECIAL ORDERS NO. 193, DATED SEPTEMBER 19, 1950, MITCHEL AIR FORCE BASE, NEW YORK, YOU WERE RECALLED TO ACTIVE DUTY AS CAPTAIN, UNITED STATES AIR FORCE RESERVE, FOR A PERIOD OF 12 MONTHS BEGINNING OCTOBER 6, 1951. THE ORDERS DIRECTED YOU TO PROCEED FROM YOUR HOME, PEARL RIVER, NEW YORK, TO FAIRFIELD-SUISUN AIR FORCE BASE, CALIFORNIA, FOR PROCESSING, UPON COMPLETION OF WHICH YOU WERE TO BE ASSIGNED TO DUTY AT HICKAM AIR FORCE BASE, OAHU, TERRITORY OF HAWAII. THE ORDERS FURTHER PROVIDED THAT YOUR DEPENDENTS WOULD NOT ACCOMPANY YOU TO THE PROCESSING STATION. BY ORDERS DATED OCTOBER 17, 1950, FAIRFIELD SUISUN AIR FORCE BASE, YOU WERE ASSIGNED TO HICKAM AIR FORCE BASE FOR DUTY AND WERE DIRECTED TO PROCEED TO THAT STATION, IT BEING SPECIFICALLY PROVIDED THAT COORDINATED TRAVEL OF DEPENDENTS WAS NOT AUTHORIZED. THEREAFTER, YOU ARRANGED FOR TRAVEL OF YOUR DEPENDENTS (WIFE AND TWO CHILDREN) TO YOUR OVERSEAS STATION BY COMMERCIAL VESSEL AT PERSONAL EXPENSE. THE TRAVEL WAS PERFORMED IN MARCH 1951. BY ORDERS OF JULY 30, 1951, YOUR PERIOD OF ACTIVE DUTY WAS EXTENDED TO 21 MONTHS PURSUANT TO LAW, AND IN NOVEMBER OF THE SAME YEAR QUARTERS WERE FURNISHED YOUR DEPENDENTS AT HICKAM AIR FORCE BASE. BY ORDERS DATED APRIL 18, 1952, YOU WERE RETURNED TO TRAVIS AIR FORCE BASE, CALIFORNIA, FOR RELEASE FROM ACTIVE DUTY. THOSE ORDERS ALSO AUTHORIZED TRAVEL OF YOUR DEPENDENTS BY GOVERNMENT AIR TO TRAVIS AIR FORCE BASE. YOUR CLAIM FOR REIMBURSEMENT FOR THEIR TRAVEL TO YOUR OVERSEAS STATION WAS DISALLOWED BY THE SETTLEMENT MENTIONED ABOVE FOR THE REASON THAT THEIR TRAVEL HAD NOT BEEN AUTHORIZED. APPARENTLY YOU ARE STILL UNDER THE IMPRESSION THAT YOUR CLAIM SHOULD BE ALLOWED.

AT THE TIME HERE INVOLVED THE AUTHORITY FOR TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE WAS CONTAINED IN SECTION 12 OF THE ACT OF JUNE 12, 1942, 56 STAT. 365, 366, AND REGULATIONS ISSUED PURSUANT THERETO, WHICH PROVIDED THAT OFFICERS, AND MEMBERS IN CERTAIN ENLISTED GRADES, WHEN ORDERED TO MAKE A PERMANENT CHANGE OF STATION MAY BE FURNISHED TRANSPORTATION FOR THEIR DEPENDENTS TO THE NEW STATION, NOT TO EXCEED THE COST FROM THE OLD TO THE NEW STATION. THAT LAW WAS NOT INTENDED, HOWEVER, TO GRANT A RIGHT IN DEROGATION OF THE ADMINISTRATIVE AUTHORITY CONFERRED UPON THE DEPARTMENT SO AS TO PERMIT AN OFFICER TO IGNORE ADMINISTRATIVE REGULATIONS AND TRANSPORT HIS DEPENDENTS TO HIS NEW STATION WITH IMPUNITY WITHOUT REGARD TO MILITARY CONSIDERATIONS. UNDER THIS CONCEPT OF LAW IT LONG HAS BEEN RECOGNIZED THAT THE RIGHT TO TRANSPORTATION OF DEPENDENTS OF MILITARY PERSONNEL AT GOVERNMENT EXPENSE UPON AN ORDERED CHANGE OF PERMANENT STATION IS NOT AN ABSOLUTE ONE BUT MAY BE ADMINISTRATIVELY SUSPENDED OR DENIED FOR REASONS OF MILITARY NECESSITY OR EXPEDIENCY, IN WHICH EVENT IF AN OFFICER TRANSPORTS HIS DEPENDENTS AT PERSONAL EXPENSE HE MAY NOT BE REIMBURSED THE EXPENSE SO INCURRED. CULP V. UNITED STATES, 76 C.CLS. 507.

TRANSPORTATION OF DEPENDENTS TO OVERSEAS STATIONS TO WHICH, IN GENERAL, COORDINATED TRAVEL OF THE MEMBER AND HIS DEPENDENTS WAS NOT AUTHORIZED, WAS GOVERNED, INSOFAR AS AIR FORCE PERSONNEL WERE CONCERNED, BY A PRIORITY SYSTEM AS PUBLISHED IN AIR FORCE REGULATIONS 75-26, DATED APRIL 28, 1949, BY ORDER OF THE SECRETARY OF THE AIR FORCE, THE PURPOSE OF WHICH WAS TO PROVIDE A FAIR AND EQUITABLE MEANS OF REUNITING FAMILIES SEPARATED BY OVERSEAS SERVICE AND TO INSURE THAT HOUSING IN THE OVERSEAS COMMANDS, AND TRANSPORTATION TO SUCH COMMANDS, WOULD BE AVAILABLE FIRST TO THOSE FAMILIES SUFFERING THE GREATER PERIODS OF SEPARATION. THOSE REGULATIONS SPECIFICALLY PROVIDE THAT ONLY MEMBERS WHO VOLUNTEERED OR WERE SCHEDULED TO REMAIN AT THEIR OVERSEAS STATION FOR A PERIOD OF AT LEAST ONE YEAR FROM DATE OF ARRIVAL OF DEPENDENTS WOULD BE INCLUDED ON THE PRIORITY LIST, AND THAT IN NO CASE WERE THE DEPENDENTS AUTHORIZED TO TRAVEL TO THE OVERSEAS COMMAND UNTIL SUCH TIME AS PERMISSION FOR TRAVEL HAD BEEN GRANTED BY THE OVERSEAS COMMANDER. THE EFFECT OF THOSE REGULATIONS WHERE A MEMBER WAS ORDERED FROM HIS HOME TO AN OVERSEAS COMMAND WAS TO RESTRICT HIS ENTITLEMENT TO TRANSPORTATION OF DEPENDENTS, NOTWITHSTANDING THE ORDERED PERMANENT CHANGE OF STATION, UNTIL SUCH TIME AS THEIR PRESENCE AT HIS DUTY STATION WAS AUTHORIZED BY THE OVERSEAS COMMANDER CONCERNED, OR THE RESTRICTION REMOVED.

SINCE YOU WERE ORDERED TO ACTIVE DUTY FOR ONE YEAR AND ASSIGNED TO PERMANENT DUTY AT AN OVERSEAS STATION TO WHICH COORDINATED TRAVEL OF YOUR DEPENDENTS WAS NOT AUTHORIZED, AND SINCE THEIR TRAVEL WHILE YOU WERE SERVING ON THE ONE-YEAR TOUR OF DUTY WAS NOT IN ACCORDANCE WITH CONTROLLING REGULATIONS, THERE IS NO LEGAL BASIS FOR REIMBURSEMENT OF THE COST INCURRED. THE FACT THAT YOUR TOUR OF DUTY WAS EXTENDED AFTER YOUR DEPENDENTS ARRIVED AT YOUR OVERSEAS STATION AND THAT YOU SUBSEQUENTLY WERE ASSIGNED GOVERNMENT QUARTERS FOR THEM CANNOT OPERATE TO ENTITLE YOU TO REIMBURSEMENT FOR TRAVEL NOT AUTHORIZED WHEN IT WAS PERFORMED.

ACCORDINGLY, THE SETTLEMENT OF MARCH 26, 1953, WAS CORRECT AND IS SUSTAINED.