B-137770, NOV 19, 1958

B-137770, NOV 19, 1958

PRECIS-UNAVAILABLE

MR. PHILLIP J. GENRICH:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 3, 1958, IN EFFECT REQUESTING REVIEW OF THE SETTLEMENT OF AUGUST 21, 1958, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT OF YOUR WIFE'S TRQVEL FROM MILWAUKEE, WISCONSIN, TO WURZBURG, GERMANY, INCIDENT TO YOUR ASSIGNNMENT TO DUTY OVERSEAS AS SPECIALIST THIRD CLASS, REGULAR ARMY, SERVICE NO. RA 16 395 819.

BY SPECIAL ORDERS NO. 158, DATED AUGUST 28, 1956, YOU WERE TRANSFERRED FROM YUMA, ARIZONA, TO YOUR OVERSEAS STATION. CONCURRENT TRAVEL OF YOUR DEPENDENT (WIFE) WAS NOT AUTHORIZED. YOU STATE THAT YOU WERE NOT PERMITTED TO APPLY FOR TRANSPORTATION FOR YOUR WIFE AT YOUR OVERSEAS STATION BECAUSE YOU WERE TOLD YOU DID NOT HAVE ENOUGH TIME TO SERVE IN THAT COMMAND. IN THE ABSENCE OF ORDERS AUTHORIZING HER TRANSPORTATION YOU ARRANGED FOR HER TRAVEL AT PERSONAL EXPENSE. SHE TRAVELED FROM MILWAUKEE, WISCONSIN, TO WURZBURG, GERMANY, BETWEEN THE DATES OF DECEMBER 17 AND 23, 1956. YOUR CLAIM FOR REIMBURSEMENT FOR THE TRAVEL WAS DISALLOWED BY THE SETTLEMENT MENTIONED FOR THE REASONS STATED THEREIN. YOUR PRESENT LETTER FURNISHES NO INFORMATION OR EVIDENCE NOT PREVIOUSLY CONSIDERED. IT IS EVIDENTLY YOUR BELIEF, HOWEVER, THAT THERE MAY BE SOME BASIS FOR THE ALLOWANCE OF YOUR CLAIM.

THE RIGHT TO DEPENDENTS' TRAVEL IS NOT AN ABSOLUTE ONE BUT MAY BE ADMINISTRATIVELY RESTRICTED, SUSPENDED, OR DENIED FOR REASONS OF MILIT1RY NECESSITY OR EXPEDIENCY. SEE CULP V. UNITED STATES, 76 C. CLS. 507. THE STATUTORY AUTHORITY FOR TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE UPON A MEMBER'S ORDERED CHANGE OF PERMANENT STATION IS CONTAINED IN SECTION 303(C) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 253, WHICH EXPRESSLY PROVIDES THAT SUCH TRANSPORTATION, UPON THE MEMBER'S ORDERED CHANGE OF PERMANENT STATION, SHALL BE UNDER CONDITIONS AND LIMITATIONS, FOR SUCH RANKS, GRADES, OR RATINGS, AND TO OR FROM SUCH LOCATIONS AS THE SECRETARIES CONCERNED MAY PRESCRIBE. AT THE TIME HERE INVOLVED, THE CONCURRENT TRAVEL OF DEPENDENTS TO OVERSEAS STATIONS WAS LIMITED BY ADMINISTRATIVE REGULATIONS TO PAY GRADES E-4 (WITH OVER FOUR YEARS' SERVICE) AND ABOVE, AND, ALSO, BY A PRIORITY SYSTEM THE PURPOSE OF WHICH WAS TO ESTABLISH A FAIR AND EQUITABLE MEANS OF REUNITING FAMILIES SEPARATED BY OVERSEAS SERVICE.

THE EFFECT OF SUCH REGULATIONS WAS TO RESTRICT TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE TO A DESIGNATED PLACE IN THE UNITED STATES UNTIL THEIR TRANSPORTATION, ON A PRIORITY BASIS, WAS AUTHORIZED BY THE OVERSEAS COMMANDER CONCERNED. IN ADDITION, PARAGRAPH 6, AR 55 46, DATED OCTOBER 25, 1956, PROVIDED THAT A REQUEST FOR MOVEMENT OF DEPENDENTS OVERSEAS WOULD BE DISAPPROVED BY THE COMMANDER TO WHOM THE APPLICATION WAS SUBMITTED WHEN THE MEMBER WOULD HAVE LESS THAN ONE YEAR OF CURRENT FOREIGN SERVICE TOUR REMAINING AFTER ARRIVAL OF THE DEPENDENTS IN THE OVERSEAS COMMAND. THE REGULATIONS FURTHER PROVIDED THAT THE TRAVEL OF DEPENDENTS TO OVERSEAS STATIONS MUST BE BY GOVERNMENT TRANSPORTATION, IF AVAILABLE. SINCE THE RECORD SHOWS THAT NO OFFICIAL AUTHORIZATION WAS ISSUED FOR YOUR WIFE'S TRAVEL TO THE OVERSEAS STATION AND THAT, HAD YOUR WIFE'S TRAVEL BEEN AUTHORIZED, GOVERNMENT SEA AND AIR TRANSPORTATION WERE AVAILABLE AND WOULD HAVE BEEN FURNISHED, THERE IS NO LEGAL BASIS FOR THE PAYMENT OF YOUR CLAIM.

ACCORDINGLY, THE SETTLEMENT OF AUGUST 21, 1858, WAS CORRECT AND MUST BE SUSTAINED.