B-139718, JUL. 1, 1959

B-139718: Jul 1, 1959

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BACON: REFERENCE IS MADE TO YOUR LETTER DATED MAY 6. WHICH WAS FORWARDED TO OUR OFFICE IN CONNECTION WITH YOUR CLAIM. YOU WERE PAID FOR TRAVEL FROM NEW YORK. ALTHOUGH AT THAT TIME YOU FULLY REALIZED THAT THE ARMY WAS NOT THEREAFTER OBLIGATED TO FURNISH YOU WITH TRANSPORTATION FROM PUERTO RICO TO THE CONTINENTAL UNITED STATES. YOU FURTHER STATE THAT AFTER SEEING THIS MESSAGE YOU ATTEMPTED TO GET A MATS FLIGHT TO THE UNITED STATES BUT THAT YOU WERE REFUSED TRANSPORTATION BECAUSE YOU HAD NOT GIVEN THE TRANSPORTATION OFFICER 60 DAYS' NOTICE. IN A LONG LINE OF DECISIONS THIS OFFICE HAS HELD THAT A WAIVER OF GOVERNMENT TRANSPORTATION BY A MEMBER OF THE ARMED SERVICES WHEN SUPPORTED BY PROPER CONSIDERATION CONSTITUTES A CONTRACT BETWEEN THE MEMBER AND THE GOVERNMENT AND IS BINDING UPON THE MEMBER CONCERNED. 3 COMP.

B-139718, JUL. 1, 1959

TO MR. ROGER M. BACON:

REFERENCE IS MADE TO YOUR LETTER DATED MAY 6, 1959, REQUESTING RECONSIDERATION OF OUR SETTLEMENT OF MAY 1, 1959, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT FOR TRAVEL FROM SAN JUAN, PUERTO RICO, TO NEW YORK, NEW YORK, INCIDENT TO YOUR RELEASE FROM ACTIVE DUTY UNDER ORDERS DATED NOVEMBER 14, 1958.

IN YOUR LETTER OF NOVEMBER 21, 1958, ADDRESSED TO THE SETTLEMENT DIVISION, FINANCE CENTER, UNITED STATES ARMY, WHICH WAS FORWARDED TO OUR OFFICE IN CONNECTION WITH YOUR CLAIM, YOU STATED THAT AT THE TIME OF YOUR SEPARATION FROM THE ARMY AT FORT BUCHANAN, PUERTO RICO, ON NOVEMBER 14, 1958, YOU WERE PAID FOR TRAVEL FROM NEW YORK, NEW YORK, TO YOUR HOME OF RECORD (BRECKSVILLE, OHIO). IN SEPTEMBER, 1958, YOU SIGNED A WAIVER OF GOVERNMENT TRANSPORTATION WHICH ENABLED YOU TO BE SEPARATED IN PUERTO RICO. PARAGRAPH 9 OF SPECIAL ORDERS, NO. 225, DATED NOVEMBER 14, 1958, STATES THAT YOU WAIVED GOVERNMENT TRANSPORTATION FROM PUERTO RICO TO THE CONTINENTAL UNITED STATES FOR THE PURPOSE OF TRAVEL AT YOUR OWN EXPENSE WITH THE UNDERSTANDING THAT SUCH TRANSPORTATION WOULD NOT BE FURNISHED AT A LATER DATE. ALTHOUGH AT THAT TIME YOU FULLY REALIZED THAT THE ARMY WAS NOT THEREAFTER OBLIGATED TO FURNISH YOU WITH TRANSPORTATION FROM PUERTO RICO TO THE CONTINENTAL UNITED STATES, YOU STATE THAT BEFORE YOUR SEPARATION YOU NOTICED A MESSAGE FROM THE DEPARTMENT OF THE ARMY WHICH STATED THAT THE ARMY MUST PROVIDE PERSONNEL WITH TRANSPORTATION TO THE APPROPRIATE PORT OF EMBARKATION EVEN THOUGH THEY MAY BE SEPARATED OVERSEAS. YOU FURTHER STATE THAT AFTER SEEING THIS MESSAGE YOU ATTEMPTED TO GET A MATS FLIGHT TO THE UNITED STATES BUT THAT YOU WERE REFUSED TRANSPORTATION BECAUSE YOU HAD NOT GIVEN THE TRANSPORTATION OFFICER 60 DAYS' NOTICE.

IN A LONG LINE OF DECISIONS THIS OFFICE HAS HELD THAT A WAIVER OF GOVERNMENT TRANSPORTATION BY A MEMBER OF THE ARMED SERVICES WHEN SUPPORTED BY PROPER CONSIDERATION CONSTITUTES A CONTRACT BETWEEN THE MEMBER AND THE GOVERNMENT AND IS BINDING UPON THE MEMBER CONCERNED. 3 COMP. GEN. 207; 30 ID. 480; AND 37 ID. 53. THE RECORD CLEARLY SHOWS THAT THE WAIVER WHICH YOU SIGNED WAS IN CONSIDERATION OF YOUR BEING ALLOWED TO BE SEPARATED IN PUERTO RICO RATHER THAN RETURNING TO THE CONTINENTAL UNITED STATES FOR SUCH SEPARATION. THE AGREEMENT BY THE ARMY WHICH ALLOWED YOU TO BE SEPARATED IN PUERTO RICO WAS A SUFFICIENT CONSIDERATION TO SUPPORT THE WAIVER OF GOVERNMENT TRANSPORTATION. SEE 3 COMP. GEN. 534. IT MUST BE CONCLUDED, THEREFORE, THAT THE WAIVER CONSTITUTED A VALID CONTRACT WHICH PRECLUDES ANY RIGHT WHICH YOU MAY HAVE HAD, PRIOR TO THE WAIVER, OF RECEIVING GOVERNMENT TRANSPORTATION. WHILE THE DEPARTMENT OF THE ARMY MESSAGE REFERRED TO BY YOU, OF WHICH WE HAVE NO KNOWLEDGE, MAY HAVE THE EFFECT OF NO LONGER REQUIRING THE EXECUTION OF WAIVERS FOR MEMBERS OF THE ARMY SEPARATED OVERSEAS, IT DOES NOT APPEAR THAT SUCH MESSAGE COULD BE HELD TO HAVE INVALIDATED THE CONTRACT AGREED UPON.

ACCORDINGLY, IT MUST BE CONCLUDED THAT YOU WERE NOT ENTITLED TO REIMBURSEMENT IN LIEU OF GOVERNMENT TRANSPORTATION FROM PUERTO RICOTO THE CONTINENTAL UNITED STATES. THE SETTLEMENT OF MAY 1, 1959, WHICH DISALLOWED YOUR CLAIM, IS SUSTAINED.