B-141190, DEC. 3, 1959

B-141190, DEC. 3, 1959

TO MR. HAROLD K. SEYMOUR:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 20, 1959, REQUESTING RECONSIDERATION OF OUR SETTLEMENT OF SEPTEMBER 3, 1959, WHICH DENIED YOUR CLAIM FOR REIMBURSEMENT OF $290.10 FOR THE COMMERCIAL AIR TRAVEL EXPENSES OF YOUR WIFE FROM STUTTGART, GERMANY, TO NEW YORK, NEW YORK, ON FEBRUARY 19 AND 20, 1959, INCIDENT TO ORDERS RETURNING YOU FROM THE STUTTGART SUB- AREA HEADQUARTERS TO THE UNITED STATES FOR RELEASE FROM ACTIVE SERVICE.

SPECIAL ORDERS NO. 29, HEADQUARTERS, STUTTGART SUB-AREA, DATED FEBRUARY 9, 1959, RELIEVED YOU FROM YOUR ASSIGNMENT IN GERMANY AND ASSIGNED YOU TO FORT HAMILTON, NEW YORK, FOR RELEASE FROM ACTIVE SERVICE. YOU WERE RELIEVED FROM ACTIVE SERVICE BY SPECIAL ORDERS NO. 56 OF PERSONNEL CENTER, FORT HAMILTON, NEW YORK, DATED FEBRUARY 25, 1959, AS A SPECIALIST FOURTH CLASS, PAY GRADE E-4 WITH SIX YEARS' SERVICE. YOU STATE THAT IN NOVEMBER 1958 A REDEPLOYMENT REQUEST FOR YOURSELF AND YOUR WIFE WAS SUBMITTED BY YOU TO THE MUNICH, GERMANY, SACOM HEADQUARTERS FOR APPROVAL. NO REPLY WAS RECEIVED BY JANUARY 1959 AND A TELEPHONE CALL TO MUNICH REVEALED THAT THE REQUEST HAD NOT BEEN PROCESSED. RESPONSE TO A LATER TELEPHONE CALL INDICATED THAT THE REQUEST COULD NOT BE LOCATED. HEADQUARTERS, STUTTGART SUB-AREA, THEN ISSUED ORDERS ON FEBRUARY 9, 1959, FOR YOUR RETURN TO THE UNITED STATES. APPARENTLY, YOU WERE INFORMED BY THE LOCAL TRANSPORTATION OFFICER THAT YOU COULD ARRANGE COMMERCIAL TRANSPORTATION FOR YOUR WIFE AND SUBMIT A CLAIM FOR REIMBURSEMENT AFTER YOUR ARRIVAL IN THE UNITED STATES. YOUR WIFE TRAVELED BY COMMERCIAL AIR TO NEW YORK FROM STUTTGART VIA ZURICH, SWITZERLAND, AT A COST OF $290.10. YOUR CLAIM FOR REIMBURSEMENT OF THIS AMOUNT, WHICH THE FINANCE CENTER, UNITED STATES ARMY, REFERRED HERE FOR DIRECT SETTLEMENT, WAS DISALLOWED ON THE GROUND THAT TRANSPORTATION IN KIND FOR THE WATER TRAVEL INVOLVED WAS AVAILABLE AND WAS REQUIRED TO BE USED.

SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 253 (C), PROVIDES THAT UNDER SUCH REGULATIONS AS MAY BE PRESCRIBED BY THE SECRETARIES CONCERNED, MEMBERS OF THE UNIFORMED SERVICES WHEN ORDERED TO MAKE A PERMANENT CHANGE OF STATION SHALL BE ENTITLED TO TRANSPORTATION FOR THEIR DEPENDENTS. PARAGRAPH 7000-1 OF THE JOINT TRAVEL REGULATIONS STATES THAT MEMBERS IN PAY GRADE E-4 WITH OVER FOUR YEARS' SERVICE SHALL BE ENTITLED TO TRANSPORTATION OF THEIR DEPENDENTS ON PERMANENT CHANGE OF STATION. PARAGRAPH 7002-1B OF THE JOINT TRAVEL REGULATIONS PROVIDES, WITH CERTAIN EXCEPTIONS NOT MATERIAL IN THIS INSTANCE, THAT FOR ALL TRANSOCEANIC TRAVEL OF DEPENDENTS FROM OVERSEAS AREAS TO THE UNITED STATES, GOVERNMENT AIRCRAFT OR VESSELS WILL BE UTILIZED IF AVAILABLE. IN THIS INSTANCE THE DEPARTMENT OF THE ARMY HAS REPORTED THAT TRANSPORTATION FOR AUTHORIZED DEPENDENTS WAS AVAILABLE ON REGULARLY SCHEDULE MILITARY SEA TRANSPORTATION SERVICE VESSELS FROM BREMERHAVEN, GERMANY, AND BY REGULARLY SCHEDULED MILITARY AIR TRANSPORTATION SERVICE FLIGHTS FROM FRANKFURT, GERMANY, DURING THE PERIOD IN WHICH TRAVEL WAS PERFORMED. IN VIEW OF THE PLAIN REQUIREMENT OF THE REGULATIONS THAT GOVERNMENT TRANSPORTATION MUST BE UTILIZED WHEN AVAILABLE, THERE IS NO LEGAL BASIS FOR REIMBURSEMENT OF THE EXPENSES OF YOUR WIFE'S AIR TRAVEL IN THE ABSENCE OF EVIDENCE FROM AN OFFICIAL SOURCE SHOWING THAT THE PROPER GOVERNMENT OFFICIALS REFUSED TO FURNISH SUCH TRANSPORTATION. B 138445, FEBRUARY 16, 1959; B-135851, MAY 1, 1958. MOREOVER, EVEN THOUGH YOU MAY HAVE BEEN MISLED BY THE TRANSPORTATION OFFICER AS TO YOUR RIGHT TO REIMBURSEMENT SHOULD YOU RETURN YOUR WIFE AT YOUR OWN EXPENSE IN ORDER TO AVOID DELAY, YOUR CLAIM MAY NOT BE PAID. IS A WELL-SETTLED PRINCIPLE OF LAW THAT THE GOVERNMENT IS NOT BOUND BY THE NEGLIGENT OR ERRONEOUS ACTS OF ITS OFFICERS OR AGENTS IN THE ABSENCE OF A STATUTE SO PROVIDING. ROBERTSON V. SICHEL, 127 U.S. 507.515.

FOR TRAVEL, HOWEVER, OTHER THAN TRANSOCEANIC TRAVEL, PARAGRAPH 7003 OF THE JOINT TRAVEL REGULATIONS PROVIDES A MONETARY ALLOWANCE IN LIEU OF TRANSPORTATION IN CERTAIN INSTANCES AT A RATE OF 6 CENTS PER MILE FOR EACH DEPENDENT OVER 12 YEARS OF AGE. PARAGRAPH 7003-3B PROVIDES THAT THIS ALLOWANCE MAY BE PAID FROM THE OLD STATION TO THE PORT OF EMBARKATION WHEN A GOVERNMENT VESSEL IS AVAILABLE AND NOT USED. YOU HAVE BEEN REIMBURSED FOR YOUR DEPENDENT'S TRAVEL FROM NEW YORK CITY TO HANCOCK, NEW YORK. SINCE THE DEPARTMENT OF THE ARMY REPORT INDICATES THAT THE PORT OF EMBARKATION FOR THE AREA IN WHICH YOU WERE SERVING WAS BREMERHAVEN, GERMANY, YOU ARE ENTITLED TO ADDITIONAL REIMBURSEMENT ON A MILEAGE BASIS FOR THE DISTANCE FROM STUTTGART TO BREMERHAVEN. A SETTLEMENT FOR THE AMOUNT DUE ON THAT BASIS WILL ISSUE IN DUE COURSE.

THE COPY OF YOUR WIFE'S AIRLINE TICKET AND SPECIAL ORDERS NO. 200, HEADQUARTERS, STUTTGART SUB-AREA, DATED OCTOBER 8, 1957, ARE RETURNED AS REQUESTED.