B-141438, JAN. 8, 1960

B-141438: Jan 8, 1960

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SZYMANEK: REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 19. SINCE YOUR CLAIM FOR REIMBURSEMENT FOR TRAVEL OF YOUR DEPENDENTS FROM MELBOURNE TO SAN FRANCISCO WAS DISALLOWED BY OUR SETTLEMENT DATED MARCH 1. SO FAR AS THAT CLAIM IS CONCERNED. WILL BE TREATED AS A REQUEST FOR REVIEW OF THAT SETTLEMENT. YOU WERE TRANSFERRED FROM YOUR DETACHMENT AT APO 925 TO A DISPOSITION CENTER AT APO 927 FOR THE PURPOSE OF DISCHARGE IN AUSTRALIA. IT BEING STATED THAT UPON SEPARATION YOU WERE REQUIRED TO REPORT TO THE NEAREST COLLECTOR OF CUSTOMS. YOUR DISCHARGE FROM THE REGULAR ARMY WAS EFFECTED ON SEPTEMBER 26. YOU IMMEDIATELY PRESENTED A CLAIM TO THE ARMY FOR REIMBURSEMENT FOR YOUR WIFE'S TRAVEL FROM SAN FRANCISCO TO DETROIT AND WERE PAID $101.88.

B-141438, JAN. 8, 1960

TO MR. EUGENE J. SZYMANEK:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 19, 1959, TO THE DEPARTMENT OF THE ARMY, IN EFFECT PRESENTING CLAIM FOR REIMBURSEMENT FOR TRAVEL OF YOUR DEPENDENTS FROM MELBOURNE, AUSTRALIA, TO DETROIT, MICHIGAN, DURING THE PERIOD AUGUST 23 TO OCTOBER 27, 1946. SINCE YOUR CLAIM FOR REIMBURSEMENT FOR TRAVEL OF YOUR DEPENDENTS FROM MELBOURNE TO SAN FRANCISCO WAS DISALLOWED BY OUR SETTLEMENT DATED MARCH 1, 1948, YOUR LETTER, SO FAR AS THAT CLAIM IS CONCERNED, WILL BE TREATED AS A REQUEST FOR REVIEW OF THAT SETTLEMENT.

BY PARAGRAPH 7, SPECIAL ORDERS NO. 201, DATED JULY 20, 1945, HEADQUARTERS FAR EAST AIR FORCES, APO 925, PURSUANT TO YOUR REQUEST FOR DISCHARGE WITHIN THE THEATER, YOU WERE TRANSFERRED FROM YOUR DETACHMENT AT APO 925 TO A DISPOSITION CENTER AT APO 927 FOR THE PURPOSE OF DISCHARGE IN AUSTRALIA, IT BEING STATED THAT UPON SEPARATION YOU WERE REQUIRED TO REPORT TO THE NEAREST COLLECTOR OF CUSTOMS, COMMONWEALTH OF AUSTRALIA, TO UNDERGO FORMALITIES OF IMMIGRATION AND PERMISSION TO REMAIN IN AUSTRALIA. YOUR DISCHARGE FROM THE REGULAR ARMY WAS EFFECTED ON SEPTEMBER 26, 1945. AT THAT TIME YOU HAD A DEPENDENT WIFE, HAVING BEEN MARRIED IN MELBOURNE ON DECEMBER 9, 1944. YOU AND YOUR DEPENDENTS DEPARTED MELBOURNE ON AUGUST 23, 1946, AND ARRIVED IN DETROIT ON OCTOBER 27, 1946. YOU IMMEDIATELY PRESENTED A CLAIM TO THE ARMY FOR REIMBURSEMENT FOR YOUR WIFE'S TRAVEL FROM SAN FRANCISCO TO DETROIT AND WERE PAID $101.88. UPON AUDIT OF THE DISBURSING OFFICER'S ACCOUNTS, HOWEVER, WE TOOK EXCEPTION TO THE PAYMENT AND AS THE RESULT, THE AMOUNT PAID WAS COLLECTED FROM YOU ON OCTOBER 26, 1948. YOUR CLAIM FOR REIMBURSEMENT FOR THE OCEAN TRAVEL OF YOUR DEPENDENTS WAS REFERRED HERE FOR SETTLEMENT AND WAS DISALLOWED BY THE SETTLEMENT OF MARCH 1, 1948. IN YOUR PRESENT LETTER YOU STATE YOU WERE DISCHARGED OVERSEAS WITH THE INTENTION OF COMPLETING ARRANGEMENTS TO HAVE YOUR WIFE TRAVEL WITH YOU TO YOUR HOME, AND THAT AUTHORITY FOR HER TRAVEL WAS CONTAINED IN WAR DEPARTMENT CIRCULAR NO. 245, DATED AUGUST 11, 1945.

THE MILITARY APPROPRIATION ACT, 1946, 59 STAT. 384, 388, AND WAR DEPARTMENT CIRCULAR NO. 245, DATED AUGUST 11, 1945, EFFECTIVE AS OF JULY 1, 1945, AUTHORIZED TRANSPORTATION AT GOVERNMENT EXPENSE OF DEPENDENTS OF MILITARY PERSONNEL WHO WERE, OR HAD BEEN ON DUTY AT STATIONS OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES TO A LOCATION IN THE UNITED STATES. HOWEVER, PARAGRAPH 3A (3) OF THE CIRCULAR PROVIDED THAT DEPENDENTS OF MILITARY PERSONNEL WHO WERE NOT THEMSELVES ENTITLED TO TRANSPORTATION TO THE UNITED STATES BY REASON OF CIRCUMSTANCES OF THEIR SEPARATION FROM THE SERVICE WERE SPECIFICALLY EXCLUDED FROM THE PROVISIONS OF THE CIRCULAR.

IN GENERAL, THE RIGHT OF DEPENDENTS OF MILITARY PERSONNEL TO TRAVEL AT GOVERNMENT EXPENSE IS GROUNDED UPON A RIGHT ON THE PART OF THE MILITARY PERSONNEL CONCERNED TO PERFORM TRAVEL AT PUBLIC EXPENSE. YOUR ORDERS SHOW THAT YOU VOLUNTARILY RELINQUISHED YOUR OWN TRANSPORTATION TO THE UNITED STATES IN ORDER TO BE DISCHARGED IN AUSTRALIA. PARAGRAPH 41, ARMY REGULATIONS 35-4810, DATED OCTOBER 8, 1945, ISSUED PURSUANT TO THE AUTHORITY CONTAINED IN SECTION 126 OF THE ACT OF JUNE 3, 1916, 39 STAT. 217, SPECIFICALLY PROVIDED THAT GOVERNMENT TRANSPORTATION ONLY FOR SEA TRAVEL WOULD BE FURNISHED IN ANY CASE OF SEPARATION FROM SERVICE OF ENLISTED MEN WHERE LAND AND SEA TRAVEL WERE NECESSARY TO RETURN AN INDIVIDUAL TO PLACE OF ACCEPTANCE, AND THAT WHERE THE INDIVIDUAL DID NOT DESIRE TO AVAIL HIMSELF OF GOVERNMENT TRANSPORTATION IT WAS CONSIDERED THAT THE GOVERNMENT HAD DISCHARGED ITS OBLIGATION AND WOULD NOT AT A LATER DATE FURNISH SUCH TRANSPORTATION. WHEN YOU RETURNED TO THE UNITED STATES YOU WERE NOT ENTITLED TO TRAVEL AT GOVERNMENT EXPENSE AND, THEREFORE, YOU ARE NOT ENTITLED TO REIMBURSEMENT FOR YOUR WIFE'S TRAVEL.

ACCORDINGLY, THE SETTLEMENT OF MARCH 1, 1948, WAS CORRECT AND IS SUSTAINED.

WITH RESPECT TO YOUR CLAIM FOR THE AMOUNT COLLECTED FROM YOU FOR YOUR WIFE'S TRAVEL FROM SAN FRANCISCO TO DETROIT, SINCE THE CLAIM ACCRUED ON OCTOBER 26, 1948, AND YOUR LETTER WAS RECEIVED IN THIS OFFICE ON NOVEMBER 2, 1959, OR MORE THAN TEN YEARS LATER, CONSIDERATION OF THAT CLAIM IS BARRED BY THE EXPRESS PROVISIONS OF THE ACT OF OCTOBER 9, 1940, PUBLIC LAW NO. 820 (54 STAT. 1061), A COPY OF WHICH IS ENCLOSED.