B-141924, MAR. 18, 1960

B-141924, MAR. 18, 1960

TO MR. JOHN D. ROGACZEWSKI:

REFERENCE IS MADE TO YOUR LETTER DATED DECEMBER 29, 1959, TO THE ARMY FINANCE CENTER REQUESTING REVIEW OF THAT PART OF SETTLEMENT DATED DECEMBER 3, 1959, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT OF YOUR WIFE'S TRAVEL FROM FRANKFURT, GERMANY, TO NEW YORK, NEW YORK.

PURSUANT TO ORDERS DATED JULY 1, 1959, YOU WERE RELIEVED FROM YOUR OVERSEAS DUTY STATION AND TRANSFERRED TO EMBARKEE DETACHMENT, UNITED STATES ARMY PORT OF EMBARKATION, BREMERHAVEN, GERMANY, FOR TRANSPORTATION ON JULY 27, 1959, TO THE UNITED STATES BY GOVERNMENT VESSEL, AND ULTIMATE RELEASE FROM ACTIVE DUTY. NO MENTION OF TRAVEL OF YOUR DEPENDENTS WAS MADE IN THOSE ORDERS. ON JULY 23, 1959, YOUR WIFE TRAVELED TO THE UNITED STATES BY COMMERCIAL AIR TRANSPORTATION AT PERSONAL EXPENSE. YOUR CLAIM FOR REIMBURSEMENT FOR THE COST OF HER AIR TRAVEL WAS DISALLOWED BY SETTLEMENT OF DECEMBER 3, 1959, FOR THE REASON THAT GOVERNMENT TRANSPORTATION WAS AVAILABLE FOR ELIGIBLE DEPENDENTS.

IN YOUR LETTER OF DECEMBER 29, 1959, YOU SAY THAT IN MARCH 1959, YOU MADE APPLICATION FOR YOUR WIFE'S TRAVEL TO THE UNITED STATES ON SPACE REQUIRED BASIS. THIS WAS IMMEDIATELY REJECTED AS CONTRARY TO REGULATIONS AND YOU THEN APPLIED FOR HER TRANSPORTATION ON A SPACE AVAILABLE BASIS. YOU SAY THAT UP TO THE TIME OF HER DEPARTURE ON JULY 23, 1959, YOU RECEIVED NO NOTICE THAT SHE WOULD BE FURNISHED TRANSPORTATION. IT IS YOUR VIEW THAT, REGARDLESS OF THE AVAILABILITY OF TRANSPORTATION, IT WAS THE RESPONSIBILITY OF THE GOVERNMENT TO PROVIDE HER TRANSPORTATION BY A SPECIFIED TIME WHICH YOU ESTABLISHED TO BE PRIOR TO JULY 23, 1959.

THE TRANSPORTATION OF DEPENDENTS OF MEMBERS OF THE UNIFORMED SERVICES IS GOVERNED BY THE JOINT TRAVEL REGULATIONS PROMULGATED PURSUANT TO SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 253 (C). PARAGRAPH 7002-1B OF THE REGULATIONS PROVIDES, WITH CERTAIN EXCEPTIONS NOT MATERIAL IN THIS INSTANCE, THAT FOR TRANSOCEANIC TRAVEL OF DEPENDENTS FROM AREAS OUTSIDE THE UNITED STATES, GOVERNMENT AIRCRAFT OR VESSELS WILL BE UTILIZED IF AVAILABLE. CHAPTER 9, PARAGRAPH 4B, ARMY REGULATIONS 37-106, DATED MAY 9, 1958, CITING ARMY REGULATIONS 55-46 PROVIDES THAT OVERSEAS COMMANDERS ARE RESPONSIBLE FOR APPROVING, AUTHORIZING, AND ESTABLISHING PROCEDURES IN CONNECTION WITH MOVEMENT OF DEPENDENTS WITHIN THEIR RESPECTIVE COMMANDS OR ADMINISTRATIVE JURISDICTIONS, MOVEMENT TO THE UNITED STATES, ITS TERRITORIES AND POSSESSIONS, OR MOVEMENT TO OTHER OVERSEA COMMANDS. PARAGRAPH 52, ARMY REGULATIONS 55-46, DATED OCTOBER 25, 1956, AS SUPERSEDED BY CHANGES NO. 5, DATED MAY 1, 1959, IN EFFECT AT THE TIME OF YOUR WIFE'S TRAVEL, SETS OUT THE PROCEDURE TO BE FOLLOWED BY MEMBERS IN OBTAINING TRANSPORTATION FOR THEIR DEPENDENTS FROM AN OVERSEA COMMAND TO THE UNITED STATES AND PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"B. APPLICATION. APPLICATION FOR TRANSPORTATION OF DEPENDENTS FROM AN OVERSEA COMMAND WILL BE MADE TO THE OVERSEA COMMANDER CONCERNED.

"C. PROCESSING. THE OVERSEA COMMANDER WILL PROCESS THE APPLICATION, FURNISH NECESSARY TRANSPORTATION, SIGN A PRIORITY OF TRAVEL, ISSUE THE NECESSARY TRAVEL ORDERS OR AUTHORIZATIONS AND DESIGNATE APPROPRIATE AGENCIES UNDER HIS COMMAND TO FURNISH ASSISTANCE AND SERVICES EQUIVALENT TO THESE FURNISHED DEPENDENTS IN THE UNITED STATES.'

UPON RECEIPT OF PROPER APPLICATION FROM YOU FOR YOUR WIFE'S TRAVEL, YOUR OVERSEA COMMANDER WOULD HAVE PROCESSED THE APPLICATION AND PLACED YOUR WIFE'S NAME ON A SPACE AVAILABLE LIST AND PROVIDED HER WITH TRANSPORTATION WHEN HER TURN CAME ON THE LIST. THE PURPOSE OF THIS SYSTEM IS TO PROVIDE A FAIR AND EQUITABLE MEANS OF REUNITING FAMILIES SEPARATED BY PERMANENT CHANGE OF STATION ORDERS FROM OVERSEAS TO THE UNITED STATES AND TO INSURE THAT TRANSPORTATION TO THE UNITED STATES WILL BE AVAILABLE FIRST TO THE FAMILIES SUFFERING GREATER PERIODS OF SEPARATION. IN RESPONSE TO AN INQUIRY MADE IN YOUR CASE, THE CHIEF OF TRANSPORTATION, DEPARTMENT OF THE ARMY, REPORTED THAT GOVERNMENT TRANSPORTATION WAS AVAILABLE FOR ALL DEPENDENTS ELIGIBLE TO TRAVEL TO THE UNITED STATES DURING THE PERIOD INVOLVED. THUS, HAD YOUR WIFE DELAYED HER DEPARTURE, SHE WOULD HAVE BEEN FURNISHED TRANSPORTATION BY THE GOVERNMENT IN DUE COURSE APPARENTLY WITHIN 30 DAYS OF YOUR DEPARTURE. THE REGULATIONS DO NOT PROVIDE FOR REIMBURSEMENT TO A MEMBER WHOSE DEPENDENTS DO NOT WAIT FOR GOVERNMENT TRANSPORTATION BUT VOLUNTARILY PERFORM COMMERCIAL TRAVEL AT PERSONAL EXPENSE. HENCE, THERE IS NO LEGAL BASIS FOR THE ALLOWANCE OF YOUR CLAIM.

ACCORDINGLY, THE SETTLEMENT OF DECEMBER 3, 1959, WAS CORRECT AND IS SUSTAINED.