B-142396, APR. 29, 1960

B-142396: Apr 29, 1960

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THE RECORD SHOWS THAT YOU WERE ON ACTIVE DUTY AS AN ENLISTED MAN (SP-2) AT FORT POLK. YOU WERE DIRECTED TO PROCEED TO EUROPE FOR DUTY WITH THE EUROPEAN COMMAND. YOU WERE STATIONED IN OR NEAR MUNICH. IT IS SHOWN THAT THEY TRAVELED TO THE UNITED STATES (NEW YORK. YOU SAY THAT THE ADVANCE RETURN OF YOUR DEPENDENTS WAS OCCASIONED BY THE PHYSICAL CONDITION (ILLNESS) OF YOUR INFANT DAUGHTER. YOU HAVE SUBMITTED EVIDENCE TO SHOW THAT THE CONDITION OF HER HEALTH WAS SUCH AS TO REQUIRE NUMEROUS EXAMINATIONS AND TREATMENTS AS AN OUT-PATIENT AT THE UNITED STATES ARMY HOSPITAL. YOU BELIEVED THAT THE HEALTH OF YOUR DAUGHTER WOULD IMPROVE IF SHE AND HER MOTHER WERE REPATRIATED. YOU REPORT THAT ALTHOUGH YOUR APPLICATION FOR THE RETURN OF YOUR DEPENDENTS WAS APPROVED BY YOUR COMMANDING OFFICER.

B-142396, APR. 29, 1960

TO CHARLES R. DEAN, SP/5, RA 17241310:

THIS REFERS TO YOUR UNDATED LETTER POSTMARKED MARCH 10, 1960, REQUESTING REVIEW OF OUR SETTLEMENT DATED FEBRUARY 29, 1960, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT OF EXPENSES INCURRED DURING 1958, FOR THE TRANSPORTATION OF YOUR DEPENDENTS (WIFE, AND INFANT DAUGHTER) FROM MUNICH, GERMANY, TO NEW YORK, NEW YORK.

THE RECORD SHOWS THAT YOU WERE ON ACTIVE DUTY AS AN ENLISTED MAN (SP-2) AT FORT POLK, LOUISIANA, WHEN, BY SPECIAL ORDERS NO. 58, DATED NOVEMBER 25, 1957, YOU WERE DIRECTED TO PROCEED TO EUROPE FOR DUTY WITH THE EUROPEAN COMMAND. YOU WERE STATIONED IN OR NEAR MUNICH, GERMANY, AT THE TIME YOUR DEPENDENTS JOINED YOU--- THEIR TRAVEL THERETO AT GOVERNMENT EXPENSE HAVING BEEN PERFORMED PURSUANT TO AUTHORIZATION DATED DECEMBER 27, 1957.

DURING JULY 1958, WHILE ASSIGNED TO COMPANY "C," 3RD MEDIUM TANK BATTALION, 34TH ARMOR, 24TH INFANTRY DIVISION, APO 29, YOU APPLIED, UNDER THE PROVISIONS OF PARAGRAPH 7009-3 OF THE JOINT TRAVEL REGULATIONS, FOR THE RETURN OF YOUR DEPENDENTS TO THE CONTINENTAL UNITED STATES AT GOVERNMENT EXPENSE, AND IT IS SHOWN THAT THEY TRAVELED TO THE UNITED STATES (NEW YORK, NEW YORK) BY COMMERCIAL AIR ON OR ABOUT JULY 28, 1958, AT YOUR EXPENSE.

YOU SAY THAT THE ADVANCE RETURN OF YOUR DEPENDENTS WAS OCCASIONED BY THE PHYSICAL CONDITION (ILLNESS) OF YOUR INFANT DAUGHTER. YOU HAVE SUBMITTED EVIDENCE TO SHOW THAT THE CONDITION OF HER HEALTH WAS SUCH AS TO REQUIRE NUMEROUS EXAMINATIONS AND TREATMENTS AS AN OUT-PATIENT AT THE UNITED STATES ARMY HOSPITAL, MUNICH, GERMANY, BETWEEN MARCH AND JULY 1958. APPARENTLY, YOU BELIEVED THAT THE HEALTH OF YOUR DAUGHTER WOULD IMPROVE IF SHE AND HER MOTHER WERE REPATRIATED.

YOU REPORT THAT ALTHOUGH YOUR APPLICATION FOR THE RETURN OF YOUR DEPENDENTS WAS APPROVED BY YOUR COMMANDING OFFICER, IT WAS CONSIDERED AS INCOMPLETE AT BATTALION LEVEL IN THAT "IT LACKED SUPPORTING MEDICAL DOCUMENTS.' OUR FILE CONTAINS A STATEMENT DATED APRIL 1, 1959, SIGNED BY CAPTAIN ROBERT D. ELLERSON, PEDIATRICIAN, AT THE ABOVE-MENTIONED HOSPITAL, WHICH DISCLOSES THAT SHORTLY AFTER YOU REQUESTED RETURN TRANSPORTATION YOU WERE ADVISED "THAT THERE WAS NOTHING IN THE CHILD'S HISTORY OR PHYSICAL EXAMINATION AT ANY TIME TO SUGGEST THAT A CHANGE IN CLIMATE OR ENVIRONMENT WOULD BE EITHER NECESSARY OR DESIRABLE," AND THAT "ON THE BASIS OF OUR EXAMINATIONS NO STATEMENT TO ENABLE ROTATION OF * * * DEPENDENTS FOR MEDICAL REASONS COULD BE GIVEN.' THE PEDIATRICIAN'S STATEMENT ISSUED PURSUANT TO YOUR REQUEST CLEARLY INDICATES THAT ON OR ABOUT THE DATE YOUR DEPENDENTS RETURNED TO THE UNITED STATES YOU WERE INFORMED THAT THE CONDITION OF YOUR DAUGHTER'S HEALTH WAS ADMINISTRATIVELY CONSIDERED AS NOT WARRANTING THE ROTATION OF YOUR DEPENDENTS AT GOVERNMENT EXPENSE. MOREOVER, THE RECORD SHOWS THAT NO ORDERS ISSUED AUTHORIZING THE TRAVEL FOR WHICH REIMBURSEMENT IS CLAIMED.

SECTION 303/A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813 (37 U.S.C. 253), PROVIDES THAT UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, MEMBERS OF THE UNIFORMED SERVICES SHALL BE ENTITLED TO RECEIVE TRAVEL AND TRANSPORTATION ALLOWANCES FOR TRAVEL PERFORMED OR TO BE PERFORMED UNDER COMPETENT ORDERS UPON A PERMANENT CHANGE OF STATION OR OTHERWISE, THE SECRETARIES CONCERNED TO PRESCRIBE THE CONDITIONS UNDER WHICH TRAVEL AND TRANSPORTATION ALLOWANCES MAY BE AUTHORIZED.

PARAGRAPH 7009 OF THE JOINT TRAVEL REGULATIONS (CHANGE 60, EFFECTIVE JULY 1, 1957) PROVIDES THAT COMMANDING OFFICERS, WITH THE APPROVAL OF THE THEATER COMMANDER OR OTHER COMPETENT AUTHORITY, MAY, IN THE BEST INTEREST OF THE UNITED STATES AND UNDER UNUSUAL AND EMERGENCY SITUATIONS, AUTHORIZE THE TRANSPORTATION AT GOVERNMENT EXPENSE OF DEPENDENTS OF MEMBERS ASSIGNED TO DUTY AT LOCATIONS OUTSIDE THE UNITED STATES PRIOR TO THE ISSUANCE OF ORDERS FOR THE RELIEF OF SUCH MEMBERS FROM THEIR STATIONS. THE APPLICABLE REGULATIONS (PARAGRAPH 4159-4) CONTEMPLATE THE PERFORMANCE OF ALL TRANSOCEANIC TRAVEL BY GOVERNMENT AIRCRAFT OR VESSEL, IF AVAILABLE, UNLESS SOME OTHER MEANS OF TRANSPORTATION IS ESPECIALLY AUTHORIZED, AND (PARAGRAPH 3000) SPECIFICALLY PRECLUDE REIMBURSEMENT FOR TRAVEL UNLESS ORDERS BY COMPETENT AUTHORITY HAVE BEEN ISSUED THEREFOR.

PRIOR TO OUR SETTLEMENT DATED FEBRUARY 29, 1960, WE OBTAINED A REPORT FROM THE ADMINISTRATIVE OFFICE SHOWING THAT BOTH GOVERNMENT AIR AND SURFACE TRANSPORTATION WAS AVAILABLE FOR TRAVEL OF DEPENDENTS OF MILITARY PERSONNEL OTHERWISE ELIGIBLE THEREFOR AT THE TIME THE INVOLVED TRAVEL WAS PERFORMED. THE REPORT FURTHER SHOWS THAT REGULARLY SCHEDULED FLIGHTS VIA GOVERNMENT AIRCRAFT ARE MAINTAINED FROM FRANKFURT, GERMANY, TO MCGUIRE AIR FORCE BASE, NEW JERSEY, AND THAT GOVERNMENT SURFACE VESSELS MAINTAIN REGULARLY SCHEDULED SAILINGS FROM BREMERHAVEN, GERMANY, TO NEW YORK, NEW YORK. WE, OF COURSE, ARE NOT UNAWARE OF THE ANXIETY OF A PARENT WHOSE CHILD IS ILL OR INDISPOSED, NEVERTHELESS YOU CAN REALIZE THAT OUR OFFICE HAS NO AUTHORITY TO WAIVE OR DISREGARD THE PROVISIONS OF ANY STATUTE OR THE REGULATIONS PROMULGATED PURSUANT THERETO. IN THE CIRCUMSTANCES, IT APPEARING THAT YOU ELECTED TO HAVE YOUR DEPENDENTS PERFORM THE TRAVEL WITHOUT OFFICIAL AUTHORIZATION, AND SINCE THE OCEAN TRAVEL WAS BY COMMERCIAL MEANS WHEN GOVERNMENT TRANSPORTATION WAS AVAILABLE, WE KNOW OF NO AUTHORITY FOR THE ALLOWANCE OF YOUR CLAIM.

UPON REVIEW, WE FIND THAT THE SETTLEMENT OF FEBRUARY 19, 1958, WAS CORRECT AND IT MUST BE AND IS SUSTAINED.

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