B-142714, MAY 17, 1960

B-142714: May 17, 1960

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YOU WERE TRANSFERRED FROM YOUR OVERSEAS DUTY STATION TO DUTY AT FORT LEE. WERE AMENDED TO ADD "3 DAYS DDALV HAWAII. THE RECORD SHOWS THAT YOU LEFT RYUKYU ISLANDS BY MILITARY AIRCRAFT WITH YOUR FAMILY AND DEBARKED AT HAWAII TO SPEND THREE DAYS' LEAVE WHICH WAS AUTHORIZED BY THE AMENDATORY ORDERS OF OCTOBER 2. YOUR CLAIM FOR REIMBURSEMENT OF THIS AMOUNTS WAS DISALLOWED BY SETTLEMENT DATED MARCH 21. FOR THE REASON THAT GOVERNMENT TRANSPORTATION REPORTEDLY WAS AVAILABLE. IT PROVIDES THAT THE MEMBER WILL BE ENTITLED TO TRANSPORTATION BY GOVERNMENT AIRCRAFT OR VESSEL. WHICH IS THE AUTHORITY CITED IN THE AMENDATORY ORDERS OF OCTOBER 2. THE MESSAGE IS AS FOLLOWS: "DUE TO THE INCREASING VOLUME OF DELAY EN ROUTE TRAVEL AND OPERATIONAL CONDITIONS INHERENT WHEN MOVING VIA MATS.

B-142714, MAY 17, 1960

TO LIEUTENANT COLONEL ROBERT J. WARD, QMC:

YOUR LETTER OF APRIL 11, 1960, REQUESTS REVIEW OF OUR SETTLEMENT DATED MARCH 21, 1960, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT FOR YOUR TRANSPORTATION AND THAT OF YOUR DEPENDENTS (WIFE AND SIX CHILDREN), FROM HAWAII TO SAN FRANCISCO, CALIFORNIA, ON NOVEMBER 5, 1959.

BY ORDERS DATED SEPTEMBER 21, 1959, HEADQUARTERS, U.S. ARMY, RYUKYU ISLANDS AND IX CORPS, APO 331, YOU WERE TRANSFERRED FROM YOUR OVERSEAS DUTY STATION TO DUTY AT FORT LEE, VIRGINIA. THE ORDERS AUTHORIZED TRAVEL BY MILITARY AIRCRAFT AND 45 DAYS' DELAY EN ROUTE TO BE CHARGED AS LEAVE. BY ORDERS DATED OCTOBER 2, 1959, YOUR ORDERS OF SEPTEMBER 21, 1959, WERE AMENDED TO ADD "3 DAYS DDALV HAWAII. AUTH: MSG RC08041, CGUSARHAW/25TH INF.DIV. HAWAII, DTD 25 SEP 59. REPORT UPON ARR TO ARMY ATCO, HICKAM AFB TO ARRANGE FOR ONWARD TRANSPORTATION.'

THE RECORD SHOWS THAT YOU LEFT RYUKYU ISLANDS BY MILITARY AIRCRAFT WITH YOUR FAMILY AND DEBARKED AT HAWAII TO SPEND THREE DAYS' LEAVE WHICH WAS AUTHORIZED BY THE AMENDATORY ORDERS OF OCTOBER 2, 1959. ON NOVEMBER 5, 1959, YOU WENT FROM THERE TO SAN FRANCISCO, CALIFORNIA, BY COMMERCIAL AIRCRAFT FOR WHICH YOU PAID THE SUM OF $819.26. YOUR CLAIM FOR REIMBURSEMENT OF THIS AMOUNTS WAS DISALLOWED BY SETTLEMENT DATED MARCH 21, 1960, FOR THE REASON THAT GOVERNMENT TRANSPORTATION REPORTEDLY WAS AVAILABLE.

PARAGRAPH 4159-2 OF THE JOINT TRAVEL REGULATIONS PROMULGATED PURSUANT TO SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 253, PROVIDES FOR PERMANENT CHANGE OF STATION TRAVEL TO, FROM, OR BETWEEN POINTS OUTSIDE THE UNITED STATES. IT PROVIDES THAT THE MEMBER WILL BE ENTITLED TO TRANSPORTATION BY GOVERNMENT AIRCRAFT OR VESSEL, IF AVAILABLE, OTHERWISE GOVERNMENT FURNISHED TRANSPORTATION OR REIMBURSEMENT THEREFOR BETWEEN THE UNITED STATES AND THE APPROPRIATE AERIAL OR WATER PORT OF DEBARKATION OVERSEAS. PARAGRAPH 7002-1B OF THE REGULATIONS, INSOFAR AS HERE PERTINENT, PROVIDES THAT TRANSPORTATION FOR DEPENDENTS TO OR FROM OVERSEAS STATIONS SHALL NOT BE OTHER THAN BY GOVERNMENT AIRCRAFT OR VESSEL IF AVAILABLE.

IN CONNECTION WITH A REQUEST FROM THE CLAIMS DIVISION, FINANCE CENTER, INDIANAPOLIS, INDIANA, TO THE CHIEF OF TRANSPORTATION, DEPARTMENT OF THE ARMY, FOR A DETERMINATION AS TO THE AVAILABILITY OF GOVERNMENT TRANSPORTATION IN YOUR CASE, THE CHIEF OF TRANSPORTATION ADDRESSED A FIRST INDORSEMENT, DATED JANUARY 11, 1960, TO THE COMMANDER IN CHIEF, UNITED STATES ARMY, PACIFIC, AS FOLLOWS:

"1. IN VIEW OF THE APPARENT AVAILABILITY OF SCHEDULED MILITARY AIR AND SURFACE TRANSPORTATION FOR PCS PERSONNEL, REQUEST AUTHORITY FOR ISSUANCE OF CERTIFICATE OF NON-AVAILABILITY OF MILITARY AIR TRANSPORTATION.

"2. REQUEST YOUR REPLY BE EXPEDITED TO PRECLUDE ANY INCONVENIENCE TO LT. COLONEL WARD.'

IN A REPLY, DATED JANUARY 26, 1960, THE ADJUTANT GENERAL, HEADQUARTERS, UNITED STATES ARMY, HAWAII, RECOMMENDED THAT YOUR CLAIM FOR REIMBURSEMENT BE DISAPPROVED, AND STATED THAT YOU VOLUNTARILY INTERRUPTED YOUR TRAVEL TO USE SOME LEAVE IN HAWAII, NOTWITHSTANDING YOU HAD BEEN ADVISED THAT A STOP -OVER THERE MIGHT RESULT IN SOME DELAY IN PROVIDING YOU FURTHER TRANSPORTATION AT YOUR CONVENIENCE. IN SUPPORT OF THIS, HE ENCLOSED A COPY OF MESSAGE DATED SEPTEMBER 25, 1959, SENT BY HIS ACTIVITY TO YOUR OVERSEAS COMMAND, WHICH IS THE AUTHORITY CITED IN THE AMENDATORY ORDERS OF OCTOBER 2, 1959, WHICH AUTHORIZED YOU THREE DAYS' DELAY IN HAWAII TO BE CHARGED AS LEAVE. THE MESSAGE IS AS FOLLOWS:

"DUE TO THE INCREASING VOLUME OF DELAY EN ROUTE TRAVEL AND OPERATIONAL CONDITIONS INHERENT WHEN MOVING VIA MATS, THIS COMMAND MAY BE UNABLE TO FURNISH ONWARD TRANSPORTATION ON DATE DESIRED. ALSO, BECAUSE OF THE SIZE OF THE FAMILY, SPONSOR CONCERNED SHOULD BE ADVISED THAT ONWARD TRANSPORTATION MAY REQUIRE SPLITTING THE FAMILY INTO TWO GROUPS FOR MOVEMENT ON SEPARATE AIRCRAFT. HOWEVER, EVERY EFFORT WILL BE MADE TO MOVE THE FAMILY ON THE SAME AIRCRAFT ON THE DESIRED DATE.'

ALSO, IT IS STATED IN THE REPORT, THAT WHILE IT IS TRUE THAT YOUR SCHEDULED FLIGHT WAS CANCELED, IF YOU HAD WAITED FOR TRANSPORTATION YOU WOULD HAVE BEEN FURNISHED SUCH TRANSPORTATION SHORTLY THEREAFTER.

WHEN THERE IS A DISPUTE AS TO THE FACTS BETWEEN THE CLAIMANT AND THE ADMINISTRATIVE OFFICE, THIS OFFICE, NOT HAVING FIRST-HAND KNOWLEDGE OF THE FACTS, MUST NECESSARILY RELY ON THE FACTS AS REPORTED BY THE ADMINISTRATIVE OFFICE, IN THE ABSENCE OF CONVINCING EVIDENCE TO THE CONTRARY. THE CERTIFICATE OF UNAVAILABILITY OF GOVERNMENT TRANSPORTATION DATED NOVEMBER 4, 1959, WHICH YOU FURNISHED WITH YOUR VOUCHER DOES NOT MEET THIS REQUIREMENT. AS INDICATED ABOVE, IT MERELY DESCRIBES THE TRANSPORTATION CONDITIONS EXISTING AT HICKAM AIR FORCE BASE, HAWAII, ON NOVEMBER 4, 1959, AND IN THE IMMEDIATE FUTURE. HENCE, WE CANNOT ACCEPT IT AS A CERTIFICATE OF UNAVAILABILITY OF GOVERNMENT TRANSPORTATION AS CONTEMPLATED BY APPLICABLE REGULATIONS.

ACCORDINGLY, THERE IS NO LEGAL BASIS FOR REIMBURSEMENT TO YOU FOR THE COST OF TRANSPORTATION PERFORMED BY COMMERCIAL AIR AT PERSONAL EXPENSE. THE SETTLEMENT OF MARCH 21, 1960, WAS CORRECT AND IS SUSTAINED.