B-143003, JUN. 13, 1960

B-143003, JUN. 13, 1960

TO MR. RAYMOND W. MCDONALD:

YOUR LETTER OF MAY 9, 1960, REQUESTS REVIEW OF THE SETTLEMENT OF MARCH 21, 1960, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT FOR YOUR WIFE'S TRAVEL FROM FRANKFURT, GERMANY, TO ERIE, PENNSYLVANIA, BY COMMERCIAL AIR, SEPTEMBER 6 AND 7, 1959, INCIDENT TO YOUR SERVICE AS AN ENLISTED MAN, REGULAR ARMY.

BY ORDERS DATED SEPTEMBER 3, 1959, YOU WERE RELEASED FROM ASSIGNMENT AT APO 757 AND TRANSFERRED TO FORT DIX, NEW JERSEY, FOR RELEASE FROM ACTIVE DUTY, IT BEING SHOWN THAT YOUR HOME OF RECORD IS ERIE, PENNSYLVANIA. THE DEPARTMENT OF THE ARMY REPORTED THAT YOU WERE REIMBURSED FOR YOUR WIFE'S TRAVEL FROM NEW YORK, NEW YORK, TO ERIE, PENNSYLVANIA. THEREFORE, THE INTENT OF THE SETTLEMENT OF MARCH 21, 1960, WAS TO DISALLOW REIMBURSEMENT FOR HER TRAVEL FROM FRANKFURT, GERMANY, TO NEW YORK, NEW YORK, FOR THE REASON THAT GOVERNMENT TRANSPORTATION WAS AVAILABLE. IN YOUR PRESENT LETTER YOU STATE THAT YOU REQUESTED GOVERNMENT TRANSPORTATION FOR YOUR WIFE AND THAT YOUR REQUEST WAS REPEATEDLY DENIED ON THE GROUNDS THAT YOU WERE NOT ENTITLED TO SUCH TRANSPORTATION AND THAT THE FURNISHING OF SAME WOULD BE CONTRARY TO REGULATIONS.

THE RIGHT TO DEPENDENTS' TRAVEL IS NOT AN ABSOLUTE ONE BUT MAY BE ADMINISTRATIVELY RESTRICTED, SUSPENDED OR DENIED FOR REASONS OF MILITARY NECESSITY OR EXPEDIENCY. SEE CULP V. UNITED STATES, 76 C.CLS. 507. THE STATUTORY AUTHORITY FOR TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE UPON A MEMBER'S CHANGE OF PERMANENT STATION IS CONTAINED IN SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 253 (C), WHICH EXPRESSLY PROVIDES THAT SUCH TRANSPORTATION, UPON THE MEMBER'S ORDERED CHANGE OF PERMANENT STATION, SHALL BE UNDER SUCH CONDITIONS AND LIMITATIONS AS THE SECRETARIES CONCERNED MAY PRESCRIBE. PARAGRAPH 7002-1B OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT FOR TRANSOCEANIC TRAVEL OF DEPENDENTS FROM OVERSEAS TO THE UNITED STATES, GOVERNMENT AIRCRAFT OR VESSELS WILL BE UTILIZED, IF AVAILABLE.

AT THE TIME YOUR WIFE TRAVELED TO YOUR OVERSEAS STATION THERE WAS IN EFFECT ARMY REGULATIONS 55-46, OCTOBER 25, 1956. PARAGRAPH 6 OF THOSE REGULATIONS SPECIFICALLY PROVIDES THAT REQUESTS FOR MOVEMENT OF DEPENDENTS TO OVERSEAS AREAS WILL BE DISAPPROVED WHEN THE PRINCIPAL "WILL HAVE LESS THAN 1 YEAR OF ACTIVE DUTY SERVICE OR LESS THAN 1 YEAR OF CURRENT FOREIGN SERVICE TOUR REMAINING AFTER ARRIVAL OF DEPENDENTS IN THE OVERSEAS COMMAND.' PARAGRAPH 52A OF THE SAME REGULATIONS (CHANGE 5, MAY 1, 1959) PROVIDES THAT RETURN TRANSPORTATION TO THE UNITED STATES OF DEPENDENTS OF SPONSORS NOT ELIGIBLE BY REASON OF GRADE OR SERVICE REQUIREMENTS IS THE FINANCIAL RESPONSIBILITY OF THE SPONSOR OR DEPENDENTS. SIMILAR PROVISIONS ALSO APPEAR IN PARAGRAPH VI OF DEPARTMENT OF DEFENSE DIRECTIVE NO. 1315.7, DATED MAY 7, 1957, WITH RESPECT TO UNAUTHORIZED DEPENDENTS WHO ENTERED AN OVERSEAS AREA AFTER JUNE 6, 1957.

THE EXACT REASON WHY YOU WERE REFUSED GOVERNMENT TRANSPORTATION FOR YOUR WIFE, IF SUCH WAS THE CASE, HAS NOT BEEN REPORTED TO US. YOUR ENLISTMENT, HOWEVER, ON JANUARY 4, 1957, WAS FOR A THREE-YEAR TERM DUE TO EXPIRE ON JANUARY 3, 1960, AND YOUR WIFE TRAVELED BY COMMERCIAL AIR FROM ERIE, PENNSYLVANIA, TO FRANKFURT, GERMANY, IN FEBRUARY 1959. SINCE YOU HAD LESS THAN ONE YEAR OF ACTIVE DUTY SERVICE OR CURRENT FOREIGN SERVICE TOUR REMAINING UNDER YOUR ENLISTMENT WHEN YOUR WIFE ARRIVED AT YOUR OVERSEAS STATION THE ABOVE REFERRED TO REGULATIONS APPEAR TO HAVE REQUIRED A DENIAL OF YOUR REQUEST FOR HER RETURN TRANSPORTATION. HOWEVER THAT MAY BE, SINCE IT IS REPORTED THAT GOVERNMENT TRANSPORTATION WAS AVAILABLE FOR TRAVEL OF DEPENDENTS FROM GERMANY TO THE UNITED STATES AND WOULD HAVE BEEN FURNISHED TO ALL ELIGIBLE DEPENDENTS, THERE IS NO LEGAL BASIS FOR PAYMENT OF YOUR CLAIM.