B-144113, OCT. 20, 1960

B-144113: Oct 20, 1960

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JR.: REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 21. YOU WERE RELEASED FROM YOUR ASSIGNMENT WITH THE 83RD ENGINEER BATTALION. YOU WERE MARRIED TO DANIELLE N. YOU WERE PAID TRAVEL ALLOWANCE FOR YOUR WIFE FROM FONTENET. WAS DENIED FOR THE REASON THAT GOVERNMENT TRANSPORTATION IN KIND WAS AVAILABLE AND SHOULD HAVE BEEN UTILIZED. YOU CONTEND THAT YOU WERE AUTHORIZED TO HAVE YOUR WIFE TRAVEL WITH YOU. THAT IT WAS THROUGH ERROR THAT AUTHORIZATION FOR HER TRAVEL WAS NOT INCLUDED IN YOUR ORIGINAL TRAVEL ORDER. THAT YOU DID EVERYTHING POSSIBLE TO STRAIGHTEN THINGS OUT IN THE SHORT TIME REMAINING OF YOUR TOUR OF DUTY AND THAT GOVERNMENT TRANSPORTATION WAS NOT AVAILABLE FOR YOUR WIFE FROM PARIS TO NEW YORK AT THE TIME OF YOUR TRAVEL.

B-144113, OCT. 20, 1960

TO MR. ELI EICHELBERGER, JR.:

REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 21, 1960, REQUESTING REVIEW OF SETTLEMENT OF SEPTEMBER 7, 1960, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT OF YOUR WIFE'S TRAVEL FROM PARIS, FRANCE, TO NEW YORK, NEW YORK, IN NOVEMBER 1959, INCIDENT TO YOUR RETURN TO THE UNITED STATES FROM AN OVERSEAS ASSIGNMENT AND RELEASE FROM ACTIVE SERVICE AS FIRST LIEUTENANT, UNITED STATES ARMY.

BY LETTER ORDERS 9-33, DATED SEPTEMBER 22, 1959, EFFECTIVE UPON ISSUANCE OF PORT CALL ORDERS, YOU WERE RELEASED FROM YOUR ASSIGNMENT WITH THE 83RD ENGINEER BATTALION, APO 259, UNITED STATES FORCES, AND ASSIGNED TO THE UNITED STATES ARMY TRANSFER STATION (61-1386-1), FORT HAMILTON, NEW YORK, FOR RELEASE FROM ACTIVE MILITARY SERVICE. THE ORDERS STATED THAT YOUR ADDRESS ON RELEASE FROM ACTIVE DUTY WOULD BE YORK, PENNSYLVANIA. SEPTEMBER 26, 1959, YOU WERE MARRIED TO DANIELLE N. CASTAIGNEDE, A FRENCH NATIONAL. LETTER ORDERS 10-20, DATED OCTOBER 9, 1959, AMENDING LETTERS ORDERS 9-33, AUTHORIZED YOUR ASSIGNMENT TO 524 REPLACEMENT COMPANY, APO 230, UNITED STATES FORCES, AND REQUIRED YOU TO REPORT TO HOTEL LITTRE, PARIS, FRANCE, ON NOVEMBER 5, 1959, FOR RETURN TO THE UNITED STATES.

SINCE YOUR ORDERS DID NOT AUTHORIZE TRANSPORTATION FOR YOUR WIFE, YOU PURCHASED A TICKET ON OCTOBER 31, 1959, FOR HER TRAVEL TO THE UNITED STATES BY COMMERCIAL AIR. SHE TRAVELED FROM FONTENET, FRANCE, TO YORK, PENNSYLVANIA, DURING THE PERIOD NOVEMBER 5 TO 9, 1959. SUBSEQUENTLY, LETTER ORDERS 3-104, DATED MARCH 25, 1960, FURTHER AMENDED LETTER ORDERS 9 -33, TO ADD AN AUTHORIZATION FOR CONCURRENT TRAVEL FOR YOUR WIFE, DANIELLE N. EICHELBERGER. BASED ON THIS AMENDMENT OF YOUR ORDERS YOU CLAIMED REIMBURSEMENT FOR YOUR WIFE'S TRAVEL FROM FONTENET, FRANCE, TO FORT HAMILTON, NEW YORK, REIMBURSEMENT FROM NEW YORK, NEW YORK, TO YORK, PENNSYLVANIA, HAVING ALREADY BEEN RECEIVED BY YOU. BY SETTLEMENT OF SEPTEMBER 7, 1960, YOU WERE PAID TRAVEL ALLOWANCE FOR YOUR WIFE FROM FONTENET, FRANCE, TO PARIS, FRANCE, IN THE AMOUNT OF $17.40, HOWEVER, YOUR CLAIM FOR REIMBURSEMENT FOR COST OF COMMERCIAL AIR FARE FOR HER FROM PARIS, FRANCE, TO NEW YORK, NEW YORK, WAS DENIED FOR THE REASON THAT GOVERNMENT TRANSPORTATION IN KIND WAS AVAILABLE AND SHOULD HAVE BEEN UTILIZED. IN IN YOUR REQUEST FOR REVIEW, YOU CONTEND THAT YOU WERE AUTHORIZED TO HAVE YOUR WIFE TRAVEL WITH YOU, THAT IT WAS THROUGH ERROR THAT AUTHORIZATION FOR HER TRAVEL WAS NOT INCLUDED IN YOUR ORIGINAL TRAVEL ORDER, THAT YOU DID EVERYTHING POSSIBLE TO STRAIGHTEN THINGS OUT IN THE SHORT TIME REMAINING OF YOUR TOUR OF DUTY AND THAT GOVERNMENT TRANSPORTATION WAS NOT AVAILABLE FOR YOUR WIFE FROM PARIS TO NEW YORK AT THE TIME OF YOUR TRAVEL.

THE RIGHT TO DEPENDENT'S 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 CT.CL. 507. THE TRANSPORTATION OF DEPENDENTS OF MEMBERS OF THE UNIFORMED SERVICES IS GOVERNED BY THE JOINT TRAVEL REGULATIONS ISSUED PURSUANT TO SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 253 (C). PARAGRAPH 7002-1B OF THE REGULATIONS REQUIRES THAT FOR TRANSOCEANIC TRAVEL OF DEPENDENTS TO, FROM OR BETWEEN AREAS OUTSIDE THE UNITED STATES, GOVERNMENT AIRCRAFT OR VESSELS BE UTILIZED, IF AVAILABLE.

ARMY REGULATIONS 55-46, ISSUED TO IMPLEMENT THE JOINT TRAVEL REGULATIONS PRESCRIBE THE POLICIES AND ESTABLISH THE PROCEDURES FOR THE MOVEMENT OF DEPENDENTS OF ARMY PERSONNEL. PARAGRAPH 52A (1) (B), CHANGE 5, DATED MAY 1, 1959, OF THESE REGULATIONS, IN EFFECT AT THE TIME OF YOUR TRAVEL, PROVIDES THAT OVERSEA COMMANDERS MAY AUTHORIZE TRANSPORTATION AT GOVERNMENT EXPENSE OF DEPENDENTS ACQUIRED BY MARRIAGE IN THE OVERSEA AREA PRIOR TO THE EFFECTIVE DATE OF THE PERMANENT CHANGE OF STATION ORDERS, IF OTHERWISE PROPER UNDER THE JOINT TRAVEL REGULATIONS. APPENDIX I OF THE SAME ARMY REGULATIONS, AS AMENDED BY CHANGE 6, DATED JULY 15, 1959, PROVIDES THAT AUTOMATIC CONCURRENT TRAVEL OF DEPENDENTS IS AUTHORIZED FOR GENERAL OFFICERS, COLONELS AND EQUIVALENT GRADE CIVILIAN EMPLOYEES, OF THE UNITED STATES ARMY IN THE EUROPEAN AREA (GERMANY, FRANCE AND ITALY). FURTHER SPECIFICALLY PROVIDES THAT FOR ALL OTHER ELIGIBLE PERSONNEL CONCURRENT TRAVEL OF DEPENDENTS IS AUTHORIZED ONLY AFTER AN ADVANCE APPLICATION HAS BEEN SUBMITTED TO AND BEEN APPROVED BY THE OVERSEA COMMANDER CONCERNED.

THERE IS NO EVIDENCE THAT CONCURRENT TRAVEL OF YOUR DEPENDENT WAS APPLIED FOR AND APPROVED IN ADVANCE OF HER TRAVEL AND IT MAY NOT BE INFERRED FROM THE AMENDMENT OF YOUR ORDERS BY LETTER ORDERS 3-104, ISSUED NEARLY FOUR MONTHS AFTER THE TRAVEL WAS PERFORMED THAT HAD YOU MADE PROPER APPLICATION IN ADVANCE OF YOUR TRAVEL FOR THE TRANSPORTATION OF YOUR DEPENDENT, HER TRAVEL WOULD NOT HAVE BEEN AUTHORIZED WITHOUT UNREASONABLE DELAY BY GOVERNMENT TRANSPORTATION FACILITIES RATHER THAN CONCURRENTLY. WHILE YOU CONTEND THAT GOVERNMENT TRANSPORTATION WAS NOT AVAILABLE OUT OF PARIS WITHIN THE FEW DAYS YOU SPENT THERE, THE JOINT TRAVEL REGULATIONS RECOGNIZE AS UNREASONABLE ONLY DELAYS IN EXCESS OF 30 DAYS. THE CHIEF OF TRANSPORTATION, DEPARTMENT OF THE ARMY, REPORTED THAT GOVERNMENT TRANSPORTATION WAS AVAILABLE FROM EUROPE TO THE UNITED STATES DURING THE PERIOD INVOLVED AND HAD YOUR WIFE DELAYED HER DEPARTURE SHE WOULD HAVE BEEN FURNISHED GOVERNMENT TRANSPORTATION IN DUE COURSE. THERE IS NO PROVISION IN THE REGULATIONS PROVIDING FOR REIMBURSEMENT TO A MEMBER WHOSE DEPENDENT DOES NOT AWAIT GOVERNMENT TRANSPORTATION BUT VOLUNTARILY TRAVELS BY COMMERCIAL MEANS AT PERSONNEL EXPENSE. ACCORDINGLY, SETTLEMENT DATED SEPTEMBER 7, 1960, MUST BE SUSTAINED.