B-145595, MAY 12, 1961

B-145595: May 12, 1961

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MAREK: REFERENCE IS MADE TO YOUR LETTER OF MARCH 28. WHICH WAS DISALLOWED BY OUR SETTLEMENT DATED OCTOBER 17. YOUR CLAIM WAS DISALLOWED FOR THE REASON THAT YOUR DEPENDENTS PERFORMED THE TRAVEL PRIOR TO THE ISSUANCE OF YOUR DISCHARGE ORDERS OF JANUARY 21. IT WAS NOT SUPPORTED BY A CERTIFICATE OF THE COMMANDING OFFICER. " AND THAT LETTERS TO THE BATTERY COMMANDER REQUESTING A CERTIFICATE WERE OF NO AVAIL. WHEREIN IT IS STATED: "JANELLE G. MAREK WAS UNDER MY CARE FOR PREGNANCY FROM JUNE 13. THE ESTIMATED DATE OF DELIVERY WAS JANUARY 6. "I ADVISED HER THAT IF TRAVEL TO TEXAS WAS NECESSARY IT SHOULD BE DONE PRIOR TO OCTOBER 15. YOU NOW STATE THAT YOUR FORMER COMMANDING OFFICER WILL NOT FURNISH YOU WITH A CERTIFICATE AND YOU ASK WHAT ELSE YOU CAN DO TO RECEIVE THE REIMBURSEMENT TO WHICH YOU FEEL YOU ARE ENTITLED.

B-145595, MAY 12, 1961

TO SERGEANT ENGELBERT T. MAREK:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 28, 1961, FORWARDING ENCLOSURES FOR CONSIDERATION IN CONNECTION WITH YOUR CLAIM FOR REIMBURSEMENT FOR THE COST OF YOUR DEPENDENTS' TRAVEL FROM GROSSE POINT PARK, MICHIGAN, TO TAYLOR, TEXAS, SEPTEMBER 28 TO OCTOBER 1, 1959, WHICH WAS DISALLOWED BY OUR SETTLEMENT DATED OCTOBER 17, 1960. YOUR CLAIM WAS DISALLOWED FOR THE REASON THAT YOUR DEPENDENTS PERFORMED THE TRAVEL PRIOR TO THE ISSUANCE OF YOUR DISCHARGE ORDERS OF JANUARY 21, 1960, AND IT WAS NOT SUPPORTED BY A CERTIFICATE OF THE COMMANDING OFFICER, OR A DESIGNATED REPRESENTATIVE, THAT YOU HAD PREVIOUSLY BEEN ADVISED THE ORDERS WOULD BE ISSUED, AS REQUIRED BY THE JOINT TRAVEL REGULATIONS, PROMULGATED PURSUANT TO THE CAREER COMPENSATION ACT OF 1949.

IN YOUR CLAIM LETTER OF JUNE 1960, YOU STATED "AT THE TIME OF MY THREE YEAR ENLISTMENT I KNEW AND THE BATTERY COMMANDER KNEW I WOULD BE DISCHARGED JANUARY 22, 1960," AND THAT LETTERS TO THE BATTERY COMMANDER REQUESTING A CERTIFICATE WERE OF NO AVAIL. YOU FURTHER STATED THAT A CIVILIAN DOCTOR RECOMMENDED YOUR WIFE'S TRAVEL AND AT YOUR REQUEST SENT THE BATTERY COMMANDER A LETTER, WHICH YOU ENCLOSED, WHEREIN IT IS STATED:

"JANELLE G. MAREK WAS UNDER MY CARE FOR PREGNANCY FROM JUNE 13, 1959 TO SEPT. 30, 1959. THE ESTIMATED DATE OF DELIVERY WAS JANUARY 6, 1960.

"I ADVISED HER THAT IF TRAVEL TO TEXAS WAS NECESSARY IT SHOULD BE DONE PRIOR TO OCTOBER 15, 1959 OR SIX WEEKS AFTER THE DATE OF DELIVERY.'

YOU NOW STATE THAT YOUR FORMER COMMANDING OFFICER WILL NOT FURNISH YOU WITH A CERTIFICATE AND YOU ASK WHAT ELSE YOU CAN DO TO RECEIVE THE REIMBURSEMENT TO WHICH YOU FEEL YOU ARE ENTITLED.

TRAVEL ALLOWANCES FOR MEMBERS OF THE UNIFORMED SERVICES ARE PROVIDED BY SECTION 303 OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, AND THE JOINT TRAVEL REGULATIONS. CHAPTER 7 OF THE JOINT TRAVEL REGULATIONS, PERTAINING TO TRAVEL OF DEPENDENTS, INCLUDED THE FOLLOWING PARAGRAPH AT THE DATE TRAVEL WAS PERFORMED BY YOUR FAMILY:

"7000 ENTITLEMENT

"MEMBERS OF THE UNIFORMED SERVICES ARE ENTITLED TO TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE UPON A PERMANENT CHANGE OF STATION (SEE PAR. 3003-1) FOR TRAVEL PERFORMED FROM THE OLD STATION TO THE NEW PERMANENT STATION OR BETWEEN POINTS OTHERWISE AUTHORIZED IN THESE REGULATIONS, EXCEPT:

"9. WHERE THE DEPENDENTS DEPARTED OLD PERMANENT STATION PRIOR TO THE ISSUANCE OF ORDERS, AND THE VOUCHER IS NOT SUPPORTED BY A CERTIFICATE OF THE COMMANDING OFFICER, OR HIS DESIGNATED REPRESENTATIVE, OF THE HEADQUARTERS ISSUING THE ORDERS THAT THE MEMBER WAS ADVISED PRIOR TO THE ISSUANCE OF CHANGE-OF-STATION ORDERS THAT SUCH ORDERS WOULD BE ISSUED; * *

THE FACT THAT YOUR ORDERS TO EXTENDED DUTY, BY DESIGNATING THE TERM OF ENLISTMENT, MAY HAVE INDICATED THE APPROXIMATE TIME OF SEPARATION DOES NOT MAKE THEM ORDERS FOR RELEASE FROM ACTIVE DUTY AS WELL AS ORDERS TO ACTIVE DUTY. THE INDICATED TIME OF RELEASE IS MERELY TENTATIVE AND FURTHER ORDERS, SUCH AS THE ORDERS OF JANUARY 21, 1960, ARE NECESSARY TO EFFECT RELEASE FROM ACTIVE DUTY. FURTHER, THE QUOTED PROVISION OF THE REGULATIONS CONCERNING DEPARTURE OF DEPENDENTS FROM THE OLD STATION PRIOR TO ISSUANCE OF ORDERS CONTEMPLATES DEPARTURE DURING THE COMPARATIVELY SHORT PERIOD OF TIME WHICH MAY ELAPSE BETWEEN THE TIME OF A DETERMINATION TO ORDER A MEMBER TO MAKE A CHANGE OF STATION, INCLUDING DISCHARGE OR RELEASE FROM ACTIVE DUTY, AND THE DATE ON WHICH ORDERS DIRECTING SUCH CHANGE ARE ACTUALLY ISSUED. MERE GENERAL INFORMATION AS TO THE TIME OF EVENTUAL RELEASE FROM ACTIVE DUTY, WHICH NOT INFREQUENTLY IS CONTAINED IN THE ORDER TO ACTIVE DUTY ITSELF OR, AS IN YOUR CASE, MAY BE DETERMINED FROM THE CONTEMPLATED DURATION OF A TERM OF DUTY, IS INSUFFICIENT TO MEET THE REQUIREMENTS OF THE REGULATIONS. SEE OUR DECISION DATED NOVEMBER 22, 1954, 34 COMP. GEN. 241.

IN YOUR CASE IT SEEMS APPARENT THAT THE PRIMARY REASON FOR YOUR DEPENDENTS' TRAVEL PRIOR TO YOUR SEPARATION ORDERS WAS FOR PERSONAL REASONS RATHER THAN BECAUSE OF YOUR PROSPECTIVE DISCHARGE, AND HAD IT NOT BEEN FOR YOUR WIFE'S PHYSICAL CONDITION YOUR DEPENDENTS WOULD HAVE REMAINED AT GROSSE POINT PARK UNTIL YOUR RELEASE. IN SUCH CIRCUMSTANCES AND IN VIEW OF THE LENGTH OF TIME WHICH ELAPSED BETWEEN THE DATE ON WHICH YOUR DEPENDENTS TRAVELED AND THE ISSUANCE OF YOUR SEPARATION ORDERS, IT IS DOUBTFUL THAT A CERTIFICATE FROM YOUR FORMER COMMANDING OFFICER TO THE EFFECT THAT HE HAD A DISCUSSION WITH YOU, PRIOR TO THE TRAVEL, ABOUT YOUR CONTEMPLATED RELEASE FROM ACTIVE DUTY COULD PROPERLY BE ACCEPTED AS BRINGING YOUR CASE WITHIN THE EXCEPTION IN PARAGRAPH 7000-9 OF THE JOINT TRAVEL REGULATIONS. ACCORDINGLY, THE SETTLEMENT ACTION OF OCTOBER 17, 1960, IS SUSTAINED.

CONCERNING YOUR REQUEST FOR INFORMATION AS TO HOW TO PROCEED FURTHER IN THIS MATTER, YOU ARE ADVISED THAT UNDER PERTINENT STATUTORY PROVISIONS THE ACTION OF OUR OFFICE ON CLAIMS AGAINST THE UNITED STATES IS FINAL AND CONCLUSIVE ON ALL EXECUTIVE DEPARTMENTS OF THE GOVERNMENT. THEREFORE, THERE IS NO FURTHER ACTION THAT MAY BE TAKEN ADMINISTRATIVELY ON YOUR CLAIM. THE COURT OF CLAIMS OF THE UNITED STATES, HOWEVER, HAS INDEPENDENT JURISDICTION TO CONSIDER AND DETERMINE CERTAIN CLAIMS AGAINST THE UNITED STATES IF FILED THERE WITHIN SIX YEARS AFTER THE CLAIMS FIRST ACCRUED. U.S.C. 2501.

COPIES OF THE ENCLOSURES FORWARDED WITH YOUR LETTER ARE TRANSMITTED HEREWITH AS REQUESTED.