B-147510, JAN. 3, 1962

B-147510, JAN. 3, 1962

TO LAWRENCE J. CLARKE, U.S. ARMY, RETIRED:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 18, 1961, REQUESTING RECONSIDERATION OF SETTLEMENT DATED OCTOBER 12, 1961, WHICH DISALLOWED YOUR CLAIM FOR ALLOWANCES FOR TRAVEL OF YOUR DEPENDENTS FROM ABILENE, TEXAS, TO RED OAK, IOWA, ON DECEMBER 22 AND 23, 1960, PRIOR TO YOUR BEING PLACED ON THE TEMPORARY DISABILITY RETIRED LIST AS A MEMBER OF THE UNITED STATES ARMY.

YOUR CLAIM WAS DISALLOWED FOR THE REASON THAT PARAGRAPH 7000-9 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT UPON A PERMANENT CHANGE OF STATION TRANSPORTATION OF A MEMBER'S DEPENDENTS AT GOVERNMENT EXPENSE IS NOT AUTHORIZED WHEN THE DEPENDENTS DEPART FROM THE 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 TO THE ISSUANCE OF THE CHANGE OF STATION ORDERS THAT SUCH ORDERS WOULD BE ISSUED. IN CLARIFICATION OF THE BASIS OF YOUR CLAIM YOU STATE THAT WHEN THE TRAVEL WAS PERFORMED YOU HAD NO INTENTION FOR YOUR DEPENDENTS TO REMAIN AT RED OAK, SINCE THE PURPOSE OF THE TRIP FROM YOUR HOME IN ABILENE TO RED OAK WAS TO USE SIX DAYS AUTHORIZED LEAVE, AND PRESUMABLY HAD IT NOT BEEN FOR YOUR ILLNESS YOU AND YOUR FAMILY WOULD HAVE RETURNED TO ABILENE AT THE EXPIRATION OF YOUR LEAVE. YOU ALSO CITE VARIOUS REGULATIONS WHICH YOU BELIEVE AUTHORIZE THE ABOVE TRANSPORTATION OF YOUR DEPENDENTS AT GOVERNMENT EXPENSE.

PURSUANT TO HOSPITAL TRANSFER ORDER NO. 51, FITZSIMONS GENERAL HOSPITAL, DENVER, COLORADO, DATED MARCH 14, 1961, YOU WERE RELIEVED FROM YOUR ATTACHMENT WITH THE 5TH MISSILE BATTALION, 517TH ARTILLERY, ABILENE, TEXAS, AND ASSIGNED TO THE MEDICAL HOLDING DETACHMENT AT THAT HOSPITAL. ON APRIL 5, 1961, A CERTIFICATE OF PROLONGED HOSPITALIZATION WAS ISSUED FOR THE COMMANDING OFFICER OF THE FITZSIMONS GENERAL HOSPITAL AUTHORIZING THE MOVEMENT OF YOUR DEPENDENTS AND HOUSEHOLD GOODS AS PRESCRIBED IN PARAGRAPHS 7004 AND 8254 OF THE JOINT TRAVEL REGULATIONS. PARAGRAPH 7004- 1, JOINT TRAVEL REGULATIONS, PROVIDES THAT UPON ISSUANCE OF A CERTIFICATE OF THE ABOVE TYPE A MEMBER WHO IS TRANSFERRED WITHIN THE UNITED STATES FROM A DUTY STATION TO A HOSPITAL MAY TRANSPORT HIS DEPENDENTS, AS FOR A PERMANENT CHANGE OF STATION, FROM THE LAST PERMANENT DUTY STATION TO THE CITY OR TOWN IN WHICH THE HOSPITAL IS LOCATED. THE FILE INDICATES THAT YOUR DEPENDENTS WERE NOT MOVED TO THE LOCATION OF THE FITZSIMONS GENERAL HOSPITAL PURSUANT TO THIS AUTHORIZATION BUT REMAINED AT RED OAK, IOWA, WHERE THEY WERE VISITING AT THE BEGINNING OF YOUR ILLNESS.

BY SPECIAL ORDERS NO. 102, FITZSIMONS GENERAL HOSPITAL, DATED MAY 17, 1961, YOU WERE AUTHORIZED TO PROCEED TO YOUR HOME OF RECORD AT RED OAK, IOWA, IN ANTICIPATION OF SEPARATION OR RETIREMENT BY REASON OF PHYSICAL DISABILITY, THE PERIOD SPENT AT HOME BEING CHARGED AS LEAVE TO THE MAXIMUM EXTENT POSSIBLE. DEPARTMENT OF THE ARMY SPECIAL ORDERS NO. 144, DATED JUNE 12, 1961, RELEASED YOU FROM YOUR ASSIGNMENT AND DUTY AT FITZSIMONS GENERAL HOSPITAL AND FOR THE ABOVE REASON PLACED YOU ON THE TEMPORARY DISABILITY RETIRED LIST EFFECTIVE JUNE 16, 1961. ON YOUR CERTIFICATE FOR TRAVEL TO HOME OF SELECTION FOR RETIREMENT,RED OAK IS SHOWN AS THE PLACE OF YOUR HOME OF SELECTION AND IS ALSO INDICATED AS BEING THE LOCATION OF YOUR DEPENDENTS SINCE THEIR ARRIVAL THERE ON DECEMBER 23, 1960. PARAGRAPH 7012-1A, JOINT TRAVEL REGULATIONS, WHICH PROVIDES FOR THE TRAVEL OF A MEMBER'S DEPENDENTS TO HIS HOME OF SELECTION "WHEN" THE MEMBER IS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST, REQUIRES THAT "THE TRAVEL TO A SELECTED HOME MUST BE PERFORMED WITHIN 1 YEAR AFTER THE MEMBER'S TERMINATION OF ACTIVE DUTY.' IT IS ALSO PROVIDED IN PARAGRAPHS 7000 AND 3003-1 OF THE REGULATIONS THAT MEMBERS OF THE UNIFORMED SERVICES ARE ENTITLED TO TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE "UPON" A PERMANENT CHANGE OF STATION, WHICH INCLUDES THE CHANGE FROM LAST DUTY STATION TO HOME WHEN PLACED ON THE TEMPORARY DISABILITY RETIRED LIST.

THE PROVISIONS OF THE JOINT TRAVEL REGULATIONS CITED HEREIN WERE ISSUED PURSUANT TO THE AUTHORITY CONTAINED IN SECTION 303 OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 253, WHICH PROVIDES IN PARAGRAPH (C) THAT UNDER SUCH CONDITIONS AND TO AND FROM SUCH LOCATIONS AS MAY BE PRESCRIBED BY THE SECRETARIES CONCERNED, MEMBERS OF THE UNIFORMED SERVICES "WHEN ORDERED" TO MAKE A CHANGE OF PERMANENT STATION SHALL BE ENTITLED TO TRANSPORTATION FOR DEPENDENTS. THUS, UNDER CONDITIONS SUCH AS ARE HERE CONCERNED, THE LAW AND REGULATIONS CLEARLY CONTEMPLATE PAYMENT OF THE PRESCRIBED ALLOWANCES FOR THE TRAVEL OF DEPENDENTS TO THE MEMBER'S HOME OF SELECTION FOR RETIREMENT ONLY WHEN THE TRAVEL IS PERFORMED IN CONNECTION WITH THE MEMBER'S ORDERED RELEASE FROM ACTIVE DUTY AND PLACEMENT ON THE TEMPORARY DISABILITY RETIRED LIST. THIS IS CONSISTENT WITH THE ESTABLISHED RULE THAT MILEAGE OR OTHER TRAVEL ALLOWANCES DO NOT ACCRUE INCIDENT TO TRAVEL PERFORMED IN ANTICIPATION OF ORDERS SUBSEQUENTLY ISSUED, AND IT UNIFORMLY HAS BEEN HELD IN CASES CONCERNING MEMBERS OF THE ARMED FORCES THAT PAYMENT OF MILEAGE IS NOT AUTHORIZED UPON RETIREMENT WHERE A MEMBER IS AT THE PLACE SELECTED BY HIM AS HIS HOME WHEN RETIRED OR WHEN ORDERED TO AWAIT RETIREMENT, NO TRAVEL BEING REQUIRED TO COMPLY WITH THE RETIREMENT ORDERS UNDER SUCH CIRCUMSTANCES. 2 COMP. GEN. 625, 19 ID. 422, AND SEE ELMORE V. UNITED STATES, 61 CT.CL. 173.

ACCORDINGLY, SINCE YOUR DEPENDENTS' TRAVEL TO RED OAK IN DECEMBER 1960 WAS FOR PERSONAL REASONS AND NOT RELATED TO A CHANGE OF YOUR PERMANENT STATION OR YOUR SUBSEQUENT RELEASE FROM ACTIVE DUTY IN JUNE 1961, THE TRAVEL WAS NOT PERFORMED UNDER CIRCUMSTANCES FOR WHICH PROVISION IS MADE FOR TRAVEL AT GOVERNMENT EXPENSE. HENCE, THERE IS NO BASIS FOR THE ALLOWANCE OF YOUR CLAIM AND THE SETTLEMENT OF OCTOBER 12, 1961, IS SUSTAINED.

CONCERNING YOUR REQUEST FOR THE ADDRESS OF THE INDIVIDUAL TO WHOM YOUR CLAIM CAN BE APPEALED, 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 CLAIM FIRST ACCRUED. 28 U.S.C. 2501.