B-148432, MAY 8, 1962

B-148432: May 8, 1962

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WILKINSON: REFERENCE IS MADE TO YOUR LETTER OF JANUARY 29. YOU WERE TRANSFERRED FROM YOUR ASSIGNMENT OVERSEAS AND DIRECTED TO PROCEED FROM HANAU. YOU WERE RELIEVED FROM ACTIVE DUTY AND TRANSFERRED TO THE UNITED STATES ARMY RESERVE EFFECTIVE MAY 27. WAS TRANSMITTED TO THIS OFFICE FOR CONSIDERATION. TOGETHER WITH A REPORT THAT YOUR DEPENDENT TRAVELED BY COMMERCIAL AIR AT YOUR EXPENSE AND THAT GOVERNMENT SURFACE AND AIR TRANSPORTATION FROM EUROPE TO THE UNITED STATES WERE AVAILABLE DURING THAT PERIOD. IT WAS STATED THAT REGULARLY SCHEDULED FLIGHTS BY MATS FROM FRANKFURT. WERE AVAILABLE TO YOUR DEPENDENT DURING THE PERIOD APRIL 15 TO JUNE 15. YOUR CLAIM WAS ALLOWED ON A MILEAGE BASIS FOR THE LAND DISTANCE FROM YOUR LAST DUTY STATION TO FRANKFURT.

B-148432, MAY 8, 1962

TO MR. BOBBY G. WILKINSON:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 29, 1962, IN EFFECT REQUESTING RECONSIDERATION OF THAT PART OF OUR SETTLEMENT OF DECEMBER 18, 1961, ON YOUR CLAIM FOR REIMBURSEMENT OF TRANSPORTATION EXPENSES OF YOUR DEPENDENT WIFE FROM LANGENDIEBACH, GERMANY, TO MILAN, TENNESSEE, WHICH LIMITED REIMBURSEMENT FOR THE COMMERCIAL AIR TRANSOCEANIC TRAVEL INVOLVED TO THE COST TO THE GOVERNMENT FOR SUCH TRAVEL ON MILITARY AIR TRANSPORT SERVICE FACILITIES.

THE RECORD SHOWS THAT BY LETTER ORDER 4-58, HEADQUARTERS, 3D ARMORED DIVISION (SPEARHEAD), UNITED STATES FORCES, APO 39, DATED APRIL 15, 1961, YOU WERE TRANSFERRED FROM YOUR ASSIGNMENT OVERSEAS AND DIRECTED TO PROCEED FROM HANAU, GERMANY, TO BREMERHAVEN, GERMANY, PORT OF EMBARKATION, FOR TRANSFER BY GOVERNMENT SURFACE VESSEL TO FORT HAMILTON, NEW YORK, FOR ULTIMATE SEPARATION IN THE UNITED STATES. THE ORDERS DIRECTED THAT YOUR PROCEED UNACCOMPANIED BY YOUR DEPENDENT. BY PARAGRAPH 19, SPECIAL ORDERS NO. 143, HEADQUARTERS UNITED STATES ARMY PERSONNEL CENTER, FT. HAMILTON, NEW YORK, DATED MAY 23, 1961, YOU WERE RELIEVED FROM ACTIVE DUTY AND TRANSFERRED TO THE UNITED STATES ARMY RESERVE EFFECTIVE MAY 27, 1961. THE ORDERS SHOWED YOUR HOME ADDRESS AS CHICAGO, ILLINOIS, AND YOUR MAILING ADDRESS FOLLOWING SEPARATION AS MILAN, TENNESSEE.

YOUR CLAIM FOR REIMBURSEMENT OF THE EXPENSES INCURRED IN THE TRANSPORTATION OF YOUR DEPENDENT WIFE DURING THE PERIOD JUNE 8 TO 13, 1961, FROM LANGENDIEBACH, GERMANY, TO MILAN, TENNESSEE, INCIDENT TO THE ORDERS OF APRIL 15 AND MAY 23, 1961, WAS TRANSMITTED TO THIS OFFICE FOR CONSIDERATION, TOGETHER WITH A REPORT THAT YOUR DEPENDENT TRAVELED BY COMMERCIAL AIR AT YOUR EXPENSE AND THAT GOVERNMENT SURFACE AND AIR TRANSPORTATION FROM EUROPE TO THE UNITED STATES WERE AVAILABLE DURING THAT PERIOD. IN A REPORT FROM THE CHIEF OF TRANSPORTATION, DEPARTMENT OF THE ARMY, DATED SEPTEMBER 13, 1961, CONCERNING YOUR CLAIM, IT WAS STATED THAT REGULARLY SCHEDULED FLIGHTS BY MATS FROM FRANKFURT, GERMANY, TO MCGUIRE AIR FORCE BASE, NEW JERSEY, AND SAILINGS BY MSTS FROM BREMERHAVEN, GERMANY, TO NEW YORK, WERE AVAILABLE TO YOUR DEPENDENT DURING THE PERIOD APRIL 15 TO JUNE 15, 1961. YOUR CLAIM WAS ALLOWED ON A MILEAGE BASIS FOR THE LAND DISTANCE FROM YOUR LAST DUTY STATION TO FRANKFURT, GERMANY, AND FROM MCGUIRE AIR FORCE BASE, NEW JERSEY, TO CHICAGO, ILLINOIS, HOME OF RECORD. WITH RESPECT TO THE TRANSOCEANIC PORTION OF THE TRAVEL, SINCE GOVERNMENT TRANSPORTATION WAS REPORTED TO HAVE BEEN AVAILABLE, REIMBURSEMENT FOR THE COMMERCIAL AIR TRANSPORTATION WAS LIMITED TO THE COST WHICH THE DEPARTMENT OF THE ARMY WOULD HAVE BEEN REQUIRED TO PAY HAD THE TRAVEL BEEN BY GOVERNMENT TRANSPORTATION.

THE TRANSPORTATION OF DEPENDENTS OF MEMBERS OF THE UNIFORMED SERVICES IS GOVERNED BY THE JOINT TRAVEL REGULATIONS PROMULGATED PURSUANT TO SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 253 (C). PARAGRAPH 7002-1B OF THESE REGULATIONS IN EFFECT DURING THE PERIOD OF YOUR CLAIM PROVIDED, WITH CERTAIN EXCEPTIONS NOT HERE MATERIAL, THAT FOR TRANSOCEANIC TRAVEL OF DEPENDENTS FROM AREAS OUTSIDE THE UNITED STATES GOVERNMENT AIRCRAFT OR VESSELS WILL BE UTILIZED IF AVAILABLE. CONSEQUENTLY, NO AUTHORITY IS CONSIDERED TO EXIST TO REPAY THE ACTUAL COSTS OF COMMERCIAL TRANSPORTATION USED IN CASES WHERE GOVERNMENT TRANSPORTATION IS SHOWN TO HAVE BEEN AVAILABLE FOR THE DEPENDENT'S TRAVEL. HOWEVER, WE HAVE RECOGNIZED THAT IN CASES WHERE DEPENDENTS ARE AUTHORIZED AS DISTINGUISHED FROM SPECIFICALLY DIRECTED TO TRAVEL BY GOVERNMENT CONVEYANCE WHICH IS AVAILABLE, BUT USE COMMERCIAL TRANSPORTATION FOR TRANSOCEANIC TRAVEL AT PERSONAL EXPENSE, THE MEMBER MAY BE REIMBURSED FOR THE COST OF SUCH TRAVEL ON THE BASIS OF THE STANDARD PRICES WHICH THE SPONSORING SERVICE WOULD HAVE BEEN REQUIRED TO PAY TO THE MILITARY AIR TRANSPORT SERVICE OR THE MILITARY SEA TRANSPORTATION SERVICE HAD THE TRAVEL BEEN BY GOVERNMENT TRANSPORTATION.

YOU STATE THAT YOU PERSONALLY INQUIRED ABOUT THE AVAILABILITY OF GOVERNMENT TRANSPORTATION FOR YOUR DEPENDENT WIFE BUT WERE TOLD IT WAS NOT AVAILABLE. WE MUST, HOWEVER, RELY ON THE OFFICIAL REPORT FROM THE ADMINISTRATIVE OFFICE WHICH STATED THAT DURING THE PERIOD INVOLVED BOTH GOVERNMENT SURFACE AND AIR TRANSPORTATION WERE AVAILABLE FROM GERMANY TO NEW YORK, NEW YORK, OR MCGUIRE AIR FORCE BASE, NEW JERSEY. THE FACT THAT YOU MAY HAVE BEEN ERRONEOUSLY ADVISED IN THAT REGARD WOULD NOT AFFECT YOUR RIGHT IN THE MATTER AS IT IS A WELL-SETTLED PRINCIPLE OF LAW THAT THE GOVERNMENT IS NOT BOUND BY THE NEGLIGENT OR ERRONEOUS ACTS OF ITS OFFICERS OR AGENTS, IN THE ABSENCE OF A STATUTE SO PROVIDING. ROBERTSON V. SICHEL, 127 U.S. 507, 515.

INASMUCH AS THE VOUCHER EVIDENCING PAYMENT TO YOU OF TRANSPORTATION ALLOWANCE FOR THE TRAVEL OF YOUR DEPENDENT WIFE FROM LANGENDIEBACH, GERMANY, TO MILAN, TENNESSEE, SHOWS A CREDIT ALLOWANCE OF $98 FOR THE TRANSOCEANIC TRAVEL, REPRESENTING THE COST TO THE DEPARTMENT OF THE ARMY HAD THE TRAVEL BEEN BY GOVERNMENT AIR TO MCGUIRE AIR FORCE BASE, NEW JERSEY, NO FURTHER REIMBURSEMENT IS DUE YOU. ACCORDINGLY, THE SETTLEMENT OF DECEMBER 18, 1961, WAS CORRECT AND IS SUSTAINED.