B-148585, FEB. 28, 1964

B-148585, FEB. 28, 1964

TO MRS. NANCY M. DOHERTY:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 15, 1964, IN WHICH YOU REQUEST RECONSIDERATION OF OUR SETTLEMENT DATED MARCH 13, 1962, WHICH DISALLOWED YOUR CLAIM FOR MILEAGE, TRAVEL ALLOWANCE FOR DEPENDENTS, AND DISLOCATION ALLOWANCE BELIEVED DUE YOUR LATE HUSBAND, JOHN P. DOHERTY, CAPTAIN, USMC, AT DATE OF DEATH, JULY 14, 1961. YOU ENCLOSED A NEWS CLIPPING WHICH REFERS TO A DECISION BY OUR OFFICE THAT A NAVY OFFICER WHOSE WIFE HAD DIED IN AN AUTOMOBILE ACCIDENT EN ROUTE TO HIS NEW DUTY STATION WAS ENTITLED TO TRAVEL ALLOWANCE FOR HER TRAVEL, AND YOU REQUEST THAT WE REVIEW YOUR CLAIM ON THE BASIS OF THAT CASE. YOU ALSO STATE THAT YOU REQUEST FOR ASSISTANCE UNDER THE WAR ORPHANS' EDUCATIONAL ASSISTANCE ACT WAS DENIED FOR THE REASON THAT YOUR HUSBAND'S DEATH WAS NOT CONSIDERED TO HAVE BEEN SERVICE CONNECTED, AND REQUEST OUR HELD AND ADVICE IN THE MATTER.

IN OUR SETTLEMENT WE STATED THAT THE EFFECTIVE DATE OF THE ORDERS OF APRIL 17, 1961, WHICH DIRECTED A PERMANENT CHANGE OF STATION FOR YOUR HUSBAND FROM CAMP LEJEUNE, NORTH CAROLINA, TO A RESTRICTED AREA OVERSEAS SUBSEQUENT TO HIS REPORTING FOR TEMPORARY DUTY AT TREASURE ISLAND, SAN FRANCISCO, CALIFORNIA, WAS JULY 29, 1961, AND SINCE THE TRAVEL WAS PERFORMED IN JUNE AND YOUR HUSBAND DIED ON JULY 14, 1961, WITHOUT HAVING COMPLETED THE PERMANENT CHANGE OF STATION THERE WAS NO AUTHORITY UNDER APPLICABLE REGULATIONS FOR REIMBURSEMENT FOR HIS TRAVEL AND THAT OF HIS DEPENDENTS TO SANTA ANA, CALIFORNIA, NOR FOR THE PAYMENT OF DISLOCATION ALLOWANCE.

LATER, IN RESPONSE TO AN INQUIRY FROM CONGRESSMAN JOHN W. MCCORMACK CONCERNING THE MATTER, WE ADVISED HIM THAT NO OFFICIAL TRAVEL OF A MEMBER OR HIS DEPENDENTS IS REQUIRED UNDER CHANGE OF STATION ORDERS UNTIL SUCH TIME AS THE MEMBER IS REQUIRED TO DEPART THE OLD STATION BY ORDINARY MEANS OF TRANSPORTATION (RAIL UNLESS OTHERWISE SPECIFIED) TO REACH HIS NEW STATION ON THE DATE REQUIRED BY HIS TRAVEL ORDERS, AND WHEN A MEMBER IS GRANTED LEAVE OR DELAY IN THE PERFORMANCE OF TRAVEL NO OFFICIAL TRAVEL IS REQUIRED UNTIL THE EXPIRATION OF SUCH LEAVE OR DELAY. WE STATED FURTHER THAT SINCE YOUR HUSBAND WOULD NOT HAVE HAD TO LEAVE HIS STATION UNTIL AFTER JULY 14, 1961, THE DATE OF HIS DEATH, IN ORDER TO REACH SAN FRANCISCO BY AUGUST 2, 1961, THERE WAS NO BASIS UPON WHICH WE MIGHT ALLOW YOUR CLAIM FOR TRAVEL ALLOWANCE FOR YOUR HUSBAND AND MONETARY ALLOWANCE IN LIEU OF TRANSPORTATION FOR HIS DEPENDENTS. ALSO, SINCE YOUR HUSBAND'S ORDERS NEVER BECAME EFFECTIVE, PAYMENT OF A DISLOCATION ALLOWANCE WAS NOT AUTHORIZED. PRESUMABLY YOU HAVE BEEN INFORMED OF THAT REPORT, SINCE YOU REQUEST THAT WE REVIEW YOUR CASE AGAIN.

IN THE CASE REFERRED TO IN THE NEWS CLIPPING YOU ENCLOSED, THE OFFICER'S WIFE DIED AFTER THE EFFECTIVE DATE OF HIS PERMANENT CHANGE OF STATION ORDERS, AND SINCE HE HAD A DEPENDENT WIFE ON THE EFFECTIVE DATE OF HIS ORDERS, AND IT WAS ESTABLISHED THAT WHEN TRAVEL WAS COMMENCED HIS WIFE HAD INTENDED TO ESTABLISH A RESIDENCE AT HIS NEW DUTY STATION, THE MEMBER WAS AUTHORIZED TRANSPORTATION ALLOWANCE FOR THE TRAVEL OF HIS LATE WIFE FROM HIS LAST DUTY STATION TO THE PLACE OF HER DEATH. THIS IS DISTINGUISHABLE FROM YOUR CASE IN WHICH THE RECORD SHOWS THAT THE TRAVEL TO SANTA ANA WAS PERFORMED PRIOR TO THE EFFECTIVE DATE OF YOUR HUSBAND'S ORDERS AND THAT HE DIED PRIOR TO SUCH EFFECTIVE DATE WITHOUT COMPLETING TRAVEL TO THE ASSIGNED STATION.

ON DECEMBER 23, 1963, HOWEVER, PUBLIC LAW 88-238 WAS APPROVED PROVIDING FOR THE PAYMENT OF TRAVEL AND TRANSPORTATION ALLOWANCES TO MEMBERS WHO PERFORMED TRAVEL BEFORE THE EFFECTIVE DATE OF ORDERS THAT WERE LATER CANCELED, REVOKED OR MODIFIED. THE ACT WAS EFFECTIVE FROM OCTOBER 1, 1949, AND ITS LEGISLATIVE HISTORY REASONABLY SUPPORTS THE VIEW THAT ITS BENEFITS ARE TO ACCRUE WHEN THE ORDERS ARE REVOKED BY DEATH. ACCORDINGLY INSTRUCTIONS ARE BEING ISSUED TO ALLOW YOUR CLAIM FOR THE TRAVEL PERFORMED IN THIS CASE. HOWEVER, WHILE YOUR HUSBAND'S DEATH MAY BE VIEWED AS REVOKING HIS ORDERS FOR THE PURPOSES OF PUBLIC LAW 88-238, IT LIKEWISE SEPARATED HIM FROM THE SERVICE AND THE PAYMENT OF A DISLOCATION ALLOWANCE IS EXPRESSLY PROHIBITED INCIDENT TO SEPARATION FROM THE SERVICE. ACCORDINGLY WE MAY NOT PROPERLY AUTHORIZE THE PAYMENT OF A DISLOCATION ALLOWANCE IN THIS CASE. SETTLEMENT ON THE BASIS INDICATED ABOVE WILL ISSUE IN THE NEAR FUTURE.

WITH RESPECT TO YOUR REQUEST FOR ADVICE RELATIVE TO THE DENIAL OF YOUR APPLICATION FOR ASSISTANCE UNDER THE WAR ORPHANS' EDUCATIONAL ASSISTANCE ACT, 38 U.S.C. 1701 ET SEQ. (1958 ED.), WE REGRET THAT WE ARE UNABLE TO BE OF ANY ASSISTANCE IN THE MATTER, SINCE THE DETERMINATION OF WHETHER OR NOT A DISABILITY IS SERVICE CONNECTED UNDER THAT ACT IS UNDER THE JURISDICTION OF THE ADMINISTRATOR OF VETERANS AFFAIRS. THEREFORE ANY FURTHER INQUIRY CONCERNING THAT MATTER SHOULD BE ADDRESSED TO THE VETERANS ADMINISTRATION.