B-149197, JUL. 30, 1962

B-149197, JUL. 30, 1962

TO SFC CLYDE E. MCGARR:

REFERENCE IS MADE TO A LETTER DATED JUNE 6, 1962, WRITTEN IN YOUR BEHALF BY YOUR WIFE, REQUESTING RECONSIDERATION OF YOUR CLAIM FOR TRANSPORTATION ALLOWANCE FOR YOUR DEPENDENTS' TRAVEL FROM MARINA, CALIFORNIA, TO MOTTA, ITALY, AND DISLOCATION ALLOWANCE INCIDENT TO SUCH TRAVEL, WHICH WAS DISALLOWED BY SETTLEMENT DATED MARCH 23, 1962.

INCIDENT TO ORDERS DATED APRIL 28, 1961, DIRECTING YOUR TRANSFER FROM FORT RILEY, KANSAS, TO AN OVERSEAS STATION IN TURKEY, WHICH ORDERS STATED THAT CONCURRENT TRAVEL OF YOUR DEPENDENTS WAS NOT AUTHORIZED, YOUR DEPENDENTS TRAVELED FROM YOUR OLD PERMANENT STATION TO MARINA, CALIFORNIA, THE PLACE DESIGNATED BY YOU AS THEIR RESIDENCE WHILE YOU WERE OVERSEAS AND YOU WERE PAID TRANSPORTATION AND DISLOCATION ALLOWANCES FOR THEIR TRAVEL. BY ORDERS DATED JULY 22, 1961, YOU WERE REASSIGNED TO DUTY AT VICENZA, ITALY. NO REFERENCE WAS MADE IN YOUR ORDERS AS TO AUTHORIZATION FOR TRANSPORTATION OF YOUR DEPENDENTS TO YOUR NEW STATION, BUT COPIES OF LETTERS FROM THE OFFICE OF THE TRANSPORTATION OFFICER, HEADQUARTERS 6TH UNITED STATES ARMY, PRESIDIO OF SAN FRANCISCO, CALIFORNIA, WRITTEN IN SEPTEMBER 1961, SHOW THAT YOUR WIFE WAS ADVISED THAT ALL DEPENDENT TRAVEL TO ITALY WAS THEN SUSPENDED INDEFINITELY. HOWEVER, ON NOVEMBER 22, 1961, YOU PRESENTED A VOUCHER FOR TRANSPORTATION AND DISLOCATION ALLOWANCES FOR THE TRAVEL OF YOUR DEPENDENTS FROM MARINA, CALIFORNIA, TO MOTTA, ITALY, OCTOBER 26 TO 29, 1961, WHICH VOUCHER WAS TRANSMITTED TO OUR OFFICE AS A CLAIM. YOUR CLAIM WAS DISALLOWED BY SETTLEMENT OF MARCH 23, 1961, FOR THE REASON THAT YOUR DEPENDENTS TRAVELED TO YOUR OVERSEAS STATION WITHOUT PROPER AUTHORIZATION AND UNDER APPLICABLE ARMY REGULATIONS, REIMBURSEMENT FOR YOUR DEPENDENTS' TRAVEL AND DISLOCATION ALLOWANCE FOR SUCH TRAVEL WAS NOT AUTHORIZED.

IN HER LETTER, YOUR WIFE ADMITS THAT DEPENDENTS' TRAVEL FROM MARINA, CALIFORNIA, TO MOTTA, ITALY, WAS NOT REIMBURSABLE BECAUSE SUCH TRAVEL AT GOVERNMENT EXPENSE WAS SUSPENDED. HOWEVER, SHE CONTENDS THAT YOU ARE ENTITLED TO PAYMENT FOR THE TRAVEL PERFORMED IN THE UNITED STATES FROM MARINA TO NEW YORK, NEW YORK, EN ROUTE TO YOUR OVERSEAS STATION, WHICH SHE STATES WAS NOT SUSPENDED. YOUR WIFE FURTHER REQUESTS INFORMATION AS TO WHETHER REIMBURSEMENT FOR THE OVERSEAS TRAVEL MAY BE MADE WHEN TRAVEL TO ITALY IS NO LONGER RESTRICTED.

THE STATUTORY AUTHORITY FOR TRANSPORTATION OF DEPENDENTS OF MEMBERS OF THE UNIFORMED SERVICES IS CONTAINED IN SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 253 (C), WHICH EXPRESSLY PROVIDES THAT THE TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE UPON A MEMBER'S ORDERED CHANGE OF PERMANENT STATION SHALL BE UNDER SUCH CONDITIONS AND LIMITATIONS, FOR SUCH RANKS, GRADES, OR RATINGS AND TO AND FROM SUCH LOCATIONS AS THE SECRETARIES CONCERNED MAY PRESCRIBE. THE JOINT TRAVEL REGULATIONS ISSUED TO IMPLEMENT THE STATUTORY AUTHORITY PROVIDE IN PARAGRAPH 7005 THAT WHEN A MEMBER IS TRANSFERRED OR ASSIGNED BY PERMANENT CHANGE OF STATION ORDERS TO A RESTRICTED AREA, HE WILL BE ENTITLED TO TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE FROM THE OLD DUTY STATION LOCATED IN THE UNITED STATES TO ANY OTHER PLACE IN THE UNITED STATES THE MEMBER MAY DESIGNATE. WHEN THE RESTRICTION AGAINST TRAVEL OF DEPENDENTS IS REMOVED, OR THE MEMBER IS TRANSFERRED OR ASSIGNED UNDER PERMANENT CHANGE OF STATION ORDERS, TO AN UNRESTRICTED AREA, TRANSPORTATION OF DEPENDENTS IS AUTHORIZED FROM THE LOCATION TO WHICH THE DEPENDENTS WERE MOVED OR FROM THE PLACE THEY ARE THEN LOCATED TO THE MEMBER'S CURRENT DUTY STATION, WHICHEVER IS LESSER.

IT LONG HAS BEEN RECOGNIZED THAT THE RIGHT TO TRANSPORTATION OF DEPENDENTS IS NOT AN ABSOLUTE ONE BUT MAY BE ADMINISTRATIVELY SUSPENDED OR DENIED FOR MILITARY REASONS AND THAT WHERE TRANSPORTATION IS ADMINISTRATIVELY REFUSED BY REASON OF MILITARY NECESSITY OR EXPEDIENCY, A MEMBER MAY NOT TRANSPORT HIS DEPENDENTS AT PERSONAL EXPENSE AND BE PAID THE COST UNDER A STATUTE AUTHORIZING REIMBURSEMENT FOR TRAVEL OF DEPENDENTS UPON A PERMANENT CHANGE OF STATION. CULP V. UNITED STATES, 76 CT.CL. 507; 35 COMP. GEN. 61. UNDER THE PROVISIONS OF PARAGRAPH 7005, JOINT TRAVEL REGULATIONS, UPON THE TRANSPORTATION OF YOUR DEPENDENTS AT GOVERNMENT EXPENSE TO MARINA, CALIFORNIA, DESIGNATED BY YOU AS THEIR RESIDENCE PENDING THE REMOVAL OF THE RESTRICTION AGAINST THEIR TRAVELING TO YOUR OVERSEAS STATION, OR YOUR TRANSFER TO AN UNRESTRICTED STATION, NO FURTHER TRANSPORTATION AT GOVERNMENT EXPENSE WAS AUTHORIZED FOR YOUR DEPENDENTS UNTIL SUCH RESTRICTION WAS REMOVED OR YOUR TRANSFER TO AN UNRESTRICTED PLACE WAS EFFECTED. ACCORDINGLY, SINCE THE SUSPENSION OF DEPENDENTS' TRAVEL TO YOUR NEW DUTY STATION AT VICENZA, ITALY, WAS STILL IN EFFECT DURING THEIR TRAVEL FROM MARINA, CALIFORNIA, TO MOTTA, ITALY, YOU ARE NOT ENTITLED TO REIMBURSEMENT FOR ANY PORTION OF SUCH TRAVEL, INCLUDING ANY TRAVEL PERFORMED IN THE UNITED STATES. ALSO, PURSUANT TO THE PROVISIONS OF PARAGRAPH 9002-2, JOINT TRAVEL REGULATIONS, SINCE YOUR DEPENDENTS WERE NOT AUTHORIZED TO MOVE INCIDENT TO YOUR ASSIGNMENT FROM A RESTRICTED STATION TO ANOTHER RESTRICTED STATION, YOU ARE NOT ENTITLED TO DISLOCATION ALLOWANCE FOR SUCH TRAVEL. FURTHERMORE, THE REMOVAL OF THE SUSPENSION OF DEPENDENTS' TRAVEL TO ITALY WILL PROVIDE NO BASIS FOR REIMBURSEMENT FOR THE TRAVEL ALREADY PERFORMED BY YOUR DEPENDENTS TO YOUR DUTY STATION WHILE THE RESTRICTION WAS IN EFFECT.

ACCORDINGLY, THE SETTLEMENT OF MARCH 23, 1962, WAS CORRECT AND IS SUSTAINED.