B-149324, SEP. 11, 1962

B-149324, SEP. 11, 1962

TO MASTER SERGEANT RICHARD J. MCCONNELL, RA 16155570:

REFERENCE IS MADE TO YOUR WIFE'S LETTER OF MAY 25, 1962, REQUESTING ON YOUR BEHALF RECONSIDERATION OF SETTLEMENT DATED MAY 17, 1962, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT FOR HER TRAVEL FROM FOXBORO, WISCONSIN, TO NEW YORK, NEW YORK (PORT OF EMBARKATION), WHILE EN ROUTE TO YOUR DUTY STATION IN GERMANY, DURING THE PERIOD OCTOBER 25 TO 27, 1960. IT IS STATED THAT THE SETTLEMENT IS NOT UNDERSTOOD BECAUSE THE REASONS SET FORTH THEREIN PERTAIN TO THE DEPENDENT TRAVEL BAN OF OCTOBER 1961, AND YOUR CLAIM IS FOR TRAVEL PERFORMED PRIOR THERETO.

THE DISALLOWANCE OF YOUR CLAIM WAS IN NO WAY RELATED TO THE BAN ON DEPENDENT TRAVEL MENTIONED IN THE LETTER BUT WAS PROMISED ON PERTINENT REGULATORY PROVISIONS PROMULGATED PURSUANT TO STATUTE AND APPLICABLE TO THE CIRCUMSTANCES OF YOUR CASE.

THE RECORD SHOWS THAT BY ORDERS OF MAY 6 AND JUNE 3, 1960, YOU WERE RELEASED FROM YOUR ASSIGNMENT WITH THE FIFTH UNITED STATES ARMY ADVISORY GROUP, DUTY STATION OSHKOSH, WISCONSIN, AND DIRECTED TO REPORT TO THE COMMANDING OFFICER, MCGUIRE AIR FORCE BASE, NEW JERSEY, ON OR ABOUT JUNE 5, 1960, FOR TRANSPORTATION TO YOUR NEW ASSIGNMENT, THE FIRST MEDIUM TANK BATTALION, 32ND ARMORED DIVISION, FRANKFORT (FRIEDBERG), GERMANY. THE ORDERS MADE NO PROVISION FOR TRAVEL OF DEPENDENTS TO THE OVERSEAS STATION, AND YOUR APPLICATION FOR CONCURRENT TRAVEL OF YOUR WIFE WAS DISAPPROVED BECAUSE OF AN ESTIMATED 44 WEEKS' DELAY FOR GOVERNMENT QUARTERS IN THAT AREA. THEREAFTER, YOU DESIGNATED FOXBORO, WISCONSIN, AS THE PLACE OF RESIDENCE FOR YOUR WIFE WHILE YOU WERE OVERSEAS AND ON MAY 31, 1960, SHE MOVED TO THAT LOCATION FROM OSHKOSH FOR WHICH YOU RECEIVED PAYMENT OF DEPENDENT'S TRAVEL AND DISLOCATION ALLOWANCES. YOUR WIFE RESIDED AT FOXBORO UNTIL OCTOBER 25, 1960, AT WHICH TIME SHE PROCEEDED TO JOIN YOU AT YOUR OVERSEAS ASSIGNMENT WITHOUT PRIOR APPROVAL BY THE APPROPRIATE COMMANDING OFFICER. ON MAY 24, 1961, YOU EXTENDED YOUR ENLISTMENT, AND YOUR WIFE APPARENTLY WAS GRANTED AN "AUTHORIZED" STATUS BY THE OVERSEAS COMMANDER PURSUANT TO THE PROVISIONS OF PARAGRAPH 5.1, ARMY REGULATIONS 55 -46, CHANGE 3, DATED NOVEMBER 29, 1960.

THE STATUTORY AUTHORITY FOR TRANSPORTATION OF DEPENDENTS OF MEMBERS OF THE ARMED 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 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. CHAPTER 7 OF THE JOINT TRAVEL REGULATIONS, ISSUED BY THE SECRETARIES TO IMPLEMENT THIS STATUTORY AUTHORITY, PROVIDES IN PARAGRAPHS 7000-7003 THAT MEMBERS, GENERALLY, ARE ENTITLED TO TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE UPON A PERMANENT CHANGE OF STATION FOR TRAVEL PERFORMED FROM THE OLD PERMANENT STATION TO THE NEW PERMANENT STATION OR BETWEEN POINTS OTHERWISE AUTHORIZED IN SUCH REGULATIONS. WHEN FOR MILITARY REASONS, WHICH MAY INCLUDE CONSIDERATION OF MATTERS PERTAINING TO THE GENERAL WELFARE OF DEPENDENTS, SUCH AS THE AVAILABILITY OF HOUSING, MEDICAL SERVICE, SCHOOLING, ETC., A MEMBER'S FAMILY IS NOT PERMITTED TO ACCOMPANY HIM TO THE PLACE OF HIS NEW PERMANENT ASSIGNMENT, THE ASSIGNMENT IS REGARDED AS BEING TO A RESTRICTED AREA AS CONTEMPLATED BY THE USE OF THAT TERM IN PARAGRAPH 7005, JOINT TRAVEL REGULATIONS. IN SUCH CIRCUMSTANCES, PARAGRAPH 7005 PROVIDES FOR THE DEPENDENTS' TRANSPORTATION AT GOVERNMENT EXPENSE TO A PLACE DESIGNATED BY THE MEMBER AND THAT SUBSEQUENT ENTITLEMENT TO MOVEMENT AT GOVERNMENT EXPENSE FROM THAT PLACE IS AUTHORIZED ONLY WHEN THE RESTRICTION AGAINST TRAVEL TO THE DUTY STATION IS REMOVED OR THE MEMBER IS TRANSFERRED ON CHANGE OF STATION TO AN UNRESTRICTED AREA.

TRANSPORTATION OF DEPENDENTS TO OVERSEAS STATIONS TO WHICH, IN GENERAL, CONCURRENT TRAVEL OF A MEMBER AND HIS DEPENDENTS IS NOT AUTHORIZED, IS GOVERNED, INSOFAR AS ARMY PERSONNEL ARE CONCERNED, BY A PRIORITY SYSTEM AS SET FORTH IN ARMY REGULATIONS NO. 55-46. THESE REGULATIONS, ISSUED BY ORDER OF THE SECRETARY OF THE ARMY, ARE INTENDED TO PROVIDE A FAIR AND EQUITABLE MEANS OF REUNITING FAMILIES SEPARATED BY OVERSEAS SERVICE AND TO INSURE THAT ADEQUATE ACCOMMODATIONS IN THE OVERSEAS COMMANDS, AND TRANSPORTATION TO SUCH COMMANDS, WILL BE AVAILABLE FIRST TO THOSE FAMILIES SUFFERING THE GREATEST PERIODS OF SEPARATION. THE EFFECT OF THESE REGULATIONS, IN THE CASE OF A MEMBER ORDERED TO AN OVERSEAS COMMAND OPERATING UNDER THE PRIORITY SYSTEM, IS TO LIMIT HIS ENTITLEMENT TO TRANSPORTATION OF DEPENDENTS, NOTWITHSTANDING THE ORDERED PERMANENT CHANGE OF STATION, TO TRANSPORTATION ONLY TO AN AUTHORIZED DESIGNATED PLACE UNTIL SUCH TIME AS THEIR PRESENCE AT HIS DUTY STATION IS AUTHORIZED BY THE OVERSEAS COMMANDER CONCERNED OR THE RESTRICTION IS OTHERWISE REMOVED.

THE RIGHT TO TRANSPORTATION OF DEPENDENTS OF MILITARY PERSONNEL AT GOVERNMENT EXPENSE UPON AN ORDERED CHANGE OF PERMANENT STATION IS NOT AN ABSOLUTE ONE BUT MAY BE ADMINISTRATIVELY SUSPENDED OR DENIED FOR REASONS OF MILITARY NECESSITY OR EXPEDIENCY, IN WHICH EVENT A MEMBER MAY NOT TRANSPORT HIS DEPENDENTS TO HIS NEW STATION AT PERSONAL EXPENSE AND BE REIMBURSED FOR THE TRAVEL PERFORMED. CULP V. UNITED STATES, 76 CT.CL. 507.

SINCE YOUR WIFE TRAVELED TO A DESIGNATED PLACE OF RESIDENCE IN THE UNITED STATES, FOXBORO, WISCONSIN, INCIDENT TO YOUR ASSIGNMENT TO A DUTY STATION IN A RESTRICTED AREA IN GERMANY, OPERATING UNDER THE PRIORITY SYSTEM, AND THE RESTRICTION AS TO HER TRAVEL THERE WAS NOT REMOVED PRIOR TO HER PROCEEDING TO YOUR STATION, THERE IS NO AUTHORITY FOR THE PAYMENT OF AN ALLOWANCE FOR ANY PORTION OF SUCH TRAVEL. 35 COMP. GEN. 61. WHILE IT MAY BE, AS STATED IN YOUR CLAIM, THAT YOUR WIFE WAS GRANTED AN "AUTHORIZED" STATUS ON MAY 24, 1961, AFTER HER PRESENCE IN THE VICINITY OF YOUR DUTY STATION WAS OFFICIALLY RECOGNIZED BY THE APPROPRIATE OVERSEAS COMMANDER, SUCH FACT AFFORDS NO BASIS FOR ALLOWING REIMBURSEMENT FOR TRAVEL ALREADY PERFORMED.

ACCORDINGLY, THE DISALLOWANCE OF YOUR CLAIM BY SETTLEMENT DATED MAY 17, 1962, WAS CORRECT AND IS SUSTAINED.