B-149808, NOV. 26, 1962

B-149808, NOV. 26, 1962

TO JOHNNY P. SMITH, MASTER SERGEANT, USAR, RETIRED:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 18, 1962, WITH ENCLOSURE, REQUESTING RECONSIDERATION OF THE SETTLEMENT DATED AUGUST 15, 1962, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT FOR PERSONAL AND DEPENDENT TRAVEL FROM TEXAS TO GERMANY INCIDENT TO YOUR RELEASE FROM ACTIVE DUTY ON FEBRUARY 28, 1962, AND PLACEMENT ON THE RETIRED LIST, USAR, EFFECTIVE MARCH 1, 1962.

THE RECORD SHOWS THAT BY SPECIAL ORDERS NO. 32, HEADQUARTERS, DEPARTMENT OF THE ARMY, DATED FEBRUARY 12, 1962, YOU WERE RELIEVED FROM ACTIVE DUTY AT CORPUS CHRISTI, TEXAS, EFFECTIVE FEBRUARY 28, 1962, AND PLACED ON THE RETIRED LIST AND TRANSFERRED TO THE USAR (RETIRED RESERVE) EFFECTIVE MARCH 1, 1962. IN YOUR CERTIFICATE FOR TRAVEL TO HOME OF SELECTION, YOU SHOW THAT YOUR DEPENDENT WIFE, ANNELIESE, TRAVELED FROM CORPUS CHRISTI, TEXAS, TO HEIDELBERG/SCHLIERBACH, GERMANY, YOUR INDICATED HOME OF SELECTION, DECEMBER 22 TO 23, 1961, AND ON YOUR CLAIM FOR YOUR OWN TRAVEL YOU HAVE INDICATED THAT YOU DEPARTED CORPUS CHRISTI MARCH 9 AND ARRIVED AT HEIDELBERG/SCHLIERBACH ON MARCH 10, 1962. BOTH YOU AND YOUR WIFE UTILIZED KLM ROYAL DUTCH AIRLINES, A FOREIGN AIR CARRIER, FOR THAT PART OF YOUR TRAVEL FROM HOUSTON, TEXAS, TO FRANKFURT, GERMANY. YOUR CLAIM FOR PERSONAL AND DEPENDENT TRAVEL FROM CORPUS CHRISTI, TEXAS, TO HEIDELBERG/SCHLIERBACH, GERMANY, WAS DISALLOWED BY CLAIMS DIVISION SETTLEMENT OF AUGUST 15, 1962, FOR THE REASONS STATED THEREIN. WITH YOUR CURRENT LETTER REQUESTING RECONSIDERATION, YOU HAVE ENCLOSED A LETTER DATED JANUARY 12, 1962, ADDRESSED TO YOU BY LIEUTENANT COLONEL JOHN W. MYERS, GS, STATING GENERALLY THAT SPACE AVAILABLE TRAVEL TO EUROPE COULD NOT BE PROVIDED FOR YOU AT THAT TIME.

WITH REGARD TO YOUR CLAIM FOR REIMBURSEMENT FOR THE TRAVEL OF YOUR DEPENDENT WIFE FROM TEXAS TO GERMANY ON DECEMBER 22 AND 23, 1961, SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 253 (C), PROVIDES THAT, UNDER SUCH CONDITIONS AND LIMITATIONS AS MAY BE PRESCRIBED BY THE SECRETARIES CONCERNED, MEMBERS OF THE UNIFORMED SERVICES WHEN ORDERED TO MAKE A PERMANENT CHANGE OF STATION (INCLUDING FROM LAST DUTY STATION TO HOME) SHALL BE ENTITLED TO TRANSPORTATION OF DEPENDENTS OR TO REIMBURSEMENT IN LIEU THEREOF. UNDER THE PROVISIONS OF PARAGRAPH 7000-9 OF THE JOINT TRAVEL REGULATIONS TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE IS NOT AUTHORIZED WHERE THE DEPENDENTS DEPART FROM THE OLD STATION PRIOR TO THE ISSUANCE OF PERMANENT CHANGE OF STATION ORDERS, UNLESS THE VOUCHER IS SUPPORTED BY CERTIFICATE OF THE COMMANDING OFFICER, OR HIS DESIGNATED REPRESENTATIVE, THAT THE MEMBER WAS ADVISED PRIOR TO THE ISSUANCE OF CHANGE OF STATION ORDERS THAT SUCH ORDERS WOULD BE ISSUED. SUCH CERTIFICATE IS OF RECORD IN YOUR CASE. MERE GENERAL INFORMATION AS TO THE TIME OF EVENTUAL RELEASE FROM ACTIVE DUTY ON THE BASIS OF AN APPLICATION FOR RETIREMENT IS INSUFFICIENT TO MEET THE REQUIREMENTS OF THE REGULATIONS. 34 COMP. GEN. 241. YOUR RETIREMENT ORDERS ARE DATED FEBRUARY 12, 1962, AND YOU HAVE STATED THAT YOUR WIFE TRAVELED FROM TEXAS TO GERMANY ON DECEMBER 22, 1961 (PRIOR TO THE ISSUANCE OF YOUR RETIREMENT ORDERS), AFTER BEING NOTIFIED THAT HER FATHER IN GERMANY WAS DESPERATELY ILL AND WAS NOT EXPECTED TO LIVE. IT SEEMS APPARENT IN THOSE CIRCUMSTANCES THAT THE PRIMARY REASON FOR YOUR WIFE'S TRAVEL PRIOR TO YOUR RELEASE FROM ACTIVE DUTY WAS FOR PERSONAL REASONS AND NOT BECAUSE OF NOTICE THAT YOU WERE TO BE RELEASED FROM ACTIVE DUTY INCIDENT TO YOUR RETIREMENT. THEREFORE, YOU ARE NOT ENTITLED TO REIMBURSEMENT FOR YOUR DEPENDENT'S TRAVEL TO GERMANY INCIDENT TO THE ISSUANCE OF YOUR RETIREMENT ORDERS. FOR THE REASONS HEREAFTER SET OUT IN CONNECTION WITH YOUR CLAIM, EVEN IF THE TRAVEL OF YOUR WIFE HAD NOT BEEN PERFORMED PRIOR TO THE ISSUANCE OF YOUR RETIREMENT ORDERS NO REIMBURSEMENT COULD BE MADE FOR THAT PART OF HER TRAVEL BY AN AIRLINE OF FOREIGN REGISTRY IN THE ABSENCE OF A SHOWING THAT THE TRAVEL COULD NOT HAVE BEEN PERFORMED ON A SHIP OR AIRCRAFT REGISTERED UNDER THE LAWS OF THE UNITED STATES. SEE PARAGRAPH 7000-8 OF THE JOINT TRAVEL REGULATIONS.

WITH RESPECT TO YOUR PERSONAL TRAVEL FROM CORPUS CHRISTI, TEXAS, TO FRANKFURT, GERMANY, AND FROM FRANKFURT TO HEIDELBERG/SCHLIERBACH, GERMANY, ON MARCH 9 AND 10, 1962, INCIDENT TO YOUR RETIREMENT ORDERS DATED FEBRUARY 12, 1962, PARAGRAPH 4158 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT A MEMBER ON ACTIVE DUTY WHO IS RETIRED IN THE CIRCUMSTANCES OF YOUR CASE MAY SELECT HIS HOME AND RECEIVE TRAVEL ALLOWANCES THERETO FROM HIS LAST DUTY STATION IN ACCORDANCE WITH PARAGRAPH 4151 OR 4159, AS APPLICABLE, PROVIDED THAT TRAVEL IS COMPLETED TO THE SELECTED HOME WITHIN ONE YEAR AFTER THE TERMINATION OF ACTIVE DUTY. PARAGRAPH 4159 OF THE JOINT TRAVEL REGULATIONS PROVIDES FOR PERMANENT STATION TRAVEL TO, FROM, OR BETWEEN POINTS OUTSIDE THE UNITED STATES. A MILEAGE ALLOWANCE IS AUTHORIZED FOR TRAVEL AT PERSONAL EXPENSE FROM THE OLD STATION TO THE APPROPRIATE AERIAL OR WATER PORT OF EMBARKATION SERVING THE OLD STATION AND FROM THE APPROPRIATE PORT OF DEBARKATION SERVING THE NEW STATION TO THE NEW STATION. RESPECTING TRAVEL FROM THE PORT OF EMBARKATION IN THE UNITED STATES TO THE PORT OF DEBARKATION OVERSEAS, THE REGULATIONS PROVIDE THAT A MEMBER WILL BE ENTITLED TO GOVERNMENT-FURNISHED TRANSPORTATION OR REIMBURSEMENT FOR TRANSPORTATION PROCURED AT PERSONAL EXPENSE. SUCH ENTITLEMENT, HOWEVER, IS LIMITED BY PARAGRAPH 2150 OF THE JOINT TRAVEL REGULATIONS WHICH PROVIDES THAT VESSELS OR AIRCRAFT REGISTERED UNDER THE LAWS OF THE UNITED STATES WILL BE USED IF AVAILABLE FOR THE PURPOSE WHEN COMMERCIAL TRANSPORTATION TO OR FROM POINTS OUTSIDE CONTINENTAL UNITED STATES IS AUTHORIZED OR REQUIRED. THE LETTER OF JANUARY 12, 1962, WHICH YOU SUBMITTED IN SUPPORT OF YOUR CLAIM MERELY STATES THAT SPACE-AVAILABLE TRAVEL TO EUROPE BY GOVERNMENT FACILITIES WAS NOT AVAILABLE AND PROVIDES NO BASIS FOR A CONCLUSION THAT COMMERCIAL TRANSPORTATION OF UNITED STATES REGISTRY OPERATING BETWEEN THE UNITED STATES AND FRANKFURT COULD NOT HAVE BEEN USED BY YOU.

THE ABOVE REGULATORY PROVISIONS, PROMULGATED BY STATUTORY AUTHORITY, HAVE THE FORCE AND EFFECT OF LAW AND WE MAY MAKE NO EXCEPTION TO THE REQUIREMENTS OF SUCH PROVISIONS IN THE SETTLEMENT OF CLAIMS BY OUR OFFICE. ACCORDINGLY, IN THE ABSENCE OF EVIDENCE THAT TRANSPORTATION BY FACILITIES OF UNITED STATES REGISTRY WERE NOT AVAILABLE FOR YOUR TRAVEL, NO REIMBURSEMENT MAY BE MADE FOR ANY OF YOUR TRAVEL BY KLM ROYAL DUTCH AIRLINES BETWEEN HOUSTON, TEXAS, AND FRANKFURT, GERMANY. HOWEVER, SINCE YOU ARE ENTITLED TO REIMBURSEMENT FOR THAT PART OF YOUR OWN TRAVEL FROM CORPUS CHRISTI TO HOUSTON (WHICH APPEARS TO HAVE BEEN PERFORMED VIA TRANS- TEXAS AIRWAYS), AND FROM FRANKFURT TO HEIDELBERG/SCHLIERBACH, GERMANY, A SETTLEMENT FOR THE AMOUNT DUE AS MILEAGE FOR SUCH TRAVEL WILL ISSUE IN DUE COURSE.

THE LETTER OF JANUARY 12, 1962, ENCLOSED WITH YOUR LETTER, IS RETURNED HEREWITH.