B-149970, NOV. 20, 1962

B-149970: Nov 20, 1962

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

RA: REFERENCE IS MADE TO YOUR LETTER POSTMARKED SEPTEMBER 14. YOU WERE RELIEVED FROM ASSIGNMENT WITH THAT ORGANIZATION. THE RECORD SHOWS THAT YOU WERE PAID FOR YOUR DEPENDENT'S TRAVEL FROM NEW YORK CITY TO FAYETTEVILLE. THAT THE PORTION OF THE CLAIM PERTAINING TO HER TRAVEL FROM GERMANY TO NEW YORK WAS TRANSMITTED TO THIS OFFICE FOR SETTLEMENT. YOUR CLAIM WAS DISALLOWED FOR THE REASON THAT YOUR DEPENDENT PERFORMED THE TRAVEL FROM GERMANY TO NEW YORK BY AIRCRAFT WHICH WAS NOT REGISTERED UNDER THE LAWS OF THE UNITED STATES. TRAVEL BY COMMERCIAL AIRLINE WOULD NOT HAVE BEEN NECESSARY. YOU REQUEST THAT IF YOUR CLAIM IS DENIED YOU BE ADVISED AS TO THE NEXT HIGHER AUTHORITY TO WHOM YOU MAY PRESENT YOUR CLAIM.

B-149970, NOV. 20, 1962

TO CHARLES R. PRESNELL, III, STAFF SERGEANT, RA:

REFERENCE IS MADE TO YOUR LETTER POSTMARKED SEPTEMBER 14, 1962, IN EFFECT REQUESTING RECONSIDERATION OF OUR SETTLEMENT DATED SEPTEMBER 10, 1962, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT FOR YOUR DEPENDENT'S TRAVEL FROM MAINZ-GONSENHEIM, GERMANY, TO NEW YORK, NEW YORK, AUGUST 12-13, 1961.

BY PARAGRAPH 1, SPECIAL ORDERS NO. 153, HEADQUARTERS 1ST AIRBORNE BATTLE GROUP, 504 INFANTRY, APO 185, U.S. FORCES, DATED JULY 28, 1961, YOU WERE RELIEVED FROM ASSIGNMENT WITH THAT ORGANIZATION, TRANSFERRED ON PERMANENT CHANGE OF STATION TO FORT BRAGG, NORTH CAROLINA, AND DIRECTED TO PROCEED TO BREMERHAVEN, GERMANY, FOR MOVEMENT TO CONTINENTAL UNITED STATES ABOARD THE U.S.N.S. PATCH. THE ORDERS SHOW YOU HAD ONE DEPENDENT.

IT APPEARS THAT IN CONNECTION WITH YOUR TRANSFER YOUR DEPENDENT WIFE TRAVELED TO THE UNITED STATES AT YOUR EXPENSE BY THE LUFTHANSA GERMAN AIRLINES DURING THE PERIOD AUGUST 12 AND 13, 1961. THE RECORD SHOWS THAT YOU WERE PAID FOR YOUR DEPENDENT'S TRAVEL FROM NEW YORK CITY TO FAYETTEVILLE, NORTH CAROLINA, BUT THAT THE PORTION OF THE CLAIM PERTAINING TO HER TRAVEL FROM GERMANY TO NEW YORK WAS TRANSMITTED TO THIS OFFICE FOR SETTLEMENT. BY SETTLEMENT DATED SEPTEMBER 10, 1962, YOUR CLAIM WAS DISALLOWED FOR THE REASON THAT YOUR DEPENDENT PERFORMED THE TRAVEL FROM GERMANY TO NEW YORK BY AIRCRAFT WHICH WAS NOT REGISTERED UNDER THE LAWS OF THE UNITED STATES, CONTRARY TO THE REQUIREMENTS OF APPLICABLE REGULATIONS.

IN YOUR LETTER REQUESTING RECONSIDERATION OF YOUR CLAIM, YOU STATE THAT IF YOUR DEPENDENT HAD BEEN AUTHORIZED CONCURRENT TRAVEL, TRAVEL BY COMMERCIAL AIRLINE WOULD NOT HAVE BEEN NECESSARY. ALSO, YOU REQUEST THAT IF YOUR CLAIM IS DENIED YOU BE ADVISED AS TO THE NEXT HIGHER AUTHORITY TO WHOM YOU MAY PRESENT YOUR CLAIM.

THE STATUTORY AUTHORITY FOR TRANSPORTATION OF DEPENDENTS 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. PARAGRAPH 7000OF THE JOINT TRAVEL REGULATIONS, PROMULGATED PURSUANT THERETO, PROVIDES THAT MEMBERS OF THE UNIFORMED SERVICES ARE ENTITLED TO TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE UPON A PERMANENT CHANGE OF STATION FOR TRAVEL PERFORMED FROM THE OLD STATION TO THE NEW PERMANENT STATION OR BETWEEN POINTS OTHERWISE AUTHORIZED, WITH CERTAIN EXCEPTIONS, INCLUDING THE FOLLOWING:

"8. FOR ANY PORTION OF TRAVEL PERFORMED BY A FOREIGN REGISTERED VESSEL OR AIRPLANE, IF AMERICAN REGISTERED VESSELS OR AIRPLANES ARE AVAILABLE BY THE USUALLY TRAVELED ROUTE.'

THE NECESSITY FOR USE OF UNITED STATES TRANSPORTATION FACILITIES IS FURTHER AMPLIFIED IN PARAGRAPH 2150-1 OF THE JOINT TRAVEL REGULATIONS, CITED IN THE SETTLEMENT, WHICH REQUIRES THE USE OF VESSELS OR AIRCRAFT REGISTERED UNDER THE LAWS OF THE UNITED STATES, UNLESS DETERMINED IMPRACTICAL OR NOT AVAILABLE, FOR ALL TRAVEL AND TRANSPORTATION OUTSIDE THE CONTINENTAL UNITED STATES.

THE ABOVE REGULATORY PROVISIONS HAVE THE FORCE AND EFFECT OF LAW. THEREFORE, EVEN THOUGH YOU WERE REQUIRED TO PROVIDE FOR YOUR DEPENDENT'S TRANSPORTATION FROM GERMANY TO THE UNITED STATES BY COMMERCIAL MEANS UNDER ADVICE THAT YOU WERE NOT ENTITLED TO CONCURRENT TRAVEL OF YOUR DEPENDENT, GIVEN UNDER CIRCUMSTANCES WHICH COULD BE CONSIDERED AS HAVING MADE GOVERNMENT TRANSPORTATION FACILITIES UNAVAILABLE, SUCH COMMERCIAL TRANSPORTATION, TO BE REIMBURSABLE, NECESSARILY SHOULD HAVE BEEN OBTAINED ON A SHIP OR AIRCRAFT REGISTERED UNDER THE LAWS OF THE UNITED STATES UNLESS SUCH MEANS OF TRANSPORTATION WAS SHOWN TO HAVE BEEN UNAVAILABLE OR ITS USE IMPRACTICAL. IT HAS BEEN ASCERTAINED THAT TRANS WORLD AIRLINES, INC., AND PAN AMERICAN AIRWAYS, BOTH REGISTERED UNDER THE LAWS OF THE UNITED STATES, OPERATED DAILY FLIGHTS BETWEEN NEW YORK, NEW YORK, AND FRANKFURT, GERMANY, DURING THE MONTHS OF JULY AND AUGUST, 1961. SINCE SUCH SERVICE WAS AVAILABLE DAILY THAT COULD HAVE PROVIDED THE TRANSPORTATION DESIRED FOR YOUR DEPENDENT, REIMBURSEMENT OF ANY PART OF THE EXPENSES INCURRED FOR THE TRAVEL BY AIRCRAFT OF FOREIGN REGISTRY IS CLEARLY PROHIBITED BY PARAGRAPHS 7000-5 AND 2150-1 OF THE JOINT TRAVEL REGULATIONS. ACCORDINGLY, THE SETTLEMENT OF SEPTEMBER 10, 1962, WAS CORRECT AND IS SUSTAINED.

CONCERNING YOUR REQUEST FOR INFORMATION AS TO ANY HIGHER AUTHORITY TO WHOM YOU MAY APPEAL IN THE MATTER, YOU ARE ADVISED THAT THE ACTION OF OUR OFFICE ON CLAIMS AGAINST THE UNITED STATES IS BY LAW MADE FINAL AND CONCLUSIVE ON ALL EXECUTIVE DEPARTMENTS OF THE GOVERNMENT. 31 U.S.C. 74. THEREFORE, THERE IS NO FURTHER ACTION THAT MAY BE TAKEN ADMINISTRATIVELY ON YOUR CLAIM. HOWEVER, YOU ARE ADVISED THAT THE COURT OF CLAIMS OF THE UNITED STATES HAS JURISDICTION TO CONSIDER AND DETERMINE CERTAIN CLAIMS AGAINST THE UNITED STATES, IF FILED WITHIN SIX YEARS AFTER THE CLAIMS