B-150492, MAR. 6, 1963

B-150492: Mar 6, 1963

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USA (RETIRED): REFERENCE IS MADE TO YOUR LETTERS OF AUGUST 21 AND OCTOBER 30. YOU WERE FURNISHED INFORMATION AS TO THE BASIS FOR THE AUDIT EXCEPTION AND REQUESTED TO PAY THE AMOUNT INVOLVED TO THE DEPARTMENT OF THE ARMY. YOU NOW SEEK REFUND OF SUCH AMOUNT WHICH YOU HAVE SINCE REPAID. WAS INVITED AND AUTHORIZED TO THE CONTINENTAL UNITED STATES ON OR ABOUT SEPTEMBER 28. PARAGRAPH 4 OF THE ORDER PROVIDED THAT TRANSPORTATION BEYOND THE PORT OF DEBARKATION IN THE UNITED STATES WOULD NOT BE FURNISHED IF THE TRAVEL WAS PERFORMED PRIOR TO THE ISSUANCE OF PERMANENT CHANGE OF STATION ORDERS FOR THE SPONSOR. YOU WERE PAID 6 CENTS PER MILE FOR 3. WAS FIRST PUBLISHED IN THE JOINT TRAVEL REGULATIONS EFFECTIVE WITH CHANGE 87.

B-150492, MAR. 6, 1963

TO LIEUTENANT COLONEL PETER A. HELFERT, USA (RETIRED):

REFERENCE IS MADE TO YOUR LETTERS OF AUGUST 21 AND OCTOBER 30, 1962, FORWARDED HERE BY THE FINANCE CENTER, U.S. ARMY, INDIANAPOLIS 49, INDIANA, FOR OUR CONSIDERATION, IN WHICH YOU REQUEST REVIEW OF NOTICE OF EXCEPTION NO. 122178, DATED MAY 18, 1961, ISSUED IN THE AMOUNT OF $188.28, PERTAINING TO THE TRAVEL OF YOUR DEPENDENT DAUGHTER BEYOND THE PORT OF DEBARKATION IN THE UNITED STATES. BY OUR CLAIMS DIVISION LETTER OF JANUARY 26, 1962, YOU WERE FURNISHED INFORMATION AS TO THE BASIS FOR THE AUDIT EXCEPTION AND REQUESTED TO PAY THE AMOUNT INVOLVED TO THE DEPARTMENT OF THE ARMY. YOU NOW SEEK REFUND OF SUCH AMOUNT WHICH YOU HAVE SINCE REPAID.

THE RECORD SHOWS THAT BY LETTER ORDER NO. 9-64, DATED SEPTEMBER 24, 1959, HEADQUARTERS, U.S. ARMY, RYUKYU ISLAND, IX CORPS, APO 331, SAN FRANCISCO, CALIFORNIA, THE TRAVEL OF YOUR DAUGHTER, SUSAN S. HELFERT, WAS INVITED AND AUTHORIZED TO THE CONTINENTAL UNITED STATES ON OR ABOUT SEPTEMBER 28, 1959, EVEN THOUGH PERMANENT CHANGE OF STATION ORDERS FOR YOU HAD NOT BEEN ISSUED BACK TO THE UNITED STATES. PARAGRAPH 4 OF THE ORDER PROVIDED THAT TRANSPORTATION BEYOND THE PORT OF DEBARKATION IN THE UNITED STATES WOULD NOT BE FURNISHED IF THE TRAVEL WAS PERFORMED PRIOR TO THE ISSUANCE OF PERMANENT CHANGE OF STATION ORDERS FOR THE SPONSOR. THESE ORDERS CITED PARAGRAPH 7009-3 OF THE JOINT TRAVEL REGULATIONS AS AUTHORITY FOR YOUR DAUGHTER'S TRAVEL TO THE PORT OF DEBARKATION IN THE UNITED STATES.

IT APPEARS THAT YOUR DAUGHTER DEPARTED YOUR STATION AT FORT BUCKNER, APO 331, ON SEPTEMBER 30, 1959, BY MILITARY AIR FOR TRAVIS AIR FORCE BASE, CALIFORNIA. THEREAFTER, SHE TRAVELED FROM TRAVIS AIR FORCE BASE TO LADYCLIFF COLLEGE, HIGHLAND FALLS, NEW YORK, BETWEEN SEPTEMBER 30 AND NOVEMBER 2, 1959, AND YOU WERE PAID 6 CENTS PER MILE FOR 3,138 MILES FOR SUCH TRAVEL ON VOUCHER 600873, JULY 1960 ACCOUNTS OF P. C. SCOTT, IN THE AMOUNT OF $188.28. IN SUPPORT OF SUCH VOUCHER, YOU SUBMITTED A CERTIFICATE SIGNED BY FIRST LIEUTENANT JOSEPH J. FANNING, ASSISTANT ADJUTANT GENERAL AT APO 331, ON JUNE 22, 1960, NINE MONTHS AFTER THE ISSUANCE OF LETTER ORDER NO. 9-64, DATED SEPTEMBER 24, 1959, TO THE EFFECT THAT YOUR DAUGHTER HAD RETURNED TO THE UNITED STATES BECAUSE OF THE LACK OF APPROPRIATE EDUCATIONAL FACILITIES IN ACCORDANCE WITH JOINT TRAVEL REGULATIONS 7009-3, ITEM 6. SUCH ITEM, RELATING TO THE LACK OF EDUCATIONAL FACILITIES, WAS FIRST PUBLISHED IN THE JOINT TRAVEL REGULATIONS EFFECTIVE WITH CHANGE 87, ISSUED ON DECEMBER 1, 1959, AND EFFECTIVE SEPTEMBER 28, 1959. THEREAFTER, BY LETTER ORDER NO. 104, ISSUED AT APO 331 ON MARCH 7, 1962, THE BASIC LETTER ORDER NO. 9-64, ISSUED ON SEPTEMBER 24, 1959, PERTAINING TO THE TRAVEL OF YOUR DAUGHTER, SUSAN, WAS AMENDED TO READ:

"LACK OF EDUCATIONAL FACILITIES IN THIS COMMAND WAS CAUSED BY CONDITIONS BEYOND THE CONTROL OF THE MEMBER AND AROSE AFTER COMMENCEMENT OF TRAVEL OF THE DEPENDENT TO HIS STATION.'

YOU APPARENTLY FEEL THAT, ON THE BASIS OF THE CERTIFICATE OF JUNE 22, 1960, THE AMENDING ORDER OF MARCH 7, 1962, AND THE FACT THAT YOUR DAUGHTER COMMENCED HER TRAVEL ON SEPTEMBER 30, 1959, THAT YOU ARE ENTITLED TO REIMBURSEMENT FOR HER TRAVEL EXPENSE BEYOND THE PORT OF DEBARKATION IN THE UNITED STATES (TRAVIS AIR FORCE BASE) TO HIGHLAND FALLS, NEW YORK, PRIOR TO YOUR PERMANENT CHANGE OF STATION.

UNDER THE PERTINENT STATUTE, 37 U.S.C. 406, A MEMBER OF A UNIFORMED SERVICE WHO IS ORDERED TO MAKE A PERMANENT CHANGE OF STATION IS ENTITLED TO TRANSPORTATION IN KIND FOR HIS DEPENDENT, TO REIMBURSEMENT THEREFOR, OR TO A MONETARY ALLOWANCE IN PLACE OF THAT TRANSPORTATION IN KIND AT A RATE TO BE PRESCRIBED. THIS GENERAL AUTHORITY IS SUBJECT TO THE LIMITATION PRESCRIBED IN 37 U.S.C. 406 (E) WHICH PROVIDES THAT:

"WHEN ORDERS DIRECTING A CHANGE OF PERMANENT STATION FOR THE MEMBER CONCERNED HAVE NOT BEEN ISSUED, OR WHEN THEY HAVE BEEN ISSUED BUT CANNOT BE USED AS AUTHORITY FOR THE TRANSPORTATION OF HIS DEPENDENTS, BAGGAGE, AND HOUSEHOLD EFFECTS, THE SECRETARIES CONCERNED MAY AUTHORIZE THE MOVEMENT OF THE DEPENDENTS, BAGGAGE, AND HOUSEHOLD EFFECTS AND PRESCRIBE TRANSPORTATION IN KIND, REIMBURSEMENT THEREFOR, OR A MONETARY ALLOWANCE IN PLACE THEREOF, AS THE CASE MAY BE, AS AUTHORIZED UNDER SUBSECTION (A) OR (B) OF THIS SECTION. * * *

THESE PROVISIONS OF THE STATUTE, HOWEVER, ARE NOT SELF-EXECUTING BUT REQUIRE ISSUANCE OF REGULATIONS BY THE SECRETARIES OF THE SERVICES CONCERNED. IN THIS RESPECT, PARAGRAPH 7009-3 OF THE JOINT TRAVEL REGULATIONS IN EFFECT WHEN YOUR ORDERS OF SEPTEMBER 24, 1959, WERE ISSUED, AND ALSO CITED IN THOSE SAME ORDERS, LIMITS THE RETURN TRANSPORTATION OF THOSE DEPENDENTS AUTHORIZED TO RETURN TO THE UNITED STATES IN ADVANCE OF THE ISSUANCE OF THE MEMBER'S CHANGE OF STATION ORDERS TO TRANSPORTATION TO THE POINT OF DEBARKATION IN THE UNITED STATES BY SPECIFICALLY PROVIDING THAT TRANSPORTATION BEYOND THAT POINT WILL NOT BE FURNISHED PRIOR TO THE RETURN OF THE MEMBER TO THE UNITED STATES ON PERMANENT CHANGE OF STATION ORDERS. UPON COMPLETION OF THE CURRENT OVERSEAS TOUR OF DUTY AND TRANSFER OF THE MEMBER TO A STATION IN THE UNITED STATES, TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE WAS AUTHORIZED AT NOT TO EXCEED THE ENTITLEMENT FROM THE PORT OF DEBARKATION IN THE UNITED STATES TO THE NEW STATION.

IN YOUR REQUEST FOR REVIEW, YOU CONTEND THAT SINCE PARAGRAPH 7009-3, ITEM 6, WAS EFFECTIVE SEPTEMBER 28, 1959, AND GRANTED AUTHORITY FOR ORDER- ISSUING AGENCIES TO AUTHORIZE EARLY RETURN OF DEPENDENTS TO THE UNITED STATES DUE TO A LACK OF APPROPRIATE EDUCATIONAL FACILITIES IN THE PARTICULAR OVERSEAS COMMAND, THAT SUCH REGULATION IN AND OF ITSELF WITH NO FURTHER ACTION SHOULD AUTHORIZE THE TRAVEL OF YOUR DAUGHTER, SHOULD BE POINTED OUT THAT PARAGRAPH 7009-3 OF THE JOINT TRAVEL REGULATIONS DID NOT, BEFORE OR AFTER CHANGE 87, ACTUALLY AUTHORIZE TRAVEL OF DEPENDENTS UNDER THE CONDITIONS INVOLVED, BUT RATHER AUTHORIZED THE ISSUANCE OF PROPER ORDERS FOR SUCH DEPENDENT TRAVEL. FURTHERMORE, A PARAGRAPH 7009-3 AS SET FORTH IN CHANGE 87 PROVIDES THAT THE MEMBER MAY REQUEST THE ADVANCE RETURN OF HIS DEPENDENTS TO AN APPROPRIATE DESTINATION IN THE UNITED STATES AND THAT THE "ORDER ISSUING AUTHORITY WILL DETERMINE THE APPROPRIATE DESTINATION TO WHICH TRAVEL WILL BE AUTHORIZED AND WILL INSURE THAT A REASONABLE RELATIONSHIP EXISTS BETWEEN THE CONDITIONS AND CIRCUMSTANCES IN THE CASE AND DESTINATION TO WHICH TRAVEL IS AUTHORIZED.' NO SUCH DETERMINATION AND AUTHORIZATION WAS MADE BY THE ORDER-ISSUING AUTHORITY FOR YOUR DAUGHTER TO TRAVEL TO HIGHLAND FALLS, NEW YORK, AND THE REGULATION DOES NOT PROVIDE FOR THE TRAVEL OF THE DEPENDENT AT PUBLIC EXPENSE TO A DESTINATION SELECTED BY THE MEMBER IN THE ABSENCE OF SUCH ADMINISTRATIVE DETERMINATION AND AUTHORIZATION. THEREFORE, IT WOULD MAKE NO DIFFERENCE WHETHER OR NOT CHANGE 87 WAS IN EFFECT AT THE TIME YOUR DAUGHTER COMMENCED HER TRAVEL ON SEPTEMBER 30, 1959, SINCE THE ORDERS AUTHORIZING HER TRAVEL TO THE UNITED STATES DID NOT PERMIT HER TRAVEL AT PUBLIC EXPENSE BEYOND TRAVIS AIR FORCE BASE, CALIFORNIA, THE PORT OF DEBARKATION IN THE UNITED STATES, AT THAT TIME. THE AMENDING ORDERS OF MARCH 7, 1962, ISSUED MORE THAN TWO AND A HALF YEARS AFTER THE TRAVEL INVOLVED WAS PERFORMED, PURPORT TO SHOW THAT THE RETURN OF YOUR DAUGHTER WAS DUE TO LACK OF EDUCATIONAL FACILITIES BUT DO NOT PROVIDE FOR TRAVEL BEYOND THE PORT OF DEBARKATION AND MAY NOT BE ACCEPTED AS AFFORDING A LEGAL BASIS FOR ALLOWING REIMBURSEMENT FOR THE TRAVEL PERFORMED BY YOUR DAUGHTER TO HIGHLAND FALLS, NEW YORK.

ACCORDINGLY, THE NOTICE OF EXCEPTION STATED IN YOUR CASE WAS CORRECT, AND THERE IS NO BASIS TO REFUND THE AMOUNT OF $188.28 REPAID BY YOU INCIDENT TO SUCH EXCEPTION.