B-152514, NOV. 21, 1963

B-152514, NOV. 21, 1963

TO MR. RENOLD W. CARD IN, AMERICAN CONSULATE, IRAQ:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 21, 1963, ADDRESSED TO THE FINANCE CENTER, DEPARTMENT OF THE ARMY, WHEREIN YOU REQUEST, IN EFFECT, RECONSIDERATION OF THAT PART OF OUR SETTLEMENT DATED JUNE 18, 1963, WHICH LIMITED REIMBURSEMENT FOR YOUR DEPENDENTS' TRAVEL INCIDENT TO YOUR RETIREMENT FROM THE U.S. ARMY TO THE COST OF COMMERCIAL AIR ON A CONSTRUCTIVE BASIS FROM WARSAW, POLAND, TO FRANKFURT, GERMANY, AND TRANSPORTATION ON A MILEAGE BASIS FROM LOS ANGELES, CALIFORNIA, TO LONG BEACH, CALIFORNIA.

BY PARAGRAPH 275, SPECIAL ORDER NO. 176, HEADQUARTERS, DEPARTMENT OF THE ARMY, WASHINGTON, 25, D.C., DATED JULY 24, 1962, YOU WERE RELIEVED FROM DUTY AND PLACED ON THE RETIRED LIST SEPTEMBER 1, 1962. SPECIAL ORDERS NO. 53, OFFICE OF THE UNITED STATES ARMY ATTACHE, AMERICAN EMBASSY, WARSAW, POLAND, DATED JULY 26, 1962, DIRECTED YOUR REASSIGNMENT TO THE CONTINENTAL UNITED STATES, WITH INSTRUCTIONS TO REPORT NOT LATER THAN AUGUST 18, 1962, AT RHEIN-MAIN AIR BASE, FRANKFURT, GERMANY, FOR TRANSPORTATION TO FORT HAMILTON, NEW YORK. CONCURRENT TRAVEL OF YOUR DEPENDENTS WAS AUTHORIZED. YOUR ITINERARY SHOWS YOU TRAVELED BY POLISH AIRLINES FROM WARSAW, POLAND, TO FRANKFURT, GERMANY, AND BY MILITARY AIR TRANSPORT TO MCGUIRE AIR FORCE BASE, NEW JERSEY. YOU REPORTED AT FORT HAMILTON, NEW YORK, ON AUGUST 25, 1962, LEFT THERE ON AUGUST 31, 1962, AND TRAVELED BY PRIVATELY OWNED VEHICLE WITH YOUR DEPENDENTS TO YOUR HOME OF SELECTION, LONG BEACH, CALIFORNIA, ARRIVING OCTOBER 5, 1962. YOUR DEPENDENTS TRAVELED BY POLISH AIRLINES FROM WARSAW TO LOS ANGELES, CALIFORNIA, ARRIVING JULY 30, 1962, AND FROM THERE ON AUGUST 24 TO BOSTON, MASSACHUSETTS. FROM BOSTON, THEY TRAVELED TO NEW YORK CITY AND JOINED YOU IN YOUR TRAVEL TO LONG BEACH, CALIFORNIA. THE RECORD CONTAINS A CERTIFICATE ISSUED AT YOUR LAST DUTY STATION THAT NO GOVERNMENT TRANSPORTATION WAS FURNISHED YOUR DEPENDENTS FOR TRAVEL FROM WARSAW, POLAND, TO NEW YORK OR FOR YOUR TRAVEL TO FRANKFURT, GERMANY.

YOUR CLAIM FOR REIMBURSEMENT OF EXPENSES INCURRED FOR YOUR DEPENDENTS' TRAVEL BY FOREIGN REGISTRY AIRCRAFT FROM FRANKFURT, GERMANY, TO LOS ANGELES, CALIFORNIA, WAS DISALLOWED FOR THE REASON THAT THEY COULD HAVE TRAVELED WITH YOU BY MILITARY AIR TRANSPORT OR COULD HAVE TRAVELED ON A COMMERCIAL CARRIER OF UNITED STATES REGISTRY. IN YOUR LETTER OF JULY 21, 1963, YOU CLAIM ENTITLEMENT TO THE COST BY MILITARY AIR TRANSPORT, FOR YOUR DEPENDENTS' TRAVEL FROM FRANKFURT TO MCGUIRE AIR FORCE BASE, NEW JERSEY. YOU ALSO CLAIM ENTITLEMENT ON A MILEAGE BASIS FOR THEIR TRAVEL FROM MCGUIRE AIR FORCE BASE TO LONG BEACH FOR THE REASON THAT THEY ACCOMPANIED YOU ON YOUR TRIP BY PRIVATE AUTOMOBILE BETWEEN THOSE POINTS.

THE STATUTORY AUTHORITY FOR TRANSPORTATION OF DEPENDENTS, 37 U.S.C. 406, 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 GRADES, RANKS, AND RATINGS, AND TO AND FROM SUCH LOCATIONS AS THE SECRETARIES CONCERNED MAY PRESCRIBE. PARAGRAPH 7000-8 OF THE JOINT TRAVEL REGULATIONS, IMPLEMENTING THIS STATUTORY AUTHORITY, PROHIBITS TRANSPORTATION OF A MEMBER'S DEPENDENTS AT GOVERNMENT EXPENSE "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 PARAGRAPHS 2150-1 AND 2 OF THE REGULATIONS, WHICH REQUIRE 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.

WHERE TRANSPORTATION BY GOVERNMENT CONVEYANCE FOR AUTHORIZED TRANSOCEANIC TRAVEL OF DEPENDENTS IS NOT AVAILABLE, THE MEMBER MAY BE REIMBURSED FOR COMMERCIAL TRANSPORTATION PROCURED AT PERSONAL EXPENSE. ALSO, IN CASES WHERE DEPENDENTS OF A MEMBER ARE AUTHORIZED, AS DISTINGUISHED FROM SPECIFICALLY DIRECTED, TO PERFORM TRANSOCEANIC TRAVEL BY GOVERNMENT CONVEYANCE BUT WHO USE COMMERCIAL TRANSPORTATION AT PERSONAL EXPENSE, IT HAS BEEN RECOGNIZED THAT THE MEMBER MAY BE REIMBURSED FOR THE COST OF THE TRAVEL TO THE EXTENT OF THE STANDARD PRICES THAT THE SPONSORING SERVICE WOULD HAVE BEEN REQUIRED TO PAY HAD GOVERNMENT TRANSPORTATION BEEN USED. 40 COMP. GEN. 482 AND 41 COMP. GEN. 100. ENTITLEMENT IN EITHER OF SUCH SITUATIONS, HOWEVER, IS SUBJECT TO THE LIMITATIONS CONTAINED IN PARAGRAPHS 2150-1 AND 2 AND 7000-8 OF THE JOINT TRAVEL REGULATIONS REFERRED TO ABOVE.

THE RECORD DOES NOT CONTAIN EVIDENCE OF A DETERMINATION THAT GOVERNMENT TRANSPORTATION WAS NOT AVAILABLE FOR THE TRANSPORTATION OF YOUR DEPENDENTS FROM WARSAW, POLAND, TO NEW YORK, NEW YORK, ALTHOUGH THERE IS A CERTIFICATE THAT NO GOVERNMENT TRANSPORTATION WAS FURNISHED. HOWEVER, CONCURRENT TRAVEL WAS AUTHORIZED FOR YOU AND YOUR DEPENDENTS, AND SINCE YOU TRAVELED TO FRANKFURT, GERMANY, ONLY BY POLISH AIR LINES, THEREAFTER TRAVELING TO THE CONTINENTAL UNITED STATES BY MILITARY AIR TRANSPORTATION, AND SINCE BOTH GOVERNMENT AIR AND COMMERCIAL AIR TRANSPORTATION OF AMERICAN REGISTRY WOULD HAVE BEEN AVAILABLE FOR THE TRAVEL OF YOUR DEPENDENTS FROM FRANKFURT TO THE UNITED STATES HAD THEY BEEN REQUESTED, REIMBURSEMENT OF THAT PORTION OF YOUR DEPENDENTS' TRAVEL BY COMMERCIAL AIRCRAFT OF FOREIGN REGISTRY WHICH EXCEEDED THAT FOR TRAVEL FROM WARSAW TO FRANKFURT IS NOT AUTHORIZED.

WITH RESPECT TO THAT PORTION OF YOUR CLAIM PERTAINING TO REIMBURSEMENT ON A MILEAGE BASIS FOR THE TRAVEL PERFORMED BY YOUR DEPENDENTS WITH YOU BY PRIVATELY OWNED VEHICLE FROM MCGUIRE AIR FORCE BASE TO LONG BEACH, CALIFORNIA, SINCE YOUR DEPENDENTS HAD ARRIVED AT LOS ANGELES, NEAR YOUR HOME OF SELECTION IN LONG BEACH, ON JULY 30, 1962, NO FURTHER TRAVEL BY THEM WAS NECESSARY INCIDENT TO YOUR RETIREMENT OTHER THAN THAT FROM LOS ANGELES TO LONG BEACH, FOR WHICH YOU WERE REIMBURSED. THEREFORE, THEIR RETURN TO NEW YORK TO JOIN YOU IN YOUR TRAVEL BY PRIVATELY OWNED VEHICLE TO LONG BEACH WAS FOR THEIR PERSONAL CONVENIENCE AND PLEASURE AND FORMS NO BASIS FOR REIMBURSEMENT OF THEIR TRAVEL EXPENSES FOR SUCH TRAVEL. ACCORDINGLY, THE SETTLEMENT OF JUNE 18, 1963, WAS CORRECT AND IS SUSTAINED.