B-153596, JUN. 15, 1964

B-153596, JUN. 15, 1964

TO SERGEANT JAMES N. CLEMONS, RA:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 11, 1964, REQUESTING RECONSIDERATION OF THE ACTION TAKEN IN OUR SETTLEMENT DATED FEBRUARY 4, 1964, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT FOR TRAVEL OF DEPENDENTS FROM SEOUL, KOREA, TO SAN FRANCISCO, CALIFORNIA, PERFORMED MAY 10, 1963.

BY PARAGRAPH 6, SPECIAL ORDERS NO. 86, HEADQUARTERS 83RD ORDNANCE BATTALION (AMMO), APO 301, DATED APRIL 17, 1963, YOU WERE TRANSFERRED ON PERMANENT CHANGE OF STATION TO FORT HOOD, TEXAS, AND DIRECTED TO REPORT ON OR ABOUT APRIL 24, 1963, FOR TRANSPORTATION TO THE CONTINENTAL UNITED STATES WITH 35 DAYS' DELAY TO COUNT AS LEAVE PRIOR TO REPORTING TO YOUR NEW DUTY STATION. THE ORDERS DID NOT PROVIDE AUTHORIZATION FOR THE TRANSPORTATION OF YOUR DEPENDENTS TO YOUR NEW STATION.

THE RECORD INDICATES THAT YOU WERE PAID FOR YOUR DEPENDENTS' TRAVEL, AND DISLOCATION ALLOWANCE INCIDENT THERETO, FOR THE DISTANCE FROM TRAVIS AIR FORCE BASE, CALIFORNIA, TO FORT HOOD, TEXAS. IT WAS INDICATED FURTHER IN A REPORT FROM YOUR OVERSEA COMMANDER, DATED DECEMBER 9, 1963, THAT ONLY CERTAIN DEPENDENTS AS SPECIFICALLY DESCRIBED IN THAT REPORT WERE CONSIDERED TO BE "COMMAND SPONSORED" AND THAT YOUR DEPENDENTS, ACQUIRED WITHIN THAT COMMAND, WERE NOT RECOGNIZED AS ,COMMAND SPONSORED.' IT WAS THEREFORE STATED THAT YOUR DEPENDENTS WOULD ONLY BE PROVIDED TRANSPORTATION TO CONTINENTAL UNITED STATES AT GOVERNMENT EXPENSE ON A SPACE AVAILABLE BASIS, AND THAT AT THE TIME YOU TRAVELED SPACE AVAILABLE TRANSPORTATION WAS NOT AVAILABLE.

IN YOUR CLAIM FOR REIMBURSEMENT FOR YOUR DEPENDENTS' TRAVEL YOU STATED THAT PRIOR TO YOUR TRANSFER YOU HAD SUBMITTED A REQUEST FOR THEIR TRAVEL AND THAT ON OR ABOUT APRIL 21, 1963, YOU WERE ADVISED THAT NO SPACE WAS AVAILABLE FOR THEIR TRAVEL AT THAT TIME. YOU SUBSEQUENTLY ARRANGED FOR THEIR TRANSPORTATION TO SAN FRANCISCO BY COMMERCIAL AIR AT YOUR OWN EXPENSE SINCE YOU WERE REQUIRED TO LEAVE KOREA ON APRIL 25, 1963. SETTLEMENT DATED FEBRUARY 4, 1964, YOUR CLAIM WAS DISALLOWED FOR THE REASONS STATED THEREIN.

YOU STATE IN YOUR LETTER OF FEBRUARY 11, 1964, THAT YOU WERE MARRIED ON APRIL 28, 1961, WHICH MARRIAGE WAS APPROVED BY PROPER MILITARY AUTHORITY, AND YOU EXTENDED YOUR STAY AT YOUR OVERSEAS STATION FOR AN ADDITIONAL 18 MONTHS. YOU STATE FURTHER THAT 6 MONTHS PRIOR TO YOUR TRANSFER TO FORT HOOD YOU HAD SUBMITTED YOUR REQUEST FOR AVAILABLE SPACE FOR YOUR DEPENDENTS' TRANSPORTATION TO THE UNITED STATES AND AT THE TIME YOU WERE TO LEAVE YOU WERE TOLD THERE WAS NO SPACE FOR YOUR DEPENDENTS. YOU INDICATED THAT YOU TRIED TO DELAY YOUR TRAVEL SO AS TO ENABLE YOUR FAMILY TO GO WITH YOU BY AIR LATER, BUT YOU WERE ORDERED TO LEAVE BY SHIP WITHOUT YOUR DEPENDENTS. YOU FEEL, THEREFORE, THAT SINCE OTHER ENLISTED MEMBERS WERE WITH THEIR DEPENDENTS ON BOARD THE SHIP, YOU ARE ENTITLED TO REIMBURSEMENT FOR THE EXPENSE OF YOUR DEPENDENTS' TRAVEL BY COMMERCIAL AIR.

PARAGRAPH 5.1, ARMY REGULATIONS 55-46, AS ADDED BY CHANGE NO. 3, EFFECTIVE NOVEMBER 29, 1960, PROVIDES IN SUBPARAGRAPH (3) THE PROCEDURE WHEREBY DEPENDENTS WHO ENTER THE OVERSEAS AREA WITHOUT APPROVAL, OR WHO ARE ACQUIRED BY MARRIAGE TO THE MEMBER AT THE OVERSEA DUTY STATION, MAY BE RECOGNIZED BY THE APPROPRIATE OVERSEA COMMANDER AS "AUTHORIZED" OR "COMMAND SPONSORED" DEPENDENTS. THE REGULATION PROVIDES THAT ITS PROVISIONS WILL BE APPLIED IN RESTRICTED AREAS AT THE DISCRETION OF THE OVERSEA COMMAND. SUBPARAGRAPH (6) OF PARAGRAPH 5.1 PROVIDES THAT UPON A PERMANENT CHANGE OF STATION DEPENDENTS RECOGNIZED AS "AUTHORIZED" OR "COMMAND SPONSORED" ARE ENTITLED TO TRANSPORTATION AT GOVERNMENT EXPENSE TO THE MEMBER'S NEXT PERMANENT DUTY STATION, BUT THAT THE RETURN TRANSPORTATION OF DEPENDENTS WHO ARE NOT RECOGNIZED AS "AUTHORIZED" OR "COMMAND SPONSORED" IS THE FINANCIAL RESPONSIBILITY OF THE MEMBER OR HIS DEPENDENTS. IT PROVIDES FURTHER THAT, WHEN DEEMED IN THE BEST INTEREST OF THE SERVICE, OVERSEAS COMMANDERS MAY PERMIT THE DEPENDENTS TO RETURN TO CONTINENTAL UNITED STATES ON GOVERNMENT TRANSPORTATION ON A SPACE AVAILABLE BASIS, PROVIDED UNUSED SPACE IS ACTUALLY AVAILABLE AFTER ALL AUTHORIZED SPACE REQUIRED AND OTHER SPACE-AVAILABLE PERSONNEL HAVE BEEN ACCOMMODATED. HOWEVER, AS INDICATED ABOVE, IT WAS DETERMINED THAT SPACE WAS NOT AVAILABLE FOR YOUR DEPENDENTS ON THAT BASIS. IN VIEW OF THE REPORT FROM YOUR OVERSEAS COMMANDER THAT YOUR DEPENDENTS WERE NOT RECOGNIZED AS "COMMAND SPONSORED," IT APPEARS THAT UNDER THE PROVISIONS OF PARAGRAPH 5.1 (3) AND (6) THE TRANSPORTATION OF YOUR DEPENDENTS BY COMMERCIAL AIR FROM SEOUL, KOREA, TO SAN FRANCISCO, CALIFORNIA, WAS YOUR FINANCIAL RESPONSIBILITY.

IT LONG HAS BEEN RECOGNIZED THAT THE RIGHT TO TRANSPORTATION OF DEPENDENTS IS NOT AN ABSOLUTE ONE BUT MAY BE ADMINISTRATIVELY SUSPENDED OR DENIED FOR MILITARY REASONS, AND THAT WHERE TRANSPORTATION IS ADMINISTRATIVELY REFUSED BY REASON OF MILITARY NECESSITY OR EXPEDIENCY A MEMBER MAY NOT TRANSPORT HIS DEPENDENTS AT PERSONAL EXPENSE AND BE PAID THE COST UNDER A STATUTE AUTHORIZING REIMBURSEMENT FOR TRAVEL OF DEPENDENTS UPON A PERMANENT CHANGE OF STATION. CULP V. UNITED STATES, 76 CT.CL. 507; 35 COMP. GEN. 61. SINCE IT HAS BEEN ADMINISTRATIVELY DETERMINED THAT YOUR DEPENDENTS WERE NOT "AUTHORIZED" OR "COMMAND SPONSORED" SO AS TO BE ELIGIBLE FOR TRANSPORTATION AT GOVERNMENT EXPENSE, AND INASMUCH AS YOUR DEPENDENTS WERE NOT FURNISHED SPACE AVAILABLE GOVERNMENT TRANSPORTATION TO THE UNITED STATES, THERE IS NO AUTHORITY FOR THE REIMBURSEMENT OF THE COST OF YOUR DEPENDENTS' TRAVEL BY COMMERCIAL AIR. ACCORDINGLY THE SETTLEMENT OF FEBRUARY 4, 1964, IS SUSTAINED.