B-153663, MAY 26, 1964

B-153663, MAY 26, 1964

TO SERGEANT FIRST CLASS TROY G. SMALLWOOD:

FURTHER REFERENCE IS MADE TO YOUR RECENT LETTER, RECEIVED HERE ON MARCH 3, 1964, RETURNING SETTLEMENT CHECK NO. 5,351,708, DATED FEBRUARY 10, 1964, DRAWN TO YOUR ORDER BY J. L. CLANCY, SYMBOL NO. 5053, FOR $37.62, AND COPY OF VOUCHER NO. 678653 ON WHICH IT WAS ISSUED. IN EFFECT YOU REQUEST RECONSIDERATION OF SETTLEMENT DATED JANUARY 28, 1964, WHICH ALLOWED YOU THE AMOUNT COVERED BY THE ABOVE CHECK ON YOUR CLAIM FOR REIMBURSEMENT OF THE SUM OF $174.58, REPRESENTING THE TOTAL EXPENSE INCURRED BY YOU IN CONNECTION WITH THE TRANSPORTATION OF YOUR HOUSE TRAILER BY A COMMERCIAL TRANSPORTER FROM AUSTIN, TEXAS, TO LAWTON, OKLAHOMA, ON APRIL 22 AND 23, 1963.

BY ORDER DATED MARCH 22, 1963, YOU WERE TRANSFERRED FROM SANDIA BASE, NEW MEXICO, TO FORT SILL, OKLAHOMA, AS A REASSIGNMENT AND PERMANENT CHANGE OF DUTY STATION, WITH REPORTING DATE FIXED AS APRIL 6, 1963. ON THE BASIS OF THOSE ORDERS YOU ENGAGED A COMMERCIAL TRANSPORTER TO TRANSPORT YOUR HOUSE TRAILER FROM AUSTIN, TEXAS, TO LAWTON, OKLAHOMA, AND YOU PAID THEM THE AGGREGATE AMOUNT OF $174.58 (342 MILES AT 46 CENTS PER MILE ($057.32) PLUS COST OF TRAILER TRANSPORTATION PERMITS ($17.26) ). UNDER THE AUTHORITY OF PARAGRAPH 10004 (GOVERNMENT-PROCURED TRANSPORTATION, AND 10005 (AUTHORIZED COMMERCIAL TRANSPORTATION OF HOUSE TAILERS), OUR CLAIMS DIVISION SETTLEMENT OF JANUARY 28, 1964, ALLOWED YOU THE AMOUNT OF $37.62, REPRESENTING 342 MILES AT 11 CENTS PER MILE. ALSO YOU WERE ADVISED IN THAT SETTLEMENT THAT PAYMENT OF AN AMOUNT IN EXCESS OF 11 CENTS PER MILE WAS NOT AUTHORIZED SINCE YOU PERSONALLY CONTRACTED FOR THE COMMERCIAL TRANSPORTATION OF YOUR HOUSE TRAILER WITHOUT PROPER AUTHORIZATION.

IN YOUR LETTER YOU SAY, AMONG OTHER THINGS, THAT YOU "CONTACTED THE FORT SILL, TRANSPORTATION OFFICE" BECAUSE YOU DID NOT KNOW OF ANY TRANSPORTATION OFFICE IN AUSTIN, WHERE YOUR TRAILER WAS LOCATED, AND THAT UPON THEIR ADVICE YOU CONTRACTED FOR THE MOVEMENT OF YOUR HOUSE TRAILER FROM AUSTIN TO LAWTON BY AN APPROVED COMMERCIAL TRANSPORTER.

THE STATUTORY AUTHORITY FOR THE TRANSPORTATION OF A HOUSE TRAILER OF A MEMBER OF THE UNIFORMED SERVICES AT GOVERNMENT EXPENSE IS SET FORTH IN 37 U.S.C. 409 (SUPP. IV), WHICH, IN PERTINENT PART, IS AS FOLLOWS:

"UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED AND IN PLACE OF THE TRANSPORTATION OF BAGGAGE AND HOUSEHOLD EFFECTS OR PAYMENT OF A DISLOCATION ALLOWANCE, A MEMBER, OR IN THE CASE OF HIS DEATH HIS DEPENDENT, WHO WOULD OTHERWISE BE ENTITLED TO TRANSPORTATION OF BAGGAGE AND HOUSEHOLD GOODS UNDER SECTION 406 OF THIS TITLE, MAY TRANSPORT A HOUSE TRAILER OR MOBILE DWELLING WITHIN THE UNITED STATES, * * *.'

PARAGRAPHS 10005 OF THE JOINT TRAVEL REGULATIONS, PROMULGATED UNDER THE AUTHORITY OF THE ABOVE STATUTORY PROVISION, PROVIDES AS FOLLOWS:

"IN UNUSUAL CASES, SUCH AS WHEN A TRANSPORTATION OFFICER IS NOT AVAILABLE, A MEMBER WHO IS ENTITLED TO TRAILER ALLOWANCES UNDER THE CONDITIONS OF PAR. 10002 MAY BE PERMITTED TO ARRANGE OR CONTRACT PERSONALLY WITH A COMMERCIAL TRANSPORTER (SEE PAR. 1001-3) FOR THE TRANSPORTATION OF HIS HOUSE TRAILER. REIMBURSEMENT FOR THE COSTS ACTUALLY INCURRED OR THE MAXIMUM AMOUNT WHICH WOULD HAVE BEEN PAYABLE UNDER PAR. 10004, WHICHEVER IS THE LESSER, IS AUTHORIZED. THE SERVICE CONCERNED WILL ISSUE ADMINISTRATIVE REGULATIONS INDICATING WHEN A MEMBER WILL BE PERMITTED TO ARRANGE OR CONTRACT PERSONALLY WITH A COMMERCIAL TRANSPORTER FOR THE TRANSPORTATION OF HIS HOUSE TRAILER AND PROCEDURES GOVERNING ADVANCE PAYMENT AUTHORIZED IN PAR. 1100-5.'

THE ADMINISTRATIVE REGULATIONS WHICH WERE ISSUED BY THE ARMY IN CONSONANCE WITH PARAGRAPH 10005 ARE EMBODIED IN DA MESSAGE 306009, CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, DATED JUNE 15, 1962. THE SECOND AND THIRD PARAGRAPHS THEREOF ARE AS FOLLOWS:

"2. MEMBERS CONTEMPLATING MOVEMENT OF HOUSE TRAILERS BY COMMERCIAL TRANSPORTATION WILL BE INFORMED THAT FOLLOWING RECEIPT OF AR 55-28 COMMERCIAL TRANSPORTATION OF HOUSE TRAILERS WILL BE PROCURED BY TRANSPORTATION OFFICERS; EXCEPT UPON DISCHARGE, RESIGNATION, OR SEPARATION FROM ACTIVE DUTY, WHEN MEMBER WILL NOT THEREAFTER BE IN A PAY STATUS UNLESS DETERMINED IN ADVANCE THAT SUCH SHIPMENT WILL NOT RESULT IN EXCESS COSTS TO MEMBER. GOVERNMENT PROCURED TRANSPORTATION WILL NOT BE CONSIDERED TO RESULT IN EXCESS COSTS TO THE MEMBER WHEN THE COST CHARGEABLE TO THE MEMBER LISTED IN PARAGRAPH 10004-2, ITEM 1, 2, AND 3, JOINT TRAVEL REGULATIONS, AND ALL CHARGES IN EXCESS OF 30 CENTS PER MILE ARE COLLECTED FROM THE MEMBER IN ADVANCE OF SHIPMENT. COLLECTION WILL BE MADE ON DD FORM 1131. COPY OF THE DD FORM 1131 WILL BE FURNISHED THE MEMBER. COPY WILL ALSO BE ATTACHED TO COPY OF DD FORM 25-92R WHICH IS FORWARDED TO FINANCE CENTER, U.S. ARMY, UNDER PARAGRAPH 3B (3), AR 55-28.

"3. A MEMBER ON ACTIVE DUTY WILL NOT PERSONALLY CONTRACT FOR COMMERCIAL TRANSPORTATION OF HIS HOUSE TRAILER (SEE PARAGRAPH 10005 JOINT TRAVEL REGULATIONS) UNLESS SPECIFICALLY AUTHORIZED BY WRITTEN STATEMENT OF HIS COMMANDING OFFICER DISAPPROVING HIS APPLICATION FOR SHIPMENT BY THE TRANSPORTATION OFFICER OR DUE TO EMERGENCY CONDITIONS WHICH PRECLUDE SHIPMENT BY A TRANSPORTATION OFFICER. A WRITTEN STATEMENT OR DISAPPROVAL OF AN APPLICATION IS NOT REQUIRED UPON DISCHARGE, RESIGNATION OR SEPARATION FROM THE SERVICE.'

IT WILL BE OBSERVED THAT THE REGULATIONS OF THE ARMY PROMULGATED UNDER AUTHORITY OF LAW REQUIRE THE TRANSPORTATION OF A MEMBER'S HOUSE TRAILER UPON CHANGE OF HIS PERMANENT DUTY STATION, EXCEPT IN CASES OF DISCHARGE, RESIGNATION, OR SEPARATION FROM THE SERVICE, TO BE PROCURED BY THE TRANSPORTATION OFFICER. ALSO, UNDER THOSE REGULATIONS, A MEMBER IS PERMITTED TO PERSONALLY CONTRACT FOR COMMERCIAL TRANSPORTATION OF HIS HOUSE TRAILER ONLY WHEN HIS COMMANDING OFFICER IN WRITING HAS SPECIFICALLY AUTHORIZED SUCH TRANSPORTATION AFTER DISAPPROVAL OF THE MEMBER'S APPLICATION FOR SHIPMENT OF THE HOUSE TRAILER BY THE TRANSPORTATION OFFICER OR DUE TO EMERGENCY CONDITIONS WHICH PRECLUDE THE SHIPMENT BY A TRANSPORTATION OFFICER. AS STATED ABOVE, PARAGRAPH 10006 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT A MEMBER WHO IS ENTITLED TO A TRAILER ALLOWANCE BUT WHO WITHOUT AUTHORIZATION TRANSPORTS HIS HOUSE TRAILER BY MEANS OTHER THAN THOSE SPECIFIED IN PARAGRAPHS 10004 AND 10005 MAY BE REIMBURSED ON THE BASIS OF 11 CENTS PER MILE FOR THE HIGHWAY DISTANCE COMPUTED IN ACCORDANCE WITH PARAGRAPH 10007 BETWEEN THE POINTS AUTHORIZED IN CHAPTER 10, JOINT TRAVEL REGULATIONS.

THERE IS NOTHING IN THE RECORD TO SHOW THAT AT THE TIME THE ORDERS WERE ISSUED FOR YOUR REASSIGNMENT TO FORT SILL YOU COMPLIED WITH THE REGULATIONS (DA MESSAGE NO. 306009 AND ARMY REGULATIONS NO. 55-28) BY THE SUBMISSION OF AN APPLICATION (DA FORM 2592-R "APPLICATION FOR SHIPMENT OF HOUSE TRAILER") FOR THE MOVEMENT OF YOUR HOUSE TRAILER FROM AUSTIN TO LAWTON. IF AN ACCEPTABLE APPLICATION HAD BEEN MADE AND PROCESSED THROUGH THE APPROPRIATE TRANSPORTATION OFFICE, THAT IS, THE ONE IN SANDIA BASE, PRESUMABLY YOUR HOUSE TRAILER WOULD HAVE BEEN MOVED BY GOVERNMENT-PROCURED TRANSPORTATION WITHOUT ANY FURTHER ACTION ON YOUR PART. HOWEVER, IF SUCH APPLICATION HAD BEEN DISAPPROVED BY THE TRANSPORTATION OFFICER AT SANDIA BASE OR DUE TO EMERGENCY CONDITIONS WHICH PRECLUDED HIS SHIPMENT OF THE HOUSE TRAILER, YOU COULD HAVE ARRANGED FOR THE SHIPMENT BY A COMMERCIAL TRANSPORTER UPON WRITTEN AUTHORIZATION OF YOUR COMMANDING OFFICER AND THUS BECOME ENTITLED TO REIMBURSEMENT OF THE EXPENSES INCURRED AT THE RATE OF 36 CENTS PER MILE, AS PRESCRIBED BY THE REGULATIONS.

SINCE THE RECORD DOES NOT SHOW THAT YOU MET THE CONDITIONS SPECIFIED IN THE REGULATIONS FOR PAYMENT AT THE 36-CENT RATE AND INASMUCH AS THE REGULATIONS PROVIDE FOR REIMBURSEMENT AT THE RATE OF 11 CENTS PER MILE IN CASES WHERE A MEMBER CONTRACTS WITH A COMMERCIAL TRANSPORTER WITHOUT PRIOR AUTHORIZATION, THERE IS NO LEGAL AUTHORITY ON THE PRESENT RECORD FOR PAYMENT OF ANY ADDITIONAL AMOUNT ON YOUR CLAIM. ACCORDINGLY THE SETTLEMENT OF JANUARY 28, 1964, IS CORRECT AND IS SUSTAINED. FURTHER CONSIDERATION, HOWEVER, WILL BE GIVEN TO YOUR CLAIM IF YOU FURNISH A STATEMENT FROM THE TRANSPORTATION OFFICE AT FORT SILL TO THE EFFECT, AS YOU INDICATE, THAT YOU WERE DIRECTED TO MAKE PERSONAL ARRANGEMENTS WITH A COMMERCIAL TRANSPORTER FOR THE MOVEMENT OF YOUR HOUSE TRAILER FROM AUSTIN TO LAWTON.

CHECK NO. 5,351,708 AND THE COPY OF THE SETTLEMENT OF JANUARY 28, 1964, ARE RETURNED.