B-155030, SEP. 8, 1964

B-155030: Sep 8, 1964

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JR.: REFERENCE IS MADE TO LETTER DATED AUGUST 18. YOU WERE RELIEVED FROM YOUR OVERSEAS ASSIGNMENT AND ASSIGNED TO FORT HAMILTON. YOU WERE ORDERED TO REPORT TO BREMERHAVEN. THE DEPARTMENT OF THE ARMY DISALLOWED YOUR CLAIM FOR THE SEA PORTION OF YOUR WIFE'S TRAVEL IN ACCORDANCE WITH THE PROVISIONS OF PARAGRAPH 2150 OF THE JOINT TRAVEL REGULATIONS SINCE SUCH TRAVEL WAS PERFORMED ON AIRCRAFT OF FOREIGN REGISTRY. THAT YOU WERE TOLD THAT SHE WOULD BE ELIGIBLE FOR GOVERNMENT TRANSPORTATION BACK TO THE STATES. AT WHICH TIME YOUR DEPENDENTS WERE RESIDING AT ASCHAFFENBURG. THAT SHORTLY BEFORE YOU WERE TO DEPART FOR THE UNITED STATES YOU WERE NOTIFIED THAT YOUR DEPENDENTS WERE NOT AUTHORIZED TO TRAVEL AT GOVERNMENT EXPENSE BUT COULD RETURN ON A SPACE AVAILABLE BASIS.

B-155030, SEP. 8, 1964

TO MR. JOHN C. RHINE, JR.:

REFERENCE IS MADE TO LETTER DATED AUGUST 18, 1964, WRITTEN IN YOUR BEHALF BY YOUR ATTORNEY, MR. C. THOMAS COFIELD, CONCERNING YOUR CLAIM FOR REIMBURSEMENT FOR TRAVEL PERFORMED BY YOUR DEPENDENTS BY COMMERCIAL AIR FRANCE FROM FRANKFURT, GERMANY, TO NEW YORK, NEW YORK, ON MAY 10, 1963, INCIDENT TO YOUR RELIEF FROM ACTIVE DUTY AS A FIRST LIEUTENANT IN THE ARMY. THERE HAS ALSO BEEN RECEIVED A LETTER DATED AUGUST 20, 1964, FROM THE HONORABLE STROM THURMOND, UNITED STATES SENATE, EXPRESSING HIS INTEREST IN THE MATTER.

IT APPEARS FROM THE RECORD BEFORE US THAT BY SPECIAL ORDERS DATED APRIL 1, 1963, YOU WERE RELIEVED FROM YOUR OVERSEAS ASSIGNMENT AND ASSIGNED TO FORT HAMILTON, NEW YORK, FOR PURPOSES OF PROCESSING FOR SEPARATION. YOU WERE ORDERED TO REPORT TO BREMERHAVEN, GERMANY, FOR SURFACE TRANSPORTATION TO THE UNITED STATES ON APRIL 30, 1963. IT FURTHER APPEARS THAT ON MAY 10, 1963 (D.O. VOUCHER NO. 657879, SEPTEMBER 1963 ACCOUNTS OF J. L. CLANCY SHOW YOUR DEPENDENTS TRAVELED MAY 10, 1963, WHEREAS A LETTER IN THE FILE INDICATES APRIL 10, 1963), YOUR WIFE AND CHILD TRAVELED FROM YOUR OVERSEAS STATION TO NEW YORK, NEW YORK, BY COMMERCIAL AIR FRANCE, AND FROM THERE TO COLUMBIA, SOUTH CAROLINA, YOUR HOME OF RECORD. THE DEPARTMENT OF THE ARMY DISALLOWED YOUR CLAIM FOR THE SEA PORTION OF YOUR WIFE'S TRAVEL IN ACCORDANCE WITH THE PROVISIONS OF PARAGRAPH 2150 OF THE JOINT TRAVEL REGULATIONS SINCE SUCH TRAVEL WAS PERFORMED ON AIRCRAFT OF FOREIGN REGISTRY. YOU WER ALLOWED THE LAND PORTION OF YOUR TRAVEL FROM FORT HAMILTON, NEW YORK, TO COLUMBIA, SOUTH CAROLINA.

YOU STATE THAT IN FEBRUARY 1962, YOU RETURNED TO THE UNITED STATES FROM YOUR OVERSEAS STATION IN EUROPE AND MARRIED YOUR WIFE; THAT SHE RETURNED TO YOUR OVERSEAS STATION WITH YOU AT YOUR PERSONAL EXPENSE; AND THAT YOU WERE TOLD THAT SHE WOULD BE ELIGIBLE FOR GOVERNMENT TRANSPORTATION BACK TO THE STATES. BOTH YOU AND MR. COFIELD REFER TO THE PERSONNEL ACTION TAKEN BY YOUR OVERSEAS COMMAND ON JANUARY 24, 1963, TO THE EFFECT THAT YOUR DEPENDENTS ACQUIRED "AUTHORIZED" STATUS EFFECTIVE JUNE 27, 1962, AT WHICH TIME YOUR DEPENDENTS WERE RESIDING AT ASCHAFFENBURG, GERMANY. YOU SAY, HOWEVER, THAT SHORTLY BEFORE YOU WERE TO DEPART FOR THE UNITED STATES YOU WERE NOTIFIED THAT YOUR DEPENDENTS WERE NOT AUTHORIZED TO TRAVEL AT GOVERNMENT EXPENSE BUT COULD RETURN ON A SPACE AVAILABLE BASIS. YOU SAY THAT NO SPACE WAS AVAILABLE AT THE TIME YOU DEPARTED SO YOU PURCHASED A TICKET AT THE AMERICAN EXPRESS OFFICE ON THE POST IN ORDER THAT YOUR DEPENDENTS COULD RETURN BY COMMERCIAL AIR. YOU CONTEND YOU WERE NOT INFORMED OF THE DIFFERENCE BETWEEN FLYING IN A DOMESTIC OR FOREIGN REGISTERED AIRLINE AND YOU WERE NOT AWARE OF THE PROHIBITION IN THE JOINT TRAVEL REGULATIONS.

THE OFFICE OF THE CHIEF OF TRANSPORTATION, DEPARTMENT OF THE ARMY, REPORTS THAT AIR FRANCE LINES IS A FOREIGN FLAG CARRIER AND THAT TWO AMERICAN FLAG CARRIERS, PAN AMERICAN AIRWAYS SYSTEM AND TRANS-WORLD AIRLINES, PROVIDE DAILY SERVICE FROM FRANKFURT, GERMANY, TO NEW YORK, NEW YORK.

SECTION 901 OF THE MERCHANT MARINE ACT OF 1936, 49 STAT. 2015, AS AMENDED, 46 U.S.C. 1241 (A), PROVIDES AS FOLLOWS:

"ANY OFFICER OR EMPLOYEE OF THE UNITED STATES TRAVELING ON OFFICIAL BUSINESS OVERSEAS OR TO OR FROM ANY OF THE POSSESSIONS OF THE UNITED STATES SHALL TRAVEL AND TRANSPORT HIS PERSONAL EFFECTS ON SHIPS REGISTERED UNDER THE LAWS OF THE UNITED STATES WHERE SUCH SHIPS ARE AVAILABLE UNLESS THE NECESSITY OF HIS MISSION REQUIRES THE USE OF A SHIP UNDER A FOREIGN FLAG: PROVIDED, THAT THE COMPTROLLER GENERAL OF THE UNITED STATES SHALL NOT CREDIT ANY ALLOWANCE FOR TRAVEL OR SHIPPING EXPENSES INCURRED ON A FOREIGN SHIP IN THE ABSENCE OF SATISFACTORY PROOF OF THE NECESSITY REFOR.'

SINCE THE RIGHT TO TRANSPORTATION DOES NOT ACCRUE TO THE DEPENDENTS AS SUCH BUT TO THE OFFICER CONCERNED, THE STATUTE LIMITING TRAVEL ON VESSEL OF FOREIGN REGISTRY LONG HAS BEEN APPLIED WITH EQUAL FORCE TO TRAVEL PERFORMED BY DEPENDENTS. 9 COMP. GEN. 210; 30 ID. 407.

THE TRANSPORTATION OF DEPENDENTS OF MEMBERS OF THE UNIFORMED SERVICES IS GOVERNED BY THE JOINT TRAVEL REGULATIONS PROMULGATED PURSUANT TO THE PERTINENT STATUTE, 37 U.S.C. 406. IN CONSONANCE WITH THE PURPOSE OF THE ABOVE-QUOTED STATUTE, PARAGRAPH 2150-2 OF THESE REGULATIONS PROVIDES THAT WHERE THE AUTHORITY ISSUING TRAVEL ORDERS DETERMINES THAT THE USE OF VESSELS OR AIRCRAFT REGISTERED UNDER THE LAWS OF THE UNITED STATES WOULD SERIOUSLY INTERFERE WITH OR PREVENT THE PERFORMANCE OF OFFICIAL BUSINESS, HE MAY AUTHORIZE THE USE OF VESSELS OR AIRCRAFT OF FOREIGN REGISTRY. STATEMENT OF THIS DETERMINATION MUST BE CONTAINED IN OR APPENDED TO THE TRAVEL OR TRANSPORTATION ORDERS. NO SUCH DETERMINATION WAS MADE IN YOUR CASE. PARAGRAPH 7000-7 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT MEMBERS OF THE UNIFORMED SERVICES ARE ENTITLED TO TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE UPON A PERMANENT CHANGE OF STATION (WHICH INCLUDES THE CHANGE FROM LAST DUTY STATION TO HOME UPON RELIEF FROM ACTIVE DUTY), EXCEPT "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.'

IN THIS REGARD, IT MAY BE NOTED THAT THE REQUIREMENT FOR TRAVEL BY MEMBERS OF THE UNIFORMED SERVICES ON VESSELS OR AIRCRAFT OF AMERICAN REGISTRY WAS ENDORSED BY THE CONGRESS IN SENATE CONCURRENT RESOLUTION 53, DATED OCTOBER 1962. THIS RESOLUTION PROVIDES THAT WHEN TRAVEL ON OFFICIAL BUSINESS IS TO BE PERFORMED ON CIVIL AIRCRAFT BY LEGISLATIVE AND GOVERNMENT OFFICERS AND EMPLOYEES, THAT SAID TRAVEL BE PERFORMED BY THEM OR UNITED STATES FLAG AIR CARRIERS, EXCEPT WHERE TRAVEL ON OTHER AIRCRAFT (A) IS ESSENTIAL TO THE OFFICIAL BUSINESS CONCERNED, OR (B) IS NECESSARY TO AVOID UNREASONABLE DELAY, EXPENSE, OR INCONVENIENCE. THUS, THE DEPARTMENT OF THE ARMY PROPERLY DENIED YOUR CLAIM FOR THE COST OF AIR TRANSPORTATION OF YOUR DEPENDENTS FROM GERMANY TO NEW YORK.

MR. COFIELD EXPRESSES THE VIEW THAT YOU ARE BEING PENALIZED BY REASON OF A TECHNICALITY BECAUSE YOU WERE NOT AWARE OF THE PROHIBITION IN THE JOINT TRAVEL REGULATIONS, AND HE ASKS, IN THE LIGHT OF THE CIRCUMSTANCES IN YOUR CASE AND IN THE INTEREST OF JUSTICE AND EQUITY, THAT THE MATTER BE CONSIDERED BY US UNDER THE MERITORIOUS CLAIMS ACT, 31 U.S.C. 236, WHICH PROVIDES AS FOLLOWS:

"WHEN THERE IS FILED IN THE GENERAL ACCOUNTING OFFICE A CLAIM OR DEMAND AGAINST THE UNITED STATES THAT MAY NOT LAWFULLY BE ADJUSTED BY THE USE OF AN APPROPRIATION THERETOFORE MADE, BUT WHICH CLAIM OR DEMAND IN THE JUDGMENT OF THE COMPTROLLER GENERAL OF THE UNITED STATES CONTAINS SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS TO BE DESERVING OF THE CONSIDERATION OF THE CONGRESS, HE SHALL SUBMIT THE SAME TO THE CONGRESS BY A SPECIAL REPORT CONTAINING THE MATERIAL FACTS AND HIS RECOMMENDATION THEREON.'

THE ABOVE ACT CONTEMPLATES REPORTING TO THE CONGRESS FOR ITS CONSIDERATION ONLY THOSE CLAIMS INVOLVING COSTS FOR WHICH NO APPROPRIATION IS AVAILABLE AND THERE IS CONSIDERED TO BE "SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS TO BE DESERVING OF THE CONSIDERATION OF THE CONGRESS.' APPROPRIATED MONEYS ARE AVAILABLE FOR THE TRANSPORTATION OF DEPENDENTS OF MEMBERS OF THE ARMED FORCES IN PROPER CASES. THE ABOVE- MENTIONED LAW AND REGULATIONS, HOWEVER, CLEARLY PRECLUDE PAYMENT FOR ANY PORTION OF SUCH TRAVEL PERFORMED BY A FOREIGN REGISTERED AIRCRAFT WHEN UNITED STATES REGISTERED CARRIERS ARE AVAILABLE. HENCE, THERE IS NO LEGAL LIABILITY ON THE PART OF THE GOVERNMENT FOR THE PAYMENT OF YOUR CLAIM. MOREOVER, THE JOINT TRAVEL REGULATIONS ARE STATUTORY REGULATIONS AND MILITARY PERSONNEL ARE CHARGEABLE WITH KNOWLEDGE THEREOF. WITH REGARD TO THE POSSIBLE EQUITY IN YOUR CASE, THE FACT THAT CERTAIN ARMY PERSONNEL MAY HAVE MISINFORMED YOU OF YOUR RIGHT TO DEPENDENT TRAVEL FROM YOUR OVERSEAS STATION AFFORDS NO BASIS FOR A CONCLUSION BY THIS OFFICE THAT YOUR CLAIM POSSESSES THE ELEMENTS OF EQUITY CONTEMPLATED BY THE STATUTE. IT IS WELL ESTABLISHED THAT, IN THE ABSENCE OF A STATUTE SO PROVIDING, THE GOVERNMENT IS NOT LIABLE FOR THE NEGLIGENT ACTS OF ITS OFFICERS OR EMPLOYEES EVEN THOUGH COMMITTED IN THE PERFORMANCE OF THEIR OFFICIAL DUTIES. 19 COMP. GEN. 503; GERMAN BANK V. UNITED STATES, 148 U.S. 573. WHILE IT IS UNFORTUNATE THAT SPACE WAS NOT AVAILABLE ON GOVERNMENT TRANSPORTATION FOR YOUR DEPENDENTS, AS YOU INDICATE, AT THE TIME YOU DEPARTED FOR THE UNITED STATES, OTHER MEMBERS OF THE ARMED FORCES HAVE, FROM TIME TO TIME, EXPERIENCED SIMILAR DELAYS IN RETURNING THEIR DEPENDENTS AND WHERE FOREIGN FLAG CARRIERS HAVE BEEN USED THEY HAVE BEEN REQUIRED TO PAY THE COSTS OF THE TRAVEL. A FAVORABLE RECOMMENDATION ON YOUR CLAIM WOULD OBVIOUSLY BE INEQUITABLE FROM THE STANDPOINT OF SUCH MEMBERS.

IN SUCH CIRCUMSTANCES AND SINCE THE JOINT TRAVEL REGULATIONS EXPRESSLY PROHIBIT REIMBURSEMENT FOR THE COST OF TRAVEL BY FOREIGN FLAG CARRIERS WHERE TRANSPORTATION BY AMERICAN REGISTERED CARRIERS IS AVAILABLE IN CASES SUCH AS YOURS, IT IS OUR VIEW THAT YOUR CLAIM DOES NOT CONTAIN THE ELEMENTS OF LEGAL LIABILITY OR EQUITY CONTEMPLATED BY THE STATUTE SO AS TO WARRANT REPORTING THE MATTER FOR CONSIDERATION TO THE CONGRESS.