B-156558, JUN. 25, 1965

B-156558: Jun 25, 1965

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026 304: FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 7. TO ASSUME DUTIES AS ASSISTANT UNITED STATES ARMY ATTACHE AND WERE ACCOMPANIED BY YOUR WIFE AND YOUR DAUGHTER. WHOSE DATE OF BIRTH IS SHOWN AS MARCH 9. WAS ACCEPTED FOR ATTENDANCE COMMENCING IN SEPTEMBER 1962. SPECIAL ORDERS NO. 129 WERE ISSUED ON AUGUST 14. B-17 WAS ISSUED DIRECTING YOUR RETURN TO THE UNITED STATES FOR DUTY AT FORT DIX. CERTIFYING THAT ADEQUATE COLLEGE FACILITIES WERE NOT AVAILABLE IN TURKEY. WAS REFERRED TO OUR CLAIMS DIVISION FOR CONSIDERATION. THAT CLAIM WAS DISALLOWED FOR THE REASON THAT THE PROVISIONS OF PARAGRAPH 7103-2.5 OF VIEW OF THE SHOWING IN THE RECORD THAT IT WAS NOT THE INTENT OF THE ORDER ISSUING AGENT TO AUTHORIZE ADVANCE TRANSPORATION OF YOUR DEPENDENT DAUGHTER AT GOVENMENT EXPENSE AND THAT EDUCATIONAL FACILITIES IN ISTANBUL REPORTEDLY HAVE NOT CHANGED FROM THE TIME HER OVERSEAS TRAVEL BEGAN.

B-156558, JUN. 25, 1965

TO LIEUTENANT COLONEL EDWARD R. CLEARY, 026 304:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 7, 1965, REQUESTING A REVIEW OF OFFICE SETTLEMENT DATED FEBRUARY 24, 1965, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT OF THE SUM OF $144.80, REPRESENTING COMMERCIAL TRANSPORTATION COST INCURRED BY YOUR DEPENDENT DAUGHTER WHILE TRAVELING FROM ISTANBUL, TURKEY, TO FRANKFURT, GERMANY, ON AUGUST 20, 1962, INCIDENT TO HER RETURN TO THE UNITED STATES TO ATTEND COLLEGE.

IT APPEARS FROM THE COPIES OF THE DOCUMENTS AND PAPERS SUBMITTED BY YOU IN SUPPORT OF YOUR CLAIM THAT ON OR ABOUT JUNE 14, 1960, YOU ARRIVED IN ISTANBUL, TURKEY, TO ASSUME DUTIES AS ASSISTANT UNITED STATES ARMY ATTACHE AND WERE ACCOMPANIED BY YOUR WIFE AND YOUR DAUGHTER, MARY SETON CLEARY, WHOSE DATE OF BIRTH IS SHOWN AS MARCH 9, 1945. YOU SAY THAT YOU DAUGHTER ATTENDED THE AMERICAN GIRL'S COLLEGE IN ISTANBUL AND UPON THE SUCCESSFUL COMPLETION OF AN EQUIVALENT OF A UNITED STATES HIGH SCHOOL COURSE SOMETIME IN 1962 SHE APPLIED TO SAINT MARY COLLEGE IN XAVIER, KANSAS, AND WAS ACCEPTED FOR ATTENDANCE COMMENCING IN SEPTEMBER 1962. IN ORDER TO OBTAIN AUTHORITY FOR HER TRAVEL AT GOVERNMENT EXPENSE TO XAVIER, YOU REQUESTED THE UNITED STATES AIR ATTACHE, ANKARA, TURKEY, TO ISSUE REGULAR TRAVEL ORDERS TO HER. PURSUANT TO THAT REQUEST AND UNDER THE AUTHORITY OF PARAGRAPH 5B (7) OF ARMY REGULATION 59-12, DATED NOVEMBER 5, 1959, SPECIAL ORDERS NO. 129 WERE ISSUED ON AUGUST 14, 1962 AUTHORIZING YOUR DAUGHTER TO PROCEED ON OR ABOUT AUGUST 18, 1962, FROM ISTANBUL TO RHEIN MAIN AIR BASE, GERMANY, AND AUTHORIZING TRAVEL BY MILITARY AND/OR COMMERCIAL CONTRACT AIRCRAFT FROM RHEIN MAIN AIR BASE TO MCGUIRE AIR FORCE BASE, NEW JERSEY, ON A SPACE AVAILABLE BASIS AT NO EXPENSE TO THE GOVERNMENT. IN ACCORDANCE WITH THOSE ORDERS, YOUR DAUGHTER TRAVELED TO FRANKFURT BY AIR COACH (TOURIST CLASS) ON AUGUST 20, 1962, AT A COST OF $144.80. ON APRIL 25, 1963, SPECIAL ORDER NO. B-17 WAS ISSUED DIRECTING YOUR RETURN TO THE UNITED STATES FOR DUTY AT FORT DIX, NEW JERSEY.

YOUR CLAIM TOGETHER WITH THE SUPPORTING PAPERS, INCLUDING A COPY OF A WIRE DATED JULY 25, 1962, FROM THE AMERICAN CONSUL GENERAL, ISTANBUL, CERTIFYING THAT ADEQUATE COLLEGE FACILITIES WERE NOT AVAILABLE IN TURKEY, WAS REFERRED TO OUR CLAIMS DIVISION FOR CONSIDERATION. BY SETTLEMENT OF FEBRUARY 24, 1965, THAT CLAIM WAS DISALLOWED FOR THE REASON THAT THE PROVISIONS OF PARAGRAPH 7103-2.5 OF VIEW OF THE SHOWING IN THE RECORD THAT IT WAS NOT THE INTENT OF THE ORDER ISSUING AGENT TO AUTHORIZE ADVANCE TRANSPORATION OF YOUR DEPENDENT DAUGHTER AT GOVENMENT EXPENSE AND THAT EDUCATIONAL FACILITIES IN ISTANBUL REPORTEDLY HAVE NOT CHANGED FROM THE TIME HER OVERSEAS TRAVEL BEGAN.

YOU CONTEND IN YOUR LETTER OF APRIL 7, 1965, THAT THE UNITED STATES WAS OBLIGATED TO RETURN YOU AND YOUR FAMILY TO THE UNITED STATES INASMUCH AS YOU WERE SENT TO TURKEY ON OFFICIAL DUTY AND THAT THE UNITED STATES HAD FAILED TO DO SO IN THE CASE OF YOUR DEPENDENT DAUGHTER. IN THIS CONNECTION, YOU SAY THAT BECAUSE NO COLLEGES IN TURKEY EXISTED WHERE SHE COULD "MATRICULATE IN THE ENGLISH LANGUAGE" IT WAS MANDATORY THAT SHE RETURN TO THE UNITED STATES TO PURSUE A COLLEGE EDUCATION AND FURTHER THAT HAD SHE REMAINED WITH YOU FOR ANOTHER YEAR SHE WOULD HAVE BEEN ELIGIBLE FOR RETURN TO THE UNITED STATES UNDER THE SAME ORDERS WHICH COVERED YOU AND YOUR WIFE'S RETURN TRAVEL.

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 TRANSPORATION 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 IN PERTINENT PART 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. THIS SUBSECTION MAY BE USED ONLY UNDER UNUSUAL OR EMERGENCY CIRCUMSTANCES, INCLUDING THOSE IN WHICH---

"/3) THE MEMBER IS SERVING ON PERMANENT DUTY AT A STATION OUTSIDE THE UNITED STATES, IN HAWAII OR ALASKA, OR ON SEA DUTY. * * *"

THE 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 7009-3.6 (CHANGE 109, DATED NOVEMBER 1, 1961) OF THE JOINT TRAVEL REGULATIONS (NOW PARAGRAPH 7103.2.5), IN EFFECT AT THE TIME OF YOUR DAUGHTER'S TRAVEL, PROVIDED THAT A MEMBER'S DEPENDENTS MAYBE RETURNED TO THE UNITED STATES AT GOVERNMENT EXPENSE PRIOR TO THE MEMBER'S CHANGE OF STATION IN CASES LIMITED TO THOSE WHICH MEET FOLLOWING CONDITIONS AND CIRCUMSTANCES: LACK OF SUCH EDUCATIONAL FACILITIES OR HOUSING WAS CAUSED BY CONDITIONS BEYOND THE CONTROL OF THE INDIVIDUAL AND AROSE AFTER COMMENCEMENT OF TRAVEL OF DEPENDENTS TO THE MEMBER'S DUTY STATION.' (UNDERSCORING ADDED)

THE ABOVE REGULATION DOES NOT ACTUALLY AUTHORIZE TRAVEL OF DEPENDENTS UNDER THE CONDITIONS INVOLVED, BUT RATHER AUTHORIZES THE ISSUANCE OF PROPER ORDERS FOR SUCH DEPENDENT TRAVEL. UNDER SUCH REGULATION ANY TRAVEL ORDERS FOR THE ADVANCE RETURN OF A MEMBER'S DEPENDENT TO THE UNITED STATES TO ATTEND A SCHOOL OR COLLEGE MUST BE SUPPORTED BY A CERTIFICATE FROM THE MEMBER'S OVERSEAS COMMANDER THAT THE LACK OF APPROPRIATE EDUCATIONAL FACILITIES WAS CAUSED BY CONDITIONS BEYOND THE CONTROL OF THE INDIVIDUAL AND THAT THE SITUATION AROSE AFTER COMMENCEMENT OF DEPENDENT'S TRAVEL TO THE MEMBER'S DUTY STATION. WHILE ORDERS WERE ISSUED FOR YOUR DAUGHTER'S TRAVEL TO THE UNITED STATES, THOSE ORDERS WERE NOT ISSUED UNDER THE AUTHORITY OF PARAGRAPH 7009-3.6 OF THE JOINT TRAVEL REGULATIONS. RATHER, THOSE ORDERS WERE ISSUED UNDER THE AUTHORITY OF PARAGRAPH 5B (7) OF ARMY REGULATION 59-12, MENTIONED ABOVE, WHICH PERMITTED THE TRANSPORTATION OF DEPENDENT UNDERGRADUATE COLLEGE STUDENTS OF UNITED STATES MILITARY PERSONNEL WITHOUT REGARD TO AGE ONLY ON A SPACE AVAILABLE BASIS BETWEEN THE AERIAL PORTS SERVING THEIR SPONSOR'S OVERSEAS DUTY STATION, AND THE ORDERS SPECIFICALLY STATED THAT THE TRAVEL WOULD BE AT NO EXPENSE TO THE UNITED STATES GOVERNMENT. IN A REPORT DATED NOVEMBER 2, 1964, THE ORDER ISSUING AUTHORITY STATED THAT IT WAS NOT THEIR INTENT TO AUTHORIZE ADVANCE TRANSPORTATION OF YOUR DEPENDENT DAUGHTER AT GOVERNMENT EXPENSE, EITHER VIA COMMERCIAL MEANS OR BY REIMBURSEMENT OF THE COST OF TRAVEL PERFORMED. HENCE, IN THE ABSENCE OF A CERTIFICATE BY YOUR OVERSEAS COMMANDER THAT THE LACK OF APPROPRIATE EDUCATIONAL FACILITIES WAS CAUSED BY CONDITIONS BEYOND YOUR CONTROL AND THAT THE SITUATION AROSE AFTER COMMENCEMENT OF YOUR DEPENDENT'S TRAVEL TO YOUR DUTY STATION, THERE IS NO BASIS FOR AUTHORIZING PAYMENT OF YOUR CLAIM. IN THE LIGHT OF THE ABOVE MENTIONED REPORT OF THE ORDER ISSUING AUTHORITY, IT IS DOUBTFUL WHETHER SUCH A CERTIFICATE PROPERLY CAN NOW BE ISSUED.

THE FACT THAT ON APRIL 25, 1963, SUBSEQUENT TO YOUR DAUGHTER'S REASSIGNMENT TO PERMANENT DUTY IN THE UNITED STATES DOES NOT SERVE TO CREATE A RIGHT TO REIMBURSEMENT OF THE COST OF HER TRAVEL FROM ISTANBUL TO FRANKFURT WHILE EN ROUTE TO THE UNITED STATES. PARAGRAPH 7000-9 OF THE JOINT TRAVEL REGULATIONS, IN EFFECT AT THE TIME OF SUCH TRAVEL, PROVIDES THAT MEMBERS ARE ENTITLED TO TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE UPON A PERMANENT CHANGE OF STATION EXCEPT WHEN THE DEPENDENTS DEPART FROM THE OLD STATION PRIOR TO THE ISSUANCE OF ORDERS AND THE VOUCHER IS NOT SUPPORTED BY A CERTIFICATE OF THE COMMANDING OFFICER, OR HIS DESIGNATED REPRESENTATIVE, OF THE HEADQUARTERS ISSUING THE ORDERS THAT THE MEMBER WAS ADVISED PRIOR TO THE ISSUANCE OF PERMANENT CHANGE-OF- STATION ORDERS THAT SUCH ORDERS WOULD BE ISSUED. UNDER THOSE REGULATIONS PAYMENT MAY BE MADE TO A MEMBER ONLY IN SUCH CASES WHERE IT IS SHOWN THAT HE HAD DEFINITE KNOWLEDGE OF AN IMPENDING PERMANENT CHANGE OF STATION AND HAD MOVED HIS DEPENDENTS IN ANTICIPATION OF THE RECEIPT OF THE ORDERS DIRECTING THE CHANGE OF STATION. 34 COMP. GEN. 241. SINCE THE ORDERS OF APRIL 25, 1963, WERE ISSUED OVER 8 MONTHS AFTER YOUR DAUGHTER'S DEPARTURE FROM ISTANBUL, IT CANNOT BE SAID THAT HER TRAVEL TO THE UNITED STATES WAS PERFORMED ON THE BASIS THAT YOU HAD DEFINITE KNOWLEDGE AT THE TIME OF HER DEPARTURE OF AN IMPENDING CHANGE OF PERMANENT DUTY STATION AND WERE ANTICIPATING THE RECEIPT OF ORDERS IN CONJUNCTION THEREWITH. HER TRAVEL TO THE UNITED STATES CLEARLY WAS FOR THE PURPOSE OF PURSUING A COLLEGE EDUCATION. ALSO, NO CERTIFICATE WAS ISSUED BY THE APPROPRIATE AUTHORITY UNDER PARAGRAPH 7000-9 OF THE JOINT TRAVEL REGULATIONS AND IN VIEW OF THE CIRCUMSTANCES INVOLVED IT IS DOUBTFUL WHETHER SUCH A CERTIFICATE PROPERLY CAN BE ISSUED IN YOUR CASE. HENCE, UNDER THE PROVISIONS OF THAT REGULATION THE ORDERS OF APRIL 25, 1963, AFFORD NO LEGAL BASIS FOR PAYMENT OF THE AMOUNT CLAIMED. ACCORDINGLY, THE SETTLEMENT OF FEBRUARY 25, 1965, IS CORRECT AND MUST BE SUSTAINED.