B-156910, JUN. 28, 1965

B-156910: Jun 28, 1965

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RA: FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 19. YOU REQUESTED THAT YOUR DEPENDENTS BE RETURNED TO THE UNITED STATES PRIOR TO YOUR RETURN IN ORDER THAT THEY COULD LIVE IN THE HOUSE AT GLEN BURNIE WHICH WAS NOT OCCUPIED SO AS TO PREVENT ITS FURTHER DAMAGE AND DETERIORATION. NEITHER REQUEST WAS FAVORABLY CONSIDERED BY THE ARMY. YOUR DEPENDENTS WERE AUTHORIZED TRANSPORTATION ON A SPACE AVAILABLE BASIS ONLY FROM THE PORT OF EMBARKATION. THESE ORDERS PROVIDED THAT YOU WERE TO BEAR COSTS OF ALL LAND TRAVEL TO THE PORT OF EMBARKATION AND FROM THE PORT OF DEBARKATION. YOU WERE AUTHORIZED 30 DAYS' LEAVE AND REASSIGNED AS AN EMERGENCY PERMANENT CHANGE OF STATION FROM YOUR OVERSEAS STATION TO FORT MCNAIR.

B-156910, JUN. 28, 1965

TO LEROY W. BEIMEL, RA:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 19, 1965, IN EFFECT REQUESTING RECONSIDERATION OF OUR SETTLEMENT DATED MAY 14, 1965, WHICH DISALLOWED YOUR CLAIM FOR DISLOCATION ALLOWANCE AND REIMBURSEMENT FOR THE TRANSPORTATION OF YOUR DEPENDENTS INCIDENT TO THEIR RETURN FROM YOUR OVERSEAS STATION TO THE UNITED STATES DURING THE PERIOD FEBRUARY 24 TO MARCH 7, 1964. YOUR CLAIM FOR REIMBURSEMENT FOR THE TRANSPORTATION OF YOUR DEPENDENTS APPEARS TO BE FOR THEIR TRAVEL FROM NEW YORK, NEW YORK, TO GLEN BURNIE, MARYLAND.

THE RECORD SHOWS THAT ON APRIL 18, 1963, YOU REQUESTED A REASSIGNMENT FROM YOUR OVERSEAS STATION TO FORT GEORGE G. MEADE, MARYLAND, SO THAT ONE OF YOUR CHILDREN IN NEED OF SPECIAL SCHOOL FACILITIES COULD ATTEND SUCH A SCHOOL IN THE COMMUNITY OF GLEN BURNIE, MARYLAND, WHERE YOU OWNED A HOUSE. THE RECORD ALSO SHOWS THAT ON DECEMBER 3, 1963, YOU REQUESTED THAT YOUR DEPENDENTS BE RETURNED TO THE UNITED STATES PRIOR TO YOUR RETURN IN ORDER THAT THEY COULD LIVE IN THE HOUSE AT GLEN BURNIE WHICH WAS NOT OCCUPIED SO AS TO PREVENT ITS FURTHER DAMAGE AND DETERIORATION, AND BECAUSE OF AN ALLERGY OF TWO OF YOUR CHILDREN WHICH YOU SAID DEVELOPED AFTER THEY ARRIVED IN GERMANY. NEITHER REQUEST WAS FAVORABLY CONSIDERED BY THE ARMY. HOWEVER, BY LETTER ORDERS 10 DATED JANUARY 28, 1964, YOUR DEPENDENTS WERE AUTHORIZED TRANSPORTATION ON A SPACE AVAILABLE BASIS ONLY FROM THE PORT OF EMBARKATION, BREMERHAVEN, GERMANY, TO THE DEBARKATION POINT IN THE CONTINENTAL UNITED STATES. THESE ORDERS PROVIDED THAT YOU WERE TO BEAR COSTS OF ALL LAND TRAVEL TO THE PORT OF EMBARKATION AND FROM THE PORT OF DEBARKATION. BY SPECIAL ORDER 2 DATED JANUARY 5, 1965, AS AMENDED, YOU WERE AUTHORIZED 30 DAYS' LEAVE AND REASSIGNED AS AN EMERGENCY PERMANENT CHANGE OF STATION FROM YOUR OVERSEAS STATION TO FORT MCNAIR, WASHINGTON, D.C.

THE SETTLEMENT OF MAY 14, 1965, DISALLOWED YOUR CLAIM FOR THE REASON THAT YOUR DEPENDENTS PERFORMED THE TRAVEL APPROXIMATELY ONE YEAR PRIOR TO THE RECEIPT OF YOUR PERMANENT CHANGE OF STATION ORDERS AND YOUR CLAIM IS NOT SUPPORTED BY A CERTIFICATE OF THE COMMANDING OFFICER, OR HIS DESIGNATED REPRESENTATIVE, OF THE HEADQUARTERS ISSUING THE ORDERS THAT YOU WERE ADVISED PRIOR THE RECEIPT OF YOUR PERMANENT CHANGE OF STATION ORDERS AND YOUR CLAIM IS NOT SUPPORTED BY A CERTIFICATE OF THE COMMANDING OFFICER, OR HIS DESIGNATED REPRESENTATIVE, OF THE HEADQUARTERS ISSUING THE ORDERS THAT YOU WERE ADVISED PRIOR TO THEIR ISSUANCE THAT SUCH ORDERS WOULD BE ISSUED; AND FOR THE FURTHER REASON THAT YOUR REQUESTS OF APRIL 18, 1963, AND DECEMBER 3, 1963, REFERRED TO ABOVE WERE NOT FAVORABLY CONSIDERED.

SECTION 406 OF TITLE 37, U.S.C. PROVIDES THAT A MEMBER OF A UNIFORMED SERVICE WHO IS ORDERED TO MAKE A CHANGE OF PERMANENT STATION IS ENTITLED TO TRANSPORTATION IN KIND FOR HIS DEPENDENTS, TO REIMBURSEMENT THEREFOR, OR TO A MONETARY ALLOWANCE IN PLACE OF THAT TRANSPORTATION IN KIND. SUBSECTION (E) OF THE SAME SECTION FURTHER PROVIDES 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 TRANSPORATION 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. * * *"

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 7103-2 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT A MEMBER'S DEPENDENTS UPON APPROVAL OF HIS COMMANDING OFFICER, MAY BE RETURNED TO THE UNITED STATES AT GOVERNMENT EXPENSE PRIOR TO THE MEMBER'S CHANGE OF STATION IN CASES WHICH MEET THE FOLLOWING CONDITIONS:

"/1) SERIOUS INJURY OR ILLNESS OF DEPENDENTS REQUIRING SPECIALIZED MEDICAL OR SURGICAL TREATMENT NOT AVAILABLE AT THE MEMBER'S DUTY STATION WHEN SUPPORTED BY A STATEMENT FROM COMPETENT MEDICAL AUTHORITY AS TO THE SERIOUSNESS OF THE CONDITION AND THE ABSENCE OF FACILITIES FOR PROPER MEDICAL OR SURGICAL TREATMENT;

"/3) AN EMOTIONAL CONDITION OF A CONTINUING NATURE ON THE PART OF THE DEPENDENT DETRACTING FROM THE MEMBER'S ABILITY TO ACCOMPLISH HIS MISSION, OR SERIOUS ADVERSE EFFECTS OF WEATHER, CLIMATE, OR LIVING CONDITIONS IN THE OVERSEAS AREA ON THE HEALTH OF DEPENDENTS WHEN SUPPORTED BY A STATEMENT OF COMPETENT MEDICAL AUTHORITY THAT RETENTION OF DEPENDENTS THEREAT UNTIL COMPLETION OF THE MEMBER'S CURRENT TOUR OF DUTY OUTSIDE THE UNITED STATES IS MEDICALLY CONTRAINDICATED;

"/5) LACK OF ADEQUATE EDUCATIONAL FACILITIES OR HOUSING FOR DEPENDENTS WHEN SUPPORTED BY A STATEMENT OF THE APPROVING AUTHORITY THAT THE INADEQUACY OF SUCH EDUCATIONAL FACILITIES OR HOUSING WAS CAUSED BY CONDITIONS BEYOND THE CONTROL OF THE MEMBER AND AROSE AFTER COMMENCEMENT OF TRAVEL OF DEPENDENTS TO THE MEMBER'S OVERSEAS STATION.'

THESE PROVISIONS OF THE JOINT TRAVEL REGULATIONS AUTHORIZE TRAVEL OF DEPENDENTS UNDER THE CONDITIONS SPECIFIED ONLY UPON THE ISSUANCE OF PROPER ORDERS FOR SUCH DEPENDENT TRAVEL AFTER A DETERMINATION THAT THE CIRCUMSTANCES INVOLVED COME WITHIN THE SCOPE OF THE REGULATIONS. NO SUCH AUTHORIZATION WAS MADE BY THE ORDER ISSUING AUTHORITY IN YOUR CASE SINCE IT IS ADMINISTRATIVELY REPORTED THAT THE REASONS LISTED FOR THE ADVANCE RETURN OF YOUR DEPENDENTS TO THE CONTINENTAL UNITED STATES WERE INSUFFICIENT TO WARRANT APPROVAL OF YOUR REQUEST. SUBSEQUENTLY, THE TRANSPORTATION OF YOUR DEPENDENTS WAS AUTHORIZED ON A SPACE AVAILABLE BASIS ONLY FROM THE PORT OF EMBARKATION, BREMERHAVEN, GERMANY, TO THE DEBARKATION POINT IN THE CONTINENTAL UNITED STATES BY THE ORDERS OF JANUARY 28, 1964.

PARAGRAPH 7000-8 OF THE JOINT TRAVEL REGULATIONS PROVIDES, AS TO TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE UPON A MEMBER'S PERMANENT CHANGE OF STATION, THAT SUCH TRANSPORTATION IS NOT AUTHORIZED WHERE THE DEPENDENTS DEPARTED THE OLD PERMANENT 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 CHANGE OF STATION ORDERS THAT SUCH ORDERS WOULD BE ISSUED. THIS PROVISION OF THE REGULATIONS CONCERNING DEPARTURE OF DEPENDENTS FROM THE OLD STATION PRIOR TO ISSUANCE OF ORDERS, BUT AFTER NOTICE OF A PENDING CHANGE OF STATION, CONTEMPLATES DEPARTURE DURING THE COMPARATIVELY SHORT PERIOD INTERVENING BETWEEN THE TIME A DETERMINATION TO ORDER A MEMBER TO MAKE A CHANGE OF STATION AND THE DATE ON WHICH ORDERS DIRECTING SUCH CHANGE ACTUALLY ARE ISSUED. SUCH CERTIFICATE HAS NOT BEEN FURNISHED IN YOUR CASE AND IN VIEW OF THE LENGTH OF THE PERIOD FROM THE TIME WHEN YOUR DEPENDENTS LEFT GERMANY IN FEBRUARY 1964 UNTIL YOU RECEIVED YOUR PERMANENT CHANGE OF STATION ORDERS OF JANUARY 5, 1965, THERE WOULD APPEAR TO BE NO PROPER BASIS FOR ISSUING SUCH A CERTIFICATE. IN THESE CIRCUMSTANCES, IT MUST BE CONCLUDED THAT THE RETURN OF YOUR DEPENDENTS TO THE UNITED STATES WAS NOT INCIDENT TO YOUR PERMANENT CHANGE OF STATION ORDERS OF JANUARY 5, 1965, AS AMENDED, AND THEREFORE, SUCH ORDERS AFFORD NO BASIS FOR ALLOWING REIMBURSEMENT FOR THERE TRANSPORTATION FROM NEW YORK, NEW YORK, TO GLEN BURNIE, WHICH HAD ALREADY TAKEN PLACE.

THE PURPOSE OF THE DISLOCATION ALLOWANCE IS TO PARTIALLY REIMBURSE A MEMBER WITH DEPENDENTS FOR THE EXPENSES INCURRED IN RELOCATING HIS HOUSEHOLD UPON A PERMANENT CHANGE OF STATION. PARAGRAPH 9003-1 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT THE DISLOCATION ALLOWANCE WILL NOT BE PAYABLE IN CONNECTION WITH PERMANENT CHANGE OF STATION TRAVEL PERFORMED UNDER THE CONDITIONS OUTLINED IN PARAGRAPH 7000-8 OF THE REGULATIONS. THUS, YOU ARE NOT ENTITLED TO THE DISLOCATION ALLOWANCE ON THE BASIS OF YOUR PERMANENT CHANGE OF STATION BY THE ORDERS OF JANUARY 5, 1965, AS AMENDED, SINCE THE CERTIFICATE REQUIRED BY PARAGRAPH 7000-8 OF THE REGULATIONS WAS NOT FURNISHED TO SUPPORT YOUR CLAIM. ALSO, YOU ARE NOT ENTITLED TO THE DISLOCATION ALLOWANCE ON THE BASIS OF THE RETURN OF YOUR DEPENDENTS TO THE UNITED STATES BY THE ORDERS OF JANUARY 28, 1964, SINCE THOSE ORDERS DID NOT DIRECT A PERMANENT CHANGE OF STATION FOR YOU.

ACCORDINGLY, THE SETTLEMENT OF MAY 14, 1965, DISALLOWING YOUR CLAIM WAS CORRECT AND IS SUSTAINED.

IN YOUR LETTER OF MAY 19, 1965, YOU SAY THAT IT IS INDICATED IN THE SETTLEMENT OF MAY 14, 1965, THAT YOU ARE BEING HELD RESPONSIBLE FOR REGULATIONS THAT WERE NOT AVAILABLE TO YOU AND WHICH WERE NOT EXPLAINED TO YOU. WHILE IT IS UNFORTUNATE THAT YOU WERE NOT AWARE OF THE PROVISIONS OF THE JOINT TRAVEL REGULATIONS, OUR OFFICE MAY AUTHORIZE PAYMENT FROM PUBLIC FUNDS ONLY WHEN SUCH PAYMENT IS AUTHORIZED BY THE APPLICABLE LAW AND REGULATIONS.

WITH REGARD TO YOUR REQUEST THAT ENCLOSURES 1, 2 AND 3 TO YOUR LETTER OF MARCH 18, 1965, TO THE U.S. ARMY FINANCE CENTER, INDIANAPOLIS, INDIANA 46249, BE RETURNED TO YOU, THE CORRESPONDENCE RELATING TO THE RENTAL OF YOUR HOUSE IS ENCLOSED. YOU ARE ADVISED, HOWEVER, THAT IT WILL BE NECESSARY TO RETAIN THE REMAINDER OF THE PAPERS SINCE THEY CONSTITUTE A PART OF THE RECORD ON WHICH THE SETTLEMENT DISALLOWING YOUR CLAIM WAS BASED, WHICH ACTION IS FINAL AND CONCLUSIVE ON THE EXECUTIVE BRANCH OF THE GOVERNMENT. I GAO MANUAL 3040.10; 8 ID. 2010.10.