B-157673, OCT. 8, 1965

B-157673: Oct 8, 1965

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RA 23 583 854: FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 1. THE RECORD SHOWS THAT YOU WERE MARRIED IN GERMANY ON SEPTEMBER 12. YOU WERE RETURNED TO THE UNITED STATES WHERE YOU WERE DISCHARGED ON DECEMBER 18. BY SPECIAL ORDERS OF THAT DATE YOU WERE ASSIGNED TO 21ST REPLACEMENT BATTALION. YOU WERE TRANSFERRED TO FORT DIX. THE LATTER ORDERS STATED THAT YOUR BASIC PAY ENTRY DATE WAS APRIL 29. YOUR CLAIM WAS DISALLOWED BY THE SETTLEMENT MENTIONED ABOVE IN THE ABSENCE OF AN AUTHORIZATION FOR YOUR DEPENDENT TO TRAVEL TO THE UNITED STATES. YOU NOW HAVE FURNISHED A COPY OF SPECIAL ORDERS NO. 120. TO SHOW THAT YOUR CORRECT BASIC PAY ENTRY DATED WAS SEPTEMBER 6. SINCE THE RECORD NOW SHOWS THAT YOU WERE IN PAY GRADE E-4 WITH MORE THAN 4 YEARS' SERVICE WHEN THE PERMANENT CHANGE OF STATION ORDERS OF MARCH 22.

B-157673, OCT. 8, 1965

TO SP4 JOHNNY F. DAVIS, RA 23 583 854:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 1, 1965, IN EFFECT REQUESTING REVIEW OF THE SETTLEMENT OF MAY 11, 1965, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT FOR YOUR WIFE'S TRAVEL FROM AUGSBURG, GERMANY, TO NEW YORK, NEW YORK, DURING THE PERIOD MARCH 20, 1963, TO JUNE 3, 1963.

THE RECORD SHOWS THAT YOU WERE MARRIED IN GERMANY ON SEPTEMBER 12, 1962, WHILE STATIONED IN THAT COUNTRY DURING A PRIOR ENLISTMENT. THEREAFTER, YOU WERE RETURNED TO THE UNITED STATES WHERE YOU WERE DISCHARGED ON DECEMBER 18, 1962. DD FORM 214 ISSUED AT THE TIME OF DISCHARGE INDICATED YOU HAD LESS THAN 4 YEARS' SERVICE. YOU SAY THAT YOUR WIFE REMAINED IN GERMANY AND YOU RETURNED TO GERMANY AS A CIVILIAN AND REENLISTED IN THE ARMY AT MUNICH, GERMANY, ON MARCH 18, 1963, IN PAY GRADE E-4. BY SPECIAL ORDERS OF THAT DATE YOU WERE ASSIGNED TO 21ST REPLACEMENT BATTALION, APO 757, FOR FURTHER ASSIGNMENT TO THE UNITED STATES. BY PARAGRAPH 2, SPECIAL ORDERS NO. 70, DATED MARCH 22, 1963, YOU WERE TRANSFERRED TO FORT DIX, NEW JERSEY. THUS, YOU SERVED ONLY A SHORT TIME AFTER YOU ACQUIRED A DEPENDENT AND ONLY A FEW DAYS AFTER YOUR REENLISTMENT. THE LATTER ORDERS STATED THAT YOUR BASIC PAY ENTRY DATE WAS APRIL 29, 1960, INDICATING THAT YOU HAD LESS THAN 4 YEARS' SERVICE. THE ORDERS DID NOT INCLUDE TRANSPORTATION AUTHORIZATION FOR YOUR WIFE, AND YOU SAY SHE SUBSEQUENTLY TRAVELED TO THE UNITED STATES AT PERSONAL EXPENSE. YOUR CLAIM WAS DISALLOWED BY THE SETTLEMENT MENTIONED ABOVE IN THE ABSENCE OF AN AUTHORIZATION FOR YOUR DEPENDENT TO TRAVEL TO THE UNITED STATES.

YOU NOW HAVE FURNISHED A COPY OF SPECIAL ORDERS NO. 120, DATED JULY 16, 1965, PARAGRAPH 7 OF WHICH AMENDED PARAGRAPH 2 OF THE ORDERS OF MARCH 22, 1963, TO SHOW THAT YOUR CORRECT BASIC PAY ENTRY DATED WAS SEPTEMBER 6, 1957. SINCE THE RECORD NOW SHOWS THAT YOU WERE IN PAY GRADE E-4 WITH MORE THAN 4 YEARS' SERVICE WHEN THE PERMANENT CHANGE OF STATION ORDERS OF MARCH 22, 1963, WERE ISSUED, YOU CONTEND YOU ARE ENTITLED TO REIMBURSEMENT FOR YOUR WIFE'S TRAVEL.

THE STATUTORY AUTHORITY FOR TRANSPORTATION OF DEPENDENTS OF MEMBERS OF THE UNIFORMED SERVICES, 37 U.S.C. 406, EXPRESSLY PROVIDES THAT TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE UPON A MEMBER'S ORDERED CHANGE OF PERMANENT STATION SHALL BE SUBJECT TO SUCH CONDITIONS AND LIMITATIONS, FOR SUCH GRADES, RANKS, AND RATINGS, AND TO AND FROM SUCH PLACES AS THE SECRETARIES CONCERNED MAY PRESCRIBE. THE RIGHT TO DEPENDENTS' TRAVEL IS NOT AN ABSOLUTE ONE BUT MAY BE ADMINISTRATIVELY SUSPENDED OR DENIED FOR REASONS OF MILITARY NECESSITY OR EXPEDIENCE. CULP V. UNITED STATES, 76 CT.CL. 507; 35 COMP. GEN. 61. REGULATIONS IN THE MATTER, ISSUED BY THE SECRETARIES CONCERNED, ARE CONTAINED IN CHAPTER 7 OF THE JOINT TRAVEL REGULATIONS. IMPLEMENTING REGULATIONS FOR THE DEPARTMENT OF THE ARMY, CONTAINED IN ARMY REGULATIONS 55-46, DATED NOVEMBER 16, 1959, AS AMENDED BY CHANGE 3, DATED NOVEMBER 29, 1960, IN EFFECT DURING THE PERIOD HERE INVOLVED, PERTAIN TO TRAVEL OF DEPENDENTS AND ACCOMPANIED MILITARY PERSONNEL TO, FROM, OR BETWEEN OVERSEA AREAS. PARAGRAPH 5.1 OF THOSE REGULATIONS PROVIDES IN SUBPARAGRAPH (3) THE PROCEDURE WHEREBY DEPENDENTS OF MEMBERS 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 (TO THE UNITED STATES) 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. SUBPARAGRAPH (3) OF PARAGRAPH 5.1 REQUIRES THAT, AT THE DISCRETION OF THE OVERSEAS COMMANDER, MEMBERS WITH DEPENDENTS AT AN OVERSEAS STATION COMPLETE THE TOUR PRESCRIBED FOR MEMBERS WITH DEPENDENTS OR SERVE OVERSEAS FOR 12 MONTHS AFTER ARRIVAL OF DEPENDENTS, WHICHEVER IS LONGER, IN ORDER TO BE ENTITLED TO TRANSPORTATION OF DEPENDENTS. SUBPARAGRAPH B (2) OF PARAGRAPH 5.1 INDICATES THIS REQUIREMENT MAY BE WAIVED IN CASES INVOLVING MARRIAGE TO A FOREIGN NATIONAL.

IN THE PRESENT CASE, WHILE THE AMENDATORY ORDERS OF JULY 16, 1965, SHOW THAT YOU HAD OVER 4 YEARS' SERVICE WHEN ORDERED TO MAKE THE PERMANENT CHANGE OF STATION RETURNING YOU TO THE UNITED STATES, THERE IS NOTHING IN THE RECORD TO SHOW THAT YOUR WIFE WAS RECOGNIZED AS "COMMAND SPONSORED" OR THAT THE OVERSEAS COMMANDER WAIVED THE REQUIREMENT FOR LENGTH OF SERVICE OVERSEAS AFTER YOUR MARRIAGE AND ARRIVAL OF DEPENDENT AT YOUR STATION. THEREFORE, THE PROVISIONS OF PARAGRAPH 5.1 (3) (6) AND B/2), ARMY REGULATIONS 55-46, REQUIRE THE CONCLUSION THAT THE TRANSPORTATION OF YOUR WIFE FROM AUGSBURG, TO NEW YORK, NEW YORK, WAS NOT THE FINANCIAL RESPONSIBILITY OF THE GOVERNMENT.

ACCORDINGLY, THE SETTLEMENT OF MAY 11, 1965, WAS CORRECT AND IS SUSTAINED.