B-157874, DEC. 10, 1965

B-157874, DEC. 10, 1965

TO CAPTAIN BERNARD PASSMAN, USAFR, MC:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 6, 1965, REQUESTING REVIEW OF THE SETTLEMENT OF SEPTEMBER 10, 1965, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT FOR YOUR WIFE'S TRAVEL FROM ALCONBURY, ENGLAND, TO IZMIR, TURKEY, DURING THE PERIOD DECEMBER 19, 1963, TO JANUARY 10, 1964.

BY ORDERS DATED MARCH 11, 1963, AS AMENDED, YOU WERE ORDERED TO EXTENDED ACTIVE DUTY FOR A PERIOD OF 24 MONTHS UNLESS SOONER RELIEVED, AND ASSIGNED TO 10TH TACTICAL HOSPITAL, USAFE, APO 238, NEW YORK, NEW YORK, WITH 21 DAYS' TEMPORARY DUTY EN ROUTE AT GUNTER AIR FORCE BASE, ALABAMA. TRANSPORTATION OF YOUR DEPENDENT WIFE TO THE OVERSEAS STATION AT GOVERNMENT EXPENSE WAS NOT AUTHORIZED DUE TO INSUFFICIENT SERVICE RETAINABILITY. HOWEVER, YOUR WIFE TRAVELED TO YOUR OVERSEAS DUTY STATION AT PERSONAL EXPENSE. BY ORDERS DATED DECEMBER 19, 1963, YOU WERE REASSIGNED TO DUTY AT APO 224, NEW YORK, NEW YORK. THE ORDERS STATED THAT YOU WERE SERVING ON AN UNACCOMPANIED TOUR AND THAT YOUR DEPENDENT WAS IN THAT THEATER OF OPERATIONS IN A TOURIST STATUS ONLY, AND THEREFORE THAT THERE WAS NO ENTITLEMENT TO DISLOCATION ALLOWANCE OR TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE. BY ORDERS DATED SEPTEMBER 21, 1964, THESE ORDERS WERE AMENDED TO AUTHORIZE DISLOCATION ALLOWANCE. SUBSEQUENTLY, BY SETTLEMENT DATED JANUARY 18, 1965, OUR CLAIMS DIVISION ALLOWED YOUR CLAIM FOR DISLOCATION ALLOWANCE INCIDENT TO YOUR PERMANENT CHANGE OF STATION FROM APO 238, NEW YORK, NEW YORK, TO APO 224, NEW YORK, NEW YORK. YOUR CLAIM FOR DEPENDENT TRAVEL INCIDENT TO THAT REASSIGNMENT WAS DISALLOWED BY SETTLEMENT DATED SEPTEMBER 10, 1965, FOR THE REASONS STATED THEREIN.

IN YOUR PRESENT LETTER YOU SAY THAT ACCORDING TO USAFE REGULATIONS YOU HAD ACQUIRED THE STATUS OF A MEMBER ACCOMPANIED BY DEPENDENTS WHEN YOU WERE TRANSFERRED TO APO 224, NEW YORK, NEW YORK, AND THAT WE RECOGNIZED THIS WHEN WE ALLOWED YOUR CLAIM FOR DISLOCATION ALLOWANCE. THEREFORE, YOU BELIEVE THAT YOU ARE ALSO ENTITLED TO REIMBURSEMENT FOR YOUR DEPENDENT'S TRAVEL FROM ALCONBURY, ENGLAND, TO IZMIR, TURKEY.

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 AIR FORCE DURING THE PERIOD IN QUESTION, PARAGRAPH 16, CHAPTER 2, AIR FORCE MANUAL 35 11 AD, EFFECTIVE OCTOBER 1, 1963, PRESCRIBE THE FOREIGN SERVICE TOURS FOR MEMBERS WHOSE DEPENDENTS ACCOMPANY THEM TO THE FOREIGN SERVICE STATION, OR JOIN THEM IN THE OVERSEAS AREA AT ANY TIME IN ANY STATUS, EXCEPT PERSONS WHOSE DEPENDENTS VISIT THEM IN A "TOURIST STATUS.' THE REGULATIONS, IN GENERAL, PROVIDE THAT A MEMBER WHOSE DEPENDENTS JOINED HIM IN A TOURIST STATUS AND WHO IS SERVING IN AN "ALL OTHERS" TOUR, AND WHO AGREES TO EXTEND HIS OVERSEAS TOUR OF SERVICE TO COMPLETE THE TOUR PRESCRIBED FOR MEMBERS WITH DEPENDENTS MAY CHANGE HIS "ALL OTHERS" TOUR TO A ,WITH DEPENDENTS" TOUR TO ACQUIRE DEPENDENTS' OVERSEAS TRAVEL RIGHTS. IT WILL BE NOTED THAT SUCH A LIMITATION WAS EXPRESSLY INCLUDED IN THE JOINT TRAVEL REGULATIONS IN PARAGRAPH M7000 15, CHANGE 136, DATED APRIL 1, 1964.

THE OVERSEAS DUTY TOURS FOR MILITARY PERSONNEL (OTHER THAN ATTACHE SYSTEMS) SET FORTH IN THE REGULATION SHOWS THE TOUR PRESCRIBED FOR ENGLAND AND TURKEY AS FOLLOWS:

CHART

TOURS IN MONTHS COUNTRY OR AREA ACCOMPANIED BY DEPENDENTS ALL OTHERS

TURKEY

ANKARA, ISTANBUL

AND IZMIR 30 18

UNITED KINGDOM (EXCEPT

LONDONDERRY, IRELAND) 36 24

SINCE YOUR TOUR OF DUTY WAS LIMITED TO 24 MONTHS AND SINCE THE RECORD SHOWS YOU DECLINED TO EXTEND YOUR TOUR OF DUTY OVERSEAS IN ORDER TO BE ELIGIBLE FOR TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE UPON PERMANENT CHANGE OF STATION AS A MEMBER SERVING ON A "WITH DEPENDENTS" TOUR, TRANSPORTATION OF YOUR WIFE FROM ALCONBURY, ENGLAND, TO IZMIR, TURKEY, WHICH HAD A 30-MONTH PRESCRIBED TOUR OF DUTY, WAS NOT THE FINANCIAL RESPONSIBILITY OF THE GOVERNMENT.

WITH RESPECT TO YOUR CONTENTION THAT UNDER THE USAFE REGULATIONS A MEMBER AUTOMATICALLY BECOMES ACCOMPANIED UNDER THE CIRCUMSTANCES OF HAVING DEPENDENTS THERE LONGER THAN 120 DAYS AND CAN BE INVOLUNTARILY EXTENDED TO THE ACCOMPANIED TOUR, AS PREVIOUSLY EXPLAINED TO YOU BY THE COMMANDER IN CHIEF, HEADQUARTERS, UNITED STATES AIR FORCES IN EUROPE, IN LETTER DATED AUGUST 3, 1964, SUPPLEMENTARY REGULATIONS ISSUED BY THE EUROPEAN THEATER COMMANDER PROVIDE THAT DEPENDENTS MAY BE CONSIDERED ACCOMPANIED AFTER 120 DAYS IN THE THEATER IN ORDER TO PERMIT THEM TO OBTAIN POST EXCHANGE AND COMMISSARY PRIVILEGES, BUT SPECIFICALLY STATE THAT TRAVEL OF DEPENDENTS WILL BE AT THEIR OWN EXPENSE. FURTHERMORE, IN OUR SETTLEMENT OF JANUARY 18, 1965, THE SUM OF $130.05 AS DISLOCATION ALLOWANCE INCIDENT TO YOUR TRANSFER TO APO 224, NEW YORK, NEW YORK, WAS ALLOWED ON THE BASIS THAT YOU RELOCATED YOUR HOUSEHOLD IN CONNECTION WITH A PERMANENT CHANGE OF STATION. PARAGRAPH M9002 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT EXCEPT AS PROVIDED IN PARAGRAPH M9003 (WHICH IS NOT APPLICABLE HERE) THE DISLOCATION ALLOWANCE IS PAYABLE TO A MEMBER WHENEVER DEPENDENTS RELOCATE THEIR HOUSEHOLD IN CONNECTION WITH A PERMANENT CHANGE OF STATION. PROVIDES FURTHER, THAT "ACTUAL TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE IS NOT A PREREQUISITE TO ENTITLEMENT TO THE DISLOCATION ALLOWANCE.' THUS, IRRESPECTIVE OF WHETHER A MEMBER IS ENTITLED TO TRANSPORTATION OF HIS DEPENDENTS AT GOVERNMENT EXPENSE, THE REGULATIONS AUTHORIZE PAYMENT OF DISLOCATION ALLOWANCE WHERE A MEMBER RELOCATES HIS HOUSEHOLD IN CONNECTION WITH HIS PERMANENT CHANGE OF STATION AND HIS DEPENDENTS ARE WITH HIM AT HIS NEW PERMANENT STATION.

SINCE THE RECORD SHOWS THAT YOUR DEPENDENT WIFE DID NOT HAVE THE STATUS OF AN ACCOMPANYING DEPENDENT WITHIN THE MEANING OF THE APPLICABLE REGULATIONS WHEN YOU WERE ORDERED TO APO 224 NEW YORK, NEW YORK, YOU WERE NOT ENTITLED TO HER TRANSPORTATION THERE AT GOVERNMENT EXPENSE.

ACCORDINGLY, THERE IS NO LEGAL BASIS TO ALLOW YOUR CLAIM FOR YOUR DEPENDENT'S TRANSPORTATION FROM ALCONBURY, ENGLAND, TO IZMIR, TURKEY. THE SETTLEMENT OF SEPTEMBER 10, 1965, WAS CORRECT AND IS SUSTAINED.