B-158255, MAR. 8, 1966

B-158255: Mar 8, 1966

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FC: REFERENCE IS MADE TO YOUR LETTER DATED DECEMBER 15. IN THAT YOU HAD BEEN ADVISED BY LONG DISTANCE TELEPHONE THAT YOUR WIFE'S MOTHER WAS SERIOUSLY ILL AND HER LIFE EXPECTANCY WAS 3 DAYS. YOU STATED FURTHER THAT YOU WERE ADVISED THERE WAS A BACKLOG OF APPROXIMATELY 10 TO 15 DAYS FOR SPACE AVAILABLE AIR TRANSPORTATION AND A WAIT OF ABOUT ONE WEEK FOR SPACE REQUIRED TRAVEL AND THEREFORE YOU ARRANGED FOR YOUR DEPENDENTS TO RETURN TO THE UNITED STATES BY COMMERCIAL AIR AT YOUR EXPENSE. FROM THE ADJUTANT GENERAL'S OFFICE AT YOUR STATION CONFIRMING YOUR STATEMENTS AS SET FORTH ABOVE REGARDING THE WAITING PERIOD THAT WOULD HAVE BEEN REQUIRED FOR GOVERNMENT TRANSPORTATION. AN UNDATED STATEMENT ON BEHALF OF YOUR COMMANDING GENERAL WHICH REFERRED TO PARAGRAPH M7103-2.7 OF THE JOINT TRAVEL REGULATIONS AND STATED THAT YOUR DEPENDENTS DEPARTED PRIOR TO RECEIPT OF YOUR ORDERS FOR RETURN TO THE CONTINENTAL UNITED STATES DUE TO SERIOUS ILLNESS OF YOUR WIFE'S MOTHER AND SUCH TRANSPORTATION WAS AT YOUR EXPENSE BECAUSE GOVERNMENT TRANSPORTATION WAS NOT AVAILABLE FOR AN ESTIMATED 3- WEEK PERIOD.

B-158255, MAR. 8, 1966

TO CAPTAIN DONALD L. APPLEGARTH, FC:

REFERENCE IS MADE TO YOUR LETTER DATED DECEMBER 15, 1965, IN EFFECT REQUESTING RECONSIDERATION OF OUR SETTLEMENT DATED AUGUST 9, 1965, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT FOR THE TRANSPORTATION OF YOUR DEPENDENTS FROM FRANKFURT, GERMANY, TO OKMULGEE, OKLAHOMA, MARCH 9 AND 10, 1965.

IN YOUR CLAIM DATED JUNE 4, 1965, YOU STATED THAT ON MARCH 9, 1965, YOU REQUESTED INFORMATION AT THE ADJUTANT GENERAL'S OFFICE, HEADQUARTERS, UNITED STATES ARMY, BERLIN, GERMANY, FOR INFORMATION AS TO AVAILABLE GOVERNMENT AIR TRAVEL FOR YOUR WIFE AND CHILDREN TO RETURN TO THE CONTINENTAL UNITED STATES DUE TO AN EMERGENCY, IN THAT YOU HAD BEEN ADVISED BY LONG DISTANCE TELEPHONE THAT YOUR WIFE'S MOTHER WAS SERIOUSLY ILL AND HER LIFE EXPECTANCY WAS 3 DAYS. YOU STATED FURTHER THAT YOU WERE ADVISED THERE WAS A BACKLOG OF APPROXIMATELY 10 TO 15 DAYS FOR SPACE AVAILABLE AIR TRANSPORTATION AND A WAIT OF ABOUT ONE WEEK FOR SPACE REQUIRED TRAVEL AND THEREFORE YOU ARRANGED FOR YOUR DEPENDENTS TO RETURN TO THE UNITED STATES BY COMMERCIAL AIR AT YOUR EXPENSE. YOU FURNISHED A STATEMENT DATED MARCH 16, 1965, FROM THE ADJUTANT GENERAL'S OFFICE AT YOUR STATION CONFIRMING YOUR STATEMENTS AS SET FORTH ABOVE REGARDING THE WAITING PERIOD THAT WOULD HAVE BEEN REQUIRED FOR GOVERNMENT TRANSPORTATION, AND AN UNDATED STATEMENT ON BEHALF OF YOUR COMMANDING GENERAL WHICH REFERRED TO PARAGRAPH M7103-2.7 OF THE JOINT TRAVEL REGULATIONS AND STATED THAT YOUR DEPENDENTS DEPARTED PRIOR TO RECEIPT OF YOUR ORDERS FOR RETURN TO THE CONTINENTAL UNITED STATES DUE TO SERIOUS ILLNESS OF YOUR WIFE'S MOTHER AND SUCH TRANSPORTATION WAS AT YOUR EXPENSE BECAUSE GOVERNMENT TRANSPORTATION WAS NOT AVAILABLE FOR AN ESTIMATED 3- WEEK PERIOD.

THE RECORD SHOWS THAT BY TRAVEL ORDERS LO 5-17, DATED MAY 4, 1965, AS AMENDED BY LO 5-127, DATED MAY 19, 1965, YOU WERE TRANSFERRED FROM BERLIN TO THE ARMY FINANCE SCHOOL, FORT BENJAMIN HARRISON, INDIANA, TO REPORT NOT LATER THAN JULY 25, 1965. THE ORDERS ALSO AUTHORIZED THE SHIPMENT OF THE HOUSEHOLD GOODS FOR YOUR DEPENDENTS WHO DEPARTED THAT COMMAND ON MARCH 11, 1965, DUE TO ILLNESS IN THE IMMEDIATE FAMILY, CITING PARAGRAPH M7103, JOINT TRAVEL REGULATIONS, AS AUTHORITY AND STATING FURTHER THAT GOVERNMENT TRANSPORTATION WAS NOT UTILIZED.

THE CLAIM WAS DISALLOWED BY SETTLEMENT DATED AUGUST 9, 1965, FOR THE REASON THAT UNDER THE PROVISIONS OF PARAGRAPH M7103-2 OF THE JOINT TRAVEL REGULATIONS, TRAVEL OF DEPENDENTS UNDER THE CONDITIONS SPECIFIED THEREIN IS AUTHORIZED ONLY UPON ISSUANCE OF PROPER ORDERS FOR SUCH DEPENDENT TRAVEL AFTER A DETERMINATION THAT THE CIRCUMSTANCES INVOLVED COME WITHIN THE SCOPE OF THE REGULATIONS AND NO SUCH AUTHORIZATION WAS MADE BY THE ORDER ISSUING AUTHORITY. IN YOUR LETTER OF DECEMBER 15, 1965, YOU CONTENDED THAT THE STATEMENT SIGNED "FOR THE COMMANDER" WHICH REFERRED TO PARAGRAPH M7103-2.7, JOINT TRAVEL REGULATIONS WAS SUFFICIENT AUTHORIZATION FOR YOUR DEPENDENTS TO TRAVEL TO THE UNITED STATES UNDER THE THEN EXISTING CIRCUMSTANCES.

SECOND 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 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. * * *"

THE PROVISIONS OF THIS STATUTE, HOWEVER, ARE NOT SELF-EXECUTING BUT REQUIRE ISSUANCE OF REGULATIONS BY THE SECRETARIES OF THE SERVICES CONCERNED. IN THIS RESPECT PARAGRAPH M7103-2.7 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:

"7. WHEN DETERMINED THAT THE BEST INTERESTS OF THE MEMBER OR HIS DEPENDENTS AND THE GOVERNMENT WILL BE SERVED BY THE RETURN OF ONE OR MORE OF HIS DEPENDENTS FOR COMPELLING PERSONAL REASONS, SUCH AS MARITAL DIFFICULTIES, FINANCIAL DIFFICULTIES, UNFORESEEN FAMILY PROBLEMS, DEATH OR SERIOUS ILLNESS OF CLOSE RELATIVES, OR FOR REASONS OF A HUMANITARIAN OR COMPASSIONATE NATURE, AND IN OTHER SITUATIONS WHICH HAVE AN ADVERSE EFFECT ON THE MEMBER'S PERFORMANCE OF DUTY, SUCH DETERMINATION TO BE IN THE FORM OF A STATEMENT OF THE APPROVING AUTHORITY.

"THE ORDER-ISSUING AUTHORITY WILL CITE, IN THE RELATED ORDERS AUTHORIZING TRANSPORTATION OF DEPENDENTS, THE SPECIFIC ITEM OF THIS SUBPARAGRAPH APPLICABLE IN THE PARTICULAR CASE. TRANSPORTATION PROCUREMENT DOCUMENTS OR VOUCHERS FOR REIMBURSEMENT FOR TRANSPORTATION UNDER THIS SUBPARAGRAPH WILL BE SUPPORTED BY A COPY OF THE APPROPRIATE STATEMENT AND/OR APPROVAL REQUIRED BY THIS SUBPARAGRAPH.'

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. THE UNDATED STATEMENT SIGNED FOR THE COMMANDING GENERAL, HEADQUARTERS UNITED STATES ARMY BERLIN, IS MERELY A RECITAL OF THE FACT THAT YOUR DEPENDENTS HAD DEPARTED PRIOR TO THE RECEIPT OF YOUR ORDERS, DUE TO SERIOUS ILLNESS OF YOUR WIFE'S MOTHER AND IT MAY NOT BE REGARDED AS A PROPER ORDER AUTHORIZING THE ADVANCE TRAVEL OF YOUR DEPENDENTS AS REQUIRED BY THE REGULATIONS. SIMILARLY, THE STATEMENTS IN YOUR TRAVEL ORDERS DATED MAY 4, 1965, TO THE EFFECT THAT SHIPMENT OF HOUSEHOLD GOODS IS AUTHORIZED FOR YOUR DEPENDENTS WHO DEPARTED THAT COMMAND MARCH 11, 1965, DUE TO ILLNESS IN IMMEDIATE FAMILY UNDER THE PROVISIONS OF PARAGRAPH M7103, JOINT TRAVEL REGULATIONS MAY NOT BE REGARDED AS PROPER AUTHORIZATION FOR THE ADVANCE TRAVEL OF YOUR DEPENDENTS WITHIN THE MEANING OF THE PROVISIONS CONTAINED IN PARAGRAPH M7103-2.7 OF THE JOINT TRAVEL REGULATIONS.