B-158341, FEB. 21, 1966

B-158341: Feb 21, 1966

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RA 17 369 903: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 3. YOU WERE TRANSFERRED ON PERMANENT CHANGE OF STATION FROM YOUR OVERSEAS STATION TO FORT LEWIS. YOU WERE AUTHORIZED 30 DAYS' DELAY TO COUNT AS LEAVE. YOUR DEPENDENTS COULD NOT ACCOMPANY YOU TO THE UNITED STATES BECAUSE THE VISA WAS NOT AVAILABLE AT THAT TIME. YOU FILED THE NECESSARY PAPERS TO HAVE YOUR DEPENDENTS TRAVEL TO THE UNITED STATES BUT THAT YOU HAVE BEEN ADVISED THAT SUCH PAPERS WERE NEVER RECEIVED BY THE PROPER MILITARY AUTHORITIES AT SEOUL. BY COMMERCIAL AIR AT PERSONAL EXPENSE AND SUCH TRAVEL WAS PERFORMED ON JANUARY 9. WERE AMENDED AND THAT YOU DID NOT LEAVE KOREA UNTIL FEBRUARY 28. WHICH WAS 5 MONTHS AFTER THE DATE YOU WERE MARRIED.

B-158341, FEB. 21, 1966

TO SPECIALIST 4 COST ON T. CLIFTON, RA 17 369 903:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 3, 1966, REQUESTING REVIEW OF SETTLEMENT OF DECEMBER 13, 1965, WHICH DISALLOWED THAT PORTION OF YOUR CLAIM FOR REIMBURSEMENT FOR THE COST OF TRAVEL OF YOUR DEPENDENTS FROM SEOUL, KOREA, TO SEATTLE, WASHINGTON, IN JANUARY 1965.

BY PARAGRAPH 22, SPECIAL ORDERS NO. 323, HEADQUARTERS 7TH INFANTRY DIVISION, APO 7, DATED DECEMBER 5, 1963, YOU WERE TRANSFERRED ON PERMANENT CHANGE OF STATION FROM YOUR OVERSEAS STATION TO FORT LEWIS, WASHINGTON, EFFECTIVE DECEMBER 25, 1963. YOU WERE AUTHORIZED 30 DAYS' DELAY TO COUNT AS LEAVE. THE ORDERS, HOWEVER, DID NOT PROVIDE AUTHORITY FOR THE TRANSPORTATION OF YOUR DEPENDENTS TO YOUR NEW DUTY STATION. IN YOUR CLAIM YOU STATED THAT YOU MARRIED A KOREAN NATIONAL AT THE AMERICAN EMBASSY, SEOUL, KOREA, ON SEPTEMBER 25, 1963, AND THAT WHEN YOU DEPARTED KOREA IN FEBRUARY 1964, YOUR DEPENDENTS COULD NOT ACCOMPANY YOU TO THE UNITED STATES BECAUSE THE VISA WAS NOT AVAILABLE AT THAT TIME. YOU STATED FURTHER THAT IN SEPTEMBER 1964, YOU FILED THE NECESSARY PAPERS TO HAVE YOUR DEPENDENTS TRAVEL TO THE UNITED STATES BUT THAT YOU HAVE BEEN ADVISED THAT SUCH PAPERS WERE NEVER RECEIVED BY THE PROPER MILITARY AUTHORITIES AT SEOUL, KOREA. CONSEQUENTLY, YOU ARRANGED FOR THEIR TRANSPORTATION TO TACOMA, WASHINGTON, BY COMMERCIAL AIR AT PERSONAL EXPENSE AND SUCH TRAVEL WAS PERFORMED ON JANUARY 9, 1965. BY SETTLEMENT DATED DECEMBER 3, 1965, OUR CLAIMS DIVISION ALLOWED YOUR CLAIM FOR DEPENDENTS' TRAVEL FROM SEATTLE, WASHINGTON (POINT OF DEBARKATION), TO TACOMA, WASHINGTON, BUT DENIED THAT PORTION OF YOUR CLAIM FOR DEPENDENTS' AIR TRAVEL FROM SEOUL, KOREA, TO SEATTLE, WASHINGTON, ON THE BASIS OF A REPORT FROM THE ARMY FINANCE CENTER, INDIANAPOLIS, INDIANA, THAT YOU HAD INSUFFICIENT REMAINING SERVICE OVERSEAS TO QUALIFY FOR OVERSEAS MOVEMENT OF DEPENDENTS.

IN YOUR PRESENT LETTER YOU SAY THAT YOUR ORDERS OF DECEMBER 5, 1963, WERE AMENDED AND THAT YOU DID NOT LEAVE KOREA UNTIL FEBRUARY 28, 1964, WHICH WAS 5 MONTHS AFTER THE DATE YOU WERE MARRIED. YOU FURTHER STATE THAT YOU REPORTED TO FORT LEWIS, WASHINGTON, ON OR ABOUT MARCH 3, 1964, PRIOR TO TAKING ANY LEAVE. YOU ALSO STATE THAT YOU MADE APPLICATION FOR DEPENDENT TRAVEL RIGHT AFTER YOU WERE MARRIED. IN SUCH CIRCUMSTANCES, YOU BELIEVE YOU ARE ENTITLED TO DEPENDENT TRAVEL FROM KOREA TO THE UNITED STATES.

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 11, DATED AUGUST 1, 1963, 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 THAT DEPENDENTS OF MEMBERS WHO ENTER THE OVERSEAS AREA WITHOUT PRIOR APPROVAL, OR WHO ARE ACQUIRED BY MARRIAGE TO THE MEMBER AT THE OVERSEAS DUTY STATION, MAY BE RECOGNIZED BY THE APPROPRIATE OVERSEAS COMMANDER, AFTER A REASONABLE PERIOD OF TIME, AS "COMMAND SPONSORED" DEPENDENTS IF THE MEMBER IS OF APPROPRIATE GRADE AND IS ABLE TO COMPLETE THE TOUR PRESCRIBED FOR MEMBERS WITH DEPENDENTS OR 12 MONTHS AFTER THE MARRIAGE, WHICHEVER IS THE LONGER. MEMBERS WHO DO NOT HAVE SUFFICIENT REMAINING SERVICE TO COMPLETE THE TOUR PRESCRIBED FOR MEMBERS WITH DEPENDENTS OR 12 MONTHS AFTER MARRIAGE, WHICHEVER IS LONGER, MUST QUALIFY FOR RECOGNITION OF DEPENDENTS BY APPROPRIATE EXTENSION OF THEIR OVERSEAS TOUR. SUBPARAGRAPH (6) OF PARAGRAPH 5.1 PROVIDES THAT UPON A PERMANENT CHANGE OF STATION DEPENDENTS RECOGNIZED AS "COMMAND SPONSORED" ARE ENTITLED TO TRANSPORTATION AT GOVERNMENT EXPENSE TO THE MEMBER'S NEXT PERMANENT DUTY STATION, BUT THAT THE RETURN TRANSPORTATION OF DEPENDENTS WHO ARE NOT RECOGNIZED AS "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 THE 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.

THE RECORD BEFORE US DOES NOT CONTAIN A COPY OF THE AMENDATORY ORDERS WHICH YOU SAY AMENDED YOUR BASIC ORDERS OF DECEMBER 5, 1963, NOR HAVE YOU FURNISHED A COPY OF SUCH ORDERS WITH YOUR CLAIM. HOWEVER, SINCE YOU REMAINED AT YOUR OVERSEAS STATION ONLY 5 MONTHS FROM THE DATE OF YOUR MARRIAGE, SUCH AMENDATORY ORDERS WOULD AFFORD NO BASIS FOR INCREASING YOUR RIGHT TO DEPENDENT TRAVEL UNLESS YOU COMPLETED THE TOUR PRESCRIBED FOR MEMBERS WITH DEPENDENTS OR 12 MONTHS AFTER MARRIAGE, WHICHEVER IS LONGER, OR THAT YOU QUALIFIED FOR RECOGNITION OF DEPENDENTS AS SPECIFIED IN ARMY REGULATIONS 55-46. IN THE ABSENCE OF A SHOWING THAT YOUR OVERSEAS COMMANDER RECOGNIZED YOUR DEPENDENTS AS "COMMAND SPONSORED" AS CONTEMPLATED BY PARAGRAPH 5.1 (3), ARMY REGULATIONS 55-46, THERE IS NO AUTHORITY FOR REIMBURSEMENT OF THE COST FOR THE TRANSPORTATION OF YOUR DEPENDENTS FROM SEOUL, KOREA, TO SEATTLE, WASHINGTON, BY COMMERCIAL AIR.

ACCORDINGLY, ON THE RECORD BEFORE US, THE SETTLEMENT OF DECEMBER 13, 1965, IS SUSTAINED.