B-158976, JUN. 7, 1966

B-158976: Jun 7, 1966

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TO ARTHUR BELLAMY: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED APRIL 6. FOR THE REASON THAT YOUR DAUGHTER WAS GRADUATING FROM HIGH SCHOOL IN JUNE 1964 AND YOU WISHED TO ENROLL HER IN COLLEGE IN THE UNITED STATES SINCE YOU DID NOT HAVE MORE THAN ONE YEAR SERVICE REMAINING IN YOUR OVERSEAS COMMAND. YOU STATED THAT YOUR REQUEST WAS MADE WITH THE UNDERSTANDING THAT YOU WERE TO FURNISH THE NECESSARY FUNDS FOR THEIR TRANSPORTATION TO THE PORT OF EMBARKATION AND FROM DEBARKATION TO FINAL DESTINATION. THAT YOUR REQUEST WAS FOR WATER TRANSPORTATION ONLY. YOUR REQUEST WAS ENDORSED BY THE COMMANDING OFFICER OF YOUR DETACHMENT TO THE COMMANDING OFFICER. IT IS INDICATED IN THE RECORD THAT NO WRITTEN ORDERS WERE FURNISHED AND THAT YOU WERE ADVISED BY TELEPHONE TO HAVE YOUR DEPENDENTS REPORT TO THE STAGING AREA IN BREMERHAVEN.

B-158976, JUN. 7, 1966

TO ARTHUR BELLAMY:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED APRIL 6, 1966, REQUESTING REVIEW OF SETTLEMENT DATED MARCH 9, 1966, WHICH DISALLOWED YOUR CLAIM FOR MILEAGE FOR LAND TRAVEL OF YOUR WIFE AND DAUGHTER FROM GEOPPINGEN, GERMANY, TO BREMERHAVEN, GERMANY, AND FROM BROOKLYN, NEW YORK, TO MOUNT HOLLY, NEW JERSEY, DURING THE PERIOD SEPTEMBER 19 TO OCTOBER 5, 1964, AND FOR DISLOCATION ALLOWANCE.

IN LETTER DATED MAY 28, 1964, ADDRESSED TO THE COMMANDING OFFICER, 504TH MI DETACHMENT, APO 326, US FORCES, YOU REQUESTED PERMISSION FOR THE RETURN BY GOVERNMENT TRANSPORTATION OF YOUR DEPENDENTS (WIFE AND DAUGHTER) TO THE UNITED STATES IN ADVANCE OF PERMANENT CHANGE OF STATION ORDERS UNDER PARAGRAPH M7009-3, JOINT TRAVEL REGULATIONS, FOR THE REASON THAT YOUR DAUGHTER WAS GRADUATING FROM HIGH SCHOOL IN JUNE 1964 AND YOU WISHED TO ENROLL HER IN COLLEGE IN THE UNITED STATES SINCE YOU DID NOT HAVE MORE THAN ONE YEAR SERVICE REMAINING IN YOUR OVERSEAS COMMAND. YOU STATED THAT YOUR REQUEST WAS MADE WITH THE UNDERSTANDING THAT YOU WERE TO FURNISH THE NECESSARY FUNDS FOR THEIR TRANSPORTATION TO THE PORT OF EMBARKATION AND FROM DEBARKATION TO FINAL DESTINATION; THAT YOUR REQUEST WAS FOR WATER TRANSPORTATION ONLY, WITH DEPARTURE DATE EITHER THE SECOND WEEK IN JULY OR SOON THEREAFTER; AND THAT YOUR WIFE HAD TO RETURN WITH YOUR DAUGHTER SO THAT THEY COULD LIVE TOGETHER IN THE SAME HOUSEHOLD, WHICH YOU CONSIDERED TO BE THE FINANCIAL ARRANGEMENT BEST SUITED TO ACCOMPLISH YOUR PLANS FOR YOUR DAUGHTER'S EDUCATION.

YOUR REQUEST WAS ENDORSED BY THE COMMANDING OFFICER OF YOUR DETACHMENT TO THE COMMANDING OFFICER, 66TH INTC GROUP, APO 154, US FORCES, WITH THE RECOMMENDATION THAT IT BE APPROVED. IT IS INDICATED IN THE RECORD THAT NO WRITTEN ORDERS WERE FURNISHED AND THAT YOU WERE ADVISED BY TELEPHONE TO HAVE YOUR DEPENDENTS REPORT TO THE STAGING AREA IN BREMERHAVEN, GERMANY, WHERE THEY WERE CHECKED AND PUT ABOARD SHIP AND FURNISHED GOVERNMENT TRANSPORTATION TO BROOKLYN, NEW YORK. UPON DEBARKATION IN BROOKLYN, THEY TRAVELED TO MOUNT HOLLY, NEW JERSEY.

BY PERMANENT CHANGE OF STATION ORDERS DATED APRIL 9, 1965, YOU WERE TRANSFERRED FROM YOUR DUTY STATION OVERSEAS TO FORT SILL, OKLAHOMA. ORDERS DATED SEPTEMBER 10, 1965, AMENDED THOSE ORDERS TO PROVIDE AS FOLLOWS:

"ADVANCE TRAVEL OF EM'S DEPN MRS ELFRIEDE BELLAMY (WIFE) AND MISS BRIGITTE M. BELLAMY DAU AGE 19. AUTH UP AR 55-46.'

YOUR CLAIM FOR MILEAGE FOR LAND TRAVEL FOR YOUR DEPENDENTS WAS DISALLOWED BY SETTLEMENT DATED MARCH 9, 1966, FOR THE REASON THAT NO ORDERS HAD BEEN FURNISHED AUTHORIZING TRANSPORTATION OF YOUR DEPENDENTS. THE CLAIM FOR DISLOCATION ALLOWANCE WAS DISALLOWED FOR THE REASON THAT THE TRAVEL PERFORMED BY YOUR DEPENDENTS WAS NOT INCIDENT TO THE PERMANENT CHANGE OF STATION ORDERS OF APRIL 9, 1965, AS AMENDED. IT APPEARS FROM YOUR LETTER THAT YOU BELIEVE PAYMENT OF YOUR CLAIM WAS DENIED BECAUSE ADMINISTRATIVE PERSONNEL DID NOT PROCESS PROPERLY YOUR APPLICATION FOR YOUR DEPENDENTS' TRAVEL. YOU CONTEND THAT YOUR CLAIM SHOULD BE ALLOWED BECAUSE THE AMENDING ORDERS OF SEPTEMBER 10, 1965, SHOW THAT THE TRAVEL WAS AUTHORIZED BY THE OVERSEAS COMMAND.

THE PROVISIONS OF 37 U.S.C. 406 AND 407 AUTHORIZE THE SECRETARIES OF THE SERVICES CONCERNED TO PRESCRIBE REGULATIONS PROVIDING FOR THE TRANSPORTATION OF A MEMBER'S DEPENDENTS AND FOR THE PAYMENT OF A DISLOCATION ALLOWANCE INCIDENT TO A DIRECTED PERMANENT CHANGE OF STATION. IT FURTHER PROVIDES THAT THE SECRETARIES CONCERNED, IN CERTAIN CIRCUMSTANCES, MAY AUTHORIZE THE MOVEMENT OF DEPENDENTS IN THE ABSENCE OF CHANGE OF STATION ORDERS OR IN ADVANCE OF THEIR ISSUANCE UNDER UNUSUAL OR EMERGENCY CIRCUMSTANCES, OR WHERE THE SECRETARY CONCERNED DETERMINES IT TO BE IN THE BEST INTERESTS OF THE MEMBER OR HIS DEPENDENTS AND THE UNITED STATES.

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 M7103 (CHANGE 136, APRIL 1, 1964), OF THE JOINT TRAVEL REGULATIONS, IN EFFECT AT THE TIME THE TRAVEL HERE WAS PERFORMED, WHICH SUPERSEDED THE PROVISIONS OF PARAGRAPH M7009 OF THE REGULATIONS, CITED IN YOUR APPLICATION OF MAY 28, 1964, PROVIDES THAT A MEMBER STATIONED OUTSIDE THE UNITED STATES IN CERTAIN SPECIFIED TYPES OF CASES MAY REQUEST AND HIS COMMANDING OFFICER MAY APPROVE TRANSPORTATION OF HIS DEPENDENTS TO AN APPROPRIATE DESTINATION IN THE UNITED STATES. SUBPARAGRAPH 2-5 SETS FORTH AS ONE OF THE TYPES OF CASES THERE CONTEMPLATED THOSE WHICH MEET THE FOLLOWING CONDITIONS:

"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.'

THIS PROVISION DOES NOT OF ITSELF CONFER A RIGHT TO TRAVEL OF DEPENDENTS UNDER THE CONDITIONS STATED BUT AUTHORIZES THE ISSUANCE OF PROPER ORDERS FOR SUCH DEPENDENT TRAVEL SUBJECT TO THOSE CONDITIONS. NO SUCH AUTHORIZATION WAS MADE BY THE ORDER ISSUING AUTHORITY FOR YOUR DEPENDENTS' TRAVEL TO THE UNITED STATES BECAUSE OF INADEQUATE EDUCATIONAL FACILITIES FOR YOUR DAUGHTER, AND THERE IS NOTHING IN THE RECORD TO SUGGEST THAT THE APPROVING AUTHORITY MADE ANY DETERMINATION AS TO THE ADEQUACY OF SCHOOL FACILITIES, OR THAT THE INADEQUACY AROSE AFTER YOUR DEPENDENTS TRAVELED TO YOUR OVERSEAS STATION OR INVOLVED CIRCUMSTANCES THAT COULD NOT HAVE BEEN ANTICIPATED. ALL THAT IS SHOWN IS THAT THE COMMANDING OFFICER OF YOUR DETACHMENT RECOMMENDED APPROVAL OF THE REQUEST IN YOUR LETTER OF MAY 22, 1964, WHICH WAS FOR WATER TRANSPORTATION ONLY.

HENCE, IT APPEARS THAT THE ORDERS OF SEPTEMBER 10, 1965, AMENDING YOUR PERMANENT CHANGE OF STATION ORDERS OF APRIL 9, 1965, TO SHOW THAT THE TRAVEL PERFORMED BY YOUR DEPENDENTS DURING THE PERIOD SEPTEMBER 19 TO OCTOBER 5, 1964, WAS AUTHORIZED, WERE ISSUED FOR THE PURPOSE OF CONFIRMING THAT YOUR APPLICATION FOR YOUR DEPENDENTS' TRAVEL, WHICH AS INDICATED WAS FOR WATER TRANSPORTATION ONLY, HAD BEEN APPROVED BY THE OVERSEAS COMMAND. IN ANY EVENT SUCH ORDERS DO NOT MEET THE REQUIREMENTS OF THE JOINT TRAVEL REGULATIONS BY REFLECTING A DETERMINATION THAT YOUR DEPENDENTS' TRANSPORTATION TO THE UNITED STATES WAS AUTHORIZED BECAUSE OF THE INADEQUACY OF SCHOOLS IN GERMANY AND THAT SUCH INADEQUACY AROSE AFTER THE COMMENCEMENT OF YOUR DEPENDENTS' TRAVEL TO YOUR OVERSEAS STATION AND SO COULD NOT HAVE BEEN ANTICIPATED. IN SUCH CIRCUMSTANCES REIMBURSEMENT OF THE COST OF LAND TRAVEL OF YOUR DEPENDENTS IS NOT AUTHORIZED.

WITH RESPECT TO YOUR CLAIM FOR DISLOCATION ALLOWANCE, PARAGRAPH M9002 OF THE REGULATIONS PROVIDES THAT EXCEPT AS PROVIDED IN PARAGRAPH M9003 (WHICH IS NOT APPLICABLE HERE) THE DISLOCATION ALLOWANCES ARE PAYABLE TO A MEMBER WHENEVER DEPENDENTS RELOCATE THEIR HOUSEHOLD IN CONNECTION WITH A PERMANENT CHANGE OF STATION. YOUR DEPENDENTS DID NOT RELOCATE THEIR HOUSEHOLD IN CONNECTION WITH YOUR PERMANENT CHANGE OF STATION INCIDENT TO YOUR ORDERS OF APRIL 9, 1965. SUCH RELOCATION WAS INCIDENT TO THEIR ADVANCE RETURN TO THE UNITED STATES. THEREFORE THERE IS NO LEGAL BASIS TO ALLOW YOUR CLAIM FOR THE DISLOCATION ALLOWANCE.

ACCORDINGLY, THE SETTLEMENT OF MARCH 9, 1966, IS CORRECT AND IS SUSTAINED.