B-160202, NOV. 17, 1966

B-160202, NOV. 17, 1966

TO CAPTAIN JACK V. STRICKLAND, USAF:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 23, 1966, IN EFFECT REQUESTING REVIEW OF SETTLEMENT DATED MARCH 2, 1966, WHICH DISALLOWED YOUR CLAIM FOR MILEAGE FOR YOUR SON'S TRAVEL FROM NEW YORK,NEW YORK, TO GOODFELLOW AIR FORCE BASE, TEXAS, DURING THE PERIOD AUGUST 26 TO SEPTEMBER 9, 1963.

BY PERMANENT CHANGE OF STATION ORDERS DATED AUGUST 8, 1962, YOU WERE RELIEVED FROM YOUR ASSIGNMENT AT RANDOLPH AIR FORCE BASE, TEXAS, AND ASSIGNED TO DUTY WITH THE 7167TH AIR TRANSPORT SQUADRON (M) AFE, APO 57, NEW YORK, NEW YORK. BY SPECIAL ORDER TA-633, DATED OCTOBER 26, 1962, YOUR WIFE, MARJORIE L. STRICKLAND, AND TWO CHILDREN, THOMAS C. AND LEAH A. STRICKLAND, WERE AUTHORIZED TO TRAVEL TO YOUR OVERSEAS STATION DURING THE MONTH OF DECEMBER 1962.

BY ORDERS DATED MARCH 26, 1963, YOUR SON, JACK V. STRICKLAND, A STUDENT AT THE UNIVERSITY OF TEXAS, AUSTIN, TEXAS, WAS AUTHORIZED TO TRAVEL TO YOUR OVERSEAS STATION DURING THE MONTH OF JUNE 1963. HE WAS FURNISHED A TRANSPORTATION REQUEST FOR COMMERCIAL TRANSPORTATION FROM AUSTIN, TEXAS, TO MCGUIRE AIR FORCE BASE, NEW JERSEY, AND THENCE BY GOVERNMENT AIR TO FRANKFURT, GERMANY. BY ORDERS DATED AUGUST 26, 1963, HE WAS AUTHORIZED TO PROCEED FROM YOUR OVERSEAS STATION TO THE UNIVERSITY OF TEXAS, AUSTIN, TEXAS, ON THE FIRST AVAILABLE TRANSPORTATION. THOSE ORDERS STIPULATED THAT THE EXPENSE OF TRAVEL WITHIN CONTINENTAL UNITED STATES WOULD BE BORNE BY THE SPONSOR.

YOUR SON, JACK V. STRICKLAND, DEPARTED FROM YOUR OVERSEAS DUTY STATION ON AUGUST 26, 1963. HE WAS FURNISHED GOVERNMENT WATER TRANSPORTATION FROM BREMERHAVEN, GERMANY, TO NEW YORK, NEW YORK, AND HE TRAVELED FROM THERE TO AUSTIN, TEXAS, AT PERSONAL EXPENSE, ARRIVING AT HIS DESTINATION ON SEPTEMBER 9, 1963. BY ORDERS DATED MAY 10, 1965, AS AMENDED, YOU WERE RELIEVED FROM YOUR DUTY STATION OVERSEAS AND TRANSFERRED TO DUTY AT GOODFELLOW AIR FORCE BASE, TEXAS. YOUR CLAIM FOR REIMBURSEMENT FOR LAND TRAVEL PERFORMED BY YOUR SON FROM NEW YORK, NEW YORK, TO AUSTIN, TEXAS, WAS DISALLOWED BY SETTLEMENT OF OUR CLAIMS DIVISION DATED MARCH 2, 1966, ON THE BASIS OF THE PROVISIONS OF PARAGRAPH M7103-1 OF THE JOINT TRAVEL REGULATIONS.

IN YOUR PRESENT LETTER YOU REFER TO COLONEL J. BUSH WHO YOU STATE WAS REASSIGNED FROM OVERSEAS TO GOODFELLOW AIR FORCE BASE AT APPROXIMATELY THE SAME TIME AS YOUR TRANSFER. YOU ALSO REFER TO YOUR FORMER COMMANDER, MAJOR G. GUNN, WHO DEPARTED FROM RHEINMAIN AIR BASE, GERMANY, FOR EDWARDS AIR FORCE BASE, CALIFORNIA, IN THE SUMMER OF 1965. YOU SAY THAT DEPENDENTS OF THOSE OFFICERS RETURNED FROM OVERSEAS TO CONTINENTAL UNITED STATES TO ATTEND COLLEGE PRIOR TO ISSUANCE OF PERMANENT CHANGE OF STATION ORDERS TO THE OFFICERS. ALSO, YOU SAY THOSE OFFICERS WERE PAID FOR THE LAND TRAVEL PERFORMED BY THEIR DEPENDENTS. IN VIEW OF THIS, YOU REQUEST AN EXPLANATION OF THE APPARENT DISPARITY IN THE MATTER.

UNDER THE PERTINENT STATUTE, 37 U.S.C. 406, A MEMBER OF A UNIFORMED SERVICE WHO IS ORDERED TO MAKE A PERMANENT CHANGE OF STATION IS ENTITLED TO TRANSPORTATION IN KIND FOR HIS DEPENDENT, TO REIMBURSEMENT THEREFOR, OR TO A MONETARY ALLOWANCE IN PLACE OF THAT TRANSPORTATION IN KIND. THE STATUTE 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 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 THE ISSUANCE OF REGULATIONS BY THE SECRETARIES CONCERNED. IN THIS RESPECT PARAGRAPH M7009-3.6 (CHANGE 109 DATED NOVEMBER 1, 1961) OF THE JOINT TRAVEL REGULATIONS (NOW PARAGRAPH M7103-2.5) IN EFFECT AT THE TIME THE TRAVEL HERE IN QUESTION WAS PERFORMED, PROVIDED THAT A MEMBER'S DEPENDENTS COULD BE RETURNED TO THE UNITED STATES AT GOVERNMENT EXPENSE PRIOR TO THE MEMBER'S CHANGE OF STATION IN CERTAIN UNUSUAL OR EMERGENCY CIRCUMSTANCES, INCLUDING:

"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 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 DEPENDENT'S TRAVEL TO THE UNITED STATES BECAUSE OF INADEQUATE EDUCATIONAL FACILITIES FOR YOUR SON, AND THERE IS NOTHING IN THE RECORD TO INDICATE THAT THE ORDER ISSUING AUTHORITY MADE ANY DETERMINATION AS TO THE ADEQUACY OF SCHOOL FACILITIES OR THAT THE INADEQUACY AROSE AFTER YOUR SON TRAVELED TO YOUR OVERSEAS STATION.

RATHER, IT APPEARS FROM THE RECORD THAT YOUR SON WAS A FULL TIME STUDENT ENROLLED AT THE UNIVERSITY OF TEXAS, AUSTIN, TEXAS, AND THAT HE PERFORMED THE TRAVEL FROM TEXAS TO GERMANY AND RETURNED BETWEEN JUNE AND SEPTEMBER 1963 DURING HIS SUMMER VACATION. THERE IS NO SUGGESTION THAT HE EVER INTENDED TO ENTER A SCHOOL IN GERMANY. THE CERTIFICATE OF JUNE 7, 1965, WHICH YOU FURNISHED WITH YOUR CLAIM, IS TO THE EFFECT THAT YOUR SON PERFORMED THE TRAVEL TO CONTINENTAL UNITED STATES TO ATTEND COLLEGE IN SEPTEMBER 1963 DUE TO LACK OF ADEQUATE EDUCATIONAL FACILITIES IN THAT AREA, BUT THERE IS NOTHING OF RECORD TO INDICATE THAT THE LACK OF SUCH FACILITIES AROSE AFTER COMMENCEMENT OF YOUR SON'S TRAVEL TO YOUR OVERSEAS STATION. COMPARE 39 COMP. GEN. 561.

PRESUMABLY, THE ORDERS AUTHORIZING HIS TRAVEL BETWEEN GERMANY AND TEXAS WERE ISSUED UNDER THE AUTHORITY OF PARAGRAPH 5B (2), AIR FORCE REGULATION 76-15 DATED SEPTEMBER 6, 1962, WHICH PERMITS THE TRANSPORTATION OF DEPENDENT UNDERGRADUATE COLLEGE STUDENTS OF UNITED STATES MILITARY PERSONNEL WITHOUT REGARD TO AGE ONLY ON A SPACE AVAILABLE BASIS BETWEEN THE PORTS SERVING THEIR SPONSOR'S OVERSEAS DUTY STATION. THE REGULATION FURTHER PROVIDES THAT THE ORDERS WILL SPECIFICALLY STATE THAT THE TRAVEL WOULD BE AT NO EXPENSE TO THE UNITED STATES GOVERNMENT.

THUS, UNDER THE PROVISIONS WHICH AUTHORIZED YOUR DEPENDENT'S RETURN TO THE UNITED STATES PRIOR TO PERMANENT CHANGE OF STATION ORDERS DIRECTING YOUR RETURN, TRAVEL OF YOUR DEPENDENT WAS AUTHORIZED ONLY TO THE PORT OF DEBARKATION IN THE UNITED STATES. TRAVEL FROM THE PORT AT PUBLIC EXPENSE WAS NOT AUTHORIZED UNTIL FURTHER PERMANENT CHANGE OF STATION ORDERS WERE ISSUED.

IN THESE CIRCUMSTANCES, THERE IS NO LEGAL BASIS FOR THE PAYMENT OF YOUR CLAIM FOR MILEAGE FOR YOUR SON'S LAND TRAVEL FROM NEW YORK, NEW YORK, TO AUSTIN, TEXAS. ACCORDINGLY, THE SETTLEMENT OF MARCH 2, 1966, IS CORRECT AND IS SUSTAINED.

WITH RESPECT TO YOUR REQUEST FOR AN EXPLANATION AS TO WHY COLONEL BUSH AND MAJOR GUNN WERE PAID FOR THE LAND TRAVEL PERFORMED BY THEIR DEPENDENTS, YOU ARE ADVISED THAT YOUR RIGHTS AS WELL AS THE RIGHTS OF THOSE OFFICERS IS A MATTER FOR DETERMINATION ON THE BASIS OF THE FACTS IN EACH CASE. UNDER CERTAIN CIRCUMSTANCES THE MOVEMENT OF DEPENDENTS IS AUTHORIZED IN ADVANCE OF THE MEMBER'S PERMANENT CHANGE OF STATION, AND IN THE CASES OF THOSE OFFICERS THERE MAY HAVE BEEN FACTORS FOR CONSIDERATION THAT WERE NOT PRESENT IN YOUR CASE. IF, HOWEVER, THE PAYMENTS TO THOSE OFFICERS WERE MADE UNDER CIRCUMSTANCES NOT FACTUALLY DISTINGUISHABLE FROM YOUR CASE, SUCH ERRONEOUS ACTION WOULD NOT, OF COURSE, PROVIDE ANY BASIS FOR MAKING A SIMILAR PAYMENT TO YOU. THE LEGALITY OF THE PAYMENTS TO COLONEL BUSH AND MAJOR GUNN IS A MATTER FOR DETERMINATION IN THE AUDIT OF THE DISBURSING OFFICER'S ACCOUNTS AND APPROPRIATE ACTION WILL BE TAKEN IF THE PAYMENTS WERE ERRONEOUS.