B-160968, APR. 14, 1967

B-160968, APR. 14, 1967

TO LIEUTENANT COLONEL JEROME K. KELLY, USA:

REFERENCE IS MADE TO YOUR LETTER RECEIVED IN OUR OFFICE FEBRUARY 6, 1967, REQUESTING RECONSIDERATION OF OUR SETTLEMENT DATED JANUARY 23, 1967, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT FOR TRAVEL PERFORMED BY YOUR DEPENDENT CHILDREN FROM LYSAKER, NORWAY, TO NEW YORK, NEW YORK, ON DECEMBER 2" 1965, AND JANUARY 28, 1966.

BY PARAGRAPH 246, SPECIAL ORDER NO. 6, HEADQUARTERS U.S. ARMY ELEMENT, AF NORTH, APO NEW YORK 09085, DATED FEBRUARY 21, 1966, YOU WERE TO BE TRANSFERRED ON PERMANENT CHANGE OF STATION FROM THAT STATION TO FORT MOMMOUTH, NEW JERSEY, EFFECTIVE JULY 8, 1966. THE ORDERS PROVIDED FOR YOU AND YOUR DEPENDENTS TO REPORT FOR TRANSPORTATION TO THE UNITED STATES ON JUNE 28, 1966.

THE RECORD SHOWS THAT YOUR WIFE AND ONE CHILD ACCOMPANIED YOU ON YOUR DEPARTURE FROM YOUR OVERSEAS STATION ON JUNE 28, 1966, ARRIVING IN NEW YORK ON JUNE 29, 1966. YOUR OTHER TWO CHILDREN DEPARTED BY COMMERCIAL AIR AT YOUR EXPENSE PRIOR TO DATE OF ISSUANCE OF ORDERS; ONE ON DECEMBER 28, 1965, AND THE OTHER ON JANUARY 29, 1966.

IN YOUR CLAIM FOR REIMBURSEMENT FOR THE TRANSPORTATION OF YOUR TWO MINOR CHILDREN, YOU STATED THAT YOU WERE SERVICED BY AN AIR FORCE INSTALLATION WHICH WOULD NOT ISSUE A TRANSPORTATION REQUEST FOR THEIR TRAVEL. AS A BASIS FOR ALLOWANCE OF YOUR CLAIM YOU CITED PARAGRAPH M7003-4, JOINT TRAVEL REGULATIONS, AND YOU ENCLOSED A STATEMENT DATED APRIL 26, 1966, FROM THE ASSISTANT ADJUTANT AT YOUR OVERSEA STATION, WHICH RELATED THAT IT WAS ISSUED IN ACCORDANCE WITH THE PROVISIONS OF THE PARAGRAPH CITED ABOVE. IT STATED THAT YOUR CHILDREN RETURNED TO CONTINENTAL UNITED STATES AT PERSONAL EXPENSE PRIOR TO THE ISSUANCE OF PERMANENT CHANGE OF STATION ORDERS AND THAT YOU WERE ADVISED THAT REASSIGNMENT ORDERS WOULD BE ISSUED UPON RECEIPT OF ASSIGNMENT INSTRUCTIONS FROM THE DEPARTMENT OF THE ARMY. IT STATED FURTHER THAT YOUR ROTATION DATE WAS JULY, 1966, AND THAT A FIRM PORT CALL WAS ESTABLISHED FOR JUNE 28, 1966, FOR TRAVEL BY AIR.

YOUR CLAIM WAS DISALLOWED BY SETTLEMENT DATED JANUARY 23, 1967, FOR THE REASONS THERE STATED. IN YOUR LETTER YOU SAY THAT AFTER MORE THAN 2 1/2 YEARS AT YOUR OVERSEA STATION, THERE APPEARED TO BE NO QUESTION THAT YOUR ASSIGNMENT INSTRUCTIONS WOULD BE FORTHCOMING. THIS, YOU INDICATE, WAS CONFIRMED BY A TELEPHONE CONVERSATION EARLY IN DECEMBER, 1965. YOU EXPLAIN THAT WHEN THE CERTIFICATE YOU SUBMITTED WAS WRITTEN, NO DATE FOR YOUR DEPARTURE WAS NAMED, BECAUSE THE DEPARTURE DEPENDED UPON AVAILABLE TRANSPORTATION.

SECTION 406 OF TITLE 37 OF THE U.S.C. PROVIDES THAT, SUBJECT TO SUCH LIMITATIONS AND CONDITIONS AND TO AND FROM SUCH PLACES AS THE SECRETARIES MAY PRESCRIBE, A MEMBER OF A UNIFORMED SERVICE "WHO IS ORDERED TO MAKE A PERMANENT CHANGE OF STATION" IS ENTITLED TO TRANSPORTATION OF HIS DEPENDENTS. AN ORDERED CHANGE OF STATION IS A CONDITION PRECEDENT TO SUCH TRANSPORTATION AND PARAGRAPH M7000-8 OF JOINT TRAVEL REGULATIONS PROMULGATED BY THE SECRETARIES PURSUANT TO THE PROVISIONS OF 37 U.S.C. 406, PROVIDES THAT TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE IS NOT AUTHORIZED WHEN THE DEPENDENTS DEPART THE OLD STATION PRIOR TO RECEIPT OF ORDERS DIRECTING A PERMANENT CHANGE OF STATION, OR PRIOR TO RECEIPT OF OFFICIAL NOTICE THAT SUCH ORDERS WOULD BE ISSUED.

WHEN DEPENDENTS MOVE PRIOR TO ACTUAL RECEIPT OF ORDERS ON THE BASIS OF OFFICIAL NOTICE THAT ORDERS WILL BE ISSUED, PARAGRAPH M7003-4 OF THE REGULATIONS PROVIDES THAT A MEMBER IS AUTHORIZED A MONETARY ALLOWANCE IN LIEU OF TRANSPORTATION IN KIND FOR TRAVEL OF DEPENDENTS PERFORMED AT PERSONAL EXPENSE, PROVIDED THE VOUCHER IS SUPPORTED BY A STATEMENT OF THE COMMANDING OFFICER, OR HIS DESIGNATED REPRESENTATIVE OF THE HEADQUARTERS ISSUING SUCH ORDERS THAT THE MEMBER WAS ADVISED PRIOR TO THE ISSUANCE THEREOF, THAT SUCH ORDERS WOULD BE ISSUED. IN OUR OPINION THIS PROVISION HAS REFERENCE TO INSTANCES WHERE ALL PROVISIONS AND REQUIREMENTS OF THE ORDERS HAVE BEEN COMPLETELY AND FINALLY DETERMINED AND ALL THAT REMAINS TO BE DONE IS THE WRITING OF THE ORDERS.

THE PURPOSE OF THE STATUTE AUTHORIZING TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE IS TO RELIEVE A MEMBER OF THE BURDEN OF PERSONALLY DEFRAYING THE TRAVEL EXPENSES OF HIS DEPENDENTS WHEN SUCH TRAVEL IS MADE NECESSARY BY AN ORDERED CHANGE OF STATION. CONSEQUENTLY, THE CITED REGULATIONS AUTHORIZE DEPENDENTS' TRANSPORTATION ONLY IN THOSE CIRCUMSTANCES WHERE THEIR TRAVEL IS IN FACT INCIDENT TO THE MEMBER'S CHANGE OF STATION, BY LIMITING SUCH AUTHORIZATION TO TRAVEL THAT IS PERFORMED AFTER CHANGE OF STATION ORDERS ARE ACTUALLY ISSUED OR, IN CERTAIN CIRCUMSTANCES, PRIOR TO THEIR ISSUANCE WHERE THE MEMBER HAS DEFINITE KNOWLEDGE FROM A SPECIFIC OFFICIAL SOURCE THAT THE ORDERS WOULD BE ISSUED. DEPENDENTS WHO TRAVEL PRIOR TO THE ISSUANCE OF ORDERS IN RELIANCE ON ELIGIBILITY FOR ROTATION OR ON INFORMATION OBTAINED FROM OFFICIAL SOURCES THAT CHANGE OF STATION ORDERS HAVE BEEN REQUESTED OR ARE ANTICIPATED DO NOT MEET THE REQUIREMENTS OF THE LAW AND REGULATIONS AND A CERTIFICATION TO THAT EFFECT DOES NOT ESTABLISH ENTITLEMENT TO TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE. 34 COMP. GEN. 241.

THE CERTIFICATE DATED APRIL 20, 1966, ISSUED AFTER CHANGE OF STATION ORDERS DATED FEBRUARY 21, 1966, RECITES THAT YOU WERE ADVISED THAT REASSIGNMENT (PCS) ORDERS WOULD BE ISSUED UPON RECEIPT OF ASSIGNMENT INSTRUCTION FROM THE DEPARTMENT OF THE ARMY AND SHOWS YOUR ROTATION DATE AS IN JULY, 1966. AS INDICATED ABOVE INFORMATION THAT CHANGE OF STATION ORDERS WILL BE ISSUED UPON THE HAPPENING OF SOME FUTURE EVENT DOES NOT CONSTITUTE THE OFFICIAL NOTICE OF ORDERS TO WHICH THE REGULATIONS REFER.