B-160969, MAY 8, 1967

B-160969: May 8, 1967

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COX: FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 1. YOU WERE RELIEVED FROM ASSIGNMENT WITH THE 404TH MILITARY POLICE COMPANY AND DIRECTED TO PROCEED TO BREMERHAVEN. YOU WERE RELIEVED FROM ACTIVE DUTY AND TRANSFERRED TO THE UNITED STATES ARMY RESERVE. IT IS FURTHER SHOWN THAT ON DECEMBER 11. MILEAGE IN THE AMOUNT OF $61.32 WAS PAID TO YOU IN CONNECTION WITH YOUR DEPENDENTS' LAND TRAVEL IN THE UNITED STATES. THAT WHILE YOUR HOUSEHOLD GOODS AND PRIVATELY OWNED AUTOMOBILE WERE SHIPPED BY THE ARMY FROM GOPPINGEN. IT WAS YOUR BELIEF THAT "FOR PERSONAL REASONS THE SERGEANT IN H.Q. AMONG THE PAPERS SUBMITTED IN SUPPORT OF YOUR CLAIM IS A CERTIFICATE IN WHICH YOU CERTIFIED THAT YOU WERE MARRIED IN GERMANY ON FEBRUARY 27.

B-160969, MAY 8, 1967

TO MR. KENNETH E. COX:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 1, 1967, REGARDING YOUR CLAIM FOR REIMBURSEMENT OF THE COST OF TRANSPORTATION OF YOUR DEPENDENTS (WIFE AND INFANT DAUGHTER) BY AIR FROM STUTTGART, GERMANY, TO NEW YORK, NEW YORK.

THE RECORD SHOWS THAT BY SPECIAL ORDERS NO. 125, HEADQUARTERS 4TH ARMORED DIVISION TRAINS, APO 326, U.S. FORCES, DATED JULY 13, 1961, YOU WERE RELIEVED FROM ASSIGNMENT WITH THE 404TH MILITARY POLICE COMPANY AND DIRECTED TO PROCEED TO BREMERHAVEN, GERMANY, NOT LATER THAN JULY 22, 1961, FOR MOVEMENT BY THE USNS GEIGER TO FORT HAMILTON, NEW YORK, FOR REASSIGNMENT AND ULTIMATE SEPARATION FROM THE MILITARY SERVICE. THOSE ORDERS DID NOT AUTHORIZE CONCURRENT TRAVEL OF YOUR DEPENDENTS TO THE UNITED STATES. BY PARAGRAPH 18, SPECIAL ORDERS NO. 207, HEADQUARTERS UNITED STATES ARMY PERSONNEL CENTER, FORT HAMILTON, NEW YORK, DATED JULY 26, 1961, YOU WERE RELIEVED FROM ACTIVE DUTY AND TRANSFERRED TO THE UNITED STATES ARMY RESERVE. THE LATTER ORDERS AUTHORIZED TRAVEL OF YOUR DEPENDENTS AND SHOWED YOUR HOME OF RECORD AS CALERA, ALABAMA.

THE RECORD FURTHER SHOWS THAT YOUR DEPENDENTS DEPARTED FROM STUTTGART, GERMANY, FOR NEW YORK, NEW YORK, ON AUGUST 2, 1961, BY KLM ROYAL DUTCH AIRLINES AND THAT YOU AND YOUR DEPENDENTS TRAVELED TO CALERA BY PRIVATELY OWNED AUTOMOBILE DURING THE PERIOD AUGUST 3 TO 5, 1961. IT IS FURTHER SHOWN THAT ON DECEMBER 11, 1961, MILEAGE IN THE AMOUNT OF $61.32 WAS PAID TO YOU IN CONNECTION WITH YOUR DEPENDENTS' LAND TRAVEL IN THE UNITED STATES.

IN A LETTER DATED MAY 2, 1966, YOU PRESENTED A CLAIM TO THE ARMY FOR REIMBURSEMENT OF THE SUM OF $325, THE COST OF YOUR DEPENDENTS' AIR TRAVEL TO THE UNITED STATES. YOU STATED IN THAT LETTER, AMONG OTHER THINGS, THAT WHILE YOUR HOUSEHOLD GOODS AND PRIVATELY OWNED AUTOMOBILE WERE SHIPPED BY THE ARMY FROM GOPPINGEN, GERMANY, TO THE UNITED STATES, IT WAS YOUR BELIEF THAT "FOR PERSONAL REASONS THE SERGEANT IN H.Q. CO.' EXCLUDED FROM YOUR ORDERS OF JULY 13, 1961, THE AUTHORIZATION FOR THE CONCURRENT TRAVEL OF YOUR DEPENDENTS TO THE UNITED STATES. AMONG THE PAPERS SUBMITTED IN SUPPORT OF YOUR CLAIM IS A CERTIFICATE IN WHICH YOU CERTIFIED THAT YOU WERE MARRIED IN GERMANY ON FEBRUARY 27, 1959. THE CLAIM, WHICH WAS FORWARDED TO OUR CLAIMS DIVISION FOR APPROPRIATE DISPOSITION, WAS DISALLOWED BY SETTLEMENT DATED JANUARY 25, 1967, FOR THE REASON THAT APPLICABLE REGULATIONS, CHANGE 90, PARAGRAPH M7000-8, JOINT TRAVEL REGULATIONS,PRECLUDE REIMBURSEMENT TO A MEMBER FOR THE COST OF DEPENDENTS' TRANSPORTATION ON A FOREIGN REGISTERED VESSEL OR AIRPLANE IF AMERICAN REGISTERED VESSELS OR AIRPLANES ARE AVAILABLE FOR THE TRAVEL.

YOU SAY IN YOUR LETTER OF FEBRUARY 1, 1967, THAT THE FINANCE OFFICE AT THE REDSTONE ARSENAL (ALABAMA) EXAMINED THE ABOVE-MENTIONED CHANGE 90, PARAGRAPH M7000-8, JOINT TRAVEL REGULATIONS, AND THAT THE REGULATION DOES NOT PERMIT REIMBURSEMENT WHERE A DEPENDENT TRAVELS BEFORE THE ISSUANCE OF ORDERS. YOU BELIEVE, THEREFORE, THAT THE REGULATION DOES NOT APPLY IN YOUR CASE SINCE YOUR DEPENDENTS COMMENCED TRAVEL 10 DAYS AFTER YOUR DEPARTURE FROM BREMERHAVEN BY VESSEL. ALSO, YOU SAY THAT YOU OBTAINED THE FOREIGN AIRLINE TICKETS AFTER APPLYING TO THE "BANKING FACILITY" AT YOUR POST FOR THE LEAST EXPENSIVE TRANSPORTATION FOR YOUR DEPENDENTS.

THE LAW IN EFFECT AT THE TIME OF YOUR DEPENDENTS' TRAVEL WAS CONTAINED IN SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 253 (C) (1958 ED.), WHICH EXPRESSLY PROVIDED THAT TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE UPON A MEMBER'S ORDERED CHANGE OF PERMANENT STATION SHALL BE UNDER SUCH CONDITIONS AND LIMITATIONS FOR SUCH RANKS, GRADES, OR RATINGS, AND TO AND FROM SUCH LOCATIONS 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 (1932).

PARAGRAPH M7000-8, JOINT TRAVEL REGULATIONS (CHANGE 90, DATED MARCH 1, 1960--- NOW PARAGRAPH M7000-7), IMPLEMENTING THE ABOVE LAW, PROVIDES THAT MEMBERS OF THE UNIFORMED SERVICES ARE ENTITLED TO TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE UPON A PERMANENT CHANGE OF STATION (WHICH INCLUDES THE CHANGE FROM LAST DUTY STATION TO HOME UPON SEPARATION), EXCEPT FOR ANY PORTION OF TRAVEL PERFORMED BY A FOREIGN REGISTERED VESSEL OR AIRPLANE IF AMERICAN REGISTERED VESSELS OR AIRPLANES ARE AVAILABLE BY THE USUALLY TRAVELED ROUTE. PARAGRAPH M2150-1 OF THE REGULATIONS REQUIRES THE USE OF VESSELS OR AIRCRAFT REGISTERED UNDER THE LAWS OF THE UNITED STATES, UNLESS DETERMINED IMPRACTICAL OR NOT AVAILABLE, FOR ALL TRAVEL AND TRANSPORTATION OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES.

THE POLICY AND PROCEDURES GOVERNING THE MOVEMENT OF ARMY PERSONNEL FROM OVERSEAS AREAS, IN IMPLEMENTATION OF THE JOINT TRAVEL REGULATIONS AND IN EFFECT AT THE TIME OF YOUR DEPENDENTS' TRAVEL, WERE PRESCRIBED BY PERTINENT ARMY REGULATIONS. PARAGRAPH 9-46, CHANGE 10, DATED APRIL 19, 1961, TO ARMY REGULATIONS 37-106, CITING ARMY REGULATIONS 55-46, PROVIDES THAT OVERSEA COMMANDERS ARE RESPONSIBLE FOR APPROVING, AUTHORIZING, AND ESTABLISHING PROCEDURES IN CONNECTION WITH MOVEMENT OF DEPENDENTS WITHIN THEIR RESPECTIVE COMMANDS OR ADMINISTRATIVE JURISDICTIONS TO THE UNITED STATES, ALASKA, HAWAII, OR POSSESSIONS, OR MOVEMENT TO OTHER OVERSEA COMMANDS. PARAGRAPH 35B, ARMY REGULATIONS 55-46, DATED NOVEMBER 16, 1959, PROVIDES THAT APPLICATION FOR TRANSPORTATION OF DEPENDENTS FROM AN OVERSEA COMMAND WILL BE MADE TO THE OVERSEA COMMANDER CONCERNED AND PARAGRAPH 35C PROVIDES THAT THE OVERSEA COMMANDER WILL PROCESS THE APPLICATION, FURNISH NECESSARY TRANSPORTATION, ASSIGN A PRIORITY OF TRAVEL, ISSUE THE NECESSARY TRAVEL ORDERS OR AUTHORIZATIONS AND DESIGNATE APPROPRIATE AGENCIES UNDER HIS COMMAND TO FURNISH ASSISTANCE AND SERVICES EQUIVALENT TO THOSE FURNISHED DEPENDENTS IN THE UNITED STATES.

THE RECORD DOES NOT SHOW WHY A PROVISION FOR CONCURRENT TRAVEL OF YOUR DEPENDENTS WAS NOT INCLUDED IN YOUR ORDERS OF JULY 13, 1961. HOWEVER, THERE IS NOTHING IN THE RECORD TO SHOW THAT IN COMPLIANCE WITH THE CONTROLLING ARMY REGULATIONS YOU HAD APPLIED TO THE OVERSEA COMMANDER FOR THE TRANSPORTATION OF YOUR DEPENDENTS TO THE UNITED STATES. PRESUMABLY, UPON RECEIPT OF A PROPER APPLICATION FROM YOU FOR YOUR DEPENDENTS' TRAVEL, YOUR OVERSEA COMMANDER WOULD HAVE PROCESSED THE APPLICATION AND ARRANGED FOR THEIR TRANSPORTATION BY GOVERNMENT VESSEL OR AIRPLANE.

HOWEVER THAT MAY BE, NO LEGAL BASIS EXISTS FOR THE ALLOWANCE OF YOUR CLAIM INASMUCH AS AN AIRPLANE OF FOREIGN RATHER THAN AMERICAN REGISTRY WAS UTILIZED BY YOUR DEPENDENTS IN TRAVELING TO THE UNITED STATES. REIMBURSEMENT OF THE COST OF SUCH TRANSPORTATION IS SPECIFICALLY PROHIBITED BY PARAGRAPHS M7000-8 AND M2150-1, JOINT TRAVEL REGULATIONS, CITED ABOVE, SINCE TRANS WORLD AIRLINES, INC., AND PAN AMERICAN AIRWAYS, BOTH REGISTERED UNDER THE LAWS OF THE UNITED STATES, OPERATED DAILY FLIGHTS BETWEEN NEW YORK AND FRANKFURT, GERMANY, DURING THE MONTHS OF JULY AND AUGUST 1961.

CONCERNING THE STATEMENT IN YOUR LETTER OF FEBRUARY 1, 1967, OF YOUR UNDERSTANDING THAT CHANGE 90, PARAGRAPH M7000-8, JOINT TRAVEL REGULATIONS, RELATES TO ADVANCE TRAVEL OF DEPENDENTS, WE MAY ADVISE YOU THAT SUCH PROVISION WAS CONTAINED IN PARAGRAPH M7000-9 AND NOT PARAGRAPH M7000-8 OF THAT CHANGE. BY CHANGE 136, DATED APRIL 1, 1964, PARAGRAPH M7000-9 WAS RENUMBERED AS PARAGRAPH M7000-8 AND PARAGRAPH M7000-8 WAS RENUMBERED AS PARAGRAPH M7000-7.

ACCORDINGLY, THE SETTLEMENT OF JANUARY 25, 1967, WAS CORRECT AND IS SUSTAINED.