B-161265, JUN. 29, 1967

B-161265: Jun 29, 1967

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

RETIRED: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 22. WHICH WERE RECEIVED HERE ON APRIL 4. YOU WERE REASSIGNED FROM YOUR OVERSEAS DUTY STATION IN GERMANY TO FORT WADSWORTH. YOU WERE PLACED ON THE RETIRED LIST AND TRANSFERRED TO THE U.S. IT IS ALSO DISCLOSED THAT ON THE LATTER DATE YOU AND YOUR DEPENDENT DEPARTED FROM JOHN F. WAS ACCOMPLISHED BY RAIL. PRECLUDE REIMBURSEMENT TO A MEMBER FOR THE COST OF PERSONAL TRAVEL AND DEPENDENT'S TRANSPORTATION ON A FOREIGN REGISTERED VESSEL OR AIRPLANE IF AMERICAN REGISTERED VESSELS OR AIRPLANES WERE AVAILABLE FOR THE TRAVEL. THAT THE WAITING PERIOD FOR GOVERNMENT SPACE- AVAILABLE TRAVEL (AIRPLANE) WAS FROM SIX TO NINE MONTHS FROM JULY 1.

B-161265, JUN. 29, 1967

TO SERGEANT FIRST CLASS MICHAEL J. MARKOVICH, USA, RETIRED:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 22, 1967, AND ENCLOSURE, WHICH WERE RECEIVED HERE ON APRIL 4, 1967, FROM THE FINANCE CENTER, U.S. ARMY, INDIANAPOLIS, INDIANA, IN EFFECT REQUESTING A REVIEW OF OFFICE SETTLEMENT DATED FEBRUARY 2, 1967, WHICH ALLOWED YOU THE SUM OF $7.08 ON YOUR CLAIM FOR REIMBURSEMENT OF THE COST OF PERSONAL TRAVEL AND DEPENDENT'S TRANSPORTATION FROM NEW YORK, NEW YORK, TO ULM, GERMANY, ON JULY 20 AND 21, 1966.

THE RECORD SHOWS THAT BY ORDERS DATED APRIL 19, 1966, YOU WERE REASSIGNED FROM YOUR OVERSEAS DUTY STATION IN GERMANY TO FORT WADSWORTH, NEW YORK, FOR PROCESSING FOR RETIREMENT AND THAT BY ORDERS DATED MAY 3, 1966, YOU WERE PLACED ON THE RETIRED LIST AND TRANSFERRED TO THE U.S. ARMY RESERVE (RETIRED RESERVE) EFFECTIVE JUNE 1, 1966, WITH PLACE OF RETIREMENT SHOWN AS FORT HAMILTON, NEW YORK.

THE ITINERARY PREPARED BY YOU IN SUPPORT OF YOUR CLAIM DISCLOSES THAT SUBSEQUENT TO YOUR RETIREMENT AT FORT HAMILTON YOU AND YOUR DEPENDENT (WIFE) DEPARTED FROM FORT WADSWORTH (NEW YORK, NEW YORK) BY PRIVATELY- OWNED VEHICLE ON JULY 1, 1966, FOR GARY, INDIANA, AND RETURNED TO NEW YORK, NEW YORK, ON JULY 20, 1966. IT IS ALSO DISCLOSED THAT ON THE LATTER DATE YOU AND YOUR DEPENDENT DEPARTED FROM JOHN F. KENNEDY INTERNATIONAL AIRPORT, NEW YORK, BY AN AIRPLANE OF FOREIGN REGISTRY (LUFTHANZA AIR LINES) FOR STUTTGART, GERMANY, AND THAT AFTER ARRIVAL THERE ON THE FOLLOWING DAY TRAVEL TO YOUR HOME OF SELECTION, ULM, GERMANY, WAS ACCOMPLISHED BY RAIL. IN THE SETTLEMENT OF YOUR CLAIM, OUR CLAIMS DIVISION ALLOWED YOU THE SUM OF $7.08, REPRESENTING MILEAGE ALLOWANCE FOR LAND TRAVEL FROM STUTTGART TO ULM (59 MILES AT 6 CENTS PER MILE TIMES 2), AND DISALLOWED THAT PORTION OF YOUR CLAIM COVERING THE COST OF AIR TRAVEL FROM NEW YORK TO STUTTGART BECAUSE APPLICABLE REGULATIONS, PARAGRAPHS M2150-1 AND M7000-7, JOINT TRAVEL REGULATIONS, PRECLUDE REIMBURSEMENT TO A MEMBER FOR THE COST OF PERSONAL TRAVEL AND DEPENDENT'S TRANSPORTATION ON A FOREIGN REGISTERED VESSEL OR AIRPLANE IF AMERICAN REGISTERED VESSELS OR AIRPLANES WERE AVAILABLE FOR THE TRAVEL.

IN YOUR LETTER OF FEBRUARY 22, 1967, YOU EXPLAIN THE NECESSITY FOR YOUR USE OF A FOREIGN REGISTERED AIRPLANE ON THE GROUND THAT YOU HAD A JOB WAITING FOR YOU IN ULM; THAT THE WAITING PERIOD FOR GOVERNMENT SPACE- AVAILABLE TRAVEL (AIRPLANE) WAS FROM SIX TO NINE MONTHS FROM JULY 1, 1966; THAT THE WAITING PERIOD FOR AN AMERICAN REGISTERED AIRPLANE WAS THREE TO FOUR DAYS DUE TO A STRIKE; AND THAT YOU CANNOT TRAVEL BY VESSEL SINCE YOU HAVE A BAD STOMACH.

THE CONTROLLING STATUTORY PROVISIONS, 37 U.S.C. 404 AND 406, PROVIDE THAT, UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, A MEMBER OF THE UNIFORMED SERVICES AND HIS DEPENDENTS ARE ENTITLED TO TRANSPORTATION AT GOVERNMENT EXPENSE FROM LAST DUTY STATION TO HOME UPON SEPARATION. THE LAWS PROVIDE FURTHER THAT A MEMBER WHO IS RETIRED IN THE CIRCUMSTANCES DESCRIBED MAY SELECT HIS HOME FOR THE PURPOSES OF TRAVEL AND TRANSPORTATION ALLOWANCES PAYABLE UNDER THOSE SECTIONS.

REGULATIONS ISSUED PURSUANT TO THE ABOVE STATUTORY AUTHORITY ARE CONTAINED IN THE JOINT TRAVEL REGULATIONS. PARAGRAPH M7000-7 OF THOSE REGULATIONS, CITED IN THE AFOREMENTIONED SETTLEMENT, PROVIDES THAT MEMBERS OF THE UNIFORMED SERVICES ARE ENTITLED TO TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE UNDER A PERMANENT CHANGE OF STATION (WHICH INCLUDES THE CHANGE FROM LAST DUTY STATION TO HOME UPON RETIREMENT), 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. THE RESTRICTION AGAINST THE USE OF FOREIGN REGISTERED AIRCRAFT IS SPECIFICALLY SET OUT IN PARAGRAPH M2150-1, ALSO CITED IN THE SETTLEMENT. UNDER THAT PARAGRAPH, THE USE OF VESSELS OR AIRCRAFT REGISTERED UNDER THE LAWS OF THE UNITED STATES IS REQUIRED, UNLESS DETERMINED IMPRACTICAL OR NOT AVAILABLE, FOR ALL TRAVEL AND TRANSPORTATION OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES. PARAGRAPH M2150-2 SPECIFIES THAT WHERE THE AUTHORITY ISSUING TRAVEL ORDERS DETERMINES THAT THE USE OF VESSELS OR AIRCRAFT REGISTERED UNDER THE LAWS OF THE UNITED STATES WOULD SERIOUSLY INTERFERE WITH OR PREVENT THE PERFORMANCE OF OFFICIAL BUSINESS, HE MAY AUTHORIZE THE USE OF VESSELS OR AIRCRAFT OF FOREIGN REGISTRY. IT FURTHER PROVIDES THAT SUCH A DETERMINATION MAY NOT BE BASED MERELY ON A SHORT DELAY IN AWAITING TRANSPORTATION BY VESSELS OR AIRCRAFT OF UNITED STATES REGISTRY.

APPARENTLY YOU TRAVELED TO FORT WADSWORTH AT GOVERNMENT EXPENSE IN ACCORDANCE WITH THE ORDERS OF APRIL 19, 1966, AND AFTER YOUR RETIREMENT ON JUNE 1, 1966, YOU SELECTED ULM AS YOUR HOME. UNDER APPLICABLE REGULATIONS AND ACTING UPON AN APPLICATION, THE ARMY WOULD HAVE ARRANGED FOR YOUR TRAVEL FROM NEW YORK TO ULM AT GOVERNMENT EXPENSE BY A RESERVATION ON EITHER MILITARY OR CHARTERED AIRCRAFT. SUCH RESERVATION IS REQUIRED TO BE PROCURED ON A PRIORITY BASIS IN ACCORDANCE WITH THE REGULATIONS. APPEARS THAT YOU ELECTED TO UTILIZE AN AIRPLANE OF FOREIGN REGISTRY TO TRAVEL TO GERMANY RATHER THAN AVAILING YOURSELF OF GOVERNMENT SPACE- AVAILABLE AIR TRANSPORTATION ON A PRIORITY BASIS OR WAIT SEVERAL DAYS FOR A FLIGHT BY A UNITED STATES REGISTERED AIRPLANE BECAUSE OF AN AIRLINES STRIKE.

SINCE IT APPEARS THAT UNITED STATES REGISTERED AIRCRAFT OPERATED DAILY FLIGHTS BETWEEN NEW YORK AND GERMANY AT THE TIME OF YOUR TRAVEL TO GERMANY (EXCEPT FOR THE FEW DAYS OF THE STRIKE), REIMBURSEMENT OF THE COST OF YOUR AIR TRAVEL IS CLEARLY PROHIBITED BY THE REGULATIONS CITED ABOVE. THOSE REGULATIONS, PROMULGATED PURSUANT TO STATUTORY AUTHORITY, HAVE THE FORCE AND EFFECT OF LAW AND WE ARE WITHOUT JURISDICTION TO WAIVE THE PROVISIONS THEREOF OR MAKE AN EXCEPTION TO SUCH PROVISIONS IN THE SETTLEMENT OF CLAIMS BY OUR OFFICE. THE FACT THAT YOU HAD TO TAKE AN IMMEDIATE FLIGHT TO STUTTGART ON THE DAY OF ARRIVAL IN NEW YORK TO BE IN ULM ON A CERTAIN DATE, AND, THEREFORE, TRAVELED BY THE ONLY AVAILABLE FLIGHT FOR THAT PURPOSE, THAT IS, ON AN AIRPLANE OF FOREIGN REGISTRY, MAY NOT SERVE TO JUSTIFY FAVORABLE ACTION ON YOUR CLAIM. SUCH URGENT TRAVEL TO GERMANY WAS ACCOMPLISHED FOR YOUR PERSONAL CONVENIENCE AND INTERESTS AND NOT BECAUSE OF URGENT GOVERNMENT BUSINESS OR OFFICIAL NECESSITY WITHIN THE CONTEMPLATION OF PARAGRAPH M2150-2, JOINT TRAVEL REGULATIONS.

UNDER YOUR ORDERS OF APRIL 19, 1966, YOU WERE ALSO ENTITLED TO REIMBURSEMENT OF THE COST OF TRANSPORTATION OF YOUR DEPENDENT FROM YOUR LAST PERMANENT DUTY STATION, WHICH WE HAVE INFORMALLY ASCERTAINED AS BEING FURST, GERMANY, TO HOME OF SELECTION, ULM. IN CONSIDERATION OF PARAGRAPH M7000-7, WHICH IN EFFECT PROHIBITS REIMBURSEMENT OF THE COST OF ANY PORTION OF TRAVEL PERFORMED BY FOREIGN REGISTERED AIRPLANE, YOU WERE ENTITLED TO A MILEAGE ALLOWANCE FOR HER RAIL TRAVEL FROM STUTTGART, TERMINAL OF THE AIRLINE USED, TO ULM, SINCE THE DISTANCE INVOLVED DOES NOT EXCEED THE DISTANCE FROM FURST TO ULM. IN THE SETTLEMENT YOU WERE ALLOWED MILEAGE FOR THE DISTANCE BETWEEN STUTTGART AND ULM AND, HENCE, NO ADDITIONAL AMOUNT IS DUE IN CONNECTION WITH HER TRAVEL FROM NEW YORK TO ULM.

ACCORDINGLY, THE SETTLEMENT OF FEBRUARY 2, 1967, WAS CORRECT AND IS SUSTAINED. THE COPY OF THAT SETTLEMENT WHICH YOU FORWARDED WITH YOUR LETTER OF FEBRUARY 22, 1967, IS RETURNED.