B-162325, OCT. 3, 1967

B-162325: Oct 3, 1967

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OFFICER WHO WHEN HE ARRIVED AT PIER FOR OVERSEAS TRANSPORTATION LEARNED THAT SON BY REASON OF BEING 21 YEARS OF AGE WAS NOT ENTITLED TO TRANSPORTATION AT GOVERNMENT EXPENSE. THE ADMINISTRATIVE REPORT INDICATES THAT CABIN OCCUPIED BY SON WAS LOCATED IN FIRST CLASS SECTION OF VESSEL AND THAT FARE PAID FOR PASSAGE WAS MINIMUM FIRST CLASS FARE MUST BE ACCEPTED AS ESTABLISHING THE FACTS IN ABSENCE OF SHOWING TO THE CONTRARY. 38 C.G. 527. TIEDE: REFERENCE IS MADE TO YOUR LETTER OF AUGUST 18. YOU WERE ASSIGNED ON PERMANENT CHANGE OF STATION TO 7310TH AIR BASE GROUP (USAFE). INCLUDING YOUR OLDEST SON WHO WAS THEN 21 YEARS OLD. WAS AUTHORIZED. IT WAS DETERMINED THAT DUE TO HIS AGE YOUR OLDEST SON WAS NOT AUTHORIZED OVERSEA TRAVEL AS YOUR DEPENDENT.

B-162325, OCT. 3, 1967

TRANSPORTATION - DEPENDENTS - MILITARY PERSONNEL - OVER-AGE DEPENDENTS DECISION TO AIR FORCE OFFICER CONCERNING CLAIM FOR TRANSPORTATION OF SON AGE 21 TO MEMBER'S OVERSEAS STATION. OFFICER WHO WHEN HE ARRIVED AT PIER FOR OVERSEAS TRANSPORTATION LEARNED THAT SON BY REASON OF BEING 21 YEARS OF AGE WAS NOT ENTITLED TO TRANSPORTATION AT GOVERNMENT EXPENSE, ALTHOUGH ORDERS HAD AUTHORIZED CONCURRENT TRANSPORTATION, MAY NOT BE RELIEVED OF LIABILITY FOR COST OF TRANSPORTATION FURNISHED. WITH RESPECT TO OBJECTION THAT FACILITIES FURNISHED DID NOT WARRANT FIRST CLASS CHARGES, THE ADMINISTRATIVE REPORT INDICATES THAT CABIN OCCUPIED BY SON WAS LOCATED IN FIRST CLASS SECTION OF VESSEL AND THAT FARE PAID FOR PASSAGE WAS MINIMUM FIRST CLASS FARE MUST BE ACCEPTED AS ESTABLISHING THE FACTS IN ABSENCE OF SHOWING TO THE CONTRARY. 38 C.G. 527.

TO COLONEL RICHARD E. TIEDE:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 18, 1967, REQUESTING RECONSIDERATION OF THE SETTLEMENT BY OUR CLAIMS DIVISION DATED JULY 28, 1967, WHICH DISALLOWED YOUR CLAIM FOR REFUND OF THE MONEY BEING COLLECTED FROM YOU FOR TRANSPORTATION FURNISHED YOUR SON, RICHARD E. TIEDE, JR., FROM NEW YORK, NEW YORK, TO BREMERHAVEN, GERMANY, ON THE SS UNITED STATES, SAILING JULY 29, 1966.

BY SPECIAL ORDER NO. 57, HEADQUARTERS, UNITED STATES STRIKE COMMAND, MCDILL AIR FORCE BASE, FLORIDA, DATED MARCH 24, 1966, YOU WERE ASSIGNED ON PERMANENT CHANGE OF STATION TO 7310TH AIR BASE GROUP (USAFE), NAPO NEW YORK 09057. CONCURRENT TRAVEL OF DEPENDENTS, INCLUDING YOUR OLDEST SON WHO WAS THEN 21 YEARS OLD, WAS AUTHORIZED. A SUBSEQUENT AMENDMENT TO YOUR ORDERS, DATED JUNE 14, 1966, DIRECTED YOU TO REPORT WITH YOUR DEPENDENTS NO LATER THAN 0700 JULY 29, 1966, AT A PIER IN NEW YORK CITY FOR OVERSEAS TRANSPORTATION ON BOARD THE SS UNITED STATES. A LATER AMENDMENT DATED AUGUST 4, 1966, DELETED THE CONCURRENT TRAVEL AUTHORIZATION FOR YOUR OLDEST SON, RICHARD E. TIEDE, JR. AND PROVIDED FOR HIS TRANSPORTATION ON A SPACE AVAILABLE BASIS ONLY.

IT APPEARS THAT WHEN YOU ARRIVED IN NEW YORK CITY WITH YOUR DEPENDENTS ON JULY 29, 1966, IT WAS DETERMINED THAT DUE TO HIS AGE YOUR OLDEST SON WAS NOT AUTHORIZED OVERSEA TRAVEL AS YOUR DEPENDENT. SINCE, HOWEVER, IT WAS THEN TOO LATE TO REMOVE BAGGAGE FROM THE VESSEL, YOU WERE ALLOWED TO HAVE YOUR SON ON BOARD, BUT WERE INFORMED THAT YOU MIGHT BE CHARGED FOR HIS PASSAGE IF HIS TRAVEL WAS NOT AUTHORIZED BY THE AIR FORCE. IT WAS SUBSEQUENTLY REPORTED THAT YOUR SON WAS PROVIDED AN INSIDE CADET CABIN, LOCATED IN THE FIRST CLASS SECTION OF THE VESSEL AND THAT THE FARE OF $445.50 WHICH REPRESENTED THE MINIMUM FIRST CLASS FARE, WAS CHARGED BY THE CONTRACT CARRIER TO THE MILITARY SEA TRANSPORTATION SERVICE AND WAS ULTIMATELY PAID BY THE AIR FORCE.

BY LETTER DATED NOVEMBER 8, 1966, HEADQUARTERS, AIR FORCE ACCOUNTING AND FINANCE CENTER, DENVER, COLORADO, DETERMINED THAT SINCE YOUR SON WAS NOT A DEPENDENT WITHIN THE MEANING OF 37 U.S.C. 401, HIS TRANSPORTATION AT GOVERNMENT EXPENSE WAS NOT AUTHORIZED AND THERE WAS NO BASIS FOR RELIEVING YOU OF THE OBLIGATION FOR THE COST OF THE TRANSPORTATION FURNISHED.

IN YOUR LETTER OF NOVEMBER 29, 1966, TO THE AIR FORCE AUTHORITIES, YOU APPEALED THE VALIDITY OF THE DEBT, THE AMOUNT, AND YOUR LIABILITY THEREFOR. YOU STATED YOU ACTED IN GOOD FAITH AND MADE EVERY ATTEMPT TO DETERMINE IF YOUR SON WAS AUTHORIZED TO TRAVEL WITH YOU. YOU ALSO CONTENDED THAT THE AMOUNT CHARGED BY THE CARRIER WAS EXCESSIVE, SINCE YOUR SON OCCUPIED QUARTERS ASSIGNED TO MERCHANT MARINE CADETS WHICH WERE NOT FIRST CLASS QUARTERS, ALTHOUGH HE DID EAT IN THE FIRST CLASS DINING ROOM. FINALLY, YOU INDICATED THAT AT THAT TIME YOU WERE NOT AWARE OF THE PROVISIONS OF 37 U.S.C. 401, BUT RELIED ON THE KNOWLEDGE OF SERVICE EXPERTS IN THE MATTER. THIS APPEAL WAS DENIED JANUARY 27, 1967, BY THE AIR FORCE ACCOUNTING AND FINANCE CENTER.

BY LETTER DATED FEBRUARY 28, 1967, YOU SUBMITTED A CLAIM TO OUR CLAIMS DIVISION, IN WHICH YOU REFERRED TO YOUR STATEMENTS IN YOUR LETTER DATED NOVEMBER 29, 1966, AS THE BASIS OF YOUR CLAIM. YOUR CLAIM WAS DISALLOWED BY SETTLEMENT DATED JULY 28, 1967, FOR THE REASONS STATED.

YOU CONTEND IN YOUR PRESENT LETTER THAT SINCE YOUR SON IS CONSIDERED TO BE AN ADULT, IT IS HE WHO RECEIVED THE LEGAL BENEFIT OF THE SERVICE RENDERED AND YOU AS HIS PARENT ARE NOT RESPONSIBLE TO THE GOVERNMENT FOR REPAYMENT OF THE ERRONEOUS COST INCURRED FOR HIS TRANSPORTATION. FURTHERMORE, YOU ALLEGE THAT YOU WERE NOT NOTIFIED THAT THE ORDER AUTHORIZING YOUR SON'S TRANSPORTATION AT GOVERNMENT EXPENSE WAS INVALID UNTIL IMMEDIATELY PRIOR TO THE DEPARTURE OF THE SS UNITED STATES. ALSO, YOU OBJECT TO THE AMOUNT OF THE FARE, STATING THAT THE FACILITIES FURNISHED HIM DID NOT WARRANT FIRST CLASS CHARGES. FINALLY, YOU POINT OUT THAT IF EVERYONE IS CHARGED WITH CONSTRUCTIVE KNOWLEDGE THAT THE ORDER AUTHORIZING YOUR SON'S TRAVEL WAS INVALID, IT WOULD SEEM THAT THE CARRIER IS ALSO BOUND BY THIS PRINCIPLE AND THERE WAS NO LEGAL CONTRACTUAL OBLIGATION FOR THE GOVERNMENT TO PAY THE CARRIER FOR THE UNAUTHORIZED PASSAGE OF YOUR SON AND THERE CAN BE NO LEGAL BASIS ON WHICH TO ESTABLISH YOUR LIABILITY.

SECTION 401 OF CHAPTER 7, TITLE 37, U.S.C. DEFINES THE TERM "DEPENDENT" AS USED IN THAT CHAPTER AS INCLUDING IN PERTINENT PART AN UNMARRIED LEGITIMATE CHILD WHO EITHER IS UNDER 21 YEARS OF AGE, OR IS INCAPABLE OF SELF-SUPPORT BECAUSE OF A MENTAL OR PHYSICAL DISABILITY AND WHO IS IN FACT DEPENDENT ON THE MEMBER FOR MORE THAN ONE-HALF OF HIS SUPPORT. SECTIONS 406 (A) AND 406 (C) OF TITLE 37, PROVIDE IN PERTINENT PART THAT SUBJECT TO SUCH CONDITIONS AND LIMITATIONS AS THE SECRETARIES CONCERNED MAY PRESCRIBE, A MEMBER OF A UNIFORMED SERVICE WHO IS ORDERED TO MAKE A CHANGE OF PERMANENT STATION, IS ENTITLED TO TRANSPORTATION IN KIND FOR HIS DEPENDENTS, TO REIMBURSEMENT THEREOF, OR TO MONETARY ALLOWANCE IN LIEU OF TRANSPORTATION IN KIND.

PARAGRAPH M7067 OF THE JOINT TRAVEL REGULATIONS, ISSUED PURSUANT TO THOSE STATUTORY PROVISIONS, PROVIDES GENERALLY THAT ENTITLEMENT TO TRANSPORTATION OF DEPENDENTS IS BASED ON THE DEPENDENT'S STATUS ON THE EFFECTIVE DATE OF THE ORDERS DIRECTING THE MEMBER'S LAST PERMANENT CHANGE OF STATION. IMPLEMENTING REGULATIONS CONTAINED IN AIR FORCE MANUAL 75-4, PROVIDE THAT DEPENDENTS OF MILITARY PERSONNEL WHO ARE NOT AUTHORIZED THEIR TRANSPORTATION AT GOVERNMENT EXPENSE ARE ,UNAUTHORIZED DEPENDENTS" AND THE TRANSPORTATION OF SUCH DEPENDENTS IS THE PERSONAL RESPONSIBILITY OF THE SPONSOR.

PRESUMABLY YOU LISTED YOUR OLDEST SON AS ONE OF YOUR DEPENDENTS FOR THE PURPOSE OF CONCURRENT TRAVEL TO YOUR OVERSEAS STATION UNDER ORDERS OF MARCH 24, 1966, AS AMENDED, AND HE WAS INCLUDED IN THE ORDERS BECAUSE OF THAT ACTION. WHILE YOU MAY NOT HAVE BEEN AWARE OF THE FACT THAT HIS TRANSPORTATION WAS NOT AUTHORIZED AT GOVERNMENT EXPENSE WHEN YOU NAMED HIM AS A DEPENDENT, HIS TRANSPORTATION WAS NEVERTHELESS FURNISHED AT YOUR INSTANCE AND IN OUR VIEW, THE CHARGES FOR THAT TRANSPORTATION ARE YOUR RESPONSIBILITY AS STATED IN AIR FORCE MANUAL 75-4.

UNDER THE PROCEDURES GOVERNING THE EMBARKATION OF MILITARY PERSONNEL AND THEIR DEPENDENTS TRAVELING OVERSEAS ON VESSELS OPERATED BY COMMERCIAL CARRIERS UNDER CONTRACT WITH THE MILITARY SEA TRANSPORTATION SERVICE (MSTS), THE APPROPRIATE SERVICE ACTIVITY REQUIRING SUCH TRANSPORTATION FURNISHES MSTS WITH A PASSENGER LIST OF THE MEMBERS AND ACCOMPANIED DEPENDENTS SCHEDULED FOR SAILING ON BOARD THE ASSIGNED VESSEL. THE ASSIGNMENT OF ACCOMMODATIONS IS MADE FROM THE PASSENGER LISTS FURNISHED, BASED ON THE AVAILABILITY OF CABIN SPACE AS REPORTED BY THE CARRIER. THE ACCOMMODATIONS APPARENTLY WERE ASSIGNED TO YOUR SON IN ACCORD WITH SUCH PROCEDURES. THE CARRIER IS NOT CONCERNED WITH THE QUESTION AS TO WHETHER THE PERSONNEL ASSIGNED BY MSTS TO THE ACCOMMODATIONS OCCUPIED ARE ENTITLED TO PASSAGE AT GOVERNMENT EXPENSE IN SUCH CASES. THE QUESTION OF LIABILITY FOR THE COST INCURRED IS A MATTER FOR DETERMINATION BETWEEN THE SPONSOR AND THE SERVICE ACTIVITY WHICH AUTHORIZED THE TRAVEL OF HIS DEPENDENTS.

WITH RESPECT TO WHETHER THE CABIN SPACE USED BY YOUR SON WAS A FIRST CLASS ACCOMMODATION, THE ADMINISTRATIVE REPORT WHICH ADVISED THAT YOUR SON OCCUPIED A CABIN WHICH WAS PHYSICALLY LOCATED IN THE FIRST CLASS SECTION OF THE VESSEL AND THAT THE FARE PAID TO THE CONTRACTOR FOR HIS PASSAGE REPRESENTED THE MINIMUM FIRST CLASS FARE, MUST BE ACCEPTED AS ESTABLISHING THE FACTS SET FORTH THEREIN AS A BASIS FOR THE COST PAID BY THE GOVERNMENT, IN THE ABSENCE OF A CLEAR SHOWING OF ERROR. SEE 38 COMP. GEN. 527.

IT IS UNFORTUNATE THAT YOU REQUESTED TRANSPORTATION FOR YOUR SON IN IGNORANCE OF THE GOVERNING LAW AND REGULATIONS. YOUR LACK OF KNOWLEDGE IN THAT RESPECT, HOWEVER, AFFORDS NO LEGAL BASIS FOR RELIEVING YOU OF CHARGES FOR YOUR SON'S TRANSPORTATION.

ACCORDINGLY, THE SETTLEMENT OF JULY 28, 1967, WAS CORRECT AND MUST BE SUSTAINED.