B-162939, MAR. 27, 1968

B-162939: Mar 27, 1968

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ANDERSON: FURTHER REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 3. YOUR CLAIM WAS DISALLOWED BY OUR CLAIMS DIVISION IN SETTLEMENT DATED MAY 31. IN YOUR PRESENT LETTER YOU SAY THAT THE INDORSEMENT TO YOUR REQUEST FOR RETIREMENT DIRECTING YOU TO TAKE A PHYSICAL EXAMINATION WAS PREPARED AND SIGNED IN THE SEPARATION AND RETIREMENT DIVISION OF THE OFFICE OF THE ADJUTANT GENERAL ON JUNE 27. YOU BELIEVE THAT THE SENDING OF YOUR RECORDS TO THE RETIREMENT AND SEPARATION DIVISION WAS SUFFICIENT TO INDICATE APPROVAL OF RETIREMENT AND CONSTITUTES OFFICIAL NOTICE THAT YOUR RELEASE FROM ACTIVE DUTY ORDERS WOULD BE ISSUED. APPROVED YOUR REQUEST FOR ADVANCE SHIPMENT OF HOUSEHOLD EFFECTS AND SUCH APPROVAL WOULD NOT HAVE BEEN GIVEN UNLESS YOUR REQUEST FOR VOLUNTARY RETIREMENT HAD BEEN APPROVED.

B-162939, MAR. 27, 1968

TO COLONEL DAVID L. ANDERSON:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 3, 1967, REQUESTING RECONSIDERATION OF SETTLEMENT DATED MAY 31, 1967, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT FOR YOUR DEPENDENTS' TRAVEL (WIFE AND 2 CHILDREN) DURING THE PERIOD AUGUST 1 TO 15, 1966, FROM RICHARDS-GEBAUR AIR FORCE BASE, MISSOURI, TO SANTA BARBARA, CALIFORNIA, PRIOR TO YOUR RELEASE FROM ACTIVE DUTY ON DECEMBER 31, 1966, AND PLACEMENT ON THE U.S. ARMY RETIRED LIST EFFECTIVE JANUARY 1, 1967, PURSUANT TO ORDERS DATED DECEMBER 29, 1966, ISSUED BY HEADQUARTERS, DEPARTMENT OF THE ARMY.

YOUR CLAIM WAS DISALLOWED BY OUR CLAIMS DIVISION IN SETTLEMENT DATED MAY 31, 1967, FOR THE REASON THAT YOUR DEPENDENTS PERFORMED THE TRAVEL PRIOR TO YOUR ORDERS OR PRIOR TO RECEIPT OF OFFICIAL NOTICE THAT SUCH ORDERS WOULD BE ISSUED (PARAGRAPH M7000-8, JOINT TRAVEL REGULATIONS).

IN YOUR PRESENT LETTER YOU SAY THAT THE INDORSEMENT TO YOUR REQUEST FOR RETIREMENT DIRECTING YOU TO TAKE A PHYSICAL EXAMINATION WAS PREPARED AND SIGNED IN THE SEPARATION AND RETIREMENT DIVISION OF THE OFFICE OF THE ADJUTANT GENERAL ON JUNE 27, 1966. THEREFORE, YOU BELIEVE THAT THE SENDING OF YOUR RECORDS TO THE RETIREMENT AND SEPARATION DIVISION WAS SUFFICIENT TO INDICATE APPROVAL OF RETIREMENT AND CONSTITUTES OFFICIAL NOTICE THAT YOUR RELEASE FROM ACTIVE DUTY ORDERS WOULD BE ISSUED. ALSO, YOU SAY THAT HEADQUARTERS, FIFTH ARMY, APPROVED YOUR REQUEST FOR ADVANCE SHIPMENT OF HOUSEHOLD EFFECTS AND SUCH APPROVAL WOULD NOT HAVE BEEN GIVEN UNLESS YOUR REQUEST FOR VOLUNTARY RETIREMENT HAD BEEN APPROVED.

IT APPEARS TO BE YOUR VIEW THAT SINCE YOUR REQUEST FOR STORAGE AND SHIPMENT OF HOUSEHOLD EFFECTS PRIOR TO ISSUANCE OF RETIREMENT ORDERS WAS APPROVED BY THE COMMANDING GENERAL, FIFTH U.S. ARMY, THAT THIS APPROVAL LIKEWISE IMPLIED THAT YOU WERE AUTHORIZED TO MOVE YOUR DEPENDENTS AT GOVERNMENT EXPENSE PRIOR TO ORDERS.

THE TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS OF MEMBERS OF THE UNIFORMED SERVICES AT GOVERNMENT EXPENSE UPON PERMANENT CHANGE OF STATION (INCLUDING FROM LAST STATION TO HOME OF SELECTION UPON RETIREMENT) IS GOVERNED BY THE JOINT TRAVEL REGULATIONS ISSUED PURSUANT TO 37 U.S.C. 406. PARAGRAPH M8015-1 OF THE REGULATIONS PERMITS TRANSPORTATION OF HOUSEHOLD EFFECTS AT GOVERNMENT EXPENSE PRIOR TO ORDERS IN CASES OF EMERGENCY, EXIGENCY OF THE SERVICE, OR WHEN REQUIRED BY SERVICE NECESSITY, AS DETERMINED BY THE APPROPRIATE AUTHORITY OF THE UNIFORMED SERVICE CONCERNED. AUTHORIZATION FOR STORAGE AND SHIPMENT OF YOUR HOUSEHOLD EFFECTS PRIOR TO ORDERS APPARENTLY WAS PURSUANT TO A DETERMINATION MADE UNDER THAT PROVISION.

PARAGRAPHS M7000-8 AND M7003-4 OF THE REGULATIONS PROVIDE, HOWEVER, THAT REIMBURSEMENT IS NOT AUTHORIZED FOR ANY TRAVEL OF DEPENDENTS WHEN THE DEPENDENTS DEPART FROM THE OLD STATION PRIOR TO THE ISSUANCE OF ORDERS AND THE VOUCHER IS NOT SUPPORTED BY A CERTIFICATE BY THE COMMANDING OFFICER, OR HIS DESIGNATED REPRESENTATIVE, OF THE HEADQUARTERS ISSUING THE ORDERS THAT THE MEMBER WAS ADVISED PRIOR TO THE ISSUANCE OF CHANGE OF STATION ORDERS THAT SUCH ORDERS WOULD BE ISSUED. THE PLAIN TERMS OF THE PROVISIONS LIMIT REIMBURSEMENT FOR TRANSPORTATION WHERE DEPENDENTS DEPART FROM THE OLD PERMANENT STATION PRIOR TO THE ISSUANCE OF ORDERS TO THOSE SITUATIONS WHERE THE VOUCHER IS SUPPORTED BY THE PRESCRIBED CERTIFICATE OF THE COMMANDING OFFICER.

EXCEPT IN CERTAIN UNUSUAL OR EMERGENCY SITUATIONS OR IN CERTAIN CASES INVOLVING MEMBERS ON DUTY OUTSIDE THE UNITED STATES, MEMBERS OF THE UNIFORMED SERVICES ARE ENTITLED TO TRANSPORTATION OF DEPENDENTS UNDER THE PROVISIONS OF 37 U.S.C. 406, ONLY WHEN THEY ARE ORDERED TO MAKE A PERMANENT CHANGE OF STATION. AS INDICATED ABOVE, THE MOVE FROM LAST STATION TO HOME ON SEPARATION FROM THE SERVICE IS A PERMANENT CHANGE OF STATION FOR PURPOSES OF 37 U.S.C. 406, AND NOTICE TO A MEMBER THAT HIS REQUEST FOR RETIREMENT IS BEING PROCESSED IN THE SEPARATION AND RETIREMENT DIVISION OF THE ADJUTANT GENERAL'S OFFICE DOES NOT CONSTITUTE OFFICIAL ADVICE OF THE ISSUANCE OF ANY PERMANENT CHANGE-OF-STATION ORDERS.

WITH RESPECT TO YOUR STATEMENT THAT APPROVAL BY THE FIFTH U.S. ARMY COMMAND FOR STORAGE AND SHIPMENT OF YOUR EFFECTS PRIOR TO ORDERS IMPLIED APPROVAL FOR TRAVEL OF YOUR DEPENDENTS, PARAGRAPH M7000-8 OF THE REGULATIONS, WHICH PROVIDES THAT REIMBURSEMENT FOR DEPENDENTS' TRAVEL PRIOR TO PERMANENT CHANGE-OF-STATION ORDERS IS NOT AUTHORIZED UNLESS THE VOUCHER IS SUPPORTED BY A CERTIFICATE BY THE COMMANDING OFFICER, CONTEMPLATES A CASE WHERE ALL THE PROVISIONS OF THE ORDERS HAVE BEEN DETERMINED AND ALL THAT REMAINS TO BE DONE ADMINISTRATIVELY IS THE WRITING OF THE ORDERS. A SIMILAR VIEW OF THE APPLICATION OF PARAGRAPH M7000-8 IS TAKEN IN A GENERAL ADVISORY FROM HEADQUARTERS U.S. ARMY CONTINENTAL COMMAND, DATED JUNE 15, 1965, TO THE VARIOUS ARMY COMMANDS, INCLUDING THE FIFTH, U.S. ARMY. PARAGRAPH 2 OF THAT ADVISORY IS AS FOLLOWS:

"2. QUERIES HAVE BEEN RECEIVED IN THIS HEADQUARTERS REGARDING APPLICATION OF PARAGRAPH 7000.8, JOINT TRAVEL REGULATIONS, TO MEMBERS ANTICIPATING RETIREMENT ORDERS. CITED REGULATION REQUIRES VOUCHER TO BE SUPPORTED BY A CERTIFICATE OF THE COMMANDING OFFICER, ISSUING THE ORDERS, THAT THE MEMBER WAS ADVISED PRIOR TO ISSUANCE OF ORDERS THAT SUCH ORDERS WOULD BE ISSUED. CONSEQUENTLY, IN THE CASE OF RETIREMENT, SUCH CERTIFICATES WOULD HAVE TO BE ISSUED BY THE ADJUTANT GENERAL. HE HAS STATED THAT NORMALLY HE COULD NOT PROPERLY ISSUE CERTIFICATES STATING WITH DEFINITENESS THAT ORDERS WOULD BE ISSUED UNTIL ALL PROCESSING HAD BEEN COMPLETED, AT WHICH TIME ORDERS COULD BE ISSUED JUST AS EXPEDITIOUSLY AS CERTIFICATES.'

SINCE THE ADVISORY QUOTED ABOVE PLAINLY STATES THAT A CERTIFICATE STATING THAT THE MEMBER WAS ADVISED THAT RETIREMENT ORDERS WOULD BE ISSUED COULD NOT BE FURNISHED AND INDICATES THAT TRAVEL OF DEPENDENTS BEFORE ISSUANCE OF RETIREMENT ORDERS WOULD BE AT THE EXPENSE OF THE MEMBER, IT IS CLEAR THAT APPROVAL FROM THE FIFTH U.S. ARMY COMMAND FOR STORAGE AND SHIPMENT OF YOUR HOUSEHOLD EFFECTS PRIOR TO ORDERS DID NOT IMPLY THAT YOU WERE AUTHORIZED TO MOVE YOUR DEPENDENTS AT GOVERNMENT EXPENSE PRIOR TO ORDERS.

IN VIEW OF THE FOREGOING, AND WHILE WE APPRECIATE THAT CIRCUMSTANCES MAY HAVE MADE IT DESIRABLE FOR YOUR DEPENDENTS TO TRAVEL BEFORE YOU RECEIVED RETIREMENT ORDERS, WE ARE WITHOUT AUTHORITY TO WAIVE OR MAKE EXCEPTIONS TO THE REQUIREMENTS OF THE LAW AND REGULATIONS. SINCE THE CERTIFICATE REQUIRED BY THE REGULATIONS HAS NOT AND APPARENTLY CANNOT BE ISSUED, THERE IS NO LEGAL BASIS FOR THE PAYMENT OF YOUR CLAIM. THEREFORE, THERE IS NO FURTHER ACTION THAT WE MAY TAKE IN THE MATTER.

ACCORDINGLY, THE SETTLEMENT OF MAY 31, 1967, WAS CORRECT AND IS SUSTAINED.