B-163513, MAY 28, 1968

B-163513, MAY 28, 1968

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 29, 1968, AND ENCLOSURES, REQUESTING RECONSIDERATION OF YOUR CLAIM FOR REIMBURSEMENT FOR THE TRANSPORTATION OF YOUR DEPENDENTS FROM HEIDELBERG, GERMANY, TO AT MORE, ALABAMA, ON AUGUST 4, 1967.

BY TRAVEL AUTHORIZATION DATED AUGUST 3, 1967, YOUR DEPENDENTS WERE AUTHORIZED TRANSPORTATION ON OR ABOUT THAT SAME DATE BY CATEGORY 1 MATS CONTROLLED OR OPERATED AIRCRAFT ON A SPACE-AVAILABLE BASIS FROM THE PORT OF EMBARKATION IN EUROPE TO THE PORT OF DEBARKATION IN THE CONTINENTAL UNITED STATES. IT IS STATED IN THIS AUTHORIZATION THAT NO PRIORITY OR ASSURANCE COULD BE GIVEN AS TO THE TIME AND DATE OF DEPARTURE.

TRAVEL AUTHORIZATION DATED AUGUST 22, 1967, PURPORTS TO AMEND THE TRAVEL AUTHORIZATION DATED AUGUST 3, 1967, BECAUSE OF ADMINISTRATIVE OVERSIGHT AT THE TIME THE AUTHORIZATION WAS REQUESTED. THE AMENDMENT WOULD HAVE THE EFFECT OF SHOWING AMONG OTHER THINGS, THAT THE AUTHORIZATION WAS ISSUED UNDER THE PROVISIONS OF PARAGRAPH M7103-2 (7) OF THE JOINT TRAVEL REGULATIONS FOR THE ADVANCE RETURN OF DEPENDENTS TO THE CONTINENTAL UNITED STATES PRIOR TO THE RETURN OF THE SPONSOR AND THAT THE TRANSPORTATION WAS AUTHORIZED ON A SPACE-REQUIRED AIR BASIS.

ALSO, THE AMENDMENT WOULD ELIMINATE THE AUTHORIZATION FOR TRANSPORTATION ONLY FROM THE PORT OF EMBARKATION IN EUROPE TO THE PORT OF DEBARKATION IN THE UNITED STATES AND THE PROVISION FOR TRANSPORTATION BY MATS AIRCRAFT. SPECIAL ORDERS 167, DATED AUGUST 22, 1967, AS AMENDED, REASSIGNED YOU FROM YOUR OVERSEAS STATION TO THE 67TH MAINTENANCE BATTALION, FORT BENNING, GEORGIA, TO REPORT NOT LATER THAN AUGUST 30, 1967.

YOUR CLAIM WAS DISALLOWED BY SETTLEMENT DATED JANUARY 25, 1968, FOR THE REASON THAT THE TRAVEL AUTHORIZATION FOR YOUR DEPENDENTS DIRECTED THEIR TRANSPORTATION BY CATEGORY 1 MATS WHICH WAS AVAILABLE WITHIN A REASONABLE TIME, AND IT ONLY AUTHORIZED GOVERNMENT TRANSPORTATION FROM THE PORT OF EMBARKATION IN EUROPE TO THE PORT OF DEBARKATION IN THE UNITED STATES.

IN YOUR LETTER OF JANUARY 29, 1968, YOU QUESTION WHETHER YOU SHOULD BE REQUIRED TO PAY THE COST OF YOUR DEPENDENTS' TRANSPORTATION WHEN THE AMENDMENT TO THEIR TRAVEL AUTHORIZATION TO SHOW A ,SPACE REQUIRED AIR BASIS" WAS MADE TO CORRECT AN ADMINISTRATIVE OVERSIGHT. ALSO, YOU CONTEND IN EFFECT THAT IN VIEW OF THIS AMENDMENT IT WAS NOT REASONABLE FOR YOUR DEPENDENTS TO HAVE TO WAIT FOR SPACE-AVAILABLE TRANSPORTATION SINCE SOME TRAVELERS DURING THE PERIOD INVOLVED HAD BEEN WAITING 25 DAYS FOR THIS TRANSPORTATION.

ARMY REGULATION 59-12 CITED IN THE TRAVEL AUTHORIZATION OF AUGUST 3, 1967, FOR YOUR DEPENDENTS AS AUTHORITY FOR ITS ISSUANCE WAS SUPERSEDED BY AIR FORCE REGULATION 76-15 RELATING TO THE AIRLIFT SERVICE (MILITARY AIR TRANSPORT SERVICE NOW MILITARY AIRLIFT COMMAND). THIS REGULATION PROVIDES THAT SPACE-AVAILABLE PASSENGERS FALLING WITHIN VARIOUS CATEGORIES WILL BE TRANSPORTED ON A FIRST-IN, FIRST-OUT BASIS, EXCEPT THE AIR TRAFFIC COORDINATING OFFICER WILL RETAIN THE RIGHT TO CHANGE THIS PRECEDENCE IF THE SITUATION REQUIRES IT, AND THAT THERE IS NO GUARANTEED SPACE FOR SUCH PASSENGERS. CATEGORY 1 PASSENGERS AS DEFINED BY THE REGULATION INCLUDES DEPENDENTS OF MEMBERS OF THE MILITARY SERVICES ON EMERGENCY LEAVE TRAVEL IN CONNECTION WITH SERIOUS ILLNESS, DEATH, OR IMPENDING DEATH OF A MEMBER OF THE IMMEDIATE FAMILY OF THE TRAVELERS.

THE TRAVEL AUTHORIZATION OF AUGUST 22, 1967, FOR YOUR DEPENDENTS WHICH AMENDED THEIR AUTHORIZATION OF AUGUST 3, 1967, DELETES ARMY REGULATION 59- 12 AND CITES AS AUTHORITY FOR ITS ISSUANCE ARMY REGULATION 55-46 AND PARAGRAPH M7103-2 (7) OF THE JOINT TRAVEL REGULATIONS. UNDER THESE REGULATIONS ADVANCE TRANSPORTATION OF DEPENDENTS MAY BE APPROVED UNDER SPECIFIED CIRCUMSTANCES, INCLUDING SERIOUS ILLNESS OF CLOSE RELATIVES, NOTWITHSTANDING THE FACT THAT THE MEMBER'S PERMANENT STATION REMAINS UNCHANGED, FROM OUTSIDE THE UNITED STATES TO A DESIGNATED PLACE IN THE UNITED STATES, INCLUDING ALASKA AND HAWAII, IN PUERTO RICO, OR IN A TERRITORY OR POSSESSION OF THE UNITED STATES.

IT IS THE GENERAL RULE THAT TRAVEL ORDERS MAY NOT BE REVOKED OR MODIFIED RETROACTIVELY SO AS TO INCREASE OR DECREASE THE RIGHTS WHICH HAVE ACCRUED OR BECOME FIXED UNDER THE LAW AND REGULATIONS, WHEN THE ORDERED TRAVEL HAS ALREADY BEEN PERFORMED. AN EXCEPTION TO THIS RULE HAS BEEN RECOGNIZED WHEN AN ERROR IS APPARENT ON THE FACE OF THE ORIGINAL ORDERS OR THERE HAS BEEN A FULL DISCLOSURE BY THE ADMINISTRATIVE OFFICE CONCERNED OF ALL THE FACTS AND CIRCUMSTANCES SURROUNDING THE ISSUANCE OF SUCH ORDERS AND THE RECORD CLEARLY ESTABLISHES THAT SOME PROVISION PREVIOUSLY DETERMINED AND OTHERWISE AUTHORIZED AND DEFINITELY INTENDED WAS OMITTED THROUGH ERROR OR INADVERTENCE IN PREPARING THE ORDERS. 23 COMP. GEN. 713; 24 COMP. GEN. 439; AND B-158887, AUGUST 12, 1966, COPY ENCLOSED.

THE ARMY HAS NOT REPORTED THAT ANY PROVISION WAS OMITTED FROM THE TRAVEL AUTHORIZATION OF AUGUST 3, 1967, WHICH WAS INTENDED TO HAVE BEEN INCLUDED AT THE TIME IT WAS PREPARED OR THAT ANY PROVISION WAS INCLUDED THAT WAS NOT INTENDED AT THAT TIME. RATHER, AS FAR AS THE RECORD SHOWS, THE AUTHORIZATION WAS WRITTEN AS INTENDED, BUT APPARENTLY IT WAS LATER DISCOVERED THAT YOUR DEPENDENTS COULD HAVE BEEN AUTHORIZED ADDITIONAL TRANSPORTATION UNDER THE CIRCUMSTANCES INVOLVED AND THE TRAVEL AUTHORIZATION OF AUGUST 22, 1967, ATTEMPTED TO RETROACTIVELY AUTHORIZE IT AFTER THE TRAVEL HAD BEEN PERFORMED. ON THIS BASIS IT MUST BE CONCLUDED THAT THE RETROACTIVE AMENDMENT WAS WITHOUT EFFECT TO CHANGE THE TRANSPORTATION AUTHORIZED FOR YOUR DEPENDENTS BY THE TRAVEL AUTHORIZATION OF AUGUST 3, 1967.

RELATIVE TO YOUR DEPENDENTS' ENTITLEMENT TO TRANSPORTATION FROM THE PORT OF EMBARKATION IN EUROPE TO THE PORT OF DEBARKATION IN THE CONTINENTAL UNITED STATES, PARAGRAPH M7002-1B (7) OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT FOR TRANSOCEANIC TRAVEL OF DEPENDENTS TO, FROM, OR BETWEEN AREAS OUTSIDE THE UNITED STATES, GOVERNMENT AIRCRAFT OR VESSELS WILL BE UTILIZED IF AVAILABLE, EXCEPT IN CERTAIN INSTANCES INCLUDING INSTANCES WHEN IT IS DETERMINED BY THE APPROPRIATE AUTHORITY OF THE SERVICE CONCERNED THAT THE USE OF GOVERNMENT TRANSPORTATION FACILITIES WOULD INVOLVE A DELAY OF MORE THAN 30 DAYS. CONSEQUENTLY, THERE IS NO AUTHORITY FOR REIMBURSEMENT OF THE ACTUAL COSTS OF COMMERCIAL TRANSPORTATION USED IN CASES WHERE GOVERNMENT TRANSPORTATION IS SHOWN TO HAVE BEEN AVAILABLE FOR THE DEPENDENTS' TRAVEL.

WE HAVE RECOGNIZED THAT IN CASES WHERE DEPENDENTS ARE AUTHORIZED AS DISTINGUISHED FROM SPECIFICALLY DIRECTED TO TRAVEL BY GOVERNMENT CONVEYANCE WHICH IS AVAILABLE, BUT USE COMMERCIAL TRANSPORTATION FOR TRANSOCEANIC TRAVEL AT PERSONAL EXPENSE, THE MEMBER MAY BE REIMBURSED FOR THE COST OF SUCH TRAVEL ON THE BASIS OF THE STANDARD PRICES WHICH THE SPONSORING SERVICE WOULD HAVE BEEN REQUIRED TO PAY TO THE MILITARY AIR TRANSPORT SERVICE (MILITARY AIRLIFT COMMAND) OR THE MILITARY SEA TRANSPORTATION SERVICE HAD THE TRAVEL BEEN PERFORMED BY GOVERNMENT TRANSPORTATION. SEE 40 COMP. GEN. 482 AND 41 COMP. GEN. 100.

WITH RESPECT TO THE TRAVEL OF YOUR DEPENDENTS, HOWEVER, THE DEPARTMENT OF THE AIR FORCE HAS INFORMALLY REPORTED THAT SINCE THEIR TRAVEL FROM THE PORT OF EMBARKATION OVERSEAS TO THE PORT OF DEBARKATION IN THE UNITED STATES WAS AUTHORIZED ON A SPACE-AVAILABLE BASIS, THE MILITARY AIRLIFT COMMAND WOULD HAVE MADE NO CHARGE TO THE ARMY FOR SUCH TRANSPORTATION.

CONSEQUENTLY THE RECORD DOES NOT PROVIDE A BASIS TO ALLOW YOU ANY AMOUNT FOR THE TRAVEL OF YOUR DEPENDENTS AND THE SETTLEMENT OF JANUARY 25, 1968, IS SUSTAINED.