B-165073, DECEMBER 13, 1968, 48 COMP. GEN. 408

B-165073, DECEMBER 13, 1968, 48 COMP. GEN. 408

TRANSPORTATION - MILITARY PERSONNEL - COMMERCIAL MEANS - REIMBURSEMENT WHERE ONLY GOVERNMENT AIR TRANSPORTATION IS AVAILABLE TO AN ENLISTED MAN UPON CHANGE OF DUTY STATION FROM OVERSEAS TO THE UNITED STATES AND BECAUSE HIS WIFE IS AFRAID TO TRAVEL BY AIR HE IS AUTHORIZED TO TRAVEL AT HIS OWN EXPENSE BY COMMERCIAL SURFACE TRANSPORTATION, THE MEMBER MAY BE REIMBURSED FOR HIS TRANSOCEANIC TRAVEL TO THE EXTENT IT WOULD HAVE COST THE GOVERNMENT TO PROVIDE THE AIR TRANSPORTATION HE WAS ENTITLED TO UNDER PARAGRAPH M4159-4A OF THE JOINT TRAVEL REGULATIONS. THE MEMBER ALSO IS ENTITLED TO A MONETARY ALLOWANCE INCIDENT TO THE LAND TRAVEL PERFORMED BY HIM FROM HIS OVERSEAS DUTY STATION TO THE POINT WHERE GOVERNMENT AIR TRAVEL WOULD HAVE BEEN AVAILABLE AND FROM THE AERIAL POINT OF DEBARKATION IN THE UNITED STATES TO HIS NEW DUTY STATION. TRANSPORTATION - DEPENDENTS - MILITARY PERSONNEL - AVAILABILITY OF GOVERNMENT TRANSPORTATION - COMMERCIAL MEANS WHEN THE WIFE OF AN ARMY ENLISTED MAN IS AFRAID TO TRAVEL BY AIRPLANE AND THERE IS NO JUSTIFICATION FOR THE ISSUANCE OF A MEDICAL CERTIFICATE, BUT THE MEMBER WHO IN ORDER TO MEET THE REPORTING DATE AT HIS NEW DUTY STATION IN THE UNITED STATES FROM AN OVERSEAS ASSIGNMENT IS AUTHORIZED TO TRAVEL WITH HIS DEPENDENT BY COMMERCIAL SURFACE TRANSPORTATION AS NO GOVERNMENT SURFACE TRANSPORTATION WAS AVAILABLE IS ENTITLED PURSUANT TO PARAGRAPH M4159-4 OF THE JOINT TRAVEL REGULATIONS TO REIMBURSEMENT FOR THE COST OF HIS WIFE'S TRAVEL BY COMMERCIAL SURFACE TRANSPORTATION WITHOUT REDUCTION. ALSO PAYMENT OF A MONETARY ALLOWANCE MAY BE MADE TO THE MEMBER TO COVER THE LAND TRAVEL OF HIS DEPENDENT FROM THE OVERSEAS STATION TO THE PORT OF EMBARKATION AND FROM THE PORT OF DEBARKATION TO THE NEW DUTY STATION.

TO MAJOR C. J. COSTELLO, DEPARTMENT OF THE ARMY, DECEMBER 13, 1968:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 26, 1968, AND ENCLOSURES, FORWARDED HERE BY 1ST INDORSEMENT DATED AUGUST 9, 1968, OF THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE, REQUESTING AN ADVANCE DECISION REGARDING THE PROPRIETY OF PAYMENT ON A VOUCHER SUBMITTED BY SP 5 (E-5) CHARLES W. BROWN, RA 33 633 980, FOR REIMBURSEMENT FOR TRAVEL PERFORMED BY HIM AND DEPENDENT WIFE FROM KAISERSLAUTERN, GERMANY, TO FORT DEVENS, MASSACHUSETTS, DURING THE PERIOD MARCH 29 TO APRIL 26, 1967. YOUR REQUEST WAS ASSIGNED PDTATAC CONTROL NO. 68-32.

INSOFAR AS HERE MATERIAL, ORDERS WERE ISSUED ON JANUARY 30, 1967, ASSIGNING MR. BROWN TO FORT BRAGG. CONCURRENT TRAVEL OF HIS DEPENDENT WIFE WAS AUTHORIZED. ON FEBRUARY 10, 1967, THESE ORDERS WERE AMENDED TO AUTHORIZE TRAVEL BY AIR AND DIRECTING HIM TO REPORT TO RHEIN-MAIN AIR BASE, FRANKFURT, GERMANY, ON FEBRUARY 24, 1967, FOR A DESIGNATED FLIGHT. THE MEMBER INFORMED HIS PERSONNEL OFFICER THAT HE COULD NOT RETURN BY AIR BECAUSE HIS WIFE WAS AFRAID TO FLY, AND HE WAS ADVISED TO OBTAIN A DOCTOR'S STATEMENT AS REQUIRED BY REGULATIONS TO SUPPORT HIS REQUEST FOR SURFACE TRANSPORTATION.

HE SUBMITTED A "MEDICAL STATEMENT FOR REDEPLOYMENT TO CONUS" DATED FEBRUARY 13, 1967, EXECUTED BY A MEDICAL OFFICER WHO CERTIFIED THAT HIS WIFE "HAS A MARKED FEAR OF HEIGHTS AND FLYING," AND HE ADVISED THE PERSONNEL OFFICER OF HIS COMMAND ORGANIZATION THAT HE DESIRED TO BEAR THE EXPENSE OF COMMERCIAL SURFACE TRANSPORTATION TO THE UNITED STATES IF HE COULD NOT OBTAIN GOVERNMENT SURFACE TRANSPORTATION. ON THE SAME DATE THE MEDICAL STATEMENT ALONG WITH A REDEPLOYMENT REQUEST WAS FORWARDED WITH A REQUEST FOR SURFACE TRANSPORTATION. HOWEVER, ON FEBRUARY 17, 1967, ADVICE WAS RECEIVED THAT THE MEMBER COULD NOT GET GOVERNMENT TRANSPORTATION BECAUSE SPACE WAS UNAVAILABLE AND THAT THE REASON SHOWN IN THE MEDICAL STATEMENT WAS NOT SUFFICIENT TO REMOVE SCHEDULED PASSENGERS TO GIVE PASSAGE FOR HIM AND HIS WIFE.

ON MARCH 4, 1967, ORDERS WERE ISSUED REASSIGNING THE MEMBER TO FORT STEWART, GEORGIA, WITH DUTY STATION AT HUNTER AIR FORCE BASE, AND AUTHORIZING CONCURRENT TRAVEL OF HIS WIFE. ON MARCH 11, 1967, ORDERS WERE ISSUED REVOKING THE LATTER ORDERS AND REASSIGNING THE MEMBER TO FORT DEVENS, MASSACHUSETTS. HE WAS DIRECTED BY THOSE ORDERS, WHICH ALSO AUTHORIZED TRAVEL BY AIR AND CONCURRENT TRAVEL OF HIS WIFE, TO REPORT TO FRANKFURT FLUGHAFEN AIRPORT FOR A DESIGNATED FLIGHT DEPARTING MARCH 12, 1967.

IT APPEARS THAT THE MEMBER AGAIN INSISTED ON SURFACE TRANSPORTATION AND IN THIS CONNECTION HE WAS INFORMED THAT DEPENDENTS WHO REFUSE TO TRAVEL BY AIR FOR OTHER THAN MEDICAL REASONS MAY WAIT UNTIL SURFACE TRAVEL VIA AMERICAN FLAG VESSELS BECOMES AVAILABLE AND FURTHER THAT CONCURRENT TRAVEL FOR HIM AND HIS WIFE WOULD BE APPROVED IN THAT CIRCUMSTANCE PROVIDED HE COULD MEET THE REPORTING DATE AT THE NEW DUTY STATION. UPON RECEIVING THIS ADVICE, THE MEMBER ON MARCH 22, 1967, EXECUTED THE FOLLOWING STATEMENT:

I DESIRE TO RETURN TO CONUS BY COMMERCIAL TRANSPORTATION AT MY OWN EXPENSE. I UNDERSTAND THAT I WILL NOT BE ENTITLED TO REIMBURSEMENT FOR THIS TRANSPORTATION BY THE GOVERNMENT TO THE CONUS PORT OF DEBARKATION.

ON THE BASIS OF THAT STATEMENT, ORDERS WERE ISSUED ON MARCH 24, 1967, REVOKING THE ORDERS OF MARCH 11, 1967, AND IN AGAIN REASSIGNING HIM TO FORT DEVENS, INCORPORATED THE FOLLOWING SPECIAL INSTRUCTION:

INDIV HAS REQ AND ELECT TO TVL BY COMM TRANS AT OWN EXP AND IS AUTH TO UTILIZE COMM TRANS AT OWN EXP W/O REIMB FOR THAT PORTION OF TVL FR THIS COND TO PORT OF DEBARKATION IN CONUS. GOVT TRANS WOULD HAVE BEEN AVAIL DURING THE PERIOD OF 23 THRU 31 MAR 67.

THE MEMBER AND HIS WIFE TRAVELED ON MARCH 29, 1967, BY PRIVATELY OWNED AUTOMOBILE FROM KAISERSLAUTERN TO BREMERHAVEN, GERMANY, AND FROM BREMERHAVEN TO NEW YORK, NEW YORK, BY COMMERCIAL SURFACE VESSEL DURING THE PERIOD MARCH 30 TO APRIL 5, 1967. TRAVEL FROM NEW YORK TO FORT DEVENS ON APRIL 26, 1967, WAS PERFORMED BY PRIVATELY OWNED AUTOMOBILE.

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 UPON A CHANGE OF PERMANENT STATION.

PARAGRAPH M4159-4A, JOINT TRAVEL REGULATIONS, PROMULGATED UNDER THAT STATUTORY AUTHORITY, PROVIDES THAT WHEN TRAVEL BY GOVERNMENT TRANSPORTATION IS AUTHORIZED (AS DISTINGUISHED FROM DIRECTED) AND THE MEMBER PERFORMS TRANSOCEANIC TRAVEL BY ANOTHER MODE OF TRANSPORTATION (OTHER THAN FOREIGN-FLAG) AT PERSONAL EXPENSE, HE IS ENTITLED TO REIMBURSEMENT FOR THE COST OF THE TRANSPORTATION UTILIZED NOT TO EXCEED THE APPLICABLE TARIFF CHARGE WHICH THE SPONSORING SERVICE WOULD HAVE BEEN REQUIRED TO PAY FOR THE AVAILABLE GOVERNMENT TRANSPORTATION. ALSO, PARAGRAPH M7002-1 OF THE REGULATIONS SPECIFIES THAT FOR TRANSOCEANIC TRAVEL OF DEPENDENTS TO, FROM OR BETWEEN AREAS OUTSIDE THE UNITED STATES, GOVERNMENT AIRCRAFT OR VESSELS WILL BE UTILIZED, AND (ITEM 5) THAT WHEN DEPENDENTS REFUSE TO TRAVEL BY GOVERNMENT AIRCRAFT, TRANSPORTATION WILL BE FURNISHED BY GOVERNMENT VESSEL, IF AVAILABLE, OTHERWISE COMMERCIAL VESSEL.

THE ABOVE REGULATIONS HAVE BEEN IMPLEMENTED BY REGULATIONS ISSUED BY THE APPROPRIATE ARMY COMMAND IN EUROPE. USAREUR REGULATION NO. 40 355, CHANGE 1, ANNEX B,"AIR REDEPLOYMENT MEDICAL INFORMATION," IN PERTINENT PART, READS AS FOLLOWS:

THE PURPOSE OF THE INFORMATION IN THIS ANNEX IS TO AID MEDICAL OFFICERS TO DETERMINE WHETHER OR NOT INDIVIDUALS MAY FLY IN A PASSENGER STATUS. CONCERNS PERSONS TRAVELING ON COMMERCIAL FLIGHTS AS WELL AS THOSE TRAVELING ON MAC CHARTER FLIGHTS. THE RESTRICTIONS DO NOT APPLY TO MAC MEDICAL EVACUATION FLIGHTS. "MEDICAL CRITERIA FOR PASSENGER FLYING," APPROVED BY THE AMERICAN MEDICAL ASSOCIATION, MAY BE USED AS GUIDANCE FOR EVALUATING PASSENGERS FOR AIR TRANSPORTATION.

B. NEUROPSYCHIATRIC. PERSONS MANIFESTING UNPREDICTABLE BEHAVIOR OR THOSE REQUIRING RESTRAINT SHOULD NOT FLY IN A PASSENGER STATUS. THOSE WITH CONVULSIVE DISORDERS SUBJECT TO FREQUENT SEIZURES SHOULD BE ACCOMPANIED BY A PARENT OR RESPONSIBLE ADULT DESIGNATED BY PARENT OR OTHER COMPETENT AUTHORITY. FEAR OF FLYING CANNOT BE JUSTIFIED TO CONTRAINDICATE AIR TRAVEL. PARAGRAPH 301-8, USAREUR REGULATION NO. 55 355, IN PERTINENT PART, READ AS FOLLOWS:

COMMERCIAL TRANSPORTATION AT INDIVIDUAL EXPENSE.

A. MILITARY AND CIVILIAN PERSONNEL ENTITLED TO GOVERNMENT TRANSPORTATION FOR THEMSELVES AND THEIR DEPENDENTS MAY BE AUTHORIZED, ON THEIR REQUEST, TO RETURN BY COMMERCIAL MEANS AT INDIVIDUAL EXPENSE. REQUEST FOR COMMERCIAL TRANSPORTATION MUST BE SIGNED BY BOTH THE ADULT DEPENDENT AND THE PRINCIPAL AND MUST INDICATE:

(1) THAT TENTATIVE ARRANGEMENTS FOR COMMERCIAL TRANSPORTATION HAVE BEEN COMPLETED.

(2) THE APPROXIMATE DATE OF DEPARTURE DESIRED.

(3) THAT TRAVEL TO THE PORT OF DEBARKATION IN THE UNITED STATES WILL BE PERFORMED AT NO EXPENSE TO THE GOVERNMENT AND THAT A CLAIM FOR REIMBURSEMENT WILL NOT BE SUBMITTED.

THOSE REGULATIONS OPERATE TO PRECLUDE REIMBURSEMENT OF THE COST OF COMMERCIAL TRANSPORTATION IN SUCH CASES BUT THEY DO NOT REQUIRE A WAIVER OF ALL TRAVEL AND TRANSPORTATION ALLOWANCES AND IN OUR OPINION DO NOT REQUIRE THE CONCLUSION THAT THE MEMBERS CONCERNED MAY NOT BE REIMBURSED FOR THEIR TRAVEL IN THE AMOUNT THE GOVERNMENT WOULD HAVE BEEN REQUIRED TO PAY FOR THEIR GOVERNMENT TRANSPORTATION.

SINCE THE ORDERS OF MARCH 24, 1967, DID NOT DIRECT OR AUTHORIZE THE MEMBER TO UTILIZE GOVERNMENT TRANSPORTATION IN PROCEEDING TO HIS NEW STATION--- GOVERNMENT AIR TRANSPORTATION BEING AVAILABLE--- BUT PURSUANT TO HIS REQUEST AND IN ACCORDANCE WITH THE ABOVE-QUOTED PARAGRAPH 301-8, PERMITTED HIM TO TRAVEL BY COMMERCIAL TRANSPORTATION FROM EUROPE TO A PORT OF DEBARKATION IN THE UNITED STATES AT HIS OWN EXPENSE WITHOUT REIMBURSEMENT OF THE COST OF THE COMMERCIAL TRANSPORTATION, THERE APPEARS TO BE NO VALID BASIS FOR REIMBURSING HIM FOR MORE THAN THE APPLICABLE TARIFF CHARGE THE ARMY WOULD HAVE BEEN REQUIRED TO PAY FOR THE AVAILABLE GOVERNMENT AIR TRANSPORTATION, TO WHICH HE OTHERWISE WAS ENTITLED UNDER PARAGRAPH M4159-4A OF THE JOINT TRAVEL REGULATIONS. HE MAY BE REIMBURSED FOR HIS TRANSOCEANIC TRAVEL ON THAT BASIS ONLY.

CONCERNING THE UTILIZATION OF COMMERCIAL SURFACE TRANSPORTATION BY THE MEMBER'S DEPENDENT, THERE IS INCLUDED IN THE FILE A MEMORANDUM DATED NOVEMBER 15, 1967, FROM THE DEPUTY CHIEF OF STAFF FOR LOGISTICS CONCERNING THE DEPARTMENT OF THE ARMY POLICY ON THE USE OF SURFACE TRAVEL EFFECTIVE WHEN GOVERNMENT VESSELS OPERATED BY THE MILITARY SEA TRANSPORTATION SERVICE WERE INDEFINITELY SUSPENDED. IT IS STATED THEREIN, AMONG OTHER THINGS, THAT UNDER THIS POLICY--- WHICH WAS FORMULATED WITH THE CONCURRENCE OF THE DEPUTY CHIEF OF STAFF FOR PERSONNEL AND THE SURGEON GENERAL WHO RULED THAT ACROPHOBIA (FEAR OF FLYING) DOES NOT CONSTITUTE JUSTIFICATION FOR A MEDICAL CERTIFICATE--- THE ONLY MANDATORY REQUIREMENTS FOR SURFACE TRANSPORTATION IS FOR DEPENDENTS WITH A BONA FIDE DOCTOR'S CERTIFICATE AND THAT THE REMAINDER OF THE SURFACE SPACE PROCURED BY MSTS FOR THE ARMY'S USE IS THEN ASSIGNED TO FAMILY GROUPS PURSUANT TO THE PROVISIONS OF ARMY REGULATION NO. 55-91. IT IS FURTHER STATED IN THAT MEMORANDUM THAT WHEN DEPENDENTS REFUSE TO TRAVEL BY AIR FOR OTHER THAN MEDICAL REASONS, THEY MAY BE PERMITTED TO WAIT UNTIL SURFACE TRAVEL VIA AMERICAN FLAG SURFACE CARRIER BECOMES AVAILABLE.

IN VIEW OF THAT POLICY AND THE PROVISIONS OF THE ABOVE-QUOTED PARAGRAPH B. OF USAREUR REGULATION NO. 40-355, THE MEDICAL CERTIFICATE DATED FEBRUARY 13, 1967, APPEARS TO HAVE BEEN INSUFFICIENT TO QUALIFY THE MEMBER AND HIS DEPENDENT FOR A PRIORITY ASSIGNMENT ON GOVERNMENT CHARTERED COMMERCIAL SURFACE TRANSPORTATION.

HOWEVER, PARAGRAPH M7002-2B OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT FOR TRANSOCEANIC TRAVEL OF DEPENDENTS THE MEMBER MAY BE REIMBURSED IN THE SAME MANNER AS FOR HIS OWN TRAVEL UNDER PARAGRAPH M4159-4 OF THE REGULATIONS,"EXCEPT THAT WHEN TRANSPORTATION VIA GOVERNMENT VESSEL IS NOT AVAILABLE AND DEPENDENTS REFUSE TO TRAVEL BY AVAILABLE GOVERNMENT AIRCRAFT, REIMBURSEMENT FOR COMMERCIAL TRANSPORTATION COSTS WILL NOT EXCEED THE COST OF PASSAGE BY COMMERCIAL VESSEL.' IN VIEW OF THAT EXPRESS AUTHORITY, AND IN THE CIRCUMSTANCES OF TRAVEL SHOWN, THE DEPENDENT APPARENTLY NOT HAVING SIGNED THE WAIVER OF REIMBURSEMENT OF THE COST OF COMMERCIAL TRANSPORTATION, IT IS CONCLUDED THAT THE NUMBER IS ENTITLED TO REIMBURSEMENT FOR THE COST OF HIS WIFE'S COMMERCIAL SURFACE TRANSPORTATION WITHOUT REDUCTION.

THERE IS NOTHING IN THE RECORD TO SHOW WHETHER THE MEMBER HAS BEEN PAID A MONETARY ALLOWANCE INCIDENT TO THE LAND TRAVEL PERFORMED BY HIM AND HIS DEPENDENT. IT APPEARS THAT ENTITLEMENT EXISTS FOR (1) THE LAND TRAVEL PERFORMED BY HIM FROM HIS LAST DUTY STATION, KAISERSLAUTERN, TO FRANKFURT, GERMANY, WHERE GOVERNMENT AIR TRANSPORTATION WOULD HAVE BEEN AVAILABLE, AND FROM MCGUIRE AIR FORCE BASE, NEW JERSEY, THE AERIAL POINT OF DEBARKATION IN THE UNITED STATES TO FORT DEVENS AND (2) THE LAND TRAVEL PERFORMED BY HIS DEPENDENT FROM KAISERSLAUTERN TO BREMERHAVEN, PORT OF EMBARKATION, AND FROM NEW YORK, NEW YORK, PORT OF DEBARKATION, TO FORT DEVENS.

ACCORDINGLY, THE VOUCHER AND SUPPORTING PAPERS ARE RETURNED FOR PAYMENT AS INDICATED, INCLUDING ALLOWANCE FOR THE LAND TRAVEL INVOLVED SHOULD IT BE ASCERTAINED THAT PAYMENT TO THE MEMBER FOR SUCH LAND TRAVEL HAS NOT BEEN MADE.