B-167863, OCT. 7, 1969

B-167863: Oct 7, 1969

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IS NOT ENTITLED TO EXCESS COST OF COMMERCIAL AIR AND MOTOR TRAVEL OF DEPENDENTS FROM ALLENTOWN. TO CLINTON-SHERMAN OVER MONETARY ALLOWANCE RECEIVED BASED ON THEIR TRANSPORTATION FROM DEBARKATION TO CLINTON-SHERMAN UNDER APPLICABLE REGULATIONS SINCE DEPENDENTS' TRAVEL TO LEAVE POINT FOR VISIT WAS NOT FOR CHANGE OF RESIDENCE. NO SHOWING IS MADE OF NONAVAILABILITY OF OR REQUEST FOR GOVERNMENT TRANSPORTATION FROM DEBARKATION TO CLINTON SHERMAN NOR IS CASE CONSIDERED TO CONTAIN ELEMENTS OF LEGAL LIABILITY OR EQUITY DESERVING CONGRESSIONAL CONSIDERATION. USAF: REFERENCE IS MADE TO YOUR CLAIM FOR REIMBURSEMENT OF THE DIFFERENCE BETWEEN COST OF TRANSPORTATION OF YOUR DEPENDENTS BY COMMERCIAL AIR FROM ALLENTOWN.

B-167863, OCT. 7, 1969

TRANSPORTATION--DEPENDENTS--VISITS--ACCOMPANYING MEMBER ON LEAVE UPON DEBARKING AT MCGUIRE AIR FORCE BASE, NEW JERSEY, DURING TRANSFER FROM OVERSEAS TO CLINTON-SHERMAN AIR FORCE BASE, OKLAHOMA, MEMBER WHO WITH DEPENDENTS TRAVELED TO PENNSYLVANIA ON LEAVE BEFORE CONTINUING TO CLINTON- SHERMAN, IS NOT ENTITLED TO EXCESS COST OF COMMERCIAL AIR AND MOTOR TRAVEL OF DEPENDENTS FROM ALLENTOWN, PA; TO CLINTON-SHERMAN OVER MONETARY ALLOWANCE RECEIVED BASED ON THEIR TRANSPORTATION FROM DEBARKATION TO CLINTON-SHERMAN UNDER APPLICABLE REGULATIONS SINCE DEPENDENTS' TRAVEL TO LEAVE POINT FOR VISIT WAS NOT FOR CHANGE OF RESIDENCE, NO SHOWING IS MADE OF NONAVAILABILITY OF OR REQUEST FOR GOVERNMENT TRANSPORTATION FROM DEBARKATION TO CLINTON SHERMAN NOR IS CASE CONSIDERED TO CONTAIN ELEMENTS OF LEGAL LIABILITY OR EQUITY DESERVING CONGRESSIONAL CONSIDERATION.

TO STAFF SERGEANT ROBERT J KENESTON, USAF:

REFERENCE IS MADE TO YOUR CLAIM FOR REIMBURSEMENT OF THE DIFFERENCE BETWEEN COST OF TRANSPORTATION OF YOUR DEPENDENTS BY COMMERCIAL AIR FROM ALLENTOWN, PENNSYLVANIA, TO OKLAHOMA CITY, OKLAHOMA, PLUS MONETARY ALLOWANCE TO CLINTON-SHERMAN AIR FORCE BASE, OKLAHOMA, AND THE MONETARY ALLOWANCE PAID FOR THEIR TRAVEL FROM MCGUIRE AIR FORCE BASE, NEW JERSEY, TO CLINTON-SHERMAN AIR FORCE BASE, INCIDENT TO ORDERS OF DECEMBER 17, 1968.

BY SPECIAL ORDERS NO. AA-1012, DATED DECEMBER 17, 1968, YOU WERE TRANSFERRED ON PERMANENT CHANGE OF STATION FROM YOUR OVERSEAS STATION TO CLINTON-SHERMAN AIR FORCE BASE, OKLAHOMA. CONCURRENT TRAVEL OF DEPENDENTS WAS AUTHORIZED AND TRAVEL BY PRIVATELY OWNED AUTOMOBILE WAS PERMITTED FOR YOUR OWN PERSONAL CONVENIENCE. THE EFFECTIVE DATE OF TRANSFER WAS STATED TO BE MARCH 10, 1969, AND YOU WERE TO REPORT TO YOUR NEW DUTY STATION 35 DAYS AFTER DEPARTURE FROM THE PORT OF DEBARKATION. THE ORDERS SHOWED YOUR LEAVE ADDRESS TO BE IN LEHIGHTON, PENNSYLVANIA.

THE VOUCHER EVIDENCING PAYMENT FOR YOUR DEPENDENTS' TRAVEL SHOWS THAT THEY DEPARTED RAF MILDENHALL, ENGLAND, BY MILITARY AIRCRAFT ON MARCH 5, 1969, ARRIVING AT MCGUIRE AIR FORCE BASE, NEW JERSEY. MONETARY ALLOWANCE IN LIEU OF TRANSPORTATION OF DEPENDENTS WAS PAID FOR THE OFFICIAL DISTANCE FROM MCGUIRE AIR FORCE BASE TO CLINTON-SHERMAN AIR FORCE BASE, OKLAHOMA.

IN A CLAIMS VOUCHER DATED APRIL 8, 1969, AND ACCOMPANYING LETTER YOU SAY THAT YOU, YOUR WIFE AND THREE MINOR CHILDREN (ALL UNDER 5 YEARS OF AGE) TRAVELED BY PRIVATELY OWNED AUTOMOBILE FROM MCGUIRE AIR FORCE BASE TO YOUR LEAVE ADDRESS IN LEHIGHTON, PENNSYLVANIA. SHORTLY THEREAFTER, YOU TRAVELED WITHOUT YOUR DEPENDENTS TO YOUR NEW DUTY STATION TO SECURE HOUSING FOR YOUR FAMILY. YOU ALSO SAY THAT AFTER BEING ASSIGNED GOVERNMENT HOUSING, YOU OBTAINED A TRANSPORTATION REQUEST FOR YOUR DEPENDENTS' TRAVEL BY COMMERCIAL AIR FROM ALLENTOWN, PENNSYLVANIA TO OKLAHOMA CITY, OKLAHOMA.

IT APPEARS THAT SINCE THE TRANSPORTATION OFFICER FAILED TO SIGN THE TRANSPORTATION REQUEST, IT WAS NOT ACCEPTED BY THE AIRLINE AND YOUR WIFE HAD TO PAY THE COST OF THE FLIGHT, WHICH AMOUNTED TO $208.11. YOUR DEPENDENTS COMPLETED THEIR TRAVEL BY PRIVATELY OWNED AUTOMOBILE FROM OKLAHOMA CITY TO YOUR DUTY STATION. YOU CONTEND THAT THROUGH AN ADMINISTRATIVE ERROR YOU WERE REQUIRED TO PAY FOR THE AIR TRAVEL AND YOU CLAIM REIMBURSEMENT FOR THE COST THEREOF, WITH MONETARY ALLOWANCE FOR THE TRAVEL PERFORMED BY YOUR DEPENDENTS FROM OKLAHOMA CITY TO YOUR STATION, LESS THE MONETARY ALLOWANCE ALREADY RECEIVED.

BY LETTER DATED APRIL 21, 1969, THE COMMANDING OFFICER, HEADQUARTERS, EIGHTH AIR FORCE (SAC), WESTOVER AIR FORCE BASE, MASSACHUSETTS, TRANSMITTED YOUR CLAIM, AND RECOMMENDED ITS PAYMENT, STATING THAT DUE TO AN ADMINISTRATIVE ERROR A VALID TRANSPORTATION REQUEST WAS NOT AVAILABLE.

THE AIR FORCE ACCOUNTING AND FINANCE CENTER, DENVER, COLORADO, IN TRANSMITTING THE CLAIM TO THIS OFFICE, RECOGNIZED THAT THERE WAS NO AUTHORITY FOR ITS PAYMENT, BUT SUBMITTED IT FOR CONSIDERATION UNDER THE PROVISIONS OF THE MERITORIOUS CLAIMS ACT OF APRIL 10, 1928, 31 U.S.C. 236. THAT ACT PROVIDES FOR THE SUBMISSION TO THE CONGRESS BY THIS OFFICE OF THOSE CLAIMS WHICH MAY NOT BE LAWFULLY ADJUSTED BY THE USE OF AN APPROPRIATION THERETOFORE MADE, BUT WHICH ARE DETERMINED TO CONTAIN "SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS TO BE DESERVING OF THE CONSIDERATION OF THE CONGRESS.'

PARAGRAPH M7000-12, JOINT TRAVEL REGULATIONS, PROMULGATED PURSUANT TO THE PROVISIONS OF 37 U.S.C. 406, PROVIDES THAT MEMBERS ARE NOT ENTITLED TO TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE UPON A PERMANENT CHANGE OF STATION FOR TRAVEL OF DEPENDENTS BETWEEN POINTS OTHERWISE AUTHORIZED TO A PLACE AT WHICH THEY DO NOT INTEND TO ESTABLISH A RESIDENCE. IT PROVIDES FURTHER THAT TRAVEL EXPENSE OF DEPENDENTS FOR PLEASURE TRIPS OR FOR PURPOSES OTHER THAN THE INTENT TO CHANGE THE DEPENDENTS' RESIDENCE MAY NOT BE CONSIDERED AN OBLIGATION OF THE GOVERNMENT.

PARAGRAPH M7002 OF THE REGULATIONS PROVIDES GENERALLY THAT UPON A PERMANENT CHANGE OF STATION, TRANSPORTATION IN KIND MAY BE FURNISHED A MEMBER'S DEPENDENTS UPON HIS REQUEST, FOR TRAVEL FROM HIS OLD TO HIS NEW PERMANENT STATION OR BETWEEN OTHER POINTS OTHERWISE AUTHORIZED. PARAGRAPH M7002-1D PROVIDES THAT WHEN TRAVEL IS PERFORMED PARTLY AT PERSONAL EXPENSE AND PARTLY BY GOVERNMENT PROCURED TRANSPORTATION, MONETARY ALLOWANCE IN LIEU OF TRANSPORTATION IS PAYABLE FOR THE OFFICIAL DISTANCE BETWEEN THE POINTS AUTHORIZED, LESS THE DISTANCE FOR WHICH THE GOVERNMENT-PROCURED TRANSPORTATION WAS USED.

PARAGRAPH M7002-2A PROVIDES THAT FOR OVERLAND TRAVEL, WHEN TRANSPORTATION REQUESTS ARE NOT AVAILABLE FOR DEPENDENT TRAVEL, A MEMBER MAY RECEIVE REIMBURSEMENT FOR THE ACTUAL COST OF COMMERCIAL TRANSPORTATION FOR THE MODE OF TRANSPORTATION AUTHORIZED AND ACTUALLY USED OR THE MONETARY ALLOWANCE PRESCRIBED IN PARAGRAPH M7003, AS HE MAY ELECT. PARAGRAPH M7003 PROVIDES THAT A MEMBER IS AUTHORIZED MONETARY ALLOWANCE IN LIEU OF TRANSPORTATION FOR TRAVEL PERFORMED BY DEPENDENTS AT PERSONAL EXPENSE FOR THE OFFICIAL DISTANCE BETWEEN THE OLD AND NEW PERMANENT STATION OR POINTS OTHERWISE AUTHORIZED.

IT CONSISTENTLY HAS BEEN HELD THAT THE TRAVEL OF A DEPENDENT FOR THE PURPOSE OF A PLEASURE TRIP OR FOR VISITING OR FOR ANY PURPOSE OTHER THAN A CHANGE OF THE DEPENDENTS' RESIDENCE IN CONNECTION WITH THE CHANGE OF THE MEMBER'S PERMANENT STATION, MAY NOT BE CONSIDERED AN OBLIGATION OF THE GOVERNMENT. 33 COMP. GEN. 431. TRAVEL PERFORMED IN ACCOMPANYING A MEMBER WHILE ON LEAVE MUST BE CONSIDERED AS TRAVEL FOR THE PURPOSE OF VISITING AND THERE IS NO OBLIGATION ON THE PART OF THE GOVERNMENT TO PROVIDE TRANSPORTATION FOR DEPENDENTS TO AND FROM SUCH LEAVE AREA OR TO REIMBURSE THE MEMBER FOR THE EXCESS DISTANCE FOR SUCH TRAVEL WHEN IN CONNECTION WITH A CHANGE OF RESIDENCE INCIDENT TO A PERMANENT CHANGE OF STATION. SEE B- 119374, AUGUST 5, 1954, AND B 129061, SEPTEMBER 21, 1956 (COPIES ENCLOSED).

FOR THE OVERLAND TRAVEL INVOLVED, THE GOVERNMENT WAS OBLIGATED TO FURNISH TRANSPORTATION IN KIND FOR YOUR DEPENDENTS FROM MCGUIRE AIR FORCE BASE, PORT OF DEBARKATION TO YOUR NEW DUTY STATION, IF YOU SO DESIRED. THIS INCLUDED AIR TRANSPORTATION IF SO AUTHORIZED FOR DEPENDENT TRAVEL. GOVERNMENT OR GOVERNMENT PROCURED AIR TRANSPORTATION WAS NOT AVAILABLE AT THAT TIME, THE COST OF THE AIR TRANSPORTATION ACTUALLY USED WOULD HAVE BEEN REIMBURSABLE.

THE RECORD DOES NOT SHOW, HOWEVER, THAT YOU REQUESTED TRANSPORTATION IN KIND WHILE AT THE PORT OF DEBARKATION OR THAT GOVERNMENT OR GOVERNMENT PROCURED AIR TRANSPORTATION WAS NOT AVAILABLE FOR YOUR DEPENDENTS' TRAVEL FROM THAT LOCATION TO THE NEW DUTY STATION DURING THE PERIOD INVOLVED. THE CONTRARY, THE RECORD SHOWS THAT YOU AND YOUR DEPENDENTS DEPARTED FROM MCGUIRE AIR FORCE BASE BY PRIVATELY OWNED AUTOMOBILE TO VISIT LEHIGHTON, PENNSYLVANIA, WHILE YOU WERE IN A LEAVE STATUS, BEFORE PROCEEDING TO YOUR NEW DUTY STATION.

IN THE ABSENCE OF EVIDENCE THAT AIR TRANSPORTATION WAS AUTHORIZED FOR YOUR DEPENDENTS' OVERLAND TRAVEL TO YOUR NEW DUTY STATION AND THAT GOVERNMENT OR GOVERNMENT PROCURED TRANSPORTATION WAS NOT AVAILABLE FOR THEIR TRAVEL DURING THE PERIOD INVOLVED FROM MCGUIRE AIR FORCE BASE, IT WOULD APPEAR THAT YOU WERE PROPERLY PAID FOR THEIR TRAVEL ON THE BASIS OF A MONETARY ALLOWANCE FOR THE OFFICIAL DISTANCE FROM THE PORT OF DEBARKATION TO CLINTON-SHERMAN AIR FORCE BASE.

THE FACT THAT, AFTER ARRIVING AT YOUR NEW DUTY STATION, YOU WERE FURNISHED AN UNSIGNED TRANSPORTATION REQUEST WHICH YOUR DEPENDENTS COULD NOT USE TO OBTAIN AIR TRANSPORTATION FROM THE AIRPORT SERVING THE PLACE TO WHICH YOU HAD TAKEN THEM FOR A VISIT WHILE YOU WERE IN A LEAVE STATUS DOES NOT, IN OUR OPINION, OBLIGATE THE GOVERNMENT TO REIMBURSE YOU FOR THE COST OF SUCH TRANSPORTATION. SINCE YOU HAVE BEEN PAID THE AUTHORIZED TRAVEL ALLOWANCE FOR THE OFFICIAL DISTANCE FROM MCGUIRE AIR FORCE BASE TO YOUR NEW DUTY STATION, YOUR CLAIM FOR REIMBURSEMENT OF THE ADDITIONAL COSTS INCURRED INCIDENT TO YOUR DEPENDENTS' TRAVEL IS DISALLOWED.

WHILE IT MAY BE THAT YOU INCURRED ADDITIONAL EXPENSE BECAUSE OF THE INVALID TRANSPORTATION REQUEST, SUCH EXPENSE IS A FINANCIAL BURDEN WHICH IS SOLELY YOUR RESPONSIBILITY. IN COMPLYING WITH REGULATORY PROVISIONS IN INSTANCES SUCH AS YOURS, OTHER MEMBERS OF THE UNIFORMED SERVICES ARE ALSO SUBJECT TO OCCASIONAL FINANCIAL BURDENS WHICH ARE NOT REIMBURSABLE. ACCORD FAVORABLE TREATMENT TO YOUR CLAIM WOULD BE INEQUITABLE FROM THE STANDPOINT OF THE OTHER MEMBERS WHO HAVE BEEN REQUIRED TO BEAR EXPENSES INCURRED UNDER SIMILAR CIRCUMSTANCES. HENCE, WE DO NOT CONSIDER THAT YOUR CLAIM CONTAINS SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS WOULD WARRANT REPORTING IT TO THE CONGRESS UNDER THE MERITORIOUS CLAIMS ACT OF 1928.