B-168512, FEB. 16, 1970

B-168512: Feb 16, 1970

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

TO LIEUTENANT COLONEL JAMES MCINTOSH: FURTHER REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 25. YOU WERE TRANSFERRED AS A PERMANENT CHANGE OF STATION FROM THE UNITED STATES MILITARY ACADEMY AT WEST POINT. AFTER WHICH A DELAY OF 30 DAYS EN ROUTE WAS AUTHORIZED. THOSE ORDERS WERE AMENDED BY CABLE DATED APRIL 27. YOU WERE PAID FOR THAT TRAVEL. THE RECORD DOES NOT SHOW THAT THIS APPLICATION WAS APPROVED. THAT A FLIGHT NUMBER WAS ASSIGNED AND LATER CANCELLED. YOU SUBSEQUENTLY WERE PAID FOR THAT TRAVEL. WAS PENDING YOUR DEPENDENTS TRAVELED FROM NEW YORK. YOUR CLAIM FOR THE TRANSOCEANIC PORTION OF THE TRAVEL WAS DENIED BY THE ARMY AND WAS DISALLOWED BY THE SETTLEMENT MENTIONED ABOVE FOR THE REASON THAT THE TRAVEL WAS PERFORMED PRIOR TO APPROVAL OF YOUR REQUEST FOR MOVEMENT OF YOUR DEPENDENTS TO YOUR OVERSEAS STATION.

B-168512, FEB. 16, 1970

MILITARY--TRANSPORTATION OF DEPENDENTS DECISION SUSTAINING DISALLOWANCE OF CLAIM FOR REIMBURSEMENT FOR COST OF COMMERCIAL AIR TRANSPORTATION OF ARMY OFFICER'S DEPENDENTS FROM U.S. TO GERMANY. OFFICER WHOSE DEPENDENTS TRAVELED BY COMMERCIAL AIR TO GERMANY PRIOR TO APPROVAL OF THE OFFICER'S REQUEST FOR TRANSPORTATION AT GOVERNMENT EXPENSE MAY NOT BE REIMBURSED FOR TRANSPORTATION COSTS ON BASIS OF SUBSEQUENT APPROVAL. THE ISSUANCE AND CANCELLATION OF A FLIGHT NUMBER DOES NOT AFFORD BASIS FOR PAYMENT OF TRANSOCEANIC TRAVEL IN ABSENCE OF AUTHORIZED APPROVAL IN ACCORDANCE WITH REGULATIONS.

TO LIEUTENANT COLONEL JAMES MCINTOSH:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 25, 1969, REQUESTING FURTHER CONSIDERATION OF THE SETTLEMENT OF MAY 26, 1969, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT FOR THE COST OF COMMERCIAL AIR TRANSPORTATION FOR YOUR DEPENDENTS FROM THE UNITED STATES TO GERMANY, OCTOBER 20 TO 21, 1961.

BY PARAGRAPH 30, DEPARTMENT OF THE ARMY SPECIAL ORDERS NO. 231, DATED OCTOBER 12, 1960, YOU WERE TRANSFERRED AS A PERMANENT CHANGE OF STATION FROM THE UNITED STATES MILITARY ACADEMY AT WEST POINT, NEW YORK, TO FORT DIX, NEW JERSEY, FOR FURTHER ASSIGNMENT TO A STATION IN EUROPE. THE ORDERS AUTHORIZED PERMISSIVE TRAVEL TO THE UNIVERSITY OF MARYLAND, COLLEGE PARK, MARYLAND, FOR TEMPORARY DUTY OF APPROXIMATELY 180 DAYS FOR THE PURPOSE OF FULFILLING THE REQUIREMENTS FOR A BACCALAUREATE DEGREE, AFTER WHICH A DELAY OF 30 DAYS EN ROUTE WAS AUTHORIZED. THOSE ORDERS WERE AMENDED BY CABLE DATED APRIL 27, 1961, TO DELETE DELAY EN ROUTE AND TO REQUIRE YOU TO REPORT TO FORT DIX, NEW JERSEY, NOT LATER THAN AUGUST 15, 1961. PARAGRAPH 45, FORT DIX SPECIAL ORDERS NO. 223, DATED AUGUST 11, 1961, DIRECTED YOU TO REPORT AT MCGUIRE AIR FORCE BASE, NEW JERSEY, ON OR ABOUT AUGUST 11, 1961, FOR TRANSPORTATION TO A STATION IN GERMANY.

SINCE YOUR ORDERS DID NOT AUTHORIZE CONCURRENT TRAVEL OF DEPENDENTS TO YOUR OVERSEAS STATION, YOUR DEPENDENTS TRAVELED FROM WEST POINT, NEW YORK, TO A DESIGNATED PLACE, CLARENDON, TEXAS, DURING THE PERIOD JANUARY 16 TO AUGUST 7, 1961, AND YOU WERE PAID FOR THAT TRAVEL. ON AUGUST 14, 1961, YOU SUBMITTED AN APPLICATION FOR MOVEMENT OF YOUR DEPENDENTS TO YOUR OVERSEAS STATION. THE RECORD DOES NOT SHOW THAT THIS APPLICATION WAS APPROVED. YOU CONTEND, HOWEVER, THAT A FLIGHT NUMBER WAS ASSIGNED AND LATER CANCELLED. ON OCTOBER 4, 1961, YOU SUBMITTED A REQUEST FOR MOVEMENT OF YOUR DEPENDENTS TO YOUR OVERSEAS STATION ON THE BASIS OF HARDSHIP. SEPTEMBER 22, 1961, PRIOR TO SUBMISSION OF THAT APPLICATION, YOUR DEPENDENTS DEPARTED CLARENDON, TEXAS. THEY ARRIVED IN NEW YORK, NEW YORK, ON OCTOBER 11, 1961, AND YOU SUBSEQUENTLY WERE PAID FOR THAT TRAVEL. WHILE THE APPLICATION OF OCTOBER 4, 1961, WAS PENDING YOUR DEPENDENTS TRAVELED FROM NEW YORK, NEW YORK, TO STUTTGART, GERMANY, BY COMMERCIAL AIR ON OCTOBER 20 AND 21, 1961.

YOUR CLAIM FOR THE TRANSOCEANIC PORTION OF THE TRAVEL WAS DENIED BY THE ARMY AND WAS DISALLOWED BY THE SETTLEMENT MENTIONED ABOVE FOR THE REASON THAT THE TRAVEL WAS PERFORMED PRIOR TO APPROVAL OF YOUR REQUEST FOR MOVEMENT OF YOUR DEPENDENTS TO YOUR OVERSEAS STATION. THE SETTLEMENT STATED THAT YOUR REQUEST WAS APPROVED ON OCTOBER 25, 1961. IT ALSO REFERRED TO THE PROVISIONS OF PARAGRAPH 5.1, ARMY REGULATIONS 55-46, CHANGE 3, NOVEMBER 29, 1960, AS REQUIRING APPROVAL BY THE OVERSEAS COMMANDER FOR TRAVEL OF DEPENDENTS TO OVERSEAS AREAS.

IN YOUR PRESENT LETTER YOU SAY THAT THE FLIGHT NUMBER ASSIGNED BUT LATER CANCELLED, WAS THE AMENDED 11A LIST FOR UNACCOMPANIED MOVEMENT OF DEPENDENTS AND THAT THE ASSIGNMENT OF THE FLIGHT NUMBER CAUSED YOUR WIFE TO MOVE FROM TEXAS TO NEW YORK. YOU SAY THAT THE STATEMENT IN THE SETTLEMENT THAT TRAVEL OF YOUR DEPENDENTS TO YOUR OVERSEAS STATION WAS APPROVED ON OCTOBER 25, 1961, APPARENTLY WAS DERIVED FROM THE DATE OF CABLE SC59431. YOU CONTEND THAT THE CABLE IS NOTHING MORE THAN INFORMATION OF AN EARLIER ACTION AND THAT THE ACTUAL APPROVAL OF YOUR APPLICATION WAS PRIOR TO OCTOBER 25, 1961. ALSO, YOU SAY THAT THE CITED ARMY REGULATIONS WERE NOT IN FULL EFFECT AT THIS TIME IN THAT DUE TO THE BERLIN BUILD-UP APPROVAL FOR TRAVEL OF DEPENDENTS WAS REQUIRED TO BE GIVEN BY THE DEPARTMENT OF THE ARMY OR THE DEPARTMENT OF DEFENSE RATHER THAN THE OVERSEAS COMMANDER.

THE STATUTORY AUTHORITY FOR TRANSPORTATION OF DEPENDENTS OF MEMBERS OF THE UNIFORMED SERVICES, 37 U.S.C. 406, EXPRESSLY PROVIDES THAT TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE UPON A MEMBER'S ORDERED CHANGE OF PERMANENT STATION SHALL BE SUBJECT TO SUCH CONDITIONS AND LIMITATIONS, FOR SUCH GRADES, RANKS AND RATINGS, AND TO AND FROM SUCH PLACES AS THE SECRETARIES CONCERNED MAY PRESCRIBE. THE RIGHT TO DEPENDENTS' TRAVEL IS NOT AN ABSOLUTE ONE BUT MAY BE ADMINISTRATIVELY SUSPENDED OR DENIED FOR REASONS OF MILITARY NECESSITY OR EXPEDIENCE. CULP V UNITED STATES, 76 CT. CL. 507 (1932); 35 COMP. GEN. 61 (1955).

REGULATIONS IN THE MATTER, ISSUED BY THE SECRETARIES CONCERNED, ARE CONTAINED IN CHAPTER 7 OF THE JOINT TRAVEL REGULATIONS. IMPLEMENTING REGULATIONS FOR THE DEPARTMENT OF THE ARMY, CONTAINED IN ARMY REGULATIONS 55-46, DATED NOVEMBER 16, 1959, AS AMENDED BY CHANGE 3, DATED NOVEMBER 29, 1960, IN EFFECT DURING THE PERIOD HERE INVOLVED, PERTAIN TO TRAVEL OF DEPENDENTS TO, FROM, OR BETWEEN OVERSEAS AREAS. PARAGRAPH 5.1 OF THOSE REGULATIONS PROVIDES THAT IT IS THE DEPARTMENT OF DEFENSE POLICY TO DETER ENTRY INTO OVERSEAS AREAS OF DEPENDENTS WHOSE MILITARY SPONSORS WERE ENTITLED TO TRANSPORTATION OF DEPENDENTS ON THE EFFECTIVE DATE OF ORDERS ASSIGNING THE MEMBERS TO THE OVERSEAS DUTY STATIONS BUT WHO HAVE NOT BEEN AUTHORIZED BY THE OVERSEAS COMMANDER TO ACCOMPANY OR JOIN THEIR SPONSORS OVERSEAS.

THE RESTRICTION ON TRAVEL OF DEPENDENTS OF MILITARY MEMBERS TO OVERSEAS STATIONS, GENERALLY, IMPOSED BY PRESIDENTIAL DIRECTIVE OF NOVEMBER 16, 1960, 25 F.R. 12221, 12222, WAS RESCINDED BY THE PRESIDENT EFFECTIVE FEBRUARY 1, 1961. THIS RESCISSION, HOWEVER, DID NOT OPERATE TO CHANGE EXISTING DEPARTMENTAL REGULATIONS OR REQUIRE THE OMISSION OF RESTRICTIVE PROVISIONS FROM TRAVEL ORDERS. IT AUTHORIZED THE DEPARTMENTS TO MAKE SUCH CHANGES. THE PERTINENT PROVISIONS OF ARMY REGULATIONS 55-46 BASED ON THE DIRECTIVE OF NOVEMBER 16, 1960, WERE NOT CHANGED UNTIL AUGUST 1, 1963.

THE RECORD SHOWS THAT BY MESSAGE DA578052 THE DEPARTMENT OF THE ARMY ADVISED THE COMMANDER IN CHIEF, U.S. ARMY EUROPE, THAT THE REQUESTS FOR TRAVEL OF DEPENDENTS IN YOUR CASE AND THAT OF ANOTHER MEMBER WERE APPROVED. THAT MESSAGE WAS ISSUED IN WASHINGTON, D.C; ON OCTOBER 23, 1961. IT WAS ON THE BASIS OF THAT MESSAGE THAT THE COMMANDER IN CHIEF, U.S. ARMY EUROPE, ISSUED THE MESSAGE OF OCTOBER 25, 1961, INFORMING THE COMMANDING GENERAL, SOUTHERN AREA COMMAND, APO 407, THAT AN EXCEPTION HAD BEEN MADE IN YOUR CASE TO THE SUSPENSION OF TRAVEL OF DEPENDENTS. SINCE YOUR DEPENDENTS DEPARTED NEW YORK ON OCTOBER 20, 1961, AND ARRIVED IN GERMANY ON OCTOBER 21, 1961, IT IS APPARENT THAT THE TRAVEL WAS PERFORMED PRIOR TO APPROVAL OF YOUR REQUEST TO MOVE YOUR DEPENDENTS TO GERMANY AT GOVERNMENT EXPENSE.

THE PAPERS SUBMITTED WITH YOUR CLAIM DO NOT ESTABLISH THAT YOUR DEPENDENTS WERE ISSUED A FLIGHT NUMBER ON THE BASIS OF YOUR APPLICATION OF AUGUST 14, 1961. IN THE ABSENCE, HOWEVER, OF THE APPROVAL FOR THEIR TRAVEL, THE ISSUANCE AND CANCELLATION OF A FLIGHT NUMBER WOULD NOT AFFORD A BASIS FOR PAYMENT OF YOUR CLAIM FOR THE TRANSOCEANIC TRAVEL.

SINCE THE TRAVEL OF YOUR DEPENDENTS TO YOUR OVERSEAS STATION WAS AUTHORIZED ONLY AFTER APPROVAL OF YOUR APPLICATION AND SINCE YOUR DEPENDENTS TRAVELED PRIOR TO APPROVAL, THE SETTLEMENT DISALLOWING YOUR CLAIM IS SUSTAINED.