B-168871, MAR. 10, 1970

B-168871, MAR. 10, 1970

TRANSPORTATION--DEPENDENTS--AVAILABILITY OF GOVERNMENT TRANSPORTATION- COMMERCIAL MEANS WHILE TRANSPORTATION AUTHORIZATION WAS ORIGINALLY REFUSED FOR MEMBER'S WIFE AND SON UPON RECEIVING CHANGE OF STATION ORDERS TO UNITED STATES, CONCURRENT GOVERNMENT TRANSPORTATION WAS AVAILABLE UPON HIS ELIGIBILITY FOR DEPENDENT'S TRAVEL AT GOVERNMENT EXPENSE. FAILURE TO ISSUE ADVANCE AUTHORIZATION IN THESE CIRCUMSTANCES DOES NOT AFFORD LEGAL BASIS FOR REIMBURSEMENT OF EXPENSES INCURRED IN RETURNING FAMILY TO NEW YORK BY FOREIGN CARRIER AND DENIAL OF CLAIM IS SUSTAINED. EVEN IF MILITARY TRANSPORTATION HAD NOT BEEN AVAILABLE, SINCE AMERICAN AIRLINES REGULARLY OPERATED FROM TERMINAL NEAR MEMBER'S DUTY STATION, DELAY OF FEW DAYS IN AWAITING TRANSPORTATION BY UNITED STATES REGISTRY AIRCRAFT IS NOT SUFFICIENT TO JUSTIFY USE OF FOREIGN CARRIERS.

TO STAFF SERGEANT NEIL C. DEWHIRST:

YOUR LETTER OF DECEMBER 30, 1969, IN EFFECT REQUESTS REVIEW OF SETTLEMENT OF SEPTEMBER 9, 1968, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT FOR THE COST OF COMMERCIAL AIR TRANSPORTATION FOR YOUR DEPENDENTS FROM LUXEMBOURG TO NEW YORK, NEW YORK, ON SEPTEMBER 28, 1966.

SPECIAL ORDER A-688, DATED JULY 12, 1966, HEADQUARTERS, 26 TACTICAL RECONNAISSANCE WING (USAFE) APO NEW YORK 09083, DIRECTED YOUR PERMANENT CHANGE OF STATION TO 375 AIR BASE GROUP, MAC, SCOTT AIR FORCE BASE, ILLINOIS, EFFECTIVE SEPTEMBER 20, 1966. TRAVEL OF DEPENDENTS WAS NOT AUTHORIZED BY THAT ORDER AND AT THAT TIME YOU WERE NOT ELIGIBLE FOR TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE. SPECIAL ORDER A-813, AUGUST 2, 1966, AMENDED THE ORDER OF JULY 12, 1966, TO DIRECT YOU TO REPORT TO RHEIN MAIN AIR BASE, GERMANY, ON SEPTEMBER 29, 1966, FOR TRANSPORTATION ON MILITARY AIRLIFT COMMAND FLIGHT T-640. SPECIAL ORDER A- 1906 (UNDATED) WHICH THE RECORD INDICATES WAS ISSUED ON SEPTEMBER 27, 1966, AMENDED THE ORIGINAL ORDER TO INCLUDE THE STATEMENT, "AIRMAN FIRST CLASS OVER 4 YEARS SERVICE."

WHILE SERVING OVERSEAS YOU WERE GRANTED PERMISSION TO MARRY AND DID SO ON FEBRUARY 15, 1965, AFTER WHICH YOU BROUGHT YOUR WIFE TO EUROPE AT YOUR OWN EXPENSE. A CHILD WAS BORN AT TOUL ROSIERES AIR FORCE BASE, FRANCE, ON NOVEMBER 17, 1965. YOU ARE REPORTED TO HAVE EXTENDED THE TERM OF YOUR ENLISTMENT AND OVERSEAS TOUR 9 MONTHS TO ATTAIN ELIGIBILITY FOR DEPENDENTS' TRAVEL.

YOU SAY THAT ON SEPTEMBER 20 AND 21, 1966, YOU WERE REFUSED TRANSPORTATION AUTHORIZATIONS FOR YOUR WIFE AND SON, WHICH YOU REQUESTED ON THE BASIS THAT YOU WOULD HAVE OVER 4 YEARS' SERVICE ON THE DATE OF YOUR DEPARTURE, SEPTEMBER 29, 1966. ON SEPTEMBER 22, 1966, WITH YOUR OWN FUNDS, YOU PURCHASED TICKETS FOR YOUR DEPENDENTS ON SABENA, BELGIAN WORLD AIRLINES, FOR SEPTEMBER 28, 1966. YOU ALSO STATE THAT YOU WERE INFORMED THAT ALL OTHER AIRLINES WERE FULLY BOOKED THROUGH OCTOBER 9, 1966, BECAUSE OF REDUCED FARES, EFFECTIVE OCTOBER 1, 1966.

YOU FURTHER SAY THAT ON SEPTEMBER 27, 1966, YOU RECEIVED ORDERS SHOWING YOUR COMPLETION OF OVER 4 YEARS' SERVICE BUT THAT YOU WERE INFORMED AT THE TRANSPORTATION OFFICE THAT IT WAS TOO LATE TO OBTAIN ADDITIONAL SEATS FOR YOUR DEPENDENTS ON FLIGHT T-640, AND THAT THE NEXT GOVERNMENT TRANSPORTATION FOR THEM WOULD NOT BE AVAILABLE FOR APPROXIMATELY 30 DAYS. ON SEPTEMBER 28, 1966, YOU PLACED YOUR DEPENDENTS ABOARD A SABENA AIRLINER AT LUXEMBOURG AIRPORT AND LATER PROCEEDED TO RHEIN MAIN AIR BASE, GERMANY, WHERE YOU WERE TOLD THAT THERE WAS A BOOKING FOR THREE SEATS, FOR YOURSELF AND YOUR TWO DEPENDENTS. AT THAT TIME, HOWEVER, YOU SAY YOUR WIFE AND CHILD WERE ALREADY IN THE UNITED STATES.

YOUR CLAIM FOR DEPENDENTS' TRAVEL FROM FLIREY, FRANCE, TO NEW BADEN, ILLINOIS, WAS ADMINISTRATIVELY ALLOWED EXCEPT FOR THE COST OF AIR TRANSPORTATION FROM LUXEMBOURG TO NEW YORK, NEW YORK. THIS OFFICE DISALLOWED REIMBURSEMENT OF YOUR DEPENDENTS' TRANSOCEANIC AIR FARE OF $313.70.

SECTION 406 OF TITLE 37, U.S.C. EXPRESSLY PROVIDES THAT TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE UPON A MEMBER'S CHANGE OF PERMANENT STATION SHALL BE UNDER SUCH CONDITIONS AND LIMITATIONS FOR SUCH RANKS, GRADES, OR RATINGS, AND TO AND FROM SUCH LOCATIONS AS THE SECRETARIES MAY PRESCRIBE. PARAGRAPH M7000 OF THE JOINT TRAVEL REGULATIONS, CHANGE 160, MAY 1, 1966, STATES THAT MEMBERS OF THE UNIFORMED SERVICES ARE ENTITLED TO TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE UPON A PERMANENT CHANGE OF STATION FOR TRAVEL PERFORMED FROM THE OLD STATION TO THE NEW PERMANENT STATION EXCEPT FOR ENLISTED MEMBERS IN PAY GRADE E-4 WITH 4 YEARS' SERVICE OR LESS, E-3, E-2, AND E-1 AND EXCEPT FOR ANY PORTION OF TRAVEL PERFORMED BY A FOREIGN REGISTERED VESSEL OR AIRPLANE, IF AMERICAN REGISTERED VESSELS OR AIRPLANES ARE AVAILABLE BY THE USUALLY TRAVELED ROUTE.

PARAGRAPH M2150, CHANGE 80, MAY 1, 1959, SPECIFIES THAT MERE INCONVENIENCE OR SHORT DELAYS IN AWAITING TRANSPORTATION BY VESSEL OR AIRCRAFT OF UNITED STATES REGISTRY, THE DESIRE TO ARRANGE CIRCUITOUS ROUTES FOR THE CONVENIENCE OF A TRAVELER, OR ANY SIMILAR REASONS, ARE NOT SUFFICIENT TO JUSTIFY USE OF A FOREIGN CARRIER.

PARAGRAPH 1102F AIR FORCE MANUAL 75-4D, JULY 30, 1964, PROVIDES THAT IN ORDER TO BE REIMBURSED FOR PERSONAL FUNDS EXPENDED FOR TRANSPORTATION TO, FROM, AND BETWEEN OVERSEAS AREAS, THE MEMBER OR HIS DEPENDENTS MUST OBTAIN A CERTIFICATE OF NONAVAILABILITY OF MILITARY TRANSPORTATION. NORMALLY, THIS CERTIFICATE WILL BE ISSUED BY THE OFFICE THAT ARRANGES FOR TRANSPORTATION. THE CERTIFICATE IS NOT REQUIRED WHEN A TRANSPORTATION REQUEST IS USED FOR THE TRAVEL PERFORMED.

INFORMATION RECEIVED INFORMALLY FROM THE DIRECTORATE OF TRANSPORTATION, DEPARTMENT OF THE AIR FORCE, INDICATES THAT IT WAS THE STANDARD OPERATING PROCEDURE IN SITUATIONS SUCH AS YOURS, TO RESCHEDULE YOU FOR A LATER FLIGHT IN WHICH YOUR DEPENDENTS COULD JOIN YOU, OR HAVE THEM ACCOMPANY YOU TO THE PORT OF DEBARKATION, RHEIN MAIN AIR BASE, GERMANY, WHERE SPACE ORDINARILY COULD BE OBTAINED FOR THEM ON YOUR FLIGHT, OR ON THE NEXT SCHEDULED FLIGHT. LACK OF AMENDED TRAVEL ORDERS TO SHOW ENTITLEMENT TO DEPENDENTS' TRAVEL AND TRAVEL AUTHORIZATIONS WAS SAID TO BE NO BAR, AS IT WAS THE PRACTICE TO FURNISH SUCH ORDERS TO ELIGIBLE MEMBERS PRIOR TO BOARDING. TWO SEATS WERE IN FACT RESERVED FOR YOUR DEPENDENTS ON FLIGHT T -640 AND HAD YOU BROUGHT YOUR WIFE AND CHILD WITH YOU, YOU WOULD HAVE BEEN FURNISHED GOVERNMENT TRANSPORTATION TO THE UNITED STATES, TOGETHER. CERTIFICATE OF NONAVAILABILITY OF MILITARY TRANSPORTATION HAS NOT BEEN FURNISHED, AS REQUIRED BY THE REGULATIONS, SINCE SUCH TRANSPORTATION WOULD HAVE BEEN FURNISHED.

WE ARE INFORMED THAT TOUL ROSIERES AIR FORCE BASE, FRANCE, WAS LOCATED NORTH OF PARIS, FRANCE, WHICH WAS THE NEAREST TERMINAL FOR COMMERCIAL AIR CARRIERS AND THAT AMERICAN AIRLINES REGULARLY OPERATED FROM THIS POINT TO NEW YORK, NEW YORK. AS MILITARY TRANSPORTATION WAS AVAILABLE FOR YOUR DEPENDENTS, YOU MAY NOT BE REIMBURSED FOR THEIR TRAVEL BY SABENA, AN AIRLINE NOT OF UNITED STATES REGISTRY, FROM LUXEMBOURG TO NEW YORK, NEW YORK.

AND, EVEN IF MILITARY TRANSPORTATION HAD NOT BEEN AVAILABLE AT THE TIME OR SHORTLY AFTER YOUR DEPARTURE, IT IS OUR UNDERSTANDING THAT TRANSPORTATION BY AN AIRLINE OF AMERICAN REGISTRY WOULD HAVE BEEN AVAILABLE WITHIN A FEW DAYS. YOU HAVE FURNISHED NO EVIDENCE TO THE CONTRARY. SUCH A DELAY WOULD NOT SEEM UNREASONABLE IN ORDER TO TRAVEL BY AIRCRAFT OF AMERICAN REGISTRY, AND IT IS OUR VIEW THAT PARAGRAPH M2150 OF THE REGULATIONS DOES NOT CONTEMPLATE A DELAY OF ONLY A FEW HOURS IN SUCH CIRCUMSTANCES TO JUSTIFY THE USE OF A FOREIGN FLAG CARRIER, AS YOU SEEM TO CONTEND.

WHILE THERE MAY HAVE BEEN UNNECESSARY DELAY IN THE CONSIDERATION OF YOUR REQUEST FOR AN AUTHORIZATION FOR TRANSPORTATION OF YOUR DEPENDENTS, THIS APPARENTLY WAS PRIMARILY BECAUSE YOU WERE A MEMBER IN GRADE E-4 WITH LESS THAN 4 YEARS' SERVICE AT THAT TIME AND NOT ENTITLED TO TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE. HOWEVER, CONCURRENT GOVERNMENT TRANSPORTATION WAS AVAILABLE WHEN YOU BECAME ELIGIBLE THEREFOR AND WERE REQUIRED TO PERFORM THE TRAVEL TO THE UNITED STATES. THE FAILURE TO ISSUE AN ADVANCE AUTHORIZATION IN THESE CIRCUMSTANCES DOES NOT, IN OUR OPINION, AFFORD A LEGAL BASIS FOR REIMBURSEMENT OF THE EXPENSES INCURRED.

UPON REVIEW, WE MUST SUSTAIN OFFICE SETTLEMENT OF SEPTEMBER 9, 1968, WHICH DISALLOWED YOUR CLAIM.