B-182592, MAY 15, 1975

B-182592: May 15, 1975

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REIMBURSEMENT FOR DEPENDENTS' TRAVEL TO OVERSEAS DUTY STATION IS DENIED BECAUSE MEMBER NEVER RECEIVED APPROVAL FROM OVERSEAS COMMANDER FOR CONCURRENT TRAVEL AS REQUIRED BY AR55-46 AND ORDERS WERE AMENDED TO SHOW THAT CONCURRENT TRAVEL WAS SPECIFICALLY NOT AUTHORIZED. DEPENDENTS FLEW ON FOREIGN FLAG CARRIER FOR WHICH REIMBURSEMENT IS PROHIBITED PURSUANT TO PARAGRAPH M7000-7 AND M2150-1 OF JTR'S. WHILE IT APPEARS MEMBER WAS GIVEN ERRONEOUS INFORMATION CONCERNING HIS ENTITLEMENT TO REIMBURSEMENT. THE GOVERNMENT IS NOT LIABLE FOR INCORRECT STATEMENTS OF ITS AGENTS AND EMPLOYEES. USA: THIS ACTION IS IN RESPONSE TO A LETTER DATED OCTOBER 4. PROVIDED THAT MEMBERS OF THE UNIFORMED SERVICES WERE ENTITLED TO TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE UPON A PERMANENT CHANGE OF STATION EXCEPT FOR ANY PORTION OF TRAVEL PERFORMED BY A FOREIGN REGISTERED VESSEL OR AIRPLANE.

B-182592, MAY 15, 1975

REIMBURSEMENT FOR DEPENDENTS' TRAVEL TO OVERSEAS DUTY STATION IS DENIED BECAUSE MEMBER NEVER RECEIVED APPROVAL FROM OVERSEAS COMMANDER FOR CONCURRENT TRAVEL AS REQUIRED BY AR55-46 AND ORDERS WERE AMENDED TO SHOW THAT CONCURRENT TRAVEL WAS SPECIFICALLY NOT AUTHORIZED. FURTHERMORE, DEPENDENTS FLEW ON FOREIGN FLAG CARRIER FOR WHICH REIMBURSEMENT IS PROHIBITED PURSUANT TO PARAGRAPH M7000-7 AND M2150-1 OF JTR'S. WHILE IT APPEARS MEMBER WAS GIVEN ERRONEOUS INFORMATION CONCERNING HIS ENTITLEMENT TO REIMBURSEMENT, THE GOVERNMENT IS NOT LIABLE FOR INCORRECT STATEMENTS OF ITS AGENTS AND EMPLOYEES.

REIMBURSEMENT FOR CONCURRENT TRAVEL OF DEPENDENTS - SERGEANT LOUIS E. LAMERE, USA:

THIS ACTION IS IN RESPONSE TO A LETTER DATED OCTOBER 4, 1974, FROM SERGEANT LOUIS E. LAMERE, USA, XXX-XX-XXXX, WHEREIN HE REQUESTS RECONSIDERATION OF OUR TRANSPORTATION AND CLAIMS DIVISION SETTLEMENT OF MARCH 12, 1974, WHICH DISALLOWED HIS CLAIM FOR REIMBURSEMENT FOR THE CONCURRENT TRAVEL OF HIS DEPENDENTS TO HIS OVERSEAS DUTY STATION ON A FOREIGN FLAG AIR CARRIER INCIDENT TO A PERMANENT CHANGE OF STATION ASSIGNMENT.

PARAGRAPH M7000-7 OF THE JOINT TRAVEL REGULATIONS, IN EFFECT AT THE TIME THE TRAVEL OCCURRED, PROVIDED THAT MEMBERS OF THE UNIFORMED SERVICES WERE ENTITLED TO TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE UPON A PERMANENT CHANGE OF STATION EXCEPT FOR ANY PORTION OF TRAVEL PERFORMED BY A FOREIGN REGISTERED VESSEL OR AIRPLANE, IF AMERICAN REGISTERED VESSELS OR AIRPLANES WERE AVAILABLE BY THE USUALLY TRAVELED ROUTE. IN THIS REGARD, PARAGRAPH M2150 OF THE SAME REGULATIONS, PROVIDES THAT THE USE OF VESSELS OR AIRCRAFT REGISTERED UNDER THE LAWS OF THE UNITED STATES IS REQUIRED, UNLESS DETERMINED IMPRACTICAL OR NOT AVAILABLE AND SPECIFIES THAT WHERE THE TRANSPORTATION OR OTHER APPROPRIATE OFFICER DETERMINES THAT THE USE OF VESSELS OR AIRCRAFT REGISTERED UNDER THE LAWS OF THE UNITED STATES WOULD SERIOUSLY INTERFERE WITH OR PREVENT THE PERFORMANCE OF OFFICIAL BUSINESS, HE MAY AUTHORIZE THE USE OF VESSELS OR AIRCRAFT OF FOREIGN REGISTRY. SUCH DETERMINATION MAY NOT BE BASED UPON MERE INCONVENIENCE IN SECURING TRANSPORTATION OR SHORT DELAYS IN AWAITING TRANSPORTATION IN VESSELS OR AIRCRAFT OF UNITED STATES REGISTRY, THE DESIRE TO ARRANGE CIRCUITOUS ROUTES FOR THE CONVENIENCE OF A TRAVELER, OR FOR ANY SIMILAR REASONS.

SINCE THE MEMBER'S FAMILY PERFORMED THEIR TRAVEL FROM SPOKANE, WASHINGTON, TO FRANKFURT, GERMANY, ON COMMERCIAL AIRLINES OF FOREIGN REGISTRY (LUFTHANSA), REIMBURSEMENT OF ANY PART OF THE EXPENSES INCURRED FOR THIS TRAVEL IS CLEARLY PROHIBITED BY PARAGRAPHS M7000 AND M2150, SUPRA, IN THE ABSENCE OF AN OFFICIAL DETERMINATION THAT THE TRAVEL COULD NOT HAVE BEEN PERFORMED ON A SHIP OR AIRCRAFT OF UNITED STATES REGISTRY. THESE REGULATIONS, PROMULGATED PURSUANT TO STATUTORY AUTHORITY, HAVE THE FORCE AND EFFECT OF LAW AND CANNOT BE WAIVED BY THIS OFFICE. SEE B- 179445, SEPTEMBER 21, 1973, AND B-180694, NOVEMBER 19, 1974.

NOTWITHSTANDING THE APPLICATION OF THE ABOVE, THE RECORD SHOWS THAT BY SPECIAL ORDERS NUMBER 306, DATED NOVEMBER 1, 1972, ISSUED BY HEADQUARTERS, UNITED STATES ARMY TRAINING CENTER, INFANTRY, FORT ORD, CALIFORNIA 93941, THE MEMBER WAS ORDERED TO PROCEED ON A PERMANENT CHANGE OF STATION TO THE UNITED STATES OVERSEA REPLACEMENT STATION, FORT DIX, NEW JERSEY, WITH AN ULTIMATE ASSIGNMENT TO THE 21ST AG HHD REPL BN, APO NY 09757. THIS ORDER DID NOT CONTAIN ANY SPECIFIC PROVISION PERTAINING TO CONCURRENT TRAVEL OF DEPENDENTS. HOWEVER, THAT ORDER WAS AMENDED ON MAY 25, 1973, BY ORDERS ISSUED BY ARPAC (PROV) SCHWEINFURT APO 09033, TO INCLUDE IN THOSE ORDERS REFERENCE TO ITEM 26 OF ARMY REGULATION 310-10, APPENDIX B, WHICH SPECIFICALLY PROVIDES THAT CONCURRENT TRAVEL OF DEPENDENTS IS NOT AUTHORIZED.

THE MEMBER STATES THAT HE MADE INQUIRES AT FORT ORD, CALIFORNIA, PRIOR TO HIS DEPARTURE AND ALSO AT HIS OVERSEAS DUTY STATION CONCERNING HIS ENTITLEMENTS TO DEPENDENT TRAVEL. AT FORT ORD, THE MEMBER WAS INFORMED THAT HE WAS ENTITLED TO OVERSEAS TRANSPORTATION OF HIS DEPENDENTS AT GOVERNMENT EXPENSE AND THAT UPON ARRIVAL IN USAREUR, HE WOULD BE ABLE TO HAVE HIS DEPENDENTS COMMAND SPONSORED AND BROUGHT OVERSEAS AT GOVERNMENT EXPENSE. THE MEMBER WAS NOT INFORMED THAT HE LACKED THE THE REQUIRED OVERSEA TOUR FOR ACCOMPANIED PERSONNEL IN ACCORDANCE WITH AR 55-46 WHICH PROVIDES THAT THE MEMBER MUST HAVE A MINIMUM OF 12 MONTHS' SERVICE REMAINING OF OVERSEA TOUR AFTER ARRIVAL OF DEPENDENTS.

ON JANUARY 4, 1973, THE MEMBER WENT TO THE SCHWEINFURT ARMY REGIONAL PERSONNEL AND ADMINISTRATION CENTER WHERE HE WAS INFORMED THAT HE WAS NOT ELIGIBLE FOR COMMAND SPONSORSHIP SINCE HE DID NOT HAVE 4 YEARS OF ACTIVE SERVICE OR 2 YEARS OF SERVICE WITH AN OBLIGATED ACTIVE SERVICE TO INCREASE HIS TOTAL ACTIVE SERVICE TO 6 YEARS OR MORE.

THE MEMBER DECIDED TO MAKE ARRANGEMENTS TO HAVE HIS FAMILY COME TO GERMANY AT HIS OWN EXPENSE. THE ARRANGEMENTS WERE MADE BY THE CLERK AT THE AMERICAN EXPRESS FACILITIES AT THE MEMBER'S POST. ON MARCH 24, 1973, HIS FAMILY TRAVELED FROM SPOKANE, WASHINGTON, TO FRANKFURT, GERMANY, ON LUFTHANSA AIR LINES. THE MEMBER IS NOW CLAIMING ENTITLEMENT TO REIMBURSEMENT FOR THE CONCURRENT TRAVEL OF HIS FAMILY BASED ON THE FACT THAT HE WAS GIVEN ERRONEOUS INFORMATION AS TO HIS ENTITLEMENT OF SUCH BENEFITS PRIOR TO LEAVING HIS OLD PERMANENT DUTY STATION.

UNDER REGULATIONS PROMULGATED BY THE SECRETARIES CONCERNED PURSUANT TO THE PERTINENT STATUTE, 37 U.S.C. 406, MEMBERS OF THE UNIFORMED SERVICES MAY BE AUTHORIZED TRAVEL FOR THEIR DEPENDENTS UPON A CHANGE OF PERMANENT STATION SUBJECT TO SUCH CONDITIONS AND LIMITATIONS FOR GRADES, RANKS, AND RATINGS, AND TO AND FROM SUCH PLACES AS THE SECRETARIES CONCERNED MAY PRESCRIBE. HOWEVER, THE LAW WHICH AUTHORIZES TRAVEL OF DEPENDENTS AT GOVERNMENT EXPENSE DOES NOT GRANT THAT RIGHT IN DEROGATION OF THE ADMINISTRATIVE AUTHORITY CONFERRED UPON THE DEPARTMENTS SO AS TO PERMIT A MEMBER TO IGNORE SUCH REGULATIONS AND TRANSPORT HIS DEPENDENTS TO HIS NEW STATION WITHOUT REGARD TO MILITARY CONSIDERATIONS. UNDER THIS CONCEPT OF LAW, IT HAS LONG BEEN RECOGNIZED THAT THE RIGHT TO TRANSPORTATION OF DEPENDENTS OF MILITARY PERSONNEL AT GOVERNMENT EXPENSE UPON AN ORDERED CHANGE OF STATION IS NOT ABSOLUTE BUT MAY BE ADMINISTRATIVELY SUSPENDED OR DENIED FOR REASONS OF MILITARY NECESSITY OR EXPEDIENCY, IN WHICH EVENT IF A MEMBER TRANSPORTS HIS DEPENDENTS AT PERSONAL EXPENSE HE MAY NOT BE REIMBURSED THE EXPENSES SO INCURRED. CULP V. UNITED STATES, 76 CT. CL. 507 (1932); 35 COMP. GEN. 61 (1955); 47 COMP. GEN. 445 (1968).

REGULATIONS GOVERNING REIMBURSEMENT FOR TRAVEL OF DEPENDENTS PROMULGATED PURSUANT TO THE ABOVE-CITED LAW ARE CONTAINED IN CHAPTER 7 OF VOLUME 1 OF THE JOINT TRAVEL REGULATIONS. PARAGRAPH M7000 OF THOSE REGULATIONS PROVIDES 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 OR BETWEEN POINTS AUTHORIZED IN THIS VOLUME. THERE IS NO PROVISION IN THE REGULATIONS FOR REIMBURSEMENT OF DEPENDENT TRAVEL EXPENSES WHERE A MEMBER, WITHOUT PROPER AUTHORIZATION AT THE TIME OF TRANSFER, TRANSPORTS HIS DEPENDENTS TO A STATION OUTSIDE THE UNITED STATES AT PERSONAL EXPENSE AND SUBSEQUENTLY RECEIVES COMMAND SPONSORSHIP.

IN CONJUNCTION WITH THE ABOVE, SUBPARAGRAPH 3A (1) OF ARMY REGULATION 55- 46, FOR THE PERIOD IN QUESTION, PROVIDED THAT CONCURRENT TRAVEL REQUIRED SUBMISSION OF AN APPLICATION TO AND APPROVAL BY EITHER THE HOME STATION COMMANDER OR THE OVERSEAS COMMANDER, AS APPROPRIATE. PARAGRAPH 7, OF THOSE REGULATIONS PROVIDES THAT THE DEPARTMENT OF THE ARMY POLICY IS TO DETER ENTRY INTO OVERSEAS AREAS OF DEPENDENTS WHOSE MILITARY SPONSORS ARE NOT ENTITLED TO TRANSPORTATION OF DEPENDENTS OR WHOSE MILITARY SPONSORS ARE ENTITLED TO TRANSPORTATION OF DEPENDENTS BUT WHERE SUCH TRAVEL HAS NOT RECEIVED THE PROPER ENDORSEMENT. IT FURTHER PROVIDES THAT IN THE ABSENCE OF SUCH PRIOR APPROVAL, DEPENDENTS MAY NOT BE TRANSPORTED TO THE MEMBER'S OVERSEAS DUTY STATION AT GOVERNMENT EXPENSE, BUT THAT IF DEPENDENTS DO ENTER THE OVERSEAS AREA AT PERSONAL EXPENSE WITHOUT PRIOR APPROVAL AND RESIDE IN THE VICINITY OF THE MEMBER'S DUTY STATION, THE OVERSEAS COMMANDER IS AUTHORIZED TO RECOGNIZE THEM AS COMMAND SPONSORED FOR THE PURPOSE OF ENTITLING THE MEMBER TO STATION ALLOWANCES AT THE "WITH DEPENDENT" RATE AND ENTITLEMENT TO RATION SEPARATELY.

IN THE PRESENT CASE, THE MEMBER'S ORDERS DID NOT PROVIDE FOR THE CONCURRENT TRAVEL OF HIS DEPENDENTS. IN FACT, THOSE ORDERS WERE SUBSEQUENTLY AMENDED ON MAY 25, 1973, TO REFERENCE ITEM 26 OF ARMY REGULATION 310-10 TO SPECIFICALLY PROVIDE THAT CONCURRENT TRAVEL OF HIS DEPENDENTS WAS NOT AUTHORIZED. THEREFORE, SINCE SUCH TRAVEL WAS NOT AUTHORIZED, REIMBURSEMENT FOR ANY PORTION OF THEIR OVERSEAS TRAVEL WOULD BE CONTRARY TO THE CONTROLLING REGULATIONS AND MAY NOT BE MADE. SEE DECISION B-182382, APRIL 18, 1975.

WHILE THE MEMBER MAY HAVE BEEN GIVEN ERRONEOUS INFORMATION CONCERNING HIS ENTITLEMENT TO REIMBURSEMENT FOR THE TRAVEL OF HIS DEPENDENTS, IT IS WELL SETTLED THAT THE GOVERNMENT IS NOT BOUND BY NOR RESPONSIBLE FOR THE V. UNITED STATES, 449 F.2D 228, 234 (1971). ALL GOVERNMENT AGENTS ARE SPECIAL AGENTS OF LIMITED AUTHORITY AND ALL PERSONS DEALING WITH SUCH AGENTS OR EMPLOYEES ARE CHARGED WITH NOTICE OF THAT FACT AND OF THE LIMITATION UPON THE AUTHORITY OF THE AGENTS WITH WHOM THEY DEAL. UNITED STATES V. THOMPSON, 293 F. SUPP. 1307 (1967), AFFIRMED 408 F.2D 1075 (1969).

ACCORDINGLY, THE ACTION TAKEN BY OUR TRANSPORTATION AND CLAIMS DIVISION IS SUSTAINED.