B-49682, JUNE 16, 1945, 24 COMP. GEN. 887

B-49682: Jun 16, 1945

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PROVIDED NO GOVERNMENT TRANSPORT WAS AVAILABLE FOR THE SEA TRAVEL INVOLVED. 8 COMP. LIEUTENANT HESPELT WAS RELIEVED FROM FURTHER DUTY IN THE SOUTHWEST PACIFIC AREA ( AUSTRALIA) AND ASSIGNED TO THE 18TH REPLACEMENT WING. THE OFFICER WAS RELIEVED FROM DUTY AT SALT LAKE CITY. TO WHICH LIEUTENANT HESPELT WAS ATTACHED. WAS RELIEVED FROM DUTY AT WALLA WALLA. NOR IS THERE ANY SHOWING THAT HE REQUESTED TRANSPORTATION OF HIS DEPENDENT IMMEDIATELY OR WITHIN A REASONABLE TIME AFTER THE RECEIPT OF CHANGE OF STATION ORDERS. THAT TRAVEL BY THE DEPENDENT AT AN EARLIER DATE WAS IMPOSSIBLE OR IMPRACTICABLE DUE TO EXISTING CONDITIONS. THERE IS NO SHOWING AS TO WHETHER A DETERMINATION HAS BEEN MADE BY THE HEAD OF THE DEPARTMENT THAT GOVERNMENT TRANSPORT WAS NOT AVAILABLE FOR THE OVERSEAS TRAVEL.

B-49682, JUNE 16, 1945, 24 COMP. GEN. 887

TRANSPORTATION OF DEPENDENTS - DELAYS - OVERSEAS STATION TO UNITED STATES WHERE, DUE TO DISTURBED CONDITIONS AND THE NON-AVAILABILITY OF TRANSPORTATION TIMELY REQUESTED, THE DEPENDENT WIFE OF AN ARMY OFFICER ORDERED TO A PERMANENT STATION IN THE UNITED STATES FROM HIS FOREIGN DUTY STATION DID NOT TRAVEL FROM THE OFFICER'S FOREIGN STATION TO THE UNITED STATES UNTIL AFTER HE HAD HAD FURTHER PERMANENT CHANGES OF STATION, THE OFFICER MAY BE ALLOWED UNDER SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942 THE COMMERCIAL COST OF TRANSPORTING HIS WIFE FROM OVERSEAS STATION TO HIS PRESENT PERMANENT STATION IN THE UNITED STATES, PROVIDED NO GOVERNMENT TRANSPORT WAS AVAILABLE FOR THE SEA TRAVEL INVOLVED. 8 COMP. GEN. 118 AND 17 ID. 265, AMPLIFIED.

ASSISTANT COMPTROLLER GENERAL YATES TO COL. CARL WITCHER, U.S. ARMY, JUNE 16, 1945:

THERE HAS BEEN RECEIVED BY INDORSEMENT OF MAY 9, 1945, YOUR LETTER OF MAY 1, 1945, REQUESTING DECISION WHETHER, UNDER THE CIRCUMSTANCES SHOWN, PAYMENT MAY BE MADE ON A VOUCHER SUBMITTED THEREWITH IN FAVOR OF WILLIAM F. HESPELT, FIRST LIEUTENANT, AIR CORPS, ON THE BASIS OF THE COST OF TRANSPORTATION OF HIS DEPENDENT WIFE FROM QUEENSLAND, AUSTRALIA, TO AVON PARK, FLORIDA, OR WHETHER PAYMENT THEREON WOULD BE LIMITED TO THE COST FROM WALLA WALLA, WASHINGTON, TO AVON PARK, FLORIDA.

IT APPEARS THAT BY ORDERS DATED AUGUST 23, 1943, HEADQUARTERS, U.S. ARMY FORCES IN THE FAR EAST, APO 501, LIEUTENANT HESPELT WAS RELIEVED FROM FURTHER DUTY IN THE SOUTHWEST PACIFIC AREA ( AUSTRALIA) AND ASSIGNED TO THE 18TH REPLACEMENT WING, SALT LAKE CITY, UTAH, FOR DUTY. BY SPECIAL ORDERS NO. 282, HEADQUARTERS, 18TH REPLACEMENT WING, DATED OCTOBER 9, 1943, THE OFFICER WAS RELIEVED FROM DUTY AT SALT LAKE CITY, UTAH, AND DIRECTED TO PROCEED AND REPORT, ON OR ABOUT OCTOBER 10, 1943, TO THE COMMANDING OFFICER, 88TH BOMBARDMENT GROUP, ARMY AIR BASE, WALLA WALLA, WASHINGTON, FOR DUTY; AND BY SPECIAL ORDERS NO. 302, HEADQUARTERS, WALLA WALLA ARMY AIR BASE, DATED OCTOBER 29, 1943, THE 88TH BOMBARDMENT GROUP, TOGETHER WITH THE 317TH BOMBER SQUADRON, TO WHICH LIEUTENANT HESPELT WAS ATTACHED, WAS RELIEVED FROM DUTY AT WALLA WALLA, WASHINGTON, AND DIRECTED TO PROCEED TO THE ARMY AIR BASE, AVON PARK, FLORIDA, FOR PERMANENT DUTY.

THE ENCLOSURES SUBMITTED DO NOT SHOW THE ACTUAL LOCATION OF OFFICER'S FOREIGN STATION, NOR IS THERE ANY SHOWING THAT HE REQUESTED TRANSPORTATION OF HIS DEPENDENT IMMEDIATELY OR WITHIN A REASONABLE TIME AFTER THE RECEIPT OF CHANGE OF STATION ORDERS, AND THAT TRAVEL BY THE DEPENDENT AT AN EARLIER DATE WAS IMPOSSIBLE OR IMPRACTICABLE DUE TO EXISTING CONDITIONS. ALSO, THERE IS NO SHOWING AS TO WHETHER A DETERMINATION HAS BEEN MADE BY THE HEAD OF THE DEPARTMENT THAT GOVERNMENT TRANSPORT WAS NOT AVAILABLE FOR THE OVERSEAS TRAVEL.

AT THE TIME THE OFFICER WAS ORDERED TO A FOREIGN STATION, HE HAD NO DEPENDENTS. HOWEVER, HE CERTIFIES THAT HE WAS MARRIED IN TOWNSVILLE, QUEENSLAND, AUSTRALIA, ON AUGUST 16, 1943, SEVEN DAYS PRIOR TO THE RECEIPT OF ORDERS TO RETURN TO A PERMANENT STATION IN THE UNITED STATES. THE TRAVEL INVOLVED WAS PERFORMED BY HIS DEPENDENT BY MEANS OF COMMERCIAL TRANSPORTATION DURING THE PERIOD JULY 21 TO SEPTEMBER 5, 1944. YOU STATE THAT THERE ARE SEVERAL SIMILAR CLAIMS NOW PENDING AND MANY EXPECTED TO BE FILED IN THE NEAR FUTURE, AND YOU EXPRESS A DOUBT AS TO WHETHER THE PRINCIPLES OUTLINED IN 17 COMP. GEN. 265, UNDER REVERSE CIRCUMSTANCES WOULD APPLY, OR WHETHER SETTLEMENT SHOULD BE MADE IN ACCORDANCE WITH PARAGRAPH 4B, ARMY REGULATIONS 35-5320, WHICH PROVIDES:

WHERE AN OFFICER IS ORDERED TO A PERMANENT CHANGE OF STATION AND HIS DEPENDENTS DO NOT TRAVEL WITH HIM TO SUCH STATION, AND HE IS SUBSEQUENTLY ORDERED TO A NEW PERMANENT STATION, HE IS ENTITLED TO TRANSPORTATION FOR HIS DEPENDENTS OR REIMBURSEMENT OF THE COMMERCIAL COST THEREOF FROM THE PLACE WHERE THE DEPENDENTS ARE LOCATED WHEN THE LAST CHANGE OF STATION ORDER IS RECEIVED TO THE NEW PERMANENT STATION PROVIDED THE COST IS NO GREATER THAN FROM THE LAST PERMANENT STATION TO THE NEW STATION.

THE FIFTH PARAGRAPH OF SECTION 12, PAY READJUSTMENT ACT OF 1942, 56 STAT. 364, 365, 366, INCORPORATING THE PRIOR PROVISIONS OF THE ACT OF MAY 18, 1920, 41 STAT. 604, AND THE ACT OF JUNE 10, 1922, 42 STAT. 631, PROVIDES, IN PART, AS FOLLOWS:

WHEN ANY OFFICER, WARRANT OFFICER, OR ENLISTED MAN ABOVE THE FOURTH GRADE, HAVING DEPENDENTS AS DEFINED IN SECTION 4 HEREOF, IS ORDERED TO MAKE A PERMANENT CHANGE OF STATION, THE UNITED STATES SHALL FURNISH TRANSPORTATION IN KIND FROM FUNDS APPROPRIATED * * * THAT IF THE COST OF SUCH TRANSPORTATION EXCEEDS THAT FOR TRANSPORTATION FROM THE OLD TO THE NEW STATION, THE EXCESS COST SHALL BE PAID TO THE UNITED STATES BY THE OFFICER, WARRANT OFFICER, OR ENLISTED MAN CONCERNED: PROVIDED FURTHER, THAT TRANSPORTATION SUPPLIED THE DEPENDENTS OF SUCH OFFICER, WARRANT OFFICER, OR ENLISTED MAN, TO OR FROM STATIONS BEYOND THE CONTINENTAL LIMITS OF THE UNITED STATES, SHALL NOT BE OTHER THAN BY GOVERNMENT TRANSPORT, IF SUCH TRANSPORTATION IS AVAILABLE AS MAY BE DETERMINED BY THE HEAD OF THE DEPARTMENT CONCERNED * * * THAT IN LIEU OF TRANSPORTATION IN KIND AUTHORIZED BY THIS SECTION FOR DEPENDENTS, THE PRESIDENT MAY AUTHORIZE THE PAYMENT IN MONEY OF AMOUNTS EQUAL TO SUCH COMMERCIAL TRANSPORTATION COSTS FOR THE WHOLE OR SUCH PART OF THE TRAVEL FOR WHICH TRANSPORTATION IN KIND IS NOT FURNISHED WHEN SUCH TRAVEL SHALL HAVE BEEN COMPLETED.

THE RIGHT TO TRANSPORTATION FOR DEPENDENTS ACCRUES AT THE TIME THE ORDERS FOR A PERMANENT CHANGE OF STATION BECOME EFFECTIVE, AND THE GENERAL RULE ESTABLISHED BY THE DECISIONS OF THIS OFFICE IS THAT WHERE THE DEPENDENTS OF AN OFFICER OR ENLISTED MAN ENTITLED TO TRANSPORTATION PERFORM NO TRAVEL INCIDENT TO ORDERS DIRECTING A PERMANENT CHANGE OF STATION PRIOR TO THE RECEIPT OF ORDERS DIRECTING A FURTHER CHANGE OF STATION, THE TRANSPORTATION AUTHORIZED FOR THEM IS LIMITED TO WHAT THE COST WOULD BE FROM THE LAST PERMANENT STATION TO THE ULTIMATE NEW STATION. 27 COMP. DEC. 510; 2 COMP. GEN. 712; 4 ID. 438; 7 ID. 255; 9 ID. 439; 23 ID. 303.

IN DECISION OF SEPTEMBER 14, 1928, 8 COMP. GEN. 118, IT WAS HELD (QUOTING FROM THE SYLLABUS):

WHERE AN OFFICER OF THE MARINE CORPS IS ASSIGNED TO PERMANENT DUTY AT AN OVERSEAS STATION AND BECAUSE OF DISTURBED CONDITIONS OR THE UNAVAILABILITY OF TRANSPORTATION FOR DEPENDENTS TO SUCH PERMANENT STATION IT IS NOT POSSIBLE FOR THE DEPENDENTS TO TRAVEL THERETO, AND NO TRANSPORTATION IS FURNISHED THE DEPENDENTS INCIDENT TO SUCH CHANGE OF PERMANENT STATIONS, FOR THE PURPOSE OF TRANSPORTATION OF DEPENDENTS AND FOR THAT PURPOSE ONLY, THAT STATION MAY BE IGNORED AND TRANSPORTATION ISSUED FROM THE OFFICER'S LAST PERMANENT STATION IN THE UNITED STATES PRIOR TO ASSIGNMENT TO PERMANENT STATION OVERSEAS, TO HIS FIRST NEW PERMANENT STATION UPON ASSIGNMENT TO DUTY IN THE UNITED STATES OR TO OVERSEAS STATION TO WHICH TRANSPORTATION OF HIS DEPENDENTS IS POSSIBLE OR PRACTICABLE. 7 COMP. GEN. 255 DISTINGUISHED.

IT WAS THEREIN POINTED OUT THAT THE VIEW EXPRESSED IN 7 COMP. GEN. 255, IS APPLICABLE TO ANY CASE WHERE, FOR THE PERSONAL CONVENIENCE OF THE OFFICER OR HIS DEPENDENTS, THEY DO NOT TRAVEL TO HIS PERMANENT STATION; THAT WHEN THE OFFICER IS ASSIGNED A PERMANENT STATION TO WHICH HIS DEPENDENTS CAN TRAVEL THE LAW REASONABLY PERMITS THE ISSUANCE OF TRANSPORTATION FOR THEIR TRAVEL BETWEEN THE TWO PERMANENT STATIONS WHERE THE TRAVEL IS PRACTICABLE OR POSSIBLE, AND THAT WHERE DEPENDENTS WERE NOT PERMITTED TO TRAVEL OR THERE WERE NO AVAILABLE MEANS FOR TRAVEL AND NO TRANSPORTATION COULD PRACTICABLY BE FURNISHED TO THE PERMANENT OVERSEAS STATION, THE INTERMEDIATE PERMANENT STATION WAS, FOR THE PURPOSE OF TRANSPORTATION ONLY, NOT TO BE CONSIDERED AS A PERMANENT STATION. SEE, ALSO, 27 COMP. DEC. 267; 10 COMP. GEN. 17. THE DECISION OF SEPTEMBER 18, 1937, 17 COMP. GEN. 265, INVOLVED A WARRANT OFFICER, UNITED STATES ARMY, WHO WAS RELIEVED OF HIS ASSIGNMENT IN CHICAGO, ILLINOIS, AND DIRECTED TO PROCEED TO NEW YORK CITY, AND SAIL ON THE TRANSPORT SCHEDULED TO LEAVE THAT PORT FOR PANAMA. THE OFFICER PROCEEDED TO THE CANAL ZONE WITHOUT HIS DEPENDENTS, AND UPON ARRIVAL HE WAS FURTHER DIRECTED TO REPORT TO THE COMMANDING GENERAL, PANAMA CANAL DEPARTMENT, FOR ASSIGNMENT TO DUTY WITH THE QUARTERMASTER CORPS. IT APPEARS THAT UPON REPORTING HE WAS ASSIGNED TO DUTY AT A DIFFERENT STATION AND BEFORE HIS DEPENDENTS JOINED HIM HE WAS AGAIN TRANSFERRED TO ANOTHER STATION. IT WAS STATED IN THAT DECISION AT PAGE 267:

* * * IN SUCH CIRCUMSTANCES ONLY THE CLEAREST PROVISION OF THE LAW WOULD JUSTIFY REDUCING HIS RIGHT TO TRANSPORTATION FOR HIS DEPENDENTS FROM SOME 3,000 MILES TO SOME 45 OR 50 MILES.

THE HOLDING IN 7 COMP. GEN. 255, HAS NO APPLICATION TO SUCH A SITUATION NOR TO AN ASSIGNMENT OF AN OFFICER TO AN OVERSEAS STATION. IT WAS NEVER CONTEMPLATED THAT BY REASON OF A CHANGE OF ASSIGNMENT OF DUTY STATIONS WITHIN AN OVERSEAS DEPARTMENT THE OFFICER COULD BE DEPRIVED OF TRANSPORTATION OF HIS DEPENDENTS FROM THE OLD STATION IN THE UNITED STATES TO THE OVERSEAS STATION. FOR THE PURPOSE OF TRANSPORTATION OF DEPENDENTS WHERE ASSIGNMENT IS TO AN OVERSEAS STATION * * * THE ASSIGNMENT TO THE OVERSEAS DEPARTMENT IS THE CHANGE OF STATION ON WHICH TRANSPORTATION OF DEPENDENTS SHOULD BE COMPUTED BETWEEN THE OLD STATION IN THE UNITED STATES AND THE OVERSEAS DEPARTMENT. IF AFTER ARRIVAL OF THE DEPENDENTS IN THE OVERSEAS DEPARTMENT THERE ARE CHANGES OF ASSIGNED DUTY STATIONS WITHIN SUCH DEPARTMENT, THE DEPENDENTS WILL BE ENTITLED, ALSO, TO TRANSPORTATION WITHIN SUCH DEPARTMENT ON SUCH CHANGES OF STATION.

WHERE EXISTING CONDITIONS PREVENT THE RETURN OF DEPENDENTS OF OFFICERS AND ENLISTED MEN FROM FOREIGN DUTY STATIONS AND THE CIRCUMSTANCES ARE SUCH THAT TRAVEL IS NEITHER POSSIBLE NOR PRACTICABLE WITHOUT DELAY, NO REASON IS PERCEIVED WHY THE BASIC PRINCIPLE STATED IN 8 COMP. GEN. 118, AND 17 COMP. GEN. 265, SHOULD NOT APPLY TO THE TRANSPORTATION OF DEPENDENTS FROM SUCH OVERSEAS STATIONS.

ACCORDINGLY, YOU ARE ADVISED THAT IF THE VOUCHER, RETURNED HEREWITH, BE COMPLETED TO SHOW (1) THE LOCATION OF THE OFFICER'S FOREIGN STATION WHEN HE WAS ORDERED TO THE UNITED STATES; (2) THAT HE REQUESTED TRANSPORTATION FOR HIS DEPENDENT AT THE TIME HE WAS ORDERED TO THE STATES, OR WITHIN A REASONABLE TIME THEREAFTER; (3) THAT TRAVEL BY THE DEPENDENT TO THE UNITED STATES AT AN EARLIER DATE WAS IMPOSSIBLE OR IMPRACTICABLE DUE TO EXISTING CONDITIONS AND, (4) THAT GOVERNMENT TRANSPORT WAS NOT AVAILABLE FOR THE TRAVEL FROM THE OVERSEAS STATION TO THE UNITED STATES, PAYMENT THEREON IS AUTHORIZED ON THE BASIS OF COST OF COMMERCIAL TRANSPORTATION FROM THE OFFICER'S FOREIGN STATION TO HIS PERMANENT STATION AT AVON PARK, FLORIDA.