B-83771, APR 15, 1949

B-83771, APR 15, 1949

PRECIS-UNAVAILABLE

LIEUTENANT COLONEL S. H. SMITH, F.D.:

THERE HAS BEEN CONSIDERED YOUR LETTER OF OCTOBER 7, 1948, RECEIVED BY ENDORSEMENT OF THE ACTING CHIEF OF FINANCE DATED FEBRUARY 14, 1949, IN WHICH YOU REQUEST DECISION AS TO WHETHER PAYMENT IS AUTHORIZED AND, IF SO, THE BASIS FOR DETERMINING THE AMOUNT OF SUCH PAYMENT, ON A VOUCHER SUBMITTED THEREWITH IN FAVOR OF FRANK T. VACCARO, FIRST LIEUTENANT, MSC, FOR REIMBURSEMENT OF EXPENSES OF TRAVEL PERFORMED BY HIS DEPENDENTS FROM HIS HOME AT CHENANGO BRIDGE, NEW YORK, TO ST. LOUIS, MISSOURI, PURSUANT TO ACTIVE DUTY ORDERS OF HEADQUARTERS FIRST ARMY, GOVERNORS ISLAND, NEW YORK, DATED JULY 22, 1948.

UNDER THE PROVISIONS OF THE SAID ORDERS OF THE SAID ORDERS OF JULY 22, 1948, LIEUTENANT VACCARO WAS ORDERED TO EXTENDED ACTIVE DUTY AND DIRECTED TO PROCEED FROM HIS HOME AT CHENANGO BRIDGE, NEW YORK, TO THE ST. LOUIS MEDICAL DEPOT, ST. LOUIS, MISSOURI, ON AUGUST 6, 1948, FOR DUTY. THE OFFICER CERTIFIED THAT HIS WIFE AND TWO DAUGHTERS, AGES THREE YEARS AND ONE YEAR, WERE LOCATED AT CHENANGO BRIDGE WHEN THE ORDERS OF JULY 22, 1948, WERE RECEIVED. BY TRANSPORTATION REQUEST NO. WQ 27,993,620, ISSUED BY THE TRANSPORTATION OFFICER AT THE ST. LOUIS MEDICAL DEPOT ON SEPTEMBER 20, 1948, THE NEW YORK CENTRAL RAILROAD COMPANY WAS REQUESTED TO FURNISH TO MRS. GRACE VACCARO AND TWO CHILDREN, AGE UNDER FIVE YEARS, ONE FIRST CLASS TICKET TO COVER TRAVEL FROM BUFFALO, NEW YORK, TO ST. LOUIS UNDER AUTHORITY OF THE ABOVE CITED ORDERS OF JULY 22, 1948, AND TRANSPORTATION REQUEST NO. WQ 27,993,621 OF THE SAME DATE REQUESTED THE PULLMAN COMPANY TO FURNISH MRS. VACCARO AND CHILDREN ONE UPPER AND ONE LOWER BERTH FROM BUFFALO TO ST. LOUIS. TRAVEL IS STATED TO HAVE BEEN PERFORMED DURING THE PERIOD SEPTEMBER 23 TO 25, 1948, THAT PORTION FROM CHENANGO BRIDGE TO BUFFALO HAVING BEEN PERFORMED BY PRIVATE CONVEYANCE AND THE REMAINING PORTION BY RAIL. IN CONNECTION WITH HIS CLAIM LIEUTENANT VACCARO STATES THAT WHEN SPACE WAS CLAIMED AT BUFFALO ONLY ONE FIRST CLASS PASSAGE WAS RECEIVED AND THE PULLMAN PASSENGER REPRESENTATIVE REQUIRED PAYMENT FOR AN ADDITIONAL HALF-FARE TICKET IN ORDER THAT A FULL SECTION MIGHT BE SECURED.

SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT, 364, PROVIDES THAT WHEN ANY OFFICER, WARRANT OFFICER, OR ENLISTED MAN ABOVE THE FOURTH GRADE IS ORDERED TO MAKE A PERMANENT CHANGE OF STATION THE UNITED STATES SHALL FURNISH TRANSPORTATION IN KIND FOR HIS DEPENDENTS TO HIS NEW STATION, PROVIDED THAT IN LIEU OF TRANSPORTATION IN KIND "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." EXECUTIVE ORDER NO. 9222, DATED AUGUST 15, 1942, ISSUED PURSUANT TO THE AUTHORITY SO VESTED IN THE PRESIDENT, PROVIDES THAT THE HEADS OF THE RESPECTIVE DEPARTMENTS AND ESTABLISHMENTS CONCERNED ARE AUTHORIZED "TO MAKE PAYMENT IN MONEY OF AMOUNTS EQUAL TO COMMERCIAL TRANSPORTATION COSTS FOR THE WHOLE OR SUCH PART OF THE TRAVEL OF *** DEPENDENTS FOR WHICH TRANSPORTATION IN KIND IS NOT FURNISHED, "AND THAT THEY "MAY PRESCRIBE ADDITIONAL REGULATIONS NOT INCONSISTENT HEREWITH OR WITH THE TERMS OF THE SAID SECTION 12 AS MAY BE NECESSARY FOR CARRYING OUT THE PROVISIONS OF THIS ORDER." SECTION 2 OF THE ACT OF APRIL 27, 1946, 60 STAT. 126, PROVIDES THAT "IN LIEU OF TRANSPORTATION FOR DEPENDENTS OF PERSONNEL OF THE ARMY, NAVY, MARINE CORPS, AND COAST GUARD, OR OF ANY OF THE COMPONENTS THEREOF AUTHORIZED UNDER ANY PROVISION OF LAW, PAYMENT AT THE RATE OF 4 CENTS PER MILE FOR DEPENDENTS TWELVE YEARS OF AGE AND OVER, AND 2 CENTS PER MILE FOR DEPENDENTS UNDER TWELVE YEARS OF AGE TO INCLUDE DEPENDENTS FIVE YEARS OF AGE AND OVER, MAY BE MADE FOR LAND TRAVEL WHEN SUCH TRAVEL SHALL HAVE BEEN COMPLETED, "BUT THAT "NO PAYMENT WILL BE MADE FOR DEPENDENTS LESS THAN FIVE YEARS OF AGE." SECTION 4 OF THAT ACT, 60 STAT. 127, PROVIDES THAT THE SECRETARY OF WAR IS "AUTHORIZED TO PRESCRIBE REGULATIONS FOR CARRYING OUT THE PROVISIONS OF THIS ACT."

PARAGRAPH 4, ARMY REGULATIONS 35-4880, DATED MAY 13, 1947, PROVIDES FOR AN ELECTION WHETHER AN OFFICER, ENTITLED TO THE TRANSPORTATION OF HIS DEPENDENTS ON PERMANENT CHANGE OF STATION, WILL (A) PROCURE TRANSPORTATION IN KIND FOR HIS DEPENDENTS FOR THE ENTIRE JOURNEY, (B) TRANSPORT THEM AT HIS OWN EXPENSE FOR THE ENTIRE JOURNEY AND CLAIM REIMBURSEMENT UNDER THE PROVISIONS OF SECTION 2 OF THE ACT OF APRIL 27, 1946, OR (C) PROCURE TRANSPORTATION IN KIND FOR THEM FOR A PORTION OF THE JOURNEY AND TRANSPORT THEM AT HIS OWN EXPENSE FOR THE REMAINING PORTION OF THE JOURNEY AND CLAIM REIMBURSEMENT THEREFOR UNDER THE APRIL 27, 1946, ACT. PARAGRAPH 7 OF SAID REGULATIONS PROVIDES FURTHER THAT INDIVIDUALS MAY TRANSPORT THEIR DEPENDENTS IN ANY MANNER THEY DESIRE BUT THAT THE MEASURE OF PAYMENT FOR ALL TRAVEL OF DEPENDENTS AUTHORIZED BY SUCH REGULATIONS IS THE RATE AUTHORIZED IN SECTION 2 OF THE ACT OF APRIL 27, 1946, VIA THE SHORTEST USUALLY TRAVELED ROUTE.

THE FOREGOING STATUTORY PROVISIONS, AND THE PROVISIONS OF THE EXECUTIVE ORDER CITED ABOVE, ARE NOT SELF-EXECUTING BUT CONTEMPLATE THAT WHEN DEPENDENTS ARE NOT FURNISHED TRANSPORTATION IN KIND THE BASIS FOR REIMBURSEMENT TO THE INDIVIDUAL OF THE EXPENSES INCURRED FOR HIS DEPENDENTS' TRAVEL SHALL BE THAT AUTHORIZED BY ADMINISTRATIVE REGULATIONS. THEREFORE, SINCE THE CITED ADMINISTRATIVE REGULATIONS AUTHORIZE REIMBURSEMENT FOR DEPENDENTS TRAVEL ONLY ON A MILEAGE BASIS AT THE RATES PROVIDED IN THE ACT OF APRIL 27, 1946, WHERE TRANSPORTATION IS NOT FURNISHED IN KIND, THE CONCLUSION IS REQUIRED THAT NO AUTHORITY EXISTS FOR REIMBURSEMENT TO LIEUTENANT VACCARO FOR THE RAIL TRANSPORTATION EXPENSE INCURRED INCIDENT TO HIS DEPENDENTS' TRAVEL FROM BUFFALO TO ST. LOUIS ON A COMMERCIAL COST BASIS. ALSO, IN VIEW OF THE FACT THAT THE HALF -FARE TICKET PURCHASED BY HIM WAS FOR TRANSPORTATION OF A CHILD LESS THAN FIVE YEARS OF AGE, REIMBURSEMENT MAY NOT BE MADE ON A MILEAGE BASIS FOR THAT PORTION OF THE TRAVEL SINCE BENEFITS OF THE ACT OF APRIL 27, 1946, ARE EXPRESSLY RESTRICTED TO TRANSPORTATION OF DEPENDENTS FIVE YEARS OF AGE OR OVER.

UNDER THE PROVISIONS OF PARAGRAPH 2B(2)(B), ARMY REGULATIONS 55-125, DATED JANUARY 9, 1943, TRANSPORTATION OFFICERS ARE AUTHORIZED TO ISSUE TRANSPORTATION REQUESTS FOR ONE SECTION, OR SEPARATED LOWER AND UPPER BERTHS, FOR TRAVEL TO BE PERFORMED BY A WIFE AND TWO CHILDREN, AND PARAGRAPH 21J OF ARMY REGULATIONS 55-110, DATED MAY 6, 1947, PROVIDES THAT UNDER CIRCUMSTANCES WHERE SLEEPING-CAR OR PARLOR-CAR ACCOMMODATIONS FURNISHED FOR DEPENDENTS RESULT IN ONE OR SEVERAL CHILDREN OF THE AGE NORMALLY CARRIED FREE OF CHARGE HAVING EXCLUSIVE OCCUPANCY OF A BERTH OR SEAT FOR WHICH THE RAIL CARRIERS' TARIFFS REQUIRE ONE ADDITIONAL HALF-FARE RAILROAD TICKET TO COVER EACH BERTH OR SEAT SO OCCUPIED, TRANSPORTATION REQUESTS ISSUED SHOULD SHOW SEPARATELY THE NUMBER OF ADDITIONAL HALF-FARE TICKETS REQUIRED TO COVER SPACE OCCUPIED EXCLUSIVELY BY CHILDREN ON THAT BASIS. PRESUMABLY IT WAS LIEUTENANT VACCARO'S INTENTION AND DESIRE IN APPLYING FOR TRANSPORTATION FOR HIS FAMILY'S TRAVEL FROM BUFFALO TO ST. LOUIS THAT HE BE FURNISHED RAIL TRANSPORTATION IN KIND TO THE FULL EXTENT AUTHORIZED UNDER THE LAW AND REGULATIONS FOR THAT TRAVEL. HAD TRANSPORTATION REQUESTS BEEN ISSUED TO THE EXTENT AUTHORIZED IN THE FOREGOING REGULATIONS THEY WOULD HAVE REQUESTED THE FURNISHING OF AN UPPER AND LOWER BERTH, OR A SECTION, AND ONE AND ONE-HALF FIRST CLASS RAIL TICKETS TO COVER THE TRANSPORTATION DESIRED BY THE OFFICER FOR HIS WIFE AND TWO DAUGHTERS. SINCE THE FURNISHING OF TRANSPORTATION TO THAT EXTENT PROPERLY COULD AND SHOULD HAVE BEEN ACCOMPLISHED UNDER THE REGULATIONS, IT APPEARS THAT THE ISSUANCE OF THE TRANSPORTATION REQUEST CALLING FOR BUT ONE FULL FARE TICKET WAS THE RESULT OF ADMINISTRATIVE ERROR OR OMISSION RATHER THAN OF FAULT ON THE PART OF LIEUTENANT VACCARO.

WHILE, AS INDICATED ABOVE, NO AUTHORITY EXISTS AT THE PRESENT TIME UNDER THE CITED PROVISIONS OF SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942, AND REGULATIONS ISSUED PURSUANT THERETO, FOR REIMBURSEMENT TO THE OFFICER FOR THE COST OF THE EXTRA HALF-FARE TICKET REQUIRED TO PROCURE A FULL SECTION FOR HIS DEPENDENTS' RAIL TRAVEL FROM BUFFALO TO ST. LOUIS ON THE BASIS OF REIMBURSEMENT FOR THE COMMERCIAL COSTS INVOLVED, NOR ON THE BASIS OF A MILEAGE PAYMENT UNDER THE PROVISIONS OF THE ACT OF APRIL 27, 1946, A PROPER ADJUSTMENT IN THE MATTER, CONSIDERING THE PARTICULAR CIRCUMSTANCES INVOLVED, WOULD APPEAR TO REQUIRE THAT PAYMENT BE MADE TO THE OFFICER OF AN AMOUNT REPRESENTING THE COST TO THE GOVERNMENT HAD SUCH HALF-FARE TICKET BEEN OBTAINED ON A GOVERNMENT TRANSPORTATION REQUEST AS AUTHORIZED AND CONTEMPLATED IN THE REGULATIONS. ACCORDINGLY, YOUR ARE ADVISED THAT, IF OTHERWISE CORRECT, NO OBJECTION WILL BE RAISED TO THE PAYMENT ON THE PRESENTED VOUCHER, RETURNED HEREWITH, OF AN AMOUNT REPRESENTING THE COST TO THE GOVERNMENT FOR ONE-HALF RAIL FARE FROM BUFFALO, NEW YORK, TO ST. LOUIS IS ADDITION TO THE AMOUNT PROPERLY DUE THE OFFICER AS MILEAGE AT THE RATE OF 4 CENTS PER MILE FOR HIS DEPENDENTS' TRAVEL BY PRIVATELY OWNED CAR, IN PROCEEDING FROM CHENANGO BRIDGE TO BUFFALO.