B-120837, OCT. 31, 1961

B-120837, OCT. 31, 1961

TO CAPTAIN GERALD N. BURPEE, AUS, RETIRED:

REFERENCE IS MADE TO YOUR LETTER DATED OCTOBER 3, 1961, REQUESTING REVIEW OF OUR SETTLEMENT OF MAY 19, 1961, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT OF YOUR DEPENDENTS' (WIFE AND TWO CHILDREN) TRAVEL FROM PORT OF DEBARKATION IN THE UNITED STATES TO CLEARWATER, FLORIDA, PRIOR TO YOUR ORDERS OF FEBRUARY 2, 1959.

BY ORDERS DATED JULY 10, 1958, YOUR DEPENDENTS (WIFE AND DAUGHTER) WERE AUTHORIZED TRANSPORTATION FROM THE UNITED STATES ARMY TRANSPORTATION TERMINAL COMMAND, JAPAN, APO 503, TO PORT OF DEBARKATION IN CONTINENTAL UNITED STATES. THE ORDERS SPECIFICALLY PROVIDED THAT TRANSPORTATION BEYOND THE POINT OF DEBARKATION AT GOVERNMENT EXPENSE WAS NOT AUTHORIZED PRIOR TO YOUR PERMANENT CHANGE OF STATION, SUCH RESTRICTION BEING IN ACCORD WITH THE PROVISIONS OF PARAGRAPH 7009 OF THE JOINT TRAVEL REGULATIONS. WHILE YOU HAVE NOT FURNISHED A COPY OF THE ORDERS WHICH AUTHORIZED THE TRAVEL OF YOUR SON FROM JAPAN TO THE UNITED STATES, THE RECORD INDICATES THAT SUCH TRAVEL WAS PERFORMED PURSUANT TO ORDERS DATED APRIL 15, 1958, SIMILAR TO THOSE AUTHORIZING THE TRAVEL OF YOUR WIFE AND DAUGHTER. UPON ARRIVAL IN THE UNITED STATES YOUR DEPENDENTS TRAVELED TO CLEARWATER, FLORIDA. ORDERS DATED FEBRUARY 2, 1959, DIRECTED YOUR RETURN TO CONTINENTAL UNITED STATES FOR DUTY AT FORT BENNING, GEORGIA.

UPON REPORTING TO YOUR DUTY STATION AT FORT BENNING, GEORGIA, YOU CLAIMED REIMBURSEMENT FOR YOUR DEPENDENTS' TRAVEL PREVIOUSLY PERFORMED FROM THE PORT OF DEBARKATION TO CLEARWATER, FLORIDA, ON THE BASIS THAT YOU WERE ENTITLED TO DEPENDENT TRANSPORTATION INCIDENT TO YOUR PERMANENT CHANGE OF STATION ORDERS OF FEBRUARY 2, 1959. YOU WERE PAID THE SUM OF $171.36 FOR YOUR SON'S TRAVEL AND THE ADDITIONAL AMOUNT OF $260.37 FOR YOUR WIFE AND DAUGHTER'S TRAVEL TO CLEARWATER, FLORIDA, NOT TO EXCEED THE COST OF SUCH TRAVEL TO FORT BENNING, GEORGIA, ON D.O. VOUCHER NOS. 6959 AND 6960, RESPECTIVELY, IN THE MARCH 1959 ACCOUNTS OF V. E. BESS, SYMBOL NO. B5452. UPON AUDIT OF THE VOUCHERS, EXCEPTIONS WERE TAKEN TO THE PAYMENTS FOR THE REASON THAT THE JOINT TRAVEL REGULATIONS LIMITED TRAVEL PERFORMED BY YOUR DEPENDENTS AT GOVERNMENT EXPENSE, PRIOR TO YOUR TRANSFER TO THE UNITED STATES, FROM JAPAN TO THE PORT OF DEBARKATION. CONSEQUENTLY, THE ERRONEOUS PAYMENTS WERE COLLECTED BY ADJUSTMENT IN YOUR PAY RECORD. YOUR CLAIM FOR REIMBURSEMENT OF THE AMOUNT COLLECTED WAS DISALLOWED BY SETTLEMENT DATED MAY 19, 1961.

IN YOUR PRESENT LETTER YOU SAY THAT ON THE VOUCHER ON WHICH YOU WERE PAID IT IS STATED THAT YOU WERE REIMBURSED FOR YOUR DEPENDENTS' TRAVEL TO YOUR DUTY STATION AT FORT BENNING, GEORGIA. THEREFORE, YOU BELIEVE OUR SETTLEMENT OF MAY 19, 1961, IS ERRONEOUS BECAUSE IT PRESUMES YOUR CLAIM IS FOR REIMBURSEMENT OF YOUR DEPENDENT'S TRANSPORTATION TO CLEARWATER, FLORIDA.

SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 253 (C), PROVIDES IN PART THAT UNDER SUCH CONDITIONS AND LIMITATIONS AND FOR SUCH RANKS, GRADES, OR RATINGS, AND TO AND FROM SUCH LOCATIONS AS MAY BE PRESCRIBED BY THE SECRETARIES CONCERNED, MEMBERS OF THE UNIFORMED SERVICES "WHEN ORDERED TO MAKE A CHANGE OF PERMANENT STATION" SHALL BE ENTITLED TO TRANSPORTATION FOR DEPENDENTS. IT FURTHER PROVIDES THAT WHEN ORDERS DIRECTING A CHANGE OF PERMANENT STATION FOR THE MEMBER CONCERNED HAVE NOT BEEN ISSUED THE SECRETARIES CONCERNED MAY, NEVERTHELESS, AUTHORIZE THE MOVEMENT OF DEPENDENTS ONLY UNDER UNUSUAL OR EMERGENCY CIRCUMSTANCES, INCLUDING THOSE WHICH MAY ARISE WHEN THE MEMBERS ARE SERVING ON PERMANENT DUTY AT STATIONS OUTSIDE THE CONTINTENTAL UNITED STATES.

BASICALLY THE STATUTE AUTHORIZES THE SECRETARIES CONCERNED TO ISSUE REGULATIONS PROVIDING FOR THE EARLY RETURN OF DEPENDENTS OF MILITARY PERSONNEL ONLY BECAUSE OF ACTUAL CONDITIONS OF AN EMERGENCY NATURE ARISING AT OVERSEAS DUTY STATIONS WHICH JUSTIFY SUCH RETURN. PARAGRAPH 7009-3 OF THE JOINT TRAVEL REGULATIONS, ISSUED UNDER THE ABOVE PROVISIONS OF LAW PROVIDED FOR THE ADVANCE RETURN OF DEPENDENTS OF MEMBERS FROM OVERSEAS TO THE UNITED STATES, IN THE CIRCUMSTANCES AND WITHIN THE LIMITATIONS THERE PRESCRIBED. AT THE TIME INVOLVED, THE PARAGRAPH SPECIFICALLY REQUIRED THAT THE ORDERS LIMIT TRANSPORTATION "TO THE POINT OF DEBARKATION IN THE UNITED STATES.' THE PARAGRAPH FURTHER PROVIDED THAT UPON TRANSFER OF THE MEMBER TO A PERMANENT DUTY STATION IN THE UNITED STATES, TRANSPORTATION OF HIS DEPENDENTS WAS AUTHORIZED, IF OTHERWISE PROPER, AT NOT TO EXCEED THE ENTITLEMENT FROM THE PORT OF DEBARKATION TO THE NEW DUTY STATION.

UNDER THE STATUTE AND REGULATIONS THEN IN EFFECT A MEMBER'S RIGHT TO REIMBURSEMENT FOR DEPENDENT TRAVEL FROM THE PORT OF DEBARKATION IN THE UNITED STATES WAS CONTINGENT UPON THE ISSUANCE OF THE MEMBER'S PERMANENT CHANGE OF STATION ORDERS AND THE TRAVEL OF THE DEPENDENTS AFTER THE ISSUANCE OF THOSE ORDERS. THE AMOUNT ALLOWABLE FOR SUCH TRAVEL ACTUALLY PERFORMED AND OTHERWISE PROPER MAY NOT EXCEED THE AMOUNT WHICH WOULD BE ALLOWABLE FOR TRAVEL OF THE DEPENDENTS FROM THE PORT OF DEBARKATION TO THE MEMBER'S NEW DUTY STATION. THE REGULATION MAKES NO PROVISION FOR REIMBURSEMENT TO THE MEMBER FOR TRANSPORTATION PROCURED AT PERSONAL EXPENSE FOR TRAVEL OF HIS DEPENDENTS BEYOND THE PORT OF DEBARKATION PERFORMED BY THEM PRIOR TO HIS TRANSFER AND IT HAS CONSISTENTLY BEEN HELD THAT REIMBURSEMENT FOR SUCH TRAVEL IS NOT AUTHORIZED.

THE VOUCHER ON WHICH YOU WERE PAID FOR YOUR DEPENDENTS' TRAVEL TO CLEARWATER, FLORIDA, PRESUMABLY WAS MADE UP AFTER YOUR ARRIVAL AT YOUR DUTY STATION AT FORT BENNING, GEORGIA, AND YOU WERE ALLOWED REIMBURSEMENT FOR THE DISTANCE FROM THE PORT OF DEBARKATION IN THE UNITED STATES TO CLEARWATER, FLORIDA, NOT TO EXCEED THE ENTITLEMENT FROM PORT OF DEBARKATION TO FORT BENNING, GEORGIA.

HOWEVER, SINCE THE RECORD SHOWS YOUR DEPENDENTS' TRAVEL WAS PERFORMED PRIOR TO YOUR PERMANENT CHANGE OF STATION ORDERS OF FEBRUARY 2, 1959, AND SINCE THE STATUTE AND REGULATIONS DO NOT AUTHORIZE REIMBURSEMENT EXCEPT FOR TRAVEL PERFORMED AFTER THE DATE OF PERMANENT CHANGE OF STATION, IT IS CLEAR THAT THEIR TRAVEL AT GOVERNMENT EXPENSE WAS NOT AUTHORIZED. THESE CIRCUMSTANCES WE HAVE NO ALTERNATIVE BUT TO SUSTAIN OUR PRIOR ACTION IN THE MATTER.

ACCORDINGLY, THE SETTLEMENT OF MAY 19, 1961, IS CORRECT AND IS SUSTAINED.

THE PRESENT RECORD DOES NOT SHOW WHETHER YOU HAVE BEEN REIMBURSED FOR YOUR DEPENDENTS' TRAVEL FROM CLEARWATER, FLORIDA, TO FORT BENNING, GEORGIA, INCIDENT TO YOUR ORDERS OF FEBRUARY 2, 1959. IF SUCH TRAVEL WAS IN FACT PERFORMED BY YOUR DEPENDENTS AFTER YOUR PERMANENT CHANGE OF STATION AND YOU HAVE NOT RECEIVED REIMBURSEMENT THEREFOR, YOUR CLAIM COVERING SUCH TRAVEL MAY BE FILED WITH OUR CLAIMS DIVISION. SUCH A CLAIM SHOULD SHOW WHEN THE TRAVEL WAS PERFORMED, THE DEPENDENTS WHO PERFORMED THE TRAVEL AND WHETHER IT WAS FOR THE PURPOSE OF ESTABLISHING A RESIDENCE AT YOUR DUTY STATION.