B-130271, MAR. 4, 1957

B-130271, MAR. 4, 1957

TO MR. RICHARD H. THOMAS:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 30, 1956, FORWARDED HERE BY THE FINANCE CENTER, U.S. ARMY, INDIANAPOLIS, INDIANA, REQUESTING REVIEW OF SETTLEMENT DATED SEPTEMBER 4, 1956, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT FOR YOUR TRAVEL FROM PORT OF EMBARKATION IN FRANCE TO NEW YORK, NEW YORK, FOLLOWING YOUR DISCHARGE ON MARCH 28, 1946, AS AN ENLISTED MAN, ARMY OF THE UNITED STATES.

THE RECORD SHOWS THAT ON JANUARY 31, 1946, YOU SIGNED AN APPLICATION FOR SEPARATION FROM THE ARMED FORCES IN THE EUROPEAN THEATER OF OPERATIONS, IN WHICH YOU REQUESTED THAT YOU BE SEPARATED FROM THE MILITARY SERVICE IN FRANCE AS SOON AS YOU BECAME ELIGIBLE. IT IS STATED IN THE APPLICATION THAT "I HEREBY STATE THAT I HAVE BEEN OFFERED GOVERNMENT TRANSPORTATION TO THE UNITED STATES AND DECLINE SAME WITH THE UNDERSTANDING THAT SUCH GOVERNMENT TRANSPORTATION WILL NOT BE FURNISHED AT A LATER DATE.' ON THE BASIS OF THIS APPLICATION, YOU WERE DISCHARGED IN PARIS, FRANCE, ON MARCH 28, 1946, AS PRIVATE FIRST CLASS, ARMY OF THE UNITED STATES. YOU SAY THAT YOU LATER TRAVELED AT PERSONAL EXPENSE FROM FRANCE TO NEW YORK, NEW YORK, FOR WHICH TRAVEL YOU CLAIM REIMBURSEMENT.

BY SETTLEMENT DATED SEPTEMBER 4, 1956, YOU WERE ALLOWED $7.05 AS TRAVEL ALLOWANCE DUE YOU AT DATE OF DISCHARGE. SUCH ALLOWANCE WAS COMPUTED AT 5 CENTS PER MILE ON THE DISTANCE FROM PARIS, FRANCE, TO LE HAVRE, FRANCE, PORT OF EMBARKATION FOR THE UNITED STATES. THAT PART OF YOUR CLAIM COVERING TRAVEL FROM LE HAVRE TO NEW YORK, NEW YORK, WAS DISALLOWED ON THE BASIS THAT IN ORDER TO BE DISCHARGED IN FRANCE YOU WAIVED GOVERNMENT TRANSPORTATION TO THE UNITED STATES. IN YOUR REQUEST FOR REVIEW OF THAT SETTLEMENT YOU SAY, IN SUBSTANCE, THAT YOUR APPLICATION FOR DISCHARGE IN FRANCE WAS SIGNED WITH THE UNDERSTANDING THAT YOU WOULD BE PERMITTED TO TRAVEL TO THE UNITED STATES WITH YOUR WIFE; THAT SHE WAS REQUIRED TO TRAVEL TO THE UNITED STATES AS A WAR BRIDE; AND THAT YOU WERE NOT PERMITTED TO TRAVEL WITH HER AS A RESULT OF WHICH YOU RETURNED TO THE UNITED STATES AT PERSONAL EXPENSE ON A DIFFERENT VESSEL. ON THAT BASIS, YOU URGE THAT YOUR CLAIM SHOULD BE ALLOWED.

AT THE TIME OF YOUR DISCHARGE, PARAGRAPHS 38 AND 40, ARMY REGULATIONS 35- 4810, PROVIDED GENERALLY THAT AN ENLISTED MAN DISCHARGED FROM THE ARMY EXCEPT BY WAY OF PUNISHMENT FOR AN OFFENSE, WAS ENTITLED TO RECEIVE 5 CENTS PER MILE FOR THE DISTANCE FROM THE PLACE OF DISCHARGE TO THE PLACE OF HIS ACCEPTANCE FOR ENLISTMENT, ENROLLMENT, OR MUSTER INTO THE SERVICE, WITHOUT REGARD TO THE ACTUAL PERFORMANCE OF SUCH TRAVEL. PARAGRAPH 41B (1) PROVIDED THAT "IN THE CASE OF A PERSON ENLISTED IN THE UNITED STATES AND DISCHARGED AT AN OVERSEA STATION, TRAVEL PAY WILL BE COMPUTED FROM THE PLACE OF DISCHARGE TO THE NEAREST PORT OF EMBARKATION IN THE FOREIGN COUNTRY AND FROM THE NEAREST REGULAR PORT OF CALL IN THE UNITED STATES FOR ARMY TRANSPORTS TO THE PLACE OF ACCEPTANCE.' PARAGRAPH 41C PROVIDED THAT IN ANY CASE WHERE THE INDIVIDUAL DID NOT DESIRE TO AVAIL HIMSELF OF THE GOVERNMENT TRANSPORTATION AT THE TIME OF SEPARATION, IT WAS CONSIDERED THAT THE GOVERNMENT HAD DISCHARGED ITS OBLIGATION AND WOULD NOT AT A LATER DATE FURNISH SUCH TRANSPORTATION. IT WAS FURTHER PROVIDED THAT THE INDIVIDUAL WOULD BE REQUIRED TO SIGN A STATEMENT AT THE TIME OF SEPARATION, INDICATING THAT HE HAD BEEN OFFERED GOVERNMENT TRANSPORTATION TO THE UNITED STATES AND DECLINED SAME WITH THE UNDERSTANDING THAT HE WOULD NOT BE FURNISHED SUCH GOVERNMENT TRANSPORTATION AT A LATER DATE.

IT HAS BEEN HELD THAT A WAIVER OF TRAVEL ALLOWANCE, IF SUPPORTED BY A PROPER CONSIDERATION, CONSTITUTES A CONTRACT BETWEEN AN ENLISTED MAN AND THE GOVERNMENT AND IS BINDING UPON THE PARTIES CONCERNED. 30 COMP. GEN. 480. IN CONSIDERATION OF YOUR SIGNING THE WAIVER HERE INVOLVED, YOU WERE PERMITTED TO BE DISCHARGED OVERSEAS TO ENABLE YOU TO ASSIST YOUR WIFE INSECURING TRANSPORTATION TO THE UNITED STATES. THE FACT THAT YOU WERE NOT PERMITTED TO ACTUALLY TRAVEL TO THE UNITED STATES WITH YOUR WIFE MAY NOT BE CONSIDERED AS HAVING ANY BEARING ON THE VALIDITY OF THE WAIVER SIGNED BY YOU. THUS, THE WAIVER WAS SUPPORTED BY PROPER CONSIDERATION, AND IN SUCH CIRCUMSTANCES YOU MAY NOT BE REIMBURSED FOR YOUR TRAVEL FROM LE HAVRE, FRANCE, TO NEW YORK, NEW YORK.

ACCORDINGLY, THE DISALLOWANCE OF THAT PART OF YOUR CLAIM BY THE SETTLEMENT OF SEPTEMBER 4, 1956, IS SUSTAINED.