B-160255, DEC. 28, 1966

B-160255, DEC. 28, 1966

TO CW4 PHILLIP P. MCSPADDEN, USA:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 4, 1966, REQUESTING REVIEW OF THE SETTLEMENT OF AUGUST 29, 1966, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT FOR TRAVEL PERFORMED BY YOU AND YOUR WIFE FROM HEIDELBERG TO OBERAMMERGAU, GERMANY, AND A DISLOCATION ALLOWANCE.

ON MAY 9, 1961, WHILE STATIONED IN EUROPE, YOU WERE GRANTED 30 DAYS' LEAVE EFFECTIVE JUNE 14, 1961, FOR THE PURPOSE OF VISITING THE UNITED STATES. ON MAY 18, 1961, YOUR APPLICATION TO MARRY AN ALIEN WAS APPROVED. ON JULY 11, 1961, YOU WERE MARRIED IN PINKNEYVILLE, ILLINOIS, WHILE ON LEAVE. BY PARAGRAPH 8, SPECIAL ORDERS NO. 99, HEADQUARTERS, U.S. ARMY, EUROPE, APO 403, DATED JULY 14, 1961, YOU WERE TRANSFERRED FROM HEADQUARTERS 4TH REPLACEMENT GROUP, HEIDELBERG, GERMANY, TO HEADQUARTERS UNITED STATES ARMY SCHOOL, OBERAMMERGAU, GERMANY, EFFECTIVE JULY 19, 1961. THE ORDERS CONTAINED THE MOVEMENT DESIGNATOR CODE "COA-97.'

PARAGRAPH 9M (3), ARMY REGULATIONS 310-25, CHANGE 5, IN EFFECT AT THE TIME INVOLVED, PROVIDES THAT WHEN A REASSIGNMENT IS EFFECTED IN WHICH A PERMANENT CHANGE OF STATION IS INVOLVED BUT THERE IS NO PAYMENT OR REIMBURSEMENT UNDER THE JOINT TRAVEL REGULATIONS, CHANGE OF ASSIGNMENT CODE ,COA-97" WILL BE USED. IT FURTHER PROVIDES THAT REASSIGNMENT OF AN UNACCOMPANIED INDIVIDUAL FROM ONE PERMANENT STATION TO ANOTHER WHEREIN THE INDIVIDUAL AND HIS PERSONAL EFFECTS ARE TRANSPORTED BY GOVERNMENT VEHICLE IS AN EXAMPLE FOR THE USE OF SUCH CODE DESIGNATOR. THUS, UNDER YOUR ORDERS A PERMANENT CHANGE OF STATION WAS DIRECTED BUT IT IS INDICATED THAT YOUR TRANSPORTATION WAS LIMITED TO GOVERNMENT VEHICLE AND NO REIMBURSEMENT WAS AUTHORIZED FOR TRAVEL BY OTHER MEANS.

YOU AND YOUR WIFE TRAVELED FROM HEIDELBERG TO OBERAMMERGAU BY PRIVATELY OWNED VEHICLE ON JULY 19, 1961, AND MOVED INTO GOVERNMENT QUARTERS THERE. ON APRIL 20, 1966, THE PORTION OF YOUR 1961 ORDERS THAT READ "COA-97" WAS AMENDED TO READ "WP PCS-5C TDN" AND TO ADD AN ACCOUNTING CLASSIFICATION.

YOUR CLAIM, BASED ON THAT AMENDMENT, WAS DISALLOWED BY THE SETTLEMENT MENTIONED ABOVE IN WHICH IT WAS STATED THAT LEGAL RIGHTS AND LIABILITIES WITH REGARD TO TRAVEL ALLOWANCES VEST WHEN TRAVEL IS PERFORMED UNDERCOMPETENT ORDERS AND THAT SUCH ORDERS MAY NOT BE REVOKED OR MODIFIED RETROACTIVELY SO AS TO INCREASE OR DECREASE THE RIGHTS WHICH HAVE BECOME FIXED UNDER APPLICABLE STATUTES AND REGULATIONS, UNLESS ERROR IS APPARENT ON THE FACE OF THE ORDERS OR ALL THE FACTS AND CIRCUMSTANCES CLEARLY DEMONSTRATE THAT SOME PROVISION PREVIOUSLY DETERMINED AND DEFINITELY INTENDED HAS BEEN OMITTED THROUGH ERROR OR INADVERTENCE IN PREPARING THE ORDERS. IN THIS CONNECTION THERE WAS CITED 24 COMP. GEN. 439. YOU CONTEND THAT THERE WAS AN ERROR IN YOUR ORDERS AS YOU WERE MARRIED BEFORE THE ORDERS WERE ISSUED AND THE ORDERS DID NOT AUTHORIZE TRAVEL OF YOUR DEPENDENT.

IT LONG HAS BEEN THE RULE THAT TRAVEL ORDERS MAY NOT BE MODIFIED AFTER THE TRAVEL HAS BEEN PERFORMED TO INCREASE OR DECREASE THE LIABILITY OF THE GOVERNMENT EXCEPT TO CORRECT AN ERROR APPARENT ON THE FACE OF THE ORDERS OR UNLESS IT IS SHOWN THAT A PROVISION PREVIOUSLY DETERMINED AND DEFINITELY INTENDED FOR INCLUSION WAS OMITTED THROUGH ERROR OR INADVERTENCE. IN THE PRESENT CASE YOUR ORDERS WERE CLEAR AND UNAMBIGUOUS ON THEIR FACE. WHILE THE RECORD SHOWS YOU WERE GRANTED LEAVE AND PERMISSION TO MARRY AN ALIEN, IT IS NOT SHOWN WHEN YOUR ORDERS WERE ISSUED BY HEADQUARTERS UNITED STATES ARMY, EUROPE, APO 403, ON JULY 14, 1961, THAT IT WAS INTENDED TO AUTHORIZE TRANSPORTATION FOR YOUR WIFE INCIDENT TO YOUR REASSIGNMENT AND, THEREFORE, IT IS NOT ESTABLISHED THAT THERE WAS AN ERROR IN YOUR ORDERS. THE FACT THAT CHANGED CIRCUMSTANCES COULD HAVE RESULTED IN THE ISSUANCE OF DIFFERENT ORDERS DOES NOT ESTABLISH THAT THE ORDERS AS ISSUED WERE ERRONEOUS. ACCORDINGLY, IT MUST BE CONCLUDED THAT THE ORDERS AS ISSUED WERE PROPER AND THAT THE AMENDMENT, ISSUED NEARLY 5 YEARS AFTER THE TRAVEL WAS PERFORMED, MAY NOT BE ACCEPTED AS INCREASING YOUR TRAVEL RIGHTS UNDER THE ORDERS OF JULY 14, 1961.

SECTION 404, TITLE 37, U.S. CODE, PROVIDES THAT UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, A MEMBER UPON PERMANENT CHANGE OF STATION SHALL BE ENTITLED TO TRANSPORTATION IN KIND, REIMBURSEMENT THEREFOR, OR MONETARY ALLOWANCE. PARAGRAPH M4150-2 OF THE JOINT TRAVEL REGULATIONS (CHANGE 77, FEBRUARY 1, 1959), IN EFFECT AT THE TIME HERE INVOLVED, PROVIDES THAT IF PERMANENT CHANGE OF STATION TRAVEL IS DIRECTED BY GOVERNMENT CONVEYANCE AND SUCH MODE OF TRANSPORTATION IS AVAILABLE BUT THE MEMBER ELECTS TO TRAVEL BY ANOTHER MODE OF TRANSPORTATION AT PERSONAL EXPENSE, NO REIMBURSEMENT OR MONETARY ALLOWANCE IS AUTHORIZED.

SINCE YOUR ORDERS CONTEMPLATED TRAVEL BY GOVERNMENT CONVEYANCE AND SINCE TRANSPORTATION APPARENTLY WOULD HAVE BEEN FURNISHED YOU BY THAT MEANS, YOU ARE NOT ENTITLED TO REIMBURSEMENT FOR YOUR PERSONAL TRAVEL BY PRIVATELY OWNED CONVEYANCE.

THE STATUTORY AUTHORITY FOR TRANSPORTATION OF DEPENDENTS OF MEMBERS OF THE UNIFORMED SERVICES, 37 U.S.C. 406, EXPRESSLY PROVIDES THAT TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE UPON A MEMBER'S ORDERED CHANGE OF PERMANENT STATION SHALL BE SUBJECT TO SUCH CONDITIONS AND LIMITATIONS, FOR SUCH GRADES, RANKS, AND RATINGS, AND TO AND FROM SUCH PLACES AS THE SECRETARIES CONCERNED MAY PRESCRIBE. THE RIGHT TO DEPENDENTS' TRAVEL IS NOT AN ABSOLUTE ONE BUT MAY BE ADMINISTRATIVELY SUSPENDED OR DENIED FOR REASONS OF MILITARY NECESSITY OR EXPEDIENCE. CULP V. UNITED STATES, 76 CT.CL. 507; 35 COMP. GEN. 61. SECTION 407 OF TITLE 37, U.S.C. PROVIDES FOR PAYMENT OF A DISLOCATION ALLOWANCE ONLY TO MEMBERS WHOSE DEPENDENTS MAKE AN AUTHORIZED MOVE IN CONNECTION WITH A PERMANENT CHANGE OF STATION.

AT THE TIME HERE INVOLVED THERE WAS IN EFFECT DEPARTMENT OF DEFENSE DIRECTIVE 1315.7, MAY 7, 1957, RELATING TO MOVEMENT OF DEPENDENTS TO OVERSEAS STATIONS. SECTION III OF THE DIRECTIVE DEFINES AUTHORIZED DEPENDENTS AS MILITARY DEPENDENTS AUTHORIZED TO TRAVEL TO THE OVERSEA STATION AT GOVERNMENT EXPENSE UPON PERMANENT CHANGE OF STATION OF THEIR SPONSOR AND AUTHORIZED BY THE APPROPRIATE MILITARY COMMANDER TO BE PRESENT IN A MILITARY DEPENDENTS' STATUS. UNAUTHORIZED DEPENDENTS ARE DEFINED IN THE SAME SECTION AS MILITARY DEPENDENTS NOT AUTHORIZED GOVERNMENT-EXPENSE TRAVEL AND THOSE WHO ARE PRESENT IN THE OVERSEA AREA WITHOUT MILITARY AUTHORIZATION. SECTION VI.D PROVIDES THAT UNAUTHORIZED DEPENDENTS MAY BE FURNISHED MEDICAL FACILITIES AND PERMITTED TO USE PX AND COMMISSARY FACILITIES. SUCH RECOGNITION, HOWEVER, DOES NOT RESULT IN THE DEPENDENT BEING CONSIDERED A COMMAND SPONSORED DEPENDENT SO AS TO AUTHORIZE REIMBURSEMENT FOR TRAVEL TO THE NEW STATION, OR A DISLOCATION ALLOWANCE.

ARMY REGULATIONS 55-46, DATED NOVEMBER 16, 1959, AS AMENDED BY CHANGE 3, DATED NOVEMBER 29, 1960, WERE IN EFFECT DURING THE PERIOD HERE INVOLVED. PARAGRAPH 5.1 OF THOSE REGULATIONS SETS FORTH IN SUBPARAGRAPH (3) THE PROCEDURE WHEREBY DEPENDENTS WHO ENTER THE OVERSEAS AREA WITHOUT APPROVAL, OR WHO ARE ACQUIRED BY MARRIAGE TO THE MEMBER AT THE OVERSEA DUTY STATION, MAY BE RECOGNIZED BY THE APPROPRIATE OVERSEA COMMANDER AS "AUTHORIZED" OR "COMMAND SPONSORED" DEPENDENTS. THE REGULATION PROVIDES THAT ITS PROVISIONS WILL BE APPLIED IN RESTRICTED AREAS AT THE DISCRETION OF THE OVERSEA COMMAND. SUBPARAGRAPH (6) OF PARAGRAPH 5.1 PROVIDES THAT UPON A PERMANENT CHANGE OF STATION DEPENDENTS RECOGNIZED AS "AUTHORIZED" OR "COMMAND SPONSORED" ARE ENTITLED TO TRANSPORTATION AT GOVERNMENT EXPENSE TO THE MEMBER'S NEXT PERMANENT DUTY STATION.

IN THE PRESENT CASE, WHILE YOU WERE GIVEN PERMISSION TO MARRY WHEN STATIONED AT HEIDELBERG THERE IS NOTHING TO SHOW THAT WHEN YOU TRAVELED TO OBERAMMERGAU A FEW DAYS AFTER YOUR MARRIAGE IN THE UNITED STATES YOUR WIFE HAD BEEN RECOGNIZED BY THE OVERSEA COMMANDER AS AN "AUTHORIZED" OR ,COMMAND SPONSORED" DEPENDENT SO AS TO AUTHORIZE HER TRANSPORTATION TO YOUR NEW STATION AT GOVERNMENT EXPENSE AND PAYMENT OF A DISLOCATION ALLOWANCE. THIS IS TRUE EVEN THOUGH QUARTERS MAY HAVE BEEN PROVIDED AT THE NEW STATION.

THEREFORE, ON THE PRESENT RECORD THERE IS NO BASIS FOR PAYMENT FOR YOUR WIFE'S TRAVEL OR A DISLOCATION ALLOWANCE. THE SETTLEMENT OF AUGUST 29, 1966, IS SUSTAINED.