B-157847, DEC. 13, 1965

B-157847, DEC. 13, 1965

TO EUGENE M. SANCHEZ:

REFERENCE IS MADE TO YOUR CLAIM DATED JUNE 30, 1965, FOR REIMBURSEMENT FOR DEPENDENTS' TRAVEL FROM AUSTRALIA TO THE UNITED STATES DURING APRIL AND MAY 1955, INCIDENT TO ORDERS DATED FEBRUARY 4, 1955, WHILE SERVING AS CAPTAIN, UNITED STATES ARMY, WHICH WAS TRANSMITTED TO OUR CLAIMS DIVISION FOR SETTLEMENT BY THE FINANCE CENTER, U.S. ARMY, INDIANAPOLIS, INDIANA. ALSO, WE ARE IN RECEIPT OF YOUR LETTER OF OCTOBER 18, 1965, RELATIVE TO THE ABOVE CLAIM, IN WHICH YOU EXPRESS SOME CONCERN AS TO THE STATEMENT BY OUR CLAIMS DIVISION REGARDING RECONSIDERATION OF THE ACTION TAKEN ON YOUR CLAIM, EXPLAINING THAT YOU HAVE NO QUESTIONS REGARDING THE CLAIM YOU SUBMITTED EARLIER THIS YEAR WHICH WAS DULY SETTLED IN JUNE 1965. PLEASE BE ADVISED THAT OUR ACKNOWLEDGMENT LETTER OF OCTOBER 13, 1965, TO YOU, HAD REFERENCE TO YOUR PRESENT CLAIM OF JUNE 30, 1965. SINCE A SIMILAR CLAIM WAS DISALLOWED BY SETTLEMENT BY OUR CLAIMS DIVISION ON JULY 2, 1956, WE WILL CONSIDER YOUR PRESENT CLAIM IN THE NATURE OF A REQUEST FOR RECONSIDERATION OF THAT SETTLEMENT.

IN ORDER NOT TO CONFUSE YOUR PRESENT CLAIM WITH YOUR CLAIM WHICH WAS RECENTLY ALLOWED IN THE AMOUNT OF $348 BY OUR OFFICE BY SETTLEMENT DATED MAY 27, 1965, THE LATTER CLAIM REPRESENTED REIMBURSEMENT FOR THE COST OF TRANSPORTATION OF DEPENDENTS (WIFE AND CHILDREN) FROM CANBERRA, AUSTRALIA, TO MUNICH, GERMANY, DURING JULY AND SEPTEMBER 1964, AT NOT TO EXCEED THE COST BY MILITARY AIR TRANSPORT SERVICE FROM MCGUIRE AIR FORCE BASE, NEW JERSEY, TO FRANKFURT, GERMANY. THAT CLAIM WAS BASED ON YOUR ORDERS OF JUNE 17 AND AUGUST 3, 1964, INCIDENT TO YOUR REENLISTMENT IN THE REGULAR ARMY AT THE U.S. RECRUITING STATION, NEW YORK, THE RECORD SHOWING THAT YOUR DEPENDENTS AT THAT TIME WERE ON A VISIT AT CANBERRA, AUSTRALIA.

BY LETTER ORDERS 2-1, HEADQUARTERS 8TH TRANSPORTATION GROUP (MOVEMENT CONTROL) RHEINAU TRANSPORTATION CENTER, APO 403, U.S. ARMY DATED FEBRUARY 4, 1955, YOU WERE RELIEVED FROM ASSIGNMENT WITH COMPANY "A" OF THAT ORGANIZATION, WITH DUTY STATION AT FRANKFURT, GERMANY, AND WERE ASSIGNED TO FORT ORD, CALIFORNIA. YOU WERE DIRECTED TO PROCEED TO MUNICH, GERMANY, FOR FURTHER MOVEMENT TO LEGHORN, ITALY, ON MARCH 19, 1955, TO RETURN TO THE CONTINENTAL UNITED STATES VIA THE U.S.S. CONSTITUTION. NO PROVISION WAS MADE FOR DEPENDENTS' TRAVEL IN THE ORDERS. HOWEVER, YOU WERE ADMINISTRATIVELY PAID FOR THEIR TRAVEL FROM SAN PEDRO, CALIFORNIA, TO FORT ORD, CALIFORNIA.

IN THE FIRST CLAIM SUBMITTED BY YOU, YOU STATE THAT YOU WERE STATIONED IN FRANKFURT, GERMANY, FROM APRIL 1952 UNTIL FEBRUARY 1955, AND YOUR DEPENDENTS JOINED YOU IN FRANKFURT IN JULY 1952, AND REMAINED THERE UNTIL NOVEMBER 1954, AT WHICH TIME THEY TRAVELED AT YOUR EXPENSE TO AUSTRALIA TO VISIT YOUR WIFE'S FAMILY. YOU STATED FURTHER THAT YOUR DEPENDENTS DEPARTED AUSTRALIA APRIL 12, 1955, TRAVELING BY COMMERCIAL VESSEL AT YOUR EXPENSE AND ARRIVED AT SAN PEDRO, CALIFORNIA, MAY 5, 1955. YOU THEREFORE CLAIMED REIMBURSEMENT FOR THEIR TRAVEL BY VESSEL ON THE BASIS OF THE LAND TRAVEL YOUR DEPENDENTS WOULD HAVE HAD TO PERFORM FROM NEW YORK CITY TO FORT ORD, CALIFORNIA, IF THEY HAD RETURNED TO THE UNITED STATES WITH YOU, LESS THE AMOUNT PAID FOR THEIR TRAVEL FROM SAN PEDRO TO FORT ORD, CALIFORNIA.

YOUR CLAIM WAS DISALLOWED BY SETTLEMENT DATED JULY 2, 1956, SUBSTANTIALLY FOR THE REASON THAT REIMBURSEMENT FOR TRANSPORTATION OF DEPENDENTS IS NOT AUTHORIZED WHEN TRAVEL IS PERFORMED BY DEPENDENTS PRIOR TO THE DATE OF ISSUANCE OF ORDERS AND IN VIEW OF THE FACT THAT YOUR DEPENDENTS DID NOT ACTUALLY PERFORM TRAVEL FROM NEW YORK TO FORT ORD. IN YOUR PRESENT CLAIM DATED JUNE 30, 1965, YOU AGAIN STATE THAT YOUR DEPENDENTS DEPARTED SYDNEY, AUSTRALIA, INDICATING THEY TRAVELED ABOARD THE M/S PARRAKOOLA, A FOREIGN REGISTRY VESSEL, APRIL 12, 1955, ARRIVING AT SAN PEDRO, CALIFORNIA, MAY 5, 1955. YOU STATED FURTHER THAT SINCE YOUR CLAIM FOR LAND TRAVEL ACROSS THE UNITED STATES TO FORT ORD WAS NOT ALLOWED, YOU REQUEST REIMBURSEMENT FOR THE COST OF DEPENDENTS' WATER TRAVEL FROM AUSTRALIA TO THE UNITED STATES.

UNDER THE PROVISIONS OF PARAGRAPH M7058 OF THE JOINT TRAVEL REGULATIONS, IN EFFECT AT THE TIME YOUR DEPENDENTS PERFORMED THEIR TRAVEL FROM AUSTRALIA, TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE WAS AUTHORIZED FOR TRAVEL PERFORMED FROM OTHER THAN THE OLD PERMANENT STATION TO THE NEW STATION, NOT TO EXCEED THE ENTITLEMENT FROM THE OLD TO THE NEW STATION. WE BELIEVE SUCH PROVISIONS ARE FOR APPLICATION IN YOUR CASE AND IT HAS BEEN INFORMALLY ASCERTAINED THAT TRANSPORTATION BY A GOVERNMENT VESSEL OR A VESSEL OF UNITED STATES REGISTRY WAS NOT AVAILABLE FOR TRAVEL FROM AUSTRALIA TO THE UNITED STATES DURING THAT PERIOD. UNDER SUCH REGULATIONS, HOWEVER, THE AMOUNT DUE AS REIMBURSEMENT FOR THE TRAVEL OF YOUR DEPENDENTS MAY NOT EXCEED THE COST OF CONSTRUCTIVE TRAVEL FROM THE OLD TO THE NEW STATION. WITH RESPECT TO THE COST OF CONSTRUCTIVE TRAVEL, WE HAVE HELD IN 40 COMP. GEN. 482, IN SUBSTANCE, THAT WHEN A MEMBER'S DEPENDENTS ARE AUTHORIZED AS DISTINGUISHED FROM SPECIFICALLY DIRECTED, TO PERFORM TRANSOCEANIC TRAVEL BY GOVERNMENT CONVEYANCE BUT USE COMMERCIAL TRANSPORTATION AT THE MEMBER'S PERSONAL EXPENSE, THE MEMBER MAY BE REIMBURSED ON THE BASIS OF THE MILITARY SEA TRANSPORTATION SERVICE CHARGE THAT WOULD HAVE BEEN SUSTAINED BY THE SERVICE CONCERNED, HAD HIS DEPENDENTS TRAVELED BY AVAILABLE GOVERNMENT TRANSPORTATION. SINCE YOUR DEPENDENTS WERE NOT DIRECTED TO USE A GOVERNMENT VESSEL FOR THEIR TRAVEL TO THE UNITED STATES, SUCH CHARGE IS TO BE USED IN THE DETERMINATION OF THE COST OF CONSTRUCTIVE TRAVEL.

ACCORDINGLY, WE ARE INSTRUCTING OUR CLAIMS DIVISION TO DETERMINE WHAT WOULD HAVE BEEN THE COST TO THE GOVERNMENT AT THE TIME YOUR DEPENDENTS PERFORMED TRAVEL FROM AUSTRALIA TO THE UNITED STATES, HAD THEY PERFORMED SUCH TRAVEL BY MILITARY SEA TRANSPORTATION SERVICE FROM THE NEAREST PORT OF EMBARKATION TO YOUR OLD DUTY STATION, FRANKFURT, GERMANY, TO NEW YORK, PLUS MONETARY ALLOWANCE IN LIEU OF TRANSPORTATION FOR THE DISTANCE FROM NEW YORK TO FORT ORD, CALIFORNIA. IF THE TOTAL COST IS LESS THAN THE ACTUAL OF YOUR DEPENDENTS' TRAVEL FROM AUSTRALIA TO FORT ORD, VIA SAN PEDRO, CALIFORNIA, SETTLEMENT WILL ISSUE IN THAT AMOUNT, LESS THE AMOUNT PREVIOUSLY PAID FOR THEIR TRAVEL FROM SAN PEDRO TO FORT ORD. IN THE EVENT THE COST OF THE CONSTRUCTIVE TRAVEL IS GREATER THAN THE ACTUAL COST OF THIS TRAVEL, SETTLEMENT WILL ISSUE FOR THE DOLLAR EQUIVALENT OF THE AMOUNT PAID FOR THE TRAVEL OF YOUR DEPENDENTS BY COMMERCIAL VESSEL FROM AUSTRALIA TO SAN PEDRO, CALIFORNIA.