B-152245, SEP. 12, 1963

B-152245, SEP. 12, 1963

TO MAJOR PAUL H. SAINIO, USA (RETIRED):

FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 3, 1963, IN EFFECT REQUESTING RECONSIDERATION OF SETTLEMENTS DATED JUNE 24, 1963, AND MARCH 29, 1961, WHICH DISALLOWED YOUR CLAIM FOR TRANSPORTATION ALLOWANCE FOR YOUR DEPENDENTS' TRAVEL FROM PITTSBURGH, PENNSYLVANIA, TO SAN FRANCISCO, CALIFORNIA, AND REFUND OF $721.71 COLLECTED AS EXCESS COSTS FOR SHIPMENT OF YOUR HOUSEHOLD GOODS FROM BROOKLYN, NEW YORK, TO OAKLAND, CALIFORNIA, INCIDENT TO YOUR SERVICE IN THE UNITED STATES ARMY. YOUR CLAIM RELATIVE TO THE SHIPMENT OF YOUR HOUSEHOLD GOODS WAS ALSO THE SUBJECT OF OUR LETTER TO YOU DATED OCTOBER 12, 1961. BY LETTER OF JUNE 25, 1963, THE HONORABLE WILLIAM S. MAILLIARD, HOUSE OF REPRESENTATIVES, WAS FURNISHED A COPY OF OUR SETTLEMENT OF JUNE 24, 1963.

BY SPECIAL ORDER NO. 105 DATED DECEMBER 12, 1959, YOU WERE RELIEVED FROM YOUR ASSIGNMENT OVERSEAS AND REASSIGNED TO THE ARMY GARRISON, SOUTH PARK MILITARY RESERVATION, PITTSBURGH, PENNSYLVANIA, AND BY SPECIAL ORDERS NO. 144, DATED JULY 7, 1960, YOU WERE TRANSFERRED FROM THAT ASSIGNMENT TO THE TRANSPORTATION TERMINAL UNIT, OAKLAND, CALIFORNIA, EFFECTIVE JULY 25, 1960. SPECIAL ORDERS NO. 157 DATED JULY 2, 1962, RELIEVED YOU FROM DUTY AT OAKLAND EFFECTIVE AUGUST 31, 1962, AND PLACED YOU ON THE RETIRED LIST SEPTEMBER 1, 1962. IT WAS ADMINISTRATIVELY DETERMINED THAT THE SHIPMENT OF YOUR HOUSEHOLD GOODS FROM THE ARMY TRANSPORTATION TERMINAL, BROOKLYN, NEW YORK, TO OAKLAND ON GOVERNMENT BILL OF LADING A3288471 DATED MARCH 22, 1960, INVOLVED EXCESS COST OF $721.71 SINCE THE RECORD DID NOT INDICATE THAT YOU REQUESTED OR WERE AUTHORIZED SHIPMENT OF HOUSEHOLD GOODS IN ADVANCE OF YOUR CHANGE OF STATION TO OAKLAND. OUR CLAIMS DIVISION DISALLOWED YOUR CLAIM FOR REFUND OF THE $721.71 FOR THE REASON THAT THE RECORD INDICATES THERE WAS NO DETERMINATION BY THE DEPARTMENT OF THE ARMY THAT THE SHIPMENT IN ADVANCE OF ORDERS WAS NECESSARY BECAUSE OF EMERGENCY, EXIGENCY OF THE SERVICE OR REQUIRED BY SERVICE NECESSITY. ALSO OUR CLAIMS DIVISION DISALLOWED YOUR CLAIM FOR THE TRANSPORTATION ALLOWANCE FOR YOUR DEPENDENTS' TRAVEL FROM PITTSBURGH, PENNSYLVANIA, TO SAN FRANCISCO, CALIFORNIA, DURING THE PERIOD FEBRUARY 17 TO 21, 1960, FOR THE REASONS THAT THE CLAIM WAS NOT SUPPORTED BY A CERTIFICATE FROM THE APPROPRIATE OFFICER TO THE EFFECT THAT YOU WERE ADVISED PRIOR TO ISSUANCE OF YOUR CHANGE OF STATION ORDERS DATED JULY 7, 1960, THAT SUCH ORDERS WOULD BE ISSUED; AND SINCE YOUR DEPENDENTS' TRAVEL WAS COMPLETED MORE THAN TWO YEARS PRIOR TO THE ISSUANCE OF YOUR RETIREMENT ORDERS IT DOES NOT APPEAR THAT SUCH CERTIFICATE COULD PROPERLY BE ISSUED IN CONNECTION WITH THOSE ORDERS. IN THIS REGARD, OUR RECORDS INDICATE THAT YOU MOVED YOUR FAMILY TO SAN FRANCISCO PRIOR TO RECEIVING YOUR ORDERS BECAUSE YOUR AILING MOTHER WAS ALONE IN SAN FRANCISCO; THERE WAS A DELAY IN SECURING THERAPY FOR YOUR SON; AND YOU WERE ANTICIPATING CHANGE OF STATION ORDERS.

THE STATUTORY AUTHORITY FOR TRANSPORTATION AT GOVERNMENT EXPENSE OF HOUSEHOLD GOODS AND DEPENDENTS OF MEMBERS OF THE UNIFORMED SERVICES UPON A PERMANENT CHANGE OF STATION, INCLUDING THE CHANGE FROM LAST DUTY STATION TO HOME, IS CONTAINED IN SECTION 406, TITLE 37, UNITED STATES CODE. THE PROVISIONS OF THAT SECTION ARE NOT SELF-EXECUTING BUT REQUIRE THE ISSUANCE OF REGULATIONS BY THE SECRETARIES OF THE SERVICES CONCERNED. PARAGRAPH 7000-9 OF THE JOINT TRAVEL REGULATIONS, ISSUED BY THE SECRETARIES TO IMPLEMENT THAT AUTHORITY, PROVIDES, HOWEVER, THAT TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE IS NOT AUTHORIZED WHERE THE DEPENDENTS DEPARTED THE OLD STATION PRIOR TO THE ISSUANCE OF ORDERS AND THE VOUCHER IS NOT SUPPORTED BY A CERTIFICATE BY THE COMMANDING OFFICER, OR HIS DESIGNATED REPRESENTATIVE, OF THE HEADQUARTERS ISSUING THE ORDERS THAT THE MEMBER WAS ADVISED PRIOR TO THE ISSUANCE OF CHANGE OF STATION ORDERS THAT SUCH ORDERS WOULD BE ISSUED. THIS PROVISION, PROMULGATED PURSUANT TO STATUTORY AUTHORITY, HAS THE FORCE AND EFFECT OF LAW AND WE MAY MAKE NO EXCEPTION TO SUCH PROVISION IN THE SETTLEMENT OF CLAIMS BY OUR OFFICE. THE PLAIN TERMS OF THE PROVISION LIMIT REIMBURSEMENT FOR TRANSPORTATION, WHERE DEPENDENTS DEPART THE OLD PERMANENT STATION PRIOR TO THE ISSUANCE OF ORDERS, TO THOSE SITUATIONS WHERE THE VOUCHER IS SUPPORTED BY THE PRESCRIBED CERTIFICATE OF THE COMMANDING OFFICER OR HIS DESIGNATED REPRESENTATIVE. SUCH A CERTIFICATE APPARENTLY WAS NOT ISSUED IN YOUR CASE. FURTHER, THE QUOTED REGULATION CONTEMPLATES DEPARTURE DURING THE COMPARATIVELY SHORT PERIOD OF TIME WHICH MAY ELAPSE BETWEEN THE TIME OF A DETERMINATION TO ORDER A MEMBER TO MAKE A CHANGE OF STATION AND THE DATE ON WHICH ORDERS DIRECTING SUCH CHANGE ARE ACTUALLY ISSUED.

THE PURPOSE OF THE STATUTE AND REGULATIONS AUTHORIZING TRANSPORTATION AT GOVERNMENT EXPENSE IS TO RELIEVE A MEMBER OF THE BURDEN OF PERSONALLY DEFRAYING THE TRAVEL EXPENSES OF HIS DEPENDENTS WHEN SUCH TRAVEL IS MADE NECESSARY BY AN ORDERED CHANGE OF STATION. IN YOUR CASE IT APPEARS THAT THE HEALTH AND WELFARE OF YOUR FAMILY WERE THE PRIMARY REASONS FOR THE EARLY TRAVEL OF YOUR DEPENDENTS TO SAN FRANCISCO. UNDER SUCH CIRCUMSTANCES THE TRAVEL PERFORMED BY YOUR DEPENDENTS DURING THE PERIOD FEBRUARY 17 TO 21, 1960, REASONABLY MAY NOT BE VIEWED AS RELATING TO YOUR ORDERS OF JULY 7, 1960, TRANSFERRING YOU TO OAKLAND, NOR TO YOUR ORDERS OF JULY 2, 1962, PLACING YOU ON THE RETIRED LIST SEPTEMBER 1, 1962. WHILE WE APPRECIATE YOUR CONCERN IN WANTING TO SENT YOUR DEPENDENTS TO SAN FRANCISCO IN ADVANCE OF ORDERS, THE PROVISIONS OF THE ABOVE-MENTIONED PARAGRAPH 7000-9 OF THE REGULATIONS LIMIT REIMBURSEMENT FOR TRANSPORTATION TO THOSE SITUATIONS WHERE THE VOUCHER IS SUPPORTED BY THE PRESCRIBED CERTIFICATE OF THE COMMANDING OFFICER OR HIS DESIGNATED REPRESENTATIVE. THE RECORD BEFORE US DOES NOT CONTAIN SUCH A CERTIFICATE. CONSEQUENTLY, REIMBURSEMENT FOR THE EARLY TRAVEL OF YOUR DEPENDENTS IS NOT AUTHORIZED.

WITH RESPECT TO YOUR CLAIM FOR REFUND OF COLLECTION OF EXCESS COST FOR SHIPMENT OF YOUR HOUSEHOLD GOODS FROM BROOKLYN TO OAKLAND, CALIFORNIA, PARAGRAPH 8009-1 OF THE JOINT TRAVEL REGULATIONS, IN EFFECT DURING THE PERIOD OF YOUR CLAIM PROVIDED THAT HOUSEHOLD GOODS MAY NOT BE SHIPPED AT GOVERNMENT EXPENSE PRIOR TO THE ISSUANCE OF ORDERS EXCEPT IN CASE OF EMERGENCY, EXIGENCY OF THE SERVICE, OR WHEN REQUIRED BY SERVICE CONCERNED. IN THIS CONNECTION, THE OFFICE OF THE CHIEF OF TRANSPORTATION, DEPARTMENT OF THE ARMY, IN SECOND INDORSEMENT DATED FEBRUARY 10, 1961, IN REPORTING ON YOUR CLAIM STATED "THE INFORMATION CONTAINED IN THE FILE DOES NOT INDICATE THAT THE MEMBER REQUESTED OR WAS AUTHORIZED SHIPMENT IN ADVANCE OF NEW PCS ORDERS TO OAKLAND, CALIFORNIA * * *.' WE NOTE FROM COPIES OF YOUR LETTERS IN THE FILE THAT FOLLOWING YOUR RETURN TO THE UNITED STATES IN FEBRUARY 1960 YOU MADE SEVERAL ATTEMPTS TO BE ASSIGNED TO THE SAN FRANCISCO AREA IN ORDER THAT YOUR SON COULD RECEIVE SPECIALIZED THERAPY, BUT THAT ACTION ON YOUR REQUEST WAS NOT IMMEDIATELY TAKEN APPARENTLY BECAUSE OF A LACK OF NEED OF YOUR PARTICULAR MILITARY SPECIALTY IN THAT AREA. WHILE WE RECOGNIZE THAT AS A RESULT OF YOUR PERSONAL CONTACTS WITH CERTAIN OFFICERS YOU APPARENTLY BELIEVED THAT YOUR TRANSFER TO THE SAN FRANCISCO AREA WAS IMMINENT, WE TRUST YOU WILL UNDERSTAND THAT WE ARE REQUIRED TO SETTLE CLAIMS ON THE BASIS OF THE EXPRESS PROVISIONS OF THE STATUTORY REGULATIONS. PARAGRAPH 8009-1 OF THE REGULATIONS, MENTIONED ABOVE, LIMITS REIMBURSEMENT FOR SHIPMENT OF HOUSEHOLD GOODS PRIOR TO THE ISSUANCE OF ORDERS IN CERTAIN CASES THERE STATED AS DETERMINED BY THE APPROPRIATE AUTHORITY OF THE SERVICE CONCERNED. THERE IS NOTHING IN THE FILE TO INDICATE THAT THE DEPARTMENT OF THE ARMY MADE SUCH A DETERMINATION IN YOUR CASE. IN THE ABSENCE OF SUCH AN ADMINISTRATIVE DETERMINATION, THERE IS NO BASIS FOR FAVORABLE CONSIDERATION BY US OF YOUR CLAIM. ACCORDINGLY, THE DISALLOWANCE OF YOUR CLAIM WAS PROPER AND IS SUSTAINED.

CHECK NO. 5,119,142 DATED APRIL 3, 1963, IN THE AMOUNT OF $0.36 WAS ISSUED TO YOU FOR YOUR TRAVEL ON A MILEAGE BASIS FROM OAKLAND, CALIFORNIA, TO SAN FRANCISCO, CALIFORNIA (6 MILES AT $0.06 PER MILE), AND WAS NOT ISSUED AS REIMBURSEMENT FOR THE TRANSPORTATION OF YOUR DEPENDENTS AS YOU SEEM TO SUGGEST. MILEAGE IS AN ALLOWANCE FOR TRANSPORTATION AND INCIDENTAL EXPENSES AND IS PAYABLE FOR THE OFFICIAL DISTANCE BETWEEN DUTY STATIONS, INCLUDING THE DISTANCE, AS IN YOUR CASE, FROM THE MEMBER'S LAST DUTY STATION TO HIS HOME OF SELECTION ON RETIREMENT. SEE PARAGRAPHS 4151 AND 4157 OF THE JOINT TRAVEL REGULATIONS. YOUR MILEAGE ALLOWANCE WAS COMPUTED ON THE BASIS OF THE APPLICABLE PROVISIONS OF THE LAW AND REGULATIONS. THE CHECK WHICH YOU RETURNED WITH YOUR LETTER OF AUGUST 3, 1963, HAS BEEN RETAINED IN OUR FILES.

RELATIVE TO YOUR REQUEST THAT IF YOUR CERTIFICATE FOR TRAVEL TO HOME OF SELECTION IS NOT PAID IN FULL THAT IT BE REVOKED AND THE GRACE PERIOD EXTENDED FOR THE YEAR 1963, PARAGRAPH 4158-1 (A) OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT, WITH THE EXCEPTION OF MEMBERS UNDERGOING HOSPITALIZATION OR MEDICAL TREATMENT, THE TRAVEL OF A MEMBER FROM HIS LAST DUTY STATION TO A SELECTED HOME MUST BE COMPLETED WITHIN ONE YEAR AFTER THE TERMINATION OF ACTIVE DUTY. IT VIEW OF THIS PROVISION THE EXTENSION OF THE PERIOD IN WHICH TRAVEL MAY BE PERFORMED IS NOT AUTHORIZED.