B-126213, JUN. 1, 1956

B-126213, JUN. 1, 1956

TO MR. WILLIAM SCHENSTROM:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 31, 1956, IN WHICH YOU REQUEST RECONSIDERATION OF OUR DECISION OF FEBRUARY 23, 1956, WHICH DISALLOWED YOUR SON'S CLAIM FOR REIMBURSEMENT OF THE EXPENSES FOR HIS TRANSPORTATION FROM TORREMOLINOS, SPAIN, TO NEW YORK, NEW YORK, DURING THE PERIOD OCTOBER 7 TO 15, 1952.

THE CLAIM WAS DISALLOWED FOR THE REASON THAT YOUR SON FAILED TO UTILIZE GOVERNMENT TRANSPORTATION TO NEW YORK WHICH WAS AVAILABLE FROM GIBRALTAR ON JULY 12 AND AUGUST 4, 1952, AND FROM CASABLANCA TO NEW YORK ON SEPTEMBER 9 AND OCTOBER 2, 1952. IN YOUR LETTER YOU SAY THAT YOUR SON WAS SERVING WITH THE ARMY AT FORT SILL, OKLAHOMA, ON JULY 12 AND AUGUST 4, 1952, AND THAT THEREFORE IT WAS IMPOSSIBLE FOR HIM TO UTILIZE THE INDICATED TRANSPORTATION FROM GIBRALTAR. CONCERNING THE TRANSPORTATION FROM CASABLANCA YOU SAY "NO MENTION WAS MADE IN HIS ORDERS TO GO EIGHT HUNDRED MILES OUT OF HIS WAY, MALAGA TO CASABLANCA, IN ORDER TO OBTAIN GOVERNMENT TRANSPORTATION.' IT SEEMS TO BE YOUR CONTENTION THAT YOUR SON IS ENTITLED TO REIMBURSEMENT FOR THE COST OF HIS TRANSPORTATION BECAUSE HE WAS NOT INFORMED BY THE ARMY OF ANY AVAILABLE TRANSPORTATION FACILITIES AND HAD NO WAY OF ASCERTAINING SUCH INFORMATION.

WE HAVE RECEIVED INFORMATION FROM THE DEPARTMENT OF THE ARMY THAT WILLIAM SCHENSTROM, JR., WAS ON TRAINING DUTY AS A MEMBER OF THE RESERVE OFFICER TRAINING CORPS, FORT SILL, OKLAHOMA, DURING THE PERIOD JUNE 1 TO AUGUST 1, 1952. HE WAS COMMISSIONED IN THE ORGANIZED RESERVE CORPS ON AUGUST 1, 1952. ON JUNE 25, 1952, HE WAS ISSUED LETTER ORDER NO. 6-77 CC, ORDERS TO EXTENDED ACTIVE DUTY. THE ORDERS REQUIRED HIM TO REPORT TO THE ARTILLERY SCHOOL, FORT SILL, OKLAHOMA, NOT LATER THAN OCTOBER 15, 1952, TO ATTEND ASSOCIATE FIELD ARTILLERY BATTERY COURSE FOR TEMPORARY DUTY PENDING FURTHER ORDERS. THOSE ORDERS APPARENTLY WERE DELIVERED TO HIM AT FORT SILL AND WHILE HE APPARENTLY INTENDED TO RETURN TO HIS HOME IN MALAGA, SPAIN, BETWEEN AUGUST 1 AND OCTOBER 15, 1952, HE WAS IN A POSITION WHILE AT FORT SILL TO MAKE NECESSARY TRANSPORTATION ARRANGEMENTS FOR TRAVEL REQUIRED UNDER THE ORDERS OF JUNE 25, 1952.

AS WE STATED IN OUR DECISION OF FEBRUARY 23, 1956, THE POLICY GOVERNING PASSENGER TRAVEL TO, FROM, AND BETWEEN AREAS BEYOND THE CONTINENTAL UNITED STATES IS SET OUT IN ARMY REGULATION 55-117, DATED JANUARY 23, 1951. THIS IS A REGULATION ISSUED PURSUANT TO SECTION 303/A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 814, AND IT HAS THE FORCE AND EFFECT OF THE LAW ITSELF. THE REGULATION REQUIRES MEMBERS TO UTILIZE AVAILABLE GOVERNMENT TRANSPORTATION FACILITIES AND IT IS THE MEMBER'S RESPONSIBILITY TO FOLLOW SUCH REGULATIONS WHEN TRAVELING PURSUANT TO ORDERS. HENCE, THE REGULATION PLACED THE RESPONSIBILITY UPON YOUR SON TO DETERMINE FROM OFFICIAL SOURCES WHETHER GOVERNMENT TRANSPORTATION WAS AVAILABLE AND IF SO TO UTILIZE SUCH TRANSPORTATION. THE DEPARTMENT OF THE ARMY HAS REPORTED THAT GOVERNMENT TRANSPORTATION WAS AVAILABLE AND APPARENTLY WOULD HAVE BEEN FURNISHED YOUR SON HAD HE REQUESTED IT. SINCE HE DID NOT APPLY FOR GOVERNMENT TRANSPORTATION, HE FAILED TO COMPLY WITH THE REQUIREMENT OF THE REGULATION. THEREFORE, THERE IS NO LEGAL BASIS FOR THE ALLOWANCE OF HIS CLAIM. HOWEVER, SINCE GOVERNMENT TRANSPORTATION WAS NOT AVAILABLE AT TORREMOLINOS BUT WAS AVAILABLE AT CASABLANCA, YOUR SON MAY BE ALLOWED AN ALLOWANCE FOR CONSTRUCTIVE TRAVEL BETWEEN TORREMOLINOS AND CASABLANCA. SETTLEMENT WILL BE ISSUED ON THAT BASIS FOR THE CORRECT AMOUNT FOUND TO BE DUE.