B-150113, JAN. 22, 1963

B-150113, JAN. 22, 1963

TO MASTER SERGEANT JOHN C. ROBINSON:

REFERENCE IS MADE TO YOUR LETTER DATED OCTOBER 10, 1962, IN EFFECT REQUESTING REVIEW OF OUR SETTLEMENT DATED OCTOBER 5, 1962, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT OF EXPENSES OF COMMERCIAL AIR TRANSPORTATION FOR YOUR DEPENDENTS FROM LONDON, ENGLAND, TO CHAMPAIGN, ILLINOIS, ON FEBRUARY 28 AND MARCH 1, 1962. ALSO THERE HAVE BEEN RECEIVED YOUR LETTERS OF NOVEMBER 8, 1962, AND JANUARY 5, 1963.

BY PARAGRAPH 7, SPECIAL ORDER A-1, HEADQUARTERS 81ST TACTICAL FIGHTER WING (USAFE), UNITED STATES AIR FORCE, APO 755, NEW YORK, NEW YORK, DATED JANUARY 2, 1962, YOU WERE RELIEVED FROM ASSIGNMENT AT THAT STATION AND ASSIGNED TO CHANUTE AIR FORCE BASE, ILLINOIS, FOR DUTY. THE ORDER STATED THAT THIS WAS A PERMANENT CHANGE OF STATION AND THAT YOUR DEPENDENTS WERE AUTHORIZED TO PROCEED AT A LATER DATE. BY PARAGRAPH 6, SPECIAL ORDER A- 27, ISSUED BY THE SAME HEADQUARTERS JANUARY 22, 1962, THE ORDER DATED JANUARY 2, 1962, WAS AMENDED TO READ "DEPENDENTS TRAVEL NOT AUTHORIZED, DATE OF MARRIAGE 16 DEC. 61. AUTHORITY: USAFE MESSAGE PPP-2 72054, 9 JAN. 1962. DEPENDENT RESTRICTION PROGRAM, EFFECTIVE 27 NOV 61.' FINALLY BY PARAGRAPH 2, SPECIAL ORDER A-140, DATED MARCH 26, 1962, PARAGRAPH 6, SPECIAL ORDER A-27 DATED JANUARY 22, 1962, WAS REVOKED. YOUR DEPENDENTS DEPARTED LONDON, ENGLAND, FEBRUARY 28, 1962, BY COMMERCIAL AIR TRANSPORTATION AND ARRIVED AT CHAMPAIGN, ILLINOIS, MARCH 1, 1962. THE RECORDS SHOWS THAT YOU WERE PAID AN ALLOWANCE FOR YOUR DEPENDENTS' TRAVEL FROM MCGUIRE AIR FORCE BASE, NEW JERSEY, TO CHAMPAIGN, ILLINOIS, AND YOUR CLAIM WILL BE CONSIDERED AS LIMITED TO THE COST OF THEIR OVERSEAS TRAVEL.

YOUR CLAIM WAS FORWARDED HERE FROM THE U.S. AIR FORCE ACCOUNTING AND FINANCE CENTER, DENVER, COLORADO, AND BY SETTLEMENT DATED OCTOBER 5, 1962, IT WAS DISALLOWED FOR THE REASON THAT YOUR DEPENDENTS WERE IN AN UNAUTHORIZED STATUS AT YOUR OVERSEAS STATION AND UNDER THE PROVISIONS OF PARAGRAPH 3301, AIR FORCE MANUAL 75-4, THE TRANSPORTATION OF SUCH DEPENDENTS TO THE UNITED STATES IS NOT AUTHORIZED AT GOVERNMENT EXPENSE EXCEPT ON A SPACE-AVAILABLE BASIS.

IN YOUR LETTER, YOU CONTEND THAT YOUR DEPENDENTS DID NOT COME WITHIN THE PURVIEW OF PARAGRAPH 3301, AIR FORCE MANUAL 75-4, AND STATE THAT THE ORDERS OF MARCH 26, 1962, WERE ISSUED TO PROMULGATE THE LEGAL STATUS OF YOUR DEPENDENTS FOR RIGHTS AUTHORIZED FOR DEPENDENTS OF MILITARY PERSONNEL. YOU ENCLOSED A COPY OF A MESSAGE DATED MARCH 20, 1962, FROM THE BOLLING AIR FORCE BASE, WASHINGTON, D.C., TO YOUR HEADQUARTERS AT CHANUTE AIR FORCE BASE AND TO YOUR FORMER STATION IN ENGLAND, WHICH STATED THAT THE SECRETARY OF THE AIR FORCE HAD DETERMINED THAT YOUR DEPENDENTS WERE AUTHORIZED GOVERNMENT TRANSPORTATION FROM ENGLAND TO THE CONTINENTAL UNITED STATES. ALSO YOU ENCLOSED A COPY OF A MESSAGE DATED MARCH 22, 1962, FROM CHANUTE AIR FORCE BASE TO HEADQUARTERS 81ST TACTICAL FIGHTER WING, REQUESTING THAT PARAGRAPH 6, SPECIAL ORDER A-27, DATED JANUARY 22, 1962, BE REVOKED TO PERMIT YOU TO SUBMIT A CLAIM FOR REIMBURSEMENT OF DEPENDENTS' TRAVEL EXPENSES, AND A COPY OF REPLY THERETO WHICH STATED THAT SPECIAL ORDER A-27 ISSUED JANUARY 22, 1962, BY THAT HEADQUARTERS HAD BEEN REVOKED BY PARAGRAPH 2, SPECIAL ORDER A-140, DATED MARCH 26, 1962.

THE MESSAGE REFERRED TO IN THE ORDERS OF JANUARY 22, 1962, WHICH AMENDED THE ORIGINAL ORDERS OF JANUARY 2, 1962, TO PROVIDED THAT DEPENDENTS' TRAVEL WAS NOT AUTHORIZED BECAUSE DATE OF MARRIAGE WAS DECEMBER 16, 1961, THAT IS, AFTER NOVEMBER 27, 1961, WAS ONE OF A SERIES OF MESSAGES ISSUED IN JANUARY 1962 WHICH AMPLIFIED THE POLICY SET OUT IN USCINCEUR MESSAGES OF OCTOBER 27, 1961, AND JANUARY 3, 1962, BY STATING THAT SUCH IMPLEMENTATION OF THE SECRETARY OF DEFENSE DIRECTIVE OF SEPTEMBER 9, 1961, SUSPENDING THE TRAVEL OF DEPENDENTS TO WESTERN EUROPE, WAS TO BE INTERPRETED AS OPERATING TO DENY AUTHORIZED STATUS FOR ANY DEPENDENT WHO DEPARTED THE UNITED STATES FOR WESTERN EUROPE ON OR AFTER NOVEMBER 27, 1961, OR WHO BECAME A DEPENDENT OF A MILITARY MEMBER SUBSEQUENT TO THAT DATE, REGARDLESS OF WHETHER OR NOT THE SPOUSE INITIALLY ENTERED THE AREA AT HER OWN EXPENSE OR IS A FOREIGN NATIONAL. IT STATED FURTHER THAT THE PRINCIPLE UNDERLYING USCINCEUR POLICY WAS TO INSURE UNIFORM AND EQUITABLE TREATMENT FOR ALL CONCERNED UNTIL SUCH TIME AS THE SECRETARY OF DEFENSE OR OTHER COMPETENT AUTHORITY AMENDED OR AMPLIFIED THE CURRENTLY IMPOSED POLICY PRECLUDING THE TRANSPORTATION OF DEPENDENTS TO WESTERN EUROPE AT GOVERNMENT EXPENSE.

IT LONG HAS BEEN RECOGNIZED THAT THE RIGHT TO TRANSPORTATION OF DEPENDENTS IS NOT AN ABSOLUTE ONE BUT MAY BE ADMINISTRATIVELY SUSPENDED OR DENIED FOR MILITARY REASONS AND THAT WHERE TRANSPORTATION IS ADMINISTRATIVELY REFUSED BY REASON OF MILITARY NECESSITY OR EXPEDIENCY, A MEMBER MAY NOT TRANSPORT HIS DEPENDENTS AT PERSONAL EXPENSE AND BE PAID THE COST UNDER A STATUTE AUTHORIZING REIMBURSEMENT FOR TRAVEL OF DEPENDENTS UPON A PERMANENT CHANGE OF STATION. CULP V. UNITED STATES, 76 CT.CL. 507; 35 COMP. GEN. 61. AT THE TIME YOUR DEPENDENTS TRAVELED TO THE UNITED STATES, IT WAS THE POLICY OF THE AIR FORCE AS SET OUT IN THE MESSAGES PROMULGATED IN JANUARY 1962, REFERRED TO ABOVE, TO DENY AN AUTHORIZED STATUS TO ANY DEPENDENT ACQUIRED BY MARRIAGE TO A MILITARY MEMBER STATIONED IN WESTERN EUROPE, SUBSEQUENT TO NOVEMBER 27, 1961. PARAGRAPH 3301, AIR FORCE MANUAL 75-4, IN EFFECT AT THE TIME INVOLVED, PROVIDES THAT TRANSPORTATION OF UNAUTHORIZED DEPENDENTS IS THE FINANCIAL RESPONSIBILITY OF THE SPONSOR, BUT SPACE-AVAILABLE TRANSPORTATION IS AUTHORIZED IN THE CASE OF AN EMERGENCY SITUATION WHERE THE MEMBER IS UNABLE TO PAY FOR COMMERCIAL TRANSPORTATION UPON HIS TRANSFER TO THE UNITED STATES.

IT IS WELL ESTABLISHED THAT LEGAL RIGHTS AND LIABILITIES IN REGARD TO TRAVEL ALLOWANCES VEST AS AND WHEN THE TRAVEL IS PERFORMED UNDER COMPETENT ORDERS AND SUCH ORDERS MAY NOT BE REVOKED OR MODIFIED RETROACTIVELY SO AS TO INCREASE OR DECREASE THE RIGHTS WHICH HAVE BECOME FIXED UNDER THE APPLICABLE STATUES OR REGULATIONS, UNLESS ERROR IS APPARENT ON THE FACE OF THE ORDERS, OR THE FACTS AND CIRCUMSTANCES CLEARLY DEMONSTRATE THAT SOME PROVISION PREVIOUSLY DETERMINED AND DEFINITELY INTENDED HAD BEEN OMITTED THROUGH ERROR OR INADVERTENCE IN PREPARING THE ORDERS. KATZER V. UNITED STATES, 52 CT.CL. 32, 23 COMP. GEN. 713, 24 ID. 436.

THE ORDERS OF JANUARY 22, 1962, WHICH PROVIDED THAT YOUR DEPENDENTS' TRAVEL WAS NOT AUTHORIZED BECAUSE THE DATE OF YOUR MARRIAGE WAS DECEMBER 16, 1961, THAT IS, AFTER NOVEMBER 27, 1961, WAS IN ACCORDANCE WITH THE POLICY AND REGULATIONS IN EFFECT AT THAT TIME. THE BASIS FOR THE MESSAGE FROM BOLLING AIR FORCE BASE DATED MARCH 20, 1962, WHICH STATES THAT THE SECRETARY OF THE AIR FORCE HAS DETERMINED THAT YOUR DEPENDENTS ARE AUTHORIZED GOVERNMENT TRANSPORTATION IS NOT CLEAR. THE GOVERNING REGULATIONS, HOWEVER, CONTEMPLATED SUCH TRANSPORTATION ONLY ON A SPACE- AVAILABLE BASIS AND YOU DID NOT AWAIT THE OUTCOME OF YOUR EFFORTS TO OBTAIN GOVERNMENT TRANSPORTATION FOR YOUR DEPENDENTS BUT OBTAIN COMMERCIAL TRANSPORTATION FOR THEM PRIOR TO SUCH MESSAGE. SINCE THE ORDERS OF MARCH 26, 1962, WHICH PURPORTED TO REVOKE THE ORDERS OF JANUARY 22, 1962, AFFORD NO LEGAL BASIS FOR REIMBURSEMENT FOR THE COMMERCIAL TRANSPORTATION UTILIZED BY YOUR DEPENDENTS, WE MAY NOT AUTHORIZE PAYMENT OF YOUR CLAIM. ACCORDINGLY, THE SETTLEMENT OF OCTOBER 5, 1962, WAS CORRECT AND IS SUSTAINED.