B-115928, OCT 5, 1953

B-115928, OCT 5, 1953

PRECIS-UNAVAILABLE

LIEUTENANT COLONEL HOWARD S. LEVIE:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 6, 1953, REQUESTING REVIEW OF THE SETTLEMENT OF MAY 26, 1953, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT FOR YOUR WIFE'S TRAVEL FROM SAN FRANCISCO, CALIFORNIA, TO TOKYO, JAPAN, SEPTEMBER 20 TO OCTOBER 7, 1951.

BY PARAGRAPH 43, DEPARTMENT OF THE ARMY SPECIAL ORDERS NO. 91, DATED MAY 10, 1950, YOU WERE RELIEVED FROM DUTY AND ASSIGNMENT AT FORT LEAVENWORTH, KANSAS, AND ASSIGNED TO FAR EAST COMMAND, YOKOHAMA, JAPAN, REPORTING AT CAMP STONEMAN, CALIFORNIA, AUGUST 4, 1950. YOU WERE FURTHER TRANSFERRED TO FORT LAWTON, WASHINGTON, BY SPECIAL ORDERS NO. 240, AUGUST 28, 1950, THENCE TO YOUR OVERSEAS STATION VIA MCCHORD AIR FORCE BASE, WASHINGTON, SEPTEMBER 1, 1950. BY TRAVEL AUTHORIZATION OF DEPENDENTS TO JAPAN DATED JUNE 28, 1950, YOUR WIFE WAS AUTHORIZED, UPON CALL OF THE FORT COMMANDER, TO PROCEED FROM FORT LEAVENWORTH, KANSAS, TO A DESIGNATED PORT OF EMBARKATION FOR FURTHER TRANSPORTATION TO JAPAN. NO PORT CALL WAS ISSUED UNDER THAT AUTHORIZATION FOR THE REASON THAT ALL TRAVEL OF DEPENDENTS TO PACIFIC DESTINATIONS WAS INDEFINETELY SUSPENDED EFFECTIVE JULY 14, 1950, BY ADJUTANT GENERAL'S MESSAGE WCE 85304, DATED JULY 8, 1950. THIS RESTRICTION ON DEPENDENT TRAVEL TO JAPAN WAS NOT REMOVED UNTIL AUGUST 5, 1951, WHEN GENERAL HEADQUARTERS, FAR EAST COMMAND, ISSUED A MESSAGE LIFTING THE SUSPENSION OF DEPENDENT TRAVEL TO JAPAN AND STATING THAT THE MOVEMENT OF DEPENDENTS TO THAT COMMAND WOULD BE STRICTLY IN ACCORDANCE WITH A PRIORITY SYSTEM; THAT THE INITIAL PRIORITY LIST WOULD BE PREPARED FOR MOVEMENTS OF DEPENDENTS BEGINNING NOVEMBER 1951; THAT THE AVAILABILITY OF GOVERNMENT HOUSING WOULD BE A FACTOR, AND THAT APPLICATIONS SUBMITTED BY PERSONNEL UNDER THE PRIVATE RENTAL POLICY WHO ELECT TRAVEL OF DEPENDENTS BY COMMERCIAL TRANSPORTATION ON A NONREIMBURSABLE BASIS WOULD BE CONSIDERED. ON AUGUST 22, 1951, YOU REQUESTED AUTHORITY FOR YOUR WIFE TO TRAVEL TO JAPAN BY COMMERCIAL MEANS AT NO EXPENSE TO THE GOVERNMENT, STATING THAT YOU HAD MADE ARRANGEMENTS FOR PRIVATE RENTAL OF NON- GOVERNMENT QUARTERS AND THAT YOU AGREED, IF PERMISSION WERE GRANTED FOR YOUR DEPENDENT TO TRAVEL BY COMMERCIAL MEANS THAT SUCH TRAVEL WOULD BE AT YOUR OWN EXPENSE AND NOT REIMBURSABLE BY THE GOVERNMENT. BY FAR EAST COMMAND MESSAGE, DATED AUGUST 24, 1951, YOUR WIFE WAS AUTHORIZED TO TRAVEL TO JAPAN BY COMMERCIAL TRANSPORTATION ON A NON-REIMBURSABLE BASIS. SHE TRAVELED BY COMMERCIAL VESSEL AT A PERSONAL EXPENSE OF $350 PURSUANT TO THAT AUTHORITY. THEREAFTER ON OCTOBER 14, 1951, THE ADJUTANT GENERAL OF THE ARMY ADVISED THE FAR EAST COMMAND THAT THE JUDGE ADVOCATE GENERAL HAD RENDERED A LEGAL OPINION TO THE EFFECT THAT THE POLICY OF RESTRICTING DEPENDENT'S TRAVEL BY COMMERCIAL MEANS AT NO EXPENSE TO THE GOVERNMENT IN CONNECTION WITH THE PRIVATE RENTAL PROGRAM WAS LEGALLY OBJECTIONABLE AND THAT THE REQUIRED CERTIFICATE WAIVING STATUTORY RIGHT TO TRANSPORTATION AT GOVERNMENT EXPENSE WAS NOT LEGALLY BINDING, AND THAT THEREFORE THE NAMES OF DEPENDENTS WHO HAD BEEN AUTHORIZED ENTRY PURSUANT TO PRIVATE RENTAL AGREEMENTS SHOULD BE "ADDED TO THE END OF" THE REGULAR PRIORITY LIST. THE ADJUTANT GENERAL FURTHER STATED THAT IF SUCH DEPENDENTS ELECTED TO REFUSE GOVERNMENT TRANSPORTATION AND CHOSE TO TRAVEL BY COMMERCIAL TRANSPORTATION THEY MIGHT DO SO AT THEIR OWN EXPENSE. IT APPEARS TO BE YOUR CONTENTION THAT SINCE YOUR WIFE'S ENTRY WAS APPROVED BY PROPER AUTHORITY AND SINCE SHE DID NOT COMMENCE TRAVEL ON A NON-REIMBURSABLE BASIS UNTIL AUTHORIZED TO DO SO, YOUR AGREEMENT TO HAVE HER TRAVEL AT YOUR EXPENSE WAS WITHOUT FORCE AND EFFECT AND NOT LEGALLY BINDING UPON YOU.

IT LONG HAS BEEN RECOGNIZED THAT THE RIGHT TO TRANSPORTATION OF DEPENDENTS OF MILITARY PERSONNEL AT GOVERNMENT EXPENSE IS NOT AN ABSOLUTE RIGHT, BUT ONE WHICH MAY BE SUSPENDED OR DENIED FOR MILITARY REASONS. CULP V. UNITED STATES, 76 C. CLS. 507. FOR MORE THAN A DECADE THE TRANSPORTATION OF DEPENDENTS TO AND FROM OVERSEAS LOCATIONS HAS BEEN UNDER STRICT MILITARY CONTROL AND HAS BEEN HANDLED ON A PRIORITY BASIS. AT THE TIME YOU WERE GRANTED PERMISSION TO TRANSPORT YOUR DEPENDENT TO JAPAN BY COMMERCIAL MEANS WITHOUT EXPENSE TO THE GOVERNMENT, THE ARMY, IN THE EXERCISE OF PROPER AUTHORITY, WAS PREPARING TO TRANSPORT BY GOVERNMENT MEANS ALL DEPENDENTS DESIRING TRANSPORTATION TO JAPAN, THE TIME OF SUCH TRANSPORTATION TO BE ON AN EQUITABLE BASIS TAKING INTO CONSIDERATION THE LENGTH OF TIME SPONSORE HAD BEEN SEPARATED FROM THEIR DEPENDENTS, AND OTHER PERTINENT FACTORS. THE ADJUTANT GENERAL OF THE ARMY IN HIS MESSAGE OF OCTOBER 14, 1951, TO THE FAR EAST COMMAND, ADVISING OF THE DOUBT AS TO WHETHER CERTIFICATES WAIVING GOVERNMENT TRANSPORTATION ARE LEGALLY BINDING, DID NOT ALTER THIS PROCEDURE IN ANY WAY, THE SOLE EFFECT OF THE MESSAGE BEING TO DISCONTINUE THE RENDERING OF ANY ASSISTANCE TO PERSONNEL DESIRING TO TRANSPORT THEIR DEPENDENTS TO JAPAN AT THEIR OWN EXPENSE IN ADVANCE OF THEIR PROPER ORDER ON THE PRIORITY LIST, OTHER THAN TO ADVISE THEM OF THEIR DEPENDENTS' RELATIVE POSITION ON SAID LIST. IN ANY EVENT, YOU WERE NOT AFFECTED, ADVERSELY OR OTHERWISE, BY THE DIRECTIONS CONTAINED IN SAID MESSAGE, YOUR DEPENDENT ALREADY HAVING BEEN TRANSPORTED TO JAPAN UNDER PERMISSION PREVIOUSLY GRANTED. FURTHER, IT SEEMS CLEAR THAT THE QUESTION OF WHETHER A CERTIFICATE WAIVING A STATUTORY RIGHT TO TRANSPORTATION AT GOVERNMENT EXPENSE IS LEGALLY BINDING IS NOT AN ISSUE IN YOUR CASE. WHILE YOU WERE AUTHORIZED TO TRANSPORT YOUR DEPENDENT AT A TIME SELECTED BY YOU PROVIDED YOU AGREED THAT SUCH TRANSPORTATION WOULD BE ON A NON-REIMBURSABLE BASIS, YOU WERE AT NO TIME REFUSED GOVERNMENT TRANSPORTATION FOR HER IN HER REGULAR TURN ON THE PRIORITY LIST ON THE GROUND THAT YOU PREVIOUSLY HAD WAIVED SUCH TRANSPORTATION. ON THE CONTRARY, APPARENTLY ALL DEPENDENTS WHO AWAITED THEIR PROPER TURN ON THE PRIORITY LIST WERE FURNISHED GOVERNMENT TRANSPORTATION, AND THERE CAN BE NO DOUBT THAT UPON BEING REACHED ON SUCH LIST AND THUS BECOMING ELIGIBLE FOR TRANSPORTATION YOUR DEPENDENT WOULD, IN LIKE MANNER, HAVE BEEN FURNISHED TRANSPORTATION AT NO COST TO YOU. SINCE YOU WERE NOT FURNISHED TRANSPORTATION FOR YOUR DEPENDENT WHEN SHE WAS REACHED ON A REGULARLY ESTABLISHED LIST SOLELY BECAUSE SHE THEN COULD NOT UTILIZE GOVERNMENT TRANSPORTATION, HAVING THERETOFORE COMPLETED TRAVEL TO YOUR STATION WITHOUT A CURRENTLY EFFECTIVE AUTHORIZATION FOR TRAVEL AT GOVERNMENT EXPENSE AND IN ADVANCE OF HER PRIORITY ORDER, THERE IS NO LEGAL BASIS UPON WHICH THIS OFFICE MAY REIMBURSE YOU FOR HER TRAVEL.

ACCORDINGLY, THE SETTLEMENT OF MAY 26, 1953, IS SUSTAINED.