B-119299, AUG 26, 1954

B-119299, AUG 26, 1954

PRECIS-UNAVAILABLE

COMMANDER ROLAND W. KENNEY, USNR:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 9, 1954, REQUESTING REVIEW OF THE SETTLEMENT OF JANUARY 29, 1954, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT FOR YOUR WIFE'S TRAVEL FROM PONAPE, EASTERN CAROLINE ISLANDS TO TAIPEI, TAIWAN, VIA HARTFORD, CONNECTICUT.

BY TRAVEL AUTHORIZATION DATED MAY 28, 1951, YOUR WIFE WAS AUTHORIZED TO TRAVEL FROM PONAPE, EASTERN CAROLINE ISLANDS, TO THE CONTINENTAL LIMITS OF THE UNITED STATES ABOARD A GOVERNMENT VESSEL ON A SPACE AVAILABLE BASIS. THE RECORD SHOWS THAT THIS WAS A PLANNED EVACUATION IN CONNECTION WITH THE SCHEDULED TRANSFER OF THE ADMINISTRATION OF THE TRUST TERRITORY FROM THE DEPARTMENT OF THE NAVY TO THE DEPARTMENT OF THE INTERIOR ON JULY 1, 1951, AND WAS NOT RELATED TO YOUR SUBSEQUENT CHANGE OF STATION ORDERS. DISPATCH DATED JUNE 5, 1951, IT WAS STATED THAT THE TRANSPORTATION OF DEPENDENTS IN ADVANCE OF ORDERS WAS CONSIDERED IN THE BEST INTEREST OF THE GOVERNMENT AND THAT IT WAS AUTHORIZED BY PARAGRAPH 7009, JOINT TRAVEL REGULATIONS. BY ORDERS DATED JUNE 10, 1951, YOU WERE DETACHED FROM DUTY AT PONAPE AND DIRECTED TO PROCEED TO WASHINGTON, D.C., FOR TEMPORARY DUTY OF ABOUT ONE MONTH, UPON COMPLETION OF WHICH YOU WERE TO PROCEED TO TAIPEI, TAIWAN, FOR DUTY AS ASSISTANT NAVAL ATTACHE FOR AIR, CHINA, 30 DAYS' LEAVE IN THE UNITED STATES BEING AUTHORIZED. BY ALUSMA TAIPEI DISPATCH OF JUNE 1951, YOU WERE ADVISED THAT SUITABLE HOUSING WAS "NOT USUALLY READILY AVAILABLE" AND THAT IT WAS CONSIDERED "DESIRABLE" THAT YOUR WIFE NOT ACCOMPANY YOU BUT FOLLOW AFTER HOUSING WAS ARRANGED. YOU RECEIVED SIMILAR ADVICE IN A PERSONAL LETTER OF JULY 7, 1951, FROM REAR ADMIRAL H.B. JARRETT, OFFICE OF THE NAVAL ATTACHE, TAIPEI, TAIWAN. JUNE 10, 1951, YOU DEPARTED PONAPE BY GOVERNMENT AIR AND ON THE SAME DATE YOUR WIFE DEPARTED ON THE USNS JAMES O'HARA. YOU JOINED HER ABOARD THAT VESSEL AT HONOLULU, WHICH ARRIVED AT SAN FRANCISCO, CALIFORNIA, ON JUNE 25, 1951, FROM WHICH POINT SHE TRAVELED TO YOUR HOME, HARTFORD, CONNECTICUT. ON AUGUST 21, 1951, YOU APPLIED FOR PERMISSION FOR HER TO TRAVEL TO TAIPEI, TAIWAN, AND BY LETTER OF AUGUST 24, 1951, FROM THE CHIEF OF NAVAL PERSONNEL YOU WERE ADVISED THAT PERMISSION HAD BEEN GRANTED. SHE TRAVELED FROM HARTFORD TO SAN FRANCISCO OCTOBER 8 TO 12, 1951, THENCE TO TAIPEI BY GOVERNMENT TRANSPORTATION OCTOBER 18 TO NOVEMBER 7, 1951. YOUR REQUEST FOR REVIEW YOU STATE THAT YOU RECOGNIZE THE DISALLOWANCE OF YOUR CLAIM AS LEGALLY CORRECT BUT EQUITABLY UNFAIR, AND REQUEST TO BE INFORMED WHETHER DUE CONSIDERATION WAS GIVEN TO THE ALUSNA TAIPEI DISPATCH AND THE PERSONAL LETTER FROM REAR ADMIRAL JARRETT.

PARAGRAPH 7000, JOINT TRAVEL REGULATIONS, PROVIDES THAT MEMBERS OF THE UNIFORMED SERVICE ARE ENTITLED TO TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE UPON A PERMANENT CHANGE OF STATION FOR TRAVEL PERFORMED FROM THE OLD STATION TO THE NEW PERMANENT STATION OR BETWEEN POINTS OTHERWISE AUTHORIZED. PARAGRAPH 7009 OF THE SAME REGULATIONS PROVIDES THAT COMMANDING OFFICERS, WITH THE APPROVAL OF THE THEATER COMMANDER OR OTHER COMETENT AUTHORITY, MAY, IN THE BEST INTEREST OF THE GOVERNMENT AND UNDER UNUSUAL OR EMERGENCY CONDITIONS, AUTHORIZE THE TRANSPORTATION AT GOVERNMENT EXPENSE OF DEPENDENTS OF MEMBERS ON DUTY AT STATIONS OUTSIDE THE UNITED STATES PRIOR OR SUBSEQUENT TO THE ISSUANCE OF ORDERS FOR THE RELIEF OF SUCH MEMBERS FROM THEIR STATIONS AND THAT SUCH TRANSPORTATION AS MAY BE AUTHORIZED SHALL BE FROM THE STATION OUTSIDE THE UNITED STATES TO SUCH LOCATION WITHIN THE UNITED STATES AS MAY BE DESIGNATED BY THE MEMBER. HOWEVER, IT LONG HAS BEEN RECOGNIZED THAT NEW ORDERS CANCEL UNEXECUTED PORTIONS OF OLD ORDERS; ALSO, THAT WHERE DEPENDENTS ARE RETURNED FROM AN OVERSEAS STATION TO THE UNITED STATES PRIOR TO ORDERS FOR THE RELIEF OF THE MEMBER FROM THE OVERSEAS STATION AND THE MEMBER IS ASSIGNED TO A NEW STATION BEFORE THE DEPENDENTS TRAVEL TO THE DESIGNATED PLACE, TRANSPORTATION OF THE DEPENDENTS AT PUBLIC EXPENSE MAY NOT EXCEED THE COST FROM THE OLD STATION TO THE NEW.

IN YOUR CASE, THE CHANGE OF STATION ORDERS OF JUNE 10, 1951, CANCELLED THE UNEXECUTED PORTION OF THE TRAVEL ORDERS OF MAY 28, 1951, SO THAT YOUR RIGHT TO TRANSPORTATION FOR YOUR WIFE CLEARLY BECAME LIMITED TO THAT REQUIRED FOR HER TRAVEL FROM THE OLD STATION TO THE NEW. WHILE THE DISPATCH AND LETTER REFERRED TO BY YOU HAVE BEEN FULLY CONSIDERED, IT SEEMS CLEAR THAT YOUR WIFE WAS NOT OFFICIALLY DEBARRED FROM YOUR NEW STATION BUT MERELY THAT IT WAS MORE DESIRABLE FOR YOU TO TRAVEL FIRST AND ARRANGE FOR HOUSING PRIOR TO HER ARRIVAL. APPLICATION FOR HER TO TRAVEL TO YOUR NEW STATION APPARENTLY COULD HAVE BEEN FILED AS SOON AS YOU RECEIVED THE ORDERS OF JUNE 10, 1951, AND PERMISSION EVIDENTLY WOULD HAVE BEEN GRANTED IN PROPER TIME. SUCH CIRCUMSTANCES DO NOT AFFORD A LEGAL BASIS FOR REIMBURSEMENT FOR YOUR WIFE'S TRAVEL FROM SAN FRANCISCO TO HARTFORD AND RETURN, AND SINCE YOUR WIFE WAS FURNISHED TRANSPORTATION FROM THE OLD STATION TO THE NEW (VIA SAN FRANCISCO) THERE IS NO BASIS FOR THE ALLOWANCE OF YOUR CLAIM.

ACCORDINGLY, THE SETTLEMENT OF JANUARY 29, 1954, WAS CORRECT AND IS SUSTAINED.

AS TO WHAT FURTHER APPEAL IS OPEN TO YOU, YOU ARE ADVISED THAT THE ACTION OF THIS OFFICE ON CLAIMS AGAINST THE UNITED STATES IS FINAL AND CONCLUSIVE UPON THE EXECUTIVE BRANCH OF THE GOVERNMENT. HOWEVER, INDEPENDENTLY OF THE ACTION OF THIS OFFICE, THE COURT OF CLAIMS OF THE UNITED STATES HAS JURISDICTION TO CONSIDER AND DETERMINE CERTAIN CLAIMS AGAINST THE GOVERNMENT IF FILED WITHIN SIX YEARS AFTER THE CLAIM FIRST ACCRUES. U.S.C. 262.