B-121453, MAR 31, 1955

B-121453, MAR 31, 1955

PRECIS-UNAVAILABLE

COMMANDER B. A. DAVIDSON, CEC, USN:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 10, 1954, REQUESTING REVIEW OF SETTLEMENT DATED APRIL 20, 1954, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT OF THE COST OF YOUR DEPENDENT WIFE'S TRANSPORTATION FROM SEATTLE, WASHINGTON, TO ADAK, ALASKA, BECAUSE THE TRAVEL WAS PERFORMED DURING A PERIOD WHEN TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE TO PACIFIC DESTINATIONS, INCLUDING HAWAII AND ALASKA, WAS SUSPENDED.

THE RECORD INDICATES THAT FOLLOWING RECEIPT OF BUREAU OF NAVAL PERSONNEL ORDERS, DATED FEBRUARY 27, 1950, DIRECTING YOU TO COMMENCE TRAVEL ON OR ABOUT JUNE 16, 1950, ON CHANGE OF STATION FROM THE NAVAL WAR COLLEGE, NEWPORT, RHODE ISLAND, TO NAVAL OPERATING BASE, ADAK, ALASKA, BY WAY OF SEATTLE, WASHINGTON, WITH TEMPORARY DUTY EN ROUTE AT SAN FRANCISCO, CALIFORNIA, AND KODIAK, ALASKA, YOU REQUESTED GOVERNMENT TRANSPORTATION FOR COORDINATED TRAVEL BY YOU AND YOUR DEPENDENT FROM SEATTLE TO ALASKA. BY LETTER OF MAY 5, 1950, FROM THE COMMANDANT, THIRTEENTH NAVAL DISTRICT, SEATTLE, WASHINGTON, YOU WERE ADVISED THAT BECAUSE OF LACK OF TRANSIENT HOUSING IN KODIAK IT WAS NOT CONSIDERED PRACTICABLE TO TRANSPORT DEPENDENTS TO KODIAK TO AWAIT FURTHER TRANSPORTATION TO ADAK. YOU WERE FURTHER ADVISED THAT, BECAUSE OF THE UNCERTAINTY OF MILITARY AIR TRANSPORTATION BEING AVAILABLE, THE ONLY DEFINITE TRANSPORTATION AVAILABLE FOR YOUR DEPENDENT WOULD BE BY SEA TRANSPORT ON AUGUST 11, 1950, BUT IF ALTERNATE TRANSPORTATION BECAME AVAILABLE WHEREBY IT COULD BE ARRANGED FOR YOU TO TRAVEL TOGETHER YOU WOULD BE NOTIFIED. IT APPEARS THAT YOU AND YOUR WIFE DEPARTED NEWPORT ON JUNE 19, 1950, AND ARRIVED AT SEATTLE ON JULY 10, 1950; THAT YOU DEPARTED SEATTLE ON JULY 12, 1950, ABOARD THE U.S.S. MULIPHAN, AND ARRIVED AT ADAK ON JULY 26, 1950; AND THAT YOUR WIFE TRAVELED FROM SEATTLE TO ADAK, JULY 17 TO 19, 1950, BY COMMERCIAL AIR AT A TOTAL COST OF $248.98. YOU NOW CLAIM REIMBURSEMENT OF THE EXPENSE SO INCURRED, LESS TRANSPORTATION TAX, ON THE GROUND THAT, WHILE THE NAVY DEPARTMENT HAS AUTHORITY TO SUSPEND TRANSPORTATION OF DEPENDENTS BY GOVERNMENT VESSELS OR AIRCRAFT, IT IS WITHOUT AUTHORITY TO ALTER THE STATUTE WITH RESPECT TO TRANSPORTATION OF DEPENDENTS.

CHIEF OF NAVAL OPERATIONS DISPATCH OF JULY 8, 1950, DIRECTED CANCELLATION OF ALL PORT CALLS ISSUED TO DEPENDENTS DESTINED FOR ALASKA AND OTHER PACIFIC DESTINATIONS AND STATED THAT DEPENDENTS WHO ARRIVED AT PORT OF EMBARKATION NOT IN TIME TO EMBARK BY JULY 14, 1950, WERE TO BE RETURNED TO POINT OF ORIGIN AT GOVERNMENT EXPENSE. IT WAS STATED FURTHER "ADVISE DEPENDENTS TRANSPORTATION IS INDEFINITELY SUSPENDED DUE TO ASSIGNMENT OF AVAILABLE LIFT TO HIGHER CATEGORY PERSONNEL MOVEMENTS," AND THAT DETAILED INSTRUCTIONS WOULD FOLLOW. SUCH DIRECTIVE WAS IMPLEMENTED BY BUPERS DISPATCH OF JULY 31, 1950, SO AS TO ADVISE THAT REIMBURSEMENT FOR DEPENDENT TRAVEL AT PERSONAL EXPENSE TO PACIFIC DESTINATIONS ON AND AFTER JULY 15, 1950, WOULD BE AUTHORIZED ONLY IN CASES WHERE AN EXCEPTION WAS MADE BY THE CHIEF OF NAVAL OPERATIONS. FURTHER IMPLEMENTATION WAS CONTAINED IN ALNAV NO. 87, AUGUST 21, 1950, WHICH DENIED REIMBURSEMENT FOR DEPENDENT TRAVEL UNLESS APPROVED IN ADVANCE BY THE CHIEF OF NAVAL OPERATIONS.

IT LONG HAS BEEN RECOGNIZED THAT THE RIGHT TO TRANSPORTATION OF DEPENDENTS IS NOT AN ABSOLUTE ONE BUT ONE WHICH MAY BE ADMINISTRATIVELY SUSPENDED OR DENIED FOR MILITARY REASONS, AND THAT WHERE TRANSPORTATION IS ADMINISTRATIVELY REFUSED BY REASON OF MILITARY NECESSITY, OR EXPEDIENCY, AN OFFICER MAY NOT TRANSPORT HIS DEPENDENTS AT PERSONAL EXPENSE AND BE PAID THE COST UNDER A STATUTE AUTHORIZING REIMBURSEMENT FOR TRAVEL OF DEPENDENTS UPON PERMANENT CHANGE OF STATION. CULP V. UNITED STATES, 76 C. CLS. 507. SEE ALSO PARAGRAPH 8073, NAVY TRAVEL INSTRUCTIONS, IN EFFECT DURING THE PERIOD HERE INVOLVED. WHILE YOU CONTEND THAT THE ABOVE-QUOTED SENTENCE IN THE DISPATCH OF JULY 8, 1950, INDICATES THAT THE INTENT WAS TO BAR ONLY TRAVEL BY GOVERNMENT TRANSPORTATION, THAT VIEW IS CONTRARY TO THE ADMINISTRATIVE INTERPRETATION PLACED ON THAT DISPATCH, SINCE ALNAV NO. 87 STATED WITHOUT QUALIFICATION THAT UNDER SUCH DISPATCH "TRAVEL DEPENDENTS PACIFIC DESTINATIONS, INCLUDING HAWAII AND ALASKA, WAS SUSPENDED AFTER 14 JULY 1950."

SINCE YOUR DEPENDENT TRAVELED FROM SEATTLE TO ADAK AT A TIME WHEN TRANSPORTATION OF DEPENDENTS TO PACIFIC DESTINATIONS AT GOVERNMENT EXPENSE WAS PROHIBITED BY REASON OF MILITARY EXPEDIENCY, THERE IS NO AUTHORITY FOR THE PAYMENT OF YOUR CLAIM. ACCORDINGLY, THE SETTLEMENT OF APRIL 20, 1954, IS SUSTAINED.