B-123327, AUGUST 2, 1955, 35 COMP. GEN. 61

B-123327, AUGUST 2, 1955, 35 COMP. GEN. 61

TRANSPORTATION - DEPENDENTS - MILITARY, NAVAL, ETC., PERSONNEL - FROM RESTRICTED TO PRIORITY AREAS ARMY OFFICERS WHOSE DEPENDENTS WERE FURNISHED TRANSPORTATION AT GOVERNMENT EXPENSE TO A DESIGNATED PLACE IN THE UNITED STATES ON THE OFFICERS' ASSIGNMENT TO A RESTRICTED OVERSEAS AREA MAY NOT BE REIMBURSED FOR THE COST OF COMMERCIAL AIR TRANSPORTATION FOR DEPENDENTS INCIDENT TO A SUBSEQUENTLY ORDERED PERMANENT CHANGE OF STATION TO ANOTHER RESTRICTED OVERSEAS AREA, OPERATING UNDER A PRIORITY SYSTEM, IN THE ABSENCE OF AN EXPRESS AUTHORIZATION AS REQUIRED BY SPECIAL REGULATIONS OF THE ARMY.

TO LIEUTENANT COLONEL J. M. KNIGHT, DEPARTMENT OF THE ARMY, AUGUST 2, 1955:

YOUR LETTER OF FEBRUARY 23, 1955, REQUESTS AN ADVANCE DECISION AS TO WHETHER PAYMENT IS AUTHORIZED ON VOUCHERS STATED IN FAVOR OF FIRST LIEUTENANTS STEPHEN J. CAHN AND HARRY H. BAIRD, R., FOR REIMBURSEMENT FOR TRAVEL OF THEIR DEPENDENTS.

BOTH OFFICERS WERE TRANSFERRED IN SEPTEMBER 1954 FROM DUTY IN KOREA, A RESTRICTED AREA FOR DEPENDENTS, TO SCHOFIELD BARRACKS, HAWAII, AN OVERSEAS AREA OPERATING UNDER THE PRIORITY SYSTEM. LIEUTENANT CAHN'S WIFE TRAVELED FROM CLEVELAND, OHIO, TO HONOLULU, SEPTEMBER 16 AND 17, 1954. LIEUTENANT BAIRD'S WIFE TRAVELED FROM LAKE WALES, FLORIDA, TO SCHOFIELD BARRACKS, OCTOBER 9 AND 10, 1954. BOTH WIVES USED COMMERCIAL AIR AT PERSONAL EXPENSE, AND IN EACH CASE THE VOUCHER COVERS REIMBURSEMENT FOR LAND TRAVEL ONLY. YOU ASK WHETHER A PERMANENT CHANGE OF STATION FOR A MEMBER IS, IN ITSELF, SUFFICIENT TO ENTITLE A MEMBER TO REIMBURSEMENT FOR TRAVEL OF DEPENDENTS TO AN OVERSEAS AREA. BY FIRST INDORSEMENT DATED FEBRUARY 23, 1955, THE FINANCE AND ACCOUNTING OFFICER, HEADQUARTERS UNITED STATES ARMY, PACIFIC, REFRAMED THE QUESTION TO STATE THAT THE ISSUE APPEARS TO BE WHETHER THE RIGHT TO TRANSPORTATION OF DEPENDENTS, OR REIMBURSEMENT THEREFOR, ARISING FROM A CHANGE OF PERMANENT STATION, MAY BE DENIED WHERE THE MOVEMENT OF DEPENDENTS TO AN OVERSEAS AREA WAS WITHOUT PRIOR APPROVAL BY THE OVERSEAS COMMANDER.

THE STATUTORY AUTHORITY FOR TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE FIRST CONTAINED IN THE ACT OF MAY 18, 1920, 41 STAT. 604, AND REENACTED IN THE ACT OF JUNE 12, 1942, 56 STAT. 365, PROVIDED THAT OFFICERS, AND MEMBERS IN CERTAIN ENLISTED GRADES, WHEN ORDERED TO MAKE A PERMANENT CHANGE OF STATION SHOULD BE FURNISHED TRANSPORTATION FOR THEIR DEPENDENTS TO THE NEW STATION, NOT TO EXCEED THE COST FROM THE OLD TO THE NEW STATION. THESE LAWS WERE NOT INTENDED, HOWEVER, TO GRANT A RIGHT IN DEROGATION OF THE ADMINISTRATIVE AUTHORITY CONFERRED UPON THE DEPARTMENTS SO AS TO PERMIT AN OFFICER TO IGNORE ADMINISTRATIVE REGULATIONS AND TRANSPORT HIS DEPENDENTS TO HIS NEW STATION WITH IMPUNITY WITHOUT REGARD TO MILITARY CONSIDERATIONS. UNDER THIS CONCEPT OF THE STATUTES IT LONG HAS BEEN RECOGNIZED THAT THE RIGHT TO TRANSPORTATION OF DEPENDENTS OF MILITARY PERSONNEL AT GOVERNMENT EXPENSE UPON AN ORDERED CHANGE OF PERMANENT STATION IS NOT AN ABSOLUTE ONE BUT MAY BE ADMINISTRATIVELY SUSPENDED OR DENIED FOR REASONS OF MILITARY NECESSITY OR EXPEDIENCY, IN WHICH EVENT IF AN OFFICER TRANSPORTS HIS DEPENDENTS AT PERSONAL EXPENSE HE MAY NOT BE REIMBURSED THE EXPENSE SO INCURRED. CULP V. UNITED STATES, 76 C.1CLS. 507.

CURRENTLY THE STATUTORY AUTHORITY FOR TRANSPORTATION OF DEPENDENTS IS CONTAINED IN SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 814, 37 U.S.C. 253, WHICH EXPRESSLY PROVIDES THAT TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE UPON A MEMBER'S ORDERED CHANGE OF PERMANENT STATION SHALL BE UNDER SUCH CONDITIONS AND LIMITATIONS, FOR SUCH RANKS, GRADES, OR RATINGS, AND TO AND FROM SUCH LOCATIONS AS THE SECRETARIES CONCERNED MAY PRESCRIBE.

CHAPTER 7, JOINT TRAVEL REGULATIONS, ISSUED BY THE SECRETARIES TO IMPLEMENT THIS STATUTORY AUTHORITY, PROVIDES GENERALLY IN PARAGRAPH 7000-2 THAT MEMBERS OF THE UNIFORMED SERVICES (EXCEPT ENLISTED MEN IN THE LOWER PAY GRADES) ARE ENTITLED TO TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE UPON A PERMANENT CHANGE OF STATION FOR TRAVEL PERFORMED FROM THE OLD PERMANENT STATION TO THE NEW PERMANENT STATION OR BETWEEN POINTS OTHERWISE AUTHORIZED IN SUCH REGULATIONS. WHEN A MEMBER IS ORDERED ON PERMANENT CHANGE OF STATION TO A PLACE WHERE HIS DEPENDENTS ARE NOT PERMITTED FOR MILITARY REASONS TO ACCOMPANY HIM, PARAGRAPH 7005, JOINT TRAVEL REGULATIONS, PROVIDES FOR THEIR TRANSPORTATION AT GOVERNMENT EXPENSE TO A DESIGNATED PLACE, AND FROM SUCH DESIGNATED PLACE TO HIS DUTY STATION WHEN THE RESTRICTION IS REMOVED AT THAT STATION, OR WHEN HE IS TRANSFERRED TO A DUTY STATION TO WHICH MOVEMENT OF DEPENDENTS IS AUTHORIZED.

TRANSPORTATION OF DEPENDENTS TO OVERSEAS STATIONS TO WHICH, IN GENERAL, COORDINATED TRAVEL OF A MEMBER AND HIS DEPENDENTS IS NOT AUTHORIZED, IS GOVERNED INSOFAR AS ARMY PERSONNEL ARE CONCERNED BY PRIORITY SYSTEM AS PUBLISHED IN SPECIAL REGULATIONS NO. 55-765-5 BY ORDER OF THE SECRETARY OF THE ARMY, THE PURPOSE OF WHICH IS TO PROVIDE A FAIR AND EQUITABLE MEANS OF REUNITING FAMILIES SEPARATED BY OVERSEAS SERVICE AND TO INSURE THAT HOUSING IN THE OVERSEAS COMMANDS, AND TRANSPORTATION TO SUCH COMMANDS, WILL BE AVAILABLE FIRST TO THOSE FAMILIES SUFFERING THE GREATER PERIODS OF SEPARATION. THE EFFECT OF THESE REGULATIONS WHERE A MEMBER IS ORDERED TO AN OVERSEAS COMMAND OPERATING UNDER THE PRIORITY SYSTEM IS TO LIMIT HIS ENTITLEMENT TO TRANSPORTATION OF DEPENDENTS, NOTWITHSTANDING THE ORDERED PERMANENT CHANGE OF STATION, TO TRANSPORTATION TO AN AUTHORIZED DESIGNATED PLACE UNTIL SUCH TIME AS THEIR PRESENCE AT HIS DUTY STATION IS AUTHORIZED BY THE OVERSEAS COMMANDER CONCERNED OR THE RESTRICTIONS ARE REMOVED.

YOU HAVE REPORTED THAT THE COMMAND IN HAWAII IS OPERATING UNDER THE PRIORITY SYSTEM. AS DEFINED IN SPECIAL REGULATIONS 55-765-5, SUCH PRIORITY SYSTEM EXTENDS NOT ONLY TO THE TRANSPORTATION OF DEPENDENTS TO STATIONS IN HAWAII, BUT ALSO TO THEIR CARE AND HOUSING AFTER ARRIVAL. THAT BASIS, THE TRANSPORTATION OF DEPENDENTS TO HAWAII MUST BE REGARDED AS RESTRICTED. YOU ALSO STATE THAT NEITHER LIEUTENANT BAIRD NOR LIEUTENANT CAHN HAD THE REQUISITE PERMISSION OF THE OVERSEAS COMMANDER TO BRING HIS DEPENDENT TO HIS DUTY STATION. EACH OF THE OFFICERS WHEN FIRST ASSIGNED TO DUTY OVERSEAS WAS FURNISHED TRANSPORTATION FOR HIS DEPENDENTS TO A DESIGNATED PLACE AND, UNDER THE PROVISIONS OF THE CITED REGULATIONS WHICH ARE CONTROLLING IN THE MATTER, NO FURTHER ENTITLEMENT TO TRANSPORTATION OF DEPENDENTS INCIDENT TO SUCH PERMANENT CHANGE OF STATION ORDERS FROM CONTINENTAL UNITED STATES TO A RESTRICTED OVERSEAS STATION, OR INCIDENT TO SUBSEQUENT PERMANENT CHANGE OF STATION ORDERS TO ANY OTHER RESTRICTED STATION OVERSEAS, COULD ACCRUE EXCEPT UPON THE EXPRESS AUTHORIZATION OF THE OVERSEAS COMMANDER. IT FOLLOWS THAT PAYMENT IS NOT AUTHORIZED ON THE SUBMITTED VOUCHERS AND THEY WILL BE RETAINED HERE.

TO THE EXTENT THAT ANY PRIOR DECISIONS MAY HAVE INDICATED A DIFFERENT VIEW, THEY NO LONGER WILL BE FOLLOWED.