B-123706, AUG. 5, 1955

B-123706, AUG. 5, 1955

TO COLONEL CHRISTIAN HILDEBRAND, USA, RETIRED:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 26, 1955, IN EFFECT REQUESTING REVIEW OF THE SETTLEMENT OF MARCH 21, 1950, WHICH ALLOWED YOU $2.32 AS A MONETARY ALLOWANCE FOR YOUR WIFE'S TRAVEL FROM BROOKLYN, NEW YORK, TO RENO, NEVADA, NOT TO EXCEED THE AUTHORIZED ALLOWANCE FROM STATELINE, CALIFORNIA, TO RENO, NEVADA.

BY PARAGRAPH 34, SPECIAL ORDERS NO. 153, HEADQUARTERS, NURNBERG, MILITARY POST, DATED JULY 6, 1949, ISSUED UNDER THE PROVISIONS OF DEPARTMENT OF THE ARMY PAMPHLET 29-14, MAY 1948, YOUR WIFE WAS AUTHORIZED TO PROCEED FROM YOUR OVERSEAS STATION TO BREMERHAVEN, GERMANY, FOR FURTHER MOVEMENT BY ARMY TRANSPORT TO NEW YORK, NEW YORK, IT BEING SPECIFICALLY PROVIDED THAT TRANSPORTATION FROM NEW YORK PORT OF EMBARKATION TO DESTINATION IN THE UNITED STATES (HOME ADDRESS: C/O MRS. H. B. WILSON, ELK POINT, ZEPHYR COVE, NEVADA) WOULD BE "AT THE EXPENSE OF THE INDIVIDUAL, WITHOUT REIMBURSEMENT.' BY PARAGRAPH 16, SPECIAL ORDERS NO. 193, HEADQUARTERS, NURNBERG MILITARY POST, DATED AUGUST 22, 1949, YOU WERE RELIEVED FROM ASSIGNMENT AND DUTY AT YOUR OVERSEAS STATION AND ASSIGNED TO CAMP KILMER, NEW JERSEY, WHERE, BY PARAGRAPH 30, SPECIAL ORDERS NO. 181, DATED SEPTEMBER 16, 1949, YOU WERE RETIRED FROM ACTIVE SERVICE EFFECTIVE SEPTEMBER 30, 1949. YOUR WIFE WAS LOCATED AT STATELINE, CALIFORNIA, WHEN YOU RECEIVED ORDERS RETURNING YOU TO THE UNITED STATES, AND, PRESUMABLY, WHEN YOUR RETIREMENT ORDERS WERE ISSUED. YOU SELECTED RENO, NEVADA, AS YOUR HOME UPON RETIREMENT. THE AMOUNT ALLOWED BY THE SETTLEMENT REPRESENTED REIMBURSEMENT FOR YOUR WIFE'S TRAVEL THERETO FROM STATELINE, CALIFORNIA. YOU CONTEND THAT, INASMUCH AS YOUR RETIREMENT AFTER MORE THAN 30 YEARS' SERVICE WAS MANDATORY UPON YOUR APPLICATION (1243 R.S., 10 U.S.C. 943), IT WAS POSSIBLE FOR YOU TO OBTAIN TRANSPORTATION AT GOVERNMENT EXPENSE FOR YOUR WIFE IN ADVANCE OF ORDERS DIRECTING YOUR OWN TRAVEL. ALSO, YOU HAVE FURNISHED A CLIPPING FROM THE ARMY-NAVY-AIR FORCE REGISTER OF FEBRUARY 19, 1955, IN WHICH REFERENCE IS MADE TO OUR DECISION OF NOVEMBER 22, 1954, B-121781. YOU INDICATE THAT THAT DECISION IS THE BASIS OF YOUR LETTER.

AT THE TIME THE TRAVEL HERE INVOLVED WAS PERFORMED, ARMY REGULATIONS 35- 4880, DATED DECEMBER 13, 1948, BASED UPON PROVISIONS OF LAW RELATING TO TRANSPORTATION OF DEPENDENTS OF SERVICE PERSONNEL AT GOVERNMENT EXPENSE, CONTAINED PROVISIONS PERTINENT TO YOUR CLAIM. THOSE REGULATIONS PROVIDED (PARAGRAPH 1) THAT OFFICERS, WHEN ORDERED TO MAKE A PERMANENT CHANGE OF STATION, ARE ENTITLED TO TRANSPORTATION OF DEPENDENTS FROM THE OLD STATION TO THE NEW, AND THAT (PARAGRAPH 4) THE WORDS "PERMANENT CHANGE OF STATION" SHALL INCLUDE THE CHANGE FROM LAST STATION TO HOME IN CONNECTION WITH RETIREMENT. THE REGULATIONS FURTHER PROVIDE (PARAGRAPH 8) THAT DEPENDENTS OF MILITARY PERSONNEL ON DUTY AT STATIONS OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES, AS MAY BE DETERMINED BY THE SECRETARY OF THE ARMY, MAY, PRIOR TO THE ISSUANCE OF ORDERS FOR THE RELIEF OF SUCH PERSONNEL FROM THEIR STATIONS, BE MOVED FROM THOSE STATIONS TO SUCH LOCATIONS AS MAY BE DESIGNATED BY THE PERSONNEL, AND LATER FROM THOSE LOCATIONS TO THE DUTY STATIONS TO WHICH THE PERSONNEL MAY BE ORDERED. HOWEVER, THE REGULATION DOES NOT APPLY TO DEPENDENTS WHO WERE MOVED TO AN OVERSEAS STATION UPON PERMANENT CHANGE OF STATION WHICH APPEARS TO BE THE SITUATION OF YOUR DEPENDENT. SUCH DEPENDENTS MAY NOT BE RETURNED TO THE UNITED STATES UNDER THE REGULATION BUT A RIGHT TO TRANSPORTATION WILL ACCRUE ONLY WHEN THE SERVICEMAN ON WHOM THEY ARE DEPENDENT IS RELIEVED FROM ASSIGNMENT AND DUTY OVERSEAS AND ASSIGNED TO PERMANENT DUTY IN THE UNITED STATES.

AT THE TIME THE ORDERS AUTHORIZING YOUR WIFE TO TRAVEL WERE ISSUED, NEITHER YOUR RETURN TO THE UNITED STATES NOR YOUR RETIREMENT HAD BEEN ORDERED. THEREFORE, YOU WERE NOT ENTITLED TO HAVE HER TRAVEL AT GOVERNMENT EXPENSE. AT YOUR REQUEST, HOWEVER, SHE WAS FURNISHED TRANSPORTATION TO THE UNITED STATES ABOARD AN ARMY TRANSPORT, APPARENTLY ON A SPACE AVAILABLE BASIS, PURSUANT TO THE DEPARTMENT OF THE ARMY PAMPHLET MENTIONED ABOVE. HER TRAVEL AUTHORIZATION SPECIFICALLY PROVIDED THAT HER TRAVEL FROM THE "NEW YORK PORT OF EMBARKATION" TO DESTINATION IN THE UNITED STATES WOULD BE AT "THE EXPENSE OF THE INDIVIDUAL, WITHOUT REIMBURSEMENT.' ON THE BASIS OF THE ORDERS DIRECTING YOUR RETIREMENT YOU WERE ENTITLED TO TRANSPORTATION, OR AN ALLOWANCE IN LIEU OF TRANSPORTATION, FOR YOUR WIFE FROM THE PLACE WHERE SHE WAS THEN LOCATED TO YOUR HOME, NOT TO EXCEED THE AUTHORIZED ALLOWANCE FROM YOUR LAST STATION TO YOUR HOME. AT THAT TIME YOUR WIFE WAS LOCATED AT A POINT NEAR THE HOME OF YOUR SELECTION AND THE ONLY TRAVEL REQUIRED OR PERFORMED BY HER WAS FROM THAT POINT TO YOUR HOME. YOU HAVE BEEN REIMBURSED FOR THAT TRAVEL AND THERE IS NO LEGAL BASIS FOR THE ALLOWANCE OF ANY ADDITIONAL AMOUNT. THE CLIPPING WHICH ACCOMPANIED YOUR LETTER RELATES TO A DECISION BASED ON A SPECIFIC PROVISION OF JOINT TRAVEL REGULATIONS. THOSE REGULATIONS DID NOT BECOME EFFECTIVE UNTIL APRIL 1, 1951, AND, THEREFORE, ARE NOT APPLICABLE TO YOUR CLAIM.