B-131979, AUG. 8, 1957

B-131979, AUG. 8, 1957

TO LIEUTENANT COMMANDER JAMES WILLIAM SMITH, USN, RETIRED:

REFERENCE IS MADE TO YOUR LETTER DATED APRIL 22, 1957, AND ENCLOSURE, TRANSMITTED TO US BY THE DEPARTMENT OF THE NAVY. YOU REQUEST REVIEW OF OUR SETTLEMENT WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT OF YOUR DEPENDENTS' (WIFE AND THREE CHILDREN) TRAVEL FROM NEW YORK, NEW YORK, TO BIRMINGHAM, ALABAMA, DURING THE PERIOD AUGUST 20 TO NOVEMBER 1, 1954.

BY ORDERS DATED JUNE 14, 1954, YOU WERE RELIEVED OF ALL ACTIVE DUTY AND TRANSFERRED TO THE UNITED STATES NAVAL FLEET RESERVE AND WHEN DIRECTED BY YOUR COMMANDING OFFICER IN NOVEMBER 1954, YOU WERE TO PROCEED TO A PORT IN THE UNITED STATES FOR TEMPORARY DUTY IN CONNECTION WITH SEPARATION PROCESSING. ON AUGUST 1, 1954, YOUR DEPENDENTS TRAVELED FROM CANNES, FRANCE, TO NEW YORK, NEW YORK, VIA COMMERCIAL WATER TRANSPORTATION AT GOVERNMENT EXPENSE. THEY ARRIVED IN NEW YORK ON AUGUST 8, 1954, AND TRAVELED TO BIRMINGHAM, ALABAMA, WHERE THEY REMAINED UNTIL JANUARY 18, 1956, WHEN THEY LEFT FOR TAMPA, FLORIDA. ON SEPTEMBER 7, 1954, YOU REQUESTED CANCELLATION OF YOUR ORDERS OF JUNE 14, 1954, IN ORDER THAT YOU MIGHT BE ELIGIBLE TO QUALIFY FOR BENEFITS OF PROPOSED LEGISLATION (ACT OF AUGUST 9, 1955, 69 STAT. 614) WHICH WOULD PERMIT TEMPORARY OFFICERS WITH PERMANENT ENLISTED STATUS TO RETIRE AT THE HIGHEST RANK SATISFACTORILY HELD. ON OCTOBER 7, 1954, YOUR ORDERS OF JUNE 14, 1954, WERE CANCELED AND YOU WERE DIRECTED TO CONTINUE YOUR PRESENT DUTY. BY ORDERS DATED AUGUST 6, 1955, YOU WERE RELIEVED FROM YOUR OVERSEAS DUTY ASSIGNMENT AND DIRECTED TO RETURN TO THE UNITED STATES FOR TEMPORARY DUTY IN CONNECTION WITH SEPARATION PROCESSING. BY ORDERS DATED OCTOBER 21, 1955, YOU WERE RELIEVED OF ALL ACTIVE DUTY AND TRANSFERRED TO THE RETIRED LIST WITH THE RANK OF LIEUTENANT COMMANDER, EFFECTIVE NOVEMBER 1, 1955. YOU SUBSEQUENTLY SELECTED TAMPA, FLORIDA, AS YOUR PERMANENT HOME. ON JANUARY 21, 1956, YOU SUBMITTED A VOUCHER FOR REIMBURSEMENT FOR YOUR DEPENDENTS' TRAVEL FROM NEW YORK, NEW YORK, TO TAMPA, FLORIDA. BY SETTLEMENT DATED APRIL 4, 1957, YOU WERE ALLOWED REIMBURSEMENT IN THE SUM OF $121.68 FOR THE COST OF THEIR TRAVEL FROM BIRMINGHAM, ALABAMA, TO TAMPA, FLORIDA. REIMBURSEMENT FOR THE COST OF THEIR TRAVEL PERFORMED FROM NEW YORK TO BIRMINGHAM WAS DISALLOWED FOR THE REASON THAT THEY PERFORMED SUCH TRAVEL PRIOR TO THE EFFECTIVE DATE OF THE ORDERS OF JUNE 14, 1954, WHICH WERE CANCELED BY THE ORDERS OF OCTOBER 7, 1954.

SUBSECTIONS 303 (A) AND (C) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813, 814, PROVIDE THAT UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, MEMBERS OF THE UNIFORMED SERVICES SHALL BE ENTITLED TO RECEIVE TRAVEL AND TRANSPORTATION ALLOWANCES FOR TRAVEL PERFORMED UNDER COMPETENT ORDERS UPON A CHANGE OF PERMANENT STATION, AS WELL AS TRANSPORTATION FOR DEPENDENTS, OR TO REIMBURSEMENT THEREFOR, OR TO A MONETARY ALLOWANCE IN LIEU OF SUCH TRANSPORTATION. PARAGRAPH 7000, JOINT TRAVEL REGULATIONS, PROMULGATED PURSUANT TO THE ACT AND IN EFFECT AT THE TIME THE TRAVEL WAS PERFORMED PROVIDES THAT MEMBERS OF THE UNIFORMED SERVICES WERE ENTITLED TO TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE UPON A PERMANENT CHANGE OF STATION FOR TRAVEL PERFORMED FROM THE OLD TO THE NEW STATION OR BETWEEN POINTS OTHERWISE AUTHORIZED. IT HAS LONG BEEN RECOGNIZED THAT NEW ORDERS CANCEL OLD ORDERS AND THAT ANY TRAVEL PERFORMED BY THE MEMBER OR HIS DEPENDENTS PRIOR TO THE EFFECTIVE DATE OF SUCH CANCELED ORDERS MUST BE AT THE MEMBER'S EXPENSE. IN YOUR CASE, THE ORDERS OF OCTOBER 7, 1954, CANCELED THE CHANGE OF STATION ORDERS OF JUNE 14, 1954, PRIOR TO THEIR EFFECTIVE DATE, NOVEMBER 1954 SO THAT YOUR RIGHT TO TRANSPORTATION FOR YOUR DEPENDENTS FOR THEIR TRAVEL FROM THE NEW YORK PORT OF DEBARKATION TO YOUR SELECTED HOME, TAMPA, FLORIDA, CLEARLY BECAME LIMITED TO THAT WHICH ACCRUED UNDER YOUR ORDERS OF AUGUST 6, 1955, THAT IS FOR THEIR TRAVEL FROM BIRMINGHAM, ALABAMA, THE PLACE WHERE THEY WERE LOCATED WHEN YOU RECEIVED THESE ORDERS, TO TAMPA, FLORIDA.

CONCERNING YOUR CONTENTION THAT YOUR CLAIM SHOULD BE ALLOWED FOR THE REASON THAT THE SECOND OR FINAL ORDERS WERE FOR EXACTLY THE SAME PURPOSE AND TRAVEL AS THE ORIGINAL (CANCELED) ORDERS AND DID NOT INVOLVE ADDITIONAL EXPENSE TO THE GOVERNMENT, YOU ARE ADVISED THAT WE MAY ALLOW ONLY THOSE CLAIMS WHICH ARE AUTHORIZED BY LAW. UNDER THE LAW AND THE APPLICABLE REGULATIONS YOU WERE ENTITLED ONLY TO REIMBURSEMENT ON A MILEAGE BASIS FOR THE TRAVEL OF YOUR DEPENDENTS COMPUTED ON THE DISTANCE FROM BIRMINGHAM, ALABAMA, TO TAMPA, FLORIDA. SINCE YOU WERE PAID THE AMOUNT DUE ON SUCH BASIS, THERE IS NO AUTHORITY FOR PAYMENT OF ANY ADDITIONAL AMOUNT.

ACCORDINGLY, THE SETTLEMENT OF APRIL 4, 1957, WAS CORRECT AND IS SUSTAINED.