B-134068, OCT. 25, 1957

B-134068, OCT. 25, 1957

TO DR. HOWARD E. ROSS:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 2, 1957, REQUESTING RECONSIDERATION OF OUR SETTLEMENT DATED SEPTEMBER 25, 1957, WHICH DISALLOWED YOUR CLAIM FOR MONETARY ALLOWANCES FOR TRAVEL OF YOUR DEPENDENTS (WIFE, SON AND DAUGHTER, AGES 15 AND 11, RESPECTIVELY), AND FOR REIMBURSEMENT OF EXPENSES INCURRED FOR THE TRANSPORTATION OF YOUR HOUSEHOLD GOODS FROM FORT CAMPBELL, KENTUCKY, TO WATERVLIET, MICHIGAN, DURING 1956.

THE RECORD SHOWS THAT YOU WERE ASSIGNED TO ACTIVE PERMANENT DUTY AS A LIEUTENANT COLONEL (USAR) WITH THE DENTAL DETACHMENT, HEADQUARTERS SECTION, 101ST AIRBORNE DIVISION AND FORT CAMPBELL, FORT CAMPBELL, KENTUCKY, WHEN YOUR DEPENDENTS TRAVELED FROM THAT STATION TO YOUR HOME OF RECORD--- WATERVLIET, MICHIGAN, FEBRUARY 17-19, 1956, AT PERSONAL EXPENSE. THEREAFTER, DURING MARCH 1956, YOUR HOUSEHOLD GOODS AND PERSONAL EFFECTS WEIGHING 6,020 POUNDS ARE SHOWN TO HAVE BEEN SHIPPED FROM FORT CAMPBELL TO WATERVLIET BY THE UNITED VAN LINES, INCORPORATED, AT A COST TO YOU OF $470.28. YOUR RELEASE FROM ACTIVE DUTY WAS EFFECTED APRIL 1, 1957, AND YOUR CLAIM FOR MONETARY ALLOWANCES IN LIEU OF TRANSPORTATION IN KIND FOR YOUR DEPENDENTS AND FOR THE SUM EXPENDED FOR TRANSPORTING YOUR HOUSEHOLD EFFECTS TO YOUR HOME WAS DISALLOWED BY THE SETTLEMENT OF SEPTEMBER 25, 1957, FOR THE REASONS THERE STATED.

FROM YOUR LETTER REQUESTING RECONSIDERATION OF THE SETTLEMENT IT IS NOTED THAT YOU WERE CONFINED TO AN ARMY HOSPITAL AT FORT CAMPBELL ON JANUARY 31, 1956, AND THAT YOU UNDERWENT SURGERY DURING MARCH 1956. YOU STATE THAT DURING YOUR ILLNESS YOUR WIFE "HAD A NERVOUS BREAKDOWN" AND IT WAS DETERMINED THAT SHE AND YOUR CHILDREN SHOULD RETURN TO YOUR HOME WHERE THEY MIGHT RECEIVE ADEQUATE CARE. ALSO, YOU ALLEGE THAT THE MATTER OF RETURNING YOUR DEPENDENTS AND SHIPPING YOUR EFFECTS TO YOUR HOME PRIOR TO ORDERS DIRECTING YOUR RELEASE FROM THE SERVICE WAS DISCUSSED WITH (ARMY) PERSONNEL IN THE JUDGE ADVOCATE'S OFFICE, THE TRANSPORTATION OFFICE, AND AT FIFTH ARMY HEADQUARTERS. YOU INFER THAT YOU WERE ASSURED THAT UPON PRESENTING YOUR CLAIM WITH PAID INVOICES AFTER DISCHARGE, YOU WOULD RECEIVE REIMBURSEMENT OF THE AMOUNT FOUND DUE. IN SUPPORT OF YOUR CLAIM YOU HAVE PRESENTED A CERTIFICATE DATED JULY 18, 1957, SIGNED BY COLONEL RULUFF F. LEVERICH, READING AS FOLLOWS:

"LT. COLONEL HOWARD E. ROSS WAS UNDER MY COMMAND IN THE DENTAL DETACHMENT, 3400-1 SU, FORT CAMPBELL, KENTUCKY, WHEN HIS HOUSEHOLD GOODS WERE SHIPPED TO HIS HOME IN WATERVLIET, MICHIGAN, DURING MARCH 1955. LT. COLONEL ROSS WAS A DENTAL OFFICER ON DUTY FOR A TWO YEAR PERIOD FOR WHICH A DEFINITE SEPARATION DATE IS ESTABLISHED AND WELL KNOWN AT THE TIME OF ENTRY INTO SERVICE AND WHICH CAUSES THE SEPARATION DATE TO BE AUTOMATIC. DUE TO ILLNESS OF HIS WIFE IT WAS BELIEVED ADVISABLE THAT SHE AND FAMILY RETURN TO THEIR HOME. IN COMPLIANCE WITH A REQUEST FROM LT. COLONEL ROSS I APPROVED A LEAVE FOR HIM TO ACCOMPLISH THIS MOVE.'

THE JOINT TRAVEL REGULATIONS ISSUED PURSUANT TO SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 814, PROVIDE FOR TRANSPORTATION IN KIND (OR MONETARY ALLOWANCES IN LIEU OF SUCH TRANSPORTATION) FOR DEPENDENTS, AND FOR TRANSPORTATION (WITHIN PRESCRIBED WEIGHT ALLOWANCES) OF HOUSEHOLD GOODS OF MEMBERS OF THE UNIFORMED SERVICES WHEN ORDERED TO MAKE A PERMANENT CHANGE OF STATION, INCLUDING THE CHANGE FROM HOME TO FIRST DUTY STATION AND FROM LAST STATION TO HOME. PARAGRAPH 7000-9 (CHANGE 43, EFFECTIVE FEBRUARY 1, 1956), SPECIFICALLY PRECLUDES PAYMENT OF MONETARY ALLOWANCE TO MEMBERS FOR DEPENDENTS' TRAVEL "WHERE THE DEPENDENTS DEPARTED OLD PERMANENT STATION PRIOR TO THE ISSUANCE OF ORDERS, AND THE VOUCHER IS NOT SUPPORTED BY A CERTIFICATE OF THE COMMANDING OFFICER, OR HIS DESIGNATED REPRESENTATIVE, OF THE HEADQUARTERS ISSUING THE ORDERS THAT THE MEMBER REPRESENTATIVE, OF THE HEADQUARTERS CHANGE OF STATION ORDERS THAT SUCH ORDERS WOULD BE ISSUED.' EVEN THOUGH A DATE FOR THE RELEASE OF A MEMBER MAY BE DESIGNATED IN HIS ORDERS TO ACTIVE DUTY, FURTHER ORDERS ARE REQUIRED TO EFFECTUATE RELEASE FROM THE SERVICE, AS IS EVIDENCED BY YOUR ORDERS DATED MARCH 25 EFFECTIVE APRIL 1, 1957. ENTITLEMENT TO MONETARY ALLOWANCES FOR TRAVEL PERFORMED IS DEPENDENT UPON THE MEMBER'S ORDERS IN THE ABSENCE OF A SUPPORTING CERTIFICATE AS CONTEMPLATED BY THE REGULATIONS. THE ABOVE-QUOTED REGULATORY PROVISIONS CONCERNING TRAVEL OF DEPENDENTS WHO DEPART FROM THE OLD STATION IN ADVANCE OF AUTHORIZATION CONTEMPLATES DEPARTURE DURING THE COMPARATIVELY SHORT PERIOD OF TIME WHICH MAY ELAPSE BETWEEN THE TIME OF A DETERMINATION TO ORDER A MEMBER TO MAKE A CHANGE OF STATION AND THE DATE ON WHICH ORDERS DIRECTING SUCH CHANGE ARE ACTUALLY ISSUED. MERE GENERAL INFORMATION AS TO THE TIME OF EVENTUAL RELEASE FROM ACTIVE DUTY, WHICH NOT INFREQUENTLY IS CONTAINED IN THE MEMBER'S ORDERS TO ACTIVE DUTY, OR MAY BE DETERMINED FROM THE CONTEMPLATED DURATION OF A TOUR OF DUTY, IS INSUFFICIENT TO MEET THE ABOVE-QUOTED REGULATORY REQUIREMENTS. SEE 34 COMP. GEN. 241.

PARAGRAPH 8014-1 (CHANGE 25) OF THE JOINT TRAVEL REGULATIONS, IN EFFECT DURING MARCH 1956, PROVIDES THAT HOUSEHOLD GOODS MAY NOT BE SHIPPED AT GOVERNMENT EXPENSE PRIOR TO THE ISSUANCE OF ORDERS EXCEPT UPON A DETERMINATION BY THE APPROPRIATE AUTHORITY OF THE SERVICE CONCERNED THAT SHIPMENT IN ADVANCE OF ORDERS IS NECESSARY BECAUSE OF EMERGENCY, EXIGENCY OF THE SERVICE, OR SERVICE NECESSITY. AS INDICATED ABOVE THE COMMANDING OFFICER'S CERTIFICATE WHICH ACCOMPANIED YOUR CLAIM REASONABLY MAY NOT BE CONSTRUED AS ESTABLISHING THE EXISTENCE OF AN "EMERGENCY" SUCH AS THAT CONTEMPLATED BY THE REGULATIONS SO AS TO PERMIT THE MOVEMENT OF YOUR HOUSEHOLD EFFECTS AT GOVERNMENT EXPENSE MORE THAN ONE YEAR IN ADVANCE OF ORDERS WHICH DIRECTED YOUR RELEASE FROM ACTIVE DUTY. AS YOU WELL KNOW, THE BURDEN IS UPON THE CLAIMANT TO ESTABLISH A CLEAR LIABILITY ON THE UNITED STATES AND THE RIGHT TO RECEIVE PAYMENT UNDER EXISTING REGULATIONS. MOREOVER, ANY INFORMAL ADVICE YOU MAY HAVE RECEIVED TO THE CONTRARY MAY NOT BE CONSIDERED AS AUTHORITY TO INCREASE THE GOVERNMENT'S OBLIGATION.

ACCORDINGLY, ON THE BASIS OF THE PRESENT RECORD, THE SETTLEMENT OF SEPTEMBER 25, 1957, MUST BE AND IS, SUSTAINED.