B-139778, JUL. 21, 1959

B-139778, JUL. 21, 1959

TO MRS. MATILDE BIDED AGASID:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 9, 1958, RECEIVED IN THIS OFFICE ON MAY 21, 1959, BY REFERENCE FROM THE U.S. ARMY FINANCE CENTER, REQUESTING RECONSIDERATION OF OUR SETTLEMENT OF NOVEMBER 14, 1958, WHICH PARTIALLY DISALLOWED YOUR CLAIM AS GUARDIAN OF YOUR HUSBAND, SERGEANT MARCUS G. AGASID, FOR REIMBURSEMENT FOR TRAVEL EXPENSES INCIDENT TO HIS DISABILITY RETIREMENT FROM THE MILITARY SERVICE.

THE RECORDS SHOW THAT SERGEANT AGASID WAS TRANSFERRED FROM LETTERMAN ARMY HOSPITAL, SAN FRANCISCO, TO THE VETERANS ADMINISTRATION HOSPITAL, LOS ANGELES, CALIFORNIA, ON JULY 24, 1951, AND THAT HE REMAINED AT THAT HOSPITAL CONTINUOUSLY UNTIL SEPTEMBER 24, 1952. HE WAS PLACED ON THE RETIRED LIST BECAUSE OF PHYSICAL DISABILITY ON AUGUST 31, 1951. AFTER A DETERMINATION BY THE VETERANS ADMINISTRATION MEDICAL STAFF THAT SERGEANT AGASID HAD ATTAINED MAXIMUM HOSPITAL BENEFIT HE WAS RELEASED ON SEPTEMBER 24, 1952. THE RECORD SHOWS THAT SHORTLY THEREAFTER HE TRAVELED TO SAN FRANCISCO VIA BUS AT HIS OWN EXPENSE AND ON APRIL 8, 1953, HE LEFT FOR MANILA, PHILIPPINE ISLANDS, BY COMMERCIAL STEAMSHIP AND ARRIVED THERE ON MAY 2, 1953.

IN OUR SETTLEMENT DATED NOVEMBER 14, 1958, THE SUM OF $28.20WAS ALLOWED ON YOUR CLAIM BASED ON MILEAGE FROM THE VETERANS ADMINISTRATION CENTER, LOS ANGELES, CALIFORNIA, TO SAN FRANCISCO, CALIFORNIA. THAT PART OF YOUR CLAIM FOR REIMBURSEMENT OF SERGEANT AGASID'S TRAVEL FROM SAN FRANCISCO TO MANILA, PHILIPPINE ISLANDS, WAS DISALLOWED ON THE BASIS THAT GOVERNMENT TRANSPORTATION WAS AVAILABLE FROM SAN FRANCISCO TO MANILA, PHILIPPINE ISLANDS, DURING THE PERIOD IN QUESTION.

IN YOUR LETTER OF DECEMBER 9, 1958, YOU STATE THAT AFTER SERGEANT AGASID TRAVELED TO SAN FRANCISCO HE WAS PUT IN THE CUSTODY OF A SOCIAL WORKER ASSOCIATED WITH THE VETERANS ADMINISTRATION AND THAT SERGEANT AGASID'S FAILURE TO USE THE AVAILABLE GOVERNMENT TRANSPORTATION WAS DUE TO THE FACT THAT THE SOCIAL WORKER WAS NOT AWARE OF THE AVAILABILITY OF GOVERNMENT TRANSPORTATION, OR PREFERRED TRAVEL BY COMMERCIAL VESSEL. YOU STATE THAT SERGEANT AGASID ACCEPTED ANY MEANS PRESENTED HIM FOR HIS TRAVEL BECAUSE HE WAS MENTALLY INCOMPETENT AND UNABLE TO MAKE ANY DECISIONS ON HIS OWN.

THE TRANSPORTATION OF MILITARY PERSONNEL IS GOVERNED BY SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 802, AND BY REGULATIONS PROMULGATED PURSUANT THERETO. ARMY REGULATION 55-117 DATED JANUARY 23, 1951, SETS OUT THE POLICY GOVERNING PASSENGER TRAVEL TO, FROM, AND BETWEEN AREAS BEYOND THE CONTINENTAL UNITED STATES AND PROVIDES AS FOLLOWS:

"1. GENERAL--- A. THE POLICIES CONTAINED HEREIN GOVERN THE TRANSPORTATION OF ALL PERSONS OF THE DEPARTMENT OF DEFENSE (MILITARY, CIVILIAN EMPLOYEES, AND DEPENDENTS OF BOTH) TRAVELING AT GOVERNMENT EXPENSE TO, FROM, AND BETWEEN AREAS BEYOND THE CONTINENTAL UNITED STATES.

"C. IT IS INTENDED THAT GOVERNMENT TRANSPORTATION BE UTILIZED WHEN IT IS AVAILABLE AND MEETS THE REQUIREMENTS OF THE SERVICES.

"2.C. WHEN IS THE ONLY GOVERNMENT TRANSPORTATION AVAILABLE * * * ALL PERSONNEL WILL BE REQUIRED TO UTILIZE MSTS FACILITIES.'

A REPORT FURNISHED BY THE CHIEF OF TRANSPORTATION,DEPARTMENT OF THE ARMY, STATES THAT MILITARY SEA TRANSPORTATION SERVICE VESSELS OPERATED BETWEEN SAN FRANCISCO, CALIFORNIA, AND MANILA, AND THAT MILITARY AIR TRANSPORTATION SERVICE AIRCRAFT OPERATED BETWEEN TRAVIS AIR FORCE BASE, CALIFORNIA, AND CLARK AIR FORCE BASE, MANILA, DURING THE PERIOD IN QUESTION. SUCH SERVICE WAS AVAILABLE FOR ALL ELIGIBLE PERSONNEL. YOUR STATEMENT THAT SERGEANT AGASID WAS INCOMPETENT AT THE TIME THAT THE TRAVEL TOOK PLACE IS NOT ESTABLISHED BY THE AVAILABLE RECORD. BUT EVEN IF IT WERE TO BE ESTABLISHED THAT SERGEANT AGASID WAS INCOMPETENT AT THAT TIME, THE ABOVE QUOTED REGULATION MAKES NO EXCEPTION IN SUCH CASES AND THIS OFFICE WOULD NOT BE AUTHORIZED TO ALLOW YOUR CLAIM IN THE ABSENCE OF A STATUTE OR REGULATION SO PROVIDING. FURTHERMORE, THE DUTY OF COMPLYING WITH THE ABOVE REGULATION RESTS UPON THE TRAVELER, AND RELIANCE UPON THE SOCIAL WORKER, IF SUCH WERE THE CASE, PROVIDES NO BASIS FOR RELIEVING SERGEANT AGASID OF THAT DUTY.

ACCORDINGLY, SINCE IT IS CLEAR FROM THE RECORD THAT SERGEANT AGASID FAILED TO UTILIZE AVAILABLE GOVERNMENT TRANSPORTATION THERE IS NO LEGAL BASIS FOR REIMBURSEMENT FOR THE COST OF TRANSPORTATION PERFORMED BY COMMERCIAL VESSEL AT PERSONAL EXPENSE. THE DISALLOWANCE OF YOUR CLAIM WAS PROPER AND IS SUSTAINED.