B-140367, SEP. 28, 1959

B-140367, SEP. 28, 1959

TO SECOND LIEUTENANT JACK A. CRAIG, JR., HEADQUARTERS AND HEADQUARTERS DETACHMENT:

YOUR LETTER OF JULY 20, 1959, REQUEST REVIEW OF SETTLEMENT DATED JULY 14, 1959, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT OF THE COST OF YOUR WIFE'S TRANSPORTATION FROM BERLIN, GERMANY, TO NEW YORK, NEW YORK.

PURSUANT TO YOUR ORDERS OF JUNE 27, 1958, YOU WERE RELIEVED FROM YOUR OVERSEAS DUTY STATION AND DIRECTED TO PROCEED ON OR ABOUT JULY 7, 1958, TO THE UNITED STATES FOR FURTHER ASSIGNMENT TO INFANTRY OFFICERS CANDIDATE SCHOOL, FORT BENNING, GEORGIA. YOU TRAVELED TO THE UNITED STATES BY AIR TRANSPORTATION ON JULY 8, 1958. ON SEPTEMBER 8, 1958, YOUR WIFE, WHOM YOU MARRIED ON JULY 2, 1958, TRAVELED TO THE UNITED STATES BY COMMERCIAL TRANSPORTATION AT PERSONAL EXPENSE. YOUR CLAIM FOR REIMBURSEMENT FOR THE COST OF HER TRAVEL WAS DISALLOWED BY SETTLEMENT OF JULY 14, 1959, FOR THE REASONS THAT GOVERNMENT TRANSPORTATION WAS AVAILABLE FOR ELIGIBLE DEPENDENTS.

IN YOUR LETTER YOU SAY THAT YOU PERSONALLY TYPED A REQUEST FOR YOUR WIFE'S TRANSPORTATION AND PLACED IT IN THE HANDS OF THE REDEPLOYMENT OFFICE IN BERLIN. WHEN YOUR WIFE REPORTED THERE AFTER SHE HAD OBTAINED HER VISA, IN ACCORDANCE WITH YOUR INSTRUCTIONS, SHE WAS ERRONEOUSLY ADVISED THAT SHE WAS NOT ELIGIBLE FOR GOVERNMENT TRANSPORTATION BECAUSE HER MARRIAGE TO YOU TOOK PLACE AFTER THE EFFECTIVE DATE OF YOUR ORDERS OF JUNE 27, 1958. YOU CONTEND, IN SUBSTANCE, THAT YOU ARE ENTITLED TO REIMBURSEMENT FOR YOUR WIFE'S TRAVEL BECAUSE THE GOVERNMENT IS RESPONSIBLE FOR ERRONEOUS ACTS OF ITS AGENTS IN REFUSING TO FURNISH SUCH TRANSPORTATION TO HER.

THE TRANSPORTATION OF DEPENDENTS OF MEMBERS OF THE UNIFORMED SERVICES IS GOVERNED BY THE JOINT TRAVEL REGULATIONS PROMULGATED PURSUANT TO SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 253 (C). PARAGRAPH 7G02-1B OF THE REGULATIONS PROVIDES THAT FOR TRANSOCEANIC TRAVEL OF DEPENDENTS FROM AREAS OUTSIDE THE UNITED STATES, GOVERNMENT AIRCRAFT OR VESSELS WILL BE UTILIZED IF AVAILABLE. PARAGRAPH 52, ARMY REGULATIONS 55-46, DATED OCTOBER 25, 1946, SETS OUT THE PROCEDURE TO BE FOLLOWED BY MEMBERS IN OBTAINING TRANSPORTATION FOR THEIR DEPENDENTS FROM AN OVERSEA COMMAND TO THE UNITED STATES AND PROVIDES AS FOLLOWS:

"FROM OVERSEA COMMANDS. A. APPLICATION. APPLICATION FOR TRANSPORTATION OF DEPENDENTS FROM AN OVERSEA COMMAND WILL BE MADE TO THE OVERSEA COMMANDER CONCERNED.

"B. PROCESSING. TH OVERSEA COMMANDER WILL PROCESS THE APPLICATION, ARRANGE FOR NECESSARY TRANSPORTATION, ASSIGN A PRIORITY OF TRAVEL, ISSUED THE NECESSARY TRAVEL ORDERS OR AUTHORIZATIONS AND DESIGNATE APPROPRIATE AGENCIES UNDER HIS COMMAND TO FURNISH ASSISTANCE AND SERVICES EQUIVALENT TO THOSE FURNISHED DEPENDENTS IN THE UNITED STATES.

"C. LIAISON. OVERSEA COMMANDERS WILL MAINTAIN CLOSE LIAISON AND COOPERATION WITH THE APPROPRIATE UNITED STATES CONSUL AND WILL INSURE THAT ALL ALIEN DEPENDENTS ARE ELIGIBLE AND PROPERLY DOCUMENTED FOR ENTRY INTO THE UNITED STATES PRIOR TO BEING FURNISHED TRANSPORTATION. * * *"

IN RESPONSE TO AN INQUIRY MADE IN YOUR CASE THE CHIEF OF TRANSPORTATION, DEPARTMENT OF THE ARMY, REPORTED THAT GOVERNMENT TRANSPORTATION WAS AVAILABLE FOR ALL DEPENDENTS ELIGIBLE TO TRAVEL TO THE UNITED STATES DURING THE PERIOD INVOLVED. YOUR REQUEST FOR TRANSPORTATION FOR YOUR WIFE APPEARS TO HAVE BEEN MADE PRIOR TO THE DATE OF ISSUANCE OF YOUR WIFE'S VISA AND THEREFORE BEFORE SHE WAS ELIGIBLE TO TRAVEL TO THE UNITED STATES.

UNDER THE REGULATIONS IT WAS YOUR RESPONSIBILITY TO MAKE PROPER APPLICATION TO THE OVERSEA COMMANDER FOR YOUR WIFE'S TRAVEL TO THE UNITED STATES. THE RECORD SHOWS THAT THE REQUIREMENTS OF THE REGULATIONS WERE NOT MET IN YOUR CASE BECAUSE YOUR WIFE'S VISA WAS NOT GIVEN TO THE PROPER AUTHORITIES. IN VIEW OF THE REPORT FROM THE CHIEF OF TRANSPORTATION, IT MUST BE CONCLUDED THAT IF YOUR WIFE'S VISA HAD BEEN GIVEN TO THE OVERSEA COMMANDER, IN ACCORDANCE WITH THE REGULATIONS, SHE WOULD HAVE BEEN FURNISHED TRANSPORTATION TO THE UNITED STATES. THE FACT THAT SHE BROUGHT HER VISA TO THE REDEPLOYMENT OFFICE DID NOT DISCHARGE YOUR RESPONSIBILITY IN THE MATTER, NOR DOES THE FACT THAT SOME OTHER EMPLOYEE GAVE HER ERRONEOUS INFORMATION FURNISH US WITH ANY LEGAL BASIS TO ALLOW YOUR CLAIM. IT IS WELL SETTLED THAT THE GOVERNMENT IS NOT BOUND BY THE NEGLIGENT OR ERRONEOUS ACTS OF ITS OFFICERS OR AGENTS IN THE ABSENCE OF A STATUTE SO PROVIDING. ROBERTSON V. SICHEL, 127 U.S. 507, 515. SINCE GOVERNMENT TRANSPORTATION WAS AVAILABLE, AND IN VIEW OF THE PLAIN REQUIREMENTS OF THE REGULATIONS THAT GOVERNMENT TRANSPORTATION MUST BE UTILIZED WHEN AVAILABLE, THERE IS NO LEGAL BASIS FOR REIMBURSEMENT FOR YOUR WIFE'S OCEAN TRAVEL.

ACCORDINGLY, THE SETTLEMENT OF JULY 14, 1959, WAS CORRECT AND IS SUSTAINED.