B-140826, OCT. 29, 1959

B-140826, OCT. 29, 1959

TO DR. DANIEL GOLDSTEIN:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 9, 1959, IN EFFECT REQUESTING REVIEW OF THE SETTLEMENT OF SEPTEMBER 2, 1959, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT FOR YOUR WIFE'S TRAVEL FROM NEW YORK, NEW YORK, TO CHINON, FRANCE, WHILE YOU WERE SERVING AS SECOND LIEUTENANT, DEPARTMENT OF THE ARMY.

BY PARAGRAPH 71, DEPARTMENT OF THE ARMY SPECIAL ORDERS NO. 82, DATED APRIL 26, 1957, UPON COMPLETION OF A COURSE OF INSTRUCTION AT FORT SAM HOUSTON, TEXAS, YOU WERE DIRECTED TO REPORT ON JUNE 10, 1957, TO FORT DIX, NEW JERSEY, FOR FURTHER ASSIGNMENT TO UNITED STATES ARMY, EUROPE. MENTION OF TRAVEL OF YOUR DEPENDENTS WAS MADE IN THOSE ORDERS. PARAGRAPH 33, FORT DIX SPECIAL ORDERS NO. 161, DATED JUNE 10, 1957, YOU WERE DIRECTED TO REPORT TO MCGUIRE AIR FORCE BASE, NEW JERSEY, FOR AIR TRANSPORTATION TO 60TH STATION HOSPITAL, CHINON, FRANCE. THOSE ORDERS LIKEWISE WERE SILENT AS TO TRAVEL OF DEPENDENTS. ON MAY 24, 1957, YOUR APPLICATION FOR CONCURRENT TRAVEL OF YOUR WIFE TO YOUR OVERSEAS STATION WAS DISAPPROVED DUE TO NONAVAILABILITY OF QUARTERS IN THE AREA OF 60TH STATION HOSPITAL. YOU SAY THAT ON JUNE 18, 1957, APPARENTLY AFTER YOUR ARRIVAL AT YOUR OVERSEAS STATION, YOU AGAIN SUBMITTED AN APPLICATION FOR TRAVEL OF DEPENDENTS FOR THE PURPOSE OF BRINGING YOUR WIFE TO YOUR OVERSEAS STATION. IT WAS RETURNED ON JULY 10, 1957, WITHOUT NOTION. YOU SAY THAT YOU RESUBMITTED IT ON JULY 12 AND IT WAS AGAIN RETURNED WITHOUT ACTION. YOU THEN ARRANGED FOR HER TRAVEL TO YOUR OVERSEAS STATION AT PERSONAL EXPENSE, AUGUST 10, 1957.

IN YOUR PRESENT LETTER YOU EXPRESS THE OPINION THAT THE ORDERS OF APRIL 26, 1957, MUST HAVE AUTHORIZED CONCURRENT TRAVEL OF DEPENDENTS INASMUCH AS YOU APPLIED FOR SAME WHILE AT FORT SAM HOUSTON. AS TO THE RETURN OF YOUR APPLICATION THE SECOND TIME, YOU STATE THERE WAS SOME CONFUSION AS TO YOUR ENTITLEMENT TO TRANSPORTATION FOR YOUR WIFE AT GOVERNMENT EXPENSE. YOU FURTHER STATE THAT YOUR WIFE'S TRAVEL WAS AUTHORIZED ACCORDING TO A MESSAGE ENTITLED "ESTABLISHMENT OF POLICY FOR SUPPORT OF AUTHORIZED AND UNAUTHORIZED DEPENDENTS IN USAREUR," ISSUED BY HEADQUARTERS, UNITED STATES ARMY COMMUNICATIONS ZONE, BASE SECTION, POITIERS, DATED AUGUST 2, 1957, AND THAT THE GOVERNMENT WAS NEGLIGENT IN STATING TRANSPORTATION WAS NOT AUTHORIZED.

THE STATUTORY AUTHORITY FOR TRANSPORTATION OF DEPENDENTS OF MEMBERS OF THE ARMED SERVICES IS CONTAINED IN SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 253, WHICH EXPRESSLY PROVIDES THAT TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE UPON A MEMBER'S ORDERED CHANGE OF STATION SHALL BE UNDER SUCH CONDITIONS AND LIMITATIONS, AND TO AND FROM SUCH LOCATIONS AS THE SECRETARIES CONCERNED MAY PRESCRIBE. JOINT TRAVEL REGULATIONS ISSUED BY THE SECRETARIES TO IMPLEMENT THIS STATUTORY AUTHORITY, PROVIDE (PARAGRAPH 7002) THAT MEMBERS, GENERALLY, ARE ENTITLED TO TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE UPON A PERMANENT CHANGE OF STATION FOR TRAVEL PERFORMED FROM THE OLD PERMANENT STATION TO THE NEW PERMANENT STATION. WHEN A MEMBER IS ORDERED ON A PERMANENT CHANGE OF STATION TO A PLACE WHERE HIS DEPENDENTS ARE NOT PERMITTED, FOR MILITARY REASONS, TO ACCOMPANY HIM, THE REGULATIONS (PARAGRAPH 7005) PROVIDE FOR THEIR TRANSPORTATION AT GOVERNMENT EXPENSE TO A DESIGNATED PLACE.

TRANSPORTATION OF DEPENDENTS TO OVERSEAS STATIONS TO WHICH, IN GENERAL, COORDINATED TRAVEL OF A MEMBER AND HIS DEPENDENTS IS NOT AUTHORIZED IS GOVERNED, INSOFAR AS ARMY PERSONNEL IS CONCERNED, BY A PRIORITY SYSTEM AS PUBLISHED IN ARMY REGULATION 55-46, BY ORDER OF THE SECRETARY OF THE ARMY. THE PURPOSE IS TO PROVIDE A FAIR AND EQUITABLE MEANS OF REUNITING FAMILIES SEPARATED BY OVERSEAS SERVICE, AND TO INSURE THAT TRANSPORTATION TO OVERSEAS COMMANDS WILL BE AVAILABLE FIRST TO THE FAMILIES SUFFERING THE GREATER PERIODS OF SEPARATION. THE EFFECT OF THESE REGULATIONS, IN THE CASE OF A MEMBER ORDERED TO AN OVERSEAS COMMAND OPERATING UNDER THE PRIORITY SYSTEM, IS TO LIMIT HIS ENTITLEMENT TO TRANSPORTATION OF DEPENDENTS, NOTWITHSTANDING THE ORDERED PERMANENT CHANGE OF STATION, TO TRANSPORTATION TO AN AUTHORIZED DESIGNATED PLACE UNTIL SUCH TIME AS THEIR TRANSPORTATION TO THE DUTY STATION IS AUTHORIZED BY THE OVERSEAS COMMANDER CONCERNED, OR THE RESTRICTION IS REMOVED. 35COMP. GEN. 61. PARAGRAPH 16, ARMY REGULATIONS 55-46, PROVIDES THAT WHEN PERMANENT CHANGE OF STATION ORDERS CONTAIN AUTHORITY FOR CONCURRENT TRAVEL OF DEPENDENTS, THE DEPENDENT'S NAME, ADDRESS, RELATIONSHIP, DATE OF BIRTH OF CHILDREN, AND THE PLACE FROM WHICH TRANSPORTATION IS AUTHORIZED AT GOVERNMENT EXPENSE, WILL BE INCLUDED. NO SUCH INFORMATION WAS INCLUDED IN YOUR CHANGE OF STATION ORDERS AND FOR THAT REASON IT MUST BE CONCLUDED THAT YOUR ORDERS DID NOT AUTHORIZE CONCURRENT TRAVEL OF YOUR WIFE TO YOUR OVERSEAS STATION. THE ANNOUNCED POLICY OF AUGUST 2, 1957, TO WHICH YOU REFER, WAS AS FOLLOWS:

"1. THE FOLLOWING MESSAGE DTD 30 JULY 1957 IS QUOTED FOR INFORMATION AND COMPLIANCE: "SC 39502 REFERENCE PARAGRAPH 2 CHARLIE MY SC 32531 (14 JUN) SPONSORS WHO SUBMITTED DD FORM 9 PRIOR TO 6 JUNE 1957 FOR THE PURPOSE OF REQUESTING CONCURRENT TVL OF DEPENDENT AND THE REQUEST WAS DISAPPROVED MAY SUBMIT AE FORM 325 FOR PRIORITY MOV OF DEPN PROVIDED SPONSOR IS OTHERWISE ELIGIBLE IN ACCORDANCE WITH USAREUR CIR 55-120 AND AR 55-46. EVIDENCE THAT THE DD FORM 349 WAS SUBMITTED PRIOR TO 6 JUNE 1957 MUST ACCOMPANY EACH AE FORM 325 FWD TO THIS HQ.L APPLICATIONS FOR PRIORITY MOV PREVIOUSLY DISAPPROVED SHOULD BE RESUBMITTED FOR RECONSIDERATION.'

"2. WHENEVER POSSIBLE THE APPLICATION THAT WAS RETURNED WITHOUT ACTION OR DISAPPROVED SHOULD BE RETURNED FOR ACTION.'

THUS, THAT DOCUMENT DID NOT SPECIFICALLY AUTHORIZE TRAVEL OF YOUR DEPENDENT TO YOUR OVERSEAS STATION. IT MERELY INDICATED THAT YOU COULD RESUBMIT THE APPLICATION FOR RECONSIDERATION.

THE RIGHT TO TRAVEL OF DEPENDENTS UPON PERMANENT CHANGE OF STATION IS NOT AN ABSOLUTE ONE BUT MAY BE ADMINISTRATIVELY SUSPENDED OR DENIED FOR REASONS OF MILITARY NECESSITY OR EXPEDIENCY, IN WHICH EVENT IF AN OFFICER TRANSPORTS HIS DEPENDENTS AT PERSONAL EXPENSE HE MAY NOT BE REIMBURSED THE EXPENSE SO INCURRED. CULP V. UNITED STATES, 76 C.CLS. 507.

SINCE TRAVEL OF YOUR DEPENDENT TO YOUR OVERSEAS STATION WAS NOT AUTHORIZED, THERE IS NO AUTHORITY FOR PAYMENT OF YOUR CLAIM FOR YOUR WIFE'S TRAVEL FROM NEW YORK, NEW YORK, TO YOUR OVERSEAS STATION.

ACCORDINGLY, THE SETTLEMENT OF SEPTEMBER 2, 1959, WAS CORRECT AND IS SUSTAINED.