B-142709, JUN. 1, 1960

B-142709, JUN. 1, 1960

TO MR. ELMER D. SMITH:

REFERENCE IS MADE TO YOUR LETTER DATED APRIL 8, 1960, IN EFFECT REQUESTING REVIEW OF SETTLEMENT OF MARCH 25, 1960, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT OF THE COST OF COMMERCIAL AIR TRAVEL BY YOUR WIFE AND CHILD FROM VERDUN, FRANCE, TO COLERAINE, MINNESOTA, INCURRED DURING THE PERIOD SEPTEMBER 6 TO 14, 1959, INCIDENT TO YOUR RETURN FROM OVERSEAS ASSIGNMENT FOR RELEASE FROM ACTIVE MILITARY SERVICE.

SPECIAL ORDERS NO. 173, HEADQUARTERS ADVANCE SECTION, UNITED STATES ARMY COMMUNICATIONS ZONE, EUROPE, DATED AUGUST 31, 1959, RELIEVED YOU FROM ASSIGNMENT IN FRANCE AND DIRECTED YOU TO PROCEED TO PARIS, FRANCE, FOR PROCESSING AND MOVEMENT TO THE UNITED STATES, SUCH MOVEMENT TO BE BY MILITARY AIRCRAFT. YOU WERE RELIEVED FROM ACTIVE DUTY BY SPECIAL ORDERS NO. 187, DATED SEPTEMBER 10, 1959, UNITED STATES ARMY TRANSFER STATION, FORT SHERIDAN, ILLINOIS, AS SPECIALIST FIFTH CLASS, PAY GRADE E-5 (T). THE ABSENCE OF ORDERS AUTHORIZING THE TRANSPORTATION OF YOUR WIFE AND CHILD WHO WERE LOCATED AT VERDUN, FRANCE, YOU ARRANGED FOR THEIR TRAVEL TO THE UNITED STATES BY COMMERCIAL AIRLINE. YOUR CLAIM FOR REIMBURSEMENT OF THE COST OF SUCH TRAVEL WAS DISALLOWED ON THE GROUND THAT GOVERNMENT SURFACE AND AIR TRANSPORTATION WAS AVAILABLE FOR THE INVOLVED TRAVEL. YOU STATE THAT YOU ARE FULLY AWARE THAT GOVERNMENT SURFACE AND AIR TRANSPORTATION WAS AVAILABLE FOR TRAVEL FROM EUROPE TO THE UNITED STATES BUT THAT THE BASIS FOR PROTESTING THE DISALLOWANCE IS THAT YOU WERE DENIED DEPENDENT TRANSPORTATION ORDERS BY THE "AG OFFICE" OF YOUR DUTY STATION, ADSEC, VERDUN, FRANCE. YOU ALSO STATE THAT WHEN YOU PROTESTED SUCH ACTION AT THAT TIME, YOU WERE INFORMED THAT YOU WERE NOT AUTHORIZED SUCH ALLOWANCES FOR YOUR DEPENDENTS.

THE RIGHT TO DEPENDENTS' TRAVEL IS NOT AN ABSOLUTE ONE BUT MAY BE ADMINISTRATIVELY RESTRICTED, SUSPENDED OR DENIED FOR REASONS OF MILITARY NECESSITY OR EXPEDIENCY. SEE CULP V. UNITED STATES, 76 C.CLS. 507. THE STATUTORY AUTHORITY FOR TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE UPON A MEMBER'S CHANGE OF PERMANENT STATION IS CONTAINED IN SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 253 (C), WHICH EXPRESSLY PROVIDES THAT SUCH TRANSPORTATION, UPON THE MEMBER'S ORDERED CHANGE OF PERMANENT STATION, SHALL BE UNDER CONDITIONS AND LIMITATIONS, FOR SUCH RANKS, GRADES, OR RATINGS, AND TO OR FROM SUCH LOCATIONS AS THE SECRETARIES CONCERNED MAY PRESCRIBE. PARAGRAPH 7002-1B OF THE JOINT TRAVEL REGULATIONS PROVIDES WITH CERTAIN EXCEPTIONS NOT MATERIAL HERE THAT FOR ALL TRANSOCEANIC TRAVEL OF DEPENDENTS FROM OVERSEAS AREAS TO THE UNITED STATES, GOVERNMENT AIRCRAFT OR VESSELS WILL BE UTILIZED, IF AVAILABLE.

AT THE TIME YOUR DEPENDENTS TRAVELED TO YOUR OVERSEAS STATION THERE WAS IN EFFECT DEPARTMENT OF DEFENSE DIRECTIVE NO. 1315.7, DATED MAY 7, 1957, WHICH EXPRESSED THE DEPARTMENT OF DEFENSE POLICIES AND UNDERLYING CONSIDERATIONS ON THE SUBJECT OF ROTATION AND OVERSEAS MOVEMENT OF DEPENDENTS OF MILITARY PERSONNEL ASSIGNED TO LAND BASES OUTSIDE THE CONTINENTAL UNITED STATES.

THE FOLLOWING PERTINENT PARAGRAPHS OF THAT DIRECTIVE ARE QUOTED BELOW:

"V. DUTY TOURS

D. THE STANDARD TOUR OF DUTY FOR MILITARY PERSONNEL WHO ARE ACCOMPANIED OR JOINED BY THEIR DEPENDENTS IN DESIRABLE OVERSEAS LOCATIONS IS 36 MONTHS. IT WILL BE ESTABLISHED FOR AREAS AND LOCATIONS WHERE CONDITIONS OF HEALTH, SAFETY, AND WELFARE MEET ACCEPTABLE STANDARDS. IT MAY BE VOLUNTARILY EXTENDED BY INDIVIDUALS TO A NORMAL MAXIMUM OF 48 MONTHS, SUBJECT TO THE APPROVAL OF THE SERVICES CONCERNED.

"VI. DEPENDENTS

E. MILITARY PERSONNEL WHOSE UNEXPIRED TERM OF SERVICE IS LESS THAN THE PRESCRIBED OVERSEAS TOUR FOR THE AREA TO WHICH THEY ARE ASSIGNED WILL NOT BE AUTHORIZED TO MOVE THEIR DEPENDENTS OVERSEAS UNLESS THEY VOLUNTARILY EXTEND THEIR TERM OF SERVICE TO PERMIT COMPLETION OF THE PRESCRIBED OVERSEAS TOUR.

"G. "SPACE AVAILABLE" TRANSPORTATION WILL NOT BE FURNISHED TO DEPENDENTS OF MILITARY PERSONNEL BELOW GRADE E-4 WITH 4 YEARS' SERVICE, OR TO OTHER UNAUTHORIZED DEPENDENTS, TO AN OVERSEAS DESTINATION TO JOIN THEIR SPONSORS.

"SPACE AVAILABLE" TRANSPORTATION FROM OVERSEAS TO THE UNITED STATES MAY BE FURNISHED TO UNAUTHORIZED DEPENDENTS WHO WERE IN AN OVERSEAS AREA ON OR PRIOR TO JUNE 6, 1957. IN THE CASE OF UNAUTHORIZED DEPENDENTS WHO ENTER/ED) AN OVERSEAS AREA AFTER JUNE 6, 1957, RETURN TRANSPORTATION IS THE FINANCIAL RESPONSIBILITY OF THE SPONSOR OR DEPENDENT.'

PARAGRAPH 52A, ARMY REGULATIONS 55-46, CHANGE 5, MAY 1, 1959, CONTAINS SIMILAR PROVISIONS BARRING THE FURNISHING OF TRANSPORTATION FOR DEPENDENTS TRAVEL BACK TO THE UNITED STATES WHO HAD PROCEEDED TO AN OVERSEAS STATION IN AN UNAUTHORIZED STATUS--- DUE TO THE FACT THAT THE MEMBER WAS IN A GRADE NOT ENTITLING HIM TO TRANSPORTATION OF DEPENDENTS OR BECAUSE HIS TOUR OF DUTY OVERSEAS WAS NOT OF SUFFICIENT DURATION TO ENTITLE HIM TO SUCH TRANSPORTATION--- UNLESS SUCH DEPENDENTS WERE PRESENT IN THE OVERSEAS AREA PRIOR TO JUNE 6, 1957.

SPECIAL ORDERS NO. 173 SHOW THAT YOU ENTERED ON ACTIVE DUTY OCTOBER 3, 1957, AND THAT ORDERS ASSIGNING YOU TO OVERSEAS DUTY WERE ISSUED ON FEBRUARY 12, 1958. SINCE YOUR TOUR OF DUTY WAS FOR A PERIOD OF LESS THAN 36 MONTHS, YOUR DEPENDENTS WERE INELIGIBLE FOR TRANSPORTATION TO YOUR OVERSEAS STATION AT GOVERNMENT EXPENSE BY REASON OF THE PROVISIONS OF THE ABOVE-QUOTED PARAGRAPHS OF THE CITED DIRECTIVE AND IT APPEARS THAT THEY TRAVELED TO YOUR OVERSEAS STATION AT YOUR PERSONAL EXPENSE. WHILE THE PERIOD OF SUCH TRAVEL IS NOT SHOWN BY THE RECORD, IT IS CLEAR THAT IT WAS SUBSEQUENT TO FEBRUARY 12, 1958. WHEN ORDERS WERE ISSUED FOR YOUR RETURN TO THE UNITED STATES, YOUR DEPENDENTS WERE INELIGIBLE FOR RETURN TRANSPORTATION AT GOVERNMENT EXPENSE SINCE THEY WERE NOT IN AN OVERSEAS AREA ON OR PRIOR TO JUNE 6, 1957, THE DATE STIPULATED IN THE ABOVE-CITED REGULATIONS.

SINCE THE RECORD SHOWS THAT FOR VALID REASONS NO OFFICIAL AUTHORIZATION WAS ISSUED FOR YOUR DEPENDENTS' RETURN TRAVEL TO THE UNITED STATES AND, FURTHER, THAT GOVERNMENT SURFACE AND AIR TRANSPORTATION WERE AVAILABLE AND WOULD HAVE BEEN FURNISHED HAD A PROPER AUTHORIZATION BEEN GRANTED FOR SUCH TRAVEL, THERE IS NO LEGAL BASIS FOR THE PAYMENT OF YOUR CLAIM.