B-143694, NOV. 16, 1960

B-143694, NOV. 16, 1960

TO WILLIAM B. ELLIS, SP/5, RA 44 085 507:

REFERENCE IS MADE TO YOUR LETTER OF JULY 1, 1960, FORWARDED HERE BY HEADQUARTERS, UNITED STATES ARMY HOSPITAL WURZBURG, APO 800, IN WHICH YOU REQUEST REVIEW OF THAT PART OF OUR SETTLEMENT DATED DECEMBER 28, 1959, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT OF DEPENDENTS' TRAVEL FROM PARIS, FRANCE, TO NEW YORK, NEW YORK.

BY LETTER ORDERS NO. 5-4, DATED MAY 16, 1958, ISSUED BY HEADQUARTERS, UNITED STATES ARMY CHEMICAL DEPOT, SAMPIGNY, FRANCE, YOU WERE AUTHORIZED TO PROCEED FROM YOUR DUTY STATION AT VERDUN, FRANCE, ON OR ABOUT MAY 17, 1958, TO PARIS FOR FURTHER MOVEMENT BY FIRST AVAILABLE MILITARY AIRCRAFT TO THE UNITED STATES. THESE ORDERS WERE ISSUED FOR THE PURPOSE OF GRANTING YOU 30 DAYS' EMERGENCY LEAVE DUE TO THE EXPECTED DEATH OF YOUR MOTHER. YOUR LEAVE ADDRESS WAS LISTED AS HUNTERSVILLE, NORTH CAROLINA. THE ORDERS AUTHORIZED YOUR TRAVEL BY U.S. MILITARY AIRCRAFT AND GOVERNMENT VEHICLE, WITH THE FURTHER STIPULATION THAT TRAVEL BY RAIL AND COMMERCIAL AIRCRAFT WAS AUTHORIZED AT NO EXPENSE TO THE GOVERNMENT. LETTER ORDERS NO. 25, DATED MAY 17, 1958, RELEASED YOU FROM ASSIGNMENT AT VERDUN AND REASSIGNED YOU TO THE 524TH REPLACEMENT COMPANY FOR FURTHER ASSIGNMENT TO FORT HAMILTON, NEW YORK, AND SUBSEQUENT ASSIGNMENT TO DUTY IN THE UNITED STATES. THESE ORDERS AUTHORIZING TRAVEL FROM YOUR THEN PRESENT STATION TO THE AERIAL PORT OF DEBARKATION IN THE UNITED STATES CITED THE MOVE AS A PERMANENT CHANGE OF STATION, APPARENTLY IN VIEW OF ARMY REGULATIONS PROVIDING FOR AUTHORIZATION OF A PERMANENT CHANGE OF STATION WHEN PERSONNEL RETURNING TO THE UNITED STATES FOR EMERGENCY LEAVE HAVE LESS THAN SIX MONTHS REMAINING IN THEIR FOREIGN SERVICE TOUR WHERE SUCH TOUR IS IN EXCESS OF 18 MONTHS (AR 614-30, PAR. 26B (8) (A) 1 (A) ).

IN YOUR REQUEST FOR REVIEW, YOU SEEK REIMBURSEMENT FOR YOUR DEPENDENTS' TRANSOCEANIC TRAVEL (PARIS, FRANCE, TO NEW YORK, NEW YORK) ON MAY 17 AND 18, 1958, BY COMMERCIAL AIR, APPARENTLY ON THE BASIS OF THE ISSUANCE OF LETTER ORDERS NO. 18, DATED MAY 21, 1959 (ISSUED ONE YEAR AFTER THE TRAVEL INVOLVED), AMENDING YOUR ORDERS OF MAY 17, 1958, TO AUTHORIZE THE TRAVEL OF YOUR DEPENDENTS IN CONNECTION WITH YOUR PERMANENT CHANGE OF STATION. YOU ALSO STATE THAT DUE TO YOUR WIFE'S PREGNANCY YOU DID NOT WANT TO LEAVE HER BEHIND, AND THAT YOU HAD NO OTHER ALTERNATIVE BUT TO PAY FOR HER TRANSPORTATION, SINCE YOU UNDERSTOOD SHE WOULD NOT BE AUTHORIZED GOVERNMENT TRANSPORTATION.

SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 253 (C), PROVIDES THAT UNDER SUCH REGULATIONS AS MAY BE PRESCRIBED BY THE SECRETARIES CONCERNED, MEMBERS OF THE UNIFORMED SERVICES WHEN ORDERED TO MAKE A PERMANENT CHANGE OF STATION SHALL BE ENTITLED TO TRANSPORTATION FOR THEIR DEPENDENTS. PARAGRAPH 7002-1B OF THE JOINT TRAVEL REGULATIONS PROVIDES, WITH CERTAIN EXCEPTIONS NOT MATERIAL IN THIS INSTANCE, THAT FOR ALL TRANSOCEANIC TRAVEL OF DEPENDENTS FROM OVERSEAS AREAS TO THE UNITED STATES, GOVERNMENT AIRCRAFT OR VESSELS WILL BE UTILIZED IF AVAILABLE. THUS THE DECISIVE FACTOR IS NOT WHETHER YOUR DEPENDENTS WERE ELIGIBLE FOR CONCURRENT RETURN TO THE UNITED STATES, BUT THAT THERE WAS FAILURE TO TRANSPORT YOUR DEPENDENTS IN ACCORDANCE WITH APPLICABLE REGULATIONS. IN THIS INSTANCE THE DEPARTMENT OF THE ARMY HAS REPORTED THAT AT THE TIME YOUR DEPENDENTS WERE RETURNED TO THE UNITED STATES, GOVERNMENT TRANSPORTATION WAS AVAILABLE BY REGULARLY SCHEDULED MILITARY AIR TRANSPORT SERVICE FLIGHTS FROM PARIS, FRANCE, TO MCGUIRE AIR FORCE BASE, NEW JERSEY, AND BY REGULARLY SCHEDULED MILITARY SEA TRANSPORTATION SERVICE VESSELS FROM BREMERHAVEN, GERMANY, TO NEW YORK. VIEW OF THE PLAIN REQUIREMENTS OF THE REGULATIONS THAT GOVERNMENT TRANSPORTATION MUST BE UTILIZED WHEN AVAILABLE, THERE IS NO PROPER BASIS FOR REIMBURSEMENT OF THE EXPENSES OF YOUR DEPENDENTS' TRAVEL. WHILE APPRECIATING THE DILEMMA IN WHICH YOU WERE PLACED BY YOUR ORDERS AND THE CONDITION OF YOUR MOTHER AND YOUR WIFE, WE TRUST YOU WILL UNDERSTAND THAT OUR OFFICE HAS NO AUTHORITY TO WAIVE OR DISREGARD THE LAW AND REGULATIONS GOVERNING THE TRANSPORTATION OF YOUR DEPENDENTS.

UPON REVIEW, WE FIND THAT THE SETTLEMENT OF DECEMBER 28, 1959, WAS CORRECT AND IT IS SUSTAINED.