B-144588, JAN. 16, 1961

B-144588, JAN. 16, 1961

TO SERGEANT JULIO REYES, USA, (RETIRED):

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 12, 1960, REQUESTING REVIEW OF THE SETTLEMENT OF NOVEMBER 7, 1960, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT FOR THE COST OF COMMERCIAL AIR TRAVEL FOR YOU AND YOUR DEPENDENTS FROM NEW YORK, NEW YORK, TO SAN JUAN, PUERTO RICO, INCIDENT TO YOUR RETIREMENT FROM THE UNITED STATES ARMY.

BY SPECIAL ORDERS NO. 110, ISSUED BY HEADQUARTERS, DEPARTMENT OF THE ARMY, DATED JUNE 2, 1960, YOU WERE RELEASED FROM YOUR ASSIGNMENT AND DUTY EFFECTIVE JULY 31, 1960, AT FORT SLOCUM, NEW YORK, AND PLACED ON THE RETIRED LIST OF THE ARMY EFFECTIVE AUGUST 1, 1960. THE RECORD SHOWS THAT YOU AND YOUR DEPENDENTS (WIFE AND CHILD) DEPARTED FORT SLOCUM ON AUGUST 2, 1960, ARRIVED AT YOUR HOME, CAYEY, PUERTO RICO, ON AUGUST 4, 1960, AND THAT THE SEA TRAVEL INVOLVED WAS BY COMMERCIAL AIR AT YOUR PERSONAL EXPENSE. YOU WERE PAID FOR THE LAND TRAVEL FOR YOURSELF AND YOUR DEPENDENTS FROM FORT SLOCUM TO NEW YORK, NEW YORK, AND FROM SAN JUAN, PUERTO RICO, TO CAYEY, PUERTO RICO. THE SETTLEMENT MENTIONED ABOVE DISALLOWED YOUR CLAIM FOR THE TRANSOCEANIC PORTION OF YOUR TRAVEL FROM NEW YORK TO PUERTO RICO, SINCE GOVERNMENT TRANSPORTATION WAS REPORTED AVAILABLE FOR SUCH TRAVEL. IN YOUR REQUEST FOR REVIEW YOU ALLEGE THAT THE PERSONNEL OFFICE AT FORT SLOCUM ERRONEOUSLY ADVISED YOU THAT YOU COULD TRAVEL AT YOUR OWN EXPENSE AND THAT THE ARMY WOULD PAY FOR ALL SUCH EXPENSES.

UPON YOUR RETIREMENT ON AUGUST 1, 1960, YOU WERE ENTITLED TO TRAVEL ALLOWANCES FOR YOURSELF AND YOUR DEPENDENTS UNDER PARAGRAPHS 4158 AND 7012 OF THE JOINT TRAVEL REGULATIONS FROM YOUR LAST DUTY STATION TO A SELECTED HOME. HOWEVER, PARAGRAPH 4159-4 OF THE REGULATIONS AUTHORIZES REIMBURSEMENT FOR ANY TRANSOCEANIC TRAVEL INVOLVED ONLY IN THE EVENT THAT GOVERNMENT AIRCRAFT OR VESSEL IS NOT AVAILABLE, AND PARAGRAPH 7002-1B PROVIDES FOR THAT TRANSOCEANIC TRAVEL OF DEPENDENTS GOVERNMENT AIRCRAFT OR VESSELS WILL BE UTILIZED, IF AVAILABLE.

PARAGRAPH 4159-5D PROVIDES THAT WHEN A MEMBER'S LAST DUTY STATION IS LOCATED WITHIN THE UNITED STATES AND THE PLACE TO WHICH A MEMBER ELECTS TO RECEIVE ALLOWANCES IS LOCATED OUTSIDE THE UNITED STATES, MILEAGE IS PAYABLE FOR THE OFFICIAL DISTANCE OF THE LAND TRAVEL INVOLVED FROM THE MEMBER'S LAST DUTY STATION TO THE APPROPRIATE PORT OF EMBARKATION IN THE UNITED STATES, AND FROM THE FOREIGN AERIAL OR WATER PORT OF DEBARKATION NEAREST TO THE PLACE TO WHICH THE MEMBER ELECTS TO RECEIVE TRAVEL ALLOWANCES TO DESTINATION. PARAGRAPH 7003-3B PROVIDES THAT A MONETARY ALLOWANCE IN LIEU OF TRANSPORTATION IS SIMILARLY PAYABLE WHEN GOVERNMENT TRANSPORTATION IS AVAILABLE FOR THE DEPENDENTS BUT NOT UTILIZED, AND TRANSOCEANIC TRAVEL IS PERFORMED AT PERSONAL EXPENSE.

IN YOUR CASE, THE CHIEF OF TRANSPORTATION, DEPARTMENT OF THE ARMY, HAS REPORTED THAT GOVERNMENT TRANSPORTATION WAS AVAILABLE FROM THE UNITED STATES TO PUERTO RICO DURING THE PERIOD YOU TRAVELED SINCE AT THAT TIME THE MILITARY SEA TRANSPORTATION SERVICE MAINTAINED REGULARLY SCHEDULED SAILINGS FROM NEW YORK TO SAN JUAN, PUERTO RICO, AND THE MILITARY AIR TRANSPORT SERVICE MAINTAINED REGULARLY SCHEDULED FLIGHTS FROM CHARLESTON AIR FORCE BASE, SOUTH CAROLINA, TO RAMEY AIR FORCE BASE, PUERTO RICO. VIEW OF THE PLAIN REQUIREMENTS OF THE REGULATIONS THAT GOVERNMENT TRANSPORTATION MUST BE UTILIZED FOR TRANSOCEANIC TRAVEL WHEN AVAILABLE, THERE IS NO LEGAL BASIS FOR REIMBURSEMENT OF THE EXPENSES OF THE COMMERCIAL AIR TRAVEL UTILIZED BY YOU AND YOUR DEPENDENTS IN THE ABSENCE OF EVIDENCE FROM AN OFFICIAL SOURCE SHOWING THAT THE PROPER GOVERNMENT OFFICIALS REFUSED TO FURNISH SUCH TRANSPORTATION. B-138445, FEBRUARY 16, 1959. MOREOVER, EVEN THOUGH YOU MAY HAVE BEEN ERRONEOUSLY ADVISED BY THE PERSONNEL OFFICER AS TO YOUR RIGHT TO REIMBURSEMENT FOR TRAVEL BY COMMERCIAL AIR, YOUR CLAIM MAY NOT BE PAID. IT IS A WELL-SETTLED PRINCIPLE OF LAW 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.

ACCORDINGLY, INASMUCH AS IT APPEARS THAT YOU HAVE RECEIVED PAYMENT OF THOSE ALLOWANCES PROPERLY DUE YOU UNDER THE CITED REGULATIONS, THE SETTLEMENT OF NOVEMBER 7, 1960, WAS CORRECT AND IS SUSTAINED.