B-145752, FEB. 12, 1962

B-145752, FEB. 12, 1962

TO MAJOR RAYMON S. DOTSON, JR., USAR (RETIRED):

REFERENCE IS MADE TO YOUR LETTER RECEIVED HERE ON DECEMBER 8, 1961, IN EFFECT REQUESTING FURTHER CONSIDERATION OF YOUR CLAIM FOR REIMBURSEMENT OF TRAVEL EXPENSES FOR YOUR INFANT ADOPTED DAUGHTER AND HER ESCORT (YOUR WIFE) FROM SAIGON, VIETNAM, TO EYNETTEN, BELGIUM, DURING THE PERIOD MARCH 22 TO 23, 1960.

YOUR CLAIM FOR REIMBURSEMENT OF THOSE EXPENSES WAS DISALLOWED BY OUR CLAIMS DIVISION SETTLEMENT DATED FEBRUARY 24, 1961, BECAUSE THE TRAVEL OF YOUR DAUGHTER PRECEDED THE ORDERS DIRECTING YOUR RETURN FROM OVERSEAS TO THE UNITED STATES FOR YOUR ASSIGNMENT TO THE U.S. ARMY ORDNANCE ARSENAL, BENICIA, CALIFORNIA. ON YOUR REQUEST OF APRIL 18, 1961, THE DISALLOWANCE WAS REVIEWED AND IN OUR DECISION TO YOU DATED SEPTEMBER 21, 1961, B- 145752, WE POINTED OUT THE LAW AND THE REGULATIONS APPLICABLE TO YOUR CLAIM AND THE REASONS WHY YOU WERE NOT ENTITLED ON THE BASIS OF THE RECORD BEFORE US TO REIMBURSEMENT FOR THE TRAVEL PERFORMED BY YOUR DAUGHTER AND HER ESCORT.

IN YOUR PRIOR CORRESPONDENCE IN THIS MATTER YOU HAVE STATED THAT YOU DID NOT TAKE YOUR DAUGHTER WITH YOU, AS AUTHORIZED IN YOUR ORDERS OF MARCH 26, 1960, ON YOUR RETURN TRAVEL BY GOVERNMENT AIR BECAUSE YOU WERE INFORMED THAT THE MILITARY AIR TRANSPORT SERVICE HAD NO ACCOMMODATIONS OR FACILITIES FOR INFANT CHILDREN AND THAT ALSO, FROMA POLITICAL STANDPOINT, YOU FELT YOU HAD TO GET YOUR ADOPTED DAUGHTER OUT OF VIETNAM AS SOON AS POSSIBLE. IN OUR DECISION OF SEPTEMBER 21, 1961, TO YOU, WE EXPLAINED, IN VIEW OF THE MINIMUM STANDARDS ESTABLISHED FOR GOVERNMENT AIRCRAFT EQUIPPED TO CARRY DEPENDENT INFANTS ACCOMPANIED BY THE SPONSOR, IT MUST BE ASSUMED, CONTRARY TO ANY ADVICE YOU MAY HAVE RECEIVED, THAT MILITARY AIR TRANSPORT SERVICE PLANES WITH FACILITIES SUITABLE FOR THE CARE OF YOUR DAUGHTER, IF ACCOMPANIED BY YOU, WOULD HAVE BEEN AVAILABLE FOR THE TRAVEL REQUIRED UNDER YOUR ORDERS. WE ALSO POINTED OUT THE PROVISIONS UNDER WHICH AN ESCORT TRAVEL ORDER MAY BE ISSUED AFTER AN ADMINISTRATIVE DETERMINATION OF THE NECESSITY THEREFOR, BUT THAT NO DETERMINATION WAS MADE BY THE ORDER ISSUING AUTHORITY IN YOUR CASE THAT AN ESCORT WAS AUTHORIZED FOR THE TRAVEL OF YOUR DAUGHTER.

IN YOUR CURRENT LETTER YOU AVER THAT YOUR CHILD WAS IN POOR HEALTH AND YOU HAVE SUBMITTED YOUR ITINERARY TO EUROPE AS REFLECTING THE HARDSHIPS WHICH WOULD HAVE BEEN IMPOSED ON YOUR INFANT DAUGHTER IF SHE HAD ACCOMPANIED YOU TO EUROPE VIA MILITARY AIR TRANSPORT SERVICE AS AUTHORIZED IN YOUR ORDERS OF MARCH 26, 1960. YOU NOW URGE THAT ON THE BASIS OF YOUR CHILD'S POOR HEALTH AND BECAUSE THE FLIGHT BY MILITARY AIR TRANSPORT SERVICE WOULD HAVE TAKEN LONGER THAN THE COMMERCIAL AIR FLIGHT TO EUROPE, YOU FELT THAT AS THE CHILD'S ADOPTIVE FATHER, YOU COULD REFUSE FOR YOUR DEPENDENT CHILD TO TRAVEL BY MILITARY AIR TRANSPORT SERVICE. YOU ALSO STATE THAT YOU WERE NOT INFORMED AND WERE NOT AWARE THAT AN ESCORT TRAVEL ORDER WAS NECESSARY FOR YOUR WIFE TO ACCOMPANY THE CHILD, AND YOU FEEL THAT IN AN OUTPOST SUCH AS VIETNAM,"THE AVAILABILITY OF REGULATIONS AND KNOWLEDGE OF ALL RAMIFICATIONS IS NOT SUFFICIENT TO COVER ALL CONTINGENCIES.' YOU URGE THAT PARAGRAPH 7002-2B OF THE JOINT TRAVEL REGULATIONS IS APPLICABLE TO YOUR CASE AS AUTHORIZING PAYMENT OF YOUR CLAIM.

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 CT.CL. 507. THE TRANSPORTATION OF DEPENDENTS OF MEMBERS OF THE UNIFORMED SERVICES IS GOVERNED BY THE JOINT TRAVEL REGULATIONS ISSUED PURSUANT TO SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 253 (C). PARAGRAPH 7002-1B OF THE REGULATIONS REQUIRES THAT FOR TRANSOCEANIC TRAVEL OF DEPENDENTS TO, FROM, OR BETWEEN AREAS OUTSIDE THE UNITED STATES, GOVERNMENT AIRCRAFT OR VESSELS WILL BE UTILIZED, IF AVAILABLE. EXCEPTION TO THIS RULE IS STATED IN PARAGRAPH 7002-1B (5) WHICH PROVIDES THAT WHEN DEPENDENTS REFUSE TO TRAVEL BY GOVERNMENT AIRCRAFT, TRANSPORTATION WILL BE FURNISHED BY GOVERNMENT VESSEL, IF AVAILABLE, OTHERWISE BY COMMERCIAL VESSEL. THE REGULATION GIVES NO RIGHT TO REFUSE TO TRAVEL BY GOVERNMENT AIRCRAFT IN ORDER TO TRAVEL BY COMMERCIAL AIRCRAFT. YOU AVER THAT ON THE BASIS OF YOUR CHILD'S POOR HEALTH YOU FELT YOU COULD REFUSE FOR HER TO TRAVEL BY MILITARY AIR TRANSPORT SERVICE WITH YOU ON YOUR TRAVEL TO BELGIUM. WE DO NOT QUESTION THE FACT THAT YOU COULD REFUSE TO HAVE YOUR CHILD TRAVEL BY GOVERNMENT AIRCRAFT IN ORDER THAT SHE MIGHT TRAVEL BY SURFACE TRANSPORTATION, BUT THE REGULATION GAVE YOU NO RIGHT, UPON REFUSAL OF AVAILABLE GOVERNMENT AIR TRANSPORTATION, TO HAVE HER TRAVEL BY COMMERCIAL AIRCRAFT TO EUROPE AT GOVERNMENT EXPENSE. THIS RESPECT SUBPARAGRAPH 7002-1B (2) PROVIDES THAT WHEN IT IS MEDICALLY CONTRAINDICATED GOVERNMENT AIRCRAFT OR VESSELS NEED NOT BE UTILIZED FOR TRAVEL OF DEPENDENTS. SUCH PROVISION APPARENTLY CONTEMPLATES ADVANCE AUTHORIZATION BY PROPER ADMINISTRATIVE AUTHORITIES AFTER AN ADMINISTRATIVE DETERMINATION, BASED UPON COMPETENT EVIDENCE, THAT TRAVEL BY GOVERNMENT TRANSPORTATION IS MEDICALLY CONTRAINDICATED.

THERE IS NO EVIDENCE THAT SUCH AUTHORIZATION WAS APPLIED FOR OR GRANTED IN ADVANCE OF YOUR DAUGHTER'S TRAVEL BY COMMERCIAL AIR. THE ONLY EVIDENCE OF RECORD SHOWS THAT ON MARCH 21, 1960, YOU STATED IN A MESSAGE TO THE CHIEF, MAAG, THAT "REQUEST MANUELA LANE DOTSON, AGE 6 MONTHS, ADOPTED DAUGHTER OF THE UNDERSIGNED BE INCLUDED IN MY REDEPLOYMENT ORDERS FOR RETURN TO THE UNITED STATES.' IN RESPONSE TO YOUR REQUEST FOR TRANSPORTATION OF YOUR DEPENDENT, BY ENDORSEMENT DATED MARCH 24, 1960, YOU WERE ADVISED THAT YOUR DEPENDENT DAUGHTER WOULD BE INCLUDED IN YOUR ORDERS WHEN THEY WERE PUBLISHED. WHILE YOU CONTEND THAT HER MEDICAL CONDITION WAS SUCH AS TO REQUIRE HER TRAVEL TO EUROPE BY COMMERCIAL AIR, THERE IS NOTHING IN THE RECORD TO SHOW THAT HER TRAVEL BY MILITARY AIR TRANSPORT SERVICE ACCOMPANIED BY YOU AS AUTHORIZED IN YOUR ORDERS OF MARCH 26, 1960, WAS ADMINISTRATIVELY DETERMINED TO BE MEDICALLY CONTRAINDICATED WITHIN THE PURVIEW OF PARAGRAPH 7002-1B (2).

THE FACT THAT YOU DID NOT KNOW OR WERE NOT INFORMED AS TO THE REQUIREMENTS OF THE REGULATIONS MAY NOT BE CONSIDERED AS AUTHORIZING THE TRAVEL OF YOUR CHILD BY COMMERCIAL AIR, SINCE EVERYONE IS CHARGEABLE WITH NOTICE AS TO THE EXISTENCE OF PUBLIC LAWS AND REGULATIONS. WE, OF COURSE, ARE NOT UNAWARE OF THE ANXIETY OF A PARENT WHOSE CHILD IS ILL OR INDISPOSED, NEVERTHELESS YOU CAN REALIZE THAT OUR OFFICE HAS NO AUTHORITY TO WAIVE OR DISREGARD THE PROVISIONS OF ANY STATUTE OR THE REGULATIONS PROMULGATED PURSUANT THERETO. IN THE CIRCUMSTANCES, IT APPEARING THAT YOU ELECTED TO HAVE YOUR CHILD PERFORM THE TRAVEL BY COMMERCIAL AIR WITHOUT OFFICIAL AUTHORIZATION, AND SINCE GOVERNMENT TRANSPORTATION WITH FACILITIES FOR CARRYING CHILDREN APPARENTLY WAS AVAILABLE FOR HER TRAVEL WITH YOU TO EUROPE, WE KNOW OF NO AUTHORITY FOR THE ALLOWANCE OF YOUR CLAIM.

ACCORDINGLY, ON THE BASIS OF THE PRESENT RECORD, OUR DECISION TO YOU DATED SEPTEMBER 21, 1961, ..END :