B-149649, SEP. 5, 1962

B-149649, SEP. 5, 1962

TO STAFF SERGEANT PAUL G. DIAMOND, SR., U.S. ARMY:

REFERENCE IS MADE TO YOUR LETTER OF JULY 25, 1962, REQUESTING RECONSIDERATION OF SETTLEMENT DATED JULY 20, 1962, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT FOR YOUR DEPENDENTS' TRAVEL FROM KITZINGEN, GERMANY, TO NEW YORK, NEW YORK, ON JULY 20 AND 21, 1961.

THE RECORD SHOWS THAT BY SPECIAL ORDERS NO. 73, DATED JUNE 16, 1961, ISSUED BY HEADQUARTERS, THIRD INFANTRY DIVISION, ARTILLERY (EUROPE), YOU WERE RELIEVED OF YOUR ASSIGNMENT AT THAT STATION AND REASSIGNED TO THE 529TH SIGNAL COMPANY, FORT SILL, OKLAHOMA. THE REPORTING DATE AT PORT OF EMBARKATION (BREMERHAVEN), FOR MOVEMENT TO THE CONTINENTAL UNITED STATES ABOARD THE MILITARY SEA TRANSPORTATION SERVICE VESSEL USNS GEIGER, WAS ESTABLISHED AS JULY 22, 1961, BY SPECIAL ORDERS NO. 88, DATED JULY 18, 1961, WHICH WERE THE AMENDING ORDERS MENTIONED IN THE SETTLEMENT OF JULY 20, 1962. INCIDENT TO THE ABOVE ORDERS YOUR DEPENDENTS DEPARTED GERMANY FOR NEW YORK CITY FROM RHINE-MAIN AIRPORT (FRANKFURT) ON JULY 20, 1961, BY AIRCRAFT OF THE SWISSAIR AIRLINES.

YOUR CLAIM WAS DISALLOWED FOR THE REASON THAT PARAGRAPH 2150-1 OF THE JOINT TRAVEL REGULATIONS PROVIDES, WITH EXCEPTIONS NOT HERE APPLICABLE, THAT AIRCRAFT REGISTERED UNDER THE LAWS OF THE UNITED STATES WILL BE USED FOR ALL TRAVEL AND TRANSPORTATION OUTSIDE THE CONTINENTAL UNITED STATES. YOU URGE THAT YOU BE GRANTED AN EXCEPTION TO THAT PROVISION OF THE JOINT TRAVEL REGULATIONS INASMUCH AS YOU HAD BEEN ADVISED THAT MILITARY TRANSPORT WOULD NOT BE AUTHORIZED FOR YOUR FAMILY'S TRAVEL AND YOU WERE NOT AWARE OF THE REGULATORY PROVISION WHEN TRAVEL ARRANGEMENTS WERE MADE AT A LATE DATE, JUNE 16, 1961, THROUGH THE LOCAL AMERICAN EXPRESS COMPANY'S OFFICE. YOU STATE THAT YOU HAVE BEEN INFORMED THAT ORDERS AUTHORIZING YOUR DEPENDENTS' TRAVEL WERE RECEIVED BY THE OVERSEAS UNIT AFTER YOUR DEPARTURE AND THAT A COPY OF THE ORDERS, WHICH YOU HAVE REQUESTED FROM THE ARMY, IS ALL THAT IS NEEDED FOR PAYMENT OF YOUR CLAIM.

THE STATUTORY AUTHORITY FOR TRANSPORTATION OF DEPENDENTS 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 TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE UPON A MEMBER'S ORDERED CHANGE OF PERMANENT STATION SHALL BE UNDER SUCH CONDITIONS AND LIMITATIONS, FOR SUCH RANKS, GRADES, OR RATINGS, AND TO AND FROM SUCH LOCATIONS AS THE SECRETARIES CONCERNED MAY PRESCRIBE. CHAPTER 7 OF THE JOINT TRAVEL REGULATIONS, ISSUED BY THE SECRETARIES TO IMPLEMENT THIS STATUTORY AUTHORITY, PROVIDES IN PARAGRAPH 7000 THAT MEMBERS OF THE UNIFORMED SERVICES ARE ENTITLED TO TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE UPON A PERMANENT CHANGE OF STATION FOR TRAVEL PERFORMED FROM THE OLD STATION TO THE NEW PERMANENT STATION OR BETWEEN POINTS OTHERWISE AUTHORIZED, WITH CERTAIN EXCEPTIONS INCLUDING THE FOLLOWING:

"8. FOR ANY PORTION OF TRAVEL PERFORMED BY A FOREIGN REGISTERED VESSEL OR AIRPLANE, IF AMERICAN REGISTERED VESSELS OR AIRPLANES ARE AVAILABLE BY THE USUALLY TRAVELED ROUTE.' THE NECESSITY FOR USE OF UNITED STATES TRANSPORTATION FACILITIES IS FURTHER AMPLIFIED IN PARAGRAPH 2150-1, CITED IN THE SETTLEMENT, WHICH REQUIRES THE USE OF VESSLES OR AIRCRAFT REGISTERED UNDER THE LAWS OF THE UNITED STATES, UNLESS DETERMINED IMPRACTICAL OR NOT AVAILABLE, FOR ALL TRAVEL AND TRANSPORTATION OUTSIDE THE CONTINENTAL UNITED STATES.

THE ABOVE REGULATORY PROVISIONS, PROMULGATED PURSUANT TO STATUTORY AUTHORITY, HAVE THE FORCE AND EFFECT OF LAW AND WE MAY MAKE NO EXCEPTION TO SUCH PROVISIONS IN THE SETTLEMENT OF CLAIMS BY OUR OFFICE. THEREFORE, EVEN IF ORDERS WERE RECEIVED AT YOUR FORMER STATION AUTHORIZING YOUR DEPENDENTS' TRAVEL BY AIR, AS YOU STATE YOU HAVE BEEN INFORMED, SINCE YOUR DEPENDENTS TRAVELED BY FOREIGN AIRCRAFT, REIMBURSEMENT OF ANY PART OF THE EXPENSES INCURRED FOR THAT TRAVEL IS CLEARLY PROHIBITED BY PARAGRAPHS 7000 AND 2151-1 OF THE JOINT TRAVEL REGULATIONS IN THE ABSENCE OF A SHOWING THAT THE TRAVEL COULD NOT HAVE BEEN PERFORMED ON A SHIP OR AIRCRAFT REGISTERED UNDER THE LAWS OF THE UNITED STATES. ACCORDINGLY, THE SETTLEMENT OF JULY 20, 1962, DISALLOWING YOUR CLAIM FOR DEPENDENTS' TRAVEL FROM GERMANY TO NEW YORK CITY BY FOREIGN AIRCRAFT WAS CORRECT AND IS SUSTAINED.

REGARDING YOUR STATEMENT THAT YOU WERE NOT FAMILIAR WITH THE EXISTING REGULATIONS CONCERNING THE USE OF UNITED STATES TRANSPORTATION FACILITIES, IT IS A WELL-SETTLED PRINCIPLE OF LAW THAT SUCH CIRCUMSTANCES DO NOT AFFORD A PROPER BASIS FOR SUSPENDING THE APPLICATION OF THE LAW AND REGULATIONS TO THE FACTS INVOLVED IN YOUR CASE.