B-149964, OCT 24, 1962

B-149964, OCT 24, 1962

TO MR. MARTIN E. OWENS:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 14, 1962, REQUESTING RECONSIDERATION OF SETTLEMENT DATED SEPTEMBER 12, 1962, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT FOR YOUR DEPENDENT'S TRAVEL FROM KUMA STATION, APO 181, JAPAN, TO SAN FRANCISCO, CALIFORNIA, JUNE 28, 1962, INCIDENT TO YOUR RETURN FROM OVERSEAS.

THE RECORD SHOWS THAT BY LETTER ORDER 6-71-62, DATED JUNE 21, 1962, ISSUED BY HEADQUARTERS, 12TH US ASA FIELD STATION, APO 181, SAN FRANCISCO, CALIFORNIA, YOUR REASSIGNMENT TO OAKLAND, CALIFORNIA, WAS DIRECTED FOR PROCESSING FOR SEPARATION FROM THE SERVICE. YOU WERE RELIEVED FROM ASSIGNMENT AT KUMA STATION AND DIRECTED TO REPORT TO YOKOHAMA FOR TRANSPORTATION TO THE CONTINENTAL UNITED STATES (PERSONNEL CENTER, OAKLAND 14, CALIFORNIA) FOR PURPOSES OF SEPARATION. THESE ORDERS PROVIDED THAT TRANSPORTATION WOULD BE FURNISHED BY THE TRANSPORTATION CORPS AND STATED THAT TRAVEL VIA AIRCRAFT OF JAPANESE AIR CARRIER WAS AUTHORIZED WITHIN JAPAN ONLY IN ACCORD WITH PARAGRAPH 2150-2, JOINT TRAVEL REGULATIONS. YOUR DEPENDENT WIFE MASAKO, TRAVELED FROM CHITOSE TO TOKYO, JAPAN, AND THEN BY JAPAN AIR LINES, FROM TOKYO TO SAN FRANCISCO, CALIFORNIA, AT PERSONAL EXPENSE. YOU HAVE BEEN REIMBURSED FOR HER FURTHER TRAVEL FROM OAKLAND, CALIFORNIA, TO TROY, NEW YORK, AND YOU SEEK REIMBURSEMENT FOR HER TRAVEL FROM JAPAN TO THE UNITED STATES.

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. IN YOUR CURRENT LETTER, YOU CONTEND THAT YOUR WIFE TRAVELED BY JAPAN AIR LINES BECAUSE OF THE SHORT NOTICE YOU HAD OF YOUR IMPENDING RETURN TO THE UNITED STATES AND BECAUSE AMERICAN CARRIERS WERE SOME DISTANCE FROM YOUR STATION. YOU ALSO CONTEND THAT YOU WERE NEVER INFORMED THAT THE CARRIER FOR HER TRAVEL HAD TO BE AMERICAN. ON SUCH BASIS, YOU APPARENTLY FEEL THAT REIMBURSEMENT SHOULD BE MADE FOR YOUR WIFE'S TRAVEL BY JAPAN AIR LINES TO THE UNITED STATES.

THE STATUTORY AUTHORITY FOR TRANSPORTATION FOR 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 (INCLUDING FROM LAST STATION TO HOME) SHALL BE UNDER SUCH CONDITIONS AND LIMITATION FOR SUCH RANKS, GRADES, 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 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 OF THE JOINT TRAVEL REGULATIONS WHICH REQUIRES THE USE OF VESSELS OR AIRCRAFT REGISTERED UNDER THE LAWS OF THE UNITED STATES, UNLESS DETERMINED IMPRACTICAL OR UNAVAILABLE, FOR ALL TRAVEL AND TRANSPORTATION OUTSIDE THE CONTINENTAL UNITED STATES. MERE INCONVENIENCE OF SHORT DELAYS IN AWAITING TRANSPORTATION IN VESSELS OR AIRCRAFT OF UNITED STATES REGISTRY IS NOT A SUFFICIENT JUSTIFICATION FOR THE USE OF TRANSPORTATION OF FOREIGN REGISTRY.

THE ABOVE REGULATORY PROVISIONS PROMULGATED PURSUANT TO STATUTORY AUTHORITY, HAVE THE FORCE AND EFFECT OF LAW AND WE MAY MAKE NO EXCEPTIONS TO SUCH PROVISIONS IN THE SETTLEMENT OF CLAIMS BY OUR OFFICE. REIMBURSEMENT OF ANY PART OF THE EXPENSES INCURRED FOR YOUR WIFE'S TRAVEL BY JAPAN AIR LINES TO THE UNITED STATES IS CLEARLY PROHIBITED BY PARAGRAPHS 7000 AND 2150-1 OF THE JOINT TRAVEL REGULATIONS IN THE ABSENCE OF AN OFFICIAL DETERMINATION THAT THE TRAVEL INVOLVED COULD NOT HAVE BEEN PERFORMED ON A SHIP OR AIRCRAFT REGISTERED UNDER THE LAWS OF THE UNITED STATES. HOWEVER, SINCE YOU ARE ENTITLED TO REIMBURSEMENT FOR YOUR WIFE'S TRAVEL FROM KUMA STATION TO TOKYO A SETTLEMENT FOR THE AMOUNT DUE AS A MONETARY ALLOWANCE FOR SUCH TRAVEL WILL ISSUE IN DUE COURSE.

REGARDING YOUR STATEMENT THAT YOU WERE NEVER INFORMED THAT THE CARRIER FOR YOUR WIFE'S TRAVEL HAD TO BE AMERICAN, IT IS A WELL-SETTLED PRINCIPLE OF LAW THAT SUCH CIRCUMSTANCES DO NOT AFFORD A PROPER BASIS FOR SUSPENDING APPLICATION OF THE LAW AND REGULATIONS TO THE FACTS INVOLVED IN YOUR CASE. ACCORDINGLY, THE SETTLEMENT OF SEPTEMBER 12, 1962, DISALLOWING YOUR CLAIM FOR DEPENDENT'S TRAVEL FROM TOKYO TO SAN FRANCISCO BY FOREIGN AIRCRAFT WAS CORRECT AND IS SUSTAINED.

CONCERNING YOUR REQUEST FOR INFORMATION AS TO HOW TO PROCEED FURTHER IN THIS MATTER, YOU ARE ADVISED THAT THE ACTION OF OUR OFFICE ON CLAIMS AGAINST THE UNITED STATES IS BY LAW MADE FINAL AND CONCLUSIVE ON ALL EXECUTIVE DEPARTMENTS OF THE GOVERNMENT. HOWEVER, THE COURT OF CLAIMS OF THE UNITED STATES HAS JURISDICTION TO CONSIDER AND DETERMINE CERTAIN CLAIMS AGAINST THE UNITED STATES IF FILED THERE WITHIN SIX YEARS AFTER THE CLAIM FIRST ACCRUES. 28 U.S.C. 2501.