B-150919, APR. 24, 1963

B-150919, APR. 24, 1963

TO LIEUTENANT COLONEL J. B. BEARD, USA (RETIRED):

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 12, 1963, REQUESTING REVIEW OF OUR SETTLEMENT OF JANUARY 14, 1963, WHICH DISALLOWED YOUR CLAIM FOR TRANSPORTATION ALLOWANCE FOR DEPENDENTS' TRAVEL FROM FORT MONROE, VIRGINIA, TO PHOENIX, ARIZONA, JUNE 8 TO JULY 4, 1962, INCIDENT TO YOUR RETIREMENT UNDER ORDERS OF NOVEMBER 21, 1962.

BY LETTER DATED NOVEMBER 5, 1962, ADDRESSED TO THE ADJUTANT GENERAL, DEPARTMENT OF THE ARMY, WASHINGTON, D.C., YOU APPLIED FOR RETIREMENT EFFECTIVE NOVEMBER 30, 1962, UNDER THE PROVISIONS OF PARAGRAPH 6, ARMY REGULATIONS 635-130. IN THE LAST PARAGRAPH OF THAT LETTER YOU REQUESTED TELEGRAPHIC ORDERS AS SOON AS PRACTICABLE IN ADVANCE OF REGULAR ORDERS IN ORDER THAT YOU MIGHT SHIP YOUR HOUSEHOLD GOODS AND UTILIZE ACCRUED LEAVE PRIOR TO ACTUAL DATE OF RETIREMENT. YOU ALSO REQUESTED THAT YOUR ORDERS CONTAIN A PROVISION AUTHORIZING MOVEMENT OF DEPENDENTS TO HOME OF RETIREMENT PRIOR TO ACTUAL RECEIPT OF ORDERS, SINCE SUCH MOVEMENT HAD ALREADY BEEN ACCOMPLISHED TO PRECLUDE THE INTERRUPTION OF YOUR CHILDREN'S SCHOOL YEAR AND IN REASONABLE ANTICIPATION OF OFFICIAL ORDERS. BY TWX DATED NOVEMBER 21, 1962, YOU WERE ORDERED RELIEVED FROM ACTIVE DUTY NOVEMBER 30, 1962, AND PLACED ON THE RETIRED LIST DECEMBER 1, 1962, UNDER THE PROVISIONS OF 10 U.S.C. 3911 AND 3963, PURSUANT TO PARAGRAPH 165, SPECIAL ORDERS NO. 283, HEADQUARTERS, DEPARTMENT OF THE ARMY, DATED NOVEMBER 21, 1962. THE TWX PRECEDED RECEIPT OF YOUR RETIREMENT ORDERS WHICH APPEAR TO HAVE BEEN ISSUED ON THE SAME DATE. IN YOUR CERTIFICATE FOR TRAVEL TO HOME OF SELECTION, YOU SHOW THAT YOUR DEPENDENTS TRAVELED FROM FORT MONROE, VIRGINIA, TO PHOENIX, ARIZONA, JUNE 8 TO JULY 4, 1962, AND THAT YOU TRAVELED TO YOUR HOME NOVEMBER 26 TO 29, 1962.

YOUR CLAIM FOR TRANSPORTATION ALLOWANCE FOR THE TRAVEL OF YOUR DEPENDENTS WAS ADMINISTRATIVELY DENIED AND SUBSEQUENTLY DISALLOWED BY OUR CLAIMS DIVISION IN SETTLEMENT OF JANUARY 14, 1963, FOR THE REASONS THAT YOUR DEPENDENTS COMPLETED THEIR TRAVEL PRIOR TO THE DATE OF DETERMINATION WAS MADE BY THE DEPARTMENT OF THE ARMY TO ISSUE ORDERS EFFECTING YOUR RETIREMENT AND YOUR CLAIM WAS NOT SUPPORTED BY A CERTIFICATE REQUIRED BY PARAGRAPH 7000-9, JOINT TRAVEL REGULATIONS, THAT YOU WERE ADVISED PRIOR TO THE ISSUANCE OF ORDERS THAT SUCH ORDERS WOULD BE ISSUED.

YOU REFER TO THE REQUEST MADE IN YOUR LETTER OF NOVEMBER 5, 1962, MAKING APPLICATION FOR RETIREMENT, FOR ADVANCE ORDERS FOR SHIPMENT OF HOUSEHOLD GOODS AND ORDERS AUTHORIZING YOUR DEPENDENTS' TRAVEL TO PHOENIX, ARIZONA, PRIOR TO THE ACTUAL RECEIPT OF RETIREMENT ORDERS. YOU STATE FURTHER THAT SINCE YOUR OTHER REQUESTS WERE APPROVED, YOU ASSUMED THAT YOUR REQUEST FOR ORDERS AUTHORIZING THE ADVANCE TRAVEL OF YOUR DEPENDENTS WAS ALSO APPROVED, INASMUCH AS YOU WERE NOT ADVISED BY THE DEPARTMENT OF THE ARMY THAT IT WAS NOT APPROVED. IT APPEARS TO BE YOUR CONTENTION THAT WHEN THE SECRETARY OF THE ARMY APPROVED YOUR REQUEST FOR VOLUNTARY RETIREMENT, HE DID IN FACT APPROVE YOUR REQUEST FOR EARLY DEPENDENT TRAVEL AND SINCE SUCH TRAVEL WAS PERFORMED IN GOOD FAITH IN ANTICIPATION OF OFFICIAL TRAVEL ORDERS AND TO THE SAME DESTINATION AS THAT OF THE PRINCIPAL, WHOSE CLAIM WAS ALLOWED, THE CLAIM SHOULD BE ALLOWED.

PARAGRAPH 7000-9 OF THE JOINT TRAVEL REGULATIONS, PROMULGATED PURSUANT TO THE PERTINENT STATUTE, 37 U.S.C. 406, PROVIDES THAT MEMBERS OF THE UNIFORMED SERVICES ARE ENTITLED TO TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE UPON A PERMANENT CHANGE OF STATION, INCLUDING THE CHANGE FROM LAST STATION TO HOME UPON RETIREMENT, EXCEPT WHERE THE DEPENDENTS DEPARTED THE OLD PERMANENT STATION PRIOR TO THE ISSUANCE OF ORDERS AND THE VOUCHER IS NOT SUPPORTED BY A CERTIFICATE OF THE COMMANDING OFFICER, OR HIS DESIGNATED REPRESENTATIVE, OF THE HEADQUARTERS ISSUING THE ORDERS THAT THE MEMBER WAS ADVISED THAT SUCH ORDERS WOULD BE ISSUED. SEEMS CLEAR THAT THE REGULATIONS CONTEMPLATE THAT THE MEMBER HAD RECEIVED DEFINITE INFORMATION PRIOR TO THE TIME HIS DEPENDENTS TRAVELED, OF AN IMPENDING PERMANENT CHANGE OF STATION. MERE GENERAL INFORMATION AS TO THE TIME OF EVENTUAL RELIEF FROM ACTIVE DUTY ON THE BASIS OF AN APPLICATION FOR RETIREMENT IS INSUFFICIENT TO MEET THE REQUIREMENTS OF THE REGULATIONS. 34 COMP. GEN. 241.

IT SEEMS APPARENT THAT THE PRIMARY REASON FOR YOUR DEPENDENTS' TRAVEL PRIOR TO YOUR RETIREMENT WAS IN CONNECTION WITH NECESSARY ARRANGEMENTS FOR YOUR CHILDREN'S SCHOOLING AND NOT BECAUSE OF ANY ACTUAL NOTICE THAT ORDERS WERE TO BE ISSUED RELEASING YOU FROM ACTIVE DUTY. NO CERTIFICATE WAS ISSUED BY THE ORDER-ISSUING AUTHORITY THAT YOU WERE ADVISED PRIOR TO YOUR DEPENDENTS' TRAVEL THAT RETIREMENT ORDERS WOULD BE ISSUED, AND IT WOULD SEEM THAT SUCH A CERTIFICATE COULD NOT HAVE BEEN PROPERLY ISSUED IN YOUR CASE SINCE YOUR APPLICATION FOR RETIREMENT WAS NOT SUBMITTED UNTIL APPROXIMATELY FOUR MONTHS AFTER YOUR DEPENDENTS PERFORMED THEIR TRAVEL. THE MERE FACT THAT YOU WERE NOT NOTIFIED AT THE TIME OF APPROVAL OF YOUR RETIREMENT APPLICATION OF ANY ACTION REGARDING YOUR REQUEST FOR APPROVAL OF DEPENDENTS' ADVANCE TRAVEL MAY NOT BE CONSIDERED AS TANTAMOUNT TO AN APPROVAL. ACCORDINGLY, THE SETTLEMENT OF JANUARY 14, 1963, WAS CORRECT AND IS SUSTAINED.

WITH RESPECT TO YOUR REQUEST FOR A COPY OF YOUR ORIGINAL REQUEST FOR VOLUNTARY RETIREMENT, TOGETHER WITH THE SECRETARY OF THE ARMY'S COMMENTS ON THAT REQUEST, IT IS SUGGESTED THAT YOU CONTACT THE ADJUTANT GENERAL, DEPARTMENT OF THE ARMY, WASHINGTON 25, D.C., FOR SUCH CORRESPONDENCE. ALL OTHER CORRESPONDENCE TRANSMITTED WITH YOUR CLAIM HAVE BECOME A PART OF THE RECORDS OF OUR OFFICE ON WHICH OUR ACTION WAS BASED AND THEREFORE MAY NOT BE RETURNED TO YOU. THERE IS ENCLOSED, HOWEVER, OUR SETTLEMENT CERTIFICATE OF JANUARY 14, 1963, WHICH YOU SUBMITTED WITH YOUR REQUEST FOR REVIEW.