B-152971, JAN 6, 1964

B-152971, JAN 6, 1964

TO MASTER SERGEANT JOHN F. E. ZACAVISH, RA 15 415 788:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 13, 1963, AND ENCLOSURE, REQUESTING REVIEW OF THE SETTLEMENT DATED OCTOBER 18, 1963, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT FOR THE COST OF TRANSPORTATION FOR YOUR DEPENDENTS BY DEUTSCHE LUFTHANSA AG AIRLINE FROM NEW YORK, NEW YORK, TO FRANKFURT, GERMANY, DURING THE PERIOD JUNE 27 TO 29, 1962.

BY SPECIAL ORDERS NO. 85, HEADQUARTERS, XX UNITED STATES ARMY CORPS, FORT HAYES, OHIO, DATED APRIL 30, 1962, YOU WERE TRANSFERRED FROM THE USA ROTC INSTRUCTOR GROUP OHIO, JOHN CARROLL UNIVERSITY (WITH STATION AT CLEVELAND, OHIO), TO THE 14TH ARTILLERY REGIMENT CAVALRY, APO 330, NEW YORK, NEW YORK (GERMANY). THESE ORDERS PROVIDED AN EFFECTIVE DATE OF CHANGE OF STRENGTH ACCOUNTABILITY AS OF JUNE 28, 1962, NOTED AFTER A PERIOD OF LEAVE OF 31 DAYS AND TEMPORARY DUTY OF ONE DAY AUTHORIZED IN THE ORDERS. THESE ORDERS ALSO NOTED THAT APPLICATION FOR CONCURRENT TRAVEL OF DEPENDENTS HAD BEEN FORWARDED--- PENDING FINAL ACTION. THE RECORD INDICATES THAT ON APRIL 4, 1962, YOU FILED DA FORM 2370, APPLICATION FOR OVERSEA MOVEMENT OF DEPENDENTS, BUT THAT NO OFFICIAL APPROVAL WAS EVER MADE OF YOUR APPLICATION AUTHORIZING CONCURRENT TRAVEL OF YOUR DEPENDENTS. THE RECORD FURTHER SHOWS THAT YOUR DEPENDENT WIFE AND THREE DAUGHTERS TRAVELED FROM CLEVELAND, OHIO, TO FRANKFURT, GERMANY, DURING THE PERIOD JUNE 27 TO 29, 1962, UTILIZING THE DEUTSCH LUFTHANSA AIRLINE FOR THAT PORTION OF THE JOURNEY FROM NEW YORK, NEW YORK, TO GERMANY, AT YOUR OWN PERSONAL EXPENSE AND THAT THE AIRLINE IN QUESTION IS A GERMAN FLAG AIR CARRIER. YOUR CLAIM FOR REIMBURSEMENT FOR YOUR DEPENDENTS' TRAVEL WAS DISALLOWED BY THE SETTLEMENT OF OCTOBER 18,1963, FOR THE REASON THAT NO AUTHORIZATION FOR DEPENDENT TRAVEL HAD BEEN MADE BY THE RESPONSIBLE AUTHORITIES, AND THAT EVEN IF SUCH AUTHORIZATION HAD BEEN ISSUED UNDER THE FACTS IN YOUR CLAIM NO REIMBURSEMENT COULD BE MADE FOR THE TRAVEL PERFORMED BY GERMAN AIRLINE IN THE ABSENCE OF A DETERMINATION THAT THE TRAVEL INVOLVED COULD NOT HAVE BEEN PERFORMED ON A SHIP OR AIRCRAFT REGISTERED UNDER THE LAWS OF THE UNITED STATES. WITH YOUR REQUEST FOR REVIEW YOU HAVE SUBMITTED A NOTARIZED STATEMENT DATED NOVEMBER 2, 1963, FROM TRAVEL TIME SERVICE, A TRAVEL AGENCY IN CLEVELAND, OHIO, IN WHICH IT IS STATED THAT SINCE JUNE OF 1962 WAS THE HEIGHT OF THE SEASON, AND THE CARRIERS HEAVILY BOOKED, IT WAS DIFFICULT TO OBTAIN CONFIRMED RESERVATIONS FOR YOUR FAMILY FOR THE PERIOD DESIRED, AND THAT THE AGENCY WAS FINALLY SUCCESSFUL IN GETTING RESERVATIONS ON LUFTHANSA AIRLINES. ON SUCH BASIS, YOU URGE PAYMENT OF YOUR CLAIM.

UNDER REGULATIONS PROMULGATED BY THE SECRETARIES CONCERNED PURSUANT TO THE PERTINENT STATUTE, 37 U.S.C. 406, MEMBERS OF THE UNIFORMED SERVICES MAY BE AUTHORIZED TRAVEL FOR THEIR DEPENDENTS UPON A CHANGE OF PERMANENT STATION. HOWEVER, THE LAW AUTHORIZING TRAVEL OF DEPENDENTS AT GOVERNMENT EXPENSE DOES NOT GRANT A RIGHT IN DEROGATION OF ADMINISTRATIVE AUTHORITY CONFERRED UPON THE DEPARTMENTS SO AS TO PERMIT A MEMBER TO IGNORE ADMINISTRATIVE REGULATIONS AND TRANSPORT HIS DEPENDENTS TO HIS NEW STATION WITHOUT REGARD TO MILITARY CONSIDERATIONS. THUS IT LONG HAS BEEN RECOGNIZED THAT THE RIGHT TO TRANSPORTATION OF DEPENDENTS OF MILITARY PERSONNEL AT GOVERNMENT EXPENSE UPON AN ORDERED PERMANENT CHANGE OF STATION IS NOT AN ABSOLUTE ONE BUT MAY BE ADMINISTRATIVELY SUSPENDED OR DENIED FOR REASONS OF MILITARY NECESSITY OR EXPEDIENCY, IN WHICH EVENT A MEMBER WHO TRANSPORTS HIS DEPENDENTS AT PERSONAL EXPENSE MAY NOT BE REIMBURSED THE EXPENSES SO INCURRED. CULP V. UNITED STATES, 76 CT.CL. 507.

PARAGRAPH 5.1, ARMY REGULATIONS 55-46, CHANGE 3, NOVEMBER 29, 1960,PROVIDES THAT THE DEPARTMENT OF DEFENSE POLICY IS TO DETER ENTRY INTO OVERSEAS AREAS OF DEPENDENTS WHOSE MILITARY SPONSORS WERE NOT ENTITLED TO TRANSPORTATION OF DEPENDENTS ON THE EFFECTIVE DATE OF ORDERS ASSIGNING THE MEMBERS TO THE OVERSEAS STATIONS, OR WHOSE SPONSORS WERE ENTITLED TO TRANSPORTATION OF DEPENDENTS ON THE EFFECTIVE DATE OF ORDERS ASSIGNING THE MEMBERS TO THE OVERSEAS DUTY STATIONS BUT WHO HAVE NOT BEEN AUTHORIZED BY THE OVERSEA COMMANDER TO ACCOMPANY OR JOIN THEIR SPONSORS OVERSEAS. FURTHER PROVIDES THAT SUCH DEPENDENTS MAY NOT BE TRANSPORTED TO THE MEMBER'S OVERSEAS DUTY STATION BY GOVERNMENT MEANS, EITHER ON THE SPACE REQUIRED OR SPACE AVAILABLE BASIS. WITH RESPECT TO CASES SUCH AS YOURS WHERE THE DEPENDENTS PROCEED TO THE OVERSEAS STATION AT PERSONAL EXPENSE WHEN TRAVEL IS NOT AUTHORIZED, PARAGRAPH 9-43C/1) (A), ARMY REGULATIONS 37 106, CHANGE 10, APRIL 19, 1961, PROVIDES THAT WHEN TRAVEL IS PERFORMED TO A PLACE OUTSIDE THE UNITED STATES (OTHER THAN ALASKA, HAWAII, OR A POSSESSION OF THE UNITED STATES) DESIGNATED BY THE MBER,"TRANSPORTATION OF DEPENDENTS FOR ACTUAL PERFORMANCE OF TRAVEL IS AUTHORIZED FROM THE OLD PERMANENT STATION, OR FROM THE PLACE DEPENDENTS ARE LOCATED IN THE UNITED STATES UPON RECEIPT OF THE PERMANENT CHANGE OF STATION ORDERS BY THE MEMBER, NOT TO EXCEED THE COST FROM THE OLD PERMANENT STATION TO THE POINT OF ACTUAL DEPARTURE (AERIAL OR WATER PORT) NORMALLY USED IN PROCEEDING TO THE PLACE OUTSIDE THE UNITED STATES.' SINCE AUTHORIZATION HAD NOT BEEN MADE BY PROPER AUTHORITY FOR THE CONCURRENT TRAVEL OF YOUR DEPENDENTS TO YOUR OVERSEAS STATION, AND SINCE TRAVEL AUTHORIZATION FOR YOUR DEPENDENTS HAD NOT BEEN ISSUED WHEN THEY ACTUALLY TRAVELED, THERE IS NO AUTHORITY UNDER CONTROLLING REGULATIONS FOR PAYMENT OF YOUR CLAIM FOR REIMBURSEMENT OF THEIR TRAVEL FROM NEW YORK TO FRANKFURT DURING THE PERIOD JUNE 27 TO 29, 1962.

WHILE THERE MIGHT HAVE BEEN UNNECESSARY DELAY OR ERROR IN THE CONSIDERATION OF YOUR REQUEST FOR TRANSPORTATION OF YOUR DEPENDENTS, IT IS WELL ESTABLISHED THAT, IN THE ABSENCE OF SPECIFIED STATUTORY PROVISIONS, THE UNITED STATES IS NOT LIABLE FOR THE NEGLIGENT ACTS OR OMISSIONS OF ITS OFFICERS, AGENTS, OR EMPLOYEES, EVEN THOUGH COMMITTED IN THE PERFORMANCE OF THEIR OFFICIAL DUTIES. GERMAN BANK V. UNITED STATES, 138 U.S. 573; 19 COMP. GEN. 503; 22 ID. 221. THUS DELAY IN ISSUING TRAVEL AUTHORIZATION FOR YOUR DEPENDENTS' TRAVEL WOULD NOT ENTITLE YOU TO REIMBURSEMENT OF SUCH TRAVEL CONTRARY TO CONTROLLING REGULATIONS IN EFFECT WHEN THE TRAVEL WAS PERFORMED.

PARAGRAPH 7000-8 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT MEMBERS OF THE MILITARY FORCES ARE NOT ENTITLED TO TRANSPORTATION FOR THEIR DEPENDENTS AT GOVERNMENT EXPENSE ON PERMANENT CHANGE OF STATION FOR ANY PORTION OF THEIR TRAVEL BY A FOREIGN REGISTERED VESSEL OR AIRPLANE IF AMERICAN REGISTERED VESSELS OR AIRPLANES ARE AVAILABLE BY THE USUALLY TRAVELED ROUTE, AND PARAGRAPH 2150 OF THE REGULATIONS PROVIDES THAT DETERMINATIONS AS TO AVAILABILITY MUST BE MADE BY THE TRANSPORTATION OR OTHER APPROPRIATE OFFICER AND ANNOTATED ON THE TRANSPORTATION REQUEST, BILL OF LADING, OR OTHER TRANSPORTATION PROCUREMENT DOCUMENT. IN VIEW OF SUCH PROVISIONS, WHICH ARE MADE IN CONSONANCE WITH THE PURPOSE AND REQUIREMENTS OF SECTION 901 OF THE MERCHANT MARINE ACT OF 1936, 49 STAT. 2015, AS AMENDED, 46 U.S.C. 1241 (E), THE SUBMITTED NOTARIZED STATEMENT OF TRAVEL TIME SERVICE MAY NOT BE ACCEPTED AS EVIDENCE OF NONAVAILABILITY OF AMERICAN AIRCRAFT. CONSEQUENTLY, YOU ARE ADVISED THAT HAD PROPER AUTHORIZATION OTHERWISE BEEN OBTAINED FOR YOUR DEPENDENTS' TRAVEL NO AUTHORITY WOULD EXIST TO REIMBURSE YOU FOR THEIR TRAVEL BY THE FOREIGN AIRCRAFT IN THE ABSENCE OF EVIDENCE OF A DETERMINATION BY THOSE CHARGED WITH THAT RESPONSIBILITY IN THE CITED REGULATIONS THAT THE TRAVEL COULD NOT HAVE BEEN PERFORMED BY VESSELS OR AIRCRAFT OF AMERICAN REGISTRY.

ACCORDINGLY, THE SETTLEMENT OF OCTOBER 18, 1963, DISALLOWING YOUR CLAIM, IS SUSTAINED.

WITH RESPECT TO YOUR REQUEST THAT ALL CLAIM PAPERS BE RETURNED TO YOU, YOU ARE ADVISED THAT IT WILL BE NECESSARY TO RETAIN THESE PAPERS HERE SINCE THEY CONSTITUTE A PART OF THE RECORD ON WHICH THE SETTLEMENT DISALLOWING YOUR CLAIM WAS BASED. SEE SECTION 81.1, TITLE 4, CODE OF FEDERAL REGULATIONS.