B-154695, OCT. 1, 1964

B-154695, OCT. 1, 1964

TO LIEUTENANT COLONEL GRANT S. GREEN:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JULY 1, 1964 REQUESTING RECONSIDERATION OF SETTLEMENT DATED JUNE 19, 1964, WHICH DISALLOWED YOUR CLAIM FOR MILEAGE FOR YOUR SON'S TRAVEL FROM NEW YORK, NEW YORK, TO PULLMAN, WASHINGTON, DURING THE PERIOD AUGUST 8 TO 23, 1962.

THE RECORD SHOWS THAT BY LETTER ORDERS 8-15 DATED AUGUST 3, 1962, HEADQUARTERS, 505TH SIGNAL GROUP, APO 46, US FORCES, THE TRAVEL OF YOUR SON, GARY M. GREEN, WAS AUTHORIZED FROM BREMERHAVEN, GERMANY, TO A DEBARKATION POINT IN CONTINENTAL UNITED STATES EVEN THOUGH PERMANENT CHANGE OF STATION ORDERS RETURNING YOU TO THE UNITED STATES HAD NOT BEEN ISSUED.

PARAGRAPH 3 OF THE ORDERS PROVIDED THAT TRANSPORTATION OF THE DEPENDENT WAS AUTHORIZED ON SPACE AVAILABLE BASIS AND THAT THE SPONSOR WOULD BEAR THE COST OF LAND TRAVEL TO THE PORT OF EMBARKATION AND FROM THE PORT OF DEBARKATION.

IT APPEARS THAT YOUR SON DEPARTED FROM BREMERHAVEN, GERMANY, ON AUGUST 9, 1962, BY GOVERNMENT VESSEL AND ARRIVED IN NEW YORK, NEW YORK, ON AUGUST 17, 1962. THEREAFTER, HE TRAVELED TO PULLMAN, WASHINGTON, AND ARRIVED THERE ON AUGUST 23, 1962. YOUR CLAIM FOR HIS TRAVEL FROM NEW YORK, NEW YORK, TO PULLMAN, WASHINGTON, WAS DISALLOWED BY SETTLEMENT DATED JUNE 19, 1964, FOR THE REASON THAT THE ORDERS LIMITED TRAVEL PERFORMED BY YOUR SON AT GOVERNMENT EXPENSE TO THE PORT OF DEBARKATION.

IN YOUR PRESENT LETTER YOU SAY THAT IN THE CASE OF DEPENDENTS WHO RETURN TO THE UNITED STATES BECAUSE OF INADEQUATE EDUCATIONAL FACILITIES AT AN OVERSEAS STATION, THE APPLICABLE REGULATIONS PROVIDE FOR THEIR TRAVEL TO AN APPROPRIATE DESTINATION IN THE UNITED STATES. IT APPEARS TO BE YOUR VIEW THAT EVEN THOUGH THIS AUTHORIZATION WAS NOT INCLUDED IN YOUR SON'S INVITATIONAL TRAVEL ORDERS, YOU ARE ENTITLED TO REIMBURSEMENT FOR HIS TRAVEL BEYOND THE PORT OF DEBARKATION IN THE UNITED STATES ON THE BASIS THAT THE REGULATION, IN AND OF ITSELF WITH NO FURTHER ACTION REQUIRED, AUTHORIZED REIMBURSEMENT FOR LAND TRAVEL PERFORMED UNDER CIRCUMSTANCES IN YOUR SON'S CASE.

UNDER THE PERTINENT STATUTE, 37 U.S.C. 406, A MEMBER OF A UNIFORMED SERVICE WHO IS ORDERED TO MAKE A PERMANENT CHANGE OF STATION IS ENTITLED TO TRANSPORTATION IN KIND FOR HIS DEPENDENT, TO REIMBURSEMENT THEREFOR, OR TO A MONETARY ALLOWANCE IN PLACE OF THAT TRANSPORTATION IN KIND AT A RATE TO BE PRESCRIBED. THIS GENERAL AUTHORITY IS SUBJECT TO THE LIMITATION PRESCRIBED IN 37 U.S.C. 406 (E) WHICH PROVIDES THAT:

"WHEN ORDERS DIRECTING A CHANGE OF PERMANENT STATION FOR THE MEMBER CONCERNED HAVE NOT BEEN ISSUED, OR WHEN THEY HAVE BEEN ISSUED BUT CANNOT BE USED AS AUTHORITY FOR THE TRANSPORTATION OF HIS DEPENDENTS, BAGGAGE, AND HOUSEHOLD EFFECTS, THE SECRETARIES CONCERNED MAY AUTHORIZE THE MOVEMENT OF THE DEPENDENTS, BAGGAGE, AND HOUSEHOLD EFFECTS AND PRESCRIBE TRANSPORTATION IN KIND, REIMBURSEMENT THEREFOR, OR A MONETARY ALLOWANCE IN PLACE THEREOF, AS THE CASE MAY BE, AS AUTHORIZED UNDER SUBSECTION (A) OR (B) OF THIS SECTION. * * *

THE PROVISIONS OF THE STATUTE, HOWEVER, ARE NOT SELF-EXECUTING BUT REQUIRE ISSUANCE OF REGULATIONS BY THE SECRETARIES OF THE SERVICES CONCERNED. IN THIS RESPECT, PARAGRAPH 7009-3 (CHANGE 109) OF THE JOINT TRAVEL REGULATIONS, IN EFFECT AT THE TIME THE TRAVEL HERE IN QUESTION WAS AUTHORIZED, PROVIDE THAT A MEMBER, REGARDLESS OF RANK OR GRADE, WHO IS PERMANENTLY STATIONED OUTSIDE THE UNITED STATES, MAY REQUEST THE ADVANCE RETURN OF HIS DEPENDENTS TO AN APPROPRIATE DESTINATION IN THE UNITED STATES WHEN THE EARLY RETURN OF DEPENDENTS IS DUE TO A LACK OF APPROPRIATE EDUCATIONAL FACILITIES, IN THE PARTICULAR OVERSEAS COMMAND. IN THIS CONNECTION IT SHOULD BE POINTED OUT THAT PARAGRAPH 7009-3 OF THE JOINT TRAVEL REGULATIONS DOES NOT ACTUALLY AUTHORIZE TRAVEL OF DEPENDENTS UNDER THE CONDITIONS INVOLVED, BUT RATHER AUTHORIZED THE ISSUANCE OF PROPER ORDERS FOR SUCH DEPENDENT TRAVEL. FURTHERMORE, PARAGRAPH 7009-3 AS SET FORTH IN CHANGE 109 PROVIDES THAT THE MEMBER MAY REQUEST THE ADVANCE RETURN OF HIS DEPENDENTS TO AN APPROPRIATE DESTINATION IN THE UNITED STATES AND THAT THE "ORDER-ISSUING AUTHORITY WILL DETERMINE THE APPROPRIATE DESTINATION TO WHICH TRAVEL WILL BE AUTHORIZED AND WILL INSURE THAT A REASONABLE RELATIONSHIP EXISTS BETWEEN THE CONDITIONS AND CIRCUMSTANCES IN THE CASE AND THE DESTINATION TO WHICH TRAVEL IS AUTHORIZED.' NO SUCH DETERMINATION AND AUTHORIZATION WAS MADE BY THE ORDER-ISSUING AUTHORITY FOR YOUR SON TO TRAVEL TO PULLMAN, WASHINGTON, AND THE REGULATION DOES NOT PROVIDE FOR THE TRAVEL OF THE DEPENDENTS AT PUBLIC EXPENSE TO A DESTINATION SELECTED BY THE MEMBER, IN THE ABSENCE OF SUCH ADMINISTRATIVE DETERMINATION AND AUTHORIZATION.

WHILE THE ABOVE-MENTIONED DEPENDENT TRAVEL AUTHORIZATION OF AUGUST 3, 1962, DESCRIBES YOUR SON'S TRAVEL AS "MOVEMENT OF STUDENT DEPENDENT" IT DID NOT PERMIT YOUR SON TO TRAVEL AT PUBLIC EXPENSE BEYOND NEW YORK, NEW YORK, THE PORT OF DEBARKATION IN THE UNITED STATES. YOUR RIGHTS TO TRAVEL ALLOWANCES FOR YOUR SON'S TRAVEL ACCRUED AND BECAME FIXED UNDER THOSE ORDERS AND NO ACTION MAY NOW BE TAKEN TO ALTER THE LIABILITY OF THE GOVERNMENT IN THE MATTER. SEE 23 COMP. GEN. 713 AND 24 COMP. GEN. 439. THEREFORE, THERE IS NO AUTHORITY FOR PAYMENT OF HIS TRANSPORTATION FROM NEW YORK, NEW YORK, TO PULLMAN, WASHINGTON.

ACCORDINGLY, THE SETTLEMENT OF JUNE 19, 1964, IS CORRECT AND IS SUSTAINED.