B-155802, FEB. 8, 1965, 44 COMP. GEN. 469

B-155802, FEB. 8, 1965, 44 COMP. GEN. 469

FAMILY ALLOWANCES - SEPARATION - TYPE 2 - SHIP DUTY - DUTY TOUR SELECTION A NAVY OFFICER TRANSFERRED TO A VESSEL LOCATED IN AN UNRESTRICTED FOREIGN HOME PORT ENTITLING HIM TO THE TRANSPORTATION OF HIS DEPENDENTS TO THE OVERSEAS STATION AT GOVERNMENT EXPENSE, PURSUANT TO 37 U.S.C. 406, WHO FAILS TO SELECT WITHIN THE TIME LIMITATION PRESCRIBED BY SECNAVINST 7220.46A, THE SHORTER "ALL OTHERS" TOUR OF DUTY UNDER WHICH TRAVEL OF DEPENDENTS TO AN OVERSEAS DUTY STATION IS NOT AUTHORIZED MAY NOT BE PAID A FAMILY SEPARATION ALLOWANCE, TYPE 2, FOR THE PERIOD OF DUTY ABOARD THE VESSEL PRIOR TO ITS RETURN TO A HOME PORT IN THE UNITED STATES, NOTWITHSTANDING THE OFFICER'S FAILURE TO SELECT THE SHORTER TOUR OF DUTY, WHICH WOULD HAVE ENTITLED HIM TO THE PAYMENT OF A FAMILY SEPARATION ALLOWANCE, MAY HAVE BEEN DUE TO THE FACT THAT THE REGULATION PRESCRIBING THE ALLOWANCE WAS NOT PUBLISHED ON THE VESSEL, AS THE GOVERNMENT IS NOT LIABLE FOR THE NEGLIGENT ACTS OF ITS OFFICERS, AGENTS, OR EMPLOYEES, EVEN THOUGH COMMITTED IN THE PERFORMANCE OF OFFICIAL DUTIES.

TO LIEUTENANT ANTHONY T. KURAS, FEBRUARY 8, 1965:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED DECEMBER 8, 1964, REQUESTING REVIEW OF THE SETTLEMENT OF DECEMBER 2, 1964, WHICH DISALLOWED YOUR CLAIM FOR FAMILY SEPARATION ALLOWANCE, TYPE II, FOR THE PERIOD FEBRUARY 13 TO SEPTEMBER 12, 1964.

BY ORDERS DATED OCTOBER 14, 1963, YOU WERE TRANSFERRED FROM DUTY ABOARD THE U.S.S. WASP (CVS-18) TO DUTY ABOARD THE U.S.S. MISSISSINEWA (AO-144). THIS TRANSFER WAS TO OCCUR WHEN DIRECTED IN JANUARY 1964. SECOND ENDORSEMENT ON THE ORDERS INDICATES YOU REPORTED ABOARD THE LATTER VESSEL AT NAPLES, ITALY, ON FEBRUARY 14, 1964. IT APPEARS THAT NAPLES WAS THE HOME PORT OF THE U.S.S. MISSISSINEWA AT THAT TIME AND THAT BY CHIEF OF NAVAL OPERATIONS MESSAGES OF APRIL AND JUNE 1964, IT WAS CHANGED TO NEWPORT, RHODE ISLAND, EFFECTIVE SEPTEMBER 12, 1964. IN THE SETTLEMENT IT WAS STATED THAT THE ORDERS OF OCTOBER 14, 1963, DID NOT CONTAIN A RESTRICTION ON THE MOVEMENT OF DEPENDENTS TO THE DUTY STATION (HOME PORT OF YOUR VESSEL) OR A PLACE NEAR THERE, AND THAT YOU DID NOT SELECT THE "ALL OTHERS" TOUR OF DUTY WITHIN THE TIME SPECIFIED IN PARAGRAPH 4G (5), SECNAVINST 7220.46A, DATED MARCH 27, 1964.

IN YOUR REQUEST FOR REVIEW YOU STATE THAT YOU DID NOT BELIEVE IT ADVISABLE TO MOVE YOUR DEPENDENTS TO NAPLES FOR THE REASON THAT INFORMATION PUBLISHED BY THE NAVY INDICATED THAT THE U.S.S. MISSISSINEWA WOULD BE RETURNED TO THE UNITED STATES IN MID-JUNE FOR SHIPYARD OVERHAUL AND, IN ADDITION, YOU SAY THAT THERE WERE PERSISTENT RUMORS THAT THE HOME PORT WOULD BE CHANGED FROM NAPLES TO A PORT IN THE UNITED STATES. YOU FURTHER SAY THAT IT WAS IMPOSSIBLE FOR YOU TO SELECT THE "ALL OTHERS" TOUR WITHIN THE TIME LIMIT REQUIRED BY THE INSTRUCTION OF MARCH 27, 1964, SINCE,

* * * TO THE BEST OF MY KNOWLEDGE, THIS INSTRUCTION WAS NOT RECEIVED ON BOARD UNTIL AFTER 30 APRIL 1964. IF, BY CHANCE, THIS INSTRUCTION WAS RECEIVED ON BOARD PRIOR TO 30 APRIL 1964, THEN THE DISBURSING OFFICE DID NOT MAKE ANY EFFORT TO PUBLISH ITS CONTENTS THROUGH ANY MEDIA, SUCH AS THE PLAN OF THE DAY, NOR DID IT MAKE ANY ATTEMPT TO NOTIFY PEOPLE CONCERNED OF THE "ALL OTHERS" CLAUSE AND ITS TIME LIMIT, IN SPITE OF THE CERTIFICATION SIGNED BY THE DISBURSING OFFICER ON FORM DD 827 (APPLICATION FOR ARREARS OF PAY) FILED BY THE UNDERSIGNED, DATED 15 OCTOBER 1964.

THE PERTINENT STATUTE, 37 U.S.C. 427 (B), AS ADDED BY SECTION 11 OF THE UNIFORMED SERVICES PAY ACT OF 1963, APPROVED OCTOBER 2, 1963, PROVIDES FOR PAYMENT OF FAMILY SEPARATION ALLOWANCE OF $30 A MONTH, DESIGNATED AS TYPE II IN THE INSTRUCTION OF MARCH 27, 1964, TO CERTAIN MEMBERS UNDER SPECIFIED CIRCUMSTANCES INCLUDING CASES WHEN THE MOVEMENT OF HIS DEPENDENTS TO HIS PERMANENT STATION OR A PLACE NEAR THAT STATION IS NOT AUTHORIZED AT THE EXPENSE OF THE UNITED STATES UNDER SECTION 406 OF THE SAME TITLE AND HIS DEPENDENTS DO NOT RESIDE AT OR NEAR THE STATION. SEE PARAGRAPH 3B, SECNAVINST 7220.46A, MARCH 27, 1964. SECTION 406 OF TITLE 37, U.S. CODE, PROVIDES IN EFFECT THAT A MEMBER OF THE UNIFORMED SERVICES WHO IS ORDERED TO MAKE A PERMANENT CHANGE OF STATION IS ENTITLED TO TRANSPORTATION IN KIND FOR HIS DEPENDENTS, REIMBURSEMENT THEREFOR OR A MONETARY ALLOWANCE IN LIEU OF TRANSPORTATION SUBJECT TO SUCH CONDITIONS AND LIMITATIONS, FOR SUCH GRADES AND RATINGS, AND TO AND FROM SUCH PLACES AS MAY BE PRESCRIBED BY THE SECRETARIES CONCERNED. THE CONDITIONS AND LIMITATIONS ARE SET FORTH IN CHAPTER 7 OF THE JOINT TRAVEL REGULATIONS. UNDER THOSE REGULATIONS TRAVEL OF DEPENDENTS TO THE HOME PORT OF A VESSEL IS AUTHORIZED WHEN A MEMBER IS TRANSFERRED FROM ONE VESSEL TO ANOTHER UNLESS THE HOME PORT OF THE VESSEL TO WHICH THE MEMBER IS ASSIGNED IS IN A RESTRICTED AREA. SINCE NAPLES, ITALY, WAS NOT A RESTRICTED AREA WHEN YOU WERE ASSIGNED TO DUTY ABOARD THE U.S.S. MISSISSINEWA,TRANSPORTATION OF YOUR DEPENDENTS TO NAPLES PRESUMABLY WOULD HAVE BEEN AUTHORIZED UNDER SECTION 406 UPON YOUR APPLICATION.

PARAGRAPH 4G, SECNAVINST 7220.46A PRESCRIBES REGULATIONS FOR PAYMENT OF FAMILY SEPARATION ALLOWANCE INCIDENT TO AN "OVERSEAS" ASSIGNMENT DEPENDING ON WHETHER THE MEMBER HAS ELECTED UNDER BUPERSINST 1300.26C, AS AMENDED, TO SERVE THE LONGER TOUR PRESCRIBED FOR VARIOUS OVERSEAS STATIONS WHEN "WITH DEPENDENTS" OR THE SHORTER "ALL OTHERS" TOUR UNDER WHICH TRAVEL OF DEPENDENTS TO THE OVERSEAS STATION IS NOT AUTHORIZED. PARAGRAPH 3A OF THE LATTER INSTRUCTION DEFINES OVERSEAS DUTY FOR THE PURPOSE OF THAT INSTRUCTION AS MILITARY DUTY PERFORMED WHILE ASSIGNED TO A MILITARY INSTALLATION OR ACTIVITY PERMANENTLY LOCATED AT A LAND STATION OUTSIDE THE UNITED STATES OR IN ALASKA. PARAGRAPH 6G OF SUCH LATTER INSTRUCTION PROVIDES THAT IF A MEMBER IS ON DUTY AT, OR EN ROUTE TO AN OVERSEAS DUTY STATION ON APRIL 1, 1964, HE SHALL BE GIVEN 30 DAYS FROM THAT DATE, OR 30 DAYS FROM THE DATE OF REPORTING TO HIS OVERSEAS DUTY STATION, WHICHEVER IS LATER, TO SELECT THE "ALL OTHERS" OR "WITH DEPENDENTS" TOUR. IF HE SELECTS THE "ALL OTHERS" TOUR, HIS ORDERS ARE TO BE ENDORSED TO THE EFFECT THAT TRANSPORTATION OF HIS DEPENDENTS TO HIS DUTY STATION IS NOT AUTHORIZED.

PARAGRAPH 6H OF THE INSTRUCTIONS PROVIDES THAT THE ABOVE POLICIES SHALL BE APPLIED AS FAR AS PRACTICABLE TO MEMBERS ASSIGNED TO NONROTATEDSHIPS, FLEET AVIATION UNITS AND OTHER MOBILE UNITS WITH HOME PORTS OR PERMANENT STATIONS OUTSIDE THE UNITED STATES OR IN ALASKA OR HAWAII. IT FURTHER STATES THAT SINCE THE SPECIFIED TOURS AT OVERSEAS STATIONS DO NOT APPLY TO SUCH PERSONNEL, THEY SHALL BE GIVEN AN OPPORTUNITY TO INDICATE WHETHER THEY DESIRE TO REQUEST TRANSPORTATION OF DEPENDENTS TO THE OVERSEAS HOME PORT. IF THE MEMBER CHOOSES NOT TO REQUEST SUCH TRANSPORTATION, HIS ORDERS ARE TO BE ENDORSED TO THE EFFECT THAT DEPENDENTS' TRAVEL TO THE OVERSEAS HOME PORT IS NOT AUTHORIZED AT GOVERNMENT EXPENSE. YOUR ORDERS DO NOT BEAR SUCH AN ENDORSEMENT AND THERE IS NOTHING TO INDICATE THAT YOUR DEPENDENTS COULD NOT HAVE TRAVELED AT GOVERNMENT EXPENSE TO NAPLES, THE HOME PORT OF THE MISSISSINEWA, AFTER YOUR TRANSFER TO SUCH VESSEL AND PRIOR TO THE TIME YOU SAY THAT A MESSAGE WAS ISSUED IN APRIL 1964, ANNOUNCING THAT THE HOME PORT WOULD BE CHANGED.

IT APPARENTLY IS YOUR BELIEF THAT SECNAVINST 7220.46A OF MARCH 27, 1964, WAS NOT RECEIVED ON BOARD YOUR VESSEL UNTIL AFTER APRIL 30, 1964, OR, IF IT WAS RECEIVED ON BOARD PRIOR TO THAT DATE ITS CONTENTS WERE NOT PUBLISHED. AS A RESULT YOU CONTEND THAT YOU WERE NOT AFFORDED AN OPPORTUNITY TO INDICATE WHETHER OR NOT YOU DESIRED TRANSPORTATION FOR YOUR DEPENDENTS TO THE HOME PORT. BOTH THE ABOVE INSTRUCTION AND BUPERS INSTRUCTION 1300.26C, CHANGE 2, MARCH 27, 1964, WERE ADDRESSED TO ALL SHIPS AND STATIONS (LESS CERTAIN MARINE CORPS ADDRESSES) AND THERE IS NOTHING IN THE RECORD FROM AN OFFICIAL OF YOUR VESSEL SHOWING THAT THE MESSAGES WERE NOT RECEIVED ON BOARD PRIOR TO APRIL 30, 1964. THE RECORD BEFORE US DOES NOT SHOW WHAT EFFORTS WERE MADE TO PUBLISH THE CONTENTS OF THESE MESSAGES, WHEN RECEIVED, TO THE PERSONNEL SERVING ON YOUR VESSEL. IT IS WELL ESTABLISHED, HOWEVER, THAT, IN THE ABSENCE OF SPECIFIC STATUTORY PROVISIONS TO THE CONTRARY, THE UNITED STATES IS NOT LIABLE FOR THE NEGLIGENT ACTIONS OF ITS OFFICERS, AGENTS OR EMPLOYEES EVEN THOUGH COMMITTED IN THE PERFORMANCE OF THEIR OFFICIAL DUTIES. ROBERTSON V. SICHEL, 127 U.S. 507, 515.

ACCORDINGLY, ON THE BASIS OF THE PRESENT RECORD, THE DISALLOWANCE OF YOUR CLAIM WAS CORRECT AND IS SUSTAINED.