B-156494, JUL. 2, 1965

B-156494, JUL. 2, 1965

TO MR. DANIEL S. DEVOTO:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 25, 1965, IN EFFECT REQUESTING REVIEW OF THE SETTLEMENT OF MARCH 11, 1965, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT FOR TRAVEL OF YOUR DEPENDENTS FROM WHIDBEY ISLAND, WASHINGTON, TO MANTUA, NEW JERSEY, DURING THE PERIOD JANUARY 3 TO 7, 1951.

IN YOUR ORIGINAL CLAIM YOU SAY THAT YOU WERE ORDERED TO ACTIVE DUTY AT WILLOW GROVE NAVAL AIR STATION, PENNSYLVANIA, IN SEPTEMBER 1950, AND ASSIGNED TO SQUADRON VP-391; THAT THE SQUADRON WAS TRANSFERRED TO SAND POINT NAVAL AIR STATION, SEATTLE, WASHINGTON, AND THENCE TO WHIDBEY ISLAND NAVAL AIR STATION, WASHINGTON, WHERE YOU WERE TRAINED IN P2V PATROL PLANES. YOU ALSO SAY THAT IN DECEMBER YOU WERE INFORMED THAT THE SQUADRON WOULD BE SENT TO THE PACIFIC FOR A CLASSIFIED ASSIGNMENT AND THAT YOU COULD NOT TAKE YOUR DEPENDENTS. SINCE YOUR WIFE WAS EXPECTING A SECOND CHILD IN JANUARY 1951, YOU CONSIDERED IT ADVISABLE FOR HER TO HAVE THE BABY IN THE NAVAL HOSPITAL, PHILADELPHIA, PENNSYLVANIA, SO YOUR DEPENDENTS RETURNED TO MANTUA, NEW JERSEY, DURING THE PERIOD JANUARY 3 TO 7, 1951. YOU FURTHER SAY THAT ON FEBRUARY 4, 1951, YOU WERE INJURED IN A PLANE CRASH IN THE LAST CHECK OUT HOP BEFORE YOU WERE TO GO TO THE PACIFIC AND THEN TRANSFERRED TO THE U.S. NAVAL HOSPITAL, BREMERTON, WASHINGTON, FOR TREATMENT; THAT THE SQUADRON RETURNED TO WHIDBEY ISLAND AFTER THE MISSION, AND UPON RELEASE OF THE SQUADRON TO INACTIVE DUTY EVERYONE RECEIVED TRAVEL PAY FOR THE RETURN OF THEIR DEPENDENTS TO THE EAST COAST. YOUR CLAIM FOR TRAVEL OF YOUR DEPENDENTS IS BASED ON THE PREMISE THAT THE GROUP ORDERS TO THE HYDROGEN BOMB TEST IN THE PACIFIC WERE IN EFFECT MODIFIED BY THE FACT THAT YOU WERE INJURED. YOU HAVE FURNISHED ORDERS DATED FEBRUARY 5, 1951, TRANSFERRING YOU TO U.S. NAVAL HOSPITAL, BREMERTON, WASHINGTON, FOR TREATMENT; ORDERS DATED FEBRUARY 14, 1951, TRANSFERRING YOU TO U.S. NAVAL HOSPITAL, PHILADELPHIA, PENNSYLVANIA, FOR FURTHER TREATMENT AND DISPOSITION AND ORDERS DATED JULY 24, 1951, EFFECTING YOUR RELEASE FROM ACTIVE DUTY AND TRANSFER TO THE RETIRED LIST EFFECTIVE AUGUST 1, 1951, BY REASON OF A PERMANENT PHYSICAL DISABILITY. HOWEVER, YOU HAVE BEEN UNABLE TO FURNISH THE ORDERS UPON WHICH YOUR CLAIM IS BASED. IN YOUR PRESENT LETTER YOU SAY YOU CANNOT FURNISH SUCH ORDERS SINCE THEY WERE CLASSIFIED AS SECRET. HOWEVER, YOU POINT OUT THAT IF YOU HAD NOT BEEN INJURED YOU WOULD HAVE GONE WITH THE SQUADRON AND UPON RELEASE FROM ACTIVE DUTY IN THE FALL OF 1951 THE GOVERNMENT WOULD HAVE PAID FOR TRANSPORTATION HOME FOR YOUR WIFE AND TWO CHILDREN. YOU REFER TO PUBLIC LAW 88-238 AND YOU BELIEVE SOME BASIS SHOULD BE FOUND FOR THE ALLOWANCE OF YOUR CLAIM.

THIS OFFICE IS OBLIGED TO SETTLE CLAIMS ON THE BASIS OF APPLICABLE LAW AND REGULATIONS. SECTION 406 OF TITLE 37, U.S.C. PROVIDES THAT A MEMBER OF THE UNIFORMED SERVICE WHO IS ORDERED TO MAKE A CHANGE OF PERMANENT STATION IS ENTITLED TO TRANSPORTATION IN KIND FOR DEPENDENTS, OR TO REIMBURSEMENT THEREFOR, OR TO A MONETARY ALLOWANCE IN LIEU OF SUCH TRANSPORTATION IN KIND, SUBJECT TO SUCH CONDITIONS AND LIMITATIONS, AND FOR SUCH GRADES, RANKS AND RATINGS, AND TO OR FROM SUCH PLACES AS MAY BE PRESCRIBED BY THE SECRETARIES CONCERNED. PUBLIC LAW 88-238, APPROVED DECEMBER 23, 1963, CODIFIED IN SECTION 406 (A) OF THE SAME TITLE 37, PURSUANT TO WHICH YOUR CLAIM WAS FILED, PROVIDES THAT UNDER UNIFORM REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, A MEMBER OF A UNIFORMED SERVICE IS ENTITLED TO TRANSPORTATION OF HIS DEPENDENTS UNDER SECTION 406, IF OTHERWISE QUALIFIED, FOR TRAVEL PERFORMED BEFORE THE EFFECTIVE DATE OF ORDERS THAT DIRECT HIM TO MAKE A CHANGE OF STATION AND ARE LATER CANCELED, REVOKED OR MODIFIED TO DIRECT HIM TO RETURN TO THE STATION FROM WHICH HE WAS BEING TRANSFERRED, OR MODIFIED TO DIRECT HIM TO MAKE A DIFFERENT CHANGE OF STATION. WHILE YOU HAVE BEEN UNABLE TO FURNISH ORDERS TRANSFERRING YOUR SQUADRON TO DUTY IN THE PACIFIC, YOUR STATEMENTS THAT THE SQUADRON RETURNED TO WHIDBEY ISLAND AND THAT MOST OF THE DEPENDENTS REMAINED THERE, INDICATE A DEPLOYMENT OF THE UNIT AWAY FROM ITS PERMANENT STATION AND THAT THE MEMBERS ASSIGNED TO THE OPERATION ACTUALLY WERE ON TEMPORARY DUTY. SUCH TEMPORARY DUTY ASSIGNMENT WOULD NOT HAVE SERVED AS AUTHORITY FOR TRAVEL OF DEPENDENTS AT GOVERNMENT EXPENSE. THE FACT THAT YOUR INJURY MAY HAVE CANCELED ANY ORDERS YOUR UNIT RECEIVED BECAUSE OF THE OPERATION DEPLOYMENT, SO FAR AS YOU WERE CONCERNED, AFFORDS NO BASIS UNDER PUBLIC LAW 88-238 FOR TRAVEL OF YOUR DEPENDENTS FROM WHIDBEY ISLAND, WASHINGTON, TO MANTUA, NEW JERSEY, AT GOVERNMENT EXPENSE. MOREOVER, UNDER THE LAW AND REGULATIONS IN EFFECT AT THE TIME YOUR INDEPENDENTS PERFORMED THE TRAVEL, NO REIMBURSEMENT WAS AUTHORIZED FOR DEPENDENT TRAVEL WHERE SUCH TRAVEL WAS PERFORMED PRIOR TO THE ISSUANCE OF ORDERS DIRECTING A PERMANENT CHANGE OF STATION.

ACCORDINGLY, ON THE BASIS OF THE RECORD BEFORE US, THE SETTLEMENT OF MARCH 11, 1965, WAS CORRECT AND IS SUSTAINED.