B-157270, SEP. 3, 1965

B-157270, SEP. 3, 1965

TO MAJOR ARNOLD A. JACOBY, USAF:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JULY 8, 1965, REQUESTING RECONSIDERATION OF YOUR CLAIM FOR TRANSPORTATION ALLOWANCE FOR YOUR DEPENDENT'S TRAVEL FROM BROOKLYN, NEW YORK, TO NORTHOLT, MIDDX, ENGLAND, DURING THE PERIOD OCTOBER 17 TO 23, 1961, WHICH WAS DISALLOWED BY SETTLEMENT DATED JUNE 23, 1965.

BY ORDERS DATED APRIL 27, 1961, AS AMENDED BY ORDERS DATED MAY 1, 1961, YOU WERE DETACHED FROM YOUR PERMANENT DUTY STATION, MITCHEL AIR FORCE BASE, NEW YORK, AND REASSIGNED TO APO 218, NEW YORK, NEW YORK, AND DIRECTED TO REPORT TO MCGUIRE AIR FORCE BASE, NEW JERSEY ON MAY 28, 1961, FOR FURTHER TRANSPORTATION OVERSEAS. CONCURRENT TRAVEL OF YOUR DEPENDENT TO YOUR OVERSEAS STATION WAS PROHIBITED.

ON OCTOBER 17, 1961, YOUR WIFE TRAVELED FROM BROOKLYN, NEW YORK, TO NORTHOLT, MIDDX, ENGLAND, AT PERSONAL EXPENSE. YOUR CLAIM FOR REIMBURSEMENT FOR THE COSTS OF SUCH TRAVEL WAS DISALLOWED BY SETTLEMENT DATED JUNE 23, 1965, FOR THE REASON THAT THERE IS NO PROVISION FOR REIMBURSEMENT IN THE APPLICABLE LAW AND REGULATIONS WHERE A MEMBER WITHOUT AUTHORIZATION, TRANSPORTS HIS DEPENDENT TO A RESTRICTED STATION OUTSIDE THE UNITED STATES AT PERSONAL EXPENSE.

IN YOUR PRESENT LETTER YOU SAY THAT AFTER YOUR ARRIVAL IN ENGLAND YOU OBTAINED HOUSING FOR YOUR WIFE AND INSTRUCTED HER TO SELL YOUR HOME IN NEW YORK BECAUSE YOU HAD OBTAINED INFORMATION FROM THE BASE COMMANDER THAT HE WOULD GRANT YOU AUTHORIZATION FOR HER TO JOIN YOU UPON YOUR REQUEST; THAT SUBSEQUENTLY A DEPARTMENT OF DEFENSE DIRECTIVE PROHIBITED TRAVEL FOR DEPENDENTS OVERSEAS AT GOVERNMENT EXPENSE IF THE DEPENDENT COULD NOT OBTAIN A PORT CALL BY OCTOBER 1, 1961; THAT THIS WAS NOT POSSIBLE BECAUSE YOUR HOME WAS SOLD IN SEPTEMBER 1961; THAT SINCE THERE WAS NO HOME FOR YOUR WIFE IN THE UNITED STATES AND DESPITE THE DEPARTMENT OF DEFENSE DIRECTIVE YOU RECEIVED AUTHORIZATION FOR HER TRAVEL TO ENGLAND AT PERSONAL EXPENSE; AND THAT AFTER HER ARRIVAL, THE DEPARTMENT OF DEFENSE DIRECTIVE WAS RESCINDED AND DEPENDENT TRAVEL WAS AGAIN AUTHORIZED AT GOVERNMENT EXPENSE. YOU FURTHER SAY THAT IF YOU HAD KNOWN THAT THE RESTRICTION ON DEPENDENT TRAVEL TO ENGLAND WAS TEMPORARY YOUR WIFE WOULD HAVE WAITED UNTIL SHE COULD HAVE BEEN FURNISHED TRANSPORTATION AT GOVERNMENT EXPENSE. IT APPEARS TO BE YOUR VIEW THAT SINCE THERE WAS NO OFFICIAL INDICATION THAT THE RESTRICTION WAS TO BE TEMPORARY THAT YOU ARE ENTITLED TO REIMBURSEMENT FOR HER TRAVEL.

APPARENTLY, THE DEPARTMENT OF DEFENSE DIRECTIVE REFERRED TO ABOVE WAS A MEMORANDUM FOR THE SERVICE SECRETARIES AND THE JOINT CHIEFS OF STAFF ISSUED ON SEPTEMBER 9, 1961, BY THE SECRETARY OF DEFENSE WHICH DIRECTED THAT EFFECTIVE OCTOBER 9, 1961, THE TRANSPORTATION OF DEPENDENTS TO COUNTRIES IN WESTERN EUROPE, INCLUDING THE UNITED KINGDOM, WOULD BE SUSPENDED UNTIL FURTHER NOTICE.

THE PROVISIONS OF 37 U.S.C. 406 AUTHORIZE THE SECRETARIES OF THE SERVICES CONCERNED TO PRESCRIBE REGULATIONS PROVIDING FOR THE TRANSPORTATION OF A MEMBER'S DEPENDENTS INCIDENT TO A DIRECTED PERMANENT CHANGE OF STATION. THE JOINT TRAVEL REGULATIONS ISSUED TO IMPLEMENT THE STATUTORY AUTHORITY PROVIDE IN PARAGRAPH 7005 THAT WHEN A MEMBER IS TRANSFERRED OR ASSIGNED BY PERMANENT CHANGE OF STATION ORDERS TO A RESTRICTED AREA, HE WILL BE ENTITLED TO TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE FROM THE OLD DUTY STATION LOCATED IN THE UNITED STATES TO ANY OTHER PLACE IN THE UNITED STATES THE MEMBER MAY DESIGNATE. WHEN THE RESTRICTION AGAINST TRAVEL OF DEPENDENTS IS REMOVED, OR THE MEMBER IS TRANSFERRED OR ASSIGNED UNDER PERMANENT CHANGE OF STATION ORDERS, TO AN UNRESTRICTED AREA, TRANSPORTATION OF DEPENDENTS IS AUTHORIZED FROM THE LOCATION TO WHICH THE DEPENDENTS WERE MOVED OR FROM THE PLACE THEY ARE THEN LOCATED TO THE MEMBER'S CURRENT DUTY STATION, WHICHEVER IS LESSER.

THE RIGHT TO TRANSPORTATION OF DEPENDENTS IS NOT AN ABSOLUTE ONE BUT MAY BE ADMINISTRATIVELY SUSPENDED OR DENIED FOR MILITARY REASONS AND WHERE TRANSPORTATION IS ADMINISTRATIVELY REFUSED BY REASON OF MILITARY NECESSITY OR EXPEDIENCY, A MEMBER MAY NOT TRANSPORT HIS DEPENDENTS AT PERSONAL EXPENSE AND BE PAID THE COST UNDER A STATUTE AUTHORIZING REIMBURSEMENT FOR TRAVEL OF DEPENDENTS UPON PERMANENT CHANGE OF STATION. CULP V. UNITED STATES, 76 CT.CL. 507; 35 COMP. GEN. 61. THE APPROVAL OF THE OVERSEAS COMMANDER FOR YOUR WIFE TO JOIN YOU IN ENGLAND AND HER TRAVEL TO THAT PLACE AT A TIME WHEN THE DEPENDENT TRAVEL PROHIBITION WAS IN EFFECT MAY NOT BE CONSIDERED AS AUTHORITY FOR REIMBURSEMENT FOR HER TRAVEL AT GOVERNMENT EXPENSE UPON REMOVAL OF THE TRAVEL RESTRICTION. WITH RESPECT TO YOUR STATEMENT THAT THERE WAS NO INDICATION THAT THE RESTRICTION ON DEPENDENT TRAVEL WOULD BE TEMPORARY, THE DURATION AND THE NEED FOR THE RESTRICTION ON DEPENDENT TRAVEL IS DETERMINED BY THE SECRETARY CONCERNED BASED ON THE MILITARY SITUATION AND HOUSING REQUIREMENTS WHICH ARE SUBJECT TO CHANGE WITHOUT NOTICE AND GENERALLY CANNOT BE DETERMINED IN ADVANCE.

SINCE THE SUSPENSION OF DEPENDENTS' TRAVEL TO YOUR OVERSEAS STATION WAS IN EFFECT WHEN YOUR WIFE PERFORMED THE TRAVEL THERE, YOU ARE NOT ENTITLED TO REIMBURSEMENT FOR ANY PORTION OF SUCH TRAVEL. FURTHERMORE, THE REMOVAL OF THE SUSPENSION OF DEPENDENT TRAVEL AFFORDS NO BASIS FOR REIMBURSEMENT FOR THE TRAVEL ALREADY PERFORMED BY YOUR DEPENDENT TO YOUR DUTY STATION WHILE THE RESTRICTION WAS IN EFFECT.

ACCORDINGLY, THE SETTLEMENT OF JUNE 23, 1965, WAS CORRECT AND IS AFFIRMED.