B-158104, DEC. 30, 1965

B-158104, DEC. 30, 1965

TO CARL BRADLEY, AK3, 475 63 01, USN:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 12, 1965, AND ENCLOSURES, REQUESTING RECONSIDERATION OF SETTLEMENT DATED NOVEMBER 3, 1965, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT FOR TRANSPORTATION OF YOUR DEPENDENTS FROM ROTTERDAM, HOLLAND, TO ROTA, SPAIN, ON JULY 6, 1965.

BY ORDER NO. 4-65 PREPARED MAY 1, 1965, YOU WERE TRANSFERRED FROM THE U.S. NAVAL AIR STATION, QUONSET POINT, RHODE ISLAND, TO THE U.S. NAVAL STATION, ROTA, SPAIN, TO REPORT NOT LATER THAN JULY 6, 1965. YOU SAY THAT YOUR DEPENDENTS WENT TO ROTTERDAM, HOLLAND, IN APRIL 1965 BECAUSE OF SICKNESS IN THE FAMILY AND TO AWAIT APPROVAL FOR THEIR ENTRY INTO THE AREA OF YOUR DUTY STATION AT ROTA, SPAIN. YOUR DEPENDENTS TRAVELED FROM ROTTERDAM TO ROTA ON JULY 6, 1965, ON THE KLM ROYAL DUTCH AIRLINES. JULY 15, 1965, THE NAVY APPROVED THE ENTRY OF YOUR DEPENDENTS TO THE AREA OF YOUR DUTY STATION AT ROTA.

SECTION 406 OF TITLE 37, U.S.C. PROVIDES THAT TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE UPON A MEMBER'S ORDERED PERMANENT CHANGE OF STATION SHALL BE SUBJECT TO SUCH CONDITIONS AND LIMITATIONS AND TO AND FROM SUCH PLACES AS PRESCRIBED BY THE SECRETARIES CONCERNED. PARAGRAPH M7000-7 OF THE JOINT TRAVEL REGULATIONS, PROMULGATED PURSUANT TO THAT AUTHORITY, PROVIDES THAT TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE IS NOT AUTHORIZED ,FOR ANY PORTION OF TRAVEL PERFORMED BY A FOREIGN REGISTERED VESSEL OR AIRPLANE, IF AMERICAN REGISTERED VESSELS OR AIRPLANES ARE AVAILABLE BY THE USUALLY TRAVELED ROUTE.' SEE IN THIS REGARD SECTION 901 OF THE MERCHANT MARINE ACT OF 1936, 49 STAT. 2015, AS AMENDED, 46 U.S.C. 1241 (A). THE NECESSITY FOR USE OF UNITED STATES TRANSPORTATION FACILITIES IS FURTHER AMPLIFIED IN PARAGRAPH M2150 OF THE JOINT TRAVEL REGULATIONS WHICH REQUIRES THE USE OF VESSELS OR AIRCRAFT REGISTERED UNDER THE LAWS OF THE UNITED STATES FOR ALL TRAVEL AND TRANSPORTATION OUTSIDE THE CONTINENTAL UNITED STATES UNLESS THEIR USE IS DETERMINED BY THE ORDER ISSUING AUTHORITY TO BE IMPRACTICAL OR THEY ARE DETERMINED BY THE TRANSPORTATION OR OTHER APPROPRIATE OFFICER TO BE UNAVAILABLE. THESE PROVISIONS OF THE REGULATIONS PROMULGATED PURSUANT TO STATUTORY AUTHORITY HAVE THE FORCE AND EFFECT OF LAW AND WE MAY MAKE NO EXCEPTIONS TO THE REQUIREMENTS OF SUCH PROVISIONS IN THE SETTLEMENT OF CLAIMS BY YOUR OFFICE.

THE RIGHT TO DEPENDENTS' TRANSPORTATION ON CHANGE OF STATION IS NOT AN ABSOLUTE ONE BUT MAY BE ADMINISTRATIVELY SUSPENDED OR DENIED FOR REASONS OF MILITARY NECESSITY OR EXPEDIENCY. CULP V. UNITED STATES, 76 CT.CL. 507. IT APPEARS THAT YOUR NEW DUTY STATION UNDER THE ORDERS OF MAY 1, 1965, WAS LOCATED IN A RESTRICTED AREA AS TO DEPENDENTS AND THAT YOUR RIGHT TO TRANSPORTATION OF YOUR DEPENDENTS TO THAT STATION WAS SUSPENDED PENDING THE ISSUANCE OF AN ADMINISTRATIVE APPROVAL FOR THEIR ENTRY. PARAGRAPH M7005-4 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT WHEN THE RESTRICTION AGAINST TRAVEL OF DEPENDENTS TO THE MEMBER'S PERMANENT DUTY STATION IS REMOVED, TRANSPORTATION OF DEPENDENTS IS AUTHORIZED FROM THE LOCATION TO WHICH THEY HAD BEEN PREVIOUSLY MOVED, OR THE PLACE THEN LOCATED TO THE MEMBER'S CURRENT DUTY STATION, WHICHEVER IS THE LESSER. NOTHING IN THE REGULATIONS AUTHORIZES THE DEPENDENTS' TRAVEL TO THE DUTY STATION PRIOR TO THE REMOVAL OF THE RESTRICTION. SINCE YOUR DEPENDENTS TRAVELED FROM ROTTERDAM, HOLLAND, TO ROTA, SPAIN, ON JULY 6, 1965, THEY WERE LOCATED AT YOUR DUTY STATION WHEN THEIR ENTRY TO THAT AREA WAS APPROVED BY THE NAVY ON JULY 15, 1965. THUS, THERE WAS NO NECESSITY FOR THEIR TRAVEL AFTER THE RESTRICTION WAS REMOVED, AND UNDER THE PROVISIONS OF PARAGRAPH M7005-4 OF THE REGULATIONS YOU WOULD NOT BE ENTITLED TO REIMBURSEMENT FOR THE TRAVEL PERFORMED BY THEM BEFORE THE RESTRICTION WAS REMOVED, IRRESPECTIVE OF THE FACT THAT A FOREIGN CARRIER WAS USED FOR SUCH TRAVEL.

ACCORDINGLY, THE DISALLOWANCE OF YOUR CLAIM IS SUSTAINED. YOUR ORIGINAL ORDERS ARE RETURNED HEREWITH.

WE MAY AUTHORIZE PAYMENT OF CLAIMS FROM PUBLIC FUNDS ONLY IF SUCH PAYMENT IS AUTHORIZED BY THE APPLICABLE LAW AND REGULATIONS. THE FACT THAT YOUR DEPENDENTS MAY HAVE TRAVELED FROM ROTTERDAM, HOLLAND, TO ROTA, SPAIN, AT A LESSER COST THAN HAD THEY TRAVELED FROM MCGUIRE AIR FORCE BASE, NEW JERSEY, TO ROTA, SPAIN, AFFORDS NO BASIS TO ALLOW YOU AN AMOUNT NOT AUTHORIZED BY THE LAW AND REGULATIONS.