B-159977, OCT. 5, 1966

B-159977, OCT. 5, 1966

TO COLONEL DAN S. MCMILLIN, 032010:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 2, 1966, REQUESTING REVIEW OF YOUR CLAIM FOR REIMBURSEMENT FOR THE CONSTRUCTIVE COST OF TRANSPORTATION FOR YOUR DEPENDENT DAUGHTER, SUSAN W. MCMILLIN, FROM SANTIAGO, CHILE, TO MIAMI, FLORIDA, INCIDENT TO HER AIR TRAVEL FROM SANTIAGO TO MADRID, SPAIN, ON SEPTEMBER 2 AND 3, 1964. THE CLAIM WAS DISALLOWED BY SETTLEMENT OF OUR CLAIMS DIVISION ON APRIL 5, 1966.

THE RECORD SHOWS THAT YOUR DEPENDENTS INCLUDING YOUR DAUGHTER, SUSAN, WERE AUTHORIZED CONCURRENT TRAVEL WHEN YOU WERE ASSIGNED TO THE EMBASSY OF THE UNITED STATES AT SANTIAGO, CHILE, IN 1962. AN AUTHORIZATION DATED AUGUST 31, 1964, BY THE U.S. NAVAL ATTACHE (EXECUTIVE AGENT) AT THE EMBASSY PROVIDED FOR THE EDUCATIONAL TRAVEL OF YOUR DAUGHTER,SUSAN, PRIOR TO RECEIPT OF PERMANENT CHANGE OF STATION ORDERS FOR YOU, FROM SANTIAGO TO MIAMI IN CONNECTION WITH HER FURTHER TRANSPORTATION TO MADRID, SPAIN, FOR THE PURPOSE OF ATTENDING THE UNIVERSITY OF MADRID. IT IS STATED IN THIS AUTHORIZATION THAT THERE ARE NO WOMEN'S COLLEGES IN CHILE THAT SATISFY UNITED STATES REQUIREMENTS TOWARDS ULTIMATELY SECURING A COLLEGE DEGREE, THAT THIS INADEQUACY OF EDUCATIONAL FACILITIES WAS CAUSED BY CONDITIONS BEYOND YOUR CONTROL, AND AROSE AFTER COMMENCEMENT OF TRAVEL OF YOUR DEPENDENTS TO YOUR STATION AT SANTIAGO.

IN YOUR LETTER OF AUGUST 2, 1966, TO THE FINANCE OFFICE,FORT LEAVENWORTH, KANSAS, YOU SAY THAT INSTEAD OF FLYING YOUR DAUGHTER TO MIAMI, FLORIDA, AND THEN TO MADRID, SPAIN, DUE TO TIME LIMITATIONS AND COST ECONOMY, YOU FLEW HER DIRECT FROM SANTIAGO TO MADRID. BY ORDERS DATED JUNE 2, 1965, YOU WERE REASSIGNED FROM THE EMBASSY OF THE UNITED STATES AT SANTIAGO TO THE U.S. ARMY COMMAND AND GENERAL STAFF COLLEGE, FORT LEAVENWORTH, KANSAS, WITH TEMPORARY DUTY EN ROUTE AT WASHINGTON, D.C.

SECTION 406 OF TITLE 37, U.S.C. PROVIDES THAT A MEMBER OF A UNIFORMED SERVICE WHO IS ORDERED TO MAKE A CHANGE OF PERMANENT STATION IS ENTITLED TO TRANSPORTATION IN KIND FOR HIS DEPENDENTS, TO REIMBURSEMENT THEREFOR, OR TO A MONETARY ALLOWANCE IN PLACE OF THAT TRANSPORTATION IN KIND AT A RATE TO BE PRESCRIBED. SECTION 406 (E) 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. THIS SUBSECTION MAY BE USED ONLY UNDER UNUSUAL OR EMERGENCY CIRCUMSTANCES * * *.'

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 M7103-2 (5) (CHANGE 136 DATED APRIL 1, 1964) OF THE JOINT TRAVEL REGULATIONS PROVIDED DURING THE PERIOD INVOLVED, THAT A MEMBER WHO WAS PERMANENTLY STATIONED OUTSIDE THE UNITED STATES COULD REQUEST, AND THE MEMBER'S COMMANDING OFFICER COULD APPROVE, TRANSPORTATION OF DEPENDENTS IN CERTAIN CASES IN ACCORDANCE WITH THIS PARAGRAPH TO: (1) AN APPROPRIATE DESTINATION IN THE UNITED STATES; OR (2) AN APPROPRIATE DESTINATION IN ALASKA, HAWAII, THE PANAMA CANAL ZONE, PUERTO RICO, OR A TERRITORY OR POSSESSION OF THE UNITED STATES, IN WHICH THE MEMBER'S HOME OF RECORD WAS LOCATED, NOTWITHSTANDING THE FACT THAT HIS PERMANENT STATION REMAINS UNCHANGED. SUCH TRANSPORTATION COULD BE AUTHORIZED WHEN THERE WAS A

"LACK OF ADEQUATE EDUCATIONAL FACILITIES OR HOUSING FOR DEPENDENTS WHEN SUPPORTED BY A STATEMENT OF THE APPROVING AUTHORITY THAT THE INADEQUACY OF SUCH EDUCATIONAL FACILITIES OR HOUSING WAS CAUSED BY CONDITIONS BEYOND THE CONTROL OF THE MEMBER AND AROSE AFTER COMMENCEMENT OF TRAVEL OF DEPENDENTS TO THE MEMBER'S OVERSEAS STATION.'

THE LAW AND REGULATIONS RECOGNIZES THE OBLIGATION OF THE UNITED STATES TO RETURN THE DEPENDENTS OF A MEMBER FROM HIS OVERSEAS STATION IN CERTAIN SPECIFIED CIRCUMSTANCES TO AN APPROPRIATE DESTINATION IN THE UNITED STATES OR OTHER SPECIFIED DESTINATION WHERE THE MEMBER'S HOME OF RECORD MAY BE LOCATED. THERE IS NO AUTHORITY TO REIMBURSE A MEMBER FOR THE TRANSPORTATION OF HIS DEPENDENT TO A DESTINATION NOT AUTHORIZED BY THE REGULATIONS OR TO PAY HIM THE AMOUNT IT WOULD HAVE COST FOR TRAVEL TO AN AUTHORIZED DESTINATION IF TRAVEL TO SUCH DESTINATION IS NOT IN FACT PERFORMED. SINCE YOUR DAUGHTER TRAVELED FROM SANTIAGO, CHILE, DIRECTLY TO MADRID, SPAIN, AN UNAUTHORIZED DESTINATION, YOU ARE NOT ENTITLED TO REIMBURSEMENT FOR TRAVEL FROM SANTIAGO, CHILE, TO MIAMI, FLORIDA, WHICH SHE DID NOT PERFORM.

ACCORDINGLY, THE DISALLOWANCE OF YOUR CLAIM MUST BE AND IS SUSTAINED.