B-160957, MAR. 29, 1967

B-160957, MAR. 29, 1967

TO MRS. BETTY F. DEARE:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 15, 1967, REQUESTING RECONSIDERATION OF YOUR CLAIM FOR REIMBURSEMENT FOR TRAVEL PERFORMED BY YOU AND YOUR SON FROM SAN DIEGO, CALIFORNIA, TO SAIGON, SOUTH VIETNAM.

BY PERMANENT CHANGE OF STATION ORDERS DATED SEPTEMBER 17, 1964, AS AMENDED, YOUR HUSBAND, MAJOR CLARENCE L. DEARE, JR., WAS REASSIGNED FROM HIS DUTY ASSIGNMENT AT OFFUTT AIR FORCE BASE, NEBRASKA, TO U.S. MILITARY ASSISTANCE COMMAND, APO 143, SAN FRANCISCO, CALIFORNIA. THE ORDERS SPECIFICALLY PROVIDED THAT "TRAVEL OF DEPENDENTS IS PROHIBITED.'

MAJOR DEARE DEPARTED FROM THE UNITED STATES VIA COMMERCIAL AIR ON OCTOBER 29, 1964. ON NOVEMBER 14, 1964, YOU AND YOUR SON TRAVELED TO SAIGON, SOUTH VIETNAM, AT PERSONAL EXPENSE. YOU SAY THAT WHEN YOU ARRIVED THERE NO GOVERNMENT QUARTERS WERE FURNISHED BECAUSE YOUR HUSBAND WAS SERVING IN AN UNACCOMPANIED STATUS, SO HE RENTED AN APARTMENT IN WHICH THE THREE OF YOU RESIDED. ON FEBRUARY 8, 1965, THE PRESIDENT OF THE UNITED STATES ORDERED THE WITHDRAWAL OF AMERICAN DEPENDENTS FROM SOUTH VIETNAM. ORDERS DATED FEBRUARY 8, 1965, YOU AND YOUR SON WERE AUTHORIZED TRANSPORTATION AT GOVERNMENT EXPENSE AS DEPENDENTS OF YOUR HUSBAND TO A TEMPORARY LOCATION AND SUBSEQUENT RETURN TO THE UNITED STATES. THE ORDERS DIRECTED THAT YOU REPORT FOR SUCH TRANSPORTATION WHEN ORDERED BY THE COMMANDING OFFICER.

BY LETTER DATED FEBRUARY 13, 1965, ADDRESSED TO MR. JACK A. HERFURT, COUNSELOR OF EMBASSY, U.S. EMBASSY, SAIGON, SOUTH VIETNAM, YOU PROTESTED YOUR EVACUATION AS A DEPENDENT ON THE BASIS THAT YOU WERE RESIDING IN SOUTH VIETNAM AS AN AMERICAN CITIZEN AND NOT AS A MILITARY DEPENDENT. LETTER DATED FEBRUARY 21, 1965, WHICH YOU RECEIVED AFTER YOU LEFT SAIGON, GENERAL WESTMORELAND, U.S. ARMY, DENIED YOUR REQUEST THAT YOU BE PERMITTED TO REMAIN IN SOUTH VIETNAM FOR THE REASON THAT YOU WERE A DEPENDENT OF A MEMBER OF THE UNIFORMED SERVICES AND THE UNITED STATES GOVERNMENT HAS A RESPONSIBILITY TOWARD YOU.

YOUR CLAIM FOR REIMBURSEMENT OF TRAVEL EXPENSES FOR TRAVEL PERFORMED FROM THE UNITED STATES TO SAIGON WAS DISALLOWED BY SETTLEMENT DATED NOVEMBER 7, 1966, FOR THE REASON THAT YOUR HUSBAND'S PERMANENT CHANGE OF STATION ORDERS OF SEPTEMBER 17, 1964, AS AMENDED, STATED THAT TRAVEL OF DEPENDENTS WAS PROHIBITED.

IN YOUR PRESENT LETTER YOU SAY THAT YOU WERE IN SOUTH VIETNAM AS AN AMERICAN CITIZEN AND NOT AS A DEPENDENT AND THAT YOU ARE MAKING THIS CLAIM AS A CITIZEN WHOSE INDIVIDUAL RIGHTS WERE DENIED BY THE ACTION OF AN AGENCY OF THE GOVERNMENT WHICH FORCED YOUR DEPARTURE FROM SOUTH VIETNAM THEREBY CAUSING YOU TO SUFFER A FINANCIAL LOSS. THEREFORE YOU CONTEND THAT YOU ARE ENTITLED TO REIMBURSEMENT FOR THE EXPENSES YOU INCURRED FOR TRAVEL TO SOUTH VIETNAM.

ALLOWANCES FOR MEMBERS OF THE UNIFORMED SERVICES, INCLUDING TRAVEL, TRANSPORTATION AND EVACUATION ALLOWANCES AUTHORIZED ON ACCOUNT OF DEPENDENTS, ARE PRESCRIBED IN CHAPTER 7 (SECTIONS 401-427) OF TITLE 37, U.S.C. SECTION 401 PROVIDES THAT IN THAT CHAPTER THE TERM "DEPENDENT" WITH RESPECT TO A MEMBER OF A UNIFORMED SERVICE MEANS:

"/1) HIS SPOUSE;

(2) HIS UNMARRIED LEGITIMATE CHILD * * *"

ALSO, SECTION 405 (A) WHICH AUTHORIZES EVACUATION ALLOWANCES PROVIDES THAT FOR THE PURPOSES OF THIS SECTION A DEPENDENT "ORDERED EVACUATED BY COMPETENT AUTHORITY" INCLUDES (1) A DEPENDENT WHO IS PRESENT AT OR IN THE VICINITY OF THE MEMBER'S DUTY STATION WHEN THE EVACUATION OF DEPENDENTS IS ORDERED BY COMPETENT AUTHORITY.

SINCE YOU AND YOUR SON ARE THE SPOUSE AND CHILD OF MAJOR DEARE AND WERE RESIDING WITH HIM IN THE VICINITY OF HIS DUTY STATION WE SEE NO BASIS FOR A CONCLUSION THAT YOU ARE NOT HIS DEPENDENTS WITHIN THE MEANING OF THE ABOVE DEFINITIONS OF MILITARY DEPENDENTS EVEN THOUGH YOU WERE NOT AT HIS STATION IN AN AUTHORIZED STATUS SO AS TO ENTITLE HIM TO THE INCREASED ALLOWANCES ON ACCOUNT OF DEPENDENTS OTHERWISE PROVIDED IN SUCH CIRCUMSTANCES. PRESUMABLY, YOU AND YOUR SON WERE FURNISHED TRANSPORTATION TO THE UNITED STATES AND HAVE RECEIVED EVACUATION ALLOWANCES INCIDENT TO YOUR EVACUATION FROM VIETNAM AS THE DEPENDENTS OF MAJOR DEARE.

IT IS RECOGNIZED THAT YOU TRAVELED TO VIETNAM AT YOUR OWN EXPENSE AND WERE NOT PERMITTED TO REMAIN THERE WITH YOUR HUSBAND AND ACCEPT EMPLOYMENT AS YOU APPARENTLY HAD ANTICIPATED. HOWEVER, THE FACT THAT CIRCUMSTANCES AROSE AFTER YOUR ARRIVAL WHICH MADE IT NECESSARY IN THE NATIONAL INTEREST FOR THE PRESIDENT TO DIRECT THE EVACUATION OF AMERICAN DEPENDENTS FROM SOUTH VIETNAM AFFORDS NO LEGAL BASIS TO REIMBURSE YOU FOR THE EXPENSES INCURRED IN TRAVELING TO THAT PLACE. FURTHERMORE, WE ARE NOT AWARE OF ANY APPROPRIATION AVAILABLE FOR THE PAYMENT OF SUCH EXPENSES.

ACCORDINGLY, FOR THESE REASONS THE DISALLOWANCE FOR YOUR CLAIM IS SUSTAINED.

ORDINARILY, THE PAPERS OF A CLAIM ARE NOT RETURNED AS THEY CONSTITUTE A PART OF THE RECORDS OF THIS OFFICE. HOWEVER, SINCE YOU SAY YOU WISH TO PRESENT THE MATTER TO YOUR CONGRESSMAN, WE ARE RETURNING PERTINENT PAPERS AS REQUESTED.