B-163729, JUL. 30, 1968

B-163729, JUL. 30, 1968

TO MRS. GEORGIA A. HERCHBERGER:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 16, 1968, CONCERNING YOUR CLAIM FOR EMERGENCY EVACUATION ALLOWANCES FOR THE PERIOD FROM OCTOBER 9, 1965, DATE OF YOUR DEPARTURE FROM KARAMURSEL AIR STATION, TURKEY, UNTIL NOVEMBER 8, 1965, 30 DAYS AFTER YOUR ARRIVAL AT AERIAL PORT OF DEBARKATION IN THE UNITED STATES.

BY SPECIAL ORDER T-285, DATED SEPTEMBER 17, 1965, 6937TH COMMUNICATIONS GROUP, APO NEW YORK 09665, YOU AND YOUR THREE MINOR CHILDREN, AS THE DEPENDENTS OF MASTER SERGEANT DONALD L. HERCHBERGER, SERVICE NO. AF19317436, WERE AUTHORIZED TO PROCEED FROM PESHAWAR AIR STATION, WEST PAKISTAN, TO MCCALL, IDAHO, BY GOVERNMENT AIR TRANSPORTATION. AUTHORITY FOR THE MOVEMENT WAS SHOWN AS PARAGRAPHS M7102 AND M8302, JOINT TRAVEL REGULATIONS, AND AIR FORCE MANUAL 35-11 AND 39-11. VARIATION IN ITINERARY WAS AUTHORIZED. UNDER THE AUTHORITY OF THOSE ORDERS YOU AND YOUR CHILDREN DEPARTED FROM PESHAWAR SEPTEMBER 19, 1965, AND ARRIVED IN KARAMURSEL AIR STATION, TURKEY, THE FOLLOWING DAY.

ON OCTOBER 4, 1965, YOUR HUSBAND REQUESTED THE COMMAND AUTHORITIES TO IMMEDIATELY RETURN YOU AND THE CHILDREN TO THE CONTINENTAL UNITED STATES FOR PERSONAL REASONS. CONSEQUENTLY, THE ORDERS OF SEPTEMBER 17, 1965, WERE AMENDED BY PARAGRAPH 3 OF SPECIAL ORDER T-413, DATED OCTOBER 7, 1965, OF THE SAME COMMAND, TO SHOW AUTHORITY FOR TRAVEL FROM KARAMURSEL AIR STATION TO MCCALL AS PARAGRAPH M7103-2-7, JOINT TRAVEL REGULATIONS, AND 1ST INDORSEMENT (COMDR), DATED OCTOBER 5, 1965, ON LETTER FROM YOUR HUSBAND. PURSUANT TO THOSE ORDERS YOU AND THE CHILDREN DEPARTED FROM KARAMURSEL AIR STATION ON OCTOBER 9, 1965, AND ARRIVED IN MCCALL ON OCTOBER 11, 1965. ON OCTOBER 25, 1965, BY SPECIAL ORDER T-430, THE BASIC ORDERS WERE AGAIN AMENDED TO SHOW THE AUTHORITY FOR THE MOVEMENT AS PARAGRAPHS M7101 AND M8301, JOINT TRAVEL REGULATIONS, MESSAGE NO. 72, DATED SEPTEMBER 17, 1965, OF AMERICAN EMBASSY, KARACHI, PAKISTAN, AND USAFSS MESSAGE CCG 00465.

YOU PRESENTED A CLAIM TO THE AIR FORCE ON OCTOBER 2, 1967, FOR EVACUATION ALLOWANCES. THE CLAIM SUBSEQUENTLY WAS FORWARDED TO OUR CLAIMS DIVISION FOR SETTLEMENT AND BY SETTLEMENT CERTIFICATE DATED FEBRUARY 9, 1968, IT WAS DISALLOWED BECAUSE OF THE ABSENCE OF AFFIRMATIVE INFORMATION TO SHOW THAT YOUR RETURN WAS FOR EMERGENCY EVACUATION REASONS AS STATED IN PARAGRAPH M7101, JOINT TRAVEL REGULATIONS.

IN YOUR LETTER OF FEBRUARY 16, 1968, YOU PROTEST THE DISALLOWANCE OF THE CLAIM AND ASK SEVERAL QUESTIONS CONCERNING THE PURPOSES OF THE AMENDATORY ORDERS OF OCTOBER 25, 1965, YOUR HUSBAND'S CURTAILED TOUR OF DUTY AND THE PAYMENT OF AN EXTRA DISLOCATION ALLOWANCE. ALSO, YOU SAY THAT MRS. THOMAS BAKER, WHOSE HUSBAND'S NAME ALSO APPEARS ON THE ABOVE-MENTIONED ORDERS OF OCTOBER 25, 1965, AND WHO DEPARTED FROM TURKEY AT THE SAME TIME AND UNDER THE SAME CIRCUMSTANCES, HAD ADVISED YOU THAT SHE WAS PAID THE "FULL PER DIEM ALLOWANCES ACCORDING TO PUBLIC LAW 89-26.'

SECTION 405A (A) OF TITLE 37, U.S. CODE, AS ADDED BY PUBLIC LAW 89 26, APPROVED MAY 22, 1965, 79 STAT. 116, PROVIDED PRIOR TO THE ACT OF SEPTEMBER 20, 1966, PUBLIC LAW 89-608, THAT UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, WHEN DEPENDENTS OF MEMBERS OF THE UNIFORMED SERVICES ARE ORDERED EVACUATED BY COMPETENT AUTHORITY FROM PLACES OUTSIDE THE UNITED STATES TO PLACES INSIDE THE UNITED STATES, THEY MAY BE AUTHORIZED SUCH ALLOWANCES AS THE SECRETARY CONCERNED DETERMINES NECESSARY TO OFFSET THE EXPENSES INCIDENT TO THE EVACUATION. THAT SECTION ALSO PROVIDES THAT FOR ITS PURPOSES A DEPENDENT "ORDERED EVACUATED BY COMPETENT AUTHORITY" INCLUDES, AMONG OTHERS, 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 AND WHO ACTUALLY MOVES TO AN AUTHORIZED SAFE HAVEN DESIGNATED BY THAT AUTHORITY, WHETHER SUCH SAFE HAVEN IS AT OR IN THE VICINITY OF THE MEMBER'S DUTY STATION OR ELSEWHERE.

THE REGULATIONS PROMULGATED UNDER THE ABOVE AUTHORITY AND IN EFFECT AT THE TIME OF YOUR TRAVEL TO THE UNITED STATES WERE CONTAINED IN APPENDIX G (CHANGE 152, DATED SEPTEMBER 1, 1965), JOINT TRAVEL REGULATIONS. PARAGRAPH 4 OF THOSE REGULATIONS PROVIDED THAT WHEN A MEMBER'S DEPENDENTS ARE EVACUATED FROM THEIR PLACE OF RESIDENCE IN THE VICINITY OF HIS DUTY STATION OUTSIDE THE UNITED STATES, OR FROM A SAFE HAVEN LOCATION OUTSIDE THE UNITED STATES TO WHICH THEY HAD FORMERLY BEEN MOVED, TO A PLACE IN THE UNITED STATES DESIGNATED BY THE MEMBER OR BY HIS DEPENDENTS, AND SUCH EVACUATION HAS BEEN ORDERED OR APPROVED BY COMPETENT AUTHORITY, THE DEPENDENTS SHALL BE ENTITLED TO PER DIEM ALLOWANCES, AS AUTHORIZED IN THAT PARAGRAPH, COMMENCING ON THE DATE THEY COMMENCE TRAVELING AWAY FROM THEIR PLACE OF RESIDENCE IN THE VICINITY OF THE MEMBER'S DUTY STATION, OR SAFE HAVEN LOCATION, AND CONTINUING FOR A PERIOD OF 30 DAYS AFTER ARRIVAL AT A PORT OF DEBARKATION IN THE UNITED STATES.

PARAGRAPH M7101 (CHANGE 142, DATED NOVEMBER 1, 1964), JOINT TRAVEL REGULATIONS, PROVIDED THAT WHEN, DUE TO UNUSUAL OR EMERGENCY CIRCUMSTANCES (SUCH AS WAR, RIOTS, CIVIL UPRISINGS OR UNREST, ADVERSE POLITICAL CONDITIONS, DENIAL OR REVOCATION BY HOST GOVERNMENT OF PERMISSION TO REMAIN, NATIONAL DISASTER, EPIDEMIC, OR SIMILAR CIRCUMSTANCES OF COMPARABLE MAGNITUDE), IT BECOMES NECESSARY TO EVACUATE DEPENDENTS FROM AN AREA OUTSIDE THE UNITED STATES, THE SECRETARY OF THE SERVICE CONCERNED, OR HIS DESIGNATED REPRESENTATIVE, WILL AUTHORIZE OR APPROVE THE EVACUATION OF SUCH DEPENDENTS (WITHOUT REGARD TO RANK OR GRADE OF THE MEMBER) FROM THE OVERSEAS AREA TO:

"1. A PLACE IN THE UNITED STATES DESIGNATED BY THE MEMBER (PAR. 7001) OR, IF THE MEMBER'S HOME OF RECORD IS LOCATED THEREIN, A PLACE DESIGNATED BY THE MEMBER IN ALASKA, HAWAII, THE PANAMA CANAL ZONE, PUERTO RICO, OR A TERRITORY OR POSSESSION OF THE UNITED STATES, OR

"2. A TEMPORARY LOCATION INSIDE OR OUTSIDE THE UNITED STATES AS MAY BE DESIGNATED OR APPROVED BY THE SECRETARY OF THE SERVICE CONCERNED, OR HIS DESIGNATED REPRESENTATIVE, PENDING SUBSEQUENT TRANSPORTATION TO THE PLACES AUTHORIZED IN ITEM 1.'

IN ADDITION TO THAT MOVEMENT AUTHORITY, SECTION 406 (H) OF TITLE 37,U.S.C. PROVIDES THAT IN THE CASE OF A MEMBER WHO IS SERVING AT A STATION OUTSIDE THE UNITED STATES OR IN HAWAII OR ALASKA, IF THE SECRETARY CONCERNED DETERMINES IT TO BE IN THE BEST INTERESTS OF THE MEMBER OR HIS DEPENDENTS AND THE UNITED STATES, HE MAY, 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, AUTHORIZE THE MOVEMENT OF THE MEMBER'S DEPENDENTS, BAGGAGE, AND HOUSEHOLD EFFECTS AT THAT STATION TO AN APPROPRIATE LOCATION IN THE UNITED STATES OR ITS POSSESSIONS 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.

PARAGRAPH M7103 OF THE JOINT TRAVEL REGULATIONS, IMPLEMENTING SECTION 406 (H) PROVIDED, DURING THE PERIOD INVOLVED, THAT A MEMBER (WITHOUT REGARD TO RANK OR GRADE) WHO WAS PERMANENTLY STATIONED OUTSIDE THE UNITED STATES COULD REQUEST, AND THE MEMBER'S COMMANDING OFFICER COULD APPROVE, TRANSPORTATION OF DEPENDENTS IN ACCORDANCE WITH THAT 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 REMAINED UNCHANGED.

PARAGRAPH M7103 ALSO PROVIDED THAT THE APPROVING AUTHORITY WOULD DETERMINE THE APPROPRIATE DESTINATION TO WHICH TRANSPORTATION OF DEPENDENTS WAS AUTHORIZED AND WOULD INSURE THAT A REASONABLE RELATIONSHIP EXISTED BETWEEN THE CONDITIONS AND CIRCUMSTANCES IN EACH CASE AND THE DESTINATION TO WHICH TRANSPORTATION WAS AUTHORIZED. THIS PARAGRAPH FURTHER PROVIDED FOR THE TYPES OF CASES IN WHICH ADVANCE TRANSPORTATION OF DEPENDENTS WOULD BE APPROVED INCLUDING:

"7. WHEN DETERMINED THAT THE BEST INTERESTS OF THE MEMBER OR HIS DEPENDENTS AND THE GOVERNMENT WILL BE SERVED BY THE RETURN OF ONE OR MORE OF HIS DEPENDENTS FOR COMPELLING PERSONAL REASONS, SUCH AS MARITAL DIFFICULTIES, FINANCIAL DIFFICULTIES, UNFORESEEN FAMILY PROBLEMS, DEATH OR SERIOUS ILLNESS OF CLOSE RELATIVES, OR FOR REASONS OF A HUMANITARIAN OR COMPASSIONATE NATURE, AND IN OTHER SITUATIONS WHICH HAVE AN ADVERSE EFFECT ON THE MEMBER'S PERFORMANCE OF DUTY, SUCH DETERMINATION TO BE IN THE FORM OF A STATEMENT OF THE APPROVING AUTHORITY.'

AT THE TIME OF THE OUTBREAK OF HOSTILITIES BETWEEN INDIA AND PAKISTAN, THE COMMANDER, 6937TH COMMUNICATIONS GROUP, PESHAWAR AIR STATION, WAS GRANTED AUTHORITY TO EVACUATE DEPENDENTS RESIDING AT HIS STATION. UNDER PARAGRAPH M7101, JOINT TRAVEL REGULATIONS, SUCH DEPENDENTS COULD HAVE BEEN EVACUATED DIRECTLY TO A PLACE IN THE UNITED STATES DESIGNATED BY THEIR SPONSORS. PURSUANT TO THE GRANTED AUTHORITY, HOWEVER, YOU AND THE CHILDREN WERE EVACUATED TO A SAFE HAVEN, KARAMURSEL AIR STATION, UNDER THE ORDERS DATED SEPTEMBER 17, 1965. SINCE THOSE ORDERS INCORRECTLY SHOWED THE MOVEMENT AUTHORITY AS PARAGRAPH M7102, RATHER THAN PARAGRAPH M7101, JOINT TRAVEL REGULATIONS, THE AMENDING ORDERS OF OCTOBER 25, 1965, WERE ISSUED TO SUPPLY THE PROPER AUTHORITY, PARAGRAPH M7101, AND THE SEVERAL MESSAGES HERETOFORE MENTIONED.

WHILE THE ORDERS OF SEPTEMBER 17, 1965, SHOWED MCCALL RATHER THANKARAMURSEL AIR STATION AS THE TRAVEL DESTINATION, THE RECORD FAILS TO SHOW THAT A DETERMINATION WAS MADE UNDER PARAGRAPH M7101, JOINT TRAVEL REGULATIONS, FOR YOUR AND THE CHILDREN'S RETURN DIRECTLY TO MCCALL. THIS RESPECT, IT IS OUR UNDERSTANDING THAT IT WAS THE INTENT OF THE AIR FORCE TO SEND ALL DEPENDENTS TO KARAMURSEL AIR STATION BECAUSE OF ITS AVAILABLE SUPPORT FACILITIES AND TO RETURN THEM TO PESHAWAR AIR STATION AS SOON AS CONDITIONS PERMITTED. THE REASON, THEREFORE, FOR INCLUDING A UNITED STATES DESTINATION IN THE EVACUATION ORDERS IS NOT CLEAR. THE DESTINATION MAY HAVE BEEN INCLUDED BECAUSE OF A VIEW THAT IT WAS REQUIRED BY THE LANGUAGE OF PARAGRAPH M7101 OF THE REGULATIONS IF EVACUATION ALLOWANCES WERE TO BE PAYABLE AT KARAMURSEL AIR STATION. THE EVACUATION, HOWEVER, TERMINATED AT KARAMURSEL AIR STATION.

DEPENDENTS WHO DESIRED TO RETURN TO THE UNITED STATES FROM KARAMURSEL AIR STATION BECAUSE OF COMPELLING PERSONAL REASONS, SUCH AS MEDICAL EMERGENCIES, PREGNANCIES, HEALTH PROBLEMS, OR OTHER CIRCUMSTANCES WHICH IN THE JUDGMENT OF THE COMMANDER, KARAMURSEL AIR STATION, REQUIRED SUCH MOVEMENT, WERE PERMITTED TO DO SO UPON APPROVAL OF THEIR SPONSORS' APPLICATION. SINCE SUCH MOVEMENT WAS NOT INCIDENT TO THE EVACUATION FROM PESHAWAR IT NECESSARILY WAS AUTHORIZED UNDER PARAGRAPH M7103 OF THE REGULATIONS. BY MESSAGE DATED DECEMBER 14, 1965, THE CHIEF OF STAFF, UNITED STATES AIR FORCE, AUTHORIZED THE MOVEMENT OF DEPENDENTS AND PERSONAL PROPERTY TO PAKISTAN AND CANCELLED AN EARLIER MESSAGE WHICH SUSPENDED SUCH MOVEMENT. CONSEQUENTLY, ALL DEPENDENTS THEN REMAINING AT KARAMURSEL AIR STATION WHO WERE PESHAWAR AIR STATION EVACUEES WERE RETURNED TO THE LATTER STATION.

HENCE, WHILE YOU AND THE CHILDREN WERE EVACUATED TO KARAMURSEL AIR STATION UNDER ORDERS CITING PARAGRAPH M7101, JOINT TRAVEL REGULATIONS, AND INCLUDING A UNITED STATES DESTINATION, THE MOVEMENT TO KARAMURSEL TERMINATED THE EVACUATION AND FURTHER TRAVEL FROM THAT STATION TO MCCALL NECESSARILY HAD TO BE PROVIDED UNDER AUTHORITY OTHER THAN PARAGRAPH M7101. ACCORDINGLY, NO LEGAL BASIS EXISTS FOR THE PAYMENT OF EVACUATION ALLOWANCES TO YOU UNDER THE AUTHORITY OF PARAGRAPH M7101 FOR THE PERIOD SUBSEQUENT TO YOUR DEPARTURE FROM KARAMURSEL AIR STATION. THE SETTLEMENT OF FEBRUARY 9, 1968, THEREFORE, IS SUSTAINED.

YOUR QUESTION CONCERNING THE CURTAILMENT OF YOUR HUSBAND'S TOUR OF DUTY SHOULD BE ADDRESSED TO THE AIR FORCE INASMUCH AS MATTERS PERTAINING TO A MEMBER'S DUTY ASSIGNMENT AND TRANSFER ARE WITHIN THE JURISDICTION OF THE AIR FORCE AND DO NOT COME UNDER THIS OFFICE.

THE RECORDS AVAILABLE TO US IN CONNECTION WITH YOUR CLAIM DO NOT REFLECT THE PAYMENT OF AN EXTRA DISLOCATION ALLOWANCE TO YOUR HUSBAND. HOWEVER, THE PAYMENT OF DISLOCATION ALLOWANCE IS GOVERNED BY LAWS AND REGULATIONS SEPARATE AND DISTINCT FROM FROM THOSE GOVERNING THE PAYMENT OF EVACUATION ALLOWANCES. HENCE IF SUCH PAYMENT WAS MADE, THAT FACT WOULD NOT SERVE AS AUTHORITY FOR THE PAYMENT OF THE EVACUATION ALLOWANCES TO YOU. NOR WOULD THE FACT THAT MRS. THOMAS BAKER RECEIVED THE "FULL PER-DIEM ALLOWANCE ACCORDING TO PUBLIC LAW 89-26" JUSTIFY PAYMENT TO YOU. THE VALIDITY OF SUCH PAYMENT WILL BE A MATTER FOR DETERMINATION IN THE AUDIT OF THE DISBURSING OFFICER'S ACCOUNT. AN EXAMINATION OF VOUCHER T-4965, GOODFELLOW AIR FORCE BASE, TEXAS, PAID APRIL 19, 1966, SHOWS THAT THE PAYMENT OF $120.23 MADE THEREON, AS SET OUT IN YOUR STATEMENT OF OCTOBER 2, 1967, SUPPORTING YOUR CLAIM, REPRESENTS A DISLOCATION ALLOWANCE OF $114.90 AND MILEAGE FOR YOU AND CHILDREN FROM BOISE, IDAHO, TO MCCALL, UNDER AUTHORITY OF PARAGRAPH M7103 OF THE REGULATION. IT WAS NOT AN EVACUATION ALLOWANCE PAYMENT.

THE HONORABLE JAMES A. MCCLURE, HOUSE OF REPRESENTATIVES, WASHINGTON, D.C. 20515, IS THE CONGRESSIONAL REPRESENTATIVE FOR THE FIRST DISTRICT, IDAHO, WHICH INCLUDES VALLEY COUNTY IN WHICH MCCALL IS LOCATED. IF YOU DESIRE TO CORRESPOND WITH HIM IN CONNECTION WITH THIS MATTER, YOUR LETTER SHOULD BE ADDRESSED TO HIM AS ABOVE.