B-164014, AUG. 2, 1968

B-164014, AUG. 2, 1968

TO MRS. NOREEN A. FERGUSON:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 27, 1968, REQUESTING RECONSIDERATION OF SETTLEMENT DATED FEBRUARY 9, 1968, WHICH DISALLOWED YOUR CLAIM FOR EMERGENCY EVACUATION ALLOWANCE (PER DIEM) FOR THE PERIOD OCTOBER 10, 1965, TO NOVEMBER 8, 1965, INCIDENT TO THE MILITARY SERVICE OF YOUR HUSBAND, FRED M. FERGUSON, AF28924171, IN THE U.S. AIR FORCE.

BY SPECIAL ORDER T-286 DATED SEPTEMBER 17, 1965, YOU AND YOUR CHILDREN WERE AUTHORIZED TO PROCEED FROM YOUR HUSBAND'S OVERSEAS STATION, 6937TH COMMUNICATIONS GROUP, APO NEW YORK 09665, TO 253 NORTH FIRST WEST, SPANISH FORKS, UTAH, AND TO SHIP HOUSEHOLD GOODS. AS AUTHORITY FOR THEIR ISSUANCE, THE ORDERS CITED PARAGRAPHS M7102 AND M8302 OF THE JOINT TRAVEL REGULATIONS AND AIR FORCE MANUALS 35-11 AND 39 11. THESE ORDERS WERE AMENDED BY SPECIAL ORDER T-430 DATED OCTOBER 25, 1965, TO DELETE PARAGRAPHS M7102 AND M8302 OF THE JOINT TRAVEL REGULATIONS AND TO INCLUDE AS AUTHORITY FOR THEIR ISSUANCE PARAGRAPHS M7101 AND M8301 OF THE REGULATIONS,"MSG AMERICAN EMBASSY, KARACHI, NO. 72, 17 SEP 1965 AND USAFSS MSG CCG 00465" AND TO AUTHORIZE THE SHIPMENT OF AN AUTOMOBILE IN ACCORDANCE WITH PARAGRAPH 7, APPENDIX G OF THE JOINT TRAVEL REGULATIONS.

YOUR CLAIM SHOWS THAT YOU AND YOUR CHILDREN DEPARTED FROM PESHAWAR AIR BASE, PAKISTAN, ON SEPTEMBER 19, 1965, AND ARRIVED AT KARAMURSEL AIR STATION, TURKEY, ON SEPTEMBER 20, 1965. ON OCTOBER 4, 1965, YOUR HUSBAND REQUESTED PERMISSION FROM THE COMMANDER, 6937TH COMMUNICATIONS GROUP, FOR THE IMMEDIATE RETURN OF YOU AND YOUR CHILDREN TO THE CONTINENTAL UNITED STATES FOR THE REASON THAT YOU WERE IN THE SIXTH MONTH OF PREGNANCY, THAT HE HAD BEEN INFORMED THAT YOU REQUIRED HOSPITALIZATION IN TURKEY AND FELT THAT ANY FURTHER DELAY WOULD INCREASE THE CHANCES OF DANGER RESULTING FROM YOUR TRAVEL.

BY SPECIAL ORDER T-413 DATED OCTOBER 7, 1965, SPECIAL ORDER T-286 WAS FURTHER AMENDED TO INCLUDE "AUTHORITY FOR TRAVEL FROM KARAMURSEL, TURKEY, TO CONUS ADDRESS IS PARA 7103-2.7 JTR AND 1ST IND (CCMDR), 5 OCT 65, TO LTR FROM MSGT FERGUSON, SUBJECT, RETURN OF DEPENDENTS.' YOU AND YOUR CHILDREN DEPARTED FROM KARAMURSEL AIR STATION ON OCTOBER 9, 1965, AND ARRIVED AT SPANISH FORKS, UTAH, ON OCTOBER 10, 1965.

YOUR CLAIM WAS DISALLOWED BY SETTLEMENT DATED FEBRUARY 9, 1968, FOR THE REASON THAT YOU AND YOUR CHILDREN WERE AUTHORIZED TO RETURN TO THE UNITED STATES FOR PERSONAL REASONS IN ACCORDANCE WITH THE PROVISIONS OF PARAGRAPH M7103 OF THE JOINT TRAVEL REGULATIONS AND NOT FOR EMERGENCY EVACUATION REASONS AS PROVIDED IN PARAGRAPH M7101 OF THE REGULATIONS.

SECTION 405A (A) OF TITLE 37, U.S.C. PROVIDED AT THE TIME HERE INVOLVED THAT UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, WHEN DEPENDENTS OF MEMBERS OF THE UNIFORMED SERVICES ARE ORDERED EVACUATED BY COMPETENT AUTHORITY TO THE UNITED STATES, THEY MAY BE AUTHORIZED SUCH ALLOWANCES AS THE SECRETARY CONCERNED DETERMINES NECESSARY TO OFFSET THE EXPENSES INCIDENT TO THE EVACUATION.

PARAGRAPH M7101 OF THE JOINT TRAVEL REGULATIONS PROVIDED DURING THE PERIOD INVOLVED, 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 BECAME NECESSARY TO EVACUATE DEPENDENTS FROM AN AREA OUTSIDE THE UNITED STATES, THE SECRETARY OF THE SERVICE CONCERNED, OR HIS DESIGNATED REPRESENTATIVE, WOULD AUTHORIZE OR APPROVE THE EVACUATION OF SUCH DEPENDENTS (WITHOUT REGARD TO RANK OR GRADE) 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 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 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; " * * *.

UNDER THE PROVISIONS OF PARAGRAPH M7101 OF THE JOINT TRAVEL REGULATIONS, YOU AND YOUR CHILDREN WERE EVACUATED FROM PESHAWAR AIR BASE, PAKISTAN, TO KARAMURSEL AIR STATION, TURKEY. THE AMENDING ORDERS OF OCTOBER 25, 1965, SIMPLY CORRECTED THE ORIGINAL ORDERS TO SHOW THE PROPER AUTHORITY. THEY NEITHER INCREASED NOR DECREASED THE TRAVEL RIGHTS UNDER THE ORDERS.

WHILE YOUR ORIGINAL ORDERS INCLUDED A UNITED STATES DESTINATION, THE EVACUATION TERMINATED AT KARAMURSEL AIR STATION. IT WAS THE INTENT OF THE AIR FORCE TO MOVE THE DEPENDENTS BACK TO PESHAWAR AS SOON AS CONDITIONS PERMITTED AND, WITH THE EXCEPTION OF DEPENDENTS WHO MOVED TO THE UNITED STATES OR WHOSE SPONSORS WERE REASSIGNED TO ANOTHER STATION, THEY WERE RETURNED TO PESHAWAR.

YOUR HUSBAND REQUESTED PERMISSION FOR THE IMMEDIATE RETURN OF YOU AND YOUR CHILDREN FROM KARAMURSEL AIR STATION TO THE UNITED STATES ON ACCOUNT OF YOUR ILLNESS. SINCE THE EVACUATION HAD BEEN TERMINATED, THE ORDERS OF OCTOBER 7, 1965, NECESSARILY AUTHORIZED YOUR RETURN TO THE UNITED STATES UNDER THE PROVISIONS OF PARAGRAPH 7103 OF THE JOINT TRAVEL REGULATIONS WHICH PROVIDES FOR THE RETURN TRANSPORTATION OF DEPENDENTS FOR PERSONAL REASONS.

YOU WERE THEREFORE NOT RETURNED TO THE UNITED STATES AS AN EVACUEE AND WERE NOT ENTITLED TO THE PAYMENT OF EVACUATION ALLOWANCES AFTER THE EFFECTIVE DATE OF THE ORDERS OF OCTOBER 7, 1965. ACCORDINGLY, THE SETTLEMENT OF FEBRUARY 8, 1968, DISALLOWING YOUR CLAIM FOR PER DIEM DURING THE PERIOD OCTOBER 10, 1965, TO NOVEMBER 8, 1965, WAS CORRECT AND IS SUSTAINED.

CONCERNING YOUR INQUIRY AS TO THE PAYMENT OF DISLOCATION ALLOWANCE TO YOU, PRESUMABLY SUCH PAYMENT WAS BASED ON PARAGRAPH M7103 OF THE JOINT TRAVEL REGULATIONS.

YOUR QUESTIONS CONCERNING THE CURTAILMENT OF YOUR HUSBAND'S OVERSEAS TOUR AND HOW YOU COULD FOLLOW THE PRESCRIBED MEDICAL ADVICE WHILE LIVING UNDER THE CONDITIONS DESCRIBED BY YOU SHOULD BE ADDRESSED TO THE AIR FORCE SINCE SUCH MATTERS ARE WITHIN THE JURISDICTION OF THE AIR FORCE AND DO NOT COME UNDER THIS OFFICE.

THE FACT THAT MRS. THOMAS BAKER MAY HAVE BEEN PAID FULL PER DIEM ALLOWANCE AFFORDS NO BASIS FOR THE ALLOWANCE OF YOUR CLAIM. THE VALIDITY OF THE PER DIEM PAYMENT TO HER WILL BE A MATTER FOR DETERMINATION IN THE AUDIT OF THE DISBURSING OFFICER'S ACCOUNT.

WITH REFERENCE TO YOUR QUESTION AS TO WHETHER OUR DISAPPROVAL OF YOUR CLAIM IS THE LAST OFFICIAL CONSIDERATION THAT MAY BE GIVEN IT, SECTIONS 71 AND 74 OF TITLE 31, U.S.C. PROVIDE THAT ALL CLAIMS AND DEMANDS AGAINST THE UNITED STATES SHALL BE SETTLED AND ADJUSTED IN THE GENERAL ACCOUNTING OFFICE AND THAT SUCH SETTLEMENT SHALL BE FINAL AND CONCLUSIVE UPON THE EXECUTIVE BRANCH OF THE GOVERNMENT. THE COURT OF CLAIMS OF THE UNITED STATES AND THE UNITED STATES DISTRICT COURTS HAVE JURISDICTION TO CONSIDER AND DETERMINE SUITS FOR PAY AND ALLOWANCES BELIEVED TO BE DUE INCIDENT TO THE SERVICE OF MEMBERS OF THE UNIFORMED SERVICES IF FILED WITHIN 6 YEARS AFTER THEY FIRST ACCRUED. 28 U.S.C. 1346 (A) (2), 1491, 2401 AND 2501.