B-166994, AUG. 21, 1969

B-166994, AUG. 21, 1969

MILITARY - DEPENDENTS TRAVEL - REIMBURSEMENT DECISION SUSTAINING DISALLOWANCE OF CLAIM FOR DEPENDENTS' TRAVEL INCIDENT TO ARMY MEMBER'S RELEASE FROM ACTIVE DUTY. MEMBER WHOSE DEPENDENTS IN AN UNAUTHORIZED STATUS AT AN OVERSEAS STATION RETURNED TO UNITED STATES IN ADVANCE OF MEMBER'S RELEASE BECAUSE OF ANTICIPATED DIFFICULTIES IN ARRANGING TRANSPORTATION MUST HAVE SUCH DEPENDENT TRAVEL REGARDED AS FOR PERSONAL REASONS AND NOT AS INCIDENT TO PERMANENT CHANGE OF STATION. THEREFORE REIMBURSEMENT FOR DEPENDENTS' TRANSPORTATION MAY NOT BE ALLOWED.

TO MR. RONALD G. QUILLING:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 29, 1969, REQUESTING REVIEW OF SETTLEMENT DATED FEBRUARY 24, 1969, WHICH DISALLOWED YOUR CLAIM FOR YOUR DEPENDENTS' TRAVEL FROM NEW YORK, NEW YORK, TO BILLINGS MONTANA, ON JANUARY 16, 1967, INCIDENT TO YOUR RELEASE FROM ACTIVE DUTY FROM THE U.S. ARMY PURSUANT TO ORDERS DATED FEBRUARY 6 AND MARCH 13, 1967.

THE RECORD SHOWS THAT YOU WERE AN OBLIGATED VOLUNTEER ASSIGNED TO DUTY AT FONTAINEBLEAU, FRANCE, SERVING AN OVERSEAS TOUR OF 21 MONTHS. THE DATE OF EXPIRATION OF YOUR TERM OF SERVICE WAS MARCH 21, 1967. YOUR DEPENDENTS WERE NOT AUTHORIZED TO TRAVEL OVERSEAS AT GOVERNMENT EXPENSE BECAUSE AS AN OBLIGATED VOLUNTEER YOU HAD INSUFFICIENT SERVICE REMAINING TO COMPLETE THE OVERSEAS TOUR FOR ACCOMPANIED PERSONNEL IN THE AREA TO WHICH ASSIGNED. YOUR DEPENDENTS, HOWEVER, TRAVELED TO YOUR OVERSEAS DUTY STATION AT PERSONAL EXPENSE AND YOU WERE PAID FOR THEIR TRAVEL FROM MISSOULA, MONTANA, TO NEW YORK, NEW YORK, APPARENTLY AS TO A DESIGNATED PLACE.

YOUR DEPENDENTS RETURNED TO THE UNITED STATES IN JANUARY 1967 BY COMMERCIAL AIR AT PERSONAL EXPENSE AND TRAVELED FROM NEW YORK, NEW YORK, TO BILLINGS, MONTANA, ON JANUARY 16, 1967.

BY ORDERS DATED FEBRUARY 6, 1967, YOU WERE DETACHED FROM YOUR DUTY STATION, FONTAINEBLEAU, FRANCE, AND DIRECTED TO REPORT TO ORLY FIELD, PARIS, FRANCE, FOR TRANSPORTATION TO FORT DIX, NEW JERSEY, FOR PROCESSING FOR RELEASE FROM ACTIVE DUTY. BY ORDERS DATED MARCH 13, 1967, FORT HAMILTON, BROOKLYN, NEW YORK, YOU WERE RELEASED FROM ACTIVE DUTY ON MARCH 20, 1967, AND AUTHORIZED TO PROCEED TO YOUR HOME OF RECORD, BILLINGS, MONTANA.

YOU RECOGNIZED THAT SINCE YOUR TWO DEPENDENTS WERE REGARDED AS UNAUTHORIZED DEPENDENTS, YOU WERE NOT ENTITLED TO THEIR TRANSPORTATION AT GOVERNMENT EXPENSE FROM THE OVERSEAS STATION TO THE UNITED STATES. YOU CONTEND, HOWEVER, THAT YOU ARE ENTITLED TO REIMBURSEMENT FOR THEIR LAND TRAVEL FROM NEW YORK, NEW YORK, AS FROM A DESIGNATED PLACE TO BILLINGS, MONTANA, YOUR HOME OF RECORD.

YOUR CLAIM FOR SUCH TRAVEL WAS DENIED ADMINISTRATIVELY FOR THE REASON THAT THE TRAVEL WAS PERFORMED PRIOR TO ORDERS AND WAS NOT SUPPORTED BY A PROPER CERTIFICATION (PARAGRAPH M7003-4, JOINT TRAVEL REGULATIONS). COMPLIANCE WITH YOUR REQUEST FOR A CERTIFICATE TO SUPPORT YOUR CLAIM FOR DEPENDENT TRAVEL REIMBURSEMENT, BY LETTER DATED JANUARY 26, 1968, YOUR FORMER OVERSEAS COMMAND ENCLOSED A CERTIFICATE STATING THAT YOU WERE ADVISED PRIOR TO ISSUANCE OF CHANGE OF STATION ORDERS THAT YOUR PERMANENT CHANGE OF STATION ORDERS WOULD BE ISSUED IN ORDER TO EFFECT YOUR RELEASE FROM ACTIVE DUTY.

IN THE LETTER, HOWEVER, THE COMMANDING OFFICER STATED THAT THERE IS NO RECORD ON FILE IN THE OVERSEAS COMMAND HEADQUARTERS INDICATING THAT YOU WERE ADVISED PRIOR TO THE TRAVEL OF YOUR DEPENDENTS THAT PERMANENT CHANGE OF STATION ORDERS WOULD BE ISSUED. HOWEVER, HE ISSUED THE CERTIFICATE AS REQUESTED, STATING THAT IN THE ABSENCE OF A MEMORANDUM FOR THE RECORD AND IN VIEW OF THE COMPLETE CHANGE OF PERSONNEL AT THAT HEADQUARTERS, WITH NO ONE HAVING KNOWLEDGE OF THE CASE, IT WAS POSSIBLE THAT HIS PREDECESSOR HAD ADVISED YOU THAT A PERMANENT CHANGE OF STATION ORDER WOULD BE ISSUED ON A SPECIFIED DATE.

IN VIEW OF THESE STATEMENTS, THE ARMY FINANCE CENTER, INDIANAPOLIS, INDIANA, CONSIDERED THAT THE CERTIFICATE DID NOT MEET THE REQUIREMENTS FOR PAYMENT OF DEPENDENT TRAVEL AND FORWARDED THE CLAIM TO THIS OFFICE FOR SETTLEMENT AS A DOUBTFUL CLAIM. THE CLAIM WAS DISALLOWED BY SETTLEMENT DATED FEBRUARY 24, 1969, FOR THE REASONS STATED THEREIN.

IN YOUR REQUEST FOR REVIEW YOU STATE THAT YOU WERE ASSURED THAT PERMANENT CHANGE OF STATION ORDERS WOULD BE ISSUED AND THAT YOU WOULD NOT HAVE SENT YOUR DEPENDENTS BACK TO THE UNITED STATES EXCEPT FOR THE FACT THAT AT THE TIME YOUR UNIT, ALONG WITH HEADQUARTERS, WAS BEING MOVED TO GERMANY BECAUSE OF THE DISESTABLISHMENT OF UNITED STATES FORCES IN FRANCE AS REQUIRED BY THE GOVERNMENT OF FRANCE. YOU STATE FURTHER THAT ADMINISTRATIVE FUNCTIONS COULD NOT BE RELIED ON TO BE COMPLETED PROMPTLY BECAUSE OF THE UNUSUAL CIRCUMSTANCES CREATED BY THE NEED FOR MOVING UNITED STATES PERSONNEL AND EQUIPMENT OUT OF FRANCE.

IT APPEARS TO BE YOUR VIEW THAT IN THE LIGHT OF THE FOREGOING CIRCUMSTANCES, YOUR CLAIM SHOULD BE ALLOWED EVEN THOUGH YOUR DEPENDENTS PERFORMED THE TRAVEL BEFORE YOUR PERMANENT CHANGE OF STATION ORDERS WERE ISSUED.

SECTION 406 OF TITLE 37, OF THE U.S.C. PROVIDES THAT, SUBJECT TO SUCH LIMITATIONS AND CONDITIONS AND TO AND FROM SUCH PLACES AS THE SECRETARIES MAY PRESCRIBE, A MEMBER OF A UNIFORMED SERVICE "WHO IS ORDERED TO MAKE A PERMANENT CHANGE OF STATION" IS ENTITLED TO TRANSPORTATION OF HIS DEPENDENTS. AN ORDERED CHANGE OF STATION IS A CONDITION PRECEDENT TO SUCH TRANSPORTATION AND PARAGRAPH M7000-8 OF THE JOINT TRAVEL REGULATIONS, PROMULGATED BY THE SECRETARIES PURSUANT TO THE PROVISIONS OF 37 U.S.C. 406, PROVIDES THAT TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE IS NOT AUTHORIZED WHEN THE DEPENDENTS DEPART THE OLD STATION PRIOR TO RECEIPT OF ORDERS DIRECTING A PERMANENT CHANGE OF STATION, OR PRIOR TO RECEIPT OF OFFICIAL NOTICE THAT SUCH ORDERS WOULD BE ISSUED.

WHEN DEPENDENTS MOVE PRIOR TO ACTUAL RECEIPT OF ORDERS ON THE BASIS OF OFFICIAL NOTICE THAT ORDERS WILL BE ISSUED, PARAGRAPH M7003-4 OF THE REGULATIONS PROVIDES THAT A MEMBER IS AUTHORIZED A MONETARY ALLOWANCE IN LIEU OF TRANSPORTATION IN KIND FOR TRAVEL OF DEPENDENTS PERFORMED AT PERSONAL EXPENSE, PROVIDED THE VOUCHER IS SUPPORTED BY A STATEMENT OF THE COMMANDING OFFICER, OR HIS DESIGNATED REPRESENTATIVE OF THE HEADQUARTERS ISSUING SUCH ORDERS THAT THE MEMBER WAS ADVISED PRIOR TO THE ISSUANCE THEREOF, THAT SUCH ORDERS WOULD BE ISSUED. IN OUR OPINION THIS PROVISION HAS REFERENCE TO INSTANCES WHERE ALL PROVISIONS AND REQUIREMENTS OF THE ORDERS HAVE BEEN COMPLETELY AND FINALLY DETERMINED AND ALL THAT REMAINS TO BE DONE IS THE WRITING OF THE ORDERS.

THE PURPOSE OF THE STATUTE AUTHORIZING TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE IS TO RELIEVE A MEMBER OF THE BURDEN OF PERSONALLY DEFRAYING THE TRAVEL EXPENSES OF HIS DEPENDENTS WHEN SUCH TRAVEL IS MADE NECESSARY BY AN ORDERED CHANGE OF STATION. CONSEQUENTLY, THE CITED REGULATIONS AUTHORIZE DEPENDENTS' TRANSPORTATION IF THE MEMBER IS OTHERWISE ENTITLED TO THEIR TRANSPORTATION AT GOVERNMENT EXPENSE, ONLY IN THOSE CIRCUMSTANCES WHERE THEIR TRAVEL IS IN FACT INCIDENT TO THE MEMBER'S CHANGE OF STATION BY LIMITING SUCH AUTHORIZATION TO TRAVEL THAT IS PERFORMED AFTER CHANGE OF STATION ORDERS ACTUALLY ARE ISSUED OR, IN CERTAIN CIRCUMSTANCES, WITHIN A BRIEF PERIOD IMMEDIATELY PRIOR TO THEIR ISSUANCE WHERE THE MEMBER HAS BEEN ADVISED THAT THE ORDERS WOULD BE ISSUED.

DEPENDENTS WHO TRAVEL PRIOR TO THE ISSUANCE OF ORDERS IN RELIANCE ON ELIGIBILITY FOR ROTATION OR RELEASE FROM ACTIVE DUTY OR ON INFORMATION THAT CHANGE OF STATION ORDERS ARE ANTICIPATED DO NOT MEET THE REQUIREMENTS OF THE LAW AND REGULATIONS AND A CERTIFICATION TO THAT EFFECT DOES NOT ESTABLISH ENTITLEMENT TO TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE. 34 COMP. GEN. 241.

THE RECORD SHOWS THAT YOU SENT YOUR DEPENDENTS TO YOUR HOME IN THE UNITED STATES PRIOR TO RECEIPT OF RELEASE FROM ACTIVE DUTY ORDERS BECAUSE YOU ANTICIPATED DIFFICULTIES IN ARRANGING THEIR TRANSPORTATION AT A LATER DATE. THESE DIFFICULTIES STEMMED FROM THE FACT THAT YOUR DEPENDENTS WERE THERE IN AN UNAUTHORIZED STATUS. HOWEVER, YOU REMAINED AT YOUR DUTY STATION IN FRANCE UNTIL YOU WERE ORDERED TO THE UNITED STATES AND PRESUMABLY YOUR DEPENDENTS COULD HAVE REMAINED THERE ALSO. IN ANY EVENT SINCE THEY WERE OVERSEAS IN AN UNAUTHORIZED STATUS, THEIR EARLY TRAVEL TO THE UNITED STATES BECAUSE TRANSPORTATION DIFFICULTIES MIGHT BE ENCOUNTERED AT A LATER DATE AND TO YOUR HOME IN BILLINGS, MONTANA, ACTUALLY WAS FOR PERSONAL REASONS AND CANNOT BE REGARDED AS INCIDENT TO YOUR PERMANENT CHANGE OF STATION.

ALSO, THE RECORD DOES NOT SHOW THAT YOU WERE DEFINITELY INFORMED IN JANUARY 1967 THAT A DETERMINATION HAD BEEN MADE TO ISSUE PERMANENT CHANGE OF STATION ORDERS TO YOU BUT ONLY THAT IT CAN BE ASSUMED THAT YOU SENT YOUR DEPENDENTS BACK TO THE UNITED STATES IN RELIANCE ON YOUR ELIGIBILITY FOR RELEASE FROM ACTIVE DUTY BASED ON YOUR EXPIRATION OF TERM OF SERVICE. WITH RESPECT TO THIS, THE CERTIFICATE OF JANUARY 26, 1968, WHICH YOU SUBMITTED IN SUPPORT OF YOUR CLAIM IS OF NO VALUE SINCE THE OFFICER WHO SIGNED IT EXPLAINED IN A LETTER OF THE SAME DATE THAT HE HAS NO KNOWLEDGE OF THE CASE AND THE RECORDS DO NOT SHOW THAT NOTICE WAS GIVEN PRIOR TO THE PERMANENT CHANGE OF STATION ORDERS.

IN VIEW OF THE FOREGOING, THERE IS NO LEGAL BASIS TO ALLOW YOUR CLAIM. ACCORDINGLY, THE SETTLEMENT OF FEBRUARY 24, 1969, IS CORRECT AND IS SUSTAINED.