B-167232, AUG. 12, 1969

B-167232, AUG. 12, 1969

MILITARY - DEPENDENT TRANSPORTATION - RETROACTIVE ORDERS DECISION TO NAVY MEMBER CONCERNING CLAIM FOR DEPENDENTS TRANSPORTATION FROM OVERSEAS TO UNITED STATES. A MODIFICATION OF TRAVEL ORDERS ISSUED AFTER NAVY MEMBER'S DEPENDENTS RETURNED FROM OVERSEAS BY COMMERCIAL AIR FOR PERSONAL REASONS TO SHOW A DATE ON OR ABOUT TIME OF TRAVEL MAY NOT BE RECOGNIZED AS CORRECTION OF ERRONEOUS ORDERS BUT WAS MERELY AN ATTEMPT TO PREDATE EXISTING ORDERS TO GIVE RISE TO AN OTHERWISE NONEXISTING BENEFIT. THEREFORE, REIMBURSEMENT MAY NOT BE AUTHORIZED. WITH RESPECT TO MEMBER'S CLAIM FOR DEPENDENTS TRAVEL FROM NEW YORK TO EUREKA, CALIFORNIA INCIDENT TO PERMANENT CHANGE-OF-STATION ORDERS FROM EUREKA, CALIF. TO SAN DIEGO, CLAIM FOR TRAVEL FROM EUREKA TO SAN DIEGO MAY BE ALLOWED ON BASIS OF EVIDENCE OF TRAVEL, MODE OF TRANSPORTATION DATES OF TRAVEL.

TO ROLAND R. LAPHAM, PH2, USN:

REFERENCE IS MADE TO YOUR LETTER DATED MAY 26, 1969, REQUESTING RECONSIDERATION OF SETTLEMENT DATED MAY 19, 1969, WHICH DISALLOWED YOUR CLAIM FOR TRANSPORTATION OF YOUR DEPENDENTS FROM ROTA, SPAIN, TO SAN DIEGO, CALIFORNIA, IN ADVANCE OF YOUR PERMANENT CHANGE OF STATION ORDERS.

INFORMATION ON FILE SHOWS THAT YOUR DEPENDENT WIFE AND MINOR CHILDREN DEPARTED THE VICINITY OF YOUR DUTY STATION AT ROTA, SPAIN, ON FEBRUARY 22, 1968, TRAVELING BY COMMERCIAL RAIL TO MADRID, SPAIN, AND BY COMMERCIAL AIR FROM MADRID TO NEW YORK AND THENCE BY COMMERCIAL AIR TO SAN DIEGO, CALIFORNIA, ARRIVING AUGUST 14, 1968. BY PERMANENT CHANGE OF STATION ORDERS DATED JUNE 13, 1968, AS AMENDED, YOU DEPARTED ROTA, SPAIN, BY GOVERNMENT AIR ON JUNE 28, 1968, ARRIVING AT YOUR NEW DUTY STATION, NAS, NORTH ISLAND, SAN DIEGO, CALIFORNIA, AUGUST 13, 1968.

ADVANCE TRAVEL AUTHORIZATION 4650, DATED FEBRUARY 27, 1968, AUTHORIZED THE RETURN OF YOUR DEPENDENTS TO CONTINENTAL UNITED STATES ON OR ABOUT FEBRUARY 27, 1968, IN ADVANCE OF PERMANENT CHANGE OF STATION ORDERS ON A SPACE REQUIRED BASIS. SHIPMENT OF HOUSEHOLD GOODS WAS ALSO AUTHORIZED. THE AUTHORIZATION LETTER PROVIDED FURTHER THAT IT WAS TO BE DEPENDENTS' AUTHORIZATION FOR TRANSPORTATION AND MUST BE IN THEIR POSSESSION WHEN REPORTING FOR TRANSPORTATION.

BY LETTER DATED SEPTEMBER 24, 1968, THE COMMANDER, U.S. NAVAL ACTIVITIES, SPAIN, U.S. NAVAL STATION, ROTA, SPAIN, AMENDED THE ORDERS FOR DEPENDENTS' TRAVEL DATED FEBRUARY 27, 1968, BY CHANGING THE DATE TO READ FEBRUARY 21, 1968, AND BY CHANGING THE DATE ON WHICH AUTHORIZED TO TRAVEL TO READ "ON OR ABOUT FEBRUARY 21, 1968.' IN A FURTHER LETTER DATED NOVEMBER 13, 1968, THE COMMANDER STATED THE REASON FOR MODIFICATION OF THE DEPENDENTS' ORDERS WAS THAT YOUR WIFE LEFT ROTA ON FEBRUARY 22, 1968, WITHOUT ORDERS BEING PREPARED BECAUSE OF URGENT REQUIREMENT FOR HER PRESENCE IN CONTINENTAL UNITED STATES TO ATTEND HER FATHER WHO WAS NOT EXPECTED TO LIVE. THE COMMANDER STATED FURTHER THAT INASMUCH AS YOUR WIFE WAS ELIGIBLE FOR RETURN TO THE UNITED STATES IN ADVANCE OF YOUR PERMANENT CHANGE OF STATION ORDERS, THE ORDERS FOR DEPENDENTS' TRAVEL WERE PREPARED AT YOUR REQUEST SUBSEQUENT TO THE TRAVEL PERFORMED TO INDICATE ENTITLEMENT TO SUCH TRAVEL.

YOUR CLAIM WAS DISALLOWED BY SETTLEMENT DATED MAY 19, 1969, FOR THE REASONS STATED. IN YOUR LETTER OF MAY 26, 1969, YOU STATE THAT YOUR CLAIM WAS FOR DEPENDENTS' TRAVEL FROM NEW YORK, TO EUREKA, CALIFORNIA, AND ON YOUR PERMANENT CHANGE OF STATION ORDERS, FROM EUREKA, CALIFORNIA, TO SAN DIEGO, CALIFORNIA. YOU STATE FURTHER THAT THE ORDERS TO YOUR WIFE AND FAMILY WERE MODIFIED TO CORRECT AN ERROR IN THE DATES ORIGINALLY SPECIFIED BY THE ISSUING AUTHORITY.

PARAGRAPH M7103-1, JOINT TRAVEL REGULATIONS, AUTHORIZING TRANSPORTATION OF DEPENDENTS INCIDENT TO UNUSUAL OR EMERGENCY CIRCUMSTANCES IN PERSONAL SITUATIONS, PROMULGATED PURSUANT TO THE STATUTORY AUTHORITY CONTAINED IN 37 U.S.C. 406 (H), PROVIDES IN PERTINENT PART, THAT A MEMBER (WITHOUT REGARD TO RANK OR GRADE) WHO IS PERMANENTLY STATIONED OUTSIDE THE UNITED STATES, MAY REQUEST, AND HIS COMMANDING OFFICER MAY APPROVE, TRANSPORTATION OF DEPENDENTS TO A DESIGNATED PLACE IN THE UNITED STATES NOTWITHSTANDING THAT HIS PERMANENT STATION REMAINS UNCHANGED.

THE REGULATIONS PROVIDE FURTHER THAT THE APPROVING AUTHORITY WILL DETERMINE THE DESIGNATED PLACE TO WHICH TRANSPORTATION OF DEPENDENTS IS AUTHORIZED AND WILL INSURE THAT A REASONABLE RELATIONSHIP EXISTS BETWEEN THE CONDITIONS AND CIRCUMSTANCES IN EACH CASE AND THE DESTINATION TO WHICH TRANSPORTATION IS AUTHORIZED. HOWEVER, IT PROVIDES FURTHER THAT "* * * WHEN DEPENDENTS HAVE PERFORMED TRAVEL WITHOUT ORDERS TO AN APPROPRIATE DESTINATION UNDER CIRCUMSTANCES WHICH WOULD HAVE PERMITTED THEIR TRAVEL TO HAVE BEEN AUTHORIZED UNDER THE PROVISIONS OF THIS PARAGRAPH, NO REIMBURSEMENT FOR SUCH TRAVEL IS AUTHORIZED EVEN THOUGH ORDERS ARE SUBSEQUENTLY ISSUED UNDER THE PROVISIONS OF PAR. M8303-3.'

PARAGRAPH M8303-3 OF THE REGULATIONS PROVIDES THAT IN CERTAIN SPECIFIED CONDITIONS TRANSPORTATION OF HOUSEHOLD GOODS MAY BE AUTHORIZED WHEN DEPENDENTS HAVE PERFORMED TRAVEL TO AN APPROPRIATE DESTINATION UNDER CIRCUMSTANCES WHICH WOULD HAVE AUTHORIZED THEIR TRAVEL UNDER PARAGRAPH M7103 HAD ORDERS BEEN ISSUED.

IT IS THE GENERAL RULE THAT TRAVEL ORDERS MAY NOT BE REVOKED OR MODIFIED RETROACTIVELY SO AS TO INCREASE OR DECREASE THE RIGHTS WHICH HAVE ACCRUED OR BECOME FIXED UNDER THE LAW AND REGULATIONS, WHEN THE ORDERED TRAVEL HAS ALREADY BEEN PERFORMED. AN EXCEPTION TO THIS RULE HAS BEEN RECOGNIZED WHEN AN ERROR IS APPARENT ON THE FACE OF THE ORIGINAL ORDERS OR THERE HAS BEEN A FULL DISCLOSURE BY THE ADMINISTRATIVE OFFICE CONCERNED OF ALL THE FACTS AND CIRCUMSTANCES SURROUNDING THE ISSUANCE OF SUCH ORDERS AND THE RECORD CLEARLY ESTABLISHES THAT SOME PROVISION PREVIOUSLY DETERMINED AND OTHERWISE AUTHORIZED AND DEFINITELY INTENDED WAS OMITTED THROUGH ERROR OR INADVERTENCE IN PREPARING THE ORDERS. 23 COMP. GEN. 713; 24 ID. 439. THE MODIFICATION ATTEMPTED BY THE LETTER OF SEPTEMBER 24, 1968, HOWEVER, IS NOT OF THAT NATURE, BUT IS AN ATTEMPT TO PRE-DATE EXISTING ORDERS SO THAT THEY MIGHT THEREBY BEAR A DATE GIVING RISE TO OTHERWISE NON-EXISTING BENEFITS UNDER THE REGULATIONS.

THE ADMINISTRATIVE REPORT DATED NOVEMBER 13, 1968, STATED THAT YOUR DEPENDENTS LEFT ROTA, SPAIN, FOR CONTINENTAL UNITED STATES ON FEBRUARY 22, 1968, WITHOUT ORDERS BEING PREPARED, AND THAT THE ORDERS DATED FEBRUARY 27, 1968, WERE PREPARED AT YOUR REQUEST SUBSEQUENT TO THE TIME THE TRAVEL WAS PERFORMED. HENCE, IT IS EVIDENT THAT THERE WAS NO AUTHORITY UNDER THE QUOTED PROVISIONS OF PARAGRAPH M7103-1, JOINT TRAVEL REGULATIONS, FOR REIMBURSEMENT OF YOUR DEPENDENTS' TRAVEL PERFORMED PRIOR TO DATE OF ISSUANCE OF THE ORDERS DATED FEBRUARY 27, 1968.

IN YOUR LETTER OF MAY 26, 1969, YOU STATE THAT YOUR CLAIM WAS FOR DEPENDENTS' TRAVEL FROM NEW YORK, TO EUREKA, CALIFORNIA, AND, INCIDENT TO YOUR PERMANENT CHANGE OF STATION ORDERS, FROM EUREKA, CALIFORNIA, TO SAN DIEGO, CALIFORNIA. IN THAT CONNECTION, A CAREFUL EXAMINATION OF ALL PAPERS IN THE FILE PERTAINING TO YOUR CLAIM PRIOR TO YOUR LETTER OF MAY 26, 1969, FAILS TO DISCLOSE ANY INFORMATION THAT YOUR DEPENDENTS TRAVELED TO EUREKA, CALIFORNIA, PRIOR TO THEIR ARRIVAL AT SAN DIEGO. HOWEVER, SINCE UNDER PARAGRAPH M7058, JOINT TRAVEL REGULATIONS, A MEMBER IN RECEIPT OF PERMANENT CHANGE OF STATION ORDERS IS ENTITLED UNDER SOME CIRCUMSTANCES TO TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE FOR TRAVEL FROM THE PLACE THEY ARE LOCATED ON THE EFFECTIVE DATE OF SUCH CHANGE OF STATION ORDERS TO THE NEW PERMANENT DUTY STATION, NOT TO EXCEED THE ENTITLEMENT FROM THE OLD TO THE NEW STATION, CONSIDERATION WILL BE GIVEN A CLAIM FOR YOUR DEPENDENTS' TRAVEL FROM B 167232 EUREKA, CALIFORNIA, TO SAN DIEGO, CALIFORNIA, UNDER ORDERS OF JUNE 13, 1968, AS AMENDED, PROVIDING THE CLAIM SHOWS THE DATE THE DEPENDENTS DEPARTED EUREKA, THE MODE OF TRANSPORTATION USED, AND THE DATE OF THEIR ARRIVAL AT SAN DIEGO, CALIFORNIA.