B-170195, AUG. 19, 1970

B-170195, AUG. 19, 1970

DEPENDENT TRANSPORTATION WIDOW OF DECEASED MEMBER, WHO WAS RESIDING IN TACOMA, WASHINGTON, WHEN SHE RECEIVED OFFICIAL NOTICE OF DEATH, WHO SUBSEQUENTLY RETURNED TO GERMANY TO ARRANGE FOR RETURN OF HOUSEHOLD EFFECTS MAY NOT HAVE TRAVEL FROM GERMANY UNDER ERRONEOUS ORDERS CONSIDERED PROPER FOR REIMBURSEMENT FOR TRAVEL SINCE ENTITLEMENT IS LIMITED TO THE DISTANCE FROM PLACE LOCATED ON RECEIPT OF DEATH NOTICE TO SELECTED RESIDENCE WHICH WAS IN SAME CITY. HENCE, CLAIM MUST BE DENIED.

TO MRS. BETTY L. SCAVELLA:

REFERENCE IS MADE TO LETTERS OF JUNE 16 AND 30, 1970, FROM YOUR ATTORNEY, MILTON P. WARNER, IN EFFECT REQUESTING REVIEW OF SETTLEMENT OF DECEMBER 23, 1969, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT FOR THE COST OF YOUR TRAVEL AND THE TRAVEL OF YOUR CHILDREN FROM STRAUBING, GERMANY, TO SEATTLE, WASHINGTON, ON AUGUST 23, 1969.

THE RECORD SHOWS THAT YOUR HUSBAND, SERGEANT FIRST CLASS ALLEN N. SCAVELLA, RA 51106413, DIED IN VIETNAM ON JANUARY 16, 1969, AND THAT YOU AND YOUR CHILDREN RESIDED AT 3 RIPS LANE, SOUTHWEST, TACOMA, WASHINGTON 98499, AT THAT TIME. BY ORDERS DATED MAY 24, 1969, DEPARTMENT OF THE ARMY, HEADQUARTERS, U.S. ARMY TRAINING CENTER, INFANTRY AND FORT LEWIS, FORT LEWIS, WASHINGTON, YOU AND YOUR CHILDREN WERE AUTHORIZED TRAVEL FROM GERMANY TO TACOMA. THE ORDERS ALSO AUTHORIZED SHIPMENT OF YOUR HOUSEHOLD EFFECTS WHICH WERE STORED AT VARIOUS ADDRESSES IN GERMANY. THE ORDERS WERE ERRONEOUSLY ISSUED UNDER THE PROVISIONS OF PARAGRAPHS M7150-M7154, JOINT TRAVEL REGULATIONS, ON THE BASIS THAT THE TRAVEL FROM GERMANY TO TACOMA WOULD CONSTITUTE YOUR ONE PERMANENT PERSONAL MOVE AUTHORIZED WITHIN ONE YEAR INCIDENT TO YOUR HUSBAND'S DEATH.

YOU AND YOUR CHILDREN DEPARTED FROM TACOMA, WASHINGTON, IN JUNE 1969, FOR GERMANY, FOR THE PURPOSE OF OBTAINING YOUR HOUSEHOLD EFFECTS. WHEN IT WAS DETERMINED THAT THE ORDERS OF MAY 24, 1969, WERE INVALID THEY WERE REVOKED BY ORDERS OF AUGUST 21, 1969, AND THESE ORDERS INCLUDED A PROVISION FOR SHIPMENT OF YOUR HOUSEHOLD EFFECTS ONLY. ALSO, IT APPEARS FROM THE RECORD THAT WHILE YOU AND YOUR CHILDREN WOULD HAVE BEEN AUTHORIZED SPACE AVAILABLE GOVERNMENT AIR TRANSPORTATION FROM GERMANY TO MCGUIRE AIR FORCE BASE, NEW JERSEY, YOU WERE NOT ADVISED OF THIS BY THE OVERSEAS COMMAND AND YOU PERFORMED THE TRAVEL FROM GERMANY TO TACOMA AT PERSONAL EXPENSE.

SECTION 12 OF THE MISSING PERSONS ACT, 56 STAT. 146, AS AMENDED (PRESENTLY 37 U.S.C. 554) PROVIDES THAT THE DEPENDENTS OF ANY PERSON IN ACTIVE SERVICE (WITHOUT REGARD TO PAY GRADE) WHO IS OFFICIALLY REPORTED AS DEAD MAY BE PROVIDED TRANSPORTATION TO THE OFFICIAL RESIDENCE OF RECORD OF THE DECEASED OR THE DEPENDENTS' RESIDENCE, IN ACCORDANCE WITH REGULATIONS ISSUED BY THE HEAD OF THE DEPARTMENT CONCERNED, OR TO A LOCATION DETERMINED IN ADVANCE OR SUBSEQUENTLY APPROVED BY THE DEPARTMENT HEAD OR HIS DESIGNEE, BUT THAT NO TRANSPORTATION SHALL BE AUTHORIZED UNDER THIS SECTION UNLESS A REASONABLE RELATIONSHIP EXISTS BETWEEN THE CIRCUMSTANCES OF THE DEPENDENTS AND THE DESTINATION TO WHICH TRANSPORTATION IS REQUESTED.

SECTION 406(F) OF TITLE 37, U.S.C. ALSO PROVIDES THAT UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED TRANSPORTATION FOR DEPENDENTS OF A MEMBER IS AUTHORIZED IF HE DIES WHILE ENTITLED TO BASIC PAY. PARAGRAPH M7152, PART D OF THE JOINT TRAVEL REGULATIONS, PROMULGATED PURSUANT TO 37 U.S.C. 406(F) AND 554, PROVIDES THAT NO TRANSPORTATION SHALL BE AUTHORIZED OR APPROVED PURSUANT TO THAT PART UPON APPLICATION BY DEPENDENTS UNLESS A REASONABLE RELATIONSHIP EXISTS BETWEEN THE CONDITION AND CIRCUMSTANCES OF THE DEPENDENTS AND THE DESTINATION TO WHICH TRANSPORTATION IS REQUESTED, AS DETERMINED BY THE SERVICE CONCERNED.

PARAGRAPH M7153 OF THE REGULATIONS PROVIDES THAT UPON RECEIPT BY HIS DEPENDENT OF OFFICIAL NOTICE THAT THE MEMBER IS DEAD, TRANSPORTATION OF DEPENDENTS IS AUTHORIZED TO THE MEMBER'S OFFICIAL HOME OF RECORD, TO THE RESIDENCE OF HIS DEPENDENT, OR TO SUCH OTHER LOCATION AS MAY BE DETERMINED IN ADVANCE OR SUBSEQUENTLY APPROVED BY THE OFFICIAL DESIGNATED BY ADMINISTRATIVE REGULATIONS OF THE SERVICE CONCERNED.

IMPLEMENTING THESE REGULATIONS, PARAGRAPH 9-87 OF ARMY REGULATIONS 37 106 PROVIDES THAT THE REIMBURSEMENT VOUCHER FOR THE TRANSPORTATION OF DEPENDENTS WILL BE SUPPORTED BY WRITTEN ORDERS, IF ISSUED, AN OFFICIAL STATUS REPORT, OR OTHER EVIDENCE ESTABLISHING THE APPLICANT'S ENTITLEMENT TO TRAVEL, AND THAT IF THE TRAVEL IS TO OTHER THAN THE APPLICANT'S OFFICIAL RESIDENCE OR THE OFFICIAL RESIDENCE OF THE MEMBER, A STATEMENT SHOWING A REASONABLE JUSTIFICATION THEREFOR WILL BE ATTACHED. THUS, TRANSPORTATION IS AUTHORIZED UNDER THE CITED PROVISIONS ONLY FOR THE PURPOSE OF MOVING DEPENDENTS FROM THE PLACE THEY ARE LOCATED ON DATE OF DEATH (OR DATE OF RECEIPT OF NOTICE OF DEATH) OF THE MEMBER TO HIS OFFICIAL RESIDENCE OR THE RESIDENCE OF THE DEPENDENT OR TO A SELECTED PLACE OF RESIDENCE UPON PROPER JUSTIFICATION THEREFOR.

THE RECORD SHOWS THAT AT THE TIME YOU RECEIVED OFFICIAL NOTICE OF YOUR HUSBAND'S DEATH YOU WERE AT TACOMA, WASHINGTON, AND SUBSEQUENT TO TRAVEL TO GERMANY TO ARRANGE FOR THE SHIPMENT OF YOUR HOUSEHOLD EFFECTS, YOU RETURNED TO TACOMA AS THE RESIDENCE THEN DESIGNATED.

SINCE YOUR ENTITLEMENT TO TRANSPORTATION AT GOVERNMENT EXPENSE IS LIMITED TO THE DISTANCE FROM THE PLACE LOCATED ON RECEIPT OF NOTICE OF DEATH TO THE SELECTED RESIDENCE, WHICH IN THIS CASE WAS IN THE SAME CITY, NO REIMBURSEMENT IS AUTHORIZED FOR THE TRAVEL IN QUESTION. ACCORDINGLY, THE SETTLEMENT OF DECEMBER 23, 1969, IS SUSTAINED.

IN HIS LETTER OF JUNE 16, 1970, MR. WARNER MENTIONS THE MILITARY PERSONNEL CLAIMS ACT OF 1945 AS AMENDED, NOW CODIFIED IN 10 U.S.C. 2733, AND SEEMS TO FEEL THAT IT PROVIDES A BASIS TO ALLOW YOUR CLAIM. THIS STATUTE AUTHORIZES THE SECRETARY OF A MILITARY DEPARTMENT UNDER SUCH REGULATIONS AS HE MAY PRESCRIBE TO ALLOW CERTAIN CLAIMS FOR DAMAGES INCIDENT TO NON-COMBAT ACTIVITIES OF THE DEPARTMENT AND PROVIDES THAT SETTLEMENT OF SUCH CLAIMS WILL BE FINAL AND CONCLUSIVE.

WHILE THE CIRCUMSTANCES IN YOUR CASE ARE UNFORTUNATE, THE FACT THAT YOU WERE FURNISHED ERRONEOUS ORDERS FOR TRAVEL FROM GERMANY AFFORDS NO LEGAL BASIS FOR THE FAVORABLE CONSIDERATION BY THIS OFFICE OF YOUR CLAIM. THEREFORE, THERE IS NO FURTHER ACTION WE MAY TAKE IN THE MATTER.