B-173773, DEC 13, 1971

B-173773, DEC 13, 1971

MILITARY PERSONNEL - OVERSEAS TRAVEL BY DEPENDENT - PRIOR AUTHORIZATION DECISION AFFIRMING PRIOR DENIAL OF CLAIM OF CAPTAIN MAXIM A. KOWALSKI, JR. FOR REIMBURSEMENT OF TRAVEL EXPENSES FOR HIS WIFE FROM WASHINGTON, D.C. TO CRAILSHEIM, GERMANY. SINCE THERE WAS NO PRIOR AUTHORIZATION FOR TRAVEL BY WIFE AND SINCE THE ORDERS OF JUNE 1, 1968, MAKING THE WIFE "COMMAND SPONSORED" INDICATE NO INTENTION TO CONFIRM PRIOR VERBAL ORDERS, CLAIM IS DENIED AS NOT ALLOWABLE UNDER APPLICABLE REGULATIONS.

TO CAPTAIN MAXIM A. KOWALSKI, JR.:

WE AGAIN REFER TO YOUR WIFE'S LETTER OF APRIL 4, 1971, ADDRESSED TO THE PRESIDENT OF THE UNITED STATES WHICH WAS FORWARDED TO THIS OFFICE FOR CONSIDERATION AND REPLY. THE LETTER IN EFFECT REQUESTS IN YOUR BEHALF FURTHER CONSIDERATION OF THE ACTION TAKEN BY THIS OFFICE ON YOUR CLAIM FOR REIMBURSEMENT FOR YOUR WIFE'S TRAVEL FROM NORFOLK, VIRGINIA, TO CRAILSHEIM, GERMANY, INCIDENT TO YOUR ARMY SERVICE.

THE RECORD SHOWS THAT YOU WERE ORDERED TO ACTIVE DUTY AND DIRECTED TO PROCEED TO FORT EUSTIS, VIRGINIA, BY ORDERS DATED DECEMBER 19, 1967. ORDERS DATED FEBRUARY 8, 1968, AS AMENDED BY ORDERS DATED FEBRUARY 14, 1968, YOU WERE ASSIGNED TO U.S. ARMY OVERSEAS REPLACEMENT STATION, FORT DIX, NEW JERSEY, FOR ASSIGNMENT TO DUTY IN GERMANY AS A PERMANENT CHANGE OF STATION. YOUR ASSIGNMENT WITHIN GERMANY WAS CHANGED BY ORDERS DATED APRIL 19, 1968. THE ORDERS TRANSFERRING YOU TO GERMANY DID NOT AUTHORIZE CONCURRENT TRAVEL OF YOUR WIFE. HOWEVER, SHE TRAVELED FROM NORFOLK, VIRGINIA, TO WASHINGTON, D.C., AND THENCE TO CRAILSHEIM, GERMANY, APRIL 21 AND 22, 1968, AT YOUR EXPENSE. YOUR OVERSEAS COMMANDER APPROVED YOUR WIFE AS A COMMAND SPONSORED DEPENDENT IN THE AREA ON JUNE 1, 1968.

YOUR CLAIM FOR REIMBURSEMENT FOR YOUR WIFE'S TRAVEL WAS FORWARDED TO THIS OFFICE FOR SETTLEMENT BY THE FINANCE CENTER, U.S. ARMY, WITH THE RECOMMENDATION THAT PAYMENT NOT BE MADE. THE FINANCE CENTER STATED THAT YOU DID NOT OBTAIN PRIOR APPROVAL FOR YOUR WIFE'S TRAVEL AND WERE SERVING AN INDEFINITE PERIOD.

BY SETTLEMENT OF OUR CLAIMS DIVISION DATED JUNE 11, 1969, YOU WERE ALLOWED $11.46 FOR YOUR WIFE'S TRAVEL FROM NORFOLK, VIRGINIA, TO WASHINGTON, D.C. REIMBURSEMENT FOR HER TRAVEL FROM THAT CITY TO YOUR STATION IN GERMANY, HOWEVER, WAS DISALLOWED IN THE ABSENCE OF PRIOR APPROVAL OF THE OVERSEAS COMMANDER FOR YOUR WIFE TO JOIN YOU AT YOUR OVERSEAS STATION.

IN HER LETTER YOUR WIFE SAYS THAT WHEN YOU WERE ATTENDING OFFICERS CANDIDATE SCHOOL AT FORT EUSTIS YOU WERE TOLD THAT IF YOU WENT ON VOLUNTARY INDEFINITE ACTIVE DUTY YOU COULD SELECT A DUTY STATION AND YOUR WIFE'S TRAVEL EXPENSES WOULD BE PAID; THAT YOU DECIDED YOU WOULD LIKE TO SERVE IN GERMANY AND WERE ASSURED CONCURRENT TRAVEL OF YOUR WIFE WOULD BE APPROVED. AFTER YOUR REQUEST FOR ASSIGNMENT TO GERMANY WAS APPROVED, HOWEVER, YOUR REQUEST FOR CONCURRENT TRAVEL WAS DENIED. SHE SAYS YOU WERE ORALLY ADVISED THERE MUST BE A SHORTAGE OF HOUSING WHERE YOU WERE TO BE STATIONED.

YOUR WIFE FURTHER STATES, HOWEVER, THAT AFTER YOUR DEPARTURE SHE WAS ADVISED YOU WOULD BE IN GERMANY FOR AN INDEFINITE PERIOD AND COULD BE ORDERED TO VIETNAM IN A SHORT TIME. UPON ARRIVAL IN GERMANY, YOU FOUND VACANT QUARTERS AND LEARNED THAT SUCH QUARTERS WERE AVAILABLE ONLY TO MILITARY PERSONNEL WHOSE FAMILIES WERE COMMAND SPONSORED. SHE ALSO SAYS THAT YOU OBTAINED YOUR COMMANDING OFFICER'S VERBAL PERMISSION TO HAVE HER JOIN YOU AND PURCHASED AIRLINE TICKETS FOR HER TRAVEL. SHE REACHED YOUR STATION ON APRIL 22, 1968.

IN VIEW OF THE VERBAL APPROVAL FOR YOUR WIFE TO JOIN YOU AND SINCE QUARTERS WERE ASSIGNED FOR YOUR OCCUPANCY IT IS HER OPINION THAT SHE SHOULD BE CONSIDERED AS COMMAND SPONSORED FOR TRAVEL PURPOSES, NOTWITHSTANDING THAT THE COMMANDER DID NOT GIVE WRITTEN APPROVAL UNTIL JUNE 1, 1968. YOUR WIFE ALSO MENTIONS THAT YOU SERVED IN GERMANY FOR MORE THAN TWO YEARS AFTER WHICH YOU WERE TRANSFERRED TO VIETNAM.

THE STATUTORY AUTHORITY FOR TRANSPORTATION OF DEPENDENTS OF MEMBERS OF THE UNIFORMED SERVICES, 37 U.S.C. 406, EXPRESSLY PROVIDES THAT TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE UPON A MEMBER'S ORDERED CHANGE OF PERMANENT STATION SHALL BE SUBJECT TO SUCH CONDITIONS AND LIMITATIONS, FOR SUCH GRADES, RANKS, AND RATINGS, AND TO AND FROM SUCH PLACES AS THE SECRETARIES CONCERNED MAY PRESCRIBE. THE RIGHT TO DEPENDENTS' TRAVEL IS NOT AN ABSOLUTE ONE BUT MAY BE ADMINISTRATIVELY SUSPENDED OR DENIED FOR REASONS OF MILITARY NECESSITY OR EXPEDIENCE. CULP V UNITED STATES, 76 CT. CL. 507 (1932); 35 COMP. GEN. 61 (1955).

PARAGRAPH M7005-2 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT WHEN A MEMBER IS TRANSFERRED BY PERMANENT CHANGE-OF-STATION ORDERS TO AN OVERSEAS AREA WHERE TRAVEL OF DEPENDENTS IS AUTHORIZED ONLY UPON PRIOR APPROVAL, TRANSPORTATION OF DEPENDENTS IS AUTHORIZED AT PUBLIC EXPENSE ONLY TO POINT OF DEPARTURE OF DEPENDENTS FROM THE UNITED STATES IN CONJUNCTION WITH THEIR TRAVEL TO A PLACE OUTSIDE THE UNITED STATES DESIGNATED BY THE MEMBER WHEN SUCH APPROVAL HAS NOT BEEN OBTAINED.

WITH RESPECT TO TRAVEL OF DEPENDENTS TO GERMANY, PARAGRAPH 3S(1)(B), ARMY REGULATIONS 55-46, PROVIDES THAT CONCURRENT TRAVEL REQUIRES SUBMISSION OF APPLICATION TO AND APPROVAL BY THE OVERSEAS COMMANDER. PARAGRAPH 4D(1) OF THE SAME REGULATIONS PROVIDES THAT OVERSEAS COMMANDERS ARE RESPONSIBLE FOR AUTHORIZING THE ENTRY OF DEPENDENTS INTO THEIR COMMAND.

THE DEPARTMENT OF DEFENSE POLICY ON OVERSEAS TOURS OF DUTY FOR MILITARY PERSONNEL AND RELATED POLICIES AFFECTING THEIR DEPENDENTS, INCLUDING TRAVEL OF DEPENDENTS, IS SET FORTH IN DEPARTMENT OF DEFENSE DIRECTIVE 1315.7. AN ENCLOSURE TO THAT DIRECTIVE IN EFFECT AT THE TIME HERE INVOLVED SHOWS THAT MEMBERS ACCOMPANIED BY DEPENDENTS WERE REQUIRED TO SERVE 36 MONTHS IN GERMANY WHILE THOSE SERVING THE "ALL OTHERS" OR WITHOUT DEPENDENTS TOUR WERE REQUIRED TO SERVE 24 MONTHS.

YOUR ORDERS OF FEBRUARY 8, 1968, SHOW THAT YOU HAD AN ACTIVE DUTY COMMITMENT OF TWO YEARS. ON FEBRUARY 28, 1968, YOU WERE ADVISED THAT YOUR REQUEST FOR RETENTION ON ACTIVE DUTY WAS APPROVED EFFECTIVE FEBRUARY 28, 1970, AND THAT YOU WOULD BE RETAINED ON ACTIVE DUTY UNTIL FURTHER NOTICE. ALSO WHILE THE RECORD SHOWS THAT ON JUNE 1, 1968, THE COMMANDER ACCEPTED YOUR WIFE AS A COMMAND SPONSORED DEPENDENT EFFECTIVE APRIL 21, 1968, THERE IS NO SHOWING THAT THE DETERMINATION OF JUNE 1, 1968, WAS ISSUED TO CONFIRM PRIOR VERBAL ORDERS AND IT IS ADMINISTRATIVELY REPORTED THAT YOU DID NOT OBTAIN PRIOR APPROVAL FOR YOUR WIFE'S TRAVEL.

PARAGRAPH 7, ARMY REGULATIONS 55-46, IN EFFECT AT THE TIME HERE INVOLVED, PROVIDES THAT THE DEPARTMENT OF THE ARMY POLICY IS TO DETER ENTRY INTO OVERSEAS AREAS OF DEPENDENTS WHO HAVE NOT BEEN ENDORSED BY THE OVERSEAS COMMANDER TO ACCOMPANY OR JOIN THEIR MILITARY SPONSORS OVERSEAS. FURTHER PROVIDES THAT SUCH DEPENDENTS MAY NOT BE TRANSPORTED TO THE MEMBER'S OVERSEAS DUTY STATION AT GOVERNMENT EXPENSE AND THAT IF DEPENDENTS DO ENTER THE AREA AT PERSONAL EXPENSE WITHOUT PRIOR APPROVAL AND RESIDE IN THE VICINITY OF MEMBER'S DUTY STATION, THE COMMANDER WILL, AFTER A REASONABLE PERIOD OF TIME, RECOGNIZE THEM AS "COMMAND SPONSORED." THIS, APPARENTLY IS WHAT OCCURRED IN YOUR CASE AND DOES NOT ENTITLE YOU TO REIMBURSEMENT FOR YOUR WIFE'S TRAVEL.

ACCORDINGLY, ON THE PRESENT RECORD, THE SETTLEMENT OF JUNE 11, 1969, IS CORRECT AND IS SUSTAINED.