B-176626, OCT 17, 1972
Highlights
WHERE THERE IS DISAGREEMENT AS TO THE FACTS IN A PARTICULAR CASE AND THERE IS INSUFFICIENT EVIDENCE TO OVERCOME THE PRESUMPTION OF THE CORRECTNESS OF THE ADMINISTRATIVE REPORT. THE FACTS REPORTED BY THE AGENCY ARE CONTROLLING. WHERE MAC TRANSPORTATION IS AVAILABLE AND A MEMBER PERFORMS TRANSOCEANIC TRAVEL BY ANOTHER MODE OF TRANSPORTATION AT PERSONAL EXPENSE. THE MEMBER IS ONLY ENTITLED TO BE REIMBURSED IN THE AMOUNT THE SPONSORING SERVICE WOULD HAVE TO PAY FOR THE MAC TRANSPORTATION. SIMMONS: REFERENCE IS MADE TO YOUR LETTER OF JUNE 29. YOU WERE ORDERED TO PROCEED ON PERMANENT CHANGE OF STATION FROM HEADQUARTERS. C. THIRTY DAYS' LEAVE AS DELAY EN ROUTE WAS AUTHORIZED. YOU WERE TO REPORT TO YOUR NEW DUTY STATION NO LATER THAN AUGUST 2.
B-176626, OCT 17, 1972
MILITARY PERSONNEL - TRANSOCEANIC TRAVEL - MODE OF TRANSPORTATION - EVIDENCE DECISION AFFIRMING DENIAL OF THE CLAIMS OF COLONEL JAMES E. SIMMONS FOR ADDITIONAL REIMBURSEMENT FOR THE COST OF COMMERCIAL AIR TRAVEL FOR HIM AND HIS DEPENDENTS FROM HEIDELBERG, GERMANY, TO DULLES AIRPORT, VA., INCIDENT TO HIS PERMANENT CHANGE OF STATION. WHERE THERE IS DISAGREEMENT AS TO THE FACTS IN A PARTICULAR CASE AND THERE IS INSUFFICIENT EVIDENCE TO OVERCOME THE PRESUMPTION OF THE CORRECTNESS OF THE ADMINISTRATIVE REPORT, THE FACTS REPORTED BY THE AGENCY ARE CONTROLLING. MOREOVER, THE FAILURE OF GOVERNMENT PERSONNEL TO FURNISH PROPER ADVICE DOES NOT CREATE A LEGAL BASIS TO ALLOW A CLAIM. ACCORDINGLY, WHERE MAC TRANSPORTATION IS AVAILABLE AND A MEMBER PERFORMS TRANSOCEANIC TRAVEL BY ANOTHER MODE OF TRANSPORTATION AT PERSONAL EXPENSE, THE MEMBER IS ONLY ENTITLED TO BE REIMBURSED IN THE AMOUNT THE SPONSORING SERVICE WOULD HAVE TO PAY FOR THE MAC TRANSPORTATION.
TO COLONEL JAMES E. SIMMONS:
REFERENCE IS MADE TO YOUR LETTER OF JUNE 29, 1972, REQUESTING REVIEW OF SETTLEMENT OF APRIL 20, 1972, WHICH DISALLOWED YOUR CLAIM FOR ADDITIONAL REIMBURSEMENT FOR THE COST OF COMMERCIAL AIR TRAVEL FOR YOU AND YOUR DEPENDENTS FROM HEIDELBERG, GERMANY, TO DULLES AIRPORT, VIRGINIA, INCIDENT TO YOUR PERMANENT CHANGE OF STATION.
BY SPECIAL ORDERS NO. 55, DATED MARCH 11, 1971, YOU WERE ORDERED TO PROCEED ON PERMANENT CHANGE OF STATION FROM HEADQUARTERS, UNITED STATES ARMY, EUROPE AND SEVENTH ARMY, APO 09403, TO HEADQUARTERS, MILITARY DISTRICT OF WASHINGTON (WOGVAA), WASHINGTON, D. C. THIRTY DAYS' LEAVE AS DELAY EN ROUTE WAS AUTHORIZED; YOU WERE TO REPORT TO YOUR NEW DUTY STATION NO LATER THAN AUGUST 2, 1971. CONCURRENT TRAVEL WAS AUTHORIZED FOR YOUR DEPENDENT WIFE AND DAUGHTER. SPECIAL ORDERS NO. 99, MAY 4, 1971, AMENDED THE ABOVE ORDERS TO PERMIT 44 DAYS' DELAY AT HOME OR LEAVE ADDRESS CHARGEABLE AS LEAVE; ORDERS DATED MAY 5, 1971, AND EFFECTIVE THAT DAY, GRANTED 30 DAYS' EMERGENCY LEAVE.
BECAUSE YOUR SON HAD BEEN INJURED IN AN AUTOMOBILE ACCIDENT IN ALEXANDRIA, VIRGINIA, ON APRIL 26, 1971, YOUR WIFE, AT PERSONAL EXPENSE, TRAVELED FROM HEIDELBERG, GERMANY, TO DULLES AIRPORT, VIRGINIA, ON APRIL 27, VIA COMMERCIAL AIRPLANE. ON MAY 5 YOU AND YOUR DAUGHTER, ALSO AT PERSONAL EXPENSE, FLEW FROM HEIDELBERG TO DULLES AIRPORT ON A COMMERCIAL AIRLINE.
YOU CLAIM FULL REIMBURSEMENT FOR THE COST OF COMMERCIAL AIR TRAVEL OF YOURSELF AND DEPENDENTS BECAUSE GOVERNMENT TRANSPORTATION WAS NOT REASONABLY AVAILABLE ON THE DATES OF DEPARTURE IN QUESTION. YOU SAY THAT ON THE EVENING OF APRIL 26, 1971, MAJOR GENERAL RAYMOND C. CONROY, USAREUR, CAME TO YOUR QUARTERS AND INFORMED YOU THAT THERE WERE NO MILITARY FLIGHTS AVAILABLE THAT NIGHT OR THE FOLLOWING MORNING. ADDITION, YOU SAY THAT ON THE EVENING OF MAY 4, 1971, YOU WERE NOTIFIED, PRESUMABLY BY THE USAREUR TRANSPORTATION OFFICER, THAT NO GOVERNMENT AIR TRANSPORTATION WAS AVAILABLE THAT NIGHT OR THE MORNING OF MAY 5. ACCORDINGLY, IN BOTH INSTANCES YOU BOOKED TRANSPORTATION ON COMMERCIAL AIRLINES AT YOUR OWN EXPENSE.
YOU CLAIMED REIMBURSEMENT FOR COMMERCIAL AIR FARE OF $284 EACH, FOR TRAVEL FROM HEIDELBERG, GERMANY, TO DULLES AIRPORT, VIRGINIA, FOR YOURSELF, YOUR WIFE AND DAUGHTER. HOWEVER, YOUR REIMBURSEMENT WAS LIMITED TO $82 EACH, THE COST TO THE ARMY OF MILITARY AIRLIFT COMMAND (MAC) TRANSPORTATION FROM RHEIN MAIN AIR FORCE BASE, GERMANY, TO MCGUIRE AIR FORCE BASE, NEW JERSEY, PLUS MILEAGE ALLOWANCES FROM HEIDELBERG TO RHEIN MAIN AIR FORCE BASE, AND FROM MCGUIRE AIR FORCE BASE, NEW JERSEY, TO YOUR DESTINATION IN VIRGINIA.
SECTION 404 OF TITLE 37 U.S.C. PROVIDES IN PERTINENT PART THAT UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, A MEMBER OF A UNIFORMED SERVICE IS ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES FOR TRAVEL PERFORMED UPON A CHANGE OF PERMANENT STATION. THE ALLOWANCE AUTHORIZED MAY NOT BE MORE THAN TRANSPORTATION IN KIND, REIMBURSEMENT THEREFOR, OR A MONETARY ALLOWANCE.
SECTION 406 OF TITLE 37, U.S.C. STATES THAT A MEMBER OF A UNIFORMED SERVICE WHO IS ORDERED TO MAKE A CHANGE OF PERMANENT STATION IS ENTITLED TO TRANSPORTATION IN KIND FOR HIS DEPENDENTS, REIMBURSEMENT THEREFOR, OR A MONETARY ALLOWANCE.
PARAGRAPH M4159-4 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT WHEN GOVERNMENT TRANSPORTATION IS AUTHORIZED (AS DISTINGUISHED FROM DIRECTED) AND THE MEMBER PERFORMS TRANSOCEANIC TRAVEL BY ANOTHER MODE OF TRANSPORTATION AT PERSONAL EXPENSE, THE MEMBER IS ENTITLED TO REIMBURSEMENT NOT TO EXCEED THE AMOUNT THE SPONSORING SERVICE WOULD HAVE BEEN REQUIRED TO PAY FOR THE AVAILABLE GOVERNMENT TRANSPORTATION. NEITHER GOVERNMENT TRANSPORTATION NOR GOVERNMENT TRANSPORTATION REQUESTS OR OTHER TRANSPORTATION PROCUREMENT DOCUMENTS ARE AVAILABLE, THE MEMBER IS ENTITLED TO REIMBURSEMENT OF THE COST OF THE LEAST EXPENSIVE COMMERCIAL AIR TRANSPORTATION AVAILABLE. SIMILAR PROVISIONS FOR DEPENDENT TRAVEL APPEAR IN PARAGRAPH M7002 OF THE REGULATIONS.
SINCE PERMANENT CHANGE OF STATION ORDERS WERE ISSUED BEFORE YOUR WIFE'S TRAVEL AND BEFORE GRANTING OF EMERGENCY LEAVE, YOUR TRAVEL AND THAT OF YOUR DEPENDENTS BACK TO THE UNITED STATES IS CONSIDERED PERMANENT CHANGE OF STATION TRAVEL ENTITLING YOU TO APPROPRIATE TRANSPORTATION ALLOWANCES.
YOUR CLAIM FOR REIMBURSEMENT FOR THE TOTAL COST OF COMMERCIAL AIR TRAVEL, BASED ON YOUR CONTENTION THAT GOVERNMENT TRANSPORTATION WAS NOT REASONABLY AVAILABLE ON THE DATES IN QUESTION IS DISPUTED IN LETTER FROM COLONEL ROBERT A. SMOAK, ADCSIOG, WHICH STATES THAT ACCORDING TO MILITARY AIRLIFT COMMAND RECORDS, GOVERNMENT FLIGHTS WERE AVAILABLE ON BOTH APRIL 27, 1971, AND MAY 5, 1971. CONSEQUENTLY, YOUR REQUEST FOR A CERTIFICATE OF NONAVAILABILITY WAS DENIED.
WHERE THERE IS DISAGREEMENT CONCERNING FACTS AS ADMINISTRATIVELY REPORTED AND AS REPORTED BY A CLAIMANT, IN THE ABSENCE OF EVIDENCE SUBMITTED BY THE CLAIMANT LEGALLY SUFFICIENT TO OVERCOME THE PRESUMPTION OF THEIR CORRECTNESS, WE MUST ACCEPT THE FACTS ADMINISTRATIVELY REPORTED AS CONTROLLING THE DISPOSITION OF THE CLAIM. SEE B-165467, OCTOBER 30, 1968, COPY ENCLOSED.
YOU HAVE INDICATED THAT YOU WERE INFORMED THAT MAC TRANSPORTATION WAS NOT REASONABLY AVAILABLE FOR YOUR WIFE, OR FOR YOURSELF AND YOUR DAUGHTER. THE FAILURE OF GOVERNMENT PERSONNEL TO FURNISH PROPER ADVICE OR INFORMATION, DOES NOT, IN OUR OPINION, FURNISH A LEGAL BASIS FOR ALLOWANCE OF A CLAIM.
WHILE IT IS REGRETTABLE THAT YOU INCURRED SUBSTANTIAL EXPENSE BECAUSE OF THE UTILIZATION OF COMMERCIAL AIR TRANSPORTATION FROM HEILDELBERG, GERMANY, TO DULLES AIRPORT, VIRGINIA, IN VIEW OF THE RECORD BEFORE US, THE DENIAL OF YOUR CLAIM MUST BE SUSTAINED.