B-116697, DEC 4, 1953

B-116697, DEC 4, 1953

PRECIS-UNAVAILABLE

MAJOR PHILLIP R. BALLINGER, USAF:

REFERENCE IS MADE TO YOUR LETTER OF JULY 27, 1953, REQUESTING REVIEW OF SETTLEMENT DATED MAY 8, 1952, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT FOR TRAVEL BY RAIL OF YOUR DEPENDENTS (WIFE AND SON) FROM NEW ORLEANS, LOUISANA, TO SAN FRANCISCO, CALIFORNIA, AND THENCE BY COMMERCIAL VESSEL TO TOKYO, JAPAN, BETWEEN THE DATES NOVEMBER 25 AND DECEMBER 12, 1951, INCIDENT TO ORDERS DATED AUGUST 18 AND SEPTEMBER 28, 1950, TRANSFERRING YOU FROM DUTY AT BOULDER, COLORADO, TO DUTY IN JAPAN.

BY DEPARTMENT OF THE ARMY MESSAGE WAR 85304 DATED JULY 5, 1950, ALL TRAVEL OF DEPENDENTS TO PACIFIC DESTINATIONS WAS SUSPENDED EFFECTIVE JULY 15, 1950, DUE TO THE KOREAN CONFLICT. THIS RESTRICTION ON TRAVEL OF DEPENDENTS TO JAPAN WAS NOT REMOVED UNTIL AUGUST 5, 1951, WHEN GENERAL HEADQUARTERS, FAR EAST COMMAND, ISSUED A MESSAGE LIFTING THE SUSPENSION OF DEPENDENT TRAVEL TO JAPAN AND STATING THAT THE MOVEMENT OF DEPENDENTS TO THAT COMMAND WOULD BE STRICTLY IN ACCORDANCE WITH THE PRIORITY SYSTEM.

IT LONG HAS BEEN RECOGNIZED THAT THE RIGHT TO TRANSPORTATION OF DEPENDENTS OF MILITARY PERSONNEL AT GOVERNMENT EXPENSE IS NOT AN ABSOLUTE ONE BUT MAY BE ADMINISTRATIVELY SUSPENDED OR DENIED FOR MILITARY REASONS, AND THAT WHERE TRANSPORTATION IS ADMINISTRATIVELY REFUSED BY REASON OF MILITARY NECESSITY OR EXPEDIENCY AN OFFICER MAY NOT TRANSPORT HIS DEPENDENTS AT PERSONAL EXPENSE AND BE PAID THE COST THEREOF. CULP V. UNITED STATES, 76. CLS. 507. THE PROCEDURE UNDER SECTION 303 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 814, WAS TO FURNISH ELIGIBLE PERSONNEL ORDERED TO OVERSEAS DUTY TRANSPORTATION FOR THEIR DEPENDENTS FROM OLD DUTY STATION TO A PLACE IN THE UNITED STATES, SELECTED BY THEM, TO AWAIT TRANSPORTATION TO THE OVERSEAS STATION AT THE PROPER TIME AND IN THEIR PROPER TURN UNDER AN ESTABLISHED PRIORITY SYSTEM. WHILE IT APPEARS THAT YOU HAD OFFICIAL PERMISSION FOR YOUR DEPENDENTS TO TRAVEL TO YOUR OVERSEAS STATION, SUCH PERMISSION WAS MERELY FOR THE PURPOSE OF ENABLING YOUR DEPENDENTS TO SECURE A PASSPORT AND VISA FOR THEIR TRAVEL. TRANSPORTATION AT GOVERNMENT EXPENSE WAS AVAILABLE FOR DEPENDENTS OF MILITARY PERSONNEL ON DUTY IN JAPAN, AND WOULD HAVE BEEN FURNISHED YOUR DEPENDENTS AT NO COST TO YOU UNDER THE PRIORITY SYSTEM HAD THEY AWAITED SUCH TRANSPORTATION. THERE IS NO LEGAL BASIS UPON WHICH YOU MAY BE REIMBURSED FOR THE COST OF THEIR TRAVEL BY COMMERCIAL MEANS FROM SAN FRANCISCO TO JAPAN. HOWEVER, SINCE YOU HAD PROCEEDED TO JAPAN ON A PERMANENT CHANGE OF STATION AND YOUR DEPENDENTS WERE LATER PERMITTED TO JOIN YOU AT YOUR NEW STATION, YOU ARE ENTITLED TO REIMBURSEMENT ON A MILEAGE BASIS AS AUTHORIZED BY APPLICABLE REGULATIONS, FOR THE DISTANCE FROM NEW ORLEANS, LOUISIANA, TO SAN FRANCISCO, CALIFORNIA, THE PLACE FROM WHICH GOVERNMENT WATER TRANSPORTATION WOULD HAVE BEEN FURNISHED.

A SETTLEMENT WILL ISSUE IN DUE COURSE FOR THE PROPER AMOUNT FOUND DUE ON THE BASIS INDICATED ABOVE.