B-152042, AUG. 23, 1963

B-152042, AUG. 23, 1963

TO MR. WHITNEY J. LUMAS, JR.:

FURTHER REFERENCE IS MADE TO LETTER DATED JUNE 22, 1963, ADDRESSED TO US BY MRS. SUSAN LUMAS, IN EFFECT REQUESTING RECONSIDERATION OF SETTLEMENT DATED JUNE 18, 1963, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT OF THE COST OF TRANSPORTATION FOR YOUR DEPENDENTS BY ROYAL MAIL LINES FROM LONDON, ENGLAND, TO LOS ANGELES, CALIFORNIA, DURING THE PERIOD NOVEMBER 5 TO DECEMBER 2, 1962, INCIDENT TO YOUR SERVICE IN THE UNITED STATES NAVY.

BY ORDER NO. 447-62, PREPARED JUNE 8, 1962, YOU WERE TRANSFERRED FROM THE U.S. NAVAL COMMUNICATION STATION, PORT LYAUTEY, MOROCCO, TO THE U.S. AIR FORCE HOSPITAL, WIESBADEN, GERMANY, FOR TEMPORARY DUTY UNDERTREATMENT WITH LATER TRAVEL DIRECTED TO THE CONTINENTAL UNITED STATES. SPECIAL ORDER AC- 697 DATED JUNE 22, 1962, SHOWING THAT YOU ARRIVED AT MCGUIRE AIR FORCE BASE, NEW JERSEY, ON THAT DATE FROM OVERSEAS, AUTHORIZED YOU TO TRAVEL TO THE U.S. NAVAL HOSPITAL, OAKLAND, CALIFORNIA, FOR OBSERVATION, TREATMENT AND DISPOSITION. BY ORDER NO. 7-052 DATED JULY 5, 1962, YOU WERE DIRECTED TO REPORT TO THE U.S. NAVAL RECEIVING STATION, TREASURE ISLAND, SAN FRANCISCO, CALIFORNIA, WHERE YOU WERE DISCHARGED AUGUST 31, 1962.

IT APPEARS THAT YOUR WIFE AND ELDEST SON TRAVELED FROM YOUR STATION, PORT LYAUTEY, MOROCCO, TO ENGLAND TO VISIT YOUR WIFE'S PARENTS; THAT YOUR SECOND SON WAS BORN THERE, AND THAT YOUR DEPENDENTS WERE IN LONDON WHEN THE ORDERS WERE ISSUED DIRECTING YOUR TRANSFER TO THE UNITED STATES. THAT TIME YOUR RATING WAS CT3 (E-4 WITH OVER 4 YEARS' SERVICE). HOWEVER, AT THE TIME OF YOUR DISCHARGE YOUR RATING WAS CTSN (E-3), A PAY GRADE NOT ENTITLED TO TRANSPORTATION OF DEPENDENTS. YOU STATED IN YOUR CLAIM DATED JUNE 30, 1963, THAT YOUR WIFE, BELIEVING YOU WERE NOT ENTITLED TO TRANSPORTATION OF DEPENDENTS TO THE UNITED STATES, ARRANGED FOR AVAILABLE COMMERCIAL (BRITISH) TRANSPORTATION; THAT SHE DID NOT WAIT FOR NAVAL TRANSPORTATION TO BE FURNISHED, AND THAT THE AUTHORIZATION ARRIVED FOUR DAYS AFTER SHE SAILED.

THE SETTLEMENT OF JUNE 18, 1963, DISALLOWED YOUR CLAIM FOR TRAVEL OF YOUR DEPENDENTS FOR THE REASON THAT THE REGULATIONS PROVIDE THAT VESSELS OR AIRCRAFT REGISTERED UNDER THE LAWS OF THE UNITED STATES WILL BE USED FOR ALL TRAVEL AND TRANSPORTATION OUTSIDE CONTINENTAL UNITED STATES, EXCEPT WHEN THE ORDER ISSUING AUTHORITY OR THE TRANSPORTATION OFFICER DETERMINES THAT A CARRIER OF UNITED STATES REGISTRY IS NOT AVAILABLE, OR, IF AVAILABLE, THE USE OF SAME WOULD NOT BE PRACTICAL. YOUR CLAIM WAS NOT SUPPORTED BY SUCH A DETERMINATION FOR THE TRAVEL OF YOUR DEPENDENTS VIA A VESSEL REGISTERED UNDER THE LAWS OF ENGLAND.

MRS. LUMAS SAYS IN HER LETTER OF JUNE 22, 1963, THAT THE LAXNESS OF YOUR LEGAL OFFICER AT TREASURE ISLAND IN FURNISHING YOU THE NECESSARY PAPERS CAUSED A DELAY SO THAT SHE COULD NOT APPLY IN TIME FOR GOVERNMENT TRANSPORTATION AT THE NAVAL TRANSPORTATION OFFICE IN LONDON, AND THAT YOU ARE ENTITLED TO AT LEAST PART OF YOUR CLAIM.

THE PERSONNEL TRANSPORTATION DIVISION, BUREAU OF NAVAL PERSONNEL, DEPARTMENT OF THE NAVY, REPORTED THAT DURING THE PERIOD INVOLVED, GOVERNMENT TRANSPORTATION WAS AVAILABLE FOR DEPENDENTS FROM PORT LYAUTEY, MOROCCO, TO NEW YORK, NEW YORK, VIA MILITARY SEA TRANSPORTATION SERVICE, AND THAT GOVERNMENT TRANSPORTATION WAS AVAILABLE FROM PORT LYAUTEY, MOROCCO, TO NORFOLK, VIRGINIA, VIA MILITARY AIR TRANSPORT SERVICE. LAND TRAVEL FROM EITHER POINT TO OAKLAND, CALIFORNIA, WOULD HAVE BEEN ON A REIMBURSABLE BASIS.

SECTION 901 OF THE MERCHANT MARINE ACT OF 1936, 49 STAT. 2015, AS AMENDED, 46 U.S.C. 1241 (A), PROVIDES AS FOLLOWS:

"ANY OFFICER OR EMPLOYEE OF THE UNITED STATES TRAVELING ON OFFICIAL BUSINESS OVERSEAS OR TO OR FROM ANY OF THE POSSESSIONS OF THE UNITED STATES SHALL TRAVEL AND TRANSPORT HIS PERSONAL EFFECTS ON SHIPS REGISTERED UNDER THE LAWS OF THE UNITED STATES WHERE SUCH SHIPS ARE AVAILABLE UNLESS THE NECESSITY OF HIS MISSION REQUIRES THE USE OF A SHIP UNDER A FOREIGN FLAG:PROVIDED, THAT THE COMPTROLLER GENERAL OF THE UNITED STATES SHALL NOT CREDIT ANY ALLOWANCE FOR TRAVEL OR SHIPPING EXPENSES INCURRED ON A FOREIGN SHIP IN THE ABSENCE OF SATISFACTORY PROOF OF THE NECESSITY REFOR.'

SINCE THE RIGHT TO TRANSPORTATION DOES NOT ACCRUE TO THE DEPENDENTS AS SUCH BUT TO THE OFFICER CONCERNED, THE STATUTE LIMITING TRAVEL ON VESSELS OF FOREIGN REGISTRY LONG HAS BEEN APPLIED WITH EQUAL FORCE TO TRAVEL PERFORMED BY DEPENDENTS. 9 COMP. GEN. 210; 30 COMP. GEN. 407.

THE TRANSPORTATION OF DEPENDENTS INCIDENT TO A MEMBER'S PERMANENT CHANGE OF STATION IS AUTHORIZED UNDER SUCH CONDITIONS AND LIMITATIONS AS MAY BE PRESCRIBED BY THE SECRETARIES CONCERNED. 37 U.S.C. 406. IN CONSONANCE WITH THE PURPOSE OF THE ABOVE-QUOTED STATUTE, PARAGRAPH 2150-1 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT WHERE THE AUTHORITY ISSUING TRAVEL ORDERS DETERMINES THAT THE USE OF VESSELS OR AIRCRAFT REGISTERED UNDER THE LAWS OF THE UNITED STATES WOULD SERIOUSLY INTERFERE WITH OR PREVENT THE PERFORMANCE OF OFFICIAL BUSINESS, HE MAY AUTHORIZE THE USE OF VESSELS OR AIRCRAFT OF FOREIGN REGISTRY. A STATEMENT OF THIS DETERMINATION MUST BE CONTAINED IN OR APPENDED TO THE TRAVEL OR TRANSPORTATION ORDERS. NO SUCH DETERMINATION WAS MADE IN YOUR CASE. PARAGRAPH 7000-8 OF THE REGULATIONS PROVIDES THAT MEMBERS OF THE UNIFORMED SERVICES ARE ENTITLED TO TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE UPON A PERMANENT CHANGE OF STATION EXCEPT FOR ANY PORTION OF TRAVEL PERFORMED BY A FOREIGN REGISTERED VESSEL OR AIRPLANE IF AMERICAN REGISTERED VESSELS OR AIRPLANES ARE AVAILABLE BY THE USUALLY TRAVELED ROUTE. ACCORDINGLY, THE SETTLEMENT OF JUNE 18, 1963, DISALLOWING YOUR CLAIM FOR REIMBURSEMENT FOR DEPENDENTS' TRAVEL FROM LONDON TO LOS ANGELES BY FOREIGN VESSEL WAS CORRECT AND IS SUSTAINED.

IN THIS REGARD IT MAY BE NOTED THAT THE REQUIREMENT FOR TRAVEL BY MEMBERS OF THE UNIFORMED SERVICES ON VESSELS OR AIRCRAFT OF AMERICAN REGISTRY WAS ENDORSED BY THE CONGRESS IN SENATE CONCURRENT RESOLUTION 53, DATED OCTOBER 1962. THIS RESOLUTION PROVIDES THAT WHEN TRAVEL ON OFFICIAL BUSINESS IS TO BE PERFORMED ON CIVIL AIRCRAFT BY LEGISLATIVE AND GOVERNMENT OFFICERS AND EMPLOYEES, THAT SAID TRAVEL BE PERFORMED BY THEM ON UNITED STATES FLAG AIR CARRIERS, EXCEPT WHERE TRAVEL ON OTHER AIRCRAFT (A) IS ESSENTIAL TO THE OFFICIAL BUSINESS CONCERNED, OR (B) IS NECESSARY TO AVOID UNREASONABLE DELAY, EXPENSE, OR INCONVENIENCE.

THE FACT THAT YOU MAY NOT HAVE BEEN PROMPTLY FURNISHED THE NECESSARY PAPERS SO THAT YOUR WIFE COULD APPLY AT THE NAVAL TRANSPORTATION OFFICE IN LONDON FOR GOVERNMENT TRANSPORTATION AFFORDS NO BASIS FOR FAVORABLE CONSIDERATION OF YOUR CLAIM BY THIS OFFICE. WE MAY AUTHORIZE PAYMENT OF CLAIMS FROM PUBLIC FUNDS ONLY IF SUCH PAYMENT IS AUTHORIZED BY APPLICABLE LAW AND REGULATIONS.