B-158167, JAN. 24, 1966

B-158167, JAN. 24, 1966

TO STAFF SERGEANT CHARLES RAYNOLDS, RA 10 812 792:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 1, 1965, IN EFFECT REQUESTING RECONSIDERATION OF SETTLEMENT DATED SEPTEMBER 30, 1965, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT FOR TRANSPORTATION OF YOUR DEPENDENTS FROM BAIERSBRONN, GERMANY, TO AMADOR, CANAL ZONE, ON JUNE 9 AND 10, 1965.

BY SPECIAL ORDERS 233 DATED DECEMBER 4, 1964, AS AMENDED, ISSUED BY HEADQUARTERS, DEFENSE LANGUAGE INSTITUTE, WEST COAST BRANCH, PRESIDIO OF MONTEREY, CALIFORNIA, YOU WERE TRANSFERRED ON A PERMANENT CHANGE OF STATION AND DIRECTED TO REPORT TO THE ARMY OVERSEAS REPLACEMENT STATION, CHARLESTON AIR FORCE BASE, SOUTH CAROLINA, ON MARCH 8, 1965, FOR FURTHER TRANSPORTATION TO YOUR NEW STATION AFTER TEMPORARY DUTY FOR APPROXIMATELY 8 WEEKS AT THE U.S. ARMY INTELLIGENCE SCHOOL, FORT HOLABIRD, MARYLAND. CONCURRENT TRAVEL OF YOUR DEPENDENTS TO YOUR NEW PERMANENT DUTY STATION AT THE U.S. ARMY FORCES SOUTHERN COMMAND, FORT AMADOR, CANAL ZONE, WAS NOT AUTHORIZED UNDER THESE ORDERS. YOU WERE PAID FOR DEPENDENT TRAVEL DURING THE PERIOD DECEMBER 17 TO 26, 1964, FROM FORT ORD, CALIFORNIA, TO FORT DIX, NEW JERSEY, AND FROM THERE YOUR DEPENDENTS APPARENTLY TRAVELED AT PERSONAL EXPENSE TO BAIERSBRONN, GERMANY, TO AWAIT ORDERS AUTHORIZING THEIR FURTHER MOVEMENT AT GOVERNMENT EXPENSE. IN YOUR LETTER OF DECEMBER 1, 1965, YOU SAY THAT YOUR CLAIM FOR REIMBURSEMENT INCLUDES THE TRANSPORTATION OF YOUR DEPENDENTS ON A CONSTRUCTIVE BASIS FROM FORT DIX, NEW JERSEY, TO CHARLESTON, SOUTH CAROLINA, AND YOU FEEL THAT YOU SHOULD RECEIVE PARTIAL REIMBURSEMENT FOR THEIR TRANSPORTATION FROM CHARLESTON TO HOWARD AIR FORCE BASE, CANAL ZONE.

IT APPEARS THAT BY MESSAGE OF APRIL 21, 1965, AND SUBSEQUENT MESSAGES FROM FORT AMADOR TO THE COMMANDING GENERAL, UNITED STATES ARMY, HEIDELBERG, GERMANY, IT WAS REQUESTED THAT A PORT CALL BE ISSUED FOR YOUR DEPENDENTS TO TRAVEL FROM BROOKLYN, NEW YORK, TO YOUR STATION BY GOVERNMENT AIR TRANSPORTATION. HOWEVER, THERE APPARENTLY WAS SOME CONFUSION AND ADMINISTRATIVE DELAY IN ISSUING THE PORT CALL. YOU STATE THAT YOUR WIFE MADE TELEPHONE CALLS TO VARIOUS ARMY OFFICES IN GERMANY CONCERNING SUCH TRANSPORTATION BUT WITHOUT FAVORABLE ACTION AND THAT SHE WAS TOLD IN RESPONSE TO HER CALL OF JUNE 8, 1965, TO THE ARMY OFFICE IN STUTTGART, THAT SHE SHOULD WAIT FOR SEVERAL DAYS FOR THE RETURN OF PERSONNEL WITH KNOWLEDGE OF THE MATTER. AS A RESULT YOU SAY SHE BECAME DISHEARTENED AND IMMEDIATELY PURCHASED TICKETS FOR HERSELF AND YOUR CHILD ON AN AIRPLANE DEPARTING THE NEXT DAY. THE TRAVEL WAS PERFORMED BY KLM ROYAL DUTCH AIRLINES FROM STUTTGART TO PANAMA.

SECTION 406 OF TITLE 37, U.S.C. PROVIDES THAT A MEMBER OF A UNIFORMED SERVICE WHO IS ORDERED TO MAKE A CHANGE OF PERMANENT STATION IS ENTITLED TO TRANSPORTATION OF DEPENDENTS, OR REIMBURSEMENT THEREFOR, SUBJECT TO SUCH CONDITIONS AND LIMITATIONS AND TO AND FROM SUCH PLACES AS PRESCRIBED BY THE SECRETARIES CONCERNED. PARAGRAPH M7005 OF THE JOINT TRAVEL REGULATIONS, PROMULGATED PURSUANT TO THIS AUTHORITY, PROVIDED DURING THE PERIOD INVOLVED THAT WHEN A MEMBER WAS TRANSFERRED OR ASSIGNED BY PERMANENT CHANGE OF STATION ORDERS TO A RESTRICTED AREA, HE WOULD BE ENTITLED TO TRANSPORTATION OF DEPENDENTS FROM THE PLACE DEPENDENTS WERE LOCATED NOT TO EXCEED ENTITLEMENT FROM THE MEMBER'S DUTY STATION OR THE LAST PLACE THE DEPENDENTS WERE TRANSPORTED AT GOVERNMENT EXPENSE TO THE POINT OF ACTUAL DEPARTURE OF DEPENDENTS FROM THE UNITED STATES IN CONJUNCTION WITH TRAVEL TO A PLACE OUTSIDE THE UNITED STATES DESIGNATED BY THE MEMBER. PARAGRAPH M7005 OF THE REGULATIONS ALSO PROVIDED THAT WHEN THE RESTRICTION AGAINST TRAVEL OF DEPENDENTS TO THE MEMBER'S PERMANENT DUTY STATION WAS REMOVED OR THE MEMBER WAS TRANSFERRED OR ASSIGNED UNDER PERMANENT CHANGE OF STATION ORDERS TO AN UNRESTRICTED AREA, TRANSPORTATION OF DEPENDENTS WAS AUTHORIZED FROM THE POINT OF ACTUAL DEPARTURE OF DEPENDENTS FROM THE UNITED STATES, OR FROM THE PLACE THE DEPENDENTS WERE THEN LOCATED TO THE MEMBER'S CURRENT DUTY STATION, WHICHEVER WAS THE LESSER.

IT LONG HAS BEEN RECOGNIZED THAT THE RIGHT TO TRANSPORTATION OF DEPENDENTS 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, A MEMBER MAY NOT TRANSPORT HIS DEPENDENTS AT PERSONAL EXPENSE AND BE PAID THE COST UNDER A STATUTE AUTHORIZING REIMBURSEMENT FOR TRAVEL OF DEPENDENTS UPON A PERMANENT CHANGE OF STATION. CULP V. UNITED STATES, 76 CT.CL. 507; 35 COMP. GEN. 61. UNDER THE PROVISIONS OF PARAGRAPH M7005, JOINT TRAVEL REGULATIONS, UPON THE TRANSPORTATION OF YOUR DEPENDENTS AT GOVERNMENT EXPENSE TO FORT DIX, NEW JERSEY, IN CONJUNCTION WITH THEIR TRAVEL TO A DESIGNATED PLACE OUTSIDE THE UNITED STATES, NO FURTHER TRANSPORTATION WAS AUTHORIZED FOR YOUR DEPENDENTS UNTIL THE RESTRICTION AGAINST THEIR TRAVEL TO YOUR PERMANENT DUTY STATION WAS REMOVED OR YOUR TRANSFER TO AN UNRESTRICTED AREA WAS EFFECTED. NO ORDERS WERE ISSUED TO YOU OR YOUR DEPENDENTS DIRECTING THAT THEY REPORT TO A PORT IN THE UNITED STATES FOR GOVERNMENT TRANSPORTATION TO YOUR STATION BUT IF THE REQUEST FROM YOUR STATION FOR THE ISSUANCE OF SUCH ORDERS BE VIEWED AS A DETERMINATION THAT THEIR MOVEMENT TO YOUR STATION WAS AUTHORIZED, THERE IS FOR CONSIDERATION OTHER PROVISIONS OF THE REGULATIONS.

PARAGRAPH M7000-7 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT MEMBERS OF THE UNIFORMED SERVICES ARE NOT ENTITLED TO TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE UPON A PERMANENT CHANGE OF STATION FOR ANY PORTION OF TRAVEL PERFORMED ON A FOREIGN REGISTERED VESSEL OR AIRPLANE, IF AMERICAN REGISTERED VESSELS OR AIRPLANES ARE AVAILABLE BY THE USUALLY TRAVELED ROUTE. SEE IN THIS REGARD SECTION 901 OF THE MERCHANT MARINE ACT OF 1936, 49 STAT. 2015, AS AMENDED, 46 U.S.C. 1241 (A). THE NECESSITY FOR USE OF UNITED STATES TRANSPORTATION FACILITIES IS FURTHER AMPLIFIED IN PARAGRAPH M2150 OF THE JOINT TRAVEL REGULATIONS WHICH REQUIRES THE USE OF VESSELS OR AIRCRAFT REGISTERED UNDER THE LAWS OF THE UNITED STATES FOR ALL TRAVEL AND TRANSPORTATION OUTSIDE THE CONTINENTAL UNITED STATES UNLESS DETERMINED IMPRACTICAL OR UNAVAILABLE BY THE TRANSPORTATION OR OTHER APPROPRIATE OFFICER. THESE PROVISIONS OF THE REGULATIONS PROMULGATED PURSUANT TO STATUTORY AUTHORITY HAVE THE FORCE AND EFFECT OF LAW AND WE MAY MAKE NO EXCEPTIONS TO SUCH PROVISIONS IN THE SETTLEMENT OF CLAIMS BY OUR OFFICE.

AS POINTED OUT ABOVE, THE REGULATIONS PROVIDED THAT UPON REMOVAL OF THE RESTRICTION ON THE TRAVEL OF YOUR DEPENDENTS TO YOUR STATION YOU WOULD BE ENTITLED TO THEIR TRANSPORTATION THERE FROM THE PLACE OF THEIR DEPARTURE FROM THE UNITED STATES SINCE THAT APPARENTLY WOULD BE LESS THAN FROM THE PLACE WHERE THEY WERE RESIDING IN GERMANY. NO DETERMINATION HAS BEEN MADE THAT TRANSPORTATION OF UNITED STATES REGISTRATION WAS NOT AVAILABLE FROM THE APPROPRIATE PORT IN THE UNITED STATES TO YOUR STATION AND IT IS INDICATED THAT GOVERNMENT TRANSPORTATION WOULD HAVE BEEN AUTHORIZED WITHOUT UNDUE DELAY IF YOUR DEPENDENTS HAD WAITED AS DIRECTED. IN THESE CIRCUMSTANCES, YOU ARE NOT ENTITLED TO REIMBURSEMENT FOR THEIR TRANSPORTATION ON THE CARRIER OF FOREIGN REGISTRY. AND, SINCE NO LAND TRAVEL WOULD HAVE BEEN REQUIRED FOR THEIR TRAVEL FROM THE APPROPRIATE PORT IN THE UNITED STATES TO YOUR STATION, NO PAYMENT IS AUTHORIZED ON THAT BASIS.

RELATIVE TO YOUR STATEMENT CONCERNING THE INEFFICIENCY OF THE RESPONSIBLE TRANSPORTATION OFFICE WHICH YOU APPARENTLY BELIEVE WAS THE CAUSE OF THE FAILURE OF YOUR DEPENDENTS TO RECEIVE ORDERS FOR GOVERNMENT TRANSPORTATION TO YOUR DUTY STATION AT FORT AMADOR, IT IS WELL ESTABLISHED THAT IN THE ABSENCE OF SPECIFIC STATUTORY PROVISIONS THE UNITED STATES IS NOT LIABLE FOR THE NEGLIGENT ACTS OF ITS OFFICERS, AGENTS OR EMPLOYEES EVEN THOUGH COMMITTED IN THE PERFORMANCE OF THEIR OFFICIAL DUTIES. GERMAN BANK V. UNITED STATES, 138 U.S. 573; 19 COMP. GEN. 503; 22 COMP. GEN. 221.

ACCORDINGLY, THE DISALLOWANCE OF YOUR CLAIM BY SETTLEMENT DATED SEPTEMBER 30, 1965, WAS CORRECT AND IS SUSTAINED.