B-161091, APR. 24, 1967

B-161091, APR. 24, 1967

TO HAL D. HARDEN, M.D.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 7, 1967, REQUESTING RECONSIDERATION OF SETTLEMENT DATED FEBRUARY 6, 1967, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT FOR THE COST OF TRANSPORTATION OF YOUR DEPENDENTS FROM PRUEM, GERMANY, TO FRANKFURT, GERMANY, AND FROM NEW YORK, NEW YORK, TO BOISE, IDAHO, ON JUNE 6 AND 7, 1966.

BY SPECIAL ORDERS NO. 118 DATED JULY 11, 1966, YOU WERE REASSIGNED FROM HEADQUARTERS 98TH GENERAL HOSPITAL, APO 09034, TO THE U.S. ARMY TRANSFER STATION (1386), FORT HAMILTON, NEW YORK, TO REPORT NOT LATER THAN AUGUST 27, 1966, FOR THE PURPOSE OF SEPARATION FROM THE SERVICE. THESE ORDERS DID NOT PROVIDE FOR TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE. ORDERS DATED AUGUST 30, 1966, PROVIDED FOR YOUR RELEASE FROM ACTIVE DUTY EFFECTIVE SEPTEMBER 7, 1966. THE SETTLEMENT DATED FEBRUARY 6, 1967, DISALLOWED YOUR CLAIM FOR THE REASON THAT YOUR DEPENDENTS PERFORMED THE TRAVEL PRIOR TO THE RECEIPT OF YOUR ORDERS OF JULY 11, 1966, AND PRIOR TO RECEIPT OF OFFICIAL NOTICE THAT SUCH ORDERS WOULD BE ISSUED.

IN YOUR LETTER OF MARCH 7, 1967, YOU SAY THAT WHILE YOUR FAMILY SITUATION (THE PREGNANCY OF YOUR WIFE) WAS THE PRIMARY REASON YOUR DEPENDENTS TRAVELED IN JUNE RATHER THAN AUGUST, YOU WERE VERBALLY ADVISED IN MAY 1966 THAT TRAVEL ORDERS WOULD BE CUT IN JULY. THE PERSONNEL OFFICER OF HEADQUARTERS 98TH GENERAL HOSPITAL, APO NEW YORK 09034, SAYS IN HIS STATEMENT OF JANUARY 23, 1967, FURNISHED BY YOU, THAT IN THE ABSENCE OF SUPPORTING DOCUMENTS AND THE FACT THAT THE THEN COMMANDING OFFICER AND PERSONNEL OFFICER ARE NO LONGER ASSIGNED TO THAT HOSPITAL, IT CAN BE ASSUMED THAT YOU WERE VERBALLY INFORMED OF YOUR ROTATION DATE PRIOR TO THE ISSUANCE OF WRITTEN ORDERS. HE ALSO SAYS THAT YOUR ORDERS DID NOT PROVIDE FOR TRAVEL OF DEPENDENTS FOR THE REASON THAT YOUR DEPENDENTS WERE NOT COMMAND SPONSORED.

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 TRANSPORTATION OF DEPENDENTS OF MILITARY PERSONNEL AT GOVERNMENT EXPENSE UPON AN ORDERED CHANGE OF PERMANENT STATION IS NOT AN ABSOLUTE ONE BUT MAY BE ADMINISTRATIVELY SUSPENDED OR DENIED FOR REASONS OF MILITARY NECESSITY OR EXPEDIENCY, IN WHICH EVENT IF AN OFFICER TRANSPORTS HIS DEPENDENTS AT PERSONAL EXPENSE HE MAY NOT BE REIMBURSED THE EXPENSE SO INCURRED. CULP V. UNITED STATES. 76 CT.CLS. 507; 35 COMP. GEN. 61.

PARAGRAPH M7000-8 OF THE JOINT TRAVEL REGULATIONS, ISSUED BY THE SECRETARIES CONCERNED, PROVIDES THAT MEMBERS OF THE UNIFORMED SERVICES ARE ENTITLED TO TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE UPON A PERMANENT CHANGE OF STATION (INCLUDING CHANGE FROM LAST DUTY STATION TO HOME ON RELEASE FROM ACTIVE DUTY), EXCEPT IN CERTAIN CASES INCLUDING THOSE WHERE THE TRAVEL OF DEPENDENTS IS PERFORMED PRIOR TO RECEIPT OF ORDERS DIRECTING A PERMANENT CHANGE OF STATION OR PRIOR TO RECEIPT OF OFFICIAL NOTICE THAT SUCH ORDERS WOULD BE ISSUED.

WHEN DEPENDENTS MOVE PRIOR TO ACTUAL RECEIPT OF ORDERS ON THE BASIS OF OFFICIAL NOTICE THAT ORDERS WILL BE ISSUED, PARAGRAPH M7003-4 OF THE REGULATIONS PROVIDES THAT A MEMBER IS AUTHORIZED A MONETARY ALLOWANCE IN LIEU OF TRANSPORTATION IN KIND FOR TRAVEL OF DEPENDENTS PERFORMED AT PERSONAL EXPENSE, PROVIDED THE VOUCHER IS SUPPORTED BY A STATEMENT OF THE COMMANDING OFFICER, OR HIS DESIGNATED REPRESENTATIVE OF THE HEADQUARTERS ISSUING SUCH ORDERS THAT THE MEMBER WAS ADVISED PRIOR TO THE ISSUANCE THEREOF, THAT SUCH ORDERS WOULD BE ISSUED. IN OUR OPINION THIS PROVISION HAS REFERENCE TO INSTANCES WHERE ALL PROVISIONS AND REQUIREMENTS OF THE ORDERS HAVE BEEN COMPLETELY AND FINALLY DETERMINED AND ALL THAT REMAINS TO BE DONE IS THE WRITING OF THE ORDERS.

THE PURPOSE OF THE STATUTE AUTHORIZING TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE IS TO RELIEVE A MEMBER OF THE BURDEN OF PERSONALLY DEFRAYING THE TRAVEL EXPENSES OF HIS DEPENDENTS WHEN SUCH TRAVEL IS MADE NECESSARY BY AN ORDERED CHANGE OF STATION. CONSEQUENTLY, THE CITED REGULATIONS AUTHORIZE DEPENDENTS' TRANSPORTATION IF THE MEMBER IS OTHERWISE ENTITLED TO THEIR TRANSPORTATION AT GOVERNMENT EXPENSE, ONLY IN THOSE CIRCUMSTANCES WHERE THEIR TRAVEL IS IN FACT INCIDENT TO THE MEMBER'S CHANGE OF STATION BY LIMITING SUCH AUTHORIZATION TO TRAVEL THAT IS PERFORMED AFTER CHANGE OF STATION ORDERS ACTUALLY ARE ISSUED OR, IN CERTAIN CIRCUMSTANCES, WITHIN A BRIEF PERIOD IMMEDIATELY PRIOR TO THEIR ISSUANCE WHERE THE MEMBER HAS BEEN ADVISED THAT THE ORDERS WOULD BE ISSUED. DEPENDENTS WHO TRAVEL PRIOR TO THE ISSUANCE OF ORDERS IN RELIANCE ON ELIGIBILITY FOR ROTATION OR RELEASE FROM ACTIVE DUTY OR ON INFORMATION THAT CHANGE OF STATION ORDERS ARE ANTICIPATED DO NOT MEET THE REQUIREMENTS OF THE LAW AND REGULATIONS AND A CERTIFICATION TO THAT EFFECT DOES NOT ESTABLISH ENTITLEMENT TO TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE. 34 COMP. GEN. 241.

IN YOUR CASE, THE TRAVEL OF YOUR DEPENDENTS IN JUNE 1966 WAS FOR PERSONAL REASONS RATHER THAN BECAUSE OF THE ORDERS OF JULY 11, 1966, RETURNING YOU TO FORT HAMILTON FOR SEPARATION. ALSO, THE STATEMENT OF JANUARY 23, 1967, BY THE PERSONNEL OFFICER OF HEADQUARTERS 98TH GENERAL HOSPITAL, DOES NOT SHOW THAT YOU WERE DEFINITELY INFORMED IN MAY 1966 THAT A DETERMINATION HAD BEEN MADE TO ISSUE PERMANENT CHANGE OF STATION ORDERS TO YOU BUT ONLY THAT IT CAN BE ASSUMED YOU WERE INFORMED OF YOUR ROTATION DATE.

PARAGRAPH 7A (6) OF ARMY REGULATION 55-46 PROVIDES THAT RETURN TRANSPORTATION OF DEPENDENTS, WHO ARE NOT RECOGNIZED AS "COMMAND SPONSORED," FROM THE MEMBER'S OVERSEAS STATION TO THE APPROPRIATE PORT OF DEBARKATION IN THE UNITED STATES IS THE FINANCIAL RESPONSIBILITY OF THE MEMBER OR HIS DEPENDENTS. SINCE YOUR DEPENDENTS WERE NOT COMMAND SPONSORED, YOU WOULD NOT HAVE BEEN ENTITLED TO REIMBURSEMENT FOR THE COST OF THEIR TRANSPORTATION FROM PRUEM, GERMANY, TO THE UNITED STATES EVEN IF THE TRAVEL HAD BEEN PERFORMED AFTER YOU RECEIVED THE ORDERS OF JULY 11, 1966.

PARAGRAPH M7009 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT A MEMBER ON ACTIVE DUTY WHO IS SEPARATED FROM THE SERVICE UNDER THE CONDITIONS IN YOUR CASE WILL BE ENTITLED TO TRANSPORTATION OF DEPENDENTS NOT TO EXCEED THE DISTANCE FROM HIS LAST DUTY STATION, OR PLACE TO WHICH HIS DEPENDENTS WERE LAST TRANSPORTED AT GOVERNMENT EXPENSE, TO THE PLACE TO WHICH THE MEMBER ELECTS TO RECEIVE TRAVEL ALLOWANCE FOR HIS TRAVEL UNDER THE PROVISIONS OF PARAGRAPH M4157. THE RECORD DOES NOT SHOW WHERE YOUR DEPENDENTS WERE LAST TRANSPORTED AT GOVERNMENT EXPENSE BUT, SINCE THEY WERE NOT AT YOUR STATION IN AN AUTHORIZED STATUS, IF THEY HAD TRAVELED FROM OVERSEAS AFTER RECEIPT OF YOUR ORDERS OF JULY 11, 1966, OR OFFICIAL NOTICE THAT SUCH ORDERS WOULD BE ISSUED, YOU APPARENTLY WOULD NOT HAVE BEEN ENTITLED TO REIMBURSEMENT FOR THEIR TRANSPORTATION IN EXCESS OF THE DISTANCE FROM THE PLACE THEY WERE LAST TRANSPORTED AT GOVERNMENT EXPENSE TO BOISE, IDAHO, YOUR HOME OF RECORD.

ACCORDINGLY, THE DISALLOWANCE OF YOUR CLAIM WAS CORRECT AND IS SUSTAINED.