B-212377 OM, DEC 16, 1983
Highlights
PRECIS-UNAVAILABLE THE COMPTROLLER GENERAL: WE ARE FORWARDING OUR FILE ON THE MATTER INVOLVING MR. BROWN IS REQUESTING DEPENDENT TRAVEL EXPENSES INCIDENT TO AN UPGRADED DISCHARGE. BROWN BECAME ENTITLED TO BENEFITS WHICH HE WOULD HAVE RECEIVED HAD HIS INITIAL DISCHARGE BEEN UNDER HONORABLE CONDITIONS. THE FIRST FORM SUBMITTED SHOWED DEPENDENT TRAVEL WAS PERFORMED PRIOR TO ISSUANCE OF TRAVEL ORDERS. WHICH PROVIDES THAT DEPENDENT TRAVEL WILL NOT BE PAID WHEN TRAVEL IS PERFORMED PRIOR TO ISSUANCE OF TRAVEL ORDERS. THERE ARE RELATED POINTS WHICH MAY HAVE AN INFLUENCE ON HIS CASE. IF A MEMBER PRESENTS A STATEMENT FROM THE ISSUING AUTHORITY OR HIS DESIGNATED REPRESENTATIVE THAT THE MEMBER WAS ADVISED PRIOR TO THE ISSUANCE OF CHANGE OF STATION ORDERS THAT ORDERS WOULD BE ISSUED AND THE PERIOD OF TIME BETWEEN ISSUANCE OF ORDERS AND THE DETERMINATION MADE TO ORDER THE MEMBER TO MAKE THE CHANGE OF STATION IS SHORT.
B-212377 OM, DEC 16, 1983
PRECIS-UNAVAILABLE
THE COMPTROLLER GENERAL:
WE ARE FORWARDING OUR FILE ON THE MATTER INVOLVING MR. JOSEPH C. BROWN. MR. BROWN IS REQUESTING DEPENDENT TRAVEL EXPENSES INCIDENT TO AN UPGRADED DISCHARGE.
ON FEBRUARY 11, 1962, MR. BROWN RECEIVED DISCHARGE ORDERS UNDER OTHER THAN HONORABLE CONDITIONS. ON DECEMBER 9, 1981, THE SECRETARY OF THE ARMY UPGRADED THE DISCHARGE TO HONORABLE CONDITIONS (GENERAL). DUE TO THE UPGRADED DISCHARGE, MR. BROWN BECAME ENTITLED TO BENEFITS WHICH HE WOULD HAVE RECEIVED HAD HIS INITIAL DISCHARGE BEEN UNDER HONORABLE CONDITIONS.
THE DEPARTMENT OF THE ARMY PAID MR. BROWN ALL BENEFITS EXCEPT DEPENDENT TRAVEL. DOCUMENTATION PROVIDED SHOWS THAT MR. BROWN SUBMITTED TWO DD 1351 -4 FORMS WITH DIFFERENT DATES OF DEPENDENT TRAVEL. THE FIRST FORM SUBMITTED SHOWED DEPENDENT TRAVEL WAS PERFORMED PRIOR TO ISSUANCE OF TRAVEL ORDERS. THEREFORE, THE ARMY DENIED DEPENDENT TRAVEL ON THE BASIS OF PARAGRAPH M7000, VOLUME I, JOINT TRAVEL REGULATIONS (JTR), WHICH PROVIDES THAT DEPENDENT TRAVEL WILL NOT BE PAID WHEN TRAVEL IS PERFORMED PRIOR TO ISSUANCE OF TRAVEL ORDERS. PARAGRAPH M-7003-4 PROVIDES AN EXCEPTION TO THAT PROVISION.
ALTHOUGH MR. BROWN CANNOT BE REIMBURSED DEPENDENT TRAVEL IN ACCORDANCE WITH THE EXCEPTION, THERE ARE RELATED POINTS WHICH MAY HAVE AN INFLUENCE ON HIS CASE. UNDER PARAGRAPH M-7003-4, IF A MEMBER PRESENTS A STATEMENT FROM THE ISSUING AUTHORITY OR HIS DESIGNATED REPRESENTATIVE THAT THE MEMBER WAS ADVISED PRIOR TO THE ISSUANCE OF CHANGE OF STATION ORDERS THAT ORDERS WOULD BE ISSUED AND THE PERIOD OF TIME BETWEEN ISSUANCE OF ORDERS AND THE DETERMINATION MADE TO ORDER THE MEMBER TO MAKE THE CHANGE OF STATION IS SHORT, A MEMBER MAY BE REIMBURSED A MONETARY ALLOWANCE IN LIEU OF TRANSPORTATION IN KIND FOR TRAVEL OF DEPENDENTS. NO STATEMENT IS PRESENTED TO SUPPORT THE FACT THAT MR. BROWN WAS ADVISED OF HIS DISCHARGE, HOWEVER, IT APPEARS THAT BECAUSE OF THE NATURE OF DISCHARGE THE MEMBER WOULD HAVE HAD ADVANCE NOTICE OF HIS PENDING SEPARATION. FURTHER, ACCORDING TO THE FILES, MR. BROWN'S DEPENDENTS TRAVELED ONLY 2 - 3 WEEKS PRIOR TO THE DATE OF DISCHARGE ORDERS.
SINCE WE KNOW OF NO DECISION WHICH INVOLVES IDENTICAL OR SIMILAR FACTS AND CIRCUMSTANCES, WE ARE FORWARDING THE MATTER FOR YOUR CONSIDERATION AND INSTRUCTIONS. WE HAVE RECEIVED AN INFORMAL INQUIRY ON THIS MATTER FROM CONGRESSMAN GINGRICH'S OFFICE.
INDORSEMENT
ASSOCIATE DIRECTOR, AFMD - CLAIMS GROUP (ROOM 5858)
RETURNED. IN A PRIOR CASE, WHERE A CLAIMANT HAD MADE CONFLICTING STATEMENTS CONCERNING THE DATES OF DEPENDENT TRAVEL, PAYMENT OF A CLAIM FOR MILEAGE ALLOWANCE IN LIEU OF TRANSPORTATION WAS DISALLOWED, IN THE ABSENCE OF A SATISFACTORY EXPLANATION OF THE DISCREPANCIES. SEE, B-175588, MAY 12, 1972. HOWEVER, HERE, EVEN IF WE ASSUME, AS THE ARMY APPARENTLY HAS DONE, THAT MR. BROWN'S DEPENDENTS COMMENCED TRAVEL FROM HIS LAST DUTY ASSIGNMENT IN JAPAN ON JANUARY 24, 1962, ONLY ABOUT TWO AND ONE- HALF WEEKS PRIOR TO THE DATE ON WHICH THE SPECIAL ORDERS WERE ISSUED (FEBRUARY 11, 1962) DISCHARGING HIM, IN THE LIGHT OF THE LAW PREVAILING IN 1962 AND THE CIRCUMSTANCES UNDER WHICH HE WAS DISCHARGED, HIS CLAIM FOR DEPENDENT TRAVEL MAY BE ALLOWED.
PRIOR TO PUBLIC LAW 88-431, APPROVED AUGUST 14, 1964, WHICH ADDED 37 U.S.C. SEC. 406(H), THERE WAS NO LEGAL AUTHORITY FOR THE PROMULGATION OF REGULATIONS AUTHORIZING THE TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE OF A MEMBER DISCHARGED UNDER OTHER THAN HONORABLE CONDITIONS. SEE, 44 COMP.GEN. 724 (1965), CITING 37 COMP.GEN. 21 (1957). THE REGULATION RELATING TO MR. BROWN'S SITUATION IN 1962, 1 JTR PARA. 7011-5 (CHANGE 82, JULY 1, 1959; COMPARE CURRENT PARA. M7009 5) DENIED ANY ENTITLEMENT OF DEPENDENT TRAVEL INCIDENT TO A DISCHARGE UNDER OTHER THAN HONORABLE CONDITIONS. THUS, THE FACT THAT MR. BROWN'S DEPENDENTS MAY HAVE TRAVELED A SHORT TIME PRIOR TO THE DATE OF HIS SEPARATION ORDERS IN THIS CASE SHOULD NOT PRECLUDE HIS NOW RECEIVING THE TRANSPORTATION ALLOWANCE. THAT IS BECAUSE AT THE TIME OF HIS DISCHARGE, IN VIEW OF THE NATURE OF THE DISCHARGE, THERE WAS NO ENTITLEMENT TO DEPENDENT TRAVEL, AND THUS NO REASON FOR THE DEPENDENTS TO HAVE AWAITED THE ORDERS. WHILE THE GENERAL RULE IS THAT THERE IS NO ENTITLEMENT TO DEPENDENT TRAVEL ALLOWANCES WHEN THEY TRAVEL AT PERSONAL EXPENSE PRIOR TO RECEIPT OF ORDERS OR OFFICIAL NOTICE THAT ORDERS WOULD BE ISSUED (1 JTR PARA. M7000-9), THAT DOES NOT PRECLUDE PAYMENT IN THIS CASE. FROM THE INFORMATION PRESENTED IT APPEARS REASONABLY CLEAR THAT THEY TRAVELED AFTER BEING MADE AWARE THAT HE WAS TO BE DISCHARGED AND THUS INCIDENT TO HIS DISCHARGE. ACCORDINGLY, SINCE DUE TO THE UPGRADED DISCHARGE, MR. BROWN HAS NOW BECOME ENTITLED TO BENEFITS WHICH HE WOULD HAVE RECEIVED HAD HIS INITIAL DISCHARGE BEEN UNDER HONORABLE CONDITIONS (MATTER OF CHISAM, B-203752, MARCH 2, 1982), HIS CLAIM FOR DEPENDENT TRAVEL ALLOWANCES UNDER 37 U.S.C. SEC. 406 SHOULD BE ALLOWED.
BECAUSE CONGRESSMAN GINGRICH'S OFFICE CONTACTED US ABOUT THIS CLAIM, WE ARE ADVISING THEM THAT THE CLAIM WILL BE ALLOWED.