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B-193430, FEBRUARY 21, 1979

B-193430 Feb 21, 1979
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DIGEST: A NAVY MEMBER WHO IS DIVORCED WHILE STATIONED IN HAWAII MAY BE FURNISHED TRANSPORTATION FOR HIS EX-WIFE AND CHILDREN PURSUANT TO PARAGRAPH M7104 OF 1 JTR. USN: THIS ACTION IS TAKEN IN RESPONSE TO A LETTER DATED SEPTEMBER 14. THE REQUEST WAS ASSIGNED CONTROL NO. 78-44 AND FORWARDED TO OUR OFFICE ON NOVEMBER 3. WAS DIVORCED ON MAY 12. HIS WIFE WAS GRANTED CARE AND CUSTODY OF THEIR 2 CHILDREN. TRANSPORTATION WAS AUTHORIZED FOR HER. ALTHOUGH THE MEMBER'S EX-WIFE AND CHILDREN WERE AUTHORIZED TO USE GOVERNMENT FURNISHED MILITARY AIRLIFT COMMAND (MAC) TRANSPORTATION TO BOSTON. THE QUESTION IS RAISED WHETHER THE AUTHORIZATION PROVIDING FOR TRANSPORTATION OF THE MEMBER'S FORMER WIFE AND CHILDREN WAS PROPER AND WHETHER THE FORMER DEPENDENTS MAY BE DIRECTLY PAID A MONETARY ALLOWANCE IN LIEU OF TRANSPORTATION FOR TRAVEL PERFORMED FROM TRAVIS AFB TO PORTSMOUTH.

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B-193430, FEBRUARY 21, 1979

DIGEST: A NAVY MEMBER WHO IS DIVORCED WHILE STATIONED IN HAWAII MAY BE FURNISHED TRANSPORTATION FOR HIS EX-WIFE AND CHILDREN PURSUANT TO PARAGRAPH M7104 OF 1 JTR. WHERE THE FORMER WIFE AND CHILDREN USE GOVERNMENT FURNISHED TRANSPORTATION BETWEEN HAWAII AND TRAVIS AFB, CALIFORNIA, AND PERFORM THE REMAINING TRAVEL BY PRIVATELY OWNED VEHICLE, A MONETARY ALLOWANCE IN LIEU OF TRANSPORTATION FOR THE OFFICIAL DISTANCE BETWEEN TRAVIS AFB AND BOSTON, MASSACHUSETTS, THEIR AUTHORIZED DESTINATION MAY BE PAID. HOWEVER, THE EX- WIFE WHO INCURRED THE EXPENSE MAY BE PAID THE ALLOWANCE DIRECTLY ONLY IF THE MEMBER AUTHORIZES SUCH PAYMENT.

CHIEF PETTY OFFICER BRUCE B. HOLLAR, USN:

THIS ACTION IS TAKEN IN RESPONSE TO A LETTER DATED SEPTEMBER 14, 1978, FROM THE DISBURSING OFFICER AT PORTSMOUTH NAVAL SHIPYARD, PORTSMOUTH, NEW HAMPSHIRE, REQUESTING AN ADVANCE DECISION CONCERNING THE PROPRIETY OF PAYMENT OF DEPENDENT'S TRAVEL ALLOWANCES TO THE FORMER WIFE AND CHILDREN OF CHIEF PETTY OFFICER BRUCE B. HOLLAR, USN, XXX-XX-XXXX, FOR THEIR TRAVEL FROM HAWAII TO PORTSMOUTH, NEW HAMPSHIRE. THE REQUEST WAS ASSIGNED CONTROL NO. 78-44 AND FORWARDED TO OUR OFFICE ON NOVEMBER 3, 1978, BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

MR. HOLLAR, WHILE STATIONED IN HAWAII, WAS DIVORCED ON MAY 12, 1978, AND HIS WIFE WAS GRANTED CARE AND CUSTODY OF THEIR 2 CHILDREN.

UPON THE REQUEST OF THE MEMBER'S EX-WIFE, CYNTHIA HOLLAR, TRANSPORTATION WAS AUTHORIZED FOR HER, THEIR CHILDREN, AND HOUSEHOLD GOODS FROM HONOLULU, HAWAII, TO BOSTON, MASSACHUSETTS, BY THE COMMANDING OFFICER OF THE U.S.S. ETHAN ALLEN PURSUANT TO THE AUTHORITY OF THE CHIEF OF NAVAL PERSONNEL (BUREAU OF NAVAL PERSONNEL MESSAGE 141300Z, AUGUST 1978) AND PARAGRAPH M7104, VOLUME 1 OF THE JOINT TRAVEL REGULATIONS (1 JTR). THE AUTHORIZATION ALSO PROVIDED FOR THE SHIPMENT OF THEIR AUTOMOBILE TO THE NEAREST PORT OF DEBARKATION SERVING BOSTON.

ALTHOUGH THE MEMBER'S EX-WIFE AND CHILDREN WERE AUTHORIZED TO USE GOVERNMENT FURNISHED MILITARY AIRLIFT COMMAND (MAC) TRANSPORTATION TO BOSTON, THEY CHOSE TO TRAVEL BY MAC TRANSPORTATION TO TRAVIS AIR FORCE BASE (AFB), CALIFORNIA, AND THEN DRIVE THEIR PRIVATE AUTOMOBILE TO THEIR DESTINATION, PORTSMOUTH, NEW HAMPSHIRE.

THE QUESTION IS RAISED WHETHER THE AUTHORIZATION PROVIDING FOR TRANSPORTATION OF THE MEMBER'S FORMER WIFE AND CHILDREN WAS PROPER AND WHETHER THE FORMER DEPENDENTS MAY BE DIRECTLY PAID A MONETARY ALLOWANCE IN LIEU OF TRANSPORTATION FOR TRAVEL PERFORMED FROM TRAVIS AFB TO PORTSMOUTH, NEW HAMPSHIRE.

UNDER THE PROVISIONS OF 37 U.S.C. 406(H) (1976), WHERE A MEMBER IS SERVING AT A STATION OUTSIDE THE UNITED STATES OR IN HAWAII OR ALASKA, THE SECRETARY OF THE RESPECTIVE SERVICE MAY AUTHORIZE THE TRANSPORTATION OF DEPENDENTS, AND THEIR HOUSEHOLD EFFECTS AND AUTOMOBILE, EVEN THOUGH THE MEMBER HAS NOT BEEN ISSUED PERMANENT CHANGE OF STATION ORDERS, WHEN THE SECRETARY CONCERNED DETERMINES IT TO BE IN THE BEST INTERESTS OF THE MEMBER OR HIS DEPENDENTS AND THE UNITED STATES. SEE 53 COMP.GEN. 960 (1974).

IMPLEMENTING THIS SECTION IS PARAGRAPH M7104 OF 1 JTR, CONCERNING THE TRANSPORTATION OF DEPENDENTS INCIDENT TO A DIVORCE. THAT PARAGRAPH PROVIDES THAT A MEMBER WHO IS PERMANENTLY STATIONED OUTSIDE THE UNITED STATES OR IN HAWAII OR ALASKA AND WHOSE MARRIAGE IS TERMINATED BY DIVORCE WHILE SO SERVING MAY BE FURNISHED TRANSPORTATION FOR THE EX FAMILY MEMBERS, AS WELL AS SHIPMENT OF THEIR HOUSEHOLD GOODS AND AUTOMOBILE, WHERE IT IS CONSIDERED TO BE IN THE BEST INTEREST OF THE UNITED STATES, THE MEMBER, AND THE EX-FAMILY MEMBERS CONCERNED. THEREFORE, IN ACCORDANCE WITH PARAGRAPH M7104 OF 1 JTR, THE CHIEF OF NAVAL PERSONNEL, AS THE SECRETARY OF THE NAVY'S DESIGNATED REPRESENTATIVE, WAS EMPOWERED TO AUTHORIZE THE TRAVEL OF MR. HOLLAR'S EX-WIFE AND CHILDREN.

THE DISBURSING OFFICER QUESTIONS THE VALIDITY OF THE PROCEDURES USED IN THE APPLICATION FOR DEPENDENT TRAVEL, NOTING THAT THE REQUEST FOR TRANSPORTATION WAS INITIATED BY THE FORMER SPOUSE. IN ADDITION, ALL SUPPORTING DOCUMENTS WERE ISSUED IN THE NAME OF BRUCE HOLLAR WITH A STATEMENT THAT THE MEMBER WAS NOT AVAILABLE FOR SIGNATURE OF THE APPLICATION.

WE FIND THAT THESE PROCEDURES ARE IN ACCORD WITH THE PROCEDURAL REQUIREMENTS OF PARAGRAPH M7104 OF 1 JTR. THIS REGULATION EXPLICITLY PROVIDES THAT THE REQUEST FOR TRANSPORTATION MAY BE INITIATED BY THE FORMER SPOUSE WHEN THE MEMBER IS NOT AVAILABLE OR HAS DECLINED TO INITIATE SUCH A REQUEST. IN THE INSTANT CASE, THE UNAVAILABILITY OF THE MEMBER JUSTIFIED THE INITIATION OF THE REQUEST BY THE MEMBER'S FORMER SPOUSE AND EXCUSED THE ABSENCE OF THE MEMBER'S SIGNATURE ON THE APPLICATION.

IT IS ALSO QUESTIONED WHETHER THE FORMER DEPENDENTS MAY BE PAID A MONETARY ALLOWANCE IN LIEU OF TRANSPORTATION FOR THEIR TRAVEL FROM TRAVIS AFB TO PORTSMOUTH, NEW HAMPSHIRE. THE BUREAU OF NAVAL PERSONNEL HAS INDICATED THAT ORDINARILY GOVERNMENT TRANSPORTATION WOULD BE USED FOR THE ENTIRE DISTANCE OF THE AUTHORIZED TRAVEL AND THE AUTOMOBILE WOULD BE SHIPPED TO THE PORT OF DEBARKATION CLOSEST TO THE DESTINATION. IN THIS CASE, HOWEVER, THE DEPENDENTS USED GOVERNMENT TRANSPORTATION ONLY TO CALIFORNIA WHERE THE AUTOMOBILE WAS SHIPPED AND THEN DROVE ACROSS THE COUNTRY TO THEIR DESTINATION.

SECTION 406(H) OF TITLE 37, U.S.C. WHICH IS THE AUTHORIZING STATUTE FOR PARAGRAPH M7104 OF 1 JTR, EXPLICITLY PROVIDES THAT THE SECRETARY CONCERNED MAY PRESCRIBE TRANSPORTATION IN KIND, REIMBURSEMENT OR A MONETARY ALLOWANCE IN LIEU OF TRANSPORTATION FOR FAMILY MEMBERS OF A MEMBER OF THE ARMED SERVICES WHOSE ADVANCE RETURN TO THE UNITED STATES IS AUTHORIZED.

PARAGRAPH M7002-1B(1), 1 JTR, PROVIDES THAT AIR TRAVEL IS THE NORMAL MODE OF TRANSOCEANIC TRANSPORTATION OF DEPENDENTS FROM AREAS OUTSIDE THE UNITED STATES (INCLUDING HAWAII), AND DIRECTS MAXIMUM USE OF GOVERNMENT AIR TRANSPORTATION. ALSO, HOWEVER, PARAGRAPH M7002-2A PROVIDES THAT THE MONETARY ALLOWANCE PRESCRIBED IN PARAGRAPH M7003 MAY BE PAID IN LIEU OF TRANSPORTATION OF DEPENDENTS FOR OVERLAND TRAVEL. THEREFORE, SINCE GOVERNMENT TRANSPORTATION WAS USED FOR THE TRANSOCEANIC PORTION OF THE TRAVEL, PARAGRAPH M7002-1B(1) HAS BEEN COMPLIED WITH, AND THE PAYMENT OF A MONETARY ALLOWANCE IN LIEU OF OVERLAND TRANSPORTATION FOR THE EX-FAMILY MEMBERS FOR TRAVEL FROM TRAVIS AFB IS AUTHORIZED. COMPARE 53 COMP.GEN. 105 (1973).

HOWEVER, THE MONETARY ALLOWANCE MAY BE PAID ONLY FOR THE DISTANCE FROM TRAVIS AFB TO BOSTON, MASSACHUSETTS, SINCE BOSTON WAS THE AUTHORIZED DESTINATION, NOT THE FURTHER DISTANT DESTINATION, PORTSMOUTH, NEW HAMPSHIRE. SEE PARAGRAPH M7104-5, 1 JTR.

THE FINAL QUESTION RAISED IS WHETHER THE MONETARY ALLOWANCE MUST BE PAID TO THE MEMBER ON BEHALF OF HIS EX-WIFE AND CHILDREN OR WHETHER THE EX-WIFE WHO HAS CLAIMED THE ALLOWANCE MAY BE PAID DIRECTLY.

PARAGRAPH M7104 OF 1 JTR WAS PROMULGATED IN COGNIZANCE OF AN OBLIGATION ON THE PART OF THE GOVERNMENT TO RETURN THE FAMILY MEMBERS WHO ARE TRANSPORTED TO LOCATIONS OUTSIDE THE CONTINENTAL UNITED STATES FOR THE CONVENIENCE OF THE GOVERNMENT, EVEN AFTER A SEPARATION OR DIVORCE AND EVEN IF THE FAMILY HAS CEASED TO BE DEPENDENTS OF THE SERVICE MEMBER. COMP.GEN. 960. TRANSPORTATION OF A MEMBER'S DEPENDENTS AND PERSONAL PROPERTY ARE ENTITLEMENTS OF THE MEMBER WHO IS THE ONE TO RECEIVE THE PAYMENTS FOR SUCH TRANSPORTATION. HOWEVER, IN THIS CASE THE FORMER SPOUSE WAS THE ONE WHO INCURRED THE EXPENSES FOR THE TRAVEL AND THERE IS NO INDICATION THAT THE MEMBER PAID THE COST OF THIS TRAVEL.

IN THE CIRCUMSTANCES IT WOULD APPEAR REASONABLE TO PAY THE ALLOWANCE TO THE PERSON WHO INCURRED THE EXPENSE AND FOR WHOSE BENEFIT IT WAS INTENDED. HOWEVER, SINCE A DEPENDENT HAS NO ENTITLEMENT TO MILITARY PAY OR ALLOWANCES INDEPENDENT OF THE MEMBER AND SINCE THE MEMBER MAY TAKE THE POSITION THAT HE PROVIDED HIS DEPENDENTS FUNDS TO COVER THE COST INVOLVED, PAYMENT SHOULD NOT BE MADE DIRECTLY TO THE DEPENDENT IN THE ABSENCE OF A STATEMENT FROM THE MEMBER AUTHORIZING SUCH ACTION.

ACCORDINGLY, THE CLAIM OF MRS. CYNTHIA HOLLAR FOR A MONETARY ALLOWANCE MAY BE ALLOWED BASED ON THE AUTHORIZED DISTANCE FROM TRAVIS AFB TO BOSTON, MASSACHUSETTS, IF THE MEMBER AUTHORIZES SUCH DIRECT PAYMENT. THE VOUCHER RECEIVED WITH THE REQUEST FOR DECISION IS BEING RETURNED FOR HANDLING IN ACCORDANCE WITH THE ABOVE.

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