B-141373, DEC. 31, 1959

B-141373: Dec 31, 1959

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DEPARTMENT OF THE ARMY: REFERENCE IS MADE TO YOUR 3D INDORSEMENT OF SEPTEMBER 28. IN WHICH PERTINENT FACTS ARE SET FORTH. THE REQUEST WAS FORWARDED TO THIS OFFICE BY 7TH INDORSEMENT DATED DECEMBER 1. FROM THE ARMY IN LIEU OF FURTHER ELIMINATION PROCEEDINGS WAS ACCEPTED AND HE WAS HONORABLY SEPARATED EFFECTIVE MAY 16. WAS TRANSFERRED TO SOUTH PARK MILITARY RESERVATION. HIS DEPENDENTS (WIFE AND 2 CHILDREN) WHO WERE AT NORTH LITTLE ROCK WHEN THE MEMBER WAS DISCHARGED TRAVELED TO PITTSBURGH DURING THE PERIOD DECEMBER 20 TO 22. DOUBT AS TO ENTITLEMENT ARISES FROM THE FACT THAT THE MEMBER CONTINUED IN THE SERVICE IN A GRADE IN WHICH TRANSPORTATION OF DEPENDENTS AT PUBLIC EXPENSE IS NOT AUTHORIZED.

B-141373, DEC. 31, 1959

TO CAPTAIN ELIA ANGELOFF, FC, DEPARTMENT OF THE ARMY:

REFERENCE IS MADE TO YOUR 3D INDORSEMENT OF SEPTEMBER 28, 1959, FORWARDING FOR ADVANCE DECISION A VOUCHER IN FAVOR OF SP-4, MADISON W. THOMAS, RA-33-031-797, FOR REIMBURSEMENT FOR TRAVEL OF HIS DEPENDENTS FROM NORTH LITTLE ROCK, ARKANSAS, TO PITTSBURGH, PENNSYLVANIA, TOGETHER WITH A LETTER DATED SEPTEMBER 8, 1959, FROM FIRST LIEUTENANT P. C. REYNOLDS, FC, CLASS B. AGENT, IN WHICH PERTINENT FACTS ARE SET FORTH. THE REQUEST WAS FORWARDED TO THIS OFFICE BY 7TH INDORSEMENT DATED DECEMBER 1, 1959, HAVING BEEN ASSIGNED CONTROL NO. 59-48 BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

BY PARAGRAPH 66, SPECIAL ORDERS NO. 113, DATED MAY 14, 1958, FORT CHAFFEE, ARKANSAS, THE RESIGNATION OF MAJOR MADISON W. THOMAS, USAR (LT. COL.) AUS, FROM THE ARMY IN LIEU OF FURTHER ELIMINATION PROCEEDINGS WAS ACCEPTED AND HE WAS HONORABLY SEPARATED EFFECTIVE MAY 16, 1958, AND DIRECTED TO PROCEED TO HIS HOME, PITTSBURGH, PENNSYLVANIA, OR THE PLACE FROM WHICH ORDERED TO ACTIVE DUTY. ON MAY 17, 1958, HE ENLISTED AT THE SAME STATION AS PRIVATE, E-2, AND BY PARAGRAPH 35, SPECIAL ORDERS NO. 116, ISSUED ON THE SAME DATE, AND WAS TRANSFERRED TO SOUTH PARK MILITARY RESERVATION, BROUGHTON, PENNSYLVANIA. HIS DEPENDENTS (WIFE AND 2 CHILDREN) WHO WERE AT NORTH LITTLE ROCK WHEN THE MEMBER WAS DISCHARGED TRAVELED TO PITTSBURGH DURING THE PERIOD DECEMBER 20 TO 22, 1958, AT PERSONAL EXPENSE. ACCORDING TO LIEUTENANT REYNOLD'S LETTER, DOUBT AS TO ENTITLEMENT ARISES FROM THE FACT THAT THE MEMBER CONTINUED IN THE SERVICE IN A GRADE IN WHICH TRANSPORTATION OF DEPENDENTS AT PUBLIC EXPENSE IS NOT AUTHORIZED. IN THIS CONNECTION THERE IS CITED DECISION B-134401 OF JANUARY 3, 1958, 37 COMP. GEN. 458.

SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 253 (C), PROVIDES THAT UNDER SUCH CONDITIONS AND LIMITATIONS AND FOR SUCH RANKS, GRADES, OR RATINGS AND TO AND FROM SUCH LOCATIONS AS MAY BE PRESCRIBED BY THE SECRETARIES CONCERNED, MEMBERS OF THE UNIFORMED SERVICES WHEN ORDERED TO MAKE A CHANGE OF PERMANENT STATION SHALL BE ENTITLED TO TRANSPORTATION FOR DEPENDENTS. JOINT TRAVEL REGULATIONS PROMULGATED PURSUANT THERETO PROVIDE (PARAGRAPH 3003-1) THAT THE TERM "PERMANENT CHANGE OF STATION" INCLUDES THE CHANGE FROM LAST DUTY STATION TO HOME OR TO THE PLACE FROM WHICH ORDERED TO ACTIVE DUTY UPON SEPARATION FROM THE SERVICE. THE REGULATIONS FURTHER PROVIDE (PARAGRAPH 7011) THAT UPON SEPARATION FROM THE SERVICE A MEMBER 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, PROVIDED THAT TRAVEL OF DEPENDENTS IS COMPLETED WITHIN ONE YEAR FOLLOWING SEPARATION FROM THE SERVICE. PARAGRAPH 7011-4 OF THE REGULATIONS PROVIDES THAT A MEMBER WHO IS SEPARATED FROM THE SERVICE FOR THE EXPRESS PURPOSE OF CONTINUING ON ACTIVE DUTY (OTHER THAN EXPIRATION OF ENLISTMENT OR PRESCRIBED TERM OF SERVICE) IS NOT ENTITLED TO TRANSPORTATION OF DEPENDENTS IN CONNECTION WITH SUCH SEPARATION, BUT THAT SUCH PROHIBITION SHOULD NOT BE CONSTRUED AS DENYING TRANSPORTATION WHEN THE MEMBER IS TRANSFERRED ON A PERMANENT CHANGE OF STATION IN CONJUNCTION WITH RE-ENTRY INTO OR CONTINUANCE IN THE SERVICE. PARAGRAPH 7000-1 OF THE SAME REGULATIONS PROVIDES THAT ENLISTED MEMBERS IN PAY GRADE E-2 ARE NOT ENTITLED TO TRANSPORTATION OF DEPENDENTS UPON PERMANENT CHANGE OF STATION.

IN THE PRESENT CASE, THE MEMBER'S SEPARATION WAS NOT FOR THE EXPRESS PURPOSE OF CONTINUING IN THE SERVICE NOTWITHSTANDING THAT HE DID IN FACT ENLIST THE NEXT DAY AT THE SAME STATION. THEREFORE, UPON SEPARATION FROM THE SERVICE AS AN OFFICER HE BECAME ENTITLED TO TRANSPORTATION FOR HIS DEPENDENTS INCIDENT TO SUCH SEPARATION AND SUCH RIGHT WAS NOT LOST TO HIM BY REASON OF HIS SUBSEQUENT ENLISTMENT AND ASSIGNMENT TO ANOTHER STATION. SEE 37 COMP. GEN. 458. COMPARE 35 COMP. GEN. 131, AND ID. 136. SINCE HIS DEPENDENTS TRAVELED FROM WHERE THEY WERE LOCATED AT THE TIME OF HIS SEPARATION TO HIS HOME OF RECORD, A DISTANCE NOT EXCEEDING THAT FROM HIS LAST STATION TO HIS HOME, WITHIN ONE YEAR OF HIS SEPARATION FROM THE SERVICE, SUCH TRAVEL WAS WITHIN THE SCOPE OF THE CONTROLLING REGULATIONS.

ACCORDINGLY, PAYMENT IS AUTHORIZED ON THE VOUCHER WHICH IS RETURNED HEREWITH.