B-147424, DEC. 1, 1961

B-147424, DEC. 1, 1961

TO CAPTAIN HERBERT KAPLAN, MC:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 4, 1961, IN WHICH YOU REQUESTED RECONSIDERATION OF YOUR CLAIM FOR REIMBURSEMENT FOR DEPENDENTS' TRAVEL FROM HAMDEN, CONNECTICUT, TO LOS ALTOS, CALIFORNIA. THE CLAIM WAS DISALLOWED BY SETTLEMENT DATED AUGUST 24, 1961.

BY LETTER ORDER 1138, HEADQUARTERS, THIRD UNITED STATES ARMY, DATED MAY 25, 1959, YOU WERE ORDERED TO ACTIVE DUTY EFFECTIVE JULY 1, 1959, FOR A PERIOD OF TWO YEARS AS A MEMBER OF THE MEDICAL CORPS, U.S. ARMY RESERVE, IN AN OBLIGATED VOLUNTARY STATUS. PURSUANT TO SUCH ORDERS YOU PROCEEDED FROM YOUR TEMPORARY ADDRESS AT NEW HAVEN, CONNECTICUT, TO STUDENT DETACHMENT, ARMY MEDICAL SERVICE SCHOOL, BROOKE ARMY MEDICAL CENTER, FORT SAM HOUSTON, TEXAS, FOR TEMPORARY DUTY UNDER INSTRUCTION. ON OR ABOUT JULY 16, 1959, WHILE YOU WERE AT FORT SAM HOUSTON, YOU RECEIVED ORDERS DATED JULY 14, 1959, DIRECTING YOU TO REPORT AT FORT DIX, NEW JERSEY, FOR FURTHER TRANSPORTATION TO AN OVERSEAS DUTY ASSIGNMENT. BY ORDERS OF AUGUST 3, 1959, ISSUED AT U.S. ARMY PERSONNEL CENTER, FORT DIX, NEW JERSEY, YOU WERE FURTHER DIRECTED TO REPORT ON OR ABOUT AUGUST 5, 1959, TO MCGUIRE AIR FORCE BASE, NEW JERSEY, FOR AIR TRANSPORTATION TO A DESTINATION IN GERMANY.

ON AUGUST 14, 1959, WHILE YOU WERE AT YOUR DUTY STATION IN MUNICH, GERMANY, YOU SUBMITTED A VOUCHER FOR TRAVEL OF YOUR DEPENDENTS PERFORMED DURING THE PERIOD JULY 1 TO 10, 1959, FROM HAMDEN, CONNECTICUT, TO LOS ALTOS, CALIFORNIA, YOUR PERMANENT ADDRESS. PAYMENT WAS MADE AUGUST 20, 1959, ON A MILEAGE BASIS LIMITED TO THE DISTANCE FROM HAMDEN, CONNECTICUT, TO NEW YORK, NEW YORK, PORT OF EMBARKATION TO YOUR OVERSEAS STATION. OCTOBER 9, 1959, YOU SUBMITTED A CLAIM FOR REIMBURSEMENT FOR TRAVEL OF YOUR DEPENDENTS FROM HAMDEN TO LOS ALTOS PERFORMED DURING THE PERIOD JULY 27 TO 28, 1959, AND FROM LOS ALTOSTO MUNICH, GERMANY, DURING THE PERIOD AUGUST 10 TO 18, 1959. YOUR CLAIM WAS ADMINISTRATIVELY DENIED FOR THE REASONS THAT WHEN YOUR DEPENDENTS TRAVELED TO LOS ALTOS, CALIFORNIA, YOU WERE AT A TEMPORARY DUTY STATION PENDING FURTHER PERMANENT STATION ASSIGNMENT AND WHEN THEY ARRIVED AT YOUR OVERSEAS STATION AUGUST 18, 1959, YOU WERE IN AN OBLIGATED VOLUNTARY STATUS AND INELIGIBLE FOR TRANSPORTATION OF DEPENDENTS TO AN OVERSEAS STATION AT GOVERNMENT EXPENSE. ON AUGUST 31, 1959, YOUR STATUS CATEGORY WAS CHANGED FROM OBLIGATED VOLUNTARY TO VOLUNTARY INDEFINITE, BUT AT THAT TIME YOUR DEPENDENTS WERE ALREADY AT YOUR STATION.

BY 7TH INDORSEMENT DATED APRIL 27, 1960, YOU SPECIFICALLY LIMITED YOUR CLAIM TO DEPENDENTS' TRAVEL FROM HAMDEN TO YOUR PERMANENT HOME IN LOS ALTOS ON THE BASIS THAT LOS ALTOS WAS THE PLACE DESIGNATED AS THAT TO WHICH THEY SHOULD PROCEED BECAUSE OF THE RESTRICTION AGAINST THEIR TRAVEL TO YOUR OVERSEAS STATION. YOU STATED IN THAT CONNECTION THAT YOUR DEPENDENTS TRAVELED THERE AFTER YOU RECEIVED YOUR PERMANENT CHANGE OF STATION ORDERS FOR DUTY OVERSEAS, AND THAT YOU HAD NOT APPLIED FOR CONCURRENT OVERSEAS TRAVEL FOR THEM SINCE YOU WERE ADVISED NOT TO APPLY BECAUSE OFFICERS IN AN OBLIGATED VOLUNTARY STATUS WERE NOT AUTHORIZED CONCURRENT TRAVEL OVERSEAS FOR THEIR DEPENDENTS. YOUR CLAIM WAS DISALLOWED BY THE SETTLEMENT DATED AUGUST 24, 1961, FOR THE REASONS THAT (1) YOUR DEPENDENTS WERE AT LOS ALTOS AT THE TIME YOU RECEIVED YOUR ORDERS OF JULY 14, 1959, AND, THEREFORE, NO TRAVEL TO A DESIGNATED PLACE WAS NECESSARY, AND (2) YOUR DEPENDENTS HAD ARRIVED AT YOUR STATION IN GERMANY PRIOR TO AUGUST 31, 1959, WHEN YOU BECAME ELIGIBLE TO APPLY FOR THEIR TRAVEL TO YOUR OVERSEAS STATION. IN EXPLANATION OF YOUR ORIGINAL STATEMENT THAT YOUR DEPENDENTS TRAVELED TO LOS ALTOS DURING THE PERIOD JULY 1 TO 10, 1959, YOU STATED THAT AT THE TIME YOU PRESENTED THE VOUCHER FOR PAYMENT YOU GUESSED THE DATES OF TRAVEL, BUT THAT IN YOUR SUBSEQUENT REFERENCES YOU HAVE ALWAYS INDICATED THAT YOUR DEPENDENTS LEFT HAMDEN AFTER YOU RECEIVED YOUR PERMANENT CHANGE OF STATION ORDERS.

PARAGRAPH 7005, JOINT TRAVEL REGULATIONS, PROVIDES THAT WHEN A MEMBER IS TRANSFERRED OR ASSIGNED BY PERMANENT CHANGE OF STATION ORDERS TO A RESTRICTED AREA, HE WILL BE ENTITLED TO TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE FROM THE PLACE DEPENDENTS ARE LOCATED TO ANY PLACE IN THE UNITED STATES THE MEMBER MAY DESIGNATE, NOT TO EXCEED FROM THE MEMBER'S DUTY STATION OR FROM THE LAST PLACE DEPENDENTS WERE TRANSPORTED AT GOVERNMENT EXPENSE. PARAGRAPH 7001 PROVIDES THAT WHERE TRANSPORTATION OF DEPENDENTS IS AUTHORIZED AT GOVERNMENT EXPENSE TO A PLACE DESIGNATED BY A MEMBER ENTITLEMENT TO TRANSPORTATION OF DEPENDENTS WILL BE CONTINGENT UPON THE CERTIFICATION OF THE MEMBER CONCERNED THAT THE PLACE DESIGNATED IS IN FACT THE PLACE WHERE HIS DEPENDENTS WILL ESTABLISH A BONA FIDE RESIDENCE DURING THE INTERIM PERIOD UNTIL FURTHER TRANSPORTATION IS AUTHORIZED. PARAGRAPH 7000.13 PROVIDES THAT MEMBERS ARE NOT ENTITLED TO TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE FOR ANY TRAVEL PERFORMED TO A PLACE AT WHICH THEY DO NOT INTEND TO ESTABLISH A RESIDENCE, AND THAT TRAVEL EXPENSES OF DEPENDENTS FOR PURPOSES OTHER THAN WITH INTENT TO CHANGE THEIR RESIDENCE AS AUTHORIZED BY THE JOINT TRAVEL REGULATIONS MAY NOT BE CONSIDERED AN OBLIGATION OF THE GOVERNMENT.

THUS, THE INTENT TO ESTABLISH A BONA FIDE RESIDENCE IS ESSENTIAL TO ENTITLEMENT IN CASES OF DEPENDENT TRAVEL TO A DESIGNATED PLACE AND IN THE ABSENCE OF A CLEAR SHOWING OF SUCH INTENT PAYMENT ON YOUR CLAIM FOR THE TRAVEL FROM HAMDEN TO LOS ALTOS ON THAT BASIS IS NOT AUTHORIZED, IRRESPECTIVE OF WHETHER SUCH TRAVEL WAS PERFORMED DURING THE PERIOD JULY 1 TO 10, 1959, OR THE PERIOD JULY 27 TO 28, 1959. SINCE YOUR DEPENDENTS TRAVELED TO YOUR OVERSEAS STATION SHORTLY AFTER THEIR ARRIVAL AT LOS ALTOS AND PRIOR TO THE TIME WHEN THEIR FURTHER TRANSPORTATION AT GOVERNMENT EXPENSE WAS AUTHORIZED AND THE REQUIRED CERTIFICATION THAT LOS ALTOS WAS THE PLACE WHERE THEY WOULD ESTABLISH A BONA FIDE RESIDENCE WAS NOT SUBMITTED INCIDENT TO THEIR TRAVEL TO THAT PLACE, WE WOULD NOT BE JUSTIFIED IN NOW CONCLUDING THAT THEIR TRAVEL TO LOS ALTOS WAS IN FACT FOR THE PURPOSE OF ESTABLISHING A BONA FIDE RESIDENCE WITHIN THE CONTEMPLATION OF THE GOVERNING REGULATIONS.