B-147471, DEC. 29, 1961

B-147471: Dec 29, 1961

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ESSIG: REFERENCE IS MADE TO LETTER OF OCTOBER 10. WAS KILLED IN AN AUTOMOBILE ACCIDENT AT TWIN LAKES TOWNSHIP. AT THAT TIME YOU WERE AT YOUR MOTHER'S RESIDENCE IN ROTTERDAM. YOUR HUSBAND HAD OBTAINED AN INTERLOCUTORY DIVORCE DECREE WHICH WOULD HAVE BEEN FINAL FEBRUARY 24. WHICH WAS SAID TO HAVE BEEN YOUR RESIDENCE PRIOR TO YOUR HUSBAND'STRANSFER. YOUR CLAIM WAS DISALLOWED FOR THE REASON THAT THE TRIP TO THE UNITED STATES WAS FOR THE PURPOSE OF ATTENDING YOUR HUSBAND'S FUNERAL AND TO TAKE CARE OF RELATED MATTERS. THAT THE TRIP BACK TO ROTTERDAM FOR WHICH YOU WERE CLAIMING REIMBURSEMENT WAS NOT FOR THE PURPOSE OF MOVING TO A PLACE TO ESTABLISH A BONA FIDE RESIDENCE BUT ONLY TO RETURN TO THE RESIDENCE YOU LEFT IN CONNECTION WITH ATTENDANCE AT THE FUNERAL.

B-147471, DEC. 29, 1961

TO MRS. ELIZABETH M. ESSIG:

REFERENCE IS MADE TO LETTER OF OCTOBER 10, 1961, FROM COLONEL CHARLES C. MILES, USAF, REQUESTING ON YOUR BEHALF A RECONSIDERATION OF THE SETTLEMENT OF AUGUST 18, 1961, WHICH DISALLOWED YOUR CLAIM, AS DEPENDENT OF THE LATE LOUIS R. ESSIG, FOR REIMBURSEMENT OF THE COST INVOLVED IN YOUR TRAVEL, AND THAT OF YOUR SON, PERFORMED FROM MARINA, CALIFORNIA, TO ROTTERDAM, NETHERLANDS.

THE RECORD SHOWS THAT ON FEBRUARY 28, 1960, YOUR HUSBAND, SERGEANT LOUIS R. ESSIG, WAS KILLED IN AN AUTOMOBILE ACCIDENT AT TWIN LAKES TOWNSHIP, MINNESOTA, EN ROUTE FROM HIS LAST PERMANENT DUTY STATION, FORT ORD, CALIFORNIA, TO FORT DIX, NEW JERSEY, FOR TRANSSHIPMENT TO EUROPE UNDER ORDERS DATED JANUARY 25, 1960. AT THAT TIME YOU WERE AT YOUR MOTHER'S RESIDENCE IN ROTTERDAM, NETHERLANDS. THE RECORD SHOWS FURTHER THAT ON FEBRUARY 24, 1960, YOUR HUSBAND HAD OBTAINED AN INTERLOCUTORY DIVORCE DECREE WHICH WOULD HAVE BEEN FINAL FEBRUARY 24, 1961. IT APPEARS THAT UPON BEING ADVISED OF YOUR HUSBAND'S DEATH ON MARCH 2, 1960, YOU RETURNED TO THE UNITED STATES WITH YOUR MINOR CHILD TO ATTEND HIS FUNERAL. SUBSEQUENT THERETO, YOU WENT TO MARINA, CALIFORNIA, WHICH WAS SAID TO HAVE BEEN YOUR RESIDENCE PRIOR TO YOUR HUSBAND'STRANSFER, AND ON APRIL 10, 1960, YOU RETURNED TO ROTTERDAM ARRIVING APRIL 21, 1960, SUCH TRAVEL APPARENTLY HAVING BEEN PERFORMED AT PERSONAL EXPENSE ON THE STRENGTH OF ADVICE THAT YOU COULD BE REIMBURSED BY THE GOVERNMENT. YOUR CLAIM WAS DISALLOWED FOR THE REASON THAT THE TRIP TO THE UNITED STATES WAS FOR THE PURPOSE OF ATTENDING YOUR HUSBAND'S FUNERAL AND TO TAKE CARE OF RELATED MATTERS, AND, THEREFORE, THAT THE TRIP BACK TO ROTTERDAM FOR WHICH YOU WERE CLAIMING REIMBURSEMENT WAS NOT FOR THE PURPOSE OF MOVING TO A PLACE TO ESTABLISH A BONA FIDE RESIDENCE BUT ONLY TO RETURN TO THE RESIDENCE YOU LEFT IN CONNECTION WITH ATTENDANCE AT THE FUNERAL, A CIRCUMSTANCE FOR WHICH THE REGULATIONS DO NOT AUTHORIZE THE FURNISHING OF TRANSPORTATION AT PUBLIC EXPENSE.

IN COLONEL MILES' LETTER, IT IS STATED THAT YOU HAD NOT ESTABLISHED YOUR PERMANENT RESIDENCE IN ROTTERDAM AT THE TIME OF YOUR HUSBAND'S DEATH BUT WERE TEMPORARILY VISITING YOUR MOTHER AND HAD INTENDED TO RETURN TO CALIFORNIA WHERE YOU HAD YOUR PERMANENT ADDRESS. IT IS CONTENDED THAT IT WAS ONLY AFTER THE FUNERAL THAT YOU DESIGNATED ROTTERDAM AS THE PLACE WHERE YOU WISHED TO ESTABLISH A BONA FIDE RESIDENCE.

SECTION 12 OF THE MISSING PERSONS ACT, AS AMENDED, 50 U.S.C. APP. 1012, PROVIDES IN PERTINENT PART AS FOLLOWS:

"THE DEPENDENTS AND HOUSEHOLD AND PERSONAL EFFECTS OF ANY PERSON IN ACTIVE SERVICE (WITHOUT REGARD TO PAY GRADE) WHO IS OFFICIALLY REPORTED AS DEAD, INJURED, MISSING FOR A PERIOD OF THIRTY DAYS OR MORE, INTERNED IN A FOREIGN COUNTRY, OR CAPTURED BY A HOSTILE FORCE, MAY BE MOVED (INCLUDING PACKING, CRATING, DRAYAGE, TEMPORARY STORAGE, AND UNPACKING OF HOUSEHOLD AND PERSONAL EFFECTS) TO THE OFFICIAL RESIDENCE OF RECORD FOR ANY SUCH PERSON OR TO THE RESIDENCE OF HIS DEPENDENT, NEXT OF KIN, OR OTHER PERSON ENTITLED TO RECEIVE CUSTODY OF THE EFFECTS IN ACCORDANCE WITH REGULATIONS ISSUED BY THE HEAD OF THE DEPARTMENT CONCERNED; OR, UPON APPLICATION BY SUCH DEPENDENT, NEXT OF KIN, OR OTHER PERSON, OR UPON THE PERSON'S APPLICATION IF INJURED, TO SUCH OTHER LOCATION AS MAY BE DETERMINED IN ADVANCE OR SUBSEQUENTLY APPROVED BY THE HEAD OF THE DEPARTMENT CONCERNED OR BY SUCH PERSON AS HE MAY DESIGNATE. * * * IN LIEU OF TRANSPORTATION AUTHORIZED BY THIS SECTION FOR DEPENDENTS, THE HEAD OF THE DEPARTMENT CONCERNED MAY AUTHORIZE THE PAYMENT IN MONEY OF AMOUNTS EQUAL TO SUCH COMMERCIAL TRANSPORTATION COSTS OR A MONETARY ALLOWANCE IN LIEU OF TRANSPORTATION AS AUTHORIZED BY LAW FOR THE WHOLE OR SUCH PART OF TRAVEL FOR WHICH TRANSPORTATION IN KIND IS NOT FURNISHED, WHEN SUCH TRAVEL SHALL HAVE BEEN COMPLETED. * * * NO TRANSPORTATION SHALL BE AUTHORIZED PURSUANT TO THIS SECTION UPON APPLICATION BY DEPENDENTS UNLESS A REASONABLE RELATIONSHIP EXISTS BETWEEN THE CONDITION AND CIRCUMSTANCES OF THE DEPENDENTS AND THE DESTINATION TO WHICH TRANSPORTATION IS REQUESTED. * *

SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 253 (C), ALSO PROVIDES FOR THE TRANSPORTATION OF DEPENDENTS UPON THE DEATH OF A MEMBER OF THE UNIFORMED SERVICES WHILE ENTITLED TO RECEIVE BASIC PAY, UNDER REGULATIONS PRESCRIBED BY THE SECRETARY CONCERNED. PURSUANT TO THESE STATUTES, PARAGRAPH 7010, JOINT TRAVEL REGULATIONS, PROVIDES GENERALLY THAT DEPENDENTS MAY BE MOVED AT GOVERNMENT EXPENSE TO ANY PLACE THEY MAY DESIGNATE. PARAGRAPHS 9-30 AND 9-87, ARMY REGULATIONS 37-106, IMPLEMENTING THESE REGULATIONS, PROVIDE THAT DEPENDENTS OF MEMBERS WHO DIE WHILE ON ACTIVE DUTY ARE ENTITLED TO TRANSPORTATION TO THE OFFICIAL RESIDENCE OF THE MEMBER OR TO THE RESIDENCE OF THE DEPENDENT, OR NEXT OF KIN, OR SUCH OTHER LOCATION AS MAY BE APPROVED BY THE OVERSEAS OR ZONE OF INTERIOR COMMANDER UPON APPLICATION OF THE DEPENDENT.

TRANSPORTATION IS AUTHORIZED UNDER THE CITED PROVISIONS ONLY FOR THE PURPOSE OF MOVING DEPENDENTS FROM THE PLACE THEY ARE LOCATED ON DATE OF DEATH (OR DATE OF RECEIPT OF NOTICE OF DEATH) OF THE MEMBER TO A SELECTED PLACE OF RESIDENCE. THE RECORD SHOWS THAT AT THE TIME YOU RECEIVED OFFICIAL NOTICE OF YOUR HUSBAND'S DEATH YOU WERE AT ROTTERDAM, NETHERLANDS, AND SUBSEQUENT TO THE TRAVEL TO THE UNITED STATES TO ATTEND YOUR HUSBAND'S FUNERAL AND TO MAKE OTHER ARRANGEMENTS, YOU RETURNED TO ROTTERDAM AS THE RESIDENCE THEN DESIGNATED. SINCE YOUR ENTITLEMENT TO TRANSPORTATION AT GOVERNMENT EXPENSE IS LIMITED TO THE DISTANCE FROM THE PLACE LOCATED ON RECEIPT OF NOTICE OF DEATH TO THE SELECTED RESIDENCE, WHICH IN THIS CASE WAS IN THE SAME CITY, IT IS CONCLUDED THAT NO REIMBURSEMENT IS AUTHORIZED FOR THE TRAVEL IN QUESTION.