B-147524, NOV. 20, 1961

B-147524: Nov 20, 1961

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AUS (RET.): REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 24. YOU WERE RETIRED FROM ACTIVE SERVICE IN THE GRADE OF LIEUTENANT COLONEL UNDER THE PROVISIONS OF 10 U.S.C. 3911 AFTER MORE THAN 20 YEARS OF ACTIVE FEDERAL SERVICE. YOUR NAME WAS PLACED ON THE AUS RETIRED LIST JULY 1. WHICH INDICATED THAT HOME OF SELECTION AND COMPLETION OF TRAVEL WITHIN ONE YEAR TO SUCH PLACE WAS AUTHORIZED. WERE ENTITLED TO TRAVEL TO YOUR HOME OF SELECTION WITHIN THE YEAR STATED IN YOUR ORDERS OF MAY 19. YOUR CLAIM FOR REIMBURSEMENT FOR YOUR PARENTS' TRAVEL FROM BROOKLYN TO MIAMI WAS DISALLOWED BY SETTLEMENT DATED OCTOBER 17. IN YOUR REQUEST FOR REVIEW YOU STATE THAT WHILE YOUR PARENTS WERE NOT PHYSICALLY MEMBERS OF YOUR HOUSEHOLD IN GERMANY.

B-147524, NOV. 20, 1961

TO LIEUTENANT COLONEL NORMAN N. GROSS, AUS (RET.):

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 24, 1961, REQUESTING REVIEW OF THE SETTLEMENT DATED OCTOBER 17, 1961, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT FOR TRAVEL OF YOUR DEPENDENTS (MOTHER AND FATHER) FROM BROOKLYN, NEW YORK, TO MIAMI, FLORIDA, DURING THE PERIOD JANUARY 25 TO JANUARY 30, 1961, INCIDENT TO YOUR ORDERS DATED MAY 19, 1960.

BY SPECIAL ORDER NO. 100, DATED MAY 19, 1960, YOU WERE RETIRED FROM ACTIVE SERVICE IN THE GRADE OF LIEUTENANT COLONEL UNDER THE PROVISIONS OF 10 U.S.C. 3911 AFTER MORE THAN 20 YEARS OF ACTIVE FEDERAL SERVICE. THESE ORDERS RELEASED YOU FROM ASSIGNMENT AND DUTY WITH THE UNITED STATES ARMY, EUROPEAN COMMAND, EFFECTIVE JUNE 30, 1960, AND YOUR NAME WAS PLACED ON THE AUS RETIRED LIST JULY 1, 1960. THE ORDERS BORE THE NOTATION HOSTWOY, WHICH INDICATED THAT HOME OF SELECTION AND COMPLETION OF TRAVEL WITHIN ONE YEAR TO SUCH PLACE WAS AUTHORIZED. THE RECORD SHOWS THAT YOUR MOTHER AND FATHER DID NOT ACCOMPANY YOU TO YOUR OVERSEAS ASSIGNMENT IN EUROPE BUT REMAINED IN BROOKLYN, NEW YORK. UPON YOUR RETURN TO THE UNITED STATES (MCGUIRE AIR FORCE BASE, NEW JERSEY) YOUR PARENTS TRAVELED FROM BROOKLYN, NEW YORK, TO MIAMI, FLORIDA (YOUR HOME OF SELECTION UPON RETIREMENT), AT YOUR OWN EXPENSE, AND YOU SEEK REIMBURSEMENT FOR SUCH TRAVEL ON THE BASIS THAT THEY,AS YOUR DEPENDENTS, WERE ENTITLED TO TRAVEL TO YOUR HOME OF SELECTION WITHIN THE YEAR STATED IN YOUR ORDERS OF MAY 19, 1960. YOUR CLAIM FOR REIMBURSEMENT FOR YOUR PARENTS' TRAVEL FROM BROOKLYN TO MIAMI WAS DISALLOWED BY SETTLEMENT DATED OCTOBER 17, 1961, FOR THE REASON THAT YOUR PARENTS DID NOT ACTUALLY RESIDE IN YOUR HOUSEHOLD ON THE EFFECTIVE DATE OF YOUR RETIREMENT ORDERS. IN YOUR REQUEST FOR REVIEW YOU STATE THAT WHILE YOUR PARENTS WERE NOT PHYSICALLY MEMBERS OF YOUR HOUSEHOLD IN GERMANY, THEY WERE CONSIDERED AS "RESIDING WITHIN MY (YOUR) HOUSEHOLD" BY THE INTERNAL REVENUE SERVICE (APPARENTLY FOR TAX PURPOSES).

SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 253, 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, INCLUDING FROM THE LAST PERMANENT STATION TO HOME UPON RETIREMENT, SHALL BE ENTITLED TO TRANSPORTATION FOR DEPENDENTS OR TO REIMBURSEMENT IN LIEU THEREOF. REGULATIONS PROMULGATED UNDER THOSE PROVISIONS ARE CONTAINED IN THE JOINT TRAVEL REGULATIONS. PARAGRAPH 7012-LA OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT A MEMBER UPON RETIREMENT WILL BE ENTITLED TO TRANSPORTATION OF DEPENDENTS FROM HIS LAST DUTY STATION, OR TO THE PLACE TO WHICH THEY WERE LAST TRANSPORTED AT GOVERNMENT EXPENSE, TO THE HOME SELECTED BY THE MEMBER FOR THE PURPOSE OF RECEIVING TRAVEL ALLOWANCES FOR HIS TRAVEL IN ACCORDANCE WITH PARAGRAPH 4158, PROVIDED THAT SUCH TRAVEL IS COMPLETED WITHIN ONE YEAR AFTER THE MEMBER'S TERMINATION OF ACTIVE DUTY. SUCH AUTHORITY, HOWEVER, IS LIMITED BY THE GENERALLY APPLICABLE RESTRICTION CONTAINED IN PARAGRAPH 7000 OF THE SAME REGULATIONS, IN EFFECT AT THE TIME OF THE TRAVEL INVOLVED HERE, WHICH PROVIDED THAT MEMBERS OF THE UNIFORMED SERVICES ARE ENTITLED TO TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE EXCEPT---

"12. FOR ANY TRAVEL PERFORMED BY A DEPENDENT PARENT OR PARENTS WHO DO NOT ACTUALLY RESIDE IN THE HOUSEHOLD OF THE SAID MEMBER UNLESS OTHERWISE AUTHORIZED BY THE SECRETARY CONCERNED OR HIS DESIGNATED REPRESENTATIVE * *

THE SUBSTANCE OF THE ABOVE IS CURRENTLY CONTAINED IN PARAGRAPH 7000 12 OF THE REGULATIONS.

UNLESS TRAVEL OF THE DEPENDENT PARENT FROM SOME PLACE OTHER THAN THE MEMBER'S OLD DUTY STATION IS AUTHORIZED BY PROPER AUTHORITY, THE ABOVE- QUOTED PROVISIONS PRECLUDE THE TRANSPORTATION AT GOVERNMENT EXPENSE OF AN OTHERWISE ELIGIBLE DEPENDENT PARENT WHO DOES NOT ACTUALLY RESIDE IN THE HOUSEHOLD OF THE MEMBER AT OR IN THE VICINITY OF HIS OLD DUTY STATION. COMPARE 29 COMP. GEN. 280. WHILE IT MAY BE THAT YOUR MOTHER AND FATHER WERE YOUR DEPENDENTS WHILE YOU WERE OVERSEAS, THEY WERE NOT MEMBERS OF YOUR HOUSEHOLD THERE WITHIN THE CONTEMPLATION OF PARAGRAPH 7000-12 OF THE REGULATIONS AND SINCE THERE IS NO EVIDENCE THAT THEIR TRAVEL FROM BROOKLYN, NEW YORK, TO MIAMI, FLORIDA, UPON YOUR RETURN FROM OVERSEAS WAS SPECIFICALLY AUTHORIZED BY THE SECRETARY OR HIS REPRESENTATIVE AS PROVIDED FOR IN THE REGULATIONS, WE ARE NOT AUTHORIZED TO ALLOW YOUR CLAIM FOR REIMBURSEMENT OF SUCH TRAVEL. 39 COMP. GEN. 335. DETERMINATIONS OF THE INTERNAL REVENUE SERVICE FOR TAX PURPOSES ARE NOT FOR APPLICATION IN DETERMINING THE ENTITLEMENT OF MEMBERS OF THE UNIFORMED SERVICES TO TRAVEL AND TRANSPORTATION ALLOWANCES AUTHORIZED UNDER THE CAREER COMPENSATION ACT OF 1949 AND THE JOINT TRAVEL REGULATIONS.

ACCORDINGLY, ON THE BASIS OF THE PRESENT RECORD, THE SETTLEMENT OF OCTOBER 17, 1961, IS SUSTAINED.