B-147970, APR. 5, 1962

B-147970: Apr 5, 1962

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USN: REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 20. THE RECORD SHOWS THAT CHECK AGE WAS ENTERED IN YOUR PAY RECORD IN AN AMOUNT REPRESENTING PAYMENT FOR YOUR WIFE'S TRAVEL PERFORMED FROM ZAIBOKUZA. THE CHECK AGE WAS BASED ON A NOTICE OF EXCEPTION TO THE PAYMENT STATING THAT NO ENTITLEMENT EXISTED SINCE YOU AND YOUR WIFE WERE MARRIED IN TOKYO. FROM YOUR FIRST WIFE AND THE NAVY DEPARTMENT HAD DISAPPROVED YOUR APPLICATION FOR QUARTERS ALLOWANCE FOR THE REASON THAT THE VALIDITY OF A FOREIGN DIVORCE DECREE WAS CONSIDERED TOO DOUBTFUL IN THE CIRCUMSTANCES INVOLVED FOR THE DISBURSEMENT OF GOVERNMENT FUNDS. WAS SUBMITTED HERE FOR CONSIDERATION. IT WAS DISALLOWED FOR THE REASON THAT SINCE YOU WERE DIVORCED FROM THE CHILDREN'S MOTHER AND DID NOT HAVE THEIR LEGAL CUSTODY EITHER AT THE TIME OF ISSUANCE OF YOUR CHANGE OF STATION ORDERS OR AT THE TIME THEIR TRAVEL WAS PERFORMED.

B-147970, APR. 5, 1962

TO WILBERT G. MEISEL, JR., 365-80-06, YN2, USN:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 20, 1961, FORWARDED THROUGH YOUR COMMANDING OFFICER, CONCERNING YOUR ENTITLEMENT TO DISLOCATION ALLOWANCE AND REIMBURSEMENT FOR THE TRAVEL OF YOUR DEPENDENT WIFE OR, IN THE ALTERNATIVE, DISLOCATION ALLOWANCE AND REIMBURSEMENT FOR THE TRAVEL OF YOUR DEPENDENT CHILDREN, INCIDENT TO YOUR PERMANENT CHANGE OF STATION FROM YOKOSUKA, JAPAN, TO CHINA LAKE, CALIFORNIA, PURSUANT TO ORDERS OF MAY 26, 1959.

THE RECORD SHOWS THAT CHECK AGE WAS ENTERED IN YOUR PAY RECORD IN AN AMOUNT REPRESENTING PAYMENT FOR YOUR WIFE'S TRAVEL PERFORMED FROM ZAIBOKUZA, KAMAKURA, JAPAN, TO CHINA LAKE, CALIFORNIA, DURING THE PERIOD MAY 31 TO JULY 16, 1959, AND FOR DISLOCATION ALLOWANCE, INCIDENT TO THE PERMANENT CHANGE OF STATION ORDERS OF MAY 26, 1959. THE CHECK AGE WAS BASED ON A NOTICE OF EXCEPTION TO THE PAYMENT STATING THAT NO ENTITLEMENT EXISTED SINCE YOU AND YOUR WIFE WERE MARRIED IN TOKYO, JAPAN, SUBSEQUENT TO A DIVORCE GRANTED YOU IN YOKOHAMA, JAPAN, AUGUST 30, 1958, FROM YOUR FIRST WIFE AND THE NAVY DEPARTMENT HAD DISAPPROVED YOUR APPLICATION FOR QUARTERS ALLOWANCE FOR THE REASON THAT THE VALIDITY OF A FOREIGN DIVORCE DECREE WAS CONSIDERED TOO DOUBTFUL IN THE CIRCUMSTANCES INVOLVED FOR THE DISBURSEMENT OF GOVERNMENT FUNDS. ON SEPTEMBER 28, 1961, YOUR CLAIM FOR REIMBURSEMENT FOR TRAVEL BY THE CHILDREN OF YOUR FIRST MARRIAGE, PERFORMED DURING THE PERIOD JUNE 10 TO 15, 1961, MORE THAN TWO YEARS AFTER THE ORDERS OF MAY 26, 1959, FROM NORTH ATTLEBORO, MASSACHUSETTS, TO CHINA LAKE, WAS SUBMITTED HERE FOR CONSIDERATION, AND BY SETTLEMENT DATED NOVEMBER 1, 1961, IT WAS DISALLOWED FOR THE REASON THAT SINCE YOU WERE DIVORCED FROM THE CHILDREN'S MOTHER AND DID NOT HAVE THEIR LEGAL CUSTODY EITHER AT THE TIME OF ISSUANCE OF YOUR CHANGE OF STATION ORDERS OR AT THE TIME THEIR TRAVEL WAS PERFORMED, SUCH TRAVEL WAS NOT CONSIDERED AS HAVING BEEN PERFORMED INCIDENT TO YOUR CHANGE OF STATION.

IN YOUR LETTER YOU REQUEST CLARIFICATION OF YOUR ENTITLEMENT, STATING THAT IF YOU ARE CONSIDERED AS DIVORCED FROM YOUR FIRST WIFE YOUR SECOND WIFE THEN WOULD BE YOUR LEGAL WIFE AND YOU WOULD BE ENTITLED TO TRAVEL REIMBURSEMENT AND DISLOCATION ALLOWANCE ON HER ACCOUNT. BUT, IF THE JAPANESE DIVORCE IS NOT RECOGNIZED, YOU SUGGEST THAT THERE WOULD BE NO QUESTION AS TO LEGAL CUSTODY OF YOUR CHILDREN AND THAT YOU WOULD BE ENTITLED TO REIMBURSEMENT FOR THEIR TRAVEL. YOU STATE FURTHER THAT YOU ARE IN THE PROCESS OF HAVING THE JAPANESE DIVORCE DECREE VALIDATED IN A UNITED STATES COURT AND FOR THAT REASON REQUEST A DETERMINATION IN THE MATTER BY THIS OFFICE.

SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 814, 37 U.S.C. 253 (C), AUTHORIZES THE TRANSPORTATION OF DEPENDENTS INCIDENT TO A MEMBER'S PERMANENT CHANGE OF STATION IN ACCORDANCE WITH CONDITIONS AND LIMITATIONS PRESCRIBED BY THE SECRETARIES CONCERNED. SECTION 2 (12) OF THE CAREER INCENTIVE ACT OF 1955, 69 STAT. 21, AMENDED SECTION 303 (C) TO AUTHORIZE PAYMENT OF A DISLOCATION ALLOWANCE IN AN AMOUNT EQUAL TO ONE MONTH'S BASIC ALLOWANCE FOR QUARTERS TO A MEMBER WHOSE DEPENDENTS ARE AUTHORIZED TO MOVE AND ACTUALLY DO MOVE IN CONNECTION WITH A PERMANENT CHANGE OF STATION. THUS, THE TRAVEL ALLOWANCES AND DISLOCATION ALLOWANCES PROVIDED ONLY FOR DEPENDENTS OF THE MEMBERS INVOLVED. SECTION 102 (G) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 231 (G), PROVIDES THAT THE TERM "DEPENDENT" AS USED IN THAT ACT SHALL INCLUDE AT ALL TIMES AND IN ALL PLACES THE LAWFUL WIFE AND UNMARRIED LEGITIMATE CHILDREN UNDER 21 YEARS OF AGE AND, OF COURSE, YOUR SEPARATION FROM YOUR FIRST WIFE DOES NOT AFFECT THE STATUS OF YOUR CHILDREN AS LEGITIMATE CHILDREN. SUCH PROVISIONS, HOWEVER, HAVE REFERENCE TO THE NORMAL FAMILY SITUATION WHERE THE MEMBER'S CHILDREN ARE A PART OF HIS HOUSEHOLD OR OTHERWISE ARE BEING SUPPORTED BY HIM. THE PROVISIONS HAVE NOT BEEN VIEWED AS AUTOMATICALLY AUTHORIZING REIMBURSEMENT OF EXPENSES FOR A MEMBER'S CHILDREN ON THE BASIS OF RELATIONSHIP ALONE IN SITUATIONS SUCH AS THAT WHICH PRESUMABLY EXISTED IN YOUR CASE ON THE EFFECTIVE DATE OF YOUR ORDERS OF MAY 26, 1959, WHERE AS AN INCIDENT OF DIVORCE ACTION OR OTHER DISRUPTION OF THE NORMAL FAMILY SITUATION THE MEMBER DOES NOT HAVE THE CUSTODY OF THE CHILDREN AND APPARENTLY HAS NOT BEEN RESPONSIBLE FOR THEIR SUPPORT AND CARE. IN THIS LATTER SITUATION A SHOWING OF ACTUAL DEPENDENCY HAS BEEN REQUIRED.

SINCE THE NAVY HAS QUESTIONED THE VALIDITY OF YOUR FOREIGN DIVORCE AND THAT MATTER IS NOW BEING LITIGATED, WE MAY NOT CONCLUDE PRIOR TO THE COMPLETION OF THE JUDICIAL PROCEEDINGS THAT YOUR SECOND MARRIAGE IS VALID SO AS TO CONSTITUTE YOUR SECOND WIFE A "DEPENDENT" FOR THE PURPOSES OF TRAVEL AND TRANSPORTATION ALLOWANCES.

REGARDING THE DEPENDENCY OF YOUR CHILDREN, SECTION 10 OF THE ACT OF MARCH 7, 1942, AS AMENDED, 50 U.S.C. APP. 1010, PROVIDES THAT THE FACT OF DEPENDENCY IN CONNECTION WITH THE PAYMENT OF PAY, ALLOWANCES OR OTHER EMOLUMENTS TO ENLISTED MEMBERS, WHERE SUCH PAYMENTS ARE CONTINGENT UPON DEPENDENCY, SHALL BE DETERMINED BY THE HEAD OF THE DEPARTMENT CONCERNED OR HIS DESIGNATED SUBORDINATE AND SUCH DETERMINATION SHALL BE FINAL AND CONCLUSIVE. IT DOES NOT APPEAR THAT THERE HAS BEEN ANY "IN FACT" DETERMINATION OF DEPENDENCY BY THE DEPARTMENT OF THE NAVY IN THE CASE OF YOUR CHILDREN. AS INDICATED ABOVE, SUCH A DETERMINATION IS A CONDITION PRECEDENT TO THE PAYMENT OF DEPENDENT TRAVEL ALLOWANCES IN CASES SUCH AS YOURS AND, UNDER THE STATUTORY PROVISIONS INVOLVED, IS FINAL AND CONCLUSIVE. HENCE, IN THE ABSENCE OF AN ADMINISTRATIVE DETERMINATION BY THE NAVY DEPARTMENT THAT THE REQUIRED DEPENDENCY STATUS OF YOUR CHILDREN EXISTED ON THE EFFECTIVE DATE OF YOUR ORDERS (PARAGRAPH 7000-10, JOINT TRAVEL REGULATIONS), NO PAYMENT MAY BE MADE FOR THEIR TRANSPORTATION ON THE BASIS OF THE CHANGE OF STATION EFFECTED BY THOSE ORDERS.

ACCORDINGLY, ON THE PRESENT RECORD, THE ACTION TAKEN BY THE CLAIMS DIVISION IN DISALLOWING YOUR CLAIM IS SUSTAINED.