B-148336, MAY 1, 1962

B-148336, MAY 1, 1962

TO MAJOR MARTIN N. OSBORN, USAF, RETIRED:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 23, 1962, REQUESTING RECONSIDERATION OF SETTLEMENT DATED JANUARY 2, 1962, WHICH DISALLOWED YOUR CLAIM FOR ALLOWANCES INCIDENT TO YOUR WIFE'S TRAVEL FROM YOUR HOME AT 420 SOUTH BEAR CREEK DRIVE, MERCED, CALIFORNIA, TO BELLEVILLE, ILLINOIS, DURING THE PERIOD JULY 10 TO 12, 1961.

BY SPECIAL ORDER NO. 41, DATED OCTOBER 13, 1958, YOU WERE RELIEVED OF YOUR ASSIGNMENT WITH THE 1350TH MOTION PICTURE SQUADRON, AIR PHOTOGRAPHIC AND CHARTING SERVICE (MATS), WRIGHT-PATTERSON AIR FORCE BASE, OHIO, AND ASSIGNED ON A PERMANENT CHANGE OF STATION TO THE 1405TH AIR BASE WING AT SCOTT AIR FORCE BASE, ILLINOIS. YOU INDICATED THAT YOUR WIFE WHO WAS THEN RESIDING IN MERCED, CALIFORNIA, DID NOT ACCOMPANY YOU TO YOUR NEW STATION INASMUCH AS SHE WAS ENGAGED IN FULFILLING THE TERMS OF A CONTRACT FOR TEACHING IN MERCED. THE RECORD SHOWS THAT ON JUNE 12, 1961, YOU WERE OFFICIALLY ADVISED OF THE CONTENTS OF A LETTER ADDRESSED TO YOU AT SCOTT AIR FORCE BASE UNDER DATE OF MAY 23, 1961, BY THE DEPARTMENT OF THE AIR FORCE, HEADQUARTERS UNITED STATES AIR FORCE, WASHINGTON 25, D.C., PROVIDING FOR YOUR RELEASE FROM ACTIVE DUTY UNDER PARAGRAPH 67, AIR FORCE REGULATION NO. 36-12, ON SEPTEMBER 30, 1961, UNLESS SEPARATED FOR OTHER REASONS BEFORE THAT DATE. PURSUANT TO THAT AUTHORITY PARAGRAPH 6, SPECIAL ORDERS A-310, DATED SEPTEMBER 19, 1961, WAS ISSUED BY HEADQUARTERS, 1405TH AIR BASE WING (MATS), UNITED STATES AIR FORCE, SCOTT AIR FORCE BASE, ILLINOIS, RELIEVING YOU FROM ACTIVE DUTY EFFECTIVE SEPTEMBER 30, 1961, AND PLACING YOU ON THE UNITED STATES AIR FORCE RESERVE RETIRED LIST. YOUR HOME OF RECORD WAS RECORDED AS 420 SOUTH BEAR (CREEK) DRIVE, MERCED, CALIFORNIA, WHICH CITY WAS ALSO SHOWN ON YOUR SEPARATION ORDERS AS THE PLACE OF ENTRY ON ACTIVE DUTY. YOU STATE THAT YOUR WIFE'S TRAVEL FROM MERCED TO BELLEVILLE WAS PERFORMED FOR THE SOLE PURPOSE OF ESTABLISHING A RESIDENCE WITH YOU AND THAT YOUR HOUSEHOLD EFFECTS WERE NOT SHIPPED FROM MERCED BECAUSE OF THE AVAILABILITY OF FURNISHED GOVERNMENT QUARTERS, HOTELS AND APARTMENTS IN THE VICINITY OF YOUR STATION. IT IS NOTED THAT IN YOUR CERTIFICATE OF SEPTEMBER 26, 1961, SUBMITTED IN CONNECTION WITH YOUR CLAIM, NOTIFICATION OF YOUR PENDING SEPARATION FROM THE AIR FORCE WAS ALSO SHOWN AS A REASON FOR NOT TRANSPORTING YOUR FURNITURE TO YOUR DUTY STATION. APPARENTLY YOU AND YOUR WIFE RETURNED TO YOUR RESIDENCE IN MERCED SHORTLY AFTER YOUR RELEASE FROM ACTIVE DUTY. IT APPEARS THAT YOU FEEL THAT SINCE THE TRAVEL WAS IN ACCORDANCE WITH LONG-ESTABLISHED PLANS FOR YOUR WIFE TO RESIDE WITH YOU UPON HER RETIREMENT FROM HER TEACHING PROFESSION, IT SHOULD NOT BE CONSIDERED AS A VISIT.

SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, 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 IN KIND FOR DEPENDENTS OR TO REIMBURSEMENT THEREFOR, OR TO A MONETARY ALLOWANCE IN LIEU OF SUCH TRANSPORTATION IN KIND. PARAGRAPH 7000-13, JOINT TRAVEL REGULATIONS, PROMULGATED PURSUANT TO THAT AUTHORITY, PROVIDES THAT MEMBERS OF THE UNIFORMED SERVICES ARE NOT ENTITLED TO OTHERWISE AUTHORIZED TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE FOR ANY TRAVEL 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 THE DEPENDENTS' RESIDENCE MAY NOT BE CONSIDERED AN OBLIGATION OF THE GOVERNMENT. THUS, RIGHT TO TRANSPORTATION OF DEPENDENTS AT THE EXPENSE OF THE GOVERNMENT IS NOT AN ALLOWANCE PAYABLE IN ALL EVENTS ON THE BASIS THAT SOME TRAVEL WAS PERFORMED. EVEN THOUGH TRAVEL IS PERFORMED AND THE DEPENDENTS STAY WITH THE MEMBER FOR A LIMITED PERIOD, NO RIGHT TO REIMBURSEMENT BY THE GOVERNMENT ARISES UNLESS THE TRAVEL MAY BE CONSIDERED AS INCIDENT TO A CHANGE OF RESIDENCE RESULTING FROM AN ORDERED PERMANENT CHANGE OF STATION FOR THE MEMBER IN THE SERVICE. SEE 33 COMP. GEN. 431. PARAGRAPH 9000 OF THE REGULATIONS STATES THAT THE PURPOSE OF THE DISLOCATION ALLOWANCE IS TO PARTIALLY REIMBURSE A MEMBER WITH DEPENDENTS FOR THE EXPENSES INCURRED IN RELOCATING HIS HOUSEHOLD UPON A PERMANENT CHANGE OF STATION, AND PARAGRAPH 9003-1 PROVIDES THAT A DISLOCATION ALLOWANCE IS NOT PAYABLE IN CONNECTION WITH PERMANENT CHANGE OF STATION TRAVEL PERFORMED UNDER CERTAIN CONDITIONS INCLUDING THOSE OUTLINED IN PARAGRAPH 7000-13, CITED ABOVE.

ON THE BASIS OF THE PRESENT RECORD, IT MAY REASONABLY BE CONCLUDED THAT WHEN YOU AND YOUR WIFE DEPARTED YOUR PERMANENT RESIDENCE IN MERCED ON JULY 10, 1961, YOU HAD NO INTENTION OF ESTABLISHING A RESIDENCE IN ILLINOIS BUT PLANNED TO REMAIN THERE ONLY FOR THE SHORT PERIOD NECESSARY TO COMPLETE YOUR ACTIVE DUTY ASSIGNMENT AND THAT YOU INTENDED TO RETURN TO YOUR HOME IN MERCED UPON YOUR RETIREMENT FROM THE SERVICE EFFECTIVE SEPTEMBER 30, 1961. UNDER SUCH CIRCUMSTANCES, YOUR WIFE'S TRAVEL FROM MERCED TO BELLEVILLE AND RETURN MUST BE REGARDED AS TRAVEL OTHER THAN FOR THE PURPOSE OF CHANGING HER RESIDENCE WITHIN THE CONTEMPLATION OF THE ABOVE- CITED LAW AND REGULATIONS. HENCE, NO REIMBURSEMENT FOR SUCH TRAVEL OR PAYMENT OF DISLOCATION ALLOWANCE IS AUTHORIZED, AND THE SETTLEMENT DISALLOWING YOUR CLAIM IS SUSTAINED.

REGARDING YOUR STATEMENT THAT QUARTERS ALLOWANCE WAS WITHHELD FOR THE PERIOD YOU AND YOUR WIFE OCCUPIED GOVERNMENT QUARTERS AT SCOTT AIR FORCE BASE, SECTION 302 (B) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 252 (B), PROVIDES AS FOLLOWS:

"/B) EXCEPT AS OTHERWISE PROVIDED BY LAW, NO BASIC ALLOWANCE FOR QUARTERS SHALL ACCRUE TO MEMBERS OF THE UNIFORMED SERVICES ASSIGNED TO GOVERNMENT QUARTERS OR HOUSING FACILITIES UNDER THE JURISDICTION OF THE UNIFORMED SERVICES, APPROPRIATE TO THEIR RANK, GRADE, OR RATING AND ADEQUATE FOR THEMSELVES AND DEPENDENTS, IF WITH DEPENDENTS.'

IT APPEARS THAT SUCH WITHHOLDING WAS REQUIRED PURSUANT TO THE PROVISIONS OF THAT STATUTE, AND THE FACT THAT THE FINANCE OFFICER AT THE BASE TOOK SUCH ACTION ON THE BASIS THAT HE DID NOT CONSIDER THE OCCUPANCY AS COMING WITHIN THE EXCEPTION CONTAINED IN SECTION 3 OF EXECUTIVE ORDER NO. 10204, JANUARY 16, 1951, PERTAINING TO "SOCIAL" VISITS, MAY NOT BE VIEWED UNDER THE CIRCUMSTANCES HERE PRESENTED AS TENDING TO ESTABLISH A CHANGE IN YOUR DEPENDENT'S RESIDENCE.