B-149547, OCT. 2, 1962

B-149547: Oct 2, 1962

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WHILE YOUR WERE SERVING ON ACTIVE DUTY AS A RESERVE OFFICER IN THE ARMY. - YOUR UNIT WAS ORDERED TO ACTIVE DUTY TO REPORT TO FORT SAM HOUSTON. IN TRANSMITTING YOUR CLAIM HERE THE DEPARTMENT OF THE ARMY REPORTED THAT YOUR UNIT WAS IN RECEIPT OF WARNING ORDERS ON APRIL 28. 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. WHILE KNOWLEDGE OF AN IMPENDING RELEASE FROM ACTIVE DUTY IS A FACTOR FOR CONSIDERATION IN DETERMINING WHETHER OR NOT THE DEPENDENT TRAVEL IS IN CONNECTION WITH A VISIT AND TO RETURN HOME WITH THE MEMBER WHEN RELEASED FROM ACTIVE DUTY.

B-149547, OCT. 2, 1962

TO MAJOR MARION J. SCHNEIDER, MSC, USAR:

HONORABLE J. FLOYD BREEDING, HOUSE OF REPRESENTATIVES, HAS FORWARDED HERE FOR CONSIDERATION YOUR LETTER OF SEPTEMBER 11, 1962, CONCERNING THE ACTION TAKEN BY OUR CLAIMS DIVISION IN SETTLEMENT OF AUGUST 20, 1962, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT FOR TRAVEL OF YOUR DEPENDENTS FROM ALBERT, KANSAS, TO SAN ANTONIO, TEXAS, ON MAY 31, AND JUNE 1, 1962, WHILE YOUR WERE SERVING ON ACTIVE DUTY AS A RESERVE OFFICER IN THE ARMY. THERE HAS ALSO BEEN RECEIVED A LETTER DATED SEPTEMBER 14, 1962, FROM THE HONORABLE BOB DOLE, HOUSE OF REPRESENTATIVES, REQUESTING THAT WE REVIEW YOUR CLAIM.

BY GENERAL ORDERS NO. 71, HEADQUARTERS, 5TH U.S. ARMY, CHICAGO, ILLINOIS, AND MOVEMENT ORDER NO. 14 DATED OCTOBER 11, 1961--- ISSUED PURSUANT TO JOINT RESOLUTION OF AUGUST 1, 1961, PUBLIC LAW 87-117, 75 STAT. 242--- YOUR UNIT WAS ORDERED TO ACTIVE DUTY TO REPORT TO FORT SAM HOUSTON, TEXAS, ON OCTOBER 25, 1961. THE ORDERS PROVIDED FOR PERMANENT CHANGE OF STATION AND AUTHORIZED TRAVEL OF DEPENDENTS. IN TRANSMITTING YOUR CLAIM HERE THE DEPARTMENT OF THE ARMY REPORTED THAT YOUR UNIT WAS IN RECEIPT OF WARNING ORDERS ON APRIL 28, 1962, NAMELY, DEPARTMENT OF ARMY MESSAGE 299418 DATED APRIL 27, 1962, GIVING RESERVISTS CALLED TO ACTIVE DUTY A TENTATIVE RELEASE DATE IN AUGUST 1962. YOUR DEPENDENTS DEPARTED ALBER, KANSAS, ON MAY 31, 1962, AND ARRIVED AT SAN ANTONIO, TEXAS, JUNE 1, 1962.

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 ON OBLIGATION OF THE GOVERNMENT.

WHILE KNOWLEDGE OF AN IMPENDING RELEASE FROM ACTIVE DUTY IS A FACTOR FOR CONSIDERATION IN DETERMINING WHETHER OR NOT THE DEPENDENT TRAVEL IS IN CONNECTION WITH A VISIT AND TO RETURN HOME WITH THE MEMBER WHEN RELEASED FROM ACTIVE DUTY, SUCH FACTOR IS NOT CONTROLLING, SINCE AN INDIVIDUAL'S SCHEDULED EARLY RELEASE FROM ACTIVE DUTY COULD BE CHANGED DEPENDING ON THE MILITARY SITUATION AT THAT TIME. WHERE THE DEPENDENT TRAVELS TO THE MEMBER'S LAST DUTY STATION IMMEDIATELY PRIOR TO HIS RELEASE FROM ACTIVE DUTY, WITH KNOWLEDGE OF HIS IMPENDING RELEASE, IT WOULD SEEM CLEAR THAT IN MOST CASES THE TRAVEL WAS NOT FOR THE PURPOSE OF RELOCATING THE MEMBER'S HOUSEHOLD TO ESTABLISH A RESIDENCE WITHIN THE CONTEMPLATION OF THE LAW AND REGULATIONS. WHERE, HOWEVER, IT REASONABLY MAY BE CONCLUDED FROM THE FACTS SHOWN THAT THE TRAVEL WAS PERFORMED FOR THE PURPOSE OF ESTABLISHING A BONA FIDE RESIDENCE AT OR WITHIN THE VICINITY OF THE MEMBER'S LAST PERMANENT DUTY STATION, THE MEMBER WOULD BE ENTITLED TO A DEPENDENT TRAVEL ALLOWANCE.

WITH YOUR ORIGINAL CLAIM YOU SUBMITTED A CERTIFICATE STATING, AMONG OTHER THINGS, THAT YOU DECIDED TO WAIT UNTIL THE END OF THE SCHOOL YEAR TO BRING YOUR WIFE AND CHILDREN TO TEXAS BECAUSE OF THE DIFFERENCE IN SCHOOL SYSTEMS AND REQUIREMENTS BETWEEN TEXAS AND KANSAS AND THAT YOU WERE ADVISED THAT YOUR OLDEST SON WOULD NOT HAVE BEEN GRADUATED FROM HIGH SCHOOL BECAUSE HE LACKED SOME CREDITS REQUIRED BY THE TEXAS SCHOOL SYSTEM. YOU ALSO CERTIFIED, HOWEVER, THAT "WITH THE FARMING AND OTHER BUSINESS INTERESTS I HAD, MY WIFE AND SON HAD TO REMAIN AT HOME TO TAKE CARE OF THESE INTERESTS AS THERE WAS NO ONE ELSE TO DO SO.' SINCE THIS QUOTED STATEMENT INDICATED THAT YOUR DEPENDENTS COULD NOT HAVE ACCOMPANIED YOU TO YOUR DUTY STATION WITH THE INTENTION OF REMAINING FOR MORE THAN A SHORT PERIOD OF TIME, DOUBT WAS CREATED THAT THEIR TRAVEL TO YOUR STATION WAS FOR THE PURPOSE OF ESTABLISHING A BONA FIDE RESIDENCE. ON THIS BASIS YOUR CLAIM WAS DISALLOWED BY OUR CLAIM DIVISION.

IN YOUR LETTER OF SEPTEMBER 11, 1962, YOU EMPHASIZE THAT WHEN YOUR UNIT WAS ORDERED TO FORT SAM HOUSTON IN OCTOBER 1961, NO ONE KNEW HOW LONG YOU WOULD REMAIN THERE AND THAT YOU WERE ADVISED BY HIGHER AUTHORITY NOT TO MOVE YOUR DEPENDENTS AT THAT TIME UNTIL THE SITUATION WAS CLARIFIED. YOU SAY THAT IN JANUARY 1962 IT LOOKED AS THOUGH YOUR UNIT WOULD REMAIN AT FORT SAM HOUSTON AND AT THAT TIME YOU STARTED MAKING ARRANGEMENT TO MOVE YOUR DEPENDENTS TO TEXAS BUT UPON DISCOVERING THAT THE DIFFERENCE IN SCHOOL REQUIREMENTS BETWEEN TEXAS AND KANSASWOULD PREVENT YOUR SON FROM GRADUATING FROM HIGH SCHOOL YOU DECIDED TO DELAY THEIR MOVEMENT UNTIL THE END OF THE SCHOOL YEAR. YOU SAY YOU HAD NO INTENTION OF MOVING YOUR DEPENDENTS TO TEXAS FOR A VACATION AT GOVERNMENT EXPENSE AND THAT YOU WOULD HAVE MOVED THEM IN OCTOBER 1961 BUT FOR THE CIRCUMSTANCES AT THAT TIME.

IN VIEW OF THE EXPLANATION OF THE DELAY CONTAINED IN YOUR LETTER OF SEPTEMBER 11, 1962, IT APPEARS THE TRAVEL PERFORMED BY YOUR DEPENDENTS TO FORT SAM HOUSTON REASONABLY MAY BE CONSIDERED AS HAVING BEEN PERFORMED FOR THE PURPOSE OF ESTABLISHING A BONA FIDE RESIDENCE WITHIN THE MEANING OF THE LAW AND REGULATIONS.

ACCORDINGLY, A STATEMENT WILL ISSUE IN YOUR FAVOR FOR TRAVEL OF YOUR DEPENDENTS FROM ALBER, KANSAS, TO SAN ANTONIO, TEXAS.