B-150604, APRIL 10, 1963, 42 COMP. GEN. 571

B-150604: Apr 10, 1963

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TRANSPORTATION - DEPENDENTS - MILITARY PERSONNEL - CHILDREN - UNDER FIVE - AT TIME OF MEMBER'S RETIREMENT A MEMBER OF THE UNIFORMED SERVICES STATIONED OVERSEAS WHO UPON RETIREMENT DELAYED RETURN TO HOME OF SELECTION FOR A YEAR DURING WHICH TIME HIS DAUGHTER BECAME 5 YEARS OF AGE IS NOT ENTITLED TO A MONETARY ALLOWANCE IN LIEU OF TRANSPORTATION FOR THE LAND PORTION OF THE DAUGHTER'S TRAVEL UNDER PARAGRAPH 7003 OF THE JOINT TRAVEL REGULATIONS AUTHORIZING TRANSPORTATION OF DEPENDENTS 5 YEARS OF AGE OR OVER. WHILE THE PERFORMANCE OF TRAVEL IS PERMITTED WITHIN 1 YEAR AFTER THE MEMBER'S TERMINATION OF ACTIVE DUTY. 1963: REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 25. YOU WERE RELIEVED FROM YOUR ASSIGNMENT AND DUTY WITH THE UNITED STATES ARMY.

B-150604, APRIL 10, 1963, 42 COMP. GEN. 571

TRANSPORTATION - DEPENDENTS - MILITARY PERSONNEL - CHILDREN - UNDER FIVE - AT TIME OF MEMBER'S RETIREMENT A MEMBER OF THE UNIFORMED SERVICES STATIONED OVERSEAS WHO UPON RETIREMENT DELAYED RETURN TO HOME OF SELECTION FOR A YEAR DURING WHICH TIME HIS DAUGHTER BECAME 5 YEARS OF AGE IS NOT ENTITLED TO A MONETARY ALLOWANCE IN LIEU OF TRANSPORTATION FOR THE LAND PORTION OF THE DAUGHTER'S TRAVEL UNDER PARAGRAPH 7003 OF THE JOINT TRAVEL REGULATIONS AUTHORIZING TRANSPORTATION OF DEPENDENTS 5 YEARS OF AGE OR OVER, PARAGRAPHS 4158-1 AND 7012-1 PROVIDING FOR ENTITLEMENT TO TRANSPORTATION OF THE MEMBER AND HIS DEPENDENTS AS OF WHEN HE RETIRES, AND WHILE THE PERFORMANCE OF TRAVEL IS PERMITTED WITHIN 1 YEAR AFTER THE MEMBER'S TERMINATION OF ACTIVE DUTY, HIS TRAVEL RIGHTS ACCRUE AS AN INCIDENT OF AND AT THE TIME OF RETIREMENT, AND THE DELAY IN TRAVEL DOES NOT ESTABLISH AN ADDITIONAL PERIOD OF TIME DURING WHICH THE HOME OF SELECTION TRAVEL RIGHTS MAY BE INCREASED OR DECREASED BY EVENTS OCCURRING SUBSEQUENT TO RETIREMENT.

TO MAJOR ALBERT B. C. DAVIS, JR., APRIL 10, 1963:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 25, 1962, WITH ENCLOSURES, REQUESTING RECONSIDERATION OF THAT PART OF THE SETTLEMENT OF NOVEMBER 8, 1962, WHICH DISALLOWED YOUR CLAIM FOR A MONETARY ALLOWANCE FOR THE LAND PORTION OF YOUR DAUGHTER'S TRAVEL DURING THE PERIOD JULY 22 TO 31, 1962, FROM VERONA, ITALY, TO 321 NORTH TRENHOLM ROAD, COLUMBIA, SOUTH CAROLINA, YOUR HOME OF SELECTION UPON RETIREMENT FROM ACTIVE MILITARY SERVICE.

BY SPECIAL ORDERS NO. 152, HEADQUARTERS, DEPARTMENT OF THE ARMY, WASHINGTON 25, D.C., DATED JUNE 20, 1961, YOU WERE RELIEVED FROM YOUR ASSIGNMENT AND DUTY WITH THE UNITED STATES ARMY, EUROPE, ON JULY 31, 1961, AND, PURSUANT TO YOUR APPLICATION, RETIRED FROM ACTIVE SERVICE EFFECTIVE AUGUST 1, 1961. RETURN TRANSPORTATION TO THE CONTINENTAL UNITED STATES WAS NOT REQUESTED AT THAT TIME. IN CONNECTION WITH YOUR SUBSEQUENT TRAVEL TO YOUR HOME OF SELECTION, ORDERS WERE ISSUED ON JULY 19, 1962, BY HEADQUARTERS, UNITED STATES ARMY, SOUTHERN EUROPEAN TASK FORCE, AUTHORIZING AIR TRAVEL AT GOVERNMENT EXPENSE FROM FRANKFURT, GERMANY, TO MCGUIRE AIR FORCE BASE, NEW JERSEY, FOR YOURSELF AND DEPENDENTS CONSISTING OF YOUR WIFE, SON, AND A DAUGHTER WHO WAS BORN JULY 15, 1957. REIMBURSEMENT FOR YOUR DAUGHTER'S TRAVEL WAS NOT INCLUDED IN THE SETTLEMENT OF NOVEMBER 8, 1962, FOR THE REASON THAT NO ALLOWANCE IS AUTHORIZED FOR TRANSPORTATION OF CHILDREN UNDER THE AGE OF 5 YEARS. YOU STATE IN YOUR REQUEST FOR A REVIEW OF THE DISALLOWED PORTION OF YOUR CLAIM THAT WHEN YOU LEFT VERONA FOR FRANKFURT ON JULY 22, 1962, YOUR DAUGHTER WAS 5 YEARS OLD.

INSOFAR AS HERE MATERIAL, SECTION 404 (A) OF TITLE 37, UNITED STATES CODE, PROVIDES THAT, UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, A MEMBER IS ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES FOR TRAVEL UNDER ORDERS TO HIS HOME UPON RETIREMENT WITH PAY. IN SUCH CASES THE MEMBER IS PERMITTED UNDER SUBSECTION (C) OF THAT SECTION TO SELECT HIS HOME FOR THE PURPOSES OF THE TRAVEL AND TRANSPORTATION ALLOWANCES AUTHORIZED IN SUBSECTION (A). WHILE THE MEMBER IS PERMITTED TO DELAY THE TRAVEL TO HIS HOME OF SELECTION FOR A PERIOD OF 1 YEAR AFTER HIS RETIREMENT, HE MAY MAKE THE SELECTION AND PERFORM THE TRAVEL IMMEDIATELY UPON HIS RETIREMENT AND THE FACT THAT HE COULD HAVE DELAYED THE TRAVEL FOR A YEAR HAS NO EFFECT UPON HIS RIGHT TO REIMBURSEMENT FOR THE TRAVEL PERFORMED. IN THIS REGARD IT MAY BE NOTED THAT NEITHER THE LAW NOR THE RETIREMENT ORDERS REQUIRE THE MEMBER TO SELECT A HOME OR TO PERFORM ANY TRAVEL.

THE STATUTORY AUTHORITY FOR THE TRANSPORTATION OF A MEMBER'S DEPENDENTS IS CONTAINED IN SECTION 406 OF TITLE 37, U.S.C. ALTHOUGH PROVISION IS MADE THEREIN UNDER SUBSECTION (A) FOR THE TRANSPORTATION OF DEPENDENTS OF A MEMBER WHO IS ORDERED TO MAKE A CHANGE OF PERMANENT STATION, SEPARATE PROVISION IS MADE IN SUBSECTION (G) FOR PROMULGATION BY THE SECRETARIES OF UNIFORM REGULATIONS CONCERNING THE TRAVEL OF DEPENDENTS OF A MEMBER WHO IS RETIRED TO THE HOME SELECTED BY HIM UNDER SECTION 404 (C). HENCE, A DISTINCTION IS RECOGNIZED IN THE BASIC STATUTORY AUTHORITY BETWEEN SUCH CASES AND SITUATIONS INVOLVING THE TRANSPORTATION OF DEPENDENTS OF ACTIVE LIST MEMBERS WHO ARE ORDERED TO EFFECT A PERMANENT CHANGE OF STATION. ACCORDANCE WITH THE ABOVE STATUTORY AUTHORITY (37 U.S.C. 404 AND 406) FOR ISSUANCE OF REGULATIONS PROVIDING FOR THE TRANSPORTATION OF A MEMBER AND HIS DEPENDENTS TO HIS SELECTED HOME UPON HIS RETIREMENT OR RELEASE FROM ACTIVE DUTY, THE SECRETARIES PROMULGATED PARAGRAPHS 4158-1 AND 7012-1, RESPECTIVELY, OF THE JOINT TRAVEL REGULATIONS SETTING FORTH THE CONDITIONS UNDER WHICH A MEMBER ON ACTIVE DUTY MAY RECEIVE THE ALLOWANCES AUTHORIZED FOR SUCH TRAVEL. FOR PURPOSES OF RECEIVING THE ALLOWANCES AUTHORIZED IN PARAGRAPH 7003 OF THE REGULATIONS FOR TRANSPORTATION OF DEPENDENTS 5 YEARS OF AGE OR OVER, PARAGRAPH 4158-1 AND 7012-1 EACH PROVIDE FOR ENTITLEMENT AS OF WHEN THE MEMBER IS RETIRED UNDER THE CIRCUMSTANCES SPECIFIED THEREIN. WHILE AS INDICATED ABOVE FURTHER PROVISIONS IN THE REGULATION PERMIT THE PERFORMANCE OF SUCH TRAVEL WITHIN ONE YEAR AFTER THE MEMBER'S TERMINATION OF ACTIVE DUTY, THE TRAVEL RIGHTS ACCRUE AS AN INCIDENT OF AND AT THE TIME OF RETIREMENT AND SUCH PROVISIONS ARE NOT VIEWED AS ESTABLISHING AN ADDITIONAL PERIOD OF TIME DURING WHICH THE HOME OF SELECTION TRAVEL RIGHTS PROVIDED TO A MEMBER BY STATUTE INCIDENT TO HIS RETIREMENT MAY BE INCREASED OR DECREASED BY EVENTS OCCURRING SUBSEQUENT TO HIS RETIREMENT.

THE DATE OF YOUR RELEASE FROM ACTIVE DUTY AS SPECIFIED IN THE ORDERS OF JUNE 20, 1961, WAS JULY 30, 1961, ON WHICH DATE YOU BECAME ENTITLED TO RECEIVE THE TRANSPORTATION ALLOWANCES TO YOUR SELECTED HOME FOR TRAVEL OF YOUR DEPENDENTS AS AUTHORIZED BY THE GOVERNING REGULATIONS. SINCE YOUR DAUGHTER WAS BORN ON JULY 15, 1957, SHE HAD NOT ATTAINED 5 YEARS OF AGE ON JULY 31, 1961, AND AS THE APPLICABLE REGULATIONS CONTAIN NO PROVISION FOR PAYMENT OF A MONETARY ALLOWANCE IN LIEU OF TRANSPORTATION FOR DEPENDENTS UNDER THAT AGE, THERE IS NO AUTHORITY FOR THE ALLOWANCE FOR SUCH PORTION OF YOUR CLAIM.