B-155087, JAN. 19, 1965

B-155087: Jan 19, 1965

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MARTIN: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 20. YOU WERE TRANSFERRED FROM THE U.S.S. AFTER WHICH IT WAS CONTEMPLATED THAT YOU WOULD BE TRANSFERRED TO THE RETIRED LIST OF THE U.S. YOU WERE RELEASED FROM ACTIVE DUTY AND TRANSFERRED TO INACTIVE DUTY ON THE RETIRED LIST OF THE UNITED STATES NAVY. WAS DISALLOWED FOR THE REASON THAT HER TRAVEL TO YOUR DUTY STATION. MUST BE CONSIDERED TO HAVE BEEN PERFORMED FOR THE PURPOSE OF A VISIT RATHER THAN TO ESTABLISH A RESIDENCE THERE. PROVIDES FURTHER THAT A DISLOCATION ALLOWANCE IS NOT PAYABLE IN CONNECTION WITH PERMANENT CHANGE OF STATION TRAVEL PERFORMED FOR PURPOSES OTHER THAN TO ESTABLISH A RESIDENCE. OR FROM THE LAST PLACE TO WHICH THEY WERE TRANSPORTED AT PUBLIC EXPENSE TO HIS NEW STATION EXCEPT WHEN TRAVEL IS PERFORMED TO A PLACE AT WHICH THEY DO NOT INTEND TO ESTABLISH A RESIDENCE.

B-155087, JAN. 19, 1965

TO MR. WILLIAM M. MARTIN:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 20, 1964, WITH ENCLOSURES, REQUESTING RECONSIDERATION OF SETTLEMENT DATED MARCH 28, 1960, WHICH DISALLOWED YOUR CLAIM FOR YOUR WIFE'S TRAVEL FROM SANTA ANA, CALIFORNIA, TO LEXINGTON PARK, MARYLAND, AND RETURN AND FOR DISLOCATION ALLOWANCE, UNDER THE CIRCUMSTANCES DESCRIBED BELOW.

BY ORDERS DATED AUGUST 13, 1957, YOU WERE TRANSFERRED FROM THE U.S.S. PRINCETON (CVS-37) TO THE NAVAL AIR STATION, PATUXENT RIVER, MARYLAND. YOU REPORTED THERE ON NOVEMBER 1, 1957. PURSUANT TO YOUR REQUEST, BY SPEEDLETTER DATED FEBRUARY 4, 1959, THE NAVY AUTHORIZED AN EXTENSION OF YOUR ENLISTMENT FOR 150 DAYS SO THAT YOU COULD COMPLETE 30 YEARS' ACTIVE DUTY, AFTER WHICH IT WAS CONTEMPLATED THAT YOU WOULD BE TRANSFERRED TO THE RETIRED LIST OF THE U.S. NAVY. THE ITINERARY FURNISHED WITH YOUR ORIGINAL CLAIM SHOWS THAT YOUR WIFE DEPARTED FROM YOUR PRESENT HOME ADDRESS IN SANTA ANA ON MAY 7, 1959, AND ARRIVED AT HER DESTINATION, LORD CALVERT MOTEL, LEXINGTON PARK, MARYLAND, ON MAY 12, 1959. BY ORDERS DATED MAY 31, 1959, YOU WERE RELEASED FROM ACTIVE DUTY AND TRANSFERRED TO INACTIVE DUTY ON THE RETIRED LIST OF THE UNITED STATES NAVY, AND ON JUNE 1, 1959, YOU AND YOUR WIFE LEFT LEXINGTON PARK AND RETURNED TO YOUR HOME OF SELECTION, SANTA ANA, CALIFORNIA, ON JUNE 15, 1959. YOUR CLAIM FOR REIMBURSEMENT FOR YOUR WIFE'S TRAVEL FROM SANTA ANA, CALIFORNIA, TO LEXINGTON PARK, MARYLAND, AND DISLOCATION ALLOWANCE INCIDENT TO YOUR ORDERS OF AUGUST 13, 1957, AND REIMBURSEMENT FOR THE COST OF HER RETURN TRAVEL INCIDENT TO YOUR ORDERS OF MAY 31, 1957, WAS DISALLOWED FOR THE REASON THAT HER TRAVEL TO YOUR DUTY STATION, FOR A PERIOD OF LESS THAN 3 WEEKS, MUST BE CONSIDERED TO HAVE BEEN PERFORMED FOR THE PURPOSE OF A VISIT RATHER THAN TO ESTABLISH A RESIDENCE THERE.

THE PROVISIONS OF 37 U.S.C. 406 AND 407 AUTHORIZE THE SECRETARIES OF THE SERVICES CONCERNED TO PRESCRIBE REGULATIONS PROVIDING FOR THE TRANSPORTATION OF A MEMBER'S DEPENDENTS AND FOR THE PAYMENT, IN CERTAIN CIRCUMSTANCES, OF A DISLOCATION ALLOWANCE INCIDENT TO A DIRECTED PERMANENT CHANGE OF STATION. PARAGRAPH 7000, JOINT TRAVEL REGULATIONS, IN EFFECT DURING THE PERIOD IN QUESTION, PROVIDES FOR TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE UPON PERMANENT CHANGE OF STATION, WITH THE EXCEPTION THAT SUCH EXPENSE MAY NOT BE CONSIDERED AN OBLIGATION OF THE GOVERNMENT FOR ANY TRAVEL OF DEPENDENTS BETWEEN POINTS OTHERWISE AUTHORIZED IN THE REGULATIONS TO A PLACE AT WHICH THEY DO NOT INTEND TO ESTABLISH A RESIDENCE, AND TRAVEL OF DEPENDENTS FOR PLEASURE TRIPS OR FOR PURPOSES OTHER THAN WITH THE INTENT TO CHANGE THE DEPENDENTS' RESIDENCE. PARAGRAPH 9003-1 OF THE REGULATIONS, IN EFFECT AT THE TIME, PROVIDES FURTHER THAT A DISLOCATION ALLOWANCE IS NOT PAYABLE IN CONNECTION WITH PERMANENT CHANGE OF STATION TRAVEL PERFORMED FOR PURPOSES OTHER THAN TO ESTABLISH A RESIDENCE.

AS STATED ABOVE, THE APPLICABLE STATUTE AND REGULATIONS AS CURRENTLY CONSTITUTED ASSURE A MEMBER OF A RIGHT TO TRANSPORTATION OF HIS DEPENDENTS AT PUBLIC EXPENSE FROM HIS OLD STATION, FROM HOME, OR FROM THE LAST PLACE TO WHICH THEY WERE TRANSPORTED AT PUBLIC EXPENSE TO HIS NEW STATION EXCEPT WHEN TRAVEL IS PERFORMED TO A PLACE AT WHICH THEY DO NOT INTEND TO ESTABLISH A RESIDENCE. THE TRAVEL OF DEPENDENTS MAY NOT BE CONSIDERED TO BE WITHIN THE INTENT AND PURPOSE OF THE LAW AND REGULATIONS AUTHORIZING SUCH TRAVEL UNLESS SUCH TRAVEL ACTUALLY IS PERFORMED FOR THE PURPOSE OF A CHANGE IN RESIDENCE IN CONNECTION WITH A CHANGE OF STATION OF A PERSON IN THE ARMED SERVICES, AND REIMBURSEMENT FOR TRAVEL OF DEPENDENTS FOR OTHER THAN SUCH PURPOSE OR FOR VISITS OR PLEASURE TRIPS IS NOT AUTHORIZED. SEE 33 COMP. GEN. 421, COPY HEREWITH. ALSO, THE REGULATIONS PROVIDE FOR REIMBURSEMENT FOR TRAVEL OF DEPENDENTS AFTER TRAVEL HAS BEEN COMPLETED.

SINCE YOU WERE AWARE THAT YOUR SEPARATION FROM ACTIVE SERVICE WOULD SOON BE DIRECTED WHEN YOUR WIFE LEFT SANTA ANA ON MAY 7, 1959, AND YOU INTENDED TO PROCEED TO SANTA ANA ON RETIREMENT, HER TRAVEL TO MARYLAND AT THAT TIME MAY NOT BE VIEWED AS HAVING BEEN PERFORMED WITH THE INTENT OF ESTABLISHING A RESIDENCE AT LEXINGTON PARK INCIDENT TO YOUR DUTY ASSIGNMENT AT PATUXENT RIVER UNDER THE ORDERS OF AUGUST 13, 1957. IN THOSE CIRCUMSTANCES HER TRAVEL FROM SANTA ANA TO LEXINGTON PARK AND RETURN MUST BE REGARDED AS TRAVEL OTHER THAN FOR THE PURPOSE OF CHANGING HER RESIDENCE WITHIN THE CONTEMPLATION OF THE CITED LAW AND REGULATIONS.

WITH REFERENCE TO THE DISALLOWANCE OF YOUR CLAIM YOU SAY, IN YOUR LETTER OF AUGUST 20, 1964, THAT YOUR WIFE DID TRAVEL TO LEXINGTON PARK IN MAY 1958 AND, UPON DISCOVERING THAT SHE COULD NOT ADAPT HERSELF TO LIVING IN TRAILER COURTS THERE, SHE WENT ON TO HICKSVILLE, NEW YORK, TO LIVE WITH YOUR STEP-SON AND ESTABLISHED HER RESIDENCE THERE UNTIL HER RETURN TO CALIFORNIA IN DECEMBER 1958 BECAUSE OF HER MOTHER'S ILLNESS. YOU PRESENT NO CLAIM ON THE BASIS OF SUCH TRAVEL, HOWEVER, AND IT WAS NOT ADVANCED AS THE BASIS OF YOUR CLAIM WHEN FILED. IN SUCH CIRCUMSTANCES IT MAY NOT PROPERLY BE CONSIDERED FOR THAT PURPOSE AT THIS TIME IN SUBSTITUTION FOR YOUR ORIGINAL REPRESENTATIONS IN THE MATTER. AT MOST THAT TRAVEL COULD BE VIEWED AS TRAVEL TO A PLACE OF SELECTION INCIDENT TO YOUR ORDERS AND THE REGULATIONS AUTHORIZE TRAVEL TO A SELECTED PLACE AT GOVERNMENT EXPENSE ONLY WHEN THE MILITARY MEMBER IS ORDERED TO A STATION WHERE DEPENDENTS ARE NOT PERMITTED. THERE WAS NO RESTRICTION ON YOUR DEPENDENT'S TRAVEL TO PATUXENT.

ACCORDINGLY, THE SETTLEMENT OF MARCH 28, 1960, WAS CORRECT AND IS SUSTAINED.