B-159078, JUL. 28, 1966

B-159078, JUL. 28, 1966

TO CHARLES A. HATCH, JR.:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED APRIL 18, 1966, WITH ENCLOSURES, REQUESTING RECONSIDERATION OF SETTLEMENT DATED MARCH 30, 1966, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT FOR TRAVEL OF YOUR STEPSON FROM TOKYO, JAPAN, TO SACRAMENTO, CALIFORNIA, INCIDENT TO YOUR ASSIGNMENT TO DUTY IN SACRAMENTO.

BY ORDERS DATED JULY 26, 1962, YOU WERE TRANSFERRED FROM YOUR DUTY STATION OVERSEAS TO DUTY AT FORT BLISS, TEXAS. BY ORDERS DATED MAY 28, 1964, YOU WERE REASSIGNED TO WILLIAM BEAUMONT GENERAL HOSPITAL, EL PASO, TEXAS, WHERE YOU WERE HOSPITALIZED ON FEBRUARY 28, 1964. BY ORDERS DATED DECEMBER 15, 1964, YOU WERE TRANSFERRED TO DUTY AT SACRAMENTO, CALIFORNIA. BY ORDERS DATED JULY 20, 1965, YOUR DEPENDENTS WERE AUTHORIZED TO TRAVEL TO CONTINENTAL UNITED STATES. THOSE ORDERS LISTED TAKATOSHI NOBORU, STEPSON, AS A MEMBER OF THE HOUSEHOLD, RATHER THAN AS A DEPENDENT, AND THIS DESIGNATION WAS CONSIDERED TO HAVE LIMITED YOUR ENTITLEMENT FOR HIS TRAVEL TO SPACE AVAILABLE TRAVEL VIA GOVERNMENT FACILITIES WHEN ACCOMPANYING BONA FIDE DEPENDENTS. HOWEVER, HE DID NOT ACCOMPANY YOUR OTHER DEPENDENTS WHO TRAVELED TO THE UNITED STATES ON AUGUST 8, 1965, BUT TRAVELED ON SEPTEMBER 25, 1965, AT YOUR EXPENSE.

YOUR CLAIM FOR REIMBURSEMENT FOR THE COST OF HIS TRAVEL WAS DISALLOWED BY SETTLEMENT DATED MARCH 30, 1966, FOR THE REASON THAT DEPENDENCY OF YOUR STEPSON WAS NOT ESTABLISHED UNTIL AFTER HE PERFORMED THE TRAVEL.

TRANSPORTATION OF DEPENDENTS OF MEMBERS OF THE UNIFORMED SERVICES IS GOVERNED BY 37 U.S.C. 406 AND THE JOINT TRAVEL REGULATIONS PROMULGATED PURSUANT THERETO. PARAGRAPH M1150-9 OF THOSE REGULATIONS PROVIDES THAT THE TERM "DEPENDENT" AS USED IN THOSE REGULATIONS WILL BE A DEPENDENT AS DEFINED IN 37 U.S.C. 401. THAT SECTION PROVIDES THAT THE TERM "DEPENDENT" SHALL INCLUDE STEPCHILDREN ONLY WHEN SUCH STEPCHILDREN ARE IN FACT DEPENDENT UPON THE MEMBER. IMPLEMENTING REGULATIONS FOR THE DEPARTMENT OF THE ARMY DURING THE PERIOD IN QUESTION ARE CONTAINED IN ARMY REGULATIONS 37-106, CHANGE 10, DATED APRIL 19, 1961. PARAGRAPH 9-63C OF THOSE REGULATIONS PROVIDES GENERALLY THAT THE FINANCE AND ACCOUNTING OFFICER INVOLVED WILL MAKE THE DETERMINATION OF DEPENDENCY FOR TRANSPORTATION PURPOSES ON THE BASIS OF EVIDENCE AVAILABLE TO HIM OR, IN THE ABSENCE OF SUFFICIENT EVIDENCE, WILL SUBMIT REQUEST FOR DETERMINATION OF DEPENDENCY TO THE FINANCE CENTER, U.S. ARMY, TO BE MADE ON THE BASIS OF EVIDENCE THAT THE STEPCHILD WAS IN FACT DEPENDENT ON THE MEMBER FOR HIS SUPPORT, MAINTENANCE AND EDUCATION, RESIDED IN THE MEMBER'S HOUSEHOLD, AND ACTUALLY PERFORMED TRAVEL WHEN TRANSPORTATION OF DEPENDENTS WAS AUTHORIZED AT GOVERNMENT EXPENSE. DETERMINATION OF DEPENDENCY AS TO YOUR STEPSON DATED FEBRUARY 7, 1966, APPARENTLY WAS MADE UNDER THAT AUTHORITY IN CONNECTION WITH YOUR CLAIM FOR HIS TRAVEL FROM JAPAN TO SACRAMENTO ON SEPTEMBER 25, 1965, AND WILL BE CONSIDERED AS ESTABLISHING HIS DEPENDENCY AS OF THE TIME THE TRAVEL WAS PERFORMED.

PARAGRAPHS M4159 AND M7002 OF THE JOINT TRAVEL REGULATIONS CONTEMPLATE THAT A MEMBER AND HIS DEPENDENTS WILL USE GOVERNMENT TRANSPORTATION FOR OCEAN TRAVEL IF AVAILABLE, AND IF THEY ELECT TO USE COMMERCIAL TRANSPORTATION IN SUCH CIRCUMSTANCES REIMBURSEMENT MAY NOT EXCEED THE COST OF THE AVAILABLE GOVERNMENT TRANSPORTATION. WHERE GOVERNMENT TRANSPORTATION IS AVAILABLE BY BOTH MILITARY SEA TRANSPORT SERVICE (MSTS) AND MILITARY AIR TRANSPORTATION SERVICE (MATS) AND THE MEMBER AND HIS DEPENDENTS TRAVEL BY COMMERCIAL MEANS, REIMBURSEMENT IS LIMITED TO THE COST TO THE GOVERNMENT OF THE LEAST EXPENSIVE MEANS THAT WOULD HAVE MET THE REQUIREMENTS OF THE MEMBER AND HIS DEPENDENTS. SEE 40 COMP. GEN. 482 AND 41 COMP. GEN. 100.

IN VIEW OF THIS AND IN THE ABSENCE OF AN INDICATION THAT GOVERNMENT AIR TRANSPORTATION WOULD NOT HAVE BEEN AVAILABLE FOR YOUR STEPSON HAD YOU MADE TIMELY APPLICATION FOR DETERMINATION OF HIS DEPENDENCY FOR TRAVEL ALLOWANCE PURPOSES, REIMBURSEMENT FOR HIS TRAVEL IS LIMITED TO THE COST TO THE GOVERNMENT FOR TRAVEL BY MILITARY AIR TRANSPORTATION SERVICE.