B-163265, MAR. 27, 1968

B-163265: Mar 27, 1968

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D.D.S.: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED DECEMBER 18. YOU WERE RELIEVED FROM ACTIVE DUTY AS AN OFFICER OF THE DENTAL CORPS. THOSE ORDERS SHOW THE DATE ON WHICH YOU WERE TO PROCEED FROM FORT HOOD AS AUGUST 5. ADVISED YOU THAT DEPENDENT TRAVEL AT GOVERNMENT EXPENSE IS ONLY AUTHORIZED FOR TRAVEL ACTUALLY PERFORMED FOR THE PURPOSE OF ESTABLISHING A BONA-FIDE RESIDENCE AND. REQUESTED YOU TO ADVISE WHETHER YOUR WIFE'S TRAVEL TO BAYONNE WAS FOR THE PURPOSE OF ESTABLISHING A RESIDENCE OR A VISIT. ANOTHER FORM 1351 4 WAS FORWARDED TO YOU IN THE EVENT RESIDENCE WAS ESTABLISHED AT WARREN. YOU INFORMED THE FINANCE CENTER THAT YOUR WIFE WAS ORIGINALLY TRANSPORTED FROM FORT HOOD TO BAYONNE.

B-163265, MAR. 27, 1968

TO DR. JOHN P. SUDIMACK, D.D.S.:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED DECEMBER 18, 1967, IN EFFECT REQUESTING RECONSIDERATION OF SETTLEMENT DATED NOVEMBER 30, 1967, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT FOR TRANSPORTATION OF YOUR WIFE FROM FORT HOOD, TEXAS, TO NORTH ANDOVER, MASSACHUSETTS.

BY PARAGRAPH 13, SPECIAL ORDERS NO. 179, DATED JULY 26, 1967, HEADQUARTERS III CORPS AND FORT HOOD, FORT HOOD, TEXAS, YOU WERE RELIEVED FROM ACTIVE DUTY AS AN OFFICER OF THE DENTAL CORPS, U.S. ARMY, NOT BY REASON OF PHYSICAL DISABILITY, AND ASSIGNED TO A SPECIFIED RESERVE UNIT. THOSE ORDERS SHOW THE DATE ON WHICH YOU WERE TO PROCEED FROM FORT HOOD AS AUGUST 5, 1967, AND YOUR HOME OF RECORD AND PLACE YOU ENTERED ON ACTIVE DUTY AS BAYONNE, NEW JERSEY.

ON AUGUST 5, 1967, YOU AND YOUR DEPENDENTS (WIFE AND A CHILD UNDER 5 YEARS OF AGE) DEPARTED FROM FORT HOOD BY PRIVATELY OWNED AUTOMOBILE AND ARRIVED AT NORTH ANDOVER, MASSACHUSETTS, ON AUGUST 10, 1967. ON THE LATTER DATE YOU EXECUTED A STANDARDIZED CLAIM (DD FORM 1351-4) FOR REIMBURSEMENT OF THE COST OF DEPENDENT TRAVEL FROM FORT HOOD TO BAYONNE. SINCE IN THAT FORM YOU SHOWED WARREN, OHIO, AS YOUR MAILING ADDRESS, THE FINANCE CENTER, U.S. ARMY, INDIANAPOLIS, INDIANA, IN A LETTER DATED AUGUST 30, 1967, ADVISED YOU THAT DEPENDENT TRAVEL AT GOVERNMENT EXPENSE IS ONLY AUTHORIZED FOR TRAVEL ACTUALLY PERFORMED FOR THE PURPOSE OF ESTABLISHING A BONA-FIDE RESIDENCE AND, THEREFORE, REQUESTED YOU TO ADVISE WHETHER YOUR WIFE'S TRAVEL TO BAYONNE WAS FOR THE PURPOSE OF ESTABLISHING A RESIDENCE OR A VISIT. ANOTHER FORM 1351 4 WAS FORWARDED TO YOU IN THE EVENT RESIDENCE WAS ESTABLISHED AT WARREN.

BY LETTER DATED SEPTEMBER 15, 1967, YOU INFORMED THE FINANCE CENTER THAT YOUR WIFE WAS ORIGINALLY TRANSPORTED FROM FORT HOOD TO BAYONNE, YOUR HOME OF RECORD, AND THENCE TO NORTH ANDOVER, HER LEGAL RESIDENCE, THAT SHE RESIDED AT NORTH ANDOVER UNTIL THE "PAST WEEK," AND THAT DURING THIS PERIOD YOU RETURNED TO OHIO TO OPEN YOUR PRIVATE OFFICE. IN STATING FURTHER THAT YOU DID NOT UNDERSTAND HOW THEREAFTER ESTABLISHING A NEW RESIDENCE SHOULD DIMINISH HER TRAVEL ALLOWANCE AS YOUR ORIGINAL DESTINATION WAS NEW JERSEY AND THEN MASSACHUSETTS, YOU EXPRESSED YOUR INTENTION TO APPLY FOR THE TRAVEL ALLOWANCE TO COVER HER TRAVEL TO NORTH ANDOVER. ACCORDINGLY, ON OCTOBER 5, 1967, YOU EXECUTED A NEW DD FORM 1351 -4 SHOWING DEPENDENT TRAVEL FROM FORT HOOD TO NORTH ANDOVER, WITH THE NOTATION THAT WARREN WAS YOUR NEW RESIDENCE AS OF SEPTEMBER 5, 1967.

THE CLAIM, WHICH WAS FORWARDED TO OUR CLAIMS DIVISION FOR APPROPRIATE DISPOSITION, WAS DISALLOWED BY SETTLEMENT DATED NOVEMBER 30, 1967, FOR THE REASON THAT THE RECORD DID NOT SHOW THE DEPENDENT TRAVEL WAS ACTUALLY PERFORMED FOR THE PURPOSE OF ESTABLISHING A BONA FIDE RESIDENCE.

IN YOUR LETTER OF DECEMBER 18, 1967, YOU CONTEND THAT YOU ARE ENTITLED TO REIMBURSEMENT INCIDENT TO YOUR WIFE'S TRAVEL TO NORTH ANDOVER SINCE YOU ACTUALLY TRANSPORTED YOUR FAMILY TO THAT CITY AND SINCE THAT CITY IS HER LEGAL RESIDENCE. YOU SAY THAT NO ONE HAS EXPLAINED TO YOU WHAT YOUR BONA FIDE LEGAL RESIDENCE SHOULD BE BUT THAT YOU PRESUMED IT TO BE NORTH ANDOVER SINCE YOU ESTABLISHED A NEW RESIDENCE IN WARREN ON SEPTEMBER 5, 1967, OR APPROXIMATELY ONE MONTH AFTER TERMINATION OF YOUR MILITARY SERVICE.

THE GOVERNING LAW, 37 U.S.C. 406, PROVIDES THAT UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, A MEMBER UPON CHANGE OF PERMANENT STATION IS ENTITLED TO TRANSPORTATION IN KIND FOR HIS DEPENDENTS, TO REIMBURSEMENT THEREFOR, OR A MONETARY ALLOWANCE.

PARAGRAPH M7009 OF THE JOINT TRAVEL REGULATIONS, PROMULGATED PURSUANT TO THAT STATUTORY AUTHORITY, PROVIDES THAT A MEMBER ON ACTIVE DUTY WHO IS SEPARATED FROM THE SERVICE OR RELIEVED FROM ACTIVE DUTY WILL BE ENTITLED TO TRANSPORTATION OF HIS DEPENDENTS NOT TO EXCEED THE DISTANCE FROM HIS LAST STATION, OR THE PLACE TO WHICH THEY WERE LAST TRANSPORTED AT GOVERNMENT EXPENSE, TO THE PLACE TO WHICH THE MEMBER ELECTS TO RECEIVE TRAVEL ALLOWANCES FOR HIS TRAVEL UNDER THE PROVISIONS OF PARAGRAPH M4157, WHICH IN YOUR CASE WAS BAYONNE. AS A LIMITATION ON THAT AUTHORIZATION, HOWEVER, PARAGRAPH M7000-12 OF THE REGULATIONS PROVIDES THAT SUCH TRANSPORTATION IS AUTHORIZED ONLY FOR TRAVEL OF DEPENDENTS TO A PLACE WHERE THEY INTEND TO ESTABLISH A RESIDENCE, OR,IN OTHER WORDS, TO A PLACE WHERE THEY INTEND TO RESIDE ON A PERMANENT BASIS. THE TERM "BONA FIDE" IS USED AS DESCRIPTIVE OF THAT CIRCUMSTANCE.

YOUR MAILING ADDRESS WAS SHOWN IN THE SEPARATION ORDERS OF JULY 26, 1967, AS 121 CENTER STREET WEST, WARREN, OHIO, AND IN YOUR INITIAL CLAIM FORM OF AUGUST 10, 1967, YOU SHOWED THAT ADDRESS AS THE PLACE WHERE YOU DESIRED THE CHECK IN PAYMENT OF THE CLAIM TO BE MAILED. IN CONSIDERATION OF THAT INFORMATION, AND IN VIEW OF YOUR LETTER OF SEPTEMBER 15, 1967, WHEREIN YOU STATED THAT YOU RETURNED TO OHIO TO OPEN YOUR PRIVATE OFFICE, AND YOUR LETTER OF DECEMBER 18, 1967, WHEREIN YOU STATED THAT YOU AND YOUR WIFE ESTABLISHED A NEW RESIDENCE IN WARREN ON SEPTEMBER 5, 1967, INDICATING THAT BOTH OF YOU STAYED AT NORTH ANDOVER SHORTLY MORE THAN THREE WEEKS, IT IS CONCLUDED THE RECORD FAILS TO SHOW -- NOR HAVE YOU ALLEGED -- THAT YOU AND YOUR WIFE EVER INTENDED TO PERMANENTLY RESIDE IN NORTH ANDOVER FOLLOWING YOUR SEPARATION FROM THE ARMY.

IN VIEW OF THE FOREGOING, THERE APPEARS TO BE NO LEGAL BASIS FOR REIMBURSING YOU FOR DEPENDENT TRAVEL FROM FORT HOOD TO NORTH ANDOVER, AS CLAIMED. HOWEVER, SINCE THE PRESENT RECORD SUPPORTS A CONCLUSION THAT THERE WAS ESTABLISHED A PERMANENT RESIDENCE IN WARREN RATHER THAN NORTH ANDOVER, AND INASMUCH AS THE DISTANCE BETWEEN FORT HOOD AND WARREN DOES NOT EXCEED THAT BETWEEN FORT HOOD AND BAYONNE, THE PLACE TO WHICH YOU ELECTED TO RECEIVE THE TRAVEL ALLOWANCE FOR YOUR OWN TRAVEL, YOU ARE ENTITLED UNDER ABOVE PARAGRAPH M7009 TO REIMBURSEMENT FOR DEPENDENT TRAVEL BASED ON THE OFFICIAL HIGHWAY DISTANCE BETWEEN FORT HOOD AND WARREN.

ACCORDINGLY, A SETTLEMENT FOR THE AMOUNT DUE ON THAT BASIS WILL ISSUE IN DUE COURSE.