B-163348, MAY 31, 1968, 47 COMP. GEN. 691

B-163348: May 31, 1968

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THE MEMBER IS ENTITLED TO THE TRANSPORTATION OF HIS DEPENDENT FROM THE PLACE AT WHICH LOCATED OVERSEAS TO THE DUTY STATION. AT WHICH THE MEMBER IS LOCATED AT THE TIME THE TRAVEL IS PERFORMED. WHICHEVER IS GREATER. 1968: FURTHER REFERENCE IS MADE TO LETTER OF DECEMBER 28. THE REQUEST WAS ASSIGNED CONTROL NO. 68-2 BY THE DEPARTMENT OF DEFENSE PER DIEM TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE. DEFINES A DEPENDENT AS INCLUDING AN UNMARRIED CHILD WHO IS TRANSPORTED AT GOVERNMENT EXPENSE TO A MEMBER'S STATION OUTSIDE THE UNITED STATES INCIDENT TO HIS ASSIGNMENT THERETO AND WHO BECAME 21 YEARS OF AGE THEREAT UNTIL SUCH CHILD IS RETURNED TO THE UNITED STATES. IT IS STATED THAT NEITHER THE STATUTE (37 U.S.C. 406 (H) ( NOR THE JOINT TRAVEL REGULATIONS PLACE A TIME LIMITATION ON WHEN THE OVER-AGE DEPENDENT MUST RETURN TO THE UNITED STATES BEFORE THE MEMBER'S ENTITLEMENT TO SUCH TRANSPORTATION AT GOVERNMENT EXPENSE TERMINATES.

B-163348, MAY 31, 1968, 47 COMP. GEN. 691

TRANSPORTATION - DEPENDENTS - MILITARY PERSONNEL - CHILDREN - TWENTY-ONE YEARS OF AGE THE FACT THAT AN UNMARRIED DEPENDENT TRANSFERRED OVERSEAS AT GOVERNMENT EXPENSE INCIDENT TO THE ASSIGNMENT OF A MEMBER OF THE UNIFORMED SERVICES REMAINED OVERSEAS AFTER REACHING TWENTY-ONE, AND THE MEMBER'S ASSIGNMENT TO THE UNITED STATES (U.S.), ONLY RETURNING TO THE U.S. AFTER THE MEMBER'S REASSIGNMENT TO ANOTHER PERMANENT DUTY STATION WITHIN THE U.S., DOES NOT DEFEAT ENTITLEMENT TO DEPENDENT'S TRANSPORTATION UNDER 37 U.S.C. 406 (H) SAVED TO THE MEMBER OF PARAGRAPH M-7055 OF THE JOINT TRAVEL REGULATIONS. THEREFORE, THE MEMBER IS ENTITLED TO THE TRANSPORTATION OF HIS DEPENDENT FROM THE PLACE AT WHICH LOCATED OVERSEAS TO THE DUTY STATION, AT WHICH THE MEMBER IS LOCATED AT THE TIME THE TRAVEL IS PERFORMED, NOT TO EXCEED THE DISTANCE FROM THE OLD STATION OVERSEAS TO THE CURRENT DUTY STATION IN THE U.S. OR FROM THE LAST STATION IN THE U.S. TO THE CURRENT STATION, WHICHEVER IS GREATER.

TO THE SECRETARY OF THE ARMY, MAY 31, 1968:

FURTHER REFERENCE IS MADE TO LETTER OF DECEMBER 28, 1967, FROM THE UNDERSECRETARY OF THE ARMY REQUESTING DECISION AS TO THE ENTITLEMENT OF A MEMBER TO TRANSPORTATION AT GOVERNMENT EXPENSE FOR AN UNMARRIED OVER-AGE DEPENDENT UNDER THE CIRCUMSTANCES DESCRIBED. THE REQUEST WAS ASSIGNED CONTROL NO. 68-2 BY THE DEPARTMENT OF DEFENSE PER DIEM TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

AS SET FORTH IN THE UNDER SECRETARY'S LETTER, PARAGRAPH M1150-9, JOINT TRAVEL REGULATIONS, DEFINES A DEPENDENT AS INCLUDING AN UNMARRIED CHILD WHO IS TRANSPORTED AT GOVERNMENT EXPENSE TO A MEMBER'S STATION OUTSIDE THE UNITED STATES INCIDENT TO HIS ASSIGNMENT THERETO AND WHO BECAME 21 YEARS OF AGE THEREAT UNTIL SUCH CHILD IS RETURNED TO THE UNITED STATES.

IT IS STATED THAT NEITHER THE STATUTE (37 U.S.C. 406 (H) ( NOR THE JOINT TRAVEL REGULATIONS PLACE A TIME LIMITATION ON WHEN THE OVER-AGE DEPENDENT MUST RETURN TO THE UNITED STATES BEFORE THE MEMBER'S ENTITLEMENT TO SUCH TRANSPORTATION AT GOVERNMENT EXPENSE TERMINATES. ALSO, IT IS STATED THE VIEW HAS BEEN EXPRESSED IN B-145865, JUNE 28, 1961, AND B-148668, AUGUST 27, 1962, THAT THERE IS NO LIMITATION AS TO THE PERIOD WITHIN WHICH A MEMBER'S DEPENDENTS MUST TRAVEL TO THE NEW PERMANENT DUTY STATION TO JOIN HIM, EXCEPT WHEN HE IS LEAVING THE SERVICE.

FURTHER, IT IS STATED THAT IT WOULD APPEAR THAT THE INTENT OF THE LAW (37 U.S.C. 406 (H) ( IS TO COMPLETE THE RESPONSIBILITY OF THE GOVERNMENT BY RETURNING THE CHILD TO THE UNITED STATES AFTER HAVING TRANSPORTED THE CHILD OVERSEAS AT GOVERNMENT EXPENSE INCIDENT TO THE SPONSOR'S CHANGE OF PERMANENT DUTY STATION EVEN THOUGH THE CHILD ATTAINED THE AGE OF 21 YEARS WHILE AT THE OVERSEAS STATION. THE UNDER SECRETARY SUGGESTS AS BEING CLEAR, THEREFORE, THAT ENTITLEMENT TO TRANSPORTATION FOR SUCH DEPENDENT ACCRUES INCIDENT TO THE MEMBER'S PERMANENT CHANGE OF STATION FROM OVERSEAS TO THE UNITED STATES PROVIDED THE DEPENDENT PERFORMS THAT TRAVEL PRIOR TO THE MEMBER'S NEXT PERMANENT CHANGE-OF-STATION ORDERS. HOWEVER, HE SAYS THAT DOUBT EXISTS AS TO ENTITLEMENT TO TRANSPORTATION OF SUCH DEPENDENT WHEN THE DEPENDENT PERFORMS THE TRAVEL TO THE UNITED STATES AFTER THE MEMBER IS IN RECEIPT OF SUBSEQUENT PERMANENT CHANGE-OF-STATION ORDERS IN THE UNITED STATES.

THE UNDER SECRETARY REQUESTS OUR DECISION WHETHER THE ENTITLEMENT REFERRED TO ABOVE EXTENDS BEYOND THE MEMBER'S PERMANENT CHANGE OF STATION FROM OVERSEAS TO THE UNITED STATES. ALSO, IF OUR ANSWER IS IN THE AFFIRMATIVE, HE REQUESTS OUR DECISION WHETHER SUCH ENTITLEMENT IS LIMITED TO TRANSPORTATION OF THE DEPENDENT FROM THE OLD DUTY STATION OVERSEAS TO THE NEW DUTY STATIONS IN THE UNITED STATES TO WHICH TRANSFERRED FROM OVERSEAS, OR DOES IT EXTEND TO THE DUTY STATION AT WHICH THE MEMBER IS LOCATED AT THE TIME THE DEPENDENT PERFORMS THE TRAVEL FROM OVERSEAS.

WITH RESPECT TO THE RETURN OF A CHILD OF A MEMBER WHO ATTAINS THE AGE OF 21 YEARS WHILE OVERSEAS, SECTION 406 (H) OF TITLE 37, UNITED STATES CODE, PROVIDES IN PERTINENT PART:

* * * A MEMBER'S UNMARRIED CHILD FOR WHOM THE MEMBER RECEIVED TRANSPORTATION IN KIND TO HIS STATION OUTSIDE THE UNITED STATES OR IN HAWAII OR ALASKA, REIMBURSEMENT THEREFOR, OR A MONETARY ALLOWANCE IN PLACE THEREOF AND WHO BECAME 21 YEARS OF AGE WHILE THE MEMBER WAS SERVING AT THAT STATION SHALL BE CONSIDERED AS A DEPENDENT OF THE MEMBER.

IN OUR DECISION OF AUGUST 20, 1965, 45 COMP. GEN. 82, WE STARTED THAT THE QUOTED LANGUAGE OF THE STATUTE OPERATES TO CONTINUE THE DEPENDENCY STATUS OF THE CHILDREN CONCERNED FOR PURPOSES OF TRANSPORTATION AT GOVERNMENT EXPENSE UNTIL THEY ARE RETURNED TO THE UNITED STATES.

IN CASES WHERE A MEMBER UPON RECEIPT OF PERMANENT CHANGE-OF-STATION ORDERS RETAINS HIS DEPENDENTS AT THE PLACE WHERE THEY WERE LOCATED WHEN SUCH ORDERS WERE RECEIVED, PARAGRAPH M7055, JOINT TRAVEL REGULATIONS, AUTHORIZES TRANSPORTATION OF THE DEPENDENTS AT GOVERNMENT EXPENSE UPON SOME SUBSEQUENT PERMANENT CHANGE OF STATION, NOT IN EXCESS OF THE DISTANCE FROM THE FIRST STATION TO SUCH SUBSEQUENT STATION, OR FROM HIS LAST PERMANENT STATION TO HIS NEW PERMANENT STATION, WHICHEVER IS THE GREATER, WITHOUT REGARD TO ANY INTERIM PERMANENT CHANGE OF STATION UPON WHICH HE DID NOT EXERCISE HIS RIGHTS TO DEPENDENTS' TRANSPORTATION. SEE 34 COMP. GEN. 467.

AS STATED ABOVE, A MEMBER'S RIGHT TO TRANSPORTATION OF HIS DEPENDENT FROM HIS OVERSEAS STATION TO THE UNITED STATES ACCRUES UPON HIS TRANSFER TO THE UNITED STATES EVEN THOUGH THE DEPENDENT BECAME 21 YEARS OF AGE WHILE AT THAT STATION. THE DEPENDENCY STATUS CONFERRED BY THE STATUTE, HOWEVER, CONTINUES UNTIL A RETURN TO THE UNITED STATES. HENCE, THE FACT THAT THE DEPENDENT REMAINS OVERSEAS UNTIL AFTER THE MEMBER RECEIVES A SUBSEQUENT TRANSFER IN THE UNITED STATES MAY NOT BE CONSIDERED AS DEFEATING THE MEMBER'S RIGHT TO THE TRANSPORTATION SAVED TO HIM BY PARAGRAPH M7055, JOINT TRAVEL REGULATIONS. BASED ON THE FOREGOING, IT APPEARS THAT, IN THE ABSENCE OF ORDERS OR REGULATIONS DIRECTING AN EARLIER RETURN OF THE DEPENDENT, THE MEMBER WOULD BE ENTITLED TO TRANSPORTATION OF HIS DEPENDENT FROM THE PLACE AT WHICH LOCATED OVERSEAS TO THE DUTY STATION AT WHICH THE MEMBER IS LOCATED AT THE TIME THE DEPENDENT PERFORMS THE TRAVEL FROM OVERSEAS NOT TO EXCEED THE DISTANCE FROM THE OLD STATION OVERSEAS TO THE CURRENT DUTY STATION IN THE UNITED STATES OR FROM THE LAST STATION IN THE UNITED STATES TO THE CURRENT STATION, WHICHEVER IS GREATER.