B-169604, JUL. 28, 1970

B-169604: Jul 28, 1970

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TO HER PARENT'S HOME IN AUSTRALIA SHORTLY BEFORE HE WAS DUE FOR REASSIGNMENT AND THEN ACCOMPAINED MEMBER TO NEW STATION IN SPAIN VIA THE U.S. MAY NOT HAVE TRAVEL TO AUSTRALIA REGARDED AS FOR PURPOSE OF ESTABLISHING A RESIDENCE THERE INCIDENT TO MEMBERS ASSIGNMENT TO VIETNAM AND. REIMBURSEMENT FOR TRANSPORTATION EXPENSES AND DISLOCATION ALLOWANCE IS NOT AUTHORIZED. YOUR DEPENDENT WIFE WAS NOT AUTHORIZED TO RESIDE AT THIS DUTY STATION. YOUR PROSPECTIVE ROTATION DATE WAS JUNE 23. YOU WERE INFORMED OF BUREAU OF PERSONNEL ORDER 184702. WHERE YOUR WIFE WAS AUTHORIZED TO ACCOMPANY YOU. YOU HAVE STATED THAT YOUR HOUSEHOLD GOODS WERE PACKED AND STORED ON APRIL 9. YOU HAVE CERTIFIED THAT YOUR WIFE'S TRAVEL TO AUSTRALIA WAS PERFORMED FOR THE PURPOSE OF ESTABLISHING A BONA FIDE RESIDENCE THERE.

B-169604, JUL. 28, 1970

MILITARY -- CHANGE OF STATION -- TRANSPORTATION OF DEPENDENTS DECISION TO NAVAL OFFICER SUSTAINING DISALLOWANCE OF CLAIM FOR DISLOCATION ALLOWANCE AND FOR REIMBURSEMENT OF TRANSPORTATION FOR WIFE FROM WASHINGTON, D.C. TO PORTLAND, OREGON, AND THEN TO AUSTRALIA INCIDENT TO MEMBER'S PREVIOUS CHANGE OF STATION FROM WASHINGTON, D. C. TO VIETNAM. MEMBER OF THE UNIFORMED SERVICES WHOSE WIFE TRAVELED FROM U.S. TO HER PARENT'S HOME IN AUSTRALIA SHORTLY BEFORE HE WAS DUE FOR REASSIGNMENT AND THEN ACCOMPAINED MEMBER TO NEW STATION IN SPAIN VIA THE U.S. MAY NOT HAVE TRAVEL TO AUSTRALIA REGARDED AS FOR PURPOSE OF ESTABLISHING A RESIDENCE THERE INCIDENT TO MEMBERS ASSIGNMENT TO VIETNAM AND, THEREFORE, REIMBURSEMENT FOR TRANSPORTATION EXPENSES AND DISLOCATION ALLOWANCE IS NOT AUTHORIZED.

TO LIEUTENANT COMMANDER JACK M. SMITH:

IN YOUR LETTER OF MARCH 30, 1970, YOU REQUEST RECONSIDERATION OF THE SETTLEMENT OF MARCH 3, 1970, WHICH DISALLOWED YOUR CLAIM FOR A DISLOCATION ALLOWANCE AND FOR REIMBURSEMENT FOR THE TRANSPORTATION OF YOUR WIFE FROM WASHINGTON, D.C., TO PORTLAND, OREGON, INCIDENT TO YOUR CHANGE OF DUTY STATION FROM WASHINGTON, D.C., TO DANANG, REPUBLIC OF VIETNAM.

BUREAU OF PERSONNEL ORDER 103976, DATED MARCH 18, 1968, DIRECTED YOU TO REPORT FOR DUTY AT DANANG, REPUBLIC OF VIETNAM. YOUR DEPENDENT WIFE WAS NOT AUTHORIZED TO RESIDE AT THIS DUTY STATION. YOU DEPARTED FROM THE CONTINENTAL UNITED STATES ON JUNE 23, 1968, AND REPORTED TO THE COMMANDER, UNITED STATES NAVAL SUPPORT ACTIVITY, DANANG, ON JUNE 25, 1968. YOUR PROSPECTIVE ROTATION DATE WAS JUNE 23, 1969. ON APRIL 14, 1969, YOU WERE INFORMED OF BUREAU OF PERSONNEL ORDER 184702, DATED APRIL 11, 1969, WHICH DIRECTED THAT YOU BE DETACHED FROM YOUR ASSIGNED STATION IN JUNE 1969 AND REPORT ON JULY 29, 1969, TO THE UNITED STATES NAVAL STATION, ROTA, SPAIN, WHERE YOUR WIFE WAS AUTHORIZED TO ACCOMPANY YOU.

YOU HAVE STATED THAT YOUR HOUSEHOLD GOODS WERE PACKED AND STORED ON APRIL 9, 1969, AND THAT YOUR WIFE, AN AUSTRALIAN CITIZEN, LEFT ARLINGTON, VIRGINIA, AND TRAVELED BY COMMERCIAL AIRLINE FROM WASHINGTON, D. C., TO PORTLAND, OREGON, ON APRIL 12, 1969, AND PROCEEDED FROM THERE TO PERTH, AUSTRALIA, WHERE SHE ARRIVED ON APRIL 17, 1969. SHE THEN WENT TO LIVE WITH HER PARENTS AT BRENTWOOD, AUSTRALIA, WHERE YOU JOINED HER ON JUNE 16, 1969. WITH YOUR WIFE, YOU LEFT PERTH ON JUNE 30, 1969, AND RETURNED TO THE UNITED STATES AND THEN TRAVELED TO ROTA, SPAIN, WHERE YOU ARRIVED ON JULY 28, 1969, AND WHERE YOUR WIFE HAS RESIDED WITH YOU.

YOU HAVE CERTIFIED THAT YOUR WIFE'S TRAVEL TO AUSTRALIA WAS PERFORMED FOR THE PURPOSE OF ESTABLISHING A BONA FIDE RESIDENCE THERE. YOU SAY THAT FOR PERSONAL REASONS SHE DID NOT RELOCATE AT THE TIME OF YOUR ARRIVAL IN VIETNAM BUT THAT SHE ACTUALLY LIVED IN AUSTRALIA FOR TWO AND ONE-HALF MONTHS AND, HENCE, THAT WAS THE PLACE OF HER RESIDENCE FOR SUCH PERIOD. YOU EXPRESS THE OPINION THAT A RESIDENCE IS A FACTUAL PLACE WHERE A PERSON LIVES AND THE INTENT OF THE PERSON HAS NOTHING TO DO WITH HIS RESIDENCE, NOR IS THERE ANY ARBITRARY MINIMUM TIME REQUIRED TO ESTABLISH SUCH RESIDENCE. YOU INDICATE THAT YOUR OPINION IS CONSISTENT WITH COUNSEL RECEIVED FROM THE NAVY BEFORE BEING SEPARATED FROM YOUR WIFE TO GO TO VIETNAM.

YOUR CLAIM FOR YOUR WIFE'S TRAVEL FROM WASHINGTON, D. C., TO PORTLAND, OREGON, THE POINT OF HER DEPARTURE FROM THE UNITED STATES, AND FOR A DISLOCATION ALLOWANCE, WAS REFERRED TO THIS OFFICE BY THE UNITED STATES NAVY FINANCE CENTER ON SEPTEMBER 19, 1969, AND WAS DISALLOWED ON MARCH 3, 1970.

SECTION 406 OF TITLE 37, U.S.C. STATES THAT A MEMBER OF A UNIFORMED SERVICE WHO IS ORDERED TO MAKE A PERMANENT CHANGE OF STATION IS ENTITLED TO TRANSPORTATION IN KIND FOR HIS DEPENDENTS, TO REIMBURSEMENT THEREFOR, OR TO A MONETARY ALLOWANCE, UNDER SUCH LIMITATIONS AS THE SECRETARIES MAY PRESCRIBE. PARAGRAPH M7005-2 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT WHEN A MEMBER IS TRANSFERRED BY PERMANENT CHANGE-OF-STATION ORDERS TO A RESTRICTED AREA, AND HIS OLD DUTY STATION WAS LOCATED IN THE UNITED STATES, TRANSPORTATION OF DEPENDENTS IS AUTHORIZED TO ANY PLACE IN THE UNITED STATES THE MEMBER MAY DESIGNATE OR TO THE POINT OF ACTUAL DEPARTURE OF DEPENDENTS FROM THE UNITED STATES IN CONJUNCTION WITH TRAVEL TO A PLACE OUTSIDE THE UNITED STATES DESIGNATED BY THE MEMBER.

PARAGRAPH M7000-12 OF THE REGULATIONS SPECIFIES THAT THERE IS ENTITLEMENT TO TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE UPON A PERMANENT CHANGE OF STATION FOR TRAVEL PERFORMED FROM THE OLD STATION TO THE NEW PERMANENT STATION OR BETWEEN POINTS OTHERWISE AUTHORIZED, EXCEPT FOR ANY TRAVEL OF DEPENDENTS BETWEEN POINTS OTHERWISE AUTHORIZED TO A PLACE AT WHICH THEY DO NOT INTEND TO ESTABLISH A RESIDENCE; TRAVEL EXPENSE OF DEPENDENTS FOR PLEASURE TRIPS OR FOR PURPOSES OTHER THAN WITH INTENT TO CHANGE THE DEPENDENTS' RESIDENCE MAY NOT BE CONSIDERED AS AN OBLIGATION OF THE GOVERNMENT.

SECTION 407, TITLE 37, U.S.C. AUTHORIZES A DISLOCATION ALLOWANCE UNDER REGULATIONS PRESCRIBED BY THE SECRETARY CONCERNED, FOR A MEMBER WHOSE DEPENDENTS MAKE AN AUTHORIZED MOVE IN CONNECTION WITH HIS PERMANENT CHANGE OF STATION. PARAGRAPH M9000 OF THE REGULATIONS INDICATES THAT THE PURPOSE OF THE ALLOWANCE IS TO PARTIALLY REIMBURSE A MEMBER FOR EXPENSES INCURRED IN RELOCATING HIS HOUSEHOLD UPON A PERMANENT CHANGE OF STATION. PARAGRAPH M9004-2 OF THE REGULATIONS STATES THAT THE ALLOWANCE WILL NOT BE PAYABLE UNDER CERTAIN CONDITIONS, INCLUDING THOSE OUTLINED IN PARAGRAPH M7000-12 OF THE REGULATIONS.

THE RIGHT TO TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE AND THE RIGHT TO A DISLOCATION ALLOWANCE, INCIDENT TO AN ORDERED PERMANENT CHANGE OF STATION, ARE SUBJECT TO THE LIMITATION THAT THE TRAVEL BE PERFORMED FOR THE PURPOSE OF ESTABLISHING A RESIDENCE OR HOUSEHOLD AT THE PLACE TO WHICH THE TRAVEL IS PERFORMED. TRAVEL OF DEPENDENTS FOR PLEASURE TRIPS OR FOR THE PURPOSE OF VISITING THE MEMBER OR OTHER RELATIVES LONG HAS BEEN HELD NOT TO BE INCIDENT TO A PERMANENT CHANGE OF STATION. SEE 33 COMP. GEN. 431 (1954), COPY ENCLOSED.

YOU POINT OUT THAT BLACK'S LAW DICTIONARY, FOURTH EDITION, DEFINES RESIDENCE AS "A FACTUAL PLACE OF ABODE," AND YOU SAY THAT PERTH WAS THE PLACE WHERE YOUR WIFE RESIDED FOR TWO AND A HALF MONTHS. THE TERM "ABODE," HOWEVER, IS GENERALLY USED TO INDICATE ONE'S HOME, DWELLING PLACE OR RESIDENCE.

WHILE RESIDENCE HAS BEEN VARIOUSLY DEFINED, IT GENERALLY IS USED TO INDICATE THE PLACE WHERE A PERSON MAKES HIS HOME, OR WHERE HE DWELLS PERMANENTLY OR FOR AN EXTENDED PERIOD OF TIME. MERE PRESENCE AT A LOCATION FOR A SHORT VISIT, WITH NO INTENTION OF RESIDING THERE FOR A LONGER PERIOD, DOES NOT, IN OUR OPINION, ESTABLISH A PLACE OF RESIDENCE WITHIN THE CONTEMPLATION OF THE LAW AND REGULATIONS PROVIDING FOR TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE IN CONNECTION WITH THE RELOCATION OF THEIR HOUSEHOLD INCIDENT TO A PERMANENT CHANGE OF STATION.

AT THE TIME OF YOUR ARRIVAL IN VIETNAM, IT WAS APPARENT THAT AT THE END OF YOUR TOUR OF DUTY THERE IN JUNE 1969 YOU WOULD BE REASSIGNED TO A NEW PERMANENT DUTY STATION OUTSIDE THAT AREA, ALTHOUGH ITS SPECIFIC LOCATION WAS UNKNOWN. THE RECORD SHOWS THAT IN A LETTER DATED MARCH 8, 1969, TO THE CHIEF OF NAVAL PERSONNEL, YOU STATED THAT YOUR ROTATION DATE FROM YOUR ASSIGNMENT WAS JUNE 23, 1969, AND REQUESTED PERMISSION TO VISIT MALAYSIA, SINGAPORE, THE PHILIPPINES, GUAM, AUSTRALIA AND NEW ZEALAND. BY AIR MAIL LETTER DATED MARCH 20, 1969, THE CHIEF OF NAVAL PERSONNEL GRANTED PERMISSION FOR YOU TO VISIT THESE PLACES IN A LEAVE STATUS DURING JUNE, JULY AND AUGUST 1969.

SHORTLY AFTER PERMISSION WAS GRANTED FOR YOU TO VISIT SUCH PLACES FOLLOWING YOUR DUTY IN VIETNAM, AND WITH ONLY ABOUT TWO MONTHS REMAINING BEFORE YOUR ROTATION DATE, YOUR WIFE DEPARTED FROM ARLINGTON, VIRGINIA, FOR THE HOME OF HER PARENTS IN BRENTWOOD, AUSTRALIA. THESE ARE FACTORS TO BE CONSIDERED IN DETERMINING WHETHER OR NOT SUCH TRAVEL WAS IN CONNECTION WITH A VISIT. ALSO, WHILE THERE IS NO MINIMUM TIME REQUIRED TO ESTABLISH A RESIDENCE, A PLANNED STAY OF SHORT DURATION WITH RELATIVES IS INDICATIVE OF A VISIT, RATHER THAN OF THE ESTABLISHMENT OF A HOUSEHOLD.

AS FAR AS THE RECORD SHOWS, YOUR WIFE, AN AUSTRALIAN CITIZEN, DID NOT SET UP HER OWN HOUSEHOLD BUT LIVED WITH HER PARENTS AT BRENTWOOD, AUSTRALIA. YOUR HOUSEHOLD GOODS WHICH WERE STORED IN THE UNITED STATES, APPARENTLY WERE NOT SHIPPED TO AUSTRALIA BUT WERE LATER TRANSPORTED TO ROTA, SPAIN. AFTER JOINING YOUR WIFE IN AUSTRALIA, YOU RETURNED TO THE UNITED STATES VIA NEW ZEALAND AND THEN PROCEEDED TO ROTA WHERE YOU HAVE RESIDED TOGETHER.

ON THE RECORD BEFORE US, YOU DID NOT RELOCATE YOUR HOUSEHOLD IN AUSTRALIA AND WE MAY NOT CONCLUDE THAT YOUR WIFE TRAVELED FROM THE UNITED STATES TO AUSTRALIA FOR OTHER THAN A VISIT THERE DURING THE SHORT TIME NECESSARY FOR YOU TO COMPLETE YOUR ASSIGNMENT IN VIETNAM AND WHILE WAITING TO ACCOMPANY YOU TO YOUR NEXT DUTY STATION. AS THE RECORD DOES NOT ESTABLISH THAT YOUR DEPENDENT'S TRAVEL TO AUSTRALIA WAS PERFORMED WITH THE INTENTION OF ESTABLISHING A RESIDENCE THERE INCIDENT TO YOUR ASSIGNMENT TO VIETNAM, REIMBURSEMENT FROM GOVERNMENT FUNDS FOR HER TRAVEL FROM WASHINGTON, D. C., TO PORTLAND, OREGON, AND THE PAYMENT OF A DISLOCATION ALLOWANCE ARE NOT AUTHORIZED. THE COUNSEL, WHICH YOU SAY WAS GIVEN YOU SUBSEQUENT TO NOTIFICATION OF YOUR VIETNAM ASSIGNMENT, DOES NOT, IN OUR OPINION, AFFORD A LEGAL BASIS FOR THE PAYMENT OF YOUR CLAIM.

UPON REVIEW, OFFICE SETTLEMENT OF MARCH 3, 1970, WHICH DISALLOWED YOUR CLAIM IS SUSTAINED.