B-175552, MAY 9, 1972, 51 COMP GEN 716

B-175552: May 9, 1972

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TRANSPORTATION - DEPENDENTS - MILITARY PERSONNEL - CHILDREN - MEMBER'S DUTY STATION CHANGE DURING CHILDREN'S VISIT A DIVORCED NAVAL OFFICER WHOSE FORMER WIFE WAS GIVEN LEGAL CUSTODY. CONTROL OF THEIR CHILDREN UNDER A COURT ORDER PERMITTING THEM TO VISIT WITH HIM DURING THEIR SUMMER VACATION IS CONSIDERED TO BE A MEMBER WITHOUT DEPENDENTS WITHIN THE MEANING OF PARAGRAPH M9001-2 OF THE JOINT TRAVEL REGULATIONS AND. THE FACT THAT THE CHILDREN ACCOMPANIED THE OFFICER WHEN HIS PERMANENT DUTY STATION WAS CHANGED DURING THEIR VISIT DOES NOT ENTITLE HIM TO REIMBURSEMENT FOR THEIR TRANSPORTATION OR TO A DISLOCATION ALLOWANCE FOR THE CHILDREN UNDER M9004-2-1. SINCE THE TRAVEL OF THE CHILDREN WAS NOT TO ESTABLISH A RESIDENCE AND NEITHER THEIR VISITING STATUS NOR THEIR RESIDENCE WAS CHANGED.

B-175552, MAY 9, 1972, 51 COMP GEN 716

TRANSPORTATION - DEPENDENTS - MILITARY PERSONNEL - CHILDREN - MEMBER'S DUTY STATION CHANGE DURING CHILDREN'S VISIT A DIVORCED NAVAL OFFICER WHOSE FORMER WIFE WAS GIVEN LEGAL CUSTODY, CARE, AND CONTROL OF THEIR CHILDREN UNDER A COURT ORDER PERMITTING THEM TO VISIT WITH HIM DURING THEIR SUMMER VACATION IS CONSIDERED TO BE A MEMBER WITHOUT DEPENDENTS WITHIN THE MEANING OF PARAGRAPH M9001-2 OF THE JOINT TRAVEL REGULATIONS AND, THEREFORE, THE FACT THAT THE CHILDREN ACCOMPANIED THE OFFICER WHEN HIS PERMANENT DUTY STATION WAS CHANGED DURING THEIR VISIT DOES NOT ENTITLE HIM TO REIMBURSEMENT FOR THEIR TRANSPORTATION OR TO A DISLOCATION ALLOWANCE FOR THE CHILDREN UNDER M9004-2-1, SINCE THE TRAVEL OF THE CHILDREN WAS NOT TO ESTABLISH A RESIDENCE AND NEITHER THEIR VISITING STATUS NOR THEIR RESIDENCE WAS CHANGED. HOWEVER, SINCE THE OFFICER WAS NOT ASSIGNED PUBLIC QUARTERS HE IS ENTITLED PURSUANT TO 37 U.S.C. 407 TO A DISLOCATION ALLOWANCE AS A MEMBER WITHOUT DEPENDENTS EQUAL TO HIS QUARTERS ALLOWANCE FOR 1 MONTH.

TO LIEUTENANT (JG) J. GLASS, DEPARTMENT OF THE NAVY, MAY 9, 1972:

THIS REFERS TO YOUR LETTER DATED DECEMBER 10, 1971, WHICH WAS FORWARDED HERE BY 4TH ENDORSEMENT, DATED MARCH 23, 1972, OF THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE, REQUESTING AN ADVANCE DECISION AS TO THE LEGALITY OF PAYMENT OF DEPENDENT TRAVEL AND DISLOCATION ALLOWANCE TO COMMANDER LLOYD W. STETZER, MC, USN, UNDER THE DESCRIBED CIRCUMSTANCES. YOUR REQUEST HAS BEEN ASSIGNED PDTATAC CONTROL NO. 72-12.

BUPERS ORDER 125897, DATED APRIL 12, 1971, ORDERED COMMANDER STETZER WHEN DIRECTED IN JULY 1971 TO PROCEED FROM NAVAL AIR STATION, MEMPHIS, TENN., AND REPORT TO NAVAL STATION, KEY WEST, FLA., FOR DUTY. SECOND ENDORSEMENT, DATED JULY 2, 1971, DIRECTED HIM TO DETACH JULY 30, 1971, AND CARRY OUT HIS BASIC ORDERS. THIRD ENDORSEMENT, DATED AUGUST 9, 1971, SHOWS THAT HE REPORTED AT THE NAVAL STATION, KEY WEST, FLA., AUGUST 7, 1971, FOR DUTY.

YOU SAY THAT ON AUGUST 9, 1971, PAYMENT OF DEPENDENT TRAVEL AND DISLOCATION ALLOWANCE WAS MADE TO COMMANDER STETZER ON BEHALF OF THREE SONS, MICHAEL, ERIC AND SCOTT AND THAT HIS PRESENT WIFE, COMMANDER GRACE STETZER, RECEIVED MILEAGE AND DISLOCATION ALLOWANCE (SINGLE) IN HER OWN RIGHT. ALSO YOU SAY THAT A PERMANENT CHANGE OF STATION WAS EFFECTED FROM NAVAL AIR STATION, MEMPHIS, TENN., TO NAVAL HOSPITAL, KEY WEST, FLA., AND THAT A PERMANENT RESIDENCE WAS ESTABLISHED IN KEY WEST. PAYMENT OF DEPENDENTS' TRAVEL AND DISLOCATION ALLOWANCE FOR COMMANDER STETZER'S THREE SONS WAS SUBSEQUENTLY DISALLOWED, APPARENTLY HIS PAY RECORD HAS BEEN CHECKED THE AMOUNTS PAID, AND HE HAS RESUBMITTED A CLAIM FOR PAYMENT.

YOU ALSO SAY THAT DEPENDENCY CERTIFICATE (NAVCOMPT 1040) FILED OCTOBER 1, 1971, SHOWS THAT COMMANDER STETZER WAS DIVORCED IN CRAIGHEAD COUNTY, ARKANSAS, ON JULY 2, 1963, AND THAT HIS FORMER WIFE, MRS. MARIE JO STETZER, WAS GIVEN LEGAL CUSTODY, CARE AND CONTROL OF THE CHILDREN. COPY OF A COURT ORDER FILED APRIL 6, 1970, IN THE CASE OF MARIE JO STETZER V. LLOYD W. STETZER, NO. 13087, DECREED, AMONG OTHER THINGS, THAT COMMANDER STETZER IS TO HAVE THE CUSTODY AND THE RIGHT TO HAVE THE CHILDREN VISIT HIM FOR THE FIRST 2 MONTHS OF THEIR SUMMER VACATION, RATHER THAN FOR THEIR ENTIRE SUMMER VACATION, AS ORIGINALLY ORDERED AND DECREED.

SINCE COMMANDER STETZER DOES NOT HAVE CUSTODY OF HIS CHILDREN FOR A MAJOR PORTION OF THE YEAR, YOU EXPRESSED DOUBT AS TO WHETHER THE 2 MONTH PERIOD OF CUSTODY CAN BE CONSIDERED IN ESTABLISHING ENTITLEMENT FOR DEPENDENTS' TRAVEL AND DISLOCATION ALLOWANCE.

SECTION 406, TITLE 37 U.S. CODE, PROVIDES, IN PART, THAT A MEMBER OF A UNIFORMED SERVICE WHO IS ORDERED TO MAKE A CHANGE OF PERMANENT STATION IS ENTITLED TO TRANSPORTATION IN KIND FOR HIS DEPENDENTS, TO REIMBURSEMENT THEREOF, OR TO A MONETARY ALLOWANCE IN PLACE OF TRANSPORTATION IN KIND, SUBJECT TO SUCH CONDITIONS AND LIMITATIONS AS ARE PRESCRIBED BY THE SECRETARIES CONCERNED. PURSUANT TO 37 U.S.C. 407, UNDER REGULATIONS PRESCRIBED BY THE SECRETARY CONCERNED, A MEMBER OF A UNIFORMED SERVICE WHOSE DEPENDENTS MAKE AN AUTHORIZED MOVE IN CONNECTION WITH HIS CHANGE OF PERMANENT STATION IS ENTITLED TO A DISLOCATION ALLOWANCE EQUAL TO HIS BASIC ALLOWANCE FOR QUARTERS FOR 1 MONTH AS PROVIDED FOR A MEMBER OF HIS PAY GRADE AND DEPENDENCY STATUS IN 37 U.S.C. 403.

A MEMBER WITHOUT DEPENDENTS WHO IS TRANSFERRED TO A PERMANENT STATION WHERE HE IS NOT ASSIGNED GOVERNMENT QUARTERS IS ENTITLED TO A DISLOCATION ALLOWANCE EQUAL TO HIS QUARTERS ALLOWANCE FOR 1 MONTH. FOR THE PURPOSES OF SECTION 407, IT PROVIDES THAT A MEMBER WHOSE DEPENDENTS MAY NOT MAKE AN AUTHORIZED MOVE IN CONNECTION WITH HIS CHANGE OF PERMANENT STATION IS CONSIDERED A MEMBER WITHOUT DEPENDENTS.

THE REGULATIONS AUTHORIZED TO BE PRESCRIBED ARE CONTAINED IN THE JOINT TRAVEL REGULATIONS, VOLUME 1. PARAGRAPH M7000 OF THOSE REGULATIONS PROVIDES THAT, OTHER THAN FOR SPECIFICALLY ENUMERATED EXCEPTIONS, MEMBERS OF THE UNIFORMED SERVICES ARE ENTITLED 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 IN THE REGULATIONS. AMONG THE EXCEPTIONS, ITEM 12 PROVIDES THAT MEMBERS OF THE UNIFORMED SERVICES ARE NOT ENTITLED TO REIMBURSEMENT 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 THAT TRAVEL EXPENSES OF DEPENDENTS FOR A PLEASURE TRIP OR FOR PURPOSES OTHER THAN WITH THE INTENT TO CHANGE THE DEPENDENTS' RESIDENCE, AS AUTHORIZED IN THE REGULATIONS, MAY NOT BE CONSIDERED AN OBLIGATION OF THE GOVERNMENT.

PARAGRAPH M9001-2 PROVIDES THAT THE TERM "MEMBER WITHOUT DEPENDENTS" MEANS A MEMBER, REGARDLESS OF PAY GRADE, WHO HAS NO DEPENDENTS OR WHO IS NOT ENTITLED TO TRANSPORTATION OF DEPENDENTS UNDER THE PROVISIONS OF PARAGRAPH M7000 IN CONNECTION WITH A CHANGE OF PERMANENT STATION. PARAGRAPH M9004-2-1 SPECIFICALLY PROVIDES THAT THE DISLOCATION ALLOWANCE IS NOT PAYABLE TO A "MEMBER WITH DEPENDENTS" IN CONNECTION WITH PERMANENT CHANGE-OF-STATION TRAVEL PERFORMED UNDER CONDITIONS UNDER WHICH COMMANDER STETZER'S CHILDREN PERFORMED TRAVEL TO HIS NEW PERMANENT STATION, NAMELY, FOR A PURPOSE OTHER THAN TO ESTABLISH THEIR PERMANENT RESIDENCE.

UNDER THE TERMS OF THE COURT ORDER COMMANDER STETZER'S CHILDREN WERE ONLY VISITING HIM IN JULY 1971 AT HIS OLD STATION, NAVAL AIR STATION, MEMPHIS, TENN. SUCH VISIT WAS NOT REQUIRED BUT WAS MERELY PERMITTED. HIS FORMER WIFE, MARIE JO STETZER, RETAINED LEGAL CUSTODY, CARE AND CONTROL OF THE CHILDREN EXCEPT FOR A SHORT VISIT WITH THEIR FATHER EACH SUMMER. WHILE IT MAY BE THAT COMMANDER STETZER IS OBLIGATED UNDER THE DIVORCE DECREE TO PAY CHILD SUPPORT AND WHILE THE CHILDREN ACTUALLY ACCOMPANIED HIM ON HIS CHANGE OF PERMANENT STATION, THE TRAVEL INVOLVED HAD NO EFFECT TO CHANGE THEIR VISITING STATUS TO A DEPENDENCY STATUS WITHIN THE MEANING OF 37 U.S.C. 406 AND 407, NOR DID THEY TRAVEL TO KEY WEST, FLORIDA, FOR THE PURPOSE OF CHANGING THEIR RESIDENCE FROM THAT OF THEIR MOTHER. THE TRAVEL INVOLVED WAS ONLY A PART OF THE PERMITTED VISIT FOR WHICH TRAVEL REIMBURSEMENT IS NOT AUTHORIZED UNDER THE REGULATIONS. LIKEWISE, THERE IS NO AUTHORITY FOR PAYMENT OF DISLOCATION ALLOWANCE AS A MEMBER WITH DEPENDENTS PURSUANT TO PARAGRAPH M9004-2-1, JOINT TRAVEL REGULATIONS.

HOWEVER, IT DOES NOT APPEAR THAT COMMANDER STETZER WAS ASSIGNED PUBLIC QUARTERS IN KEY WEST, FLA. SINCE HE COMES WITHIN THE DEFINITION OF A MEMBER WITHOUT DEPENDENTS CONTAINED IN PARAGRAPH M9001-2 HE IS ENTITLED TO DISLOCATION ALLOWANCE AS A MEMBER WITHOUT DEPENDENTS PROVIDED HE WAS NOT ASSIGNED PUBLIC QUARTERS. SEE B-164258, OCTOBER 25, 1968, COPY HEREWITH.

ACCORDINGLY, THE TRAVEL VOUCHER IS RETURNED AND MAY BE PAID ON THE BASIS ABOVE INDICATED IF OTHERWISE CORRECT.