B-198186.OM, NOV 19, 1980

B-198186.OM, NOV 19, 1980

SUBJECT: CLAIM OF JEFFREY L. SIMS FOR TRANSPORTATION EXPENSES FOR DEPENDENT TRAVEL TO DESIGNATED PLACE - Z-2818947 - B-198186-O.M.

ASSOCIATE DIRECTOR, FGMSD - CLAIMS GROUP (ROOM 5858):

RETURNED IS YOUR FILE Z-2818947. BY SETTLEMENT DATED MARCH 5, 1980, MR. SIMS' CLAIM FOR TRANSPORTATION EXPENSES FOR HIS DEPENDENT TO A DESIGNATED PLACE INCIDENT TO HIS ASSIGNMENT TO OKINAWA WHILE SERVING IN THE MARINE CORPS WAS DENIED. THE CLAIM MAY BE ALLOWED FOR THE FOLLOWING REASONS.

BY ORDERS ISSUED IN FEBRUARY 1978, SERGEANT SIMS WAS ASSIGNED BY PERMANENT CHANGE OF STATION FROM CHERRY POINT, NORTH CAROLINA, TO OKINAWA, JAPAN. THIS WAS AN UNACCOMPANIED TOUR WHICH PRECLUDED THE TRANSPORTATION OF HIS DEPENDENTS TO HIS NEW STATION AT GOVERNMENT EXPENSE.

ON THE BASIS OF THESE ORDERS HE PLACED SOME OF HIS HOUSEHOLD GOODS IN STORAGE, SHIPPED SOME TO OKINAWA AND SOME TO AMARILLO, TEXAS. COMMENCING ON JUNE 6, 1978, SERGEANT SIMS AND HIS WIFE LEFT CHERRY POINT, NORTH CAROLINA, AND TRAVELED BY PRIVATELY OWNED VEHICLE TO AMARILLO, TEXAS, AND FROM THERE TO SANTA CLARA, CALIFORNIA. SERGEANT SIMS DEPARTED FOR OKINAWA FROM CALIFORNIA AND HIS WIFE THEN RETURNED TO AMARILLO FOR APPROXIMATELY 20 DAYS. HIS WIFE THEN DEPARTED FROM AMARILLO FOR OKINAWA.

AFTER HIS WIFE'S ARRIVAL ON OKINAWA, SERGEANT SIMS SUBMITTED A TRAVEL VOUCHER CLAIMING MILEAGE FOR HIS WIFE'S TRAVEL FROM CHERRY POINT, NORTH CAROLINA, TO SANTA CLARA, CALIFORNIA, THE DESIGNATED PLACE WHERE HE WAS TO ESTABLISH A RESIDENCE FOR HIS DEPENDENT. THIS VOUCHER WAS PAID. HOWEVER, AS THE RESULT OF CERTAIN IRREGULARITIES AN INVESTIGATION WAS CONDUCTED AND A DETERMINATION MADE THAT THERE WAS NO INTENT TO ESTABLISH A RESIDENCE IN CALIFORNIA, WHICH RESULTED IN COLLECTION OF THE AMOUNT PAID FROM SERGEANT SIMS. IT WAS APPARENTLY THE VIEW OF THE MARINE CORPS THAT SINCE MRS. SIMS SPENT THE GREATER PORTION OF HER TIME IN AMARILLO THAT THIS SHOULD HAVE BEEN THE PLACE DESIGNATED BY SERGEANT SIMS RATHER THAN SANTA CLARA, AND THAT ANY CLAIM SUBMITTED BY HIM FOR MILEAGE FOR HIS DEPENDENT COULD NOT BE PAID.

SERGEANT SIMS STATES THAT HE WAS INFORMED AT CHERRY POINT THAT IF HIS WIFE WENT WITH HIM TO OKINAWA THE GOVERNMENT WOULD PAY HER TRANSPORTATION EXPENSES TO CALIFORNIA. HE ALSO SAYS THAT HE WAS TOLD THAT HIS WIFE COULD TRAVEL TO ANY PLACE IN THE UNITED STATES AND HE WOULD RECEIVE TRANSPORTATION ALLOWANCES.

UNDER THE PROVISIONS OF 37 U.S.C. 406, A MEMBER OF A UNIFORMED SERVICE 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 CONDITIONS AND LIMITATIONS AS THE SECRETARIES CONCERNED MAY PRESCRIBE. IMPLEMENTING REGULATIONS ARE CONTAINED IN VOLUME 1, JOINT TRAVEL REGULATIONS (1 JTR).

THE PERTINENT REGULATION IN EFFECT AT THE TIME FOR TRANSPORTATION OF DEPENDENTS WHEN A MEMBER IS TRANSFERRED TO A RESTRICTED DUTY STATION OUTSIDE THE UNITED STATES FROM A PERMANENT STATION INSIDE THE UNITED STATES WAS PARAGRAPH M7005-2 (CHANGE 283, SEPTEMBER 1, 1976). SUBPARAGRAPH 1 PROVIDES THAT TRANSPORTATION IS AUTHORIZED TO "ANY PLACE IN THE UNITED STATES THE MEMBER MAY DESIGNATE." SUBPARAGRAPH 2 AUTHORIZES THE TRANSPORTATION OF MEMBER'S DEPENDENTS 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." DESIGNATED PLACE UNDER 1 JTR M7001 IS A PLACE CERTIFIED BY THE MEMBER AS ONE WHERE HIS DEPENDENTS WILL IN FACT ESTABLISH A BONA FIDE RESIDENCE.

ON THE BASIS OF THE RECORD IT APPEARS THAT SERGEANT SIMS DID NOT INTEND TO ESTABLISH A RESIDENCE FOR HIS WIFE IN THE UNITED STATES BUT HAD INTENDED TO ESTABLISH A RESIDENCE FOR HER IN OKINAWA. FURTHERMORE, IT APPEARS THAT ALTHOUGH HE FILLED IN THE SPACE ON THE TRAVEL VOUCHER INDICATING THAT SANTA CLARA WAS WHERE HE INTENDED TO ESTABLISH A RESIDENCE FOR HIS WIFE, HE MERELY USED SANTA CLARA, CALIFORNIA, SINCE HIS INFORMATION INDICATED THAT THE GOVERNMENT WOULD PAY HIS WIFE'S TRANSPORTATION AS FAR AS CALIFORNIA. THUS, UNDER PARAGRAPH M7005-2.2, 1 JTR, IT WOULD APPEAR THAT SERGEANT SIMS WOULD BE ENTITLED TO A MILEAGE ALLOWANCE FOR HIS WIFE'S TRAVEL TO THE POINT OF DEPARTURE IN CALIFORNIA FOR OKINAWA.

WE NOTE THAT IN OUR DECISION B-195420, JANUARY 9, 1980, WHICH ALSO INVOLVED DEPENDENT TRAVEL TO OKINAWA, WE REFERRED TO MARINE CORPS ORDER (MCO) 1300.8K, ENCLOSURE (4), PARA. 1 (CHANGE 1, SEPTEMBER 25, 1975) IN EFFECT AT THE TIME, WHICH PROVIDES THAT A MEMBER ASSIGNED TO A FLEET MARINE FORCE UNIT IN THE WESTERN PACIFIC IS NOT AUTHORIZED TO BE ACCOMPANIED BY DEPENDENTS. DEPENDENTS OF MEMBERS SERVING A RESTRICTED TOUR OF DUTY MAY ONLY VISIT AS BONA FIDE TOURISTS AT THEIR OWN EXPENSE. THIS ORDER WAS A CONTRIBUTING FACTOR IN ARRIVING AT A DECISION WHICH CONCLUDED THAT WE COULD NOT AUTHORIZE PAYMENT FOR DEPENDENT TRAVEL TO LOS ANGELES, CALIFORNIA, THE POINT OF DEPARTURE FOR OKINAWA, SINCE THE ABOVE- MENTIONED ORDER PRECLUDED ESTABLISHING A RESIDENCE ON OKINAWA AND THE MEMBER HAD EXHAUSTED HIS ENTITLEMENT WHEN HIS DEPENDENTS TRAVELED TO ANOTHER LOCATION WITH THE INTENT TO ESTABLISH A RESIDENCE.

HOWEVER, IN THE INSTANT CASE IT APPEARS THAT SERGEANT SIMS WAS NOT INFORMED OF THIS RESTRICTION AND WAS IN FACT INFORMED THAT THE GOVERNMENT WOULD PAY DEPENDENT TRANSPORTATION COSTS TO THE POINT OF DEPARTURE FOR OKINAWA AS INDICATED IN PARAGRAPH M7005-2.2, 1 JTR.

ACCORDINGLY, ALTHOUGH THE MATTER IS NOT FREE FROM DOUBT, WE BELIEVE SERGEANT SIMS SHOULD BE PAID THE MILEAGE ALLOWANCE CLAIMED IF OTHERWISE CORRECT TO SANTA CLARA, CALIFORNIA, WHICH IS CLOSE TO SAN FRANCISCO THE ACTUAL POINT OF DEPARTURE FOR OKINAWA.

DIGEST

MEMBER WHOSE DEPENDENT TRAVELS TO SANTA CLARA, CALIFORNIA, PRIOR TO TRAVELING TO OKINAWA IS ENTITLED TO A MILEAGE ALLOWANCE FROM THE LAST DUTY STATION EVEN THOUGH RESIDENCE FOR DEPENDENT SHOULD NOT BE ESTABLISHED ON OKINAWA, A RESTRICTED STATION, SINCE INFORMATION GIVEN MEMBER WAS ERRONEOUS AND JOINT TRAVEL REGULATIONS INDICATE MILEAGE CAN BE PAID TO POINT OF DEPARTURE FOR DESIGNATED PLACE FOR ESTABLISHING A RESIDENCE FOR A DEPENDENT OUTSIDE THE UNITED STATES.