B-218665, SEP 17, 1985

B-218665, SEP 17, 1985

TRANSPORTATION - DEPENDENTS - MILITARY PERSONNEL - CHILDREN - MEMBER'S DUTY STATION CHANGE DURING CHILDREN'S VISIT DIGEST: A NAVY MEMBER WHO WAS STATIONED IN TUNISIA WAS RETURNED TO THE UNITED STATES UNDER PERMANENT CHANGE-OF-STATION ORDERS. TRAVEL WAS AUTHORIZED FOR HIS DEPENDENTS. HE MAY NOT BE REIMBURSED FOR THE TRAVEL OF HIS STEPSON, RESIDING AND ATTENDING COLLEGE IN TENNESSEE, WHO WAS VISITING THE FAMILY IN TUNISIA AND RETURNED TO TENNESSEE TO RESUME HIS STUDIES AT THE TIME THE MEMBER RECEIVED THE CHANGE-OF-STATION ORDERS. THE STEPSON'S TRAVEL EITHER TO OR FROM THE DUTY STATION OF THE MEMBER IS NOT AUTHORIZED UNDER THESE CIRCUMSTANCES.

KENNETH M. KIRKPATRICK, USN (RETIRED):

THIS ACTION IS IN RESPONSE TO AN APPEAL BY COMMANDER KENNETH M. KIRKPATRICK, USN (RETIRED), FROM OUR CLAIMS GROUP'S JUNE 21, 1984 DENIAL OF HIS CLAIM FOR TRAVEL EXPENSES FOR HIS STEPSON PURSUANT TO COMMANDER KIRKPATRICK'S PERMANENT CHANGE OF STATION FROM TUNISIA TO THE UNITED STATES. WE FIND THAT THE TRAVEL EXPENSES WERE PROPERLY DISALLOWED.

BACKGROUND

IT APPEARS THAT COMMANDER KIRKPATRICK WAS TRANSFERRED ON A PERMANENT CHANGE OF STATION TO TUNIS, TUNISIA, IN FEBRUARY 1979. HIS WIFE, DAUGHTER, AND STEPSON, FRANKLIN E. CATER III, WERE AUTHORIZED TRANSPORTATION EXPENSES AND ACCOMPANIED HIM TO HIS NEW DUTY STATION. AUGUST 1980, FRANKLIN CATER LEFT TUNISIA TO ATTEND THE UNIVERSITY OF TENNESSEE AT CHATTANOOGA, TENNESSEE. IT APPEARS THAT FRANKLIN CATER TRAVELED TO TUNISIA DURING SCHOOL HOLIDAYS TO VISIT HIS FAMILY; HOWEVER, THE MAJORITY OF THE TIME HE RESIDED IN TENNESSEE. THESE TRIPS WERE VIA SPACE AVAILABLE GOVERNMENT FLIGHTS OR AT COMMANDER KIRKPATRICK'S PERSONAL EXPENSE.

IN JANUARY 1982, COMMANDER KIRKPATRICK WAS ISSUED PERMANENT CHANGE OF- STATION ORDERS RETURNING HIM TO THE UNITED STATES WITH TEMPORARY ADDITIONAL DUTY AT WASHINGTON, D.C., FOR RETIREMENT PROCESSING. THE ORDERS INCLUDED AUTHORIZATION FOR TRAVEL OF HIS THREE DEPENDENTS. FEBRUARY 1982 HE WAS RELIEVED OF ACTIVE DUTY INCIDENT TO RETIREMENT. COMMANDER KIRKPATRICK'S WIFE AND DAUGHTER TRAVELED WITH HIM IN FEBRUARY 1982 TO WASHINGTON, D.C., AND THEN TO HIS HOME OF SELECTION UPON RETIREMENT, CLEVELAND, TENNESSEE.

FRANKLIN CATER, HOWEVER, DID NOT ACCOMPANY THE FAMILY. HE HAD TRAVELED TO TUNISIA IN DECEMBER 1981 TO SPEND THE HOLIDAYS WITH THE FAMILY. COMMANDER KIRKPATRICK ACKNOWLEDGES THAT THE TRIP WAS A VISIT. IN EARLY JANUARY, APPARENTLY AFTER COMMANDER KIRKPATRICK HAD BEEN NOTIFIED THAT HE WOULD BE RECEIVING RETIREMENT ORDERS, FRANKLIN LEFT TUNISIA TO RETURN TO CHATTANOOGA, TENNESSEE, TO RESUME HIS COLLEGE STUDIES. COMMANDER KIRKPATRICK CLAIMS THE COST OF FRANKLIN'S RETURN TICKET TO TENNESSEE AS TRAVEL EXPENSES FOR HIS DEPENDENT STEPSON, PURSUANT TO HIS PERMANENT CHANGE OF STATION (RETIREMENT).

THE CLAIM WAS DENIED BY THE NAVY SINCE THE JOINT TRAVEL REGULATIONS IN EFFECT AT THE TIME PROHIBITED PAYMENT OF TRAVEL FOR DEPENDENTS FOR PLEASURE TRIPS OR FOR PURPOSES OTHER THAN WITH THE INTENT TO CHANGE THE DEPENDENT'S RESIDENCE. OUR CLAIMS GROUP ALSO DENIED THE CLAIM ON A SIMILAR BASIS. COMMANDER KIRKPATRICK, HOWEVER, ARGUES THAT FRANKLIN CATER'S LEGAL RESIDENCE WAS TUNISIA, WHERE HE HAD ORIGINALLY TRAVELED IN 1979 AT GOVERNMENT EXPENSE WITH HIS FAMILY, RATHER THAN TENNESSEE, AND THAT THE TRIP FROM TUNISIA IN JANUARY 1982 WAS PERFORMED FOR THE PURPOSE OF ESTABLISHING A NEW RESIDENCE PURSUANT TO COMMANDER KIRKPATRICK'S CHANGE OF STATION. COMMANDER KIRKPATRICK ASSERTS THAT THE GOVERNMENT PROVIDED TRANSPORTATION TO TUNISIA FOR FRANKLIN AND BY NOT REIMBURSING HIS TRANSPORTATION TO THE UNITED STATES HAS, IN EFFECT, "LEFT" FRANKLIN IN TUNISIA. HE ARGUES THAT IF FRANKLIN HAD REMAINED WITH THE FAMILY AND GONE TO COLLEGE LOCALLY, HE WOULD HAVE BEEN ELIGIBLE FOR TRANSPORTATION BACK TO THE UNITED STATES WITH THE FAMILY UPON COMMANDER KIRKPATRICK'S RETIREMENT.

ANALYSIS AND CONCLUSION

AUTHORITY FOR TRANSPORTATION OF A UNIFORMED SERVICE MEMBER'S DEPENDENTS PURSUANT TO A PERMANENT CHANGE OF STATION IS FOUND AT 37 U.S.C. SEC. 406. REGULATIONS PROMULGATED PURSUANT TO THAT AUTHORITY ARE FOUND IN VOLUME 1 OF THE JOINT TRAVEL REGULATIONS (1 JTR). THE REGULATIONS IN EFFECT AT THE TIME OF THE TRAVEL IN THIS CASE PROVIDE THAT TRANSPORTATION FOR DEPENDENTS AT GOVERNMENT EXPENSE WAS AVAILABLE INCIDENT TO THE PERMANENT CHANGE OF STATION OF THE MEMBER (INCLUDING TRAVEL TO HOME OF SELECTION UPON RETIREMENT), BUT THE "TRAVEL EXPENSE OF DEPENDENTS FOR PLEASURE TRIPS OR FOR PURPOSES OTHER THAN WITH INTENT TO CHANGE THE DEPENDENT'S RESIDENCE AS AUTHORIZED BY THIS VOLUME MAY NOT BE CONSIDERED AN OBLIGATION OF THE GOVERNMENT." 1 JTR M7000(13), CH. 340, JUNE 1, 1981.

WE HAVE HELD CONSISTENTLY THAT TRAVEL OF DEPENDENTS MAY NOT BE CONSIDERED TO BE WITHIN THE INTENT AND PURPOSE OF THE LAW AND REGULATIONS AUTHORIZING SUCH TRAVEL UNLESS THE TRAVEL ACTUALLY IS PERFORMED FOR THE PURPOSE OF A CHANGE OF STATION OF THE MEMBER. REIMBURSEMENT FOR TRAVEL OF DEPENDENTS FOR OTHER THAN SUCH PURPOSE, OR FOR VISITS OR PLEASURE TRIPS IS NOT AUTHORIZED. 53 COMP.GEN. 667 (1974); 33 COMP.GEN. 431 (1954). WE HAVE SPECIFICALLY HELD THAT THE TRAVEL DURING A SCHOOL BREAK OR RECESS TO A MEMBER'S NEW DUTY STATION OVERSEAS BY A DEPENDENT WHO IS ATTENDING AN EDUCATIONAL INSTITUTION IN THE UNITED STATES IS NOT TRAVEL FOR THE PURPOSE OF THE DEPENDENT ESTABLISHING A RESIDENCE WITH THE MEMBER, BUT IS IN THE NATURE OF A VISIT. COLONEL JAMES ROCHE, B-198961, MARCH 18, 1981, AFFIRMED IN B-198961, OCTOBER 4, 1984; AND MAJOR GENERAL EARL G. PECK, B-207834, DECEMBER 9, 1982.

ALSO, WE HAVE SPECIFICALLY REJECTED THE SUGGESTION THAT, WITH REGARD TO DEPENDENT TRAVEL, A STUDENT DEPENDENT'S RESIDENCE SHOULD ALWAYS BE CONSIDERED AS WITH THE FAMILY. B-198961, OCTOBER 4, 1984, SUPRA. WE POINTED OUT THAT THE STATUTORY AND REGULATORY PROVISIONS DISCUSSED CLEARLY DO NOT AUTHORIZE DEPENDENT TRAVEL INCIDENT TO A PERMANENT CHANGE OF STATION FOR PURPOSES OTHER THAN ESTABLISHING A RESIDENCE AT THE NEW DUTY STATION. THE PURPOSE OF TRAVEL IN THIS CONTEXT INVOLVES A QUESTION OF INTENT THAT MUST BE DETERMINED IN LIGHT OF THE FACTS AND CIRCUMSTANCES IN EACH CASE.

IN THE PRESENT CASE, IN SPITE OF COMMANDER KIRKPATRICK'S ASSERTION THAT FRANKLIN MAINTAINED "RESIDENCE" IN TUNISIA, THE RECORD SHOWS THAT FRANKLIN GAVE UP THAT RESIDENCE WHEN HE VOLUNTARILY DEPARTED FOR TENNESSEE IN 1980 TO ATTEND COLLEGE. THUS, THE TRIPS HE MADE BETWEEN TENNESSEE AND TUNISIA THEREAFTER, INCLUDING THE RETURN TRIP TO TENNESSEE IN JANUARY 1982, WERE MADE TO VISIT THE FAMILY. THEREFORE, UNDER THE DECISIONS AND REGULATIONS DISCUSSED ABOVE, FRANKLIN CATER'S RETURN TO TENNESSEE IN JANUARY 1982 TO RESUME HIS COLLEGE STUDIES MAY NOT BE CONSIDERED AS TRAVEL INCIDENT TO COMMANDER KIRKPATRICK'S CHANGE OF DUTY STATION.

AS COMMANDER KIRKPATRICK INDICATES, HAD FRANKLIN REMAINED OVERSEAS WITH HIS FAMILY INSTEAD OF RETURNING TO THE UNITED STATES IN 1980, HE PROBABLY WOULD HAVE BEEN ELIGIBLE FOR TRANSPORTATION AT GOVERNMENT EXPENSE FROM TUNISIA TO TENNESSEE WHEN COMMANDER KIRKPATRICK WAS TRANSFERRED IN 1982. THE TRANSPORTATION OF MEMBERS' DEPENDENTS, HOWEVER, IS AUTHORIZED BY LAW AND REGULATIONS ONLY UNDER CERTAIN CONDITIONS. COLONEL HARRIS J. TAYLOR, 57 COMP.GEN. 343 (1978). AS IS POINTED OUT ABOVE, THE TRAVEL IN QUESTION HERE IS NOT A TYPE OF TRAVEL AUTHORIZED AT GOVERNMENT EXPENSE. THUS, COMMANDER KIRKPATRICK MAY NOT BE REIMBURSED FOR THE TRAVEL, AND THE CLAIMS GROUP'S JUNE 21, 1984 DISALLOWANCE OF THE CLAIM IS SUSTAINED.