B-63842, MAR. 21, 1956

B-63842, MAR. 21, 1956

TO LIEUTENANT COLONEL JAMES K. BRYAN, USAF:

REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 16, 1956, REQUESTING RECONSIDERATION OF SETTLEMENT DATED DECEMBER 12, 1955, OF OUR CLAIMS DIVISION, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT OF THE COST OF TRANSPORTATION OF YOUR MINOR DAUGHTER FRANCES A. BRYAN, FROM BERKELEY, CALIFORNIA, TO SCOTT AIR FORCE BASE, ILLINOIS.

IN THE LETTER OF JANUARY 16, 1956, YOU SAY THAT YOUR DAUGHTER, WHO LIVED IN BERKELEY, CALIFORNIA, WITH HER MOTHER, HER LEGAL GUARDIAN, TRAVELED TO SCOTT AIR FORCE BASE, ILLINOIS, ON JUNE 15, 1954, TO MAKE HER PERMANENT RESIDENCE WITH YOU, AND THAT SHE IS NOW RESIDING WITH YOU AT YOUR OVERSEAS STATION. YOU ALSO SAY THAT SUCH TRAVEL WAS WITH THE FULL CONSENT OF THE MOTHER AND IN ACCORDANCE WITH CALIFORNIA LAW PROVIDING THAT A MINOR CHILD UPON REACHING THE AGE OF 14 MAY SELECT THE PARENT WITH WHOM IT DESIRES TO ESTABLISH PERMANENT RESIDENCE.

IT APPEARS THAT IN 1948 IN DIVORCE PROCEEDINGS BETWEEN YOU AND THE MOTHER IN THE STATE OF CALIFORNIA, THE MOTHER WAS AWARDED THE CUSTODY, CARE AND CONTROL OF YOUR DAUGHTER, FRANCES, AS WELL AS THAT OF YOUR TWO OTHER MINOR CHILDREN. BY ORDERS DATED OCTOBER 24, 1949, MAXWELL AIR FORCE BASE, ALABAMA, YOU WERE ORDERED TO MAKE A PERMANENT CHANGE OF STATION FROM THAT STATION TO ELMENDORF AIR FORCE BASE, ALASKA. BY CHANGE OF STATION ORDERS DATED FEBRUARY 15, 1952, YOU WERE ORDERED TO MAKE A PERMANENT CHANGE OF STATION FROM THE LATTER STATION TO SCOTT AIR FORCE BASE, ILLINOIS. YOUR CLAIM IS ASSERTED ON THE BASIS OF THE CHANGE OF STATION ORDERS OF FEBRUARY 15, 1952.

IT APPEARS THAT AT THE TIME YOU WERE ORDERED TO ALASKA IN 1949 YOUR DAUGHTER WAS IN THE CARE, CUSTODY AND CONTROL OF HER MOTHER WHO WAS RESIDING IN BERKELEY, CALIFORNIA, AND THAT THE DAUGHTER CONTINUED TO RESIDE THERE UNTIL SHE JOINED YOU IN JUNE 1954.

SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 814, PROVIDES THAT TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE UPON A MEMBER'S ORDERED CHANGE OF PERMANENT STATION SHALL BE UNDER SUCH CONDITIONS AND LIMITATIONS, FOR SUCH RANKS, GRADES, OR RATINGS, AND TO AND FROM SUCH LOCATIONS AS THE SECRETARIES CONCERNED MAY PRESCRIBE. PARAGRAPH 7005 OF THE JOINT TRAVEL REGULATIONS, ISSUED PURSUANT TO SECTION 303 (C) OF THE 1949 ACT, PROVIDES THAT WHEN A MEMBER IS ORDERED ON A PERMANENT CHANGE OF STATION TO A PLACE WHERE HIS DEPENDENTS ARE NOT PERMITTED FOR MILITARY REASONS TO ACCOMPANY HIM, THEIR TRANSPORTATION IS AUTHORIZED AT GOVERNMENT EXPENSE TO A DESIGNATED PLACE, AND FROM SUCH DESIGNATED PLACE TO HIS DUTY STATION WHEN THE RESTRICTION IS REMOVED AT THAT STATION, OR WHEN HE IS TRANSFERRED TO A DUTY STATION TO WHICH THE MOVEMENT OF DEPENDENTS IS AUTHORIZED. PRIOR SIMILAR PROVISIONS WERE CONTAINED IN SECTION 4 OF THE ACT OF JUNE 5, 1942, 56 STAT. 315. SUCH PROVISIONS CLEARLY CONTEMPLATE THAT TRANSPORTATION WILL BE FURNISHED FOR DEPENDENTS ONLY WHERE THE TRAVEL INVOLVED REASONABLY MAY BE VIEWED AS INCIDENT TO THE MEMBER'S TRANSFER OR ASSIGNMENT TO DUTY UNDER THE CONDITIONS SPECIFIED.

SINCE YOU DID NOT HAVE THE CUSTODY OF YOUR MINOR DAUGHTER WHEN TRANSFERRED TO ALASKA OR WHEN SUBSEQUENTLY TRANSFERRED TO SCOTT AIR FORCE BASE IN FEBRUARY 1952--- THE CUSTODY AND CONTROL OF THE CHILD HAVING BEEN AWARDED TO THE MOTHER UNDER THE TERMS OF THE DIVORCE DECREE -- THE TRAVEL PERFORMED BY THE CHILD TO YOUR STATION AT SCOTT AIR FORCE BASE, MORE THAN TWO YEARS AFTER YOUR TRANSFER THERE, MAY NOT BE CONSIDERED AS HAVING BEEN PERFORMED INCIDENT TO YOUR ASSIGNMENT TO THAT STATION, IT BEING EVIDENT THAT THE CHILD'S PLACE OF ABODE WAS IN NOWISE AFFECTED BY YOUR CHANGE OF STATION. ON THE CONTRARY, IT WOULD APPEAR THAT SUCH TRAVEL WAS PERFORMED FOR PERSONAL REASONS AS THE RESULT OF AN AGREEMENT BETWEEN YOU AND YOUR FORMER WIFE. ACCORDINGLY, THE SETTLEMENT OF DECEMBER 12, 1955, IS SUSTAINED.