B-145865, JUN. 28, 1961

B-145865, JUN. 28, 1961

TO MR. T. A. MOORE, DISBURSING OFFICER, U.S. NAVAL AIR STATION, MIRAMAR:

BY FOURTH ENDORSEMENT DATED MAY 12, 1961, PDTATAC CONTROL NO. 61-6, THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE, FORWARDED HERE YOUR LETTER OF MARCH 9, 1961, WITH ENCLOSURES, REQUESTING A DECISION AS TO THE LEGALITY OF PAYMENT OF MONETARY ALLOWANCE IN LIEU OF TRANSPORTATION FOR DEPENDENTS (WIFE AND TWO CHILDREN) OF HUEY "C" JONES, CS2, 446 08 46, USN, AND DISLOCATION ALLOWANCE, INCIDENT TO HIS ORDERS OF MARCH 2, 1960, AND THE FURTHER PAYMENT OF LIKE ALLOWANCES INCIDENT TO HIS ORDERS OF JULY 22, 1960.

THE RECORD SHOWS THAT THE MEMBER WAS ASSIGNED TO DUTY AT FORMOSA. WHILE HIS DEPENDENTS WERE NOT PROHIBITED FROM ACCOMPANYING THE MEMBER TO FORMOSA, THEY DID NOT WISH TO MOVE THERE AND HE ELECTED TO MOVE THEM TO GILMER, TEXAS. BY ORDERS DATED MARCH 2, 1960, THE MEMBER WAS TRANSFERRED FROM FORMOSA, TO THE U.S.S. DENNIS J. BUCKLEY (DDR-808) AT LONG BEACH, CALIFORNIA, FOR DUTY, REPORTING MAY 2, 1960. HIS DEPENDENTS JOINED HIM AT LOS ANGELES, CALIFORNIA, ON JULY 15, 1960. BY ORDERS DATED JULY 22, 1960, THE MEMBER WAS TRANSFERRED TO DUTY AT THE NAVAL AIR STATION, MIRAMAR, SAN DIEGO, CALIFORNIA. EACH OF THESE ORDERS EFFECTED A PERMANENT CHANGE OF STATION. HIS CLAIM FOR HIS DEPENDENTS' TRAVEL FROM GILMER, TEXAS, TO LOS ANGELES, CALIFORNIA, INCIDENT TO HIS ORDERS OF MARCH 2, 1960, WAS FORWARDED TO THE NAVY REGIONAL ACCOUNTS OFFICE TO DETERMINE "PORT OF ENTRY" TO BE USED FOR THE PURPOSE OF SETTLEMENT OF THE MILEAGE PORTION OF THE CLAIM FROM GILMAR, TEXAS, TO LOS ANGELES, CALIFORNIA. THE CLAIM WAS RETURNED DISAPPROVED FOR PAYMENT, THE BUREAU OF NAVAL PERSONNEL AND THE NAVY COMPTROLLER HAVING DETERMINED THAT SINCE THE RECORD SHOWED THAT THE MEMBER HAD KNOWLEDGE HE HAD BEEN MADE AVAILABLE FOR SHORE DUTY WITHIN THE 11TH NAVAL DISTRICT AT THE TIME HE REPORTED FOR DUTY ON THE U.S.S. DENNIS J. BUCKLEY (DDR-808), NO ENTITLEMENT EXISTED FOR TRAVEL PERFORMED BY HIS DEPENDENTS FROM GILMER, TEXAS, TO LOS ANGELES, CALIFORNIA. THE MEMBER HAD BEEN PAID A DISLOCATION ALLOWANCE FOR DEPENDENTS' TRAVEL FROM GILMAR, TEXAS, TO LOS ANGELES, CALIFORNIA, AND A DISLOCATION ALLOWANCE PLUS MILEAGE FROM LOS ANGELES TO SAN DIEGO, AND CONSEQUENTLY HIS PAY

(THERE IS MISSING MATERIAL AT THIS POINT) RECORD WAS ADJUSTED TO ALLOW HIM ONLY ONE DISLOCATION ALLOWANCE FROM THE PORT OF ENTRY, SAN FRANCISCO, CALIFORNIA, TO SAN DIEGO, CALIFORNIA.

YOU STATE, THAT UNDER CURRENT NAVY ASSIGNMENT PROCEDURES A MEMBER NORMALLY IS NOTIFIED MANY MONTHS IN ADVANCE OF HIS PENDING AVAILABILITY TO A DISTRICT OR LARGE GEOGRAPHICAL LOCATION BEFORE HE IS ASSIGNED TO A SPECIFIC DUTY STATION AND, THEREFORE, YOU QUESTION WHETHER TRAVEL PERFORMED BY A MEMBER'S DEPENDENTS UNDER CIRCUMSTANCES SUCH AS THOSE IN THIS CASE MUST BE CONSIDERED AS HAVING BEEN PERFORMED FOR THE PURPOSE OF A VISIT RATHER THAN TO ESTABLISH A PERMANENT RESIDENCE (PARAGRAPH 7000-13, JOINT TRAVEL REGULATIONS). IN THIS REGARD, BY SECOND ENDORSEMENT DATED APRIL 19, 1961, TO YOUR LETTER OF MARCH 9, 1961, THE COMPTROLLER OF THE NAVY STATES THAT UPON RECONSIDERATION OF THE MATTER HE HAS MODIFIED HIS OPINION AND NOW CONSIDERS THAT THE TRAVEL PERFORMED BY THE MEMBER'S DEPENDENTS FROM GILMAR, TEXAS, TO LOS ANGELES, CALIFORNIA, WAS PERFORMED INCIDENT TO HIS ORDERS OF MARCH 2, 1960. HE SAYS THAT THE MEMBER WAS NOT ADVISED OF THE SPECIFIC LOCATION OF HIS ASSIGNMENT UNTIL JULY 20, 1960, WHICH WAS AFTER THE DEPENDENTS HAD PERFORMED THEIR TRAVEL IN CONNECTION WITH THE MEMBER'S ASSIGNMENT TO THE U.S.S. DENNIS J. BUCKLEY. IN VIEW OF THESE FACTS, THE COMPTROLLER STATES THAT THE PRINCIPLE EXPRESSED IN OUR DECISION OF JANUARY 10, 1961, B-144372 IS CONSIDERED APPLICABLE.

IN THE DECISION OF JANUARY 10, 1961, THERE WAS CONSIDERED THE CASE OF AN ENLISTED MAN WHO, WHILE ON LEAVE UNDER ORDERS TO REPORT TO A NAVAL UNIT BASED AT YORKTOWN, VIRGINIA, MOVED HIS DEPENDENTS TO YORKTOWN WITH THE INTENT OF ESTABLISHING A RESIDENCE WITHOUT KNOWLEDGE OR NOTICE UNTIL AFTER REPORTING TO YORKTOWN, AS DIRECTED, THAT PRIOR TO REPORTING THE PERMANENT STATION OF THE UNIT HAD BEEN CHANGED TO ROOSEVELT ROADS, PUERTO RICO. THE UNIT INVOLVED HOWEVER WAS STILL AT YORKTOWN AND ON THE BASIS THAT IT APPEARED TO BE ESSENTIALLY A SHORE BASED ORGANIZATION, ANALOGOUS FOR STATION RELOCATION PURPOSES TO AN ARMY UNIT, WE CONCLUDED THAT REIMBURSEMENT FOR DEPENDENT TRAVEL WAS AUTHORIZED SINCE THE ACTUAL RELOCATION OF THE UNIT TO WHICH HE WAS REQUIRED TO REPORT DID NOT TAKE PLACE UNTIL AFTER HE WAS REQUIRED TO AND DID REPORT AT YORKTOWN UNDER HIS INDIVIDUAL ORDERS.

UNDER THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 253, AND THE JOINT TRAVEL REGULATIONS ISSUED PURSUANT TO THE STATUTE, A DULY AUTHORIZED PERMANENT CHANGE OF STATION ORDER FIXES THE MEMBER'S RIGHT TO TRANSPORTATION OF HIS DEPENDENTS AND DISLOCATION ALLOWANCE, WITHIN PRESCRIBED LIMITATIONS, FROM THE OLD PERMANENT STATION TO THE NEW. THERE IS NO LIMITATION AS TO THE PERIOD WITHIN WHICH A MEMBER'S DEPENDENTS MUST TRAVEL TO THE NEW PERMANENT STATION TO JOIN HIM, EXCEPT WHERE HE IS LEAVING THE SERVICE, AND BOTH THE DEPENDENTS' TRAVEL ALLOWANCE AND THE DISLOCATION ALLOWANCE ARE PREDICATED UPON AN ACTUAL MOVEMENT OF THE MEMBER'S FAMILY FOR THE PURPOSE OF RELOCATING HIS HOUSEHOLD INCIDENT TO THE PERMANENT CHANGE OF STATION. UNDER PARAGRAPH 3003-1B OF THE JOINT TRAVEL REGULATIONS, THE EFFECTIVE DATE OF ORDERS AUTHORIZING PERMANENT CHANGE OF STATION IS THE DATE OF THE MEMBER'S RELIEF (DETACHMENT) FROM THE OLD STATION PLUS ANY PERIOD OF LEAVE OR DELAY AUTHORIZED BY THE ORDERS.

PARAGRAPH 700-13 OF THE JOINT TRAVEL REGULATIONS PRECLUDES PAYMENT OF TRAVEL EXPENSES OF DEPENDENTS TO PLACES FOR PLEASURE TRIPS OR FOR VISITING OR FOR PURPOSES OTHER THAN WITH THE INTENT TO CHANGE THEIR RESIDENCE. IS FOR APPLICATION, HOWEVER, ONLY WHERE THERE IS A PRIMA FACIE SHOWING THAT DEPENDENTS WERE "MERELY VISITING" AND IN THE ABSENCE OF EXTENUATING CIRCUMSTANCES WHICH MIGHT TEND TO ESTABLISH THAT THE DEPENDENTS INTENDED TO CHANGE THEIR RESIDENCE. THUS, WHILE KNOWLEDGE OF AN IMPENDING CHANGE OF STATION PRIOR TO TRAVEL OF DEPENDENTS IS A FACTOR FOR CONSIDERATION IN DETERMINING WHETHER OR NOT SUCH TRAVEL IS IN CONNECTION WITH A VISIT, IT IS NOT CONTROLLING, SINCE IT IS INHERENT TO THE MILITARY SERVICE THAT DUTY AT ANY PARTICULAR PLACE IS OF A TRANSITORY TYPE. THUS, THE FACT THAT A MEMBER'S DEPENDENTS MAY ONLY BE AT A CERTAIN PLACE FOR A SHORT PERIOD OF TIME DOES NOT OF ITSELF ESTABLISH THAT THEY ARE MERELY VISITING THERE.

IN THE PRESENT CASE, AT THE TIME THE MEMBER'S DEPENDENTS TRAVELED, THE ONLY EFFECTIVE PERMANENT CHANGE OF STATION ORDER FOR HIM WAS THE ORDER OF MARCH 2, 1960, WHICH ASSIGNED HIM TO DUTY ON BOARD THE U.S.S. DENNIS J. BUCKLEY. WHILE ON MAY 2, 1960, WHEN HE REPORTED ON BOARD THE VESSEL HE HAD KNOWLEDGE OF HIS SCHEDULED SHORE DUTY ASSIGNMENT, THIS SCHEDULED ASSIGNMENT OBVIOUSLY WAS SUBJECT TO CHANGE DEPENDING UPON THE NEEDS OF THE SERVICE AND HE WAS NOT ADVISED OF THE SPECIFIC LOCATION

(THERE IS MISSING MATERIAL AT THIS POINT)OF HIS ASSIGNMENT UNTIL JULY 20, 1960. IN THESE CIRCUMSTANCES IT MAY NOT BE CONCLUDED THAT THE MEMBER WAS REQUIRED TO LEAVE HIS DEPENDENTS AT GILMER, TEXAS, AFTER HIS RETURN FROM FORMOSA PENDING NOTIFICATION OF A NEW ASSIGNMENT WHICH MIGHT NEVER MATERIALIZE. ACCORDINGLY, SINCE THE DEPENDENTS TRAVELED AFTER THE EFFECTIVE DATE OF THE ORDERS OF MARCH 2, 1960, FOR THE PURPOSE OF PERMANENTLY REJOINING THE MEMBER AND DID IN FACT ESTABLISH A RESIDENCE WITH HIM, SUCH TRAVEL MAY BE CONSIDERED AS INCIDENT TO A CHANGE OF RESIDENCE RESULTING FROM THE ORDERED PERMANENT CHANGE OF STATION.

ACCORDINGLY, THE MEMBER IS ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES PROPERLY DUE ON THE BASIS OF THE TWO PERMANENT CHANGE OF STATION ORDERS OF MARCH 2 AND JULY 22, 1960. PAYMENT IS AUTHORIZED ON SUCH BASIS. THE ENCLOSURES RECEIVED WITH YOUR LETTER ARE RETURNED HEREWITH.

AS TO YOUR FURTHER INQUIRY EACH CASE INVOLVING THE VISITING RULE MUST NECESSARILY BE DECIDED ON ITS OWN MERITS. IT IS OUR VIEW, HOWEVER, THAT UNLESS IT CAN REASONABLY BE ESTABLISHED THAT THE DEPENDENTS' TRAVEL WAS FOR THE PURPOSE OF VISITING THE MEMBER AND NOT FOR THE PURPOSE OF ESTABLISHING A RESIDENCE WITHIN THE MEANING OF PARAGRAPH 7000-13 OF THE JOINT TRAVEL REGULATIONS, THE TRAVEL SHOULD BE CONSIDERED AS INCIDENT TO A CHANGE OF RESIDENCE RESULTING FROM THE ORDERED PERMANENT CHANGE OF STATION.