B-129962, JAN. 4, 1957
Highlights
THAT TRAVEL AUTHORIZATION WAS AMENDED TO AUTHORIZE TRANSPORTATION AND PER DIEM FOR HIS DAUGHTER. YOU SAY THAT WHEN TRAVEL AUTHORIZATION NO. 102-/FAS) WAS ISSUED FEBRUARY 8. YOUR SERVICE WAS NOT AWARE OF THE FACT THAT MR. LEGE'S TWO CHILDREN WERE NOT MEMBERS OF HIS IMMEDIATE HOUSEHOLD. HE FEELS BECAUSE OF THOSE REQUIREMENTS THE CHILDREN ARE HIS LEGAL DEPENDENTS AND THAT HE IS ENTITLED TO REIMBURSEMENT FOR THEIR TRANSPORTATION EXPENSES UNDER 180 FSTR 1.2B (2). AS FOLLOWS: "CHILDREN (INCLUDING STEP-CHILDREN AND ADOPTED CHILDREN) WHO ARE UNMARRIED AND UNDER 21 YEARS OF AGE. ARE PHYSICALLY OR MENTALLY INCAPABLE OF SUPPORTING THEMSELVES * * " SECTION 124.2. LEGE'S LETTER OF OCTOBER 1 INDICATES THAT THE CHILDREN ARE HIS LEGAL DEPENDENTS.
B-129962, JAN. 4, 1957
TO MR. A. M. FLATEQUAL, AUTHORIZED CERTIFYING OFFICER, FOREIGN AGRICULTURAL SERVICE:
YOUR LETTER OF DECEMBER 3, 1956, SUBMITTING THE VOUCHER OF FREDERICK M. LEGE, III, CLAIMING $886.55, REPRESENTING PER DIEM, TRANSPORTATION AND MISCELLANEOUS EXPENSES INCIDENT TO THE TRAVEL OF HIS TWO CHILDREN FROM CHARLOTTESVILLE, VIRGINIA, TO BUENOS AIRES, ARGENTINA, DURING THE PERIOD JUNE 29 TO JULY 1, 1956, ASKS WHETHER THE VOUCHER MAY BE CERTIFIED FOR PAYMENT UNDER THE FACTS AND CIRCUMSTANCES HEREINAFTER RELATED.
THE RECORD SHOWS THAT MR. LEGE ENTERED ON DUTY IN THE FOREIGN AGRICULTURAL SERVICE ON SEPTEMBER 11, 1955. HE REPORTED TO HIS FIRST DUTY STATION, BUENOS AIRES, ARGENTINA, NOVEMBER 13, 1955. TRAVEL AUTHORIZATION NO. 102-/FAS), DATED AUGUST 15, 1955, ITEM 21, AUTHORIZED PER DIEM AND TRANSPORTATION FOR HIS WIFE, KATHRYN O., FOR DIRECT TRAVEL FROM WEATHERFORD, TEXAS, TO BUENOS AIRES. ON FEBRUARY 8, 1956, THAT TRAVEL AUTHORIZATION WAS AMENDED TO AUTHORIZE TRANSPORTATION AND PER DIEM FOR HIS DAUGHTER, AGE 13, AND SON, AGE 10, FOR DIRECT TRAVEL FROM CHARLOTTESVILLE, VIRGINIA, TO BUENOS AIRES. FURTHER, THE AMENDMENT EXTENDED TO NOT LATER THAN JUNE 30, 1956, THE TIME LIMITATION FOR THE TRAVEL OF DEPENDENTS IN ORDER FOR HIS TWO CHILDREN TO COMPLETE THEIR SCHOOLING IN THE UNITED STATES. YOU SAY THAT WHEN TRAVEL AUTHORIZATION NO. 102-/FAS) WAS ISSUED FEBRUARY 8, 1956, AMENDING THE AUGUST 15, 1955, AUTHORIZATION, YOUR SERVICE WAS NOT AWARE OF THE FACT THAT MR. LEGE'S TWO CHILDREN WERE NOT MEMBERS OF HIS IMMEDIATE HOUSEHOLD. MR. LEGE IN HIS LETTER OF OCTOBER 1, 1956, STATES THAT THE DIVORCE DECREE OF THE MUNICIPAL COURT IN FORT WORTH, TEXAS, IN EARLY 1947 GRANTED HIM CUSTODY OF HIS CHILDREN TWO MONTHS OUT OF EACH YEAR AND OBLIGATED HIM TO PAY THEIR MOTHER $150 PER MONTH FOR THEIR MAINTENANCE AND SUPPORT AS WELL AS THEIR SCHOOLING, MEDICAL BILLS, TRAVEL FROM THEIR MOTHER'S HOME TO HIS AND RETURN EACH YEAR. HE FEELS BECAUSE OF THOSE REQUIREMENTS THE CHILDREN ARE HIS LEGAL DEPENDENTS AND THAT HE IS ENTITLED TO REIMBURSEMENT FOR THEIR TRANSPORTATION EXPENSES UNDER 180 FSTR 1.2B (2). ON OCTOBER 1, 1956, MR. LEGE FURNISHED A RESIDENCE AND DEPENDENCY REPORT, FORM FS-304, CERTIFYING TO HIS LATEST DEPENDENCY STATUS SHOWING THE TWO CHILDREN AS DEPENDENTS.
PARAGRAPH (2) OF THE REFERRED-TO REGULATIONS READS, IN PERTINENT PART, AS FOLLOWS:
"CHILDREN (INCLUDING STEP-CHILDREN AND ADOPTED CHILDREN) WHO ARE UNMARRIED AND UNDER 21 YEARS OF AGE, OR REGARDLESS OF AGE, ARE PHYSICALLY OR MENTALLY INCAPABLE OF SUPPORTING THEMSELVES * * "
SECTION 124.2, RESIDENCE AND DEPENDENCY REPORT, PART IV--- PERSONNEL, FOREIGN SERVICE MANUAL, PARAGRAPH 23--- PROVIDES, IN PERTINENT PART, AS FOLLOWS:
"* * * ONLY THE DEPENDENTS WHO TRAVEL AT GOVERNMENT EXPENSE AND RESIDE WITH THE OFFICER ABROAD SHALL BE LISTED ON FORM FS-304. * * *"
WHILE THE INFORMATION CONTAINED IN MR. LEGE'S LETTER OF OCTOBER 1 INDICATES THAT THE CHILDREN ARE HIS LEGAL DEPENDENTS, IT WOULD APPEAR FROM WHAT HE SAYS THAT THE CHILDREN ACTUALLY RESIDE WITH THEIR MOTHER 10 MONTHS OR MORE EACH YEAR AND THAT THE CUSTODY PROVISION OF THE DIVORCE DECREE REPRESENTS A PERMISSIVE RIGHT WHICH HE IS GRANTED. FROM THAT LINE OF REASONING IT WOULD APPEAR THAT FOR TWO MONTHS OR LESS EACH YEAR MR. LEGE'S CHILDREN ARE PERMITTED TO VISIT WITH HIM. SECTION 1.2B (2) OF THE REGULATIONS DOES NOT EXPRESSLY COVER SUCH A SITUATION BUT SECTION 124.2 (23) QUOTED ABOVE, EXPRESSLY REQUIRES THAT THE DEPENDENTS TO BE LISTED SHOULD RESIDE ABROAD WITH THE OFFICER.
IN VIEW OF THE FOREGOING, WE CONCLUDE THAT UNDER THE CIRCUMSTANCES OF THIS CASE THE CHILDREN MAY NOT BE CONSIDERED AS DEPENDENTS FOR THE PURPOSE OF CHARGING THE GOVERNMENT WITH THEIR EXPENSES OF TRAVEL. ACCORDINGLY, THE VOUCHER, WHICH WITH RELATED PAPERS IS RETURNED HEREWITH, MAY NOT BE CERTIFIED FOR PAYMENT.