B-126888, DEC 11, 1974
Highlights
WHOSE DEPENDENTS MOVED FROM HIS LAST DUTY STATION TO HIS HOME OF SELECTION WHICH WAS ALSO HIS HOME OF RECORD. IS NOT ENTITLED TO REIMBURSEMENT OF THE COST OF SUCH DEPENDENT TRAVEL BECAUSE SUCH TRAVEL WAS NOT PERFORMED PURSUANT TO THE MEMBER'S RETIREMENT ORDERS OR WITHIN A COMPARATIVELY SHORT TIME PRIOR TO ISSUANCE OF SUCH ORDERS. RETIRED: THIS ACTION IS IN RESPONSE TO A LETTER DATED JULY 22. FROM THE RECORD IT APPEARS THAT AT THE TIME THE TRAVEL WAS PERFORMED THE MEMBER WAS SERVING ABOARD THE U.S.S. HIS DEPENDENTS WERE RESIDING AT OR IN THE VICINITY OF THE HOME YARD OF THE U.S.S. SANDOVAL (APA-194) AND THEREFORE MOVEMENT OF HIS DEPENDENTS UNDER THOSE ORDERS WAS NOT REQUIRED OR MADE INCIDENT TO SUCH TRANSFER.
B-126888, DEC 11, 1974
MEMBER, WHOSE DEPENDENTS MOVED FROM HIS LAST DUTY STATION TO HIS HOME OF SELECTION WHICH WAS ALSO HIS HOME OF RECORD, 14 MONTHS PRIOR TO THE ISSUANCE OF HIS RETIREMENT ORDERS, IS NOT ENTITLED TO REIMBURSEMENT OF THE COST OF SUCH DEPENDENT TRAVEL BECAUSE SUCH TRAVEL WAS NOT PERFORMED PURSUANT TO THE MEMBER'S RETIREMENT ORDERS OR WITHIN A COMPARATIVELY SHORT TIME PRIOR TO ISSUANCE OF SUCH ORDERS.
DEPENDET TRAVEL - LIEUTENANT ROBERT E. GAFFNEY, USN, RETIRED:
THIS ACTION IS IN RESPONSE TO A LETTER DATED JULY 22, 1974, WITH ENCLOSURES, FROM LIEUTENANT ROBERT E. GAFFNEY, USN, RETIRED, 817 NO. HUMBOLDT (308), SAN MATEO, CALIFORNIA 94401, REQUESTING RECONSIDERATION OF OUR TRANSPORTATION AND CLAIMS DIVISION SETTLEMENT DATED MAY 25, 1962, WHICH DISALLOWED HIS CLAIM FOR REIMBURSEMENT FOR THE COST OF TRAVEL PERFORMED BY HIS DEPENDENTS BY COMMERCIAL AIR FROM LOS ANGELES, CALIFORNIA, TO HONOLULU, HAWAII, IN JUNE 1953, IN THE AMOUNT OF $575, INCIDENT TO HIS RETIREMENT FROM THE NAVY IN 1954.
FROM THE RECORD IT APPEARS THAT AT THE TIME THE TRAVEL WAS PERFORMED THE MEMBER WAS SERVING ABOARD THE U.S.S. SANDOVAL (APA-194) TO WHICH VESSEL HE HAD BEEN TRANSFERRED FROM SHORE DUTY AT SAN PEDRO, CALIFORNIA, BY ORDERS DATED SEPTEMBER 29, 1952. IT FURTHER APPEARS THAT AT THE TIME OF THIS TRANSFER, HIS DEPENDENTS WERE RESIDING AT OR IN THE VICINITY OF THE HOME YARD OF THE U.S.S. SANDOVAL (APA-194) AND THEREFORE MOVEMENT OF HIS DEPENDENTS UNDER THOSE ORDERS WAS NOT REQUIRED OR MADE INCIDENT TO SUCH TRANSFER. IT ALSO APPEARS THAT FOLLOWING THAT TRANSFER, THE MEMBER DECIDED TO MOVE HIS DEPENDENTS TO HIS HOME OF RECORD, HONOLULU, HAWAII, SINCE HE HAD PLANNED TO RETIRE AS SOON AS LEGISLATION AND POLICY PERMITTED AND IN ANTICIPATION OF BEING PERMITTED TO RETIRE, HE MOVED HIS DEPENDENTS FROM THE UNITED STATES TO HONOLULU AT PERSONAL EXPENSE IN JUNE 1953. PURSUANT TO HIS RETIREMENT ORDERS OF AUGUST 26, 1954, HE TRAVELED TO AND JOINED HIS FAMILY IN HONOLULU, HAWAII, THE HOME SELECTED BY HIM INCIDENT TO HIS RETIREMENT. ON DECEMBER 19, 1955, HE WROTE A LETTER TO THE DEPARTMENT OF THE NAVY REQUESTING REIMBURSEMENT FOR THE TRANSPORTATION EXPENSES INCURRED BY HIM IN MOVING HIS DEPENDENTS IN JUNE 1953. THIS CLAIM WAS DENIED BY THE DEPARTMENT OF THE NAVY ON THE BASIS THAT SINCE HIS DEPENDENTS WERE LOCATED AT THE HOME SELECTED BY HIM IN HAWAII ON THE DATE OF HIS RETIREMENT ORDERS OF AUGUST 26, 1954, NO TRAVEL WAS PERFORMED BY HIS DEPENDENTS INCIDENT TO HIS RETIREMENT.
FOLLOWING DISALLOWANCE BY THE NAVY, THE MEMBER'S CLAIM WAS DISALLOWED BY OUR TRANSPORTATION AND CLAIMS DIVISION ON THE BASIS THAT SINCE THE REGULATIONS IN EFFECT AT THE TIME THE TRAVEL WAS PERFORMED DID NOT REIMBURSEMENT WHEN DEPENDENTS DEPART FROM A MEMBER'S OLD DUTY STATION 14 MONTHS PRIOR TO THE ISSUANCE OF RETIREMENT ORDERS, SUCH TRAVEL MAY NOT BE CONSIDERED PERFORMED IN CONNECTION WITH SUCH ORDERS.
IN HIS LETTER DATED JULY 22, 1974, THE MEMBER INDICATES THAT HE IS REQUESTING RECONSIDERATION OF OUR TRANSPORTATION AND CLAIMS DIVISION SETTLEMENT BECAUSE IT IS HIS VIEW THAT OUR DECISION B-180352, DATED JUNE 14, 1974, 53 COMP. GEN. , WOULD WARRANT A FAVORABLE SETTLEMENT ON HIS CLAIM.
THE JOINT TRAVEL REGULATIONS ISSUED PURSUANT TO SECTION 303(C) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 814, PROVIDE FOR TRANSPORTATION IN KIND (OR MONETARY ALLOWANCE IN LIEU OF SUCH TRANSPORTATION) OF DEPENDENTS OF MEMBERS WHEN ORDERED TO MAKE A CHANGE OF PERMANENT STATION, INCLUDING THE CHANGE FROM THE MEMBER'S LAST DUTY STATION TO HIS HOME OF SELECTION OR HOME OF RECORD. HOWEVER, AS TO THE TRANSPORTATION OF DEPENDENTS PERMITTED IN CONNECTION WITH SUCH PERMANENT CHANGE OF STATION, PARAGRAPH 7000-11 OF THE REGULATIONS THEN IN EFFECT (CURRENTLY PARAGRAPH M7000-9), SPECIFICALLY PROVIDED THAT TRANSPORTATION OF DEPENDENTS INCIDENT TO AN ORDERED CHANGE OF STATION IS NOT AUTHORIZED WHEN THE DEPENDENTS DEPART PRIOR TO THE ISSUANCE OF ORDERS AND THE ORDER ISSUING AUTHORITY DOES NOT CERTIFY THAT THE MEMBER WAS ADVISED PRIOR TO THE ISSUANCE OF CHANGE OF STATION ORDERS THAT SUCH ORDERS WOULD BE ISSUED.
THE PROVISION IN THE REGULATIONS CONCERNING DEPARTURE OF DEPENDENTS FROM THE LAST DUTY STATION PRIOR TO ISSUANCE OF ORDERS CONTEMPLATES DEPARTURE DURING THE COMPARATIVELY SHORT PERIOD OF TIME WHICH MAY ELAPSE BETWEEN THE TIME OF A DETERMINATION TO ORDER A MEMBER TO MAKE A CHANGE OF STATION AND THE DATE ON WHICH ORDERS DIRECTING SUCH CHANGE ACTUALLY ARE ISSUED. MERE GENERAL INFORMATION AS TO THE TIME OF EVENTUAL RELEASE FROM ACTIVE DUTY IS INSUFFICIENT TO MEET THE REQUIREMENTS OF THE REGULATIONS. 34 COMP. GEN. 241 (1954).
IN DECISION B-152245, DATED SEPTEMBER 12, 1963, WE CONSIDERED THE SITUATION WHERE A MEMBER MOVED HIS DEPENDENTS TO HIS SELECTED HOME UPON RETIREMENT SIX MONTHS BEFORE PERMANENT CHANGE OF STATION ORDERS WERE ISSUED AUTHORIZING HIS TRANSFER TO THAT LOCATION AND TWO AND ONE HALF YEARS BEFORE HIS RETIREMENT ORDERS WERE ISSUED. IN HOLDING THAT THE TRAVEL PERFORMED BY HIS DEPENDENTS COULD NOT REASONABLY BE VIEWED AS BEING INCIDENT TO EITHER HIS CHANGE OF STATION ORDERS OR HIS RETIREMENT ORDERS, WE STATED THEREIN THAT THE PURPOSE OF THE STATUTE AND THE REGULATIONS AUTHORIZING TRANSPORTATION AT GOVERNMENT EXPENSE IS TO RELIEVE A MEMBER OF THE BURDEN WHEN SUCH TRAVEL IS MADE NECESSARY BY AN ORDERED CHANGE OF STATION. SEE ALSO B-178203, AUGUST 16, 1973; B 175359(2), MAY 14, 1973.
WITH REGARD TO THE POSSIBLE APPLICATION OF OUR DECISION B-180352, SUPRA, IT WAS HELD IN THAT DECISION THAT MEMBERS OF THE UNIFORMED SERVICES WHO AT THE TIME OF TERMINATION OF ACTIVE DUTY ARE OTHERWISE QUALIFIED FOR TRAVEL AND TRANSPORTATION TO EITHER THEIR HOME OF RECORD OR PLACE OF ENTRY ON ACTIVE DUTY UNDER 37 U.S.C. 404(A) AND 406(A) (1970), ARE TO BE AFFORDED SUCH ENTITLEMENTS WHENEVER THEIR ANTITLEMENT TO TRAVEL AND TRANSPORTATION TO THEIR HOME OF SELECTION UNDER 37 U.S.C. 404(C) AND 406(G) (1970) IS DENIED. THAT CONCLUSION WAS REACHED BASED ON A SITUATION WHICH INVOLVED MEMBER WHO, ALONG WITH HIS DEPENDENTS, ACTUALLY PERFORMED TRAVEL PURSUANT TO AND CONTEMPORANEOUSLY WITH THE ISSUANCE OF HIS RETIREMENT ORDERS.
IT IS OUR VIEW THAT SUCH CASE IS CLEARLY DISTINGUISHABLE FROM THE PRESENT CASE. WHILE DEPENDENT TRAVEL WAS ACTUALLY PERFORMED PURSUANT TO ORDERS IN THAT CASE, THE RECORD IN THIS CASE SHOWS THAT WHEN THE MEMBER'S DEPENDENT BECAME ELIGIBLE FOR GOVERNMENT REIMBURSED TRAVEL TO EITHER HOME OF RECORD OR HOME OF SELECTION, NO TRAVEL WAS PERFORMED BY THEM, SINCE THEY WERE ALREADY AT HIS HOME OF RECORD/HOME OF SELECTION HAVING MOVED TO THAT LOCATION MORE THAN ONE YEAR PRIOR TO THE ISSUANCE OF THE MEMBER'S RETIREMENT ORDERS. THUS, IT APPEARS THAT OUR DECISION B-180352, SUPRA, WOULD NOT BE FOR APPLICATION HERE.
ACCORDINGLY, SINCE NO DEPENDENT TRAVEL WAS PERFORMED PURSUANT TO THE MEMBER'S RETIREMENT ORDERS, OUR TRANSPORTATION AND CLAIMS DIVISION SETTLEMENT DATED MAY 25, 1962, IS SUSTAINED.