B-145088, MARCH 31, 1961, 40 COMP. GEN. 554

B-145088, MARCH 31, 1961, 40 COMP. GEN. 554

MILITARY PERSONNEL - TRANSPORTATION OF DEPENDENTS - ADVANCE TRAVEL FROM OVERSEAS - SUBSEQUENT CHANGE OF STATION THE ADVANCE TRAVEL OF THE WIFE OF A MEMBER OF THE UNIFORMED SERVICES WHO RETURNS TO THE UNITED STATES FROM OVERSEAS UNDER UNUSUAL OR EMERGENCY CIRCUMSTANCES, PURSUANT TO AUTHORITY IN PARAGRAPH 7009-3 OF THE JOINT TRAVEL REGULATIONS, AND WHO SUBSEQUENTLY DIES OR IS DIVORCED FROM THE MEMBER DOES NOT RESTRICT OR AFFECT THE MEMBER'S RIGHT TO TRANSPORTATION FOR A SECOND WIFE UPON A SUBSEQUENT PERMANENT CHANGE OF DUTY STATION, THE ADVANCE TRAVEL OF THE DEPENDENT UNDER EMERGENCY SITUATIONS BEING A RIGHT INDEPENDENT OF THE MEMBER'S RIGHT TO A DEPENDENT'S TRANSPORTATION AT GOVERNMENT EXPENSE UPON A LATER PERMANENT CHANGE OF STATION.

TO THE SECRETARY OF THE NAVY, MARCH 31, 1961:

REFERENCE IS MADE TO LETTER OF FEBRUARY 6, 1961, FROM THE ASSISTANT SECRETARY OF THE NAVY (1RESEARCH AND DEVELOPMENT) REQUESTING DECISION AS TO A MEMBER'S ENTITLEMENT TO TRANSPORTATION FOR A DEPENDENT WIFE UNDER THE CIRCUMSTANCES DISCLOSED. THE REQUEST WAS ASSIGNED PDTATAC CONTROL NO. 61- 3.

IT IS STATED THAT UNDER THE PROVISIONS OF PARAGRAPH 7009-3, JOINT TRAVEL REGULATIONS, THE DEPENDENT WIFE OF A MEMBER, OF A RANK OR GRADE ENTITLED TO TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE, WAS PROVIDED ADVANCE RETURN TRANSPORTATION FROM THE MEMBER'S OVERSEAS DUTY STATION TO A DESIGNATED PLACE IN THE UNITED STATES. SUBSEQUENT TO SUCH ADVANCE RETURN THE MEMBER WAS DIVORCED. HE REMARRIED AT HIS OVERSEAS DUTY STATION. UPON HIS RETURN TO THE UNITED STATES UNDER PERMANENT CHANGE OF STATION ORDERS THE QUESTION IS RAISED AS TO THE POINT FROM WHICH HE IS ENTITLED TO TRANSPORTATION OF HIS DEPENDENT WIFE TO THE NEW DUTY STATION.

THE ASSISTANT SECRETARY CALLS ATTENTION TO THE PROVISIONS OF SECTION 102 (G) OF THE CAREER COMPENSATION ACT OF 1949 (63 STAT. 802), AS AMENDED, WHICH DEFINES THE TERM "DEPENDENT" TO INCLUDE AT ALL TIMES AND IN ALL PLACES THE LAWFUL WIFE OF THE MEMBER. IT IS POINTED OUT THAT SECTION 303 (C) OF THE ACT, 37 U.S.C. 253, PROVIDES FOR TRANSPORTATION OF DEPENDENTS IN UNUSUAL OR EMERGENCY CIRCUMSTANCES, AND UPON A CHANGE OF PERMANENT STATION AND THAT PARAGRAPH 7009-3, JOINT TRAVEL REGULATIONS, FURTHER PROVIDES, UNDER CERTAIN CONDITIONS, FOR RETURN OF DEPENDENTS TO THE SAME OR A SUBSEQUENT OVERSEAS STATION OF THE MEMBER.

THE ASSISTANT SECRETARY STATES THAT THERE APPEARS TO BE NO PRACTICAL DIFFERENCE BETWEEN THE SECOND RETURN OF THE SAME WIFE UPON THE MEMBER'S TRANSFER TO THE UNITED STATES AND THE TRANSPORTATION OF A SECOND WIFE ACQUIRED AS THE RESULT OF DIVORCE AND REMARRIAGE. HOWEVER, SINCE THE MATTER IS NOT ENTIRELY FREE FROM DOUBT, OUR DECISION IS REQUESTED AS TO THE POINTS BETWEEN WHICH THE MEMBER IS ENTITLED TO TRANSPORTATION TO SUCH SECOND WIFE UPON CHANGE OF THE MEMBER'S PERMANENT STATION FROM OVERSEAS TO THE UNITED STATES SUBSEQUENT TO HIS DIVORCE AND REMARRIAGE. ALSO, IT IS ASKED WHETHER ENTITLEMENT TO TRANSPORTATION OF A SECOND WIFE WOULD BE ANY DIFFERENT WERE THE FIRST WIFE TO DIE SUBSEQUENT TO HER ADVANCE RETURN TO THE UNITED STATES AND THE MEMBER THEN REMARRY OVERSEAS.

SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 253, PROVIDES THAT UNDER SUCH CONDITIONS AND LIMITATIONS AND FOR SUCH RANKS, GRADES, OR RATINGS, AND TO AND FROM SUCH LOCATIONS AS MAY BE PRESCRIBED BY THE SECRETARIES CONCERNED, MEMBERS OF THE UNIFORMED SERVICES ,WHEN ORDERED TO MAKE A CHANGE OF PERMANENT STATION" SHALL BE ENTITLED TO TRANSPORTATION FOR DEPENDENTS. IT FURTHER PROVIDES THAT WHEN ORDERS DIRECTING A CHANGE OF PERMANENT STATION FOR THE MEMBER CONCERNED HAVE NOT BEEN ISSUED THE SECRETARIES CONCERNED MAY, NEVERTHELESS, AUTHORIZE THE MOVEMENT OF DEPENDENTS ONLY UNDER UNUSUAL OR EMERGENCY CIRCUMSTANCES, INCLUDING THOSE WHICH MAY ARISE WHEN THE MEMBERS ARE SERVING ON PERMANENT DUTY AT STATIONS OUTSIDE THE CONTINENTAL UNITED STATES.

BASICALLY THE STATUTE AUTHORIZES THE SECRETARIES CONCERNED TO ISSUE REGULATIONS PROVIDING FOR THE EARLY RETURN OF DEPENDENTS OF MILITARY PERSONNEL ONLY BECAUSE OF ACTUAL CONDITIONS OF AN EMERGENCY NATURE ARISING AT OVERSEAS DUTY STATIONS WHICH JUSTIFY SUCH RETURN. PARAGRAPH 7009-3 OF THE JOINT TRAVEL REGULATIONS, ISSUED UNDER THE ABOVE PROVISIONS OF LAW PROVIDES FOR THE ADVANCE RETURN OF DEPENDENTS OF MEMBERS FROM OVERSEAS TO THE UNITED STATES, IN THE CIRCUMSTANCES AND WITHIN THE LIMITATION THERE PRESCRIBED. THE MOVEMENT OF DEPENDENTS TO THE UNITED STATES IN SUCH CASES IS AUTHORIZED AS A RIGHT UNDER PARAGRAPH 7009-3 OF THE REGULATIONS INDEPENDENTLY OF THE MEMBER'S SUBSEQUENT PERMANENT CHANGE OF STATION. ALSO, THE STATUTE AND REGULATIONS AS CURRENTLY CONSTITUTED ASSURE A MEMBER OTHERWISE ELIGIBLE, WHEN ORDERED TO MAKE A PERMANENT CHANGE OF STATION, OF A RIGHT TO TRANSPORTATION OF HIS DEPENDENTS AT PUBLIC EXPENSE FROM HIS OLD STATION, FROM HOME, OR FROM THE LAST PLACE TO WHICH THEY WERE TRANSPORTED AT GOVERNMENT EXPENSE, TO HIS NEW STATION. PARAGRAPH 7000, JOINT TRAVEL REGULATIONS, PROVIDES FOR TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE UPON PERMANENT CHANGE OF STATION, EXCEPT SUCH EXPENSE MAY NOT BE CONSIDERED AN OBLIGATION OF THE GOVERNMENT (PARAGRAPH 7000-13) FOR ANY TRAVEL OF DEPENDENTS BETWEEN POINTS OTHERWISE AUTHORIZED IN THE REGULATIONS TO A PLACE WHICH THEY DO NOT INTEND TO ESTABLISH A RESIDENCE.

VIEWING THE STATUTORY AUTHORIZATION IN THIS LIGHT, A RIGHT TO TRANSPORTATION FOR A DEPENDENT WIFE AT THE EXPENSE OF THE GOVERNMENT IS AN ALLOWANCE PAYABLE FOR TRAVEL PERFORMED INCIDENT TO A CHANGE OF RESIDENCE RESULTING FROM AN ORDERED PERMANENT CHANGE OF STATION AND IRRESPECTIVE OF TRAVEL PERFORMED BY A PRIOR DEPENDENT WIFE UNDER PARAGRAPH 7009-3 OF THE REGULATIONS. HENCE, THE ADVANCE TRAVEL OF THE FIRST WIFE UNDER AUTHORITY OF PARAGRAPH 7009-3 WOULD NOT OPERATE TO RESTRICT THE MEMBER'S RIGHT TO TRANSPORTATION FOR HIS SECOND WIFE UPON A SUBSEQUENT CHANGE OF HIS PERMANENT DUTY STATION IRRESPECTIVE OF WHETHER THE FIRST MARRIAGE IS TERMINATED BY DIVORCE OR DEATH.