B-145747, AUG. 17, 1961

B-145747, AUG. 17, 1961

TO RODNEY P. MORTER, SP-5, RA 28 776 486:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 22, 1961, REQUESTING REVIEW OF THE SETTLEMENT OF APRIL 4, 1961, WHICH DISALLOWED YOUR CLAIM FOR DISLOCATION ALLOWANCE AND FOR REIMBURSEMENT FOR THE TRAVEL OF YOUR DEPENDENT FROM OAKLAND, CALIFORNIA, TO NEWBERG, OREGON, DURING THE PERIOD NOVEMBER 29 TO DECEMBER 2, 1956, INCIDENT TO YOUR SERVICE IN THE UNITED STATES ARMY.

BY SPECIAL ORDERS NO. 225, DATED OCTOBER 18, 1956, YOU WERE RELEASED FROM YOUR OVERSEAS ASSIGNMENT IN JAPAN AND REASSIGNED ON A PERMANENT CHANGE OF STATION TO THE UNITED STATES ARMY TRAINING CENTER, FIELD ARTILLERY, FORT CHAFFEE, ARKANSAS. THE ORDERS AUTHORIZED THE TRAVEL OF YOU AND YOUR WIFE, MASAKO MORTER BY MILITARY AIR TRANSPORT SERVICE, TO THE CONTINENTAL UNITED STATES, LEAVING JAPAN ON NOVEMBER 20, 1956. THE ORDERS FURTHER PROVIDED FOR 40 DAYS' LEAVE TO BE SPENT AT 304 WEST ILLINOIS STREET, NEWBERG, OREGON, PRIOR TO REPORTING TO FORT CHAFFEE. THE RECORD SHOWS THAT YOU AND YOUR WIFE DEPARTED JAPAN ON NOVEMBER 20, 1956, ARRIVED AT TRAVIS AIR FORCE BASE, CALIFORNIA, ON NOVEMBER 29, 1956, DEPARTED OAKLAND (ARMY TERMINAL FOR PROCESSING OVERSEAS RETURNEES), CALIFORNIA, ON NOVEMBER 29, 1956, AND ARRIVED IN NEWBERG, OREGON, ON DECEMBER 2, 1956. AFTER REPORTING TO YOUR NEW STATION AT FORT CHAFFEE YOU APPLIED FOR REIMBURSEMENT FOR THE TRAVEL OF YOUR WIFE AND YOU WERE REIMBURSED THEREFOR ON THE BASIS OF A SIGNED CERTIFICATION THAT SHE HAD ARRIVED WITH YOU AT THE PLAZA MOTEL, HIGHWAY 22, FORT SMITH, ARKANSAS, ON JANUARY 10, 1957, WITH THE INTENT OF ESTABLISHING A BONA FIDE RESIDENCE. BASED ON YOUR CERTIFICATION YOU WERE PAID $122.94 FOR YOUR DEPENDENT'S TRAVEL TO FORT CHAFFEE. THIS AMOUNT WAS COLLECTED BACK BY THE DISBURSING OFFICER ON FEBRUARY 11, 1957, ON THE BASIS THAT IT WAS AN ERRONEOUS CLAIM FOR DEPENDENT TRAVEL SINCE YOU HAD DIVORCED YOUR WIFE ON JANUARY 9, 1957, PRIOR TO REPORTING TO FORT CHAFFEE. YOUR CLAIM FOR REIMBURSEMENT FOR YOUR DEPENDENT'S TRAVEL AND FOR DISLOCATION ALLOWANCE WAS DISALLOWED BY SETTLEMENT DATED APRIL 4, 1961, SINCE IT DID NOT APPEAR THAT THE TRAVEL OF YOUR DEPENDENT WAS FOR THE PURPOSE OF ESTABLISHING A RESIDENCE INCIDENT TO YOUR CHANGE OF STATION.

IN YOUR REQUEST FOR REVIEW YOU URGE THAT YOU BE REIMBURSED FOR YOUR DEPENDENT'S TRAVEL TO NEWBERG, OREGON, AND FOR DISLOCATION ALLOWANCE FOR SUCH MOVE. IN YOUR CLAIM, DATED NOVEMBER 16, 1960, YOU STATED THAT YOUR WIFE WAS GOING TO YOUR HOME TOWN, NEWBERG, OREGON, TO SETTLE THERE FOR ABOUT ONE YEAR TO GET ACQUAINTED WITH YOUR FAMILY AND AMERICANIZED WHILE YOU REPORTED TO YOUR NEW DUTY STATION WITHOUT HER. YOU SAY THAT "WE HADN- T PLANNED ON A DIVORCE THO, AND IT BECAME FINAL ON 9 JAN. 1957.' A COPY OF DIVORCE DECREE NO. 236-621, IN THE CIRCUIT COURT OF THE STATE OF OREGON, FOR THE COUNTY OF MULTNOMAH, RODNEY P. MORTER, PLAINTIFF V. MASAKO MORTER, DEFENDANT, DATED AND ENTERED ON JANUARY 9, 1957, SHOWS THAT YOUR MARRIAGE WAS DISSOLVED A LITTLE OVER A MONTH AFTER YOUR ARRIVAL IN NEWBERG, WITH A SETTLEMENT AGREEMENT BETWEEN YOU AND YOUR WIFE BEING INCORPORATED INTO THE DECREE OF DIVORCE.

SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 814, AS AMENDED, 37 U.S.C. 253 (C), 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 IN KIND FOR DEPENDENTS OR TO REIMBURSEMENT THEREFOR, OR TO A MONETARY ALLOWANCE IN LIEU OF SUCH TRANSPORTATION IN KIND. PARAGRAPH 7000-13, JOINT TRAVEL REGULATIONS, PROMULGATED PURSUANT TO THAT AUTHORITY, PROVIDES THAT MEMBERS OF THE UNIFORMED SERVICES ARE NOT ENTITLED TO TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE FOR ANY TRAVEL TO A PLACE AT WHICH THEY DO NOT INTEND TO ESTABLISH A RESIDENCE, FOR PLEASURE TRIPS OR FOR PURPOSES OTHER THAN WITH INTENT TO CHANGE THE DEPENDENT'S RESIDENCE. THUS, THE RIGHT TO TRANSPORTATION OF DEPENDENTS AT THE EXPENSE OF THE GOVERNMENT IS NOT AN ALLOWANCE PAYABLE IN ALL EVENTS ON THE BASIS THAT SOME TRAVEL WAS PERFORMED. EVEN THOUGH TRAVEL IS PERFORMED, NO RIGHT TO REIMBURSEMENT BY THE GOVERNMENT ARISES UNLESS THE TRAVEL MAY BE CONSIDERED AS INCIDENT TO A CHANGE OF RESIDENCE RESULTING FROM AN ORDERED PERMANENT CHANGE OF STATION FOR THE MEMBER IN THE SERVICE. 33 COMP. GEN. 431.

YOU CONTEND THAT WHEN YOU AND YOUR WIFE ARRIVED IN NEWBERG, OREGON, ON DECEMBER 2, 1956, YOU HADN-T PLANNED ON A DIVORCE, YOUR INTENTION THEN BEING THAT YOUR WIFE WOULD REMAIN THERE WITH YOUR RELATIVES WHILE YOU PROCEEDED TO YOUR DUTY STATION AT FORT CHAFFEE. NO EVIDENCE HAS BEEN PRESENTED TO SUPPORT THAT CONTENTION, HOWEVER, AND THE AVAILABLE RECORD DOES NOT SHOW THE DATE ON WHICH DIVORCE PROCEEDINGS WERE INSTITUTED. THE FACT THAT THE DIVORCE, IN WHICH YOU WERE THE PLAINTIFF, WAS GRANTED IN LITTLE MORE THAN A MONTH AFTER YOUR ARRIVAL AT NEWBERG, PRESUMABLY FOLLOWING A COMPLIANCE WITH ALL OF THE PROCEDURAL REQUIREMENTS OF THE LAW OF THAT JURISDICTION, WOULD APPEAR TO REBUT A FINDING THAT YOUR WIFE INTENDED TO RESIDE THERE. IN SUCH CIRCUMSTANCES WE WOULD NOT BE WARRANTED IN CONCLUDING THAT HER TRAVEL FROM OAKLAND, CALIFORNIA, TO NEWBERG, OREGON, WAS INCIDENT TO AND FOR THE PURPOSE OF ESTABLISHING A RESIDENCE AT NEWBERG WITHIN THE CONTEMPLATIONS OF THE REGULATIONS, AND, HENCE, WE PROPERLY MAY NOT AUTHORIZE PAYMENT OF YOUR CLAIM FOR THE TRAVEL OF YOUR DEPENDENT FROM OAKLAND, CALIFORNIA, TO NEWBERG, OREGON.

PARAGRAPH 9003-1, JOINT TRAVEL REGULATIONS, CORRESPONDINGLY PROHIBITS THE PAYMENT OF A DISLOCATION ALLOWANCE IN CONNECTION WITH PERMANENT CHANGE OF STATION TRAVEL PERFORMED BY DEPENDENTS TO A PLACE AT WHICH THEY DO NOT INTEND TO ESTABLISH A RESIDENCE.

ACCORDINGLY, ON THE BASIS OF THE PRESENT RECORD, THE DISALLOWANCE OF YOUR CLAIM BY OUR SETTLEMENT DATED APRIL 4, 1961, IS SUSTAINED.