B-149206, AUG. 27, 1962

B-149206, AUG. 27, 1962

TO LIEUTENANT COMMANDER HUGH K. FRALSY, SC, USN:

REFERENCE IS MADE TO YOUR LETTER OF MAY 28, 1962, REQUESTING RECONSIDERATION OF SETTLEMENT DATED MAY 14, 1962, WHICH DISALLOWED YOUR CLAIM FOR MONETARY ALLOWANCE IN LIEU OF TRANSPORTATION FOR TRAVEL OF YOUR DEPENDENT PARENT (MOTHER) FROM SCHENECTADY, NEW YORK, TO HAYWARD, CALIFORNIA, ON OCTOBER 5, 1961.

BY ORDERS OF THE CHIEF OF NAVAL PERSONNEL, DATED AUGUST 21, 1952, ADDRESSED TO YOU AT BALLSTON LAKE, NEW YORK, YOU WERE DIRECTED, AS A MEMBER OF THE NAVAL RESERVE, TO PROCEED FOR A PHYSICAL EXAMINATION AND AFTER BEING FOUND PHYSICALLY FIT TO REPORT TO THE COMMANDING OFFICER, NAVAL SUPPLY CORPS SCHOOL, BAYONNE, NEW JERSEY, ON OR BEFORE NOVEMBER 3, 1952, FOR ACTIVE DUTY UNDER INSTRUCTION. UPON COMPLETION OF THE COURSE OF INSTRUCTION YOU WERE FURTHER DIRECTED BY ORDERS OF MARCH 19, 1953, TO REPORT TO THE COMMANDANT, TWELFTH NAVAL DISTRICT, SAN FRANCISCO, CALIFORNIA, ON MAY 5, 1953, FOR TRANSPORTATION TO THE PORT IN WHICH THE COMMANDER, SERVICE SQUADRON, THREE, WAS LOCATED (JAPAN) FOR DUTY ON HIS STAFF. BY ORDERS OF APRIL 9, 1954, YOU WERE REASSIGNED TO DUTY IN THE UNITED STATES AT THE ELECTRONICS SUPPLY OFFICE, GREAT LAKES, ILLINOIS, WHERE YOU SERVED UNTIL JANUARY 11, 1957, WHEN PURSUANT TO ORDERS DATED NOVEMBER 13, 1956, YOU PROCEEDED TO SAN DIEGO, CALIFORNIA, FOR DUTY AS SUPPLY OFFICER OF THE U.S.S. ON SLOW, AT WHICH TIME YOU STATE THAT YOUR RESIDENCE WAS ESTABLISHED AT HAYWARD, CALIFORNIA. IN ACCORDANCE WITH ORDERS DATED OCTOBER 27, 1958, YOU WERE DETACHED FROM THE U.S.S. ON SLOW ON JANUARY 30, 1959, AND ASSIGNED TO THE NAVAL SUPPLY CENTER, OAKLAND, CALIFORNIA, FOR DUTY.

THE RECORD SHOWS THAT YOUR MOTHER WAS IN FACT DEPENDENT UPON YOU DURING THE PERIOD HERE INSOLVED AND AT THE TIME OF YOUR CALL TO ACTIVE DUTY BY ORDERS OF AU UST 21, 1952, WAS RESIDING WITH YOU AND YOUR WIFE AT BALLSTON LAKE, NEW YORK. SHE CONTINUED TO RESIDE THERE UNTIL JULY 1953, AT WHICH TIME SHE MOVED TO SCHENECTADY, NEW YORK, WHILE YOUR WIFE PROCEEDED TO OAKLAND, CALIFORNIA, AND SHORTLY THEREAFTER JOINED YOU IN JAPAN WHERE A RESIDENCE WAS ESTABLISHED IN SASEBO. THE FILE FURTHER REFLECTS THAT ALTHOUGH YOU AND YOUR WIFE MAINTAINED LOCAL RESIDENCES IN CONNECTION WITH YOUR LATER ASSIGNMENTS IN THE CONTINENTAL UNITED STATES, YOUR MOTHER DID NOT JOIN YOUR HOUSEHOLD UPON YOUR RETURN IN 1954, BUT REMAINED IN SCHENECTADY, NEW YORK, UNTIL OCTOBER 5, 1961, WHEN SHE MOVED TO YOUR HOME IN HAYWARD, CALIFORNIA. YOU STATE THAT YOU BASE YOUR CLAIM ON THE FACT THAT SINCE YOUR DEPENDENT MOTHER WAS A MEMBER OF YOUR HOUSEHOLD IN JULY 1953, WHEN YOU DISESTABLISHED YOUR RESIDENCE AT HALLSTON LAKE AND YOUR WIFE PROCEEDED TO OAKLAND, YOU WERE THEN ENTITLED TO CORRESPONDING TRAVEL FOR YOUR MOTHER AND YOU BELIEVE THAT SUCH ENTITLEMENT WAS SAVED TO YOU BY THE PROVISIONS OF PARAGRAPH 7055 OF THE JOINT TRAVEL REGULATIONS.

CHAPTER 7 OF THE JOINT TRAVEL REGULATIONS, PROMULGATED PURSUANT TO THE AUTHORITY CONTAINED IN SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 253 (C), SETS FORTH THE CONDITIONS AND LIMITATIONS UNDER WHICH MEMBERS OF THE UNIFORMED SERVICES, WHEN ORDERED TO MAKE A CHANGE OF PERMANENT STATION, ARE ENTITLED TO TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE. UNDER THE PROVISIONS OF PARAGRAPH 7000, ITEM 12, OF THE REGULATIONS, A MEMBER IS NOT ENTITLED TO TRANSPORTATION TO HIS NEW DUTY STATION OF A DEPENDENT PARENT WHO DOES NOT ACTUALLY RESIDE IN THE HOUSEHOLD OF THE MEMBER UNLESS THE TRAVEL IS AUTHORIZED OR APPROVED BY THE SECRETARY CONCERNED OR HIS DESIGNATED REPRESENTATIVE. PARAGRAPH 7055 ENTITLES A MEMBER UPON ASSIGNMENT TO A NEW PERMANENT STATION TO TRANSPORTATION OF DEPENDENTS TO SUCH STATION AT GOVERNMENT EXPENSE, WITH DISTANCE LIMITATIONS, FROM THE PLACE THEY WERE RETAINED WHEN PREVIOUS PERMANENT CHANGE OF STATION ORDERS WERE RECEIVED, IRRESPECTIVE OF INTERIM CHANGES OF STATION. THE MEMBER'S RIGHT TO TRANSPORTATION OF DEPENDENTS UNDER THAT PARAGRAPH, HOWEVER, ARISES INCIDENT TO THE CURRENT CHANGE OF STATION AND NOT FROM ANY PREVIOUS STATION CHANGE, THE PLACE FROM WHICH MOVEMENT MIGHT BE MADE ON SUCH CURRENT CHANGE BEING THE ONLY THING DERIVED FROM ANY PREVIOUSLY AUTHORIZED MOVEMENT UPON WHICH THE RIGHT TO DEPENDENTS' TRANSPORTATION WAS NOT EXERCISED. SUCH PROVISION IN CASES INVOLVING DEPENDENT PARENTS DOES NOT NEGATE THE ABOVE EXCEPTION IN PARAGRAPH 7000, ITEM 12, TO A MEMBER'S ENTITLEMENT FOR TRAVEL BY PARENTS WHO DO NOT RESIDE IN HIS HOUSEHOLD ON THE EFFECTIVE DATE OF THE ORDERS AUTHORIZING THE MOVEMENT. WHILE A RIGHT TO TRANSPORTATION OF YOUR MOTHER AS A MEMBER OF YOUR HOUSEHOLD FROM BALLSTON LAKE TO OAKLAND ACCRUED TO YOU UNDER THE ORDERS OF AUGUST 21, 1952, AND MARCH 19, 1953, WHEN YOUR RESIDENCE AT BALLSTON LAKE WAS DISCONTINUED IN JULY 1953, THAT RIGHT WAS NOT EXERCISED AT THAT TIME, AND SINCE YOUR MOTHER THEN CEASED TO RESIDE IN YOUR HOUSEHOLD WITHIN THE CONTEMPLATION OF THE REGULATIONS, BENEFITS TO YOU UNDER PARAGRAPH 7055 FOR HER SUBSEQUENT TRAVEL TO HAYWARD ARE PRECLUDED BY OPERATION OF THE ABOVE-STATED PROVISION OF PARAGRAPH 7000, ITEM 12.

THE WORD "HOUSEHOLD" AS USED IN THE ACT AND REGULATIONS GENERALLY HAS BEEN CONSIDERED TO REFER TO THE HOUSE OR APARTMENT IN WHICH THE MEMBER RESIDES WITH HIS DEPENDENTS. 29 COMP. GEN. 280. CONSEQUENTLY, YOUR HOUSEHOLD IS CONSIDERED AS HAVING BEEN ESTABLISHED FOR THE PERIODS INVOLVED AT THOSE PLACES WHERE YOU AND YOUR WIFE RESIDED IN CONNECTION WITH YOUR PERMANENT DUTY ASSIGNMENTS, WHICH SUPPORTS THE VIEW THAT YOUR MOTHER MAY NOT BE REGARDED AS BEING A MEMBER OF YOUR HOUSEHOLD WHILE SHE RESIDED IN SCHENECTADY, SEPARATE AND APART FROM YOU AND YOUR WIFE. UNDER PARAGRAPH 7000, ITEM 12, IT IS RECOGNIZED THAT SITUATIONS WILL ARISE WHERE THE DEPENDENT PARENT'S RESIDENCE WITH THE MEMBER WILL BE INVOLUNTARILY INTERRUPTED BECAUSE OF VARIOUS REASONS SUCH AS OVERSEAS ORDERS, REASONS OF HEALTH, ETC. HENCE, IN SUCH SITUATIONS PROVISION IS MADE FOR PAYMENT OF THE TRAVEL EXPENSES OF THE DEPENDENT PARENT INCIDENT TO THE MEMBER'S PERMANENT CHANGE OF STATION IF THE TRAVEL IS AUTHORIZED OR APPROVED BY THE SECRETARY CONCERNED OR HIS DESIGNATED REPRESENTATIVE.

INASMUCH AS YOUR MOTHER WAS NOT ACTUALLY RESIDING IN YOUR HOUSEHOLD AT THE TIME OF YOUR ASSIGNMENT TO THE NAVAL SUPPLY CENTER IN OAKLAND, HER TRAVEL FROM SCHENECTADY TO HAYWARD FOR WHICH YOU CLAIM AN ALLOWANCE COMES WITHIN THE EXCEPTION TO ENTITLEMENT LISTED AS ITEM 12 IN PARAGRAPH 7000, AND SINCE THERE IS NO EVIDENCE THAT SUCH TRAVEL WAS SPECIFICALLY AUTHORIZED OR APPROVED BY THE SECRETARY OR HIS REPRESENTATIVE AS PROVIDED FOR IN THE EXCEPTION, WE HAVE NO LEGAL BASIS TO ALLOW YOUR CLAIM. COMPARE 39 COMP. GEN. 335.

ACCORDINGLY, ON THE BASIS OF THE PRESENT RECORD, THE SETTLEMENT OF MAY 14, 1962, IS SUSTAINED.