B-155344, JAN. 15, 1965

B-155344, JAN. 15, 1965

TO LIEUTENANT COLONEL DONALD W. VOLLETT, 13969A:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 24, 1964, REQUESTING REVIEW OF SETTLEMENT DATED JULY 2, 1964, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT FOR YOUR DEPENDENT DAUGHTER'S TRAVEL FROM WRIGHTSTOWN, NEW JERSEY, TO VIRGINIA COTTAGE, BAILEYS BAY, HAMILTON PARISH, BERMUDA, ON MARCH 22, 1964, AND FOR DISLOCATION ALLOWANCE, FAMILY SEPARATION ALLOWANCE FOR THE PERIOD JANUARY 19 TO MARCH 21, 1964, INTERIM HOUSING ALLOWANCE FOR THE PERIOD JANUARY 24 TO MARCH 22, 1964, AND HOUSING AND COST OF LIVING ALLOWANCE AS A MEMBER WITH ONE DEPENDENT FROM MARCH 22 TO APRIL 30, 1964.

BY ORDERS DATED DECEMBER 24, 1963, YOU WERE RELIEVED FROM YOUR DUTY ASSIGNMENT AT MCGUIRE AIR FORCE BASE, NEW JERSEY, AND ASSIGNED TO DUTY WITH 55TH AIR RESCUE SQUADRON (MATS) APO 856, NEW YORK, NEW YORK, WITH 4 DAYS' TEMPORARY DUTY EN ROUTE AT THE NAVAL AIR STATION, BROOKLYN, NEW YORK. THE ORDERS PROVIDED THAT CONCURRENT TRAVEL OF DEPENDENTS WAS NOT AUTHORIZED. YOU ARRIVED AT YOUR DUTY STATION ON JANUARY 19, 1964, HAVING DEPARTED FROM MCGUIRE AIR FORCE BASE THE SAME DAY. BY ORDERS DATED FEBRUARY 27, 1964, AS AMENDED, YOUR DAUGHTER WAS AUTHORIZED TO PROCEED FROM WRIGHTSTOWN, NEW JERSEY, WHERE SHE WAS ATTENDING SCHOOL, TO YOUR DUTY STATION, KINDLEY AIR FORCE BASE, BERMUDA, ON OR AFTER MARCH 1, 1964, BUT NOT UNTIL RECEIVING FURTHER AUTHORIZATION FROM THE TRANSPORTATION OFFICER, MCGUIRE AIR FORCE BASE. SHE DEPARTED FROM THAT BASE ON MARCH 22 BY GOVERNMENT AIR TRANSPORTATION AND ARRIVED AT YOUR STATION THE SAME DAY. AFTER A STAY OF 2 WEEKS, SHE WAS FURNISHED GOVERNMENT TRANSPORTATION TO MCGUIRE AIR FORCE BASE, NEW JERSEY, IN TIME TO REPORT TO HER CLASSES IN HIGH SCHOOL IN WRIGHTSTOWN, NEW JERSEY, AFTER THE EASTER VACATION RECESS. YOUR CLAIM WAS DISALLOWED BY SETTLEMENT DATED JULY 2, 1964, FOR THE REASON THAT IT APPEARED THAT YOUR DEPENDENT'S TRAVEL WAS PERFORMED ONLY TO SPEND HER EASTER VACATION WITH YOU IN BERMUDA RATHER THAN FOR THE PURPOSE OF ESTABLISHING A RESIDENCE THERE.

IN YOUR PRESENT LETTER YOU SAY THAT THE SITUATION PRESENTED IN YOUR CLAIM IS SIMILAR TO THAT CONSIDERED IN 38 COMP. GEN. 489, IN THAT YOUR RESIDENCE IN BERMUDA ACTUALLY IS YOUR DAUGHTER'S BONA FIDE PERMANENT RESIDENCE AND THAT SHE WAS TEMPORARILY ABSENT FROM THERE WHILE SHE COMPLETED HER FINAL YEAR IN SCHOOL.

UNDER THE PROVISIONS OF 37 U.S.C. 406 AND 407, AUTHORITY IS PROVIDED FOR THE TRANSPORTATION OF A MEMBER'S DEPENDENTS AND FOR THE PAYMENT OF A DISLOCATION ALLOWANCE INCIDENT TO A PERMANENT CHANGE OF STATION. PARAGRAPH 7000, JOINT TRAVEL REGULATIONS, PROMULGATED PURSUANT TO THAT AUTHORITY, PROVIDES FOR TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE UPON PERMANENT CHANGE OF STATION OF THE MEMBER, EXCEPT SUCH EXPENSE MAY NOT BE CONSIDERED AS OBLIGATION OF THE GOVERNMENT (PARAGRAPH 7000-13, IN EFFECT AT THE TIME) FOR ANY TRAVEL OF DEPENDENTS BETWEEN POINTS OTHERWISE AUTHORIZED IN THE REGULATIONS TO A PLACE AT WHICH THEY DO NOT INTEND TO ESTABLISH A RESIDENCE. WE HAVE CONSISTENTLY HELD THAT TRAVEL OF DEPENDENTS MAY NOT BE CONSIDERED TO BE WITHIN THE INTENT AND PURPOSE OF THE LAW AND REGULATIONS AUTHORIZING SUCH TRAVEL UNLESS THE TRAVEL ACTUALLY IS PERFORMED FOR THE PURPOSE OF A CHANGE IN RESIDENCE IN CONNECTION WITH A CHANGE OF STATION OF THE PERSON IN THE ARMED SERVICES. REIMBURSEMENT FOR TRAVEL OF DEPENDENTS FOR OTHER THAN SUCH PURPOSE OR FOR VISITS OR PLEASURE TRIPS IS NOT AUTHORIZED. 33 COMP. GEN. 431.

IT SEEMS CLEAR FROM THE RECORD BEFORE US THAT WHEN YOU WERE TRANSFERRED FROM MCGUIRE AIR FORCE BASE TO BERMUDA, THE CONCURRENT TRAVEL OF YOUR DAUGHTER WAS NOT AUTHORIZED AND HER RESIDENCE WAS ESTABLISHED AT WRIGHTSTOWN WHERE SHE WAS ATTENDING SCHOOL, IT BEING INTENDED THAT SHE WOULD CONTINUE TO RESIDE THERE UNTIL SHE COMPLETED THE SCHOOL YEAR IN JUNE. WHILE THE ORDERS OF FEBRUARY 27, 1964, AS AMENDED, AUTHORIZED HER TRAVEL TO YOUR STATION, IT IS CLEAR THAT THE TRAVEL WAS NOT PERFORMED WITH THE INTENTION OF REMAINING THERE AS HER PLACE OF RESIDENCE. RATHER, IT WAS PERFORMED WITH THE INTENTION OF RETURNING AFTER THE EASTER VACATION TO WRIGHTSTOWN TO COMPLETE THE SCHOOL YEAR. IN THESE CIRCUMSTANCES THE TRAVEL MAY NOT BE REGARDED, WITHIN THE CONTEMPLATION OF THE APPLICABLE REGULATIONS WITH RESPECT TO TRAVEL OF DEPENDENTS, AS HAVING BEEN PERFORMED FOR THE PURPOSE OF CHANGING HER RESIDENCE.

CONCERNING THE PAYMENT OF DISLOCATION ALLOWANCE, THE JOINT TRAVEL REGULATIONS (CHAPTER 9) AUTHORIZE THE PAYMENT OF A DISLOCATION ALLOWANCE, IN OTHERWISE PROPER CASES, WHERE THE HOUSEHOLD OF A MEMBER WITH DEPENDENTS IS ACTUALLY RELOCATED PURSUANT TO A PERMANENT CHANGE OF STATION. THE PURPOSE OF THE DISLOCATION ALLOWANCE IS TO PARTIALLY REIMBURSE A MEMBER WITH DEPENDENTS FOR EXPENSES INCURRED IN RELOCATING THE HOUSEHOLD OF HIS DEPENDENTS WHEN REQUIRED INCIDENT TO A PERMANENT CHANGE OF STATION. PARAGRAPH 9003-1 OF THE REGULATIONS IN EFFECT AT THE TIME, PROHIBITS THE PAYMENT OF A DISLOCATION ALLOWANCE IN CONNECTION WITH TRAVEL PERFORMED BY DEPENDENTS WHEN IT IS NOT PERFORMED FOR THE PURPOSE OF CHANGING THE DEPENDENTS' RESIDENCE.

IN OUR DECISION OF JANUARY 13, 1959, 38 COMP. GEN. 489, TO WHICH YOU REFER, WE CONSIDERED THE SITUATION OF AN OFFICER WHO ARRIVED AT HIS NEW OVERSEAS DUTY STATION WITH HIS DEPENDENT SON WHO SUBSEQUENTLY LEFT TO ATTEND SCHOOL IN ANOTHER COUNTRY AND WHO RETURNED HOME ON WEEK ENDS. THAT DECISION TURNED ON THE FACT THAT THE DEPENDENT SON WAS ATTENDING MEMBER'S RESIDENCE AND ACTUALLY RESIDED WITH HIM IN THE SAME HOUSEHOLD DURING ALL PERIODS HE WAS NOT REQUIRED TO BE PRESENT AT HIS SCHOOL. THE FACTS IN YOUR SITUATION ARE NOT ANALOGOUS TO THAT SITUATION IN THAT IT APPEARS THAT YOUR DAUGHTER'S RESIDENCE ACTUALLY WAS ESTABLISHED AT WRIGHTSTOWN AT THE TIME YOU WERE TRANSFERRED TO BERMUDA AND THERE WAS NO INTENTION TO CHANGE SUCH PLACE OF RESIDENCE UNTIL THE CLOSE OF THE SCHOOL YEAR, HER TRIP TO YOUR DUTY STATION IN MARCH 1964 HAVING BEEN ONLY FOR THE PURPOSE OF A VISIT WITH YOU WHILE SHE WAS ON VACATION. CONSEQUENTLY, THERE IS NO AUTHORITY FOR REIMBURSEMENT FOR HER TRAVEL FROM WRIGHTSTOWN, NEWJERSEY TO VIRGINIA COTTAGE, BAILEYS BAY, HAMILTON PARISH, BERMUDA, AND THE PAYMENT OF A DISLOCATION ALLOWANCE. ALSO, THE GOVERNING REGULATIONS (PART G, CHAPTER 4, JOINT TRAVEL REGULATIONS, PARAGRAPH 4301 AND 4302) PROVIDE FOR THE PAYMENT OF COST OF LIVING ALLOWANCE AND INTERIM HOUSING ALLOWANCE TO MEMBERS WITH DEPENDENTS WHOSE DEPENDENTS ARRIVE AT OR IN THE VICINITY OF THEIR DUTY STATION OUTSIDE THE UNITED STATES TO RESIDE WITH THE MEMBER. PARAGRAPH 4300 DEFINES THE TERM "MEMBER WITH DEPENDENTS," AS USED IN THAT PART OF THE REGULATIONS AS MEANING A MEMBER IN AN ELIGIBLE GRADE WHO IS AUTHORIZED TO HAVE HIS DEPENDENTS RESIDE AT OR IN THE VICINITY OF HIS DUTY STATION OUTSIDE THE UNITED STATES AND WHOSE DEPENDENTS DO SO RESIDE. SINCE YOUR DAUGHTER TRAVELED TO YOUR STATION ONLY FOR THE PURPOSE OF A VISIT RATHER THAN TO RESIDE THERE, THERE IS NO LEGAL BASIS TO ALLOW YOUR CLAIM FOR THE COST OF LIVING ALLOWANCE AND THE INTERIM HOUSING ALLOWANCE.

WITH RESPECT TO YOUR CLAIM FOR FAMILY SEPARATION ALLOWANCE PURSUANT TO THE PROVISIONS OF 37 U.S.C. 427/B), YOUR ORDERS OF DECEMBER 24, 1963, PROVIDED THAT CONCURRENT TRAVEL OF YOUR DEPENDENT TO YOUR STATION WAS NOT AUTHORIZED AND THAT TRAVEL OF THE DEPENDENT WAS AUTHORIZED TO A DESIGNATED POINT IN THE UNITED STATES. IN SUCH CIRCUMSTANCES WE HAVE HELD THAT IT MAY BE CONSIDERED THAT THE MOVEMENT OF A MEMBER'S DEPENDENT TO HIS PERMANENT DUTY STATION OR A PLACE NEAR THAT STATION IS NOT AUTHORIZED AT THE EXPENSE OF THE UNITED STATES UNDER 37 U.S.C. 406 WITHIN THE MEANING OF CLAUSE (1) OF 37 U.S.C. 427 (B). 43 COMP. GEN. 332, ANSWER TO QUESTION NO. 14. IN DECISION OF DECEMBER 22, 1963, 43 COMP. GEN. 444, WE SAID THAT IF A MEMBER'S SOLE DEPENDENT, IS A CHILD WHO IS LIVING APART FROM THE MEMBER WHILE ATTENDING SCHOOL, THE FACT THAT THE MEMBER PAYS FOR THE CHILD'S LODGING AND SUBSISTENCE AT THE SCHOOL AFFORDS NO BASIS FOR PAYMENT OF FAMILY SEPARATION ALLOWANCE UNDER SECTION 427/B) IF THE MEMBER MAINTAINS NO OTHER QUARTERS FOR THEM TO SHARE AS A RESIDENCE WHEN CIRCUMSTANCES WOULD PERMIT. WE CONCLUDED, HOWEVER, THAT IF PRIOR TO THE CHILD'S DEPARTURE FOR SCHOOL THE MEMBER WAS MAINTAINING QUARTERS FOR THEM TO SHARE AS A RESIDENCE AND HE CONTINUES TO MAINTAIN SUCH A RESIDENCE DURING A CHILD'S ABSENCE AT SCHOOL, WE WOULD NOT QUESTION PAYMENTS OF THE ALLOWANCE IF OTHERWISE PROPER, BY REASON OF THE CHILD'S ABSENCE FROM THE RESIDENCE WHILE ATTENDING SCHOOL.

IT APPEARS THAT YOU OCCUPIED FAMILY-TYPE GOVERNMENT QUARTERS PRIOR TO YOUR DEPARTURE FROM MCGUIRE AIR FORCE BASE AND THAT, AFTER ARRIVAL AT YOUR STATION IN BERMUDA, YOU PROCURED PRIVATE FAMILY-TYPE QUARTERS TO BE SHARED WITH YOUR DAUGHTER WHEN SHE CAME THERE TO RESIDE WITH YOU. SINCE THE RESTRICTION ON HER TRAVEL TO YOUR STATION APPARENTLY WAS LIFTED AND SHE WAS AUTHORIZED BY THE TRANSPORTATION OFFICER TO COMMENCE SUCH TRAVEL ON MARCH 22, 1964, IT IS CONCLUDED THAT YOU ARE ENTITLED TO FAMILY SEPARATION ALLOWANCE AS CLAIMED FOR THE PERIOD JANUARY 19 THROUGH MARCH 21, 1964, AND A SETTLEMENT FOR THE AMOUNT DUE WILL BE ISSUED IN YOUR FAVOR BY OUR CLAIMS DIVISION.

IN VIEW OF THE STATEMENT IN YOUR LETTER OF SEPTEMBER 24, 1964, THAT YOUR DEPENDENT HAS RETURNED FROM HER TEMPORARY ABSENCE AND IS RESIDING WITH YOU, IT MAY BE THAT YOU ARE NOW ENTITLED TO TRAVEL AND OTHER ALLOWANCES INCIDENT TO HER TRAVEL TO YOUR DUTY STATION TO RESIDE WITH YOU AFTER SHE COMPLETED THE SCHOOL YEAR AT WRIGHTSTOWN. IT IS SUGGESTED THAT YOU PRESENT A CLAIM THROUGH ADMINISTRATIVE CHANNELS FOR ANY AMOUNT YOU BELIEVE YOU ARE ENTITLED TO INCIDENT TO SUCH TRAVEL.