B-159932, NOV. 4, 1966

B-159932, NOV. 4, 1966

TO WILLIAM CAHALL, SP5, RA:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 9, 1966, AND ENCLOSURES TO THE FINANCE CENTER, UNITED STATES ARMY, INDIANAPOLIS, INDIANA, APPEALING OUR SETTLEMENT DATED NOVEMBER 30, 1965, WHICH DISALLOWED YOUR CLAIM FOR DISLOCATION ALLOWANCE AND REIMBURSEMENT FOR TRAVEL OF YOUR DEPENDENT DAUGHTER FROM POTTSVILLE, PENNSYLVANIA, TO LOS ANGELES, CALIFORNIA, ON JUNE 23, 1965, INCIDENT TO YOUR SERVICE IN THE UNITED STATES ARMY.

BY PARAGRAPH 9, SPECIAL ORDERS NO. 79, UNITED STATES ARMY HUMPHREYS DISTRICT COMMAND, APO U.S. FORCES 96271, DATED MAY 5, 1965, YOU WERE REASSIGNED FROM DUTY IN KOREA TO THE U.S. ARMY RECRUITING MAIN STATION, LOS ANGELES, CALIFORNIA, EFFECTIVE JUNE 23, 1965. THIRTY DAYS' DELAY AS LEAVE WAS AUTHORIZED WITH LEAVE ADDRESS SHOWN AS PHILADELPHIA, PENNSYLVANIA.

IN AN AFFIDAVIT DATED JUNE 16, 1965, SUBMITTED IN SUPPORT OF YOUR CLAIM YOU AVER THAT ON MARCH 26, 1963, YOU WERE DIVORCED FROM YOUR WIFE; THAT LEGAL CUSTODY OF YOUR MINOR DAUGHTER WAS NOT AWARDED IN THE DIVORCE PROCEEDING; AND THAT NO AWARD OF HER CUSTODY HAS BEEN MADE. ALSO, YOU AVER THAT YOU ARE REQUIRED TO SUPPORT YOUR DAUGHTER UNTIL SHE REACHES THE AGE OF 18 AND THAT, WHILE SHE LIVED WITH HER MOTHER IN POTTSVILLE, PENNSYLVANIA, UNTIL JUNE 23, 1965, SHE THEN TRAVELED TO LOS ANGELES WITH THE CONSENT OF YOUR FORMER WIFE, TO LIVE WITH YOU. HOWEVER, IN AN APPLICATION FOR BASIC ALLOWANCE FOR QUARTERS FOR DEPENDENTS, SIGNED BY YOU JULY 22, 1965, YOU STATED THAT YOUR DAUGHTER'S CURRENT ADDRESS WAS 115 QUEEN STREET, POTTSVILLE, PENNSYLVANIA, WHICH WAS THE ADDRESS OF YOUR FORMER WIFE AND THAT YOU CONTRIBUTED $105 MONTHLY FOR THE SUPPORT OF YOUR DAUGHTER.

A REPORT FROM HEADQUARTERS, U.S. ARMY, 6TH RECRUITING DISTRICT, PRESIDIO OF SAN FRANCISCO, CALIFORNIA, DATED SEPTEMBER 23, 1965, STATED THAT YOUR DAUGHTER MAINTAINED HER RESIDENCE WITH HER MOTHER DURING YOUR OVERSEAS TOUR AND THAT SHE TRAVELED TO LOS ANGELES JUNE 24, 1965, ALLEGEDLY TO ESTABLISH A RESIDENCE AT 520 SOUTH SERRANO AVENUE, LOS ANGELES, AND DEPARTED ON JULY 27, 1965, TO RETURN TO HER FORMER RESIDENCE IN POTTSVILLE, PENNSYLVANIA. ON THE BASIS OF THE REPORT, YOUR CLAIM WAS TRANSMITTED TO OUR OFFICE FOR SETTLEMENT AND BY SETTLEMENT DATED NOVEMBER 30, 1965, IT WAS DISALLOWED FOR THE REASONS THERE STATED.

IN YOUR LETTER OF JUNE 9, 1966, APPEALING THE DISALLOWANCE, YOU STATED THAT YOU DID HAVE CUSTODY OF YOUR DAUGHTER AT THE TIME YOU SUBMITTED YOUR CLAIM, CONTENDING THAT UNDER THE LAWS OF PENNSYLVANIA THE PARENT WHOM THE CHILD IS WITH HAS CUSTODY AT THAT TIME. YOU STATED FURTHER THAT YOUR DAUGHTER MAINTAINED A RESIDENCE IN LOS ANGELES WITH THE INTENTION OF STAYING, BUT SHE RETURNED TO PENNSYLVANIA AT THE REQUEST OF HER MOTHER. YOU ALSO ENCLOSED COPIES OF LETTERS FROM YOUR FORMER WIFE, DATED MAY 20, 1966, TO SHOW THAT YOUR WIFE HAS AGREED THAT YOU HAVE CUSTODY OF YOUR DAUGHTER AND YOU INDICATED YOU RECEIVED A SIMILAR LETTER BEFORE YOU RETURNED FROM OVERSEAS.

ONE OF THE ENCLOSED LETTERS IS A STATEMENT DATED MAY 20, 1966, SIGNED BY YOUR FORMER WIFE, IN WHICH SHE SAYS THAT SHE THEREBY GAVE FULL CONSENT FOR YOUR DAUGHTER TO LIVE WITH YOU FOR AS LONG AS IT IS NECESSARY OR DESIRED BY YOU OR YOUR DAUGHTER, AND THAT SHE RELINQUISHED ALL RIGHTS TO SUPPORT MONEY FOR YOUR DAUGHTER'S SUPPORT FROM THE TIME SHE BEGINS RESIDING WITH YOU. IN THE SECOND LETTER DATED MAY 20, YOUR FORMER WIFE STATED SHE HAD BEEN HAVING DIFFICULTIES WITH HER DAUGHTER SINCE THE DIVORCE AND THAT THE DAUGHTER NEEDED YOUR SUPERVISION. SHE THEREFORE SAID SHE WAS ENCLOSING THE LETTER GIVING HER CONSENT FOR HER DAUGHTER TO LIVE WITH YOU.

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 M7000-12, JOINT TRAVEL REGULATIONS, PROMULGATED PURSUANT TO THAT AUTHORITY, PROVIDES IN PERTINENT PART THAT MEMBERS OF THE UNIFORMED SERVICES ARE ENTITLED TO TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE UPON A PERMANENT CHANGE OF STATION EXCEPT FOR TRAVEL OF DEPENDENTS BETWEEN POINTS OTHERWISE AUTHORIZED TO A PLACE AT WHICH THEY DO NOT INTEND TO ESTABLISH A RESIDENCE. PARAGRAPH M9003-1 OF THE REGULATIONS 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.

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 AT GOVERNMENT EXPENSE 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 PURPOSES OR FOR VISITS OR PLEASURE TRIPS IS NOT AUTHORIZED. SEE 33 COMP. GEN. 431.

ALTHOUGH LEGAL CUSTODY OF YOUR DAUGHTER WAS NOT DETERMINED AT THE TIME OF YOUR DIVORCE, IT APPEARS FROM YOUR FORMER WIFE'S LETTER OF MAY 20,1966, AND FROM YOUR AFFIDAVIT OF JULY 16, 1965, THAT YOUR DAUGHTER CONTINUED TO LIVE WITH HER MOTHER AFTER THE DIVORCE. THERE IS NOTHING IN YOUR FORMER WIFE'S LETTER TO INDICATE THAT THE AUTHORIZATION DATED MAY 20, 1966, WAS NOT THE FIRST TIME SHE AGREED TO HAVE YOUR DAUGHTER LIVE WITH YOU AND THE RECORD DOES NOT INDICATE ANY PREVIOUS OCCASION IN WHICH ANY SUCH ARRANGEMENTS WERE MADE. AS STATED ABOVE, THE RECORD SHOWS THAT YOUR DAUGHTER ARRIVED IN LOS ANGELES ON JUNE 23, 1965, WHICH APPEARS TO BE JUST SUBSEQUENT TO THE END OF HER SCHOOL YEAR AND THAT SHE RETURNED TO HER MOTHER ON JULY 27, 1965. SINCE YOU STATED ON JULY 22, 1965, THAT YOUR DAUGHTER'S ADDRESS WAS WHERE YOUR FORMER WIFE WAS RESIDING AND THAT YOU WERE CONTRIBUTING $105 MONTHLY FOR YOUR DAUGHTER'S SUPPORT, WE MUST CONCLUDE IN THE CIRCUMSTANCES DISCLOSED THAT YOUR DAUGHTER'S STAY WITH YOU FROM JUNE 23 TO JULY 27, 1965, WAS IN THE NATURE OF A VISIT AND HER TRAVEL FOR THAT PURPOSE MAY NOT BE REGARDED AS HAVING BEEN PERFORMED FOR THE PURPOSE OF CHANGING HER RESIDENCE.

ACCORDINGLY, ON THE BASIS OF THE PRESENT RECORD, THE SETTLEMENT DATED NOVEMBER 30, 1965, IS SUSTAINED.