B-173715, DEC 8, 1971, 51 COMP GEN 362

B-173715, DEC 8, 1971, 51 COMP GEN 362

TRANSPORTATION - DEPENDENTS - MILITARY PERSONNEL - CHANGES IN GRADE OR RANK - INEFFECTIVE FOR ENTITLEMENT PURPOSES AN ENLISTED MAN MARRIED IN HONOLULU, HIS HOME, PRIOR TO ENLISTING IN THE ARMY IN 1968, WHERE HIS WIFE CONTINUED TO RESIDE WHEN HE WAS ASSIGNED TO VIETNAM IN AN INELIGIBLE GRADE FOR DEPENDENT TRAVEL, WHO IN 1970 PRIOR TO THE EFFECTIVE DATE OF A PERMANENT STATION CHANGE TO TEXAS WAS PROMOTED TO SP-5, AN ELIGIBLE PAY GRADE FOR DEPENDENT TRANSPORTATION, NEVERTHELESS IS NOT ENTITLED TO REIMBURSEMENT FOR HIS WIFE'S TRANSOCEANIC TRAVEL, EVEN THOUGH HIS STATUS IS SIMILAR TO THAT OF A MEMBER WHO ACQUIRED A DEPENDENT OVERSEAS SINCE HE DID NOT ACQUIRE HIS DEPENDENT AT HIS OVERSEAS STATION AND DID NOT HAVE AT LEAST 12 MONTHS REMAINING ON HIS OVERSEAS TOUR, NOR HAD HIS DEPENDENT BEEN AUTHORIZED TO BE PRESENT IN THE VICINITY OF HIS OVERSEAS STATION AND HE, THEREFORE, IS REGARDED AS A MEMBER "WITHOUT DEPENDENTS" WITHIN THE MEANING OF AR 55-46, AND SUBJECT TO THE RESTRICTIONS OF PARAGRAPH M7000 14 OF THE JOINT TRAVEL REGULATIONS.

TO MAJOR J. E. PERHAM, DEPARTMENT OF THE ARMY, DECEMBER 8, 1971:

WE AGAIN REFER TO YOUR LETTER FINCS-A, REQUESTING A DECISION AS TO THE ENTITLEMENT OF SP-5 RONALD T. TAKENAKA TO REIMBURSEMENT FOR HIS WIFE'S TRAVEL FROM HONOLULU, HAWAII, TO LOS ANGELES, CALIFORNIA, IN THE DESCRIBED CIRCUMSTANCES. THE REQUEST WAS ASSIGNED CONTROL NO. 71-30 BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

THE CIRCUMSTANCES SHOWN ARE THAT MR. TAKENAKA WAS MARRIED PRIOR TO ENLISTING IN THE ARMY ON SEPTEMBER 24, 1968. HAWAII WAS HIS HOME AT TIME OF ENTRY INTO THE ARMY AND HIS WIFE CONTINUED TO RESIDE IN HAWAII. WHEN HE WAS ASSIGNED TO VIETNAM HE WAS NOT IN AN ELIGIBLE GRADE FOR DEPENDENT TRAVEL. BY ORDERS DATED MARCH 27, 1970, HE WAS TRANSFERRED FROM VIETNAM TO FORT HOOD, TEXAS, AS A PERMANENT CHANGE OF STATION. THIRTY DAYS' LEAVE ENROUTE WAS AUTHORIZED.

HE DEPARTED VIETNAM ON APRIL 4, 1970, AND WAS PROMOTED TO SP-5, A PAY GRADE ELIGIBLE FOR TRANSPORTATION OF DEPENDENTS, ON APRIL 20, 1970, PRIOR TO THE EFFECTIVE DATE OF THE ORDERS. HIS WIFE TRAVELED FROM HONOLULU, HAWAII, TO LOS ANGELES, CALIFORNIA, BY COMMERCIAL AIR, THENCE TO TEMPLE, TEXAS, BY PRIVATELY OWNED VEHICLE DURING THE PERIOD APRIL 30 TO MAY 9, 1970. MR. TAKENAKA HAS RECEIVED A DISLOCATION ALLOWANCE AND WAS REIMBURSED ON A MILEAGE BASIS FOR HIS WIFE'S TRAVEL FROM LOS ANGELES TO FORT HOOD. YOUR QUESTION IS WHETHER HE IS ENTITLED TO REIMBURSEMENT FOR HIS WIFE'S TRANSOCEANIC TRAVEL FROM HONOLULU TO LOS ANGELES.

YOU MENTION THAT PARAGRAPH 7C(2), ARMY REGULATION 55-46, PROVIDES THAT WHEN A DEPENDENT IS ACQUIRED IN AN OVERSEAS AREA AND OVERSEAS TRANSPORTATION IS NOT AUTHORIZED, TRAVEL ALLOWANCE FOR THE DEPENDENT IS AUTHORIZED FOR LAND TRAVEL FROM POINT OF ENTRY INTO THE UNITED STATES TO THE MEMBER'S NEXT PERMANENT DUTY STATION IF HE IS OTHERWISE ELIGIBLE. YOUR DOUBT, HOWEVER, ARISES FROM THE FACT THAT THE MEMBER WAS OF AN INELIGIBLE GRADE WHEN ASSIGNED TO VIETNAM AND BECAME ELIGIBLE FOR DEPENDENT TRAVEL AFTER DEPARTING HIS STATION BUT PRIOR TO THE EFFECTIVE DATE OF PERMANENT CHANGE-OF-STATION ORDERS. YOU EXPRESS THE BELIEF THAT HIS STATUS CHANGED FROM A MEMBER WITHOUT DEPENDENT TO A MEMBER WITH DEPENDENT AS IF THE DEPENDENT WAS ACQUIRED IN AN OVERSEAS AREA AND QUESTION THE APPLICATION OF DECISION REPORTED IN 40 COMP. GEN. 577 (1961).

IN THAT DECISION WE HELD THAT MEMBERS WHO, WHILE ASSIGNED TO RESTRICTED AREAS, ARE PROMOTED TO GRADES ENTITLING THEM TO TRANSPORTATION OF DEPENDENTS ARE ENTITLED TO THE SAME TRANSPORTATION BENEFITS UPON SUBSEQUENT PERMANENT CHANGE OF STATION TO AN UNRESTRICTED AREA AS PERSONNEL WHO WERE SERVING IN ELIGIBLE GRADES BEFORE LEAVING THE UNITED STATES AND THAT SUCH ENTITLEMENT EXISTS EVEN THOUGH THE DEPENDENTS BEGIN TRAVEL FROM A PLACE TO WHICH THEY HAD NOT TRAVELED AT GOVERNMENT EXPENSE. YOU POINT OUT, HOWEVER, THAT IN THE CASE THERE CONSIDERED, THE TRAVEL OF DEPENDENTS TO THE NEW STATION IN THE UNITED STATES BEGAN AT A POINT WITHIN THE CONTINENTAL UNITED STATES, AND THERE WAS NOT INVOLVED ANY QUESTION CONCERNING THE RETURN OF A DEPENDENT FROM OVERSEAS.

PARAGRAPH M7000-14 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT TRANSOCEANIC OR OVERSEAS LAND TRAVEL IS NOT AUTHORIZED AT GOVERNMENT EXPENSE WHEN THE MEMBER IS CONSIDERED TO BE A MEMBER WITHOUT DEPENDENTS AS DEFINED IN PARAGRAPH M4300-2, ITEMS 3 AND 4 OF THOSE REGULATIONS. PARAGRAPH M4300-2 DEFINES THE TERM "MEMBER WITHOUT DEPENDENTS" TO INCLUDE THOSE IN AN INELIGIBLE PAY GRADE. ITEMS 3 AND 4 OF THAT PARAGRAPH FURTHER DEFINE THE TERM "MEMBER WITHOUT DEPENDENTS" TO INCLUDE (3) "THE REMAINDER OF ANY TOUR IN WHICH DEPENDENTS JOIN OR ARE ACQUIRED AND THE MEMBER IS NOT CONSIDERED TO BE A MEMBER WITH DEPENDENTS UNDER SUBPARAGRAPH 1," OR (4) "WHOSE DEPENDENTS ARE NOT AUTHORIZED BY THE APPROPRIATE MILITARY COMMANDER TO BE PRESENT IN THE VICINITY OF THE MEMBER'S OVERSEAS DUTY STATION."

SUBPARAGRAPH 1 OF PARAGRAPH M4300, DEFINING THE TERM "MEMBER WITH DEPENDENTS," INCLUDES (ITEM 2) A MEMBER IN AN ELIGIBLE GRADE WHO IS JOINED BY OR ACQUIRES DEPENDENTS WHILE SERVING OUTSIDE THE UNITED STATES PROVIDED HE HAS AT LEAST 12 MONTHS REMAINING ON HIS OVERSEAS TOUR AFTER ARRIVAL OR ACQUISITION OF DEPENDENTS, OR SERVES THE ACCOMPANIED TOUR OF DUTY AT THAT STATION, WHICHEVER IS CONSIDERED TO BE IN THE BEST INTERESTS OF THE GOVERNMENT AS DETERMINED BY THE SERVICE CONCERNED. A PROVISION PROHIBITING TRANSOCEANIC OR OVERSEAS LAND TRAVEL FOR DEPENDENTS UNDER LIKE CIRCUMSTANCES IS CONTAINED IN PARAGRAPH V-C-10, DEPARTMENT OF DEFENSE DIRECTIVE 1315.7.

SINCE MR. TAKENAKA REACHED A PAY GRADE ELIGIBLE FOR TRANSPORTATION OF DEPENDENTS WHILE SERVING OVERSEAS PRIOR TO THE EFFECTIVE DATE OF THE ORDERS OF MARCH 27, 1970, HIS SITUATION IS SIMILAR TO THAT OF A MEMBER WHO ACQUIRES A DEPENDENT WHILE SERVING OVERSEAS. SEE PARAGRAPH 8, AR 55-46. HOWEVER, HE DID NOT ACQUIRE HIS DEPENDENT AT HIS OVERSEAS STATION AND DID NOT HAVE AT LEAST 12 MONTHS REMAINING ON HIS OVERSEAS TOUR. NEITHER WAS THE DEPENDENT AUTHORIZED BY THE APPROPRIATE COMMANDER TO BE PRESENT IN THE VICINITY OF THE MEMBER'S OVERSEAS DUTY STATION. CONSEQUENTLY, HE IS TO BE REGARDED AS "WITHOUT DEPENDENTS" WITHIN THE MEANING OF THE REGULATION AND SUBJECT TO THE RESTRICTIONS OF PARAGRAPH M7000-14. THEREFORE, HE IS NOT ENTITLED TO REIMBURSEMENT FOR HIS WIFE'S TRANSOCEANIC TRAVEL FROM HONOLULU TO LOS ANGELES. HE WAS, HOWEVER, ENTITLED TO REIMBURSEMENT FOR HER LAND TRAVEL FROM PORT OF ENTRY IN THE UNITED STATES TO HIS NEW STATION AND TO DISLOCATION ALLOWANCE.

SINCE PAYMENT IS NOT AUTHORIZED ON THE VOUCHER FOR OCEAN TRAVEL, IT WILL BE RETAINED HERE.