B-178859, MAR 13, 1974, 53 COMP GEN 667

B-178859, MAR 13, 1974, 53 COMP GEN 667

TRANSPORTATION - DEPENDENTS - MILITARY PERSONNEL - DEPENDENTS DELAYED TRAVEL - MEMBER TRANSFERRED TWICE SINCE THE DEPENDENTS OF A MEMBER OF THE UNIFORMED SERVICES DID NOT EXERCISE THE RIGHT TO GOVERNMENT TRANSPORTATION WHEN THE MEMBER WAS TRANSFERRED FROM HIS OLD PERMANENT DUTY STATION IN HAWAII TO A NEW PERMANENT DUTY STATION IN TEXAS, UPON THE MEMBER'S PERMISSIVE TRANSFER TO A SUBSEQUENT PERMANENT STATION IN CALIFORNIA, ALTHOUGH PAR. M7055, JOINT TRAVEL REGULATIONS (JTR), IS NOT FOR APPLICATION, THE DEPENDENTS MAY BE AFFORDED TRANSPORTATION AT GOVERNMENT EXPENSE FROM HAWAII TO CALIFORNIA FOR A DISTANCE THAT DOES NOT EXCEED THE DISTANCE FROM HAWAII TO TEXAS. HOWEVER, THE MEMBER IS NOT ENTITLED, PURSUANT TO PAR. M7000 13, JTR, TO GOVERNMENT TRANSPORTATION FOR A DEPENDENT WHO SUBSEQUENT TO HIS PERMANENT CHANGE OF STATION FROM HAWAII TO TEXAS TRAVELED TO FLORIDA TO ATTEND SCHOOL AND FOR HEALTH AND WELFARE REASONS, IN THE ABSENCE OF AN INDICATION THAT THE TRAVEL WAS FOR THE PURPOSE OF ESTABLISHING A RESIDENCE NOT OF A TEMPORARY NATURE.

TO R.V. BYARS, DEPARTMENT OF THE NAVY, MARCH 13, 1974:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 23, 1973 (FILE REFERENCE FFC (RVB) FT (OLF:IQ) 4650 (H)), WITH ENCLOSURES, REQUESTING AN ADVANCE DECISION CONCERNING THE LEGALITY OF MAKING PAYMENT OF DEPENDENT TRAVEL CLAIMS IN THE CASE OF ROY H. HECKERS, ENC, USN, XXX-XX-XXXX, IN THE DESCRIBED CIRCUMSTANCES. YOUR REQUEST HAS BEEN ASSIGNED PDTATAC CONTROL NO. 73-28 BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE, WHICH FORWARDED YOUR REQUEST TO THIS OFFICE BY ENDORSEMENT DATED JUNE 7, 1973.

YOU SAY THAT IN OCTOBER 1971 THE MEMBER WAS ORDERED FROM U.S.S. SAILFISH, SS-572 (HOMEPORT PEARL HARBOR, HAWAII) TO THE NAVAL AMPHIBIOUS SCHOOL, CORONADO DETACHMENT, BIGGS FIELD, FT. BLISS, TEXAS, FOR DUTY UNDER INSTRUCTION AND THAT HIS DEPENDENTS REMAINED IN HONOLULU, HAWAII. YOU INDICATE FURTHER THAT IN DECEMBER 1971 STEPDAUGHTER MICHELLE A. LAFAYETTE TRAVELED TO KEY WEST, FLORIDA, AND THAT CHIEF PETTY OFFICER HECKER STATED THAT THIS DEPENDENT'S TRAVEL WAS FOR THE PURPOSE OF ATTENDING SCHOOL AS WELL AS FOR HEALTH AND WELFARE REASONS.

IN MARCH 1972, PURSUANT TO CHIEF HECKERS' REQUEST, PERMISSIVE TYPE ORDERS WERE ISSUED, AUTHORIZING HIS TRANSFER TO THE DEFENSE LANGUAGE INSTITUTE AT NAVAL POSTGRADUATE SCHOOL, MONTEREY, CALIFORNIA, FOR 22 WEEKS. IT WAS STATED IN THE ORDERS THAT NO EXPENSE TO THE GOVERNMENT WAS AUTHORIZED IN CONNECTION WITH THEM AND THAT IF THE MEMBER DID NOT DESIRE TO BEAR THE EXPENSE, HE WAS TO REGARD THE ORDERS AS REVOKED. IN JUNE 1972 HIS WIFE AND REMAINING DEPENDENT STEPCHILDREN MOVED FROM HAWAII TO MONTEREY, CALIFORNIA.

UNDER THE CIRCUMSTANCES SET FORTH ABOVE, YOU EXPRESS DOUBT AS TO WHETHER THE MOVE OF ONE DEPENDENT TO KEY WEST, FLORIDA, COULD BE CONSIDERED AS INCIDENT TO THE PERMANENT CHANGE OF STATION AS PRESCRIBED IN PARAGRAPH 7000-2 OF THE NAVY TRAVEL INSTRUCTIONS. YOU ALSO QUESTION WHETHER THE MEMBER WOULD BE ENTITLED TO TRANSPORTATION FOR THE REMAINING DEPENDENTS UNDER THE PROVISIONS OF PARAGRAPH M7055 OF THE JOINT TRAVEL REGULATIONS.

THE STATUTORY AUTHORITY FOR TRANSPORTATION OF DEPENDENTS OF MILITARY PERSONNEL IS CONTAINED IN 37 U.S.C. 406 WHICH EXPRESSLY PROVIDES THAT TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE UPON A MEMBER'S ORDERED CHANGE OF PERMANENT STATION SHALL BE UNDER SUCH CONDITIONS AND LIMITATIONS, FOR SUCH RANKS, GRADES, OR RATINGS, AND TO AND FROM SUCH PLACES AS THE SECRETARIES CONCERNED MAY PRESCRIBE.

CHAPTER 7, JOINT TRAVEL REGULATIONS (JTR), ISSUED BY THE SECRETARIES TO IMPLEMENT THIS STATUTORY AUTHORITY, PROVIDES GENERALLY IN PARAGRAPH M7000 THAT MEMBERS OF THE UNIFORMED SERVICES ARE ENTITLED TO TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE UPON A PERMANENT CHANGE OF STATION FOR TRAVEL PERFORMED FROM THE OLD PERMANENT STATION TO THE NEW PERMANENT STATION, OR BETWEEN POINTS OTHERWISE AUTHORIZED IN THESE REGULATIONS, SUBJECT TO CERTAIN EXCEPTIONS INCLUDING (SUBPARAGRAPH 13, FORMERLY 12):

FOR ANY TRAVEL OF DEPENDENTS BETWEEN POINTS OTHERWISE AUTHORIZED IN THIS VOLUME TO A PLACE AT WHICH THEY DO NOT INTEND TO ESTABLISH A RESIDENCE; TRAVEL EXPENSE OF DEPENDENTS FOR PLEASURE TRIPS OR FOR PURPOSES OTHER THAN WITH INTENT TO CHANGE THE DEPENDENTS' RESIDENCE AS AUTHORIZED BY THIS VOLUME MAY NOT BE CONSIDERED AN OBLIGATION OF THE GOVERNMENT.

IN THIS REGARD PARAGRAPH 7000-2 OF THE NAVY TRAVEL INSTRUCTIONS STATES THAT THE TRAVEL PERFORMED MUST BE FOR THE PURPOSE OF ESTABLISHING RESIDENCE AT A NEW LOCATION NOT OF A TEMPORARY NATURE.

WE HAVE HELD CONSISTENTLY THAT THE EXPENSE OF TRAVEL OF DEPENDENTS MERELY FOR THE PURPOSE OF VISITING A MEMBER, FOR PLEASURE TRIPS OR FOR OTHER PURPOSES NOT CONTEMPLATING A CHANGE OF THE DEPENDENTS' PRIMARY RESIDENCE IN CONNECTION WITH A CHANGE OF THE MEMBER'S PERMANENT STATION IS NOT AN OBLIGATION OF THE GOVERNMENT. SEE 33 COMP. GEN. 431 (1954) AND CASES CITED THEREIN. CONSEQUENTLY, IN THE DESCRIBED CIRCUMSTANCES, IN THE ABSENCE OF INDICATION THAT MICHELLE A. LAFAYETTE'S TRAVEL WAS FOR THE PURPOSE OF ESTABLISHING A RESIDENCE NOT OF A TEMPORARY NATURE, THE TRAVEL OF THE MEMBER'S STEPDAUGHTER TO KEY WEST, FLORIDA, MAY NOT BE CONSIDERED AS INCIDENT TO A PERMANENT CHANGE OF STATION FROM PEARL HARBOR, HAWAII, TO BIGGS FIELD, FORT BLISS, TEXAS.

PARAGRAPH M7055, JTR, PROVIDES IN PERTINENT PART THAT IF A MEMBER, UPON RECEIPT OF PERMANENT CHANGE-OF-STATION ORDERS, RETAINS HIS DEPENDENTS AT THE PLACE AT WHICH THEY WERE LOCATED WHEN SUCH ORDERS WERE RECEIVED, AND HE RECEIVES ASSIGNMENT TO SOME SUBSEQUENT PERMANENT STATION, HE SHALL BE ENTITLED (UPON ASSIGNMENT TO SUCH SUBSEQUENT PERMANENT STATION) TO TRANSPORTATION FOR HIS DEPENDENTS AT GOVERNMENT EXPENSE NOT IN EXCESS OF THE DISTANCE FROM THE STATION FOR WHICH HE TRAVELED WHEN HIS DEPENDENTS WERE SO RETAINED TO SUCH SUBSEQUENT PERMANENT STATION OR FROM HIS LAST PERMANENT STATION TO HIS NEW PERMANENT STATION, WHICHEVER IS THE GREATER.

IN CIRCUMSTANCES WHERE A SUBSEQUENT CHANGE OF STATION IS NOT ON PUBLIC BUSINESS AND IT IS AT THE MEMBER'S EXPENSE, NO ADDITIONAL TRAVEL ENTITLEMENTS ARE AVAILABLE TO THE MEMBER BECAUSE OF SUCH ASSIGNMENT. SEE DECISION B-147646, JULY 11, 1962, COPY ENCLOSED.

CLEARLY, THE PERMISSIVE ORDERS RECEIVED BY THE MEMBER IN MARCH 1972 WHICH AUTHORIZED TRANSFER FROM BIGGS FIELD, FORT BLISS, TEXAS, TO THE NAVAL POSTGRADUATE SCHOOL, MONTEREY, CALIFORNIA, WHICH PROVIDED THAT THE TRANSFER WAS TO BE AT THE MEMBER'S EXPENSE AND THAT THEY WERE TO BE REGARDED AS REVOKED IF HE DID NOT DESIRE TO DO SO, DID NOT CONTEMPLATE TRAVEL ON PUBLIC BUSINESS, AND THEREFORE, DID NOT PROVIDE ENTITLEMENT TO THE TRAVEL OF HIS DEPENDENTS AT GOVERNMENT EXPENSE. SEE DECISION B 172848, JULY 27, 1971, COPY ENCLOSED.

CONSEQUENTLY, IN OUR OPINION, PARAGRAPH M7055, JTR, IS NOT FOR APPLICATION IN THE PRESENT CIRCUMSTANCES, AS SUCH PROVISION APPARENTLY CONTEMPLATES THAT THE SUBSEQUENT PERMANENT CHANGE OF STATION, ITSELF, PROVIDE TRANSPORTATION ENTITLEMENTS BASED ON A DIRECTION TO TRAVEL ON PUBLIC BUSINESS, AS UNDER THIS REGULATION DEPENDENTS COULD BE PROVIDED WITH TRANSPORTATION TO THE SUBSEQUENT PERMANENT STATION AT GOVERNMENT EXPENSE FOR A DISTANCE IN EXCESS OF THAT FROM THE PLACE WHERE THE DEPENDENTS WERE RETAINED, TO THE PERMANENT DUTY STATION TO WHICH THE MEMBER WAS INITIALLY ASSIGNED. SEE 34 COMP. GEN. 467 (1955).

HOWEVER, AS THE DEPENDENTS HAVE NOT EXERCISED THE RIGHT TO GOVERNMENT TRANSPORTATION TO THE FIRST PERMANENT DUTY STATION AT THE TIME OF THE SUBSEQUENT PERMISSIVE TRANSFER, IT APPEARS THAT THEY MAY BE AFFORDED TRANSPORTATION AT GOVERNMENT EXPENSE NOT TO EXCEED THE DISTANCE FROM THE PLACE OF RETENTION TO THE FIRST PERMANENT DUTY STATION, UPON PERMISSIVE ASSIGNMENT TO A SUBSEQUENT STATION.

ACCORDINGLY, SINCE THE DISTANCE FROM HONOLULU, HAWAII, TO MONTEREY, CALIFORNIA, IS LESS THAN FROM HONOLULU TO FORT BLISS, TEXAS, PAYMENT FOR DEPENDENT TRAVEL FROM HONOLULU TO MONTEREY MAY BE AUTHORIZED IF OTHERWISE PROPER, AND VOUCHER FOR THIS TRAVEL IS RETURNED HEREWITH. THE TRAVEL VOUCHER FOR MICHELLE A. LAFAYETTE IS RETAINED HERE.