B-200976.OM, MAR 18, 1981

B-200976.OM, MAR 18, 1981

SUBJECT: GUNNERY SERGEANT MICHAEL D. WELSH, USMC - CLAIM FOR DEPENDENTS' TRANSPORTATION - B-200976-O.M.

ASSOCIATE DIRECTOR, AFMD - CLAIMS GROUP (ROOM 5858):

RETURNED IS CLAIM FILE Z-2823960 PERTAINING TO GUNNERY SERGEANT MICHAEL D. WELSH'S CLAIM. BY SETTLEMENT CERTIFICATE DATED AUGUST 7, 1980, SERGEANT WELSH'S RECLAIM FOR DEPENDENTS' TRAVEL AND DISLOCATION ALLOWANCES INCIDENT TO HIS PERMANENT CHANGE-OF-STATION ASSIGNMENT FROM CHERRY POINT, NORTH CAROLINA, TO IWAKUNI, JAPAN, WAS DISALLOWED BECAUSE IT WAS DETERMINED TO BE OF DOUBTFUL VALIDITY.

SERGEANT WELSH EARLIER FILED A CLAIM FOR DEPENDENTS' TRAVEL AND DISLOCATION ALLOWANCES FOR TRAVEL FROM HAVELOCK (NEAR CHERRY POINT), NORTH CAROLINA, TO TORRENCE, CALIFORNIA, INCIDENT TO HIS PERMANENT CHANGE-OF- STATION ASSIGNMENT TO IWAKUNI. THAT CLAIM WAS PAID BUT WAS SUBSEQUENTLY RECOUPED BY THE MARINE CORPS BECAUSE IT WAS DETERMINED BY A NAVAL INVESTIGATIVE SERVICE (NIS) INVESTIGATION TO BE INVALID IN THAT IT APPEARED THAT THE DEPENDENTS DID NOT TRAVEL TO TORRENCE WITH THE INTENT TO ESTABLISH A BONA FIDE RESIDENCE THERE.

SERGEANT WELSH'S ASSIGNMENT TO IWAKUNI WAS AN UNACCOMPANIED TOUR WHICH PRECLUDED THE TRANSPORTATION OF HIS DEPENDENTS TO HIS NEW STATION AT GOVERNMENT EXPENSE.

SERGEANT WELSH, IN A SWORN STATEMENT TO NIS, EXPLAINED THAT DURING HIS 1- YEAR OVERSEAS TOUR OF DUTY, HIS WIFE AND CHILDREN WERE TO VISIT VARIOUS RELATIVES IN THE UNITED STATES, INCLUDING HIS WIFE'S GRANDMOTHER, WHO RESIDES AT THE DESIGNATED TORRENCE, CALIFORNIA ADDRESS. HE STATED FURTHER THAT BECAUSE IT WAS HIS UNDERSTANDING THAT HIS DEPENDENTS WOULD BE RESIDING IN TORRENCE HE DESIGNATED THAT ADDRESS AS THEIR BONA FIDE RESIDENCE ON THE ORIGINAL CLAIM. HE STATED FURTHER THAT PURSUANT TO A CHANGE IN HIS FAMILY'S RESIDENCY PLANS MADE AFTER THE ORIGINAL CLAIM WAS FILED, HIS DEPENDENTS WERE LATER SCHEDULED TO JOIN HIM IN JAPAN.

AFTER THE RECOUPMENT OF THE ORIGINAL ALLOWANCE AND HIS DEPENDENTS' TRAVEL TO IWAKUNI, SERGEANT WELSH FILED A RECLAIM FOR THE ALLOWANCES, DESIGNATING IWAKUNI AS THEIR BONA FIDE RESIDENCE. ON THE BASIS OF THE DETERMINATION THAT THE DEPENDENTS NEVER RELOCATED IN TORRENCE, CALIFORNIA, NIS CONCLUDED THAT THE PREVIOUS CLAIM WAS BASED ON FRAUD OR MISREPRESENTATION. THE CLAIM WAS, THEREFORE, DISALLOWED. SERGEANT WELSH EXPLAINS IN HIS LETTER OF APPEAL THAT IN FILING THE ORIGINAL CLAIM, HE MADE AN "ADMINISTRATIVE ERROR," THINKING THAT THE MARINE CORPS WOULD PAY HIS DEPENDENTS' TRAVEL AND DISLOCATION ALLOWANCE TO CALIFORNIA, BUT NOT TO IWAKUNI.

THE ISSUES FOR CONSIDERATION HERE ARE WHETHER THE FACTS IN THIS CASE WARRANT SUSPICION OF FRAUD OR IRREGULARITY WHICH WOULD SUPPORT THE DENIAL OF SERGEANT WELSH'S RECLAIM FOR DEPENDENTS' TRAVEL AND DISLOCATION ALLOWANCE AND WHETHER HE IS ENTITLED TO PAYMENT ON THE RECLAIM.

ALTHOUGH IT IS THE RESPONSIBILITY OF THE MEMBER TO FILE CLAIMS CORRECTLY, WE HAVE RECOGNIZED THAT NOT EVERY MISTAKE ON A VOUCHER IS TO BE CONSTRUED AS AN INTENT TO DEFRAUD THE GOVERNMENT, REQUIRING RECOUPMENT OR DENIAL OF THE CLAIM. 57 COMP.GEN. 664, 668 (1978). DENIAL OF A CLAIM ON THE BASIS OF SUSPICION OF FRAUD MUST BE SUPPORTED BY "EVIDENCE SUFFICIENT TO OVERCOME THE EXISTING PRESUMPTION IN FAVOR OF HONESTY AND FAIR DEALING. *** IF *** THE CIRCUMSTANCES ARE AS CONSISTENT WITH HONESTY AND GOOD FAITH AS WITH DISHONESTY, THE INFERENCE OF HONESTY IS REQUIRED TO BE DRAWN." COMP.GEN. 664, 668; B-187975, JULY 28, 1977.

IN CONSIDERATION OF WHETHER THERE WAS A MANIFESTATION OF AN INTENT TO DEFRAUD IN THIS CASE, WE NOTE THAT SERGEANT WELSH DESIGNATED THE TORRENCE ADDRESS AS THE BONA FIDE RESIDENCE OF HIS DEPENDENTS IN ACCORDANCE WITH HIS UNDERSTANDING OF HIS FAMILY PLANS. ALTHOUGH THE FAMILY APPARENTLY WAS NOT AT THE DESIGNATED ADDRESS AT THE TIME THE CLAIM WAS FILED, THE RECORD INDICATES THAT THEY HAD BEEN SCHEDULED TO BE AT THAT ADDRESS AT OR ABOUT THE TIME IN QUESTION, AND IT APPEARS THAT THEY DID TRAVEL TO THE DESIGNATED LOCATION AT A LATER DATE. IN VIEW OF THESE CIRCUMSTANCES, WE CONCLUDE THAT THE EVIDENCE IS INSUFFICIENT TO WARRANT SUSPICION OF FRAUD OR IRREGULARITY WHICH WOULD SUPPORT THE DENIAL OF THE MEMBER'S RECLAIM. SEE B-173318, JULY 28, 1971, AND B-166966-O.M., JUNE 9, 1969.

HOWEVER, REGARDING SERGEANT WELSH'S RECLAIM FOR DEPENDENTS' TRAVEL EXPENSES TO IWAKUNI, WE NOTE INITIALLY THAT HE WAS ORDERED TO PERFORM A 12 -MONTH TOUR OF DUTY IN IWAKUNI, WHICH ACCORDING TO MARINE CORPS ORDER (MCO) 1300.8L, ENCLOSURE (5), PAGE 2 (JANUARY 22, 1979), IS A RESTRICTED OR UNACCOMPANIED ASSIGNMENT. DEPENDENTS OF MEMBERS SERVING A RESTRICTED TOUR MAY ONLY VISIT THE MEMBER'S DUTY STATION AT THEIR OWN EXPENSE.

UNDER 37 U.S.C. SEC. 406 A MEMBER OF A UNIFORMED SERVICE WHO IS ORDERED TO MAKE A PERMANENT CHANGE OF STATION IS ENTITLED TO TRANSPORTATION, REIMBURSEMENT, OR A MONETARY ALLOWANCE FOR THE RELOCATION OF HIS DEPENDENTS, SUBJECT TO SUCH CONDITIONS AND LIMITATIONS AS THE SECRETARIES CONCERNED MAY PRESCRIBE. THE APPLICABLE REGULATION IN THIS INSTANCE, PARAGRAPH M7005-1 (CHANGE 318, AUGUST 1, 1979) OF VOLUME 1, JOINT TRAVEL REGULATIONS (1 JTR), PROVIDES THAT WHEN A MEMBER IS TRANSFERRED BY PERMANENT CHANGE-OF-STATION ORDERS TO A RESTRICTED AREA, TRANSPORTATION OF DEPENDENTS IS AUTHORIZED FROM THE OLD PERMANENT STATION TO AN APPROPRIATE DESTINATION AS SPECIFIED IN SUBPARAGRAPH 4 OR 5. WHEN THE FORMER PERMANENT STATION IS LOCATED IN THE UNITED STATES, SUBPARAGRAPH 4.1 AUTHORIZES TRANSPORTATION OF DEPENDENTS TO ANY PLACE IN THE UNITED STATES THE MEMBER MAY DESIGNATE, AND SUBPARAGRAPH 4.2 AUTHORIZES DEPENDENTS' TRANSPORTATION TO THE POINT OF THEIR DEPARTURE FROM THE UNITED STATES FOR TRAVEL TO A PLACE OUTSIDE THE UNITED STATES DESIGNATED BY THE MEMBER. DESIGNATED PLACE IS DEFINED BY PARAGRAPH M7001 AS THAT PLACE CERTIFIED BY THE MEMBER WHERE HIS DEPENDENTS WILL ESTABLISH A BONA FIDE RESIDENCE DURING THE INTERIM PERIOD.

SIMILARLY, 37 U.S.C. SEC. 407, AND THE IMPLEMENTING REGULATION, 1 JTR, PARAGRAPH M9003-1, AUTHORIZE A DISLOCATION ALLOWANCE FOR A MEMBER WHOSE DEPENDENTS RELOCATE THEIR HOUSEHOLD IN CONNECTION WITH THE MEMBER'S PERMANENT CHANGE OF STATION. THE DISLOCATION ALLOWANCE IS PAYABLE UPON THE COMPLETION OF THE DEPENDENTS' TRAVEL TO THE DESIGNATED PLACE. 1 JTR, PARAGRAPH M9003-3.

SINCE SERGEANT WELSH WAS ASSIGNED TO A RESTRICTED AREA, PAYMENT OF DEPENDENTS' TRANSPORTATION ALLOWANCE TO IWAKUNI IS NOT AUTHORIZED. B-195420, JANUARY 9, 1980. HOWEVER, IN HIS APPEAL LETTER SERGEANT WELSH STATES THAT HIS FAMILY DID TRAVEL TO IWAKUNI (VIA TORRENCE) AND HAS BEEN LOCATED THERE WITH HIM SINCE MAY 1980. HE ALSO STATES THAT CONSIDERING THAT THE MARINE CORPS WOULD ONLY PAY FOR THEIR TRANSPORTATION TO CALIFORNIA, IT WAS TO THERE THAT HE CLAIMED THEIR TRAVEL, "UNKNOWINGLY MAKING AN ADMINISTRATIVE ERROR" IN HIS TRAVEL CLAIM. IN THIS REGARD SERGEANT WELSH'S CASE APPEARS SIMILAR TO THE SITUATION IN B-198186-O.M., NOVEMBER 19, 1980, WHICH ALSO INVOLVED A MARINE ASSIGNED TO A RESTRICTED STATION. IN THAT CASE WE AUTHORIZED PAYMENT OF DEPENDENT'S TRAVEL TO CALIFORNIA. ON THE SAME BASIS SERGEANT WELSH'S CLAIM FOR DEPENDENTS' TRAVEL TO TORRENCE, CALIFORNIA, AND THE DISLOCATION ALLOWANCE MAY BE ALLOWED.

ATTACHMENT

DIGEST NO. 1

SUSPICION OF FRAUD OR IRREGULARITY SUFFICIENT TO SUPPORT DENIAL OF MEMBER'S RECLAIM IS NOT WARRANTED WHEN MEMBER'S CERTIFICATION OF BONA FIDE RESIDENCE OF DEPENDENTS WAS BASED ON MISUNDERSTANDING OF PROPER PLACE TO BE DESIGNATED.

DIGEST NO. 2

MEMBER IS NOT ENTITLED TO PAYMENT FOR DEPENDENTS' TRAVEL FROM NORTH CAROLINA TO JAPAN, A RESTRICTED AREA. HOWEVER, HE MAY BE PAID DEPENDENTS' TRAVEL AND DISLOCATION ALLOWANCE WHERE, INCIDENT TO HIS PERMANENT CHANGE OF STATION TO THE RESTRICTED AREA, HIS DEPENDENTS TRAVELED FROM LOCATION OF PREVIOUS PERMANENT STATION (NORTH CAROLINA) TO CALIFORNIA AND LATER TRAVELED ON TO NEW PERMANENT STATION (JAPAN), EVEN THOUGH DEPENDENTS SHOULD NOT ESTABLISH RESIDENCE AT RESTRICTED STATION. MILEAGE ALLOWANCE IS LIMITED TO NORTH CAROLINA TO CALIFORNIA.