B-203136.OM, FEB 23, 1982

B-203136.OM, FEB 23, 1982

SUBJECT: LIEUTENANT COLONEL STEVEN E. FIELD, USMC - REIMBURSEMENT FOR DEPENDENTS' TRAVEL - B-203136-O.M. DIGEST: 1. MARINE OFFICER ASSIGNED TO OKINAWA ON 1-YEAR UNACCOMPANIED TOUR OF DUTY IN JUNE 1978 HAD SOME PERSONAL BELONGINGS OF DEPENDENTS AND DEPENDENTS' ALLOTMENT CHECKS SENT TO OKINAWA IN ANTICIPATION OF THEIR VISIT LATER IN SUMMER. DEPENDENTS GAVE UP OLD RESIDENCE IN HAWAII IN JUNE, TRAVELED TO INDIANA WHERE THEY SET UP A HOUSEHOLD, AND THEN TRAVELED ON TO OKINAWA IN JULY FOR VISIT. THEY LATER DECIDED TO REMAIN IN OKINAWA. IN LIGHT OF OFFICER'S EXPLANATION OF CIRCUMSTANCES, EVIDENCE OF RECORD FAILS TO DEMONSTRATE THAT DEPENDENTS NEVER INTENDED TO ESTABLISH RESIDENCE IN INDIANA. HE MAY THEREFORE BE REIMBURSED EXPENSE OF DEPENDENTS' TRAVEL FROM HAWAII TO INDIANA. 2. THE LAWS AND REGULATIONS GOVERNING THE TRAVEL OF A SERVICE MEMBER'S DEPENDENTS PRECLUDE REIMBURSEMENT FOR TRAVEL "TO A PLACE AT WHICH THEY DO NOT INTEND TO ESTABLISH A RESIDENCE." IN QUESTIONABLE CASES EVIDENCE MUST REASONABLY DEMONSTRATE THAT DEPENDENTS NEVER INTENDED TO ESTABLISH RESIDENCE TO JUSTIFY DENIAL OF REIMBURSEMENT. WHILE EVIDENCE THAT DEPENDENTS STAYED AT A PLACE ONLY A SHORT TIME MAY GIVE RISE TO INFERENCE THAT THEIR TRAVEL WAS MERELY FOR A VISIT OR VACATION, THAT INFERENCE IS SUBJECT TO REBUTTAL BY OTHER EVIDENCE (INCLUDING MEMBER'S EXPLANATION), SINCE PERSONS MAY TRAVEL TO A PLACE FULLY INTENDING TO ESTABLISH A HOME OR RESIDENCE AND NEVERTHELESS REMAIN THERE ONLY A SHORT WHILE. 37 U.S.C. 406; PARA. M7000-13, 1 JTR. 3. MARINES ASSIGNED TO OKINAWA ON 1-YEAR UNACCOMPANIED TOURS OF DUTY ARE NOT AUTHORIZED TO BRING DEPENDENTS THERE AT GOVERNMENT EXPENSE BUT ARE ENTITLED TO REIMBURSEMENT FOR TRAVEL OF DEPENDENTS TO NEW RESIDENCE IN UNITED STATES. IT IS ALSO A COMMON PRACTICE FOR DEPENDENTS TO TRAVEL TO OKINAWA AT PERSONAL EXPENSE ON EXTENDED VISITS. IF A MARINE'S DEPENDENTS ABANDON THEIR OLD RESIDENCE AND TRAVEL TO LOCATION IN UNITED STATES DESIGNATED AS NEW PLACE OF RESIDENCE, IT IS GENERALLY TO BE ASSUMED THAT THEIR TRAVEL WAS PERFORMED WITH INTENTION OF ESTABLISHING NEW RESIDENCE AND THEREFORE REIMBURSABLE, SINCE AT THAT POINT THEY HAVE NOWHERE ELSE TO CALL THEIR HOME, EVEN THOUGH THEY MAY SOON DEPART FOR EXTENDED VISIT IN OKINAWA.

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

CLAIMS FILE Z-2823041 IS RETURNED. WE HAVE CONCLUDED THAT COLONEL FIELD'S CLAIM FOR REIMBURSEMENT OF DEPENDENTS' TRAVEL EXPENSES SHOULD BE ALLOWED.

COLONEL FIELD WAS TRANSFERRED FROM KANEOHE BAY, HAWAII, TO OKINAWA, JAPAN, IN JUNE 1978 ON A 1-YEAR UNACCOMPANIED TOUR OF DUTY. HE RECEIVED TRAVEL ALLOWANCES TOTALLING $1,080.01 FOR THE CONCURRENT MOVE OF HIS WIFE AND CHILDREN FROM HAWAII TO CLARKSVILLE, INDIANA. THEY RESIDED WITH MRS. FIELD'S MOTHER IN CLARKSVILLE FOR APPROXIMATELY 1 MONTH, FROM JUNE 27 TO JULY 23, 1978. THEY THEN TRAVELED TO OKINAWA AND STAYED THERE FOR THE REMAINDER OF COLONEL FIELD'S 1-YEAR TOUR OF DUTY.

IN OCTOBER 1979 THE MARINE CORPS FINANCE CENTER DETERMINED THAT COLONEL FIELD'S DPEENDENTS HAD NOT INTENDED TO ESTABLISH A RESIDENCE IN CLARKSVILLE, INDIANA. THAT DETERMINATION WAS BASED UPON THE FOLLOWING EVIDENCE: (1) THEY REMAINED IN CLARKSVILLE FOR 1 MONTH ONLY; (2) A SHIPMENT OF HOUSEHOLD GOODS WAS MADE TO OKINAWA CONTAINING "A DIAPER PAIL, SKATE BOARDS, A SEWING MACHINE, CHILDS (SIC) TRICYCLE AND A BABY STROLLER"; (3) THE FORM FILED BY COLONEL FIELD FOR MAILING OF DEPENDENT ALLOTMENT CHECKS PAYABLE TO MRS. FIELD AND BOND ALLOTMENT CHECKS PAYABLE TO THE FIELD CHILDREN LISTED A NEW ADDRESS IN OKINAWA, NOT IN CLARKSVILLE. THE AMOUNT PAID TO COLONEL FIELD FOR DEPENDENTS' TRAVEL FROM HAWAII TO INDIANA WAS RECOUPED AS THE RESULT OF THE DETERMINATION MADE THAT THEY HAD NOT INTENDED TO ESTABLISH A RESIDENCE IN INDIANA.

IN MAY 1980 COLONEL FIELD RECLAIMED THAT AMOUNT. HE INDICATED THAT AT THE TIME OF HIS FAMILY'S TRAVEL TO INDIANA HIS WIFE DID INTEND TO ESTABLISH A PERMANENT RESIDENCE IN CLARKSVILLE, BECAUSE THAT WAS WHERE HER RECENTLY WIDOWED MOTHER LIVED AND ALSO BECAUSE THEY BELIEVED AMERICAN SCHOOLS IN OKINAWA WOULD NOT BE OPEN TO THEIR CHILDREN DUE TO THE NATURE OF HIS ASSIGNMENT. SUBSEQUENTLY, DURING A PLANNED VISIT THAT SUMMER TO OKINAWA, HIS WIFE CHANGED HER MIND ABOUT RETURNING TO INDIANA. SHE FELT THAT HER NOTHER HAD ADJUSTED TO WIDOWHOOD WELL ENOUGH SO THAT HER PRESENCE IN CLARKSVILLE WAS NOT NECESSARY, AND SHE ALSO LEARNED THERE WERE AMERICAN SCHOOLS THAT THE CHILDREN COULD ATTEND IN OKINAWA. CONSEQUENTLY, SHE DECIDED THEN THAT THE FAMILY SHOULD REMAIN IN OKINAWA. CONCERNING THE DEPENDENTS' ALLOTMENT CHECKS, COLONEL FIELD STATED THAT THEY WERE FORWARDED TO OKINAWA "FOR EASE OF ACCOUNTABILITY" SINCE PRIOR ARRANGEMENTS HAD BEEN MADE FOR HIS FAMILY'S VISIT LATER THAT SUMMER. SOME OF THE FAMILY'S HOUSEHOLD GOODS HAD ALSO BEEN SHIPPED TO OKINAWA FOR THAT VISIT. COLONEL FIELD'S EXPLANATION WAS CORROBORATED BY WRITTEN STATEMENTS SUBMITTED BY HIS WIFE AND HER RELATIVES.

IN JUNE 1980 THE CLAIMS DIVISION NEVERTHELESS DISALLOWED THE AMOUNT RECLAIMED BY COLONEL FIELD FOR THE REASON THAT:

"WHERE THERE IS A REASONABLE SUSPICION OF IRREGULARITY, COLLUSION OR FRAUD, IT IS THE PRACTICE OF THIS OFFICE TO DENY PAYMENT AND LEAVE THE CLAIMANT TO HIS REMEDY IN THE COURTS."

COLONEL FIELD HAS QUESTIONED THE CORRECTNESS OF THE CONCLUSIONS REACHED THAT HIS DEPENDENTS NEVER INTENDED TO ESTABLISH A RESIDENCE IN INDIANA, AND THAT IT IS THEREFORE REASONABLE TO SUSPECT HIM OF FRAUD IN THE MATTER.

SECTION 406 OF TITLE 37, U.S.C. AUTHORIZES PAYMENT OF ALLOWANCES TO A SERVICE MEMBER ORDERED TO MAKE A PERMANENT CHANGE OF STATION TO REIMBURSE HIM FOR THE TRAVEL OF HIS DEPENDENTS TO A NEW RESIDENCE. HOWEVER, THAT LAW AND THE IMPLEMENTING PROVISIONS OF PARAGRAPH M7000 13, VOLUME 1 OF THE JOINT TRAVEL REGULATIONS, PRECLUDE REIMBURSEMENT FOR THE TRAVEL OF DEPENDENTS "TO A PLACE AT WHICH THEY DO NOT INTEND TO ESTABLISH A RESIDENCE." SEE, GENERALLY, 33 COMP.GEN. 431 (1954).

A "RESIDENCE" IS A PERSON'S HOME, AND MERE PRESENCE AT A LOCATION WITH THE INTENTION OF REMAINING FOR ONLY A SHORT VISIT OR VACATION DOES NOT CONSTITUTE AN INTENTION TO ESTABLISH A RESIDENCE WITHIN THE CONTEMPLATION OF THE LAW AND REGULATIONS. 33 COMP.GEN. 431 (1954); B-174937, JANUARY 2, 1973. YET, WE HAVE HELD THAT IN QUESTIONABLE CASES EVIDENCE MUST EXIST REASONABLY DEMONSTRATING THAT THE DEPENDENTS NEVER INTENDED TO ESTABLISH A HOME AT A PLACE TO SUPPORT A DETERMINATION THAT THEIR STAY WAS MERELY INTENDED AS A BRIEF VISIT OR VACATION. B-182440, NOVEMBER 4, 1975. CONCERNING THAT NECESSARY EVIDENCE, WE HAVE LONG RECONGNIZED THAT PERSONS MAY TRAVEL TO A PLACE INTENDING TO MAKE IT THEIR HOME BUT MAY REMAIN FOR ONLY A BRIEF TIME. THEY MAY FAIL TO ESTABLISH A RESIDENCE THERE FOR SOME GOOD REASON, OR THEY MAY ACTUALLY ESTABLISH A RESIDENCE AND THEN QUICKLY ABANDON IT. HENCE, EVIDENCE THAT A SERVICE MEMBER'S DEPENDENTS STAYED AT A PLACE ONLY A SHORT PERIOD OF TIME MAY RAISE AN INFERENCE, BUT DOES NOT CONCLUSIVELY PROVE, THAT THEY MERELY INTENDED VISITING THERE. ADDITIONAL EVIDENCE RELATING TO THE CIRCUMSTANCES OF THE TRAVEL, INCLUDING EXPLANATIONS SUBMITTED BY THE SERVICE MEMBER, MAY BE SUFFICIENT TO REBUT ANY INFERENCE THAT THE DEPENDENTS' SHORT STAY AT A PLACE WAS SIMPLY FOR THE PURPOSE OF A VISIT OR VACATION. SEE, E.G., B-182440, NOVEMBER 4, 1975; B-174937, JANUARY 2, 1973; B-160087-O.M. NOVEMBER 3, 1966; AND B-148020-O.M., APRIL 5, 1962.

FOR A NUMBER OF YEARS THE MARINE CORPS HAS CLASSIFIED OKINAWA AS A RESTRICTED AREA AND HAS FOLLOWED A PRACTICE OF ASSIGNING PERSONNEL THERE ON 1-YEAR UNACCOMPANIED TOURS OF DUTY. MARINES SO ASSIGNED ARE NOT AUTHORIZED TO BRING DEPENDENTS TO OKINAWA AT GOVERNMENT EXPENSE, BUT THEY ARE ENTITLED TO HAVE THEIR DEPENDENTS TRAVEL AT GOVERNMENT EXPENSE TO A NEW RESIDENCE AT A DESIGNATED LOCATION IN THE UNITED STATES. UNDERSTAND, HOWEVER, THAT IT IS NOT UNUSUAL FOR THE DEPENDENTS TO ALSO TRAVEL TO OKINAWA AT PERSONAL EXPENSE ON EXTENDED VISITS. IN APPLYING THE ABOVE-DESCRIBED PRINCIPLES CONCERNING THE ESTABLISHMENT OF A NEW RESIDENCE TO THIS PARTICULAR SITUATION, WE HAVE EXPRESSED THE VIEW THAT IF A MARINE'S DEPENDENTS ABANDON THEIR OLD RESIDENCE AND TRAVEL TO THE LOCATION IN THE UNITED STATES DESIGNATED BY THE MARINE AS THEIR NEW PLACE OF RESIDENCE, IT IS GENERALLY TO BE ASSUMED THAT THEIR TRAVEL WAS PERFORMED WITH THE INTENT OF ESTABLISHING A NEW RESIDENCE SINCE IN THOSE CIRCUMSTANCES THEY HAVE NOWHERE ELSE TO CALL THEIR HOME, EVEN THOUGH THEY MAY SOON DEPART FOR AN EXTENDED VISIT IN OKINAWA. SEE B-195643, APRIL 24, 1980; B-195420, JANUARY 9, 1980; AND B-182440, NOVEMBER 4, 1975.

IN THE PRESENT CASE, THEREFORE, IT IS TO BE ASSUMED THAT WHEN COLONEL FIELD'S DEPENDENTS GAVE UP THEIR OLD RESIDENCE IN HAWAII AND TRAVELED TO INDIANA IN JUNE 1978, THEY DID SO WITH THE INTENTION OF ESTABLISHING A NEW RESIDENCE IN INDIANA. MOREOVER, IT APPEARS THAT THEY MAINTAINED LIVING QUARTERS THERE AND NOWHERE ELSE DURING THE FOLLOWING MONTH, AND THEY TOOK OTHER ACTIONS NORMALLY ASSOCIATED WITH ESTABLISHING A NEW RESIDENCE, I.E., BY PURCHASING AND REGISTERING AN AUTOMOBILE IN INDIANA. COMPARE B-182440, NOVEMBER 4, 1975. ALTHOUGH THEY THEN LEFT INDIANA FOR AN EXTENDED VISIT IN OKINAWA, THIS IS COMMONLY DONE BY THE FAMILIES OF MARINES STATIONED THERE, SO THAT IN OUR VIEW THEIR TRIP TO OKINAWA DOES NOT WARRANT THE CONCLUSION THAT THEY NEVER INTENDED TO ESTABLISH RESIDENCE IN INDIANA. COMPARE B-195643, APRIL 24, 1980; AND B-195420, JANUARY 9, 1980. FURTHERMORE, COLONEL FIELD AND HIS WIFE HAVE SUBMITTED WRITTEN STATEMENTS EXPLAINING THEIR ACTIONS IN THE MATTER, AND WE FIND THOSE EXPLANATIONS REASONABLE. COMPARE B-148020-O.M., APRIL 5, 1962. WE FIND THAT THE EVIDENCE OF RECORD TAKEN AS A WHOLE FAILS TO DEMONSTRATE THAT COLONEL FIELD'S DEPENDENTS INTENDED TO TRAVEL TO INDIANA MERELY FOR A BRIEF VISIT OR VACATION, AND WE THEREFORE ALLOW HIS CLAIM FOR REIMBURSEMENT OF THEIR TRAVEL EXPENSES. PAYMENT SHOULD ISSUE ACCORDINGLY.

IN ADDITION, WE NOTE THAT A FORM LETTER WAS USED IN JUNE 1980 TO INFORM COLONEL FIELD THAT HIS CLAIM WAS BEING DENIED BECAUSE HE WAS SUSPECTED OF FRAUD. THE FORM LETTER FURTHER INDICATED THAT IF HE DISAGREED WITH THAT RESULT, HIS RECOURSE WAS LIMITED TO JUDICIAL ACTION. HOWEVER, CLAIMANTS ARE PRESUMED TO BE HONEST AND ALLEGATIONS OF FRAUD AGAINST THEM ARE NOT TO BE LIGHTLY MADE. SEE 57 COMP.GEN. 664, 668-669 (1978).

ALSO, OF COURSE, CLAIMANTS MAY APPEAL CLAIMS GROUP SETTLEMENTS ADMINISTRATIVELY. CONSEQUENTLY, WE SUGGEST THAT EXTREME CARE BE EXERCISED IN USING THIS FORM LETTER IN THE FUTURE. IN CASES SUCH AS THIS, WHERE FRAUD HAS NOT BEEN SHOWN, IT WOULD BE BETTER TO PREDICATE DISALLOWANCE ON A FAILURE TO DEMONSTRATE FACTS WHICH WOULD PERMIT PAYMENT OF A CLAIM.