B-150957, JUN. 27, 1963

B-150957, JUN. 27, 1963

TO MR. THEODORE P. HORTON-BILLARD:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 19, 1963, AND ENCLOSURES, REQUESTING RECONSIDERATION OF SETTLEMENT DATED JANUARY 23, 1963, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT FOR YOUR DEPENDENTS' TRAVEL FROM ROCHELLE PARK, NEW JERSEY, TO AUGUSTA, GEORGIA, DURING THE PERIOD JUNE 20 TO 23, 1962, AND THEIR RETURN AUGUST 7 TO 9, 1962, INCIDENT TO YOUR SERVICE IN THE UNITED STATES ARMY.

BY MOVEMENT ORDER NO. 56, HEADQUARTERS, FIRST UNITED STATES ARMY, GOVERNOR'S ISLAND, NEW YORK 4, NEW YORK, DATED SEPTEMBER 18, 1961, YOUR UNIT, THE 302D CIVIL AFFAIRS GROUP, LOCATED AT NEW YORK, NEW YORK, WAS DIRECTED TO PROCEED TO ITS NEW STATION AT FORT GORDON, GEORGIA, SO AS TO ARRIVE THERE NOT LATER THAN OCTOBER 9, 1961. THESE ORDERS, WHICH YOU RECEIVED BY FIRST INDORSEMENT DATED SEPTEMBER 27, 1961, PROVIDED FOR PERMANENT CHANGE OF STATION AND AUTHORIZED TRAVEL OF DEPENDENTS. YOUR DEPENDENTS, HOWEVER, DID NOT ACCOMPANY YOU TO YOUR STATION. MOVEMENT ORDER NO. 8, HEADQUARTERS FORT GORDON, FORT GORDON, GEORGIA, DATED JUNE 27, 1962, AND FIRST INDORSEMENT DATED JULY 9, 1962, DIRECTED YOUR UNIT TO PROCEED FROM FORT GORDON TO ITS HOME STATION AT NEW YORK, NEW YORK, ON AUGUST 7, 1962, FOR RELEASE FROM ACTIVE DUTY AT MIDNIGHT OF AUGUST 11, 1962. THE RECORD SHOWS THAT PRIOR TO THE ISSUANCE OF SUCH ORDER, YOU HAD BEEN WARNED OF YOUR EARLY RELEASE FROM ACTIVE DUTY. YOUR DEPENDENTS (WIFE, SON, DAUGHTER) TRAVELED FROM YOUR HOME OF RECORD, ROCHELLE PARK, NEW JERSEY, TO AUGUSTA (FORT GORDON), GEORGIA, BETWEEN JUNE 20 AND 23, 1962, AND RETURNED TO ROCHELLE PARK, NEW JERSEY, BETWEEN AUGUST 7 AND 9, 1962, INCIDENT TO YOUR RELEASE FROM ACTIVE DUTY.

YOUR CLAIM WAS DISALLOWED IN SETTLEMENT OF JANUARY 23, 1963, SUBSTANTIALLY FOR THE REASON THAT THERE WAS DOUBT THAT THE TRAVEL PERFORMED BY YOUR DEPENDENTS WAS FOR THE PURPOSE OF ESTABLISHING A BONA FIDE RESIDENCE AT AUGUSTA INCIDENT TO YOUR ASSIGNMENT AT FORT GORDON SINCE THE RECORD INDICATED THAT THEY HAD TRAVELED FROM ROCHELLE PARK TO AUGUSTA AFTER YOU HAD RECEIVED WARNING ORDERS OF EARLY RELEASE FROM ACTIVE DUTY. IN YOUR REQUEST FOR REVIEW YOU STATE THAT YOUR FAMILY WENT TO FORT GORDON, GEORGIA, IN ORDER FOR YOUR DAUGHTER, SUZANNE, TO RECEIVE MEDICAL TREATMENT WITH THE POSSIBILITY OF HER BEING SENT TO WALTER REED HOSPITAL FOR FURTHER CONSULTATION, AND THAT THIS WAS DONE ON THE RECOMMENDATION OF YOUR FAMILY DOCTOR. APPARENTLY, ON THIS BASIS, YOU BELIEVE THAT THE PROVISIONS OF PARAGRAPH 7000-13 OF THE JOINT TRAVEL REGULATIONS, PRECLUDING REIMBURSEMENT FOR TRAVEL OF DEPENDENTS FOR PLEASURE TRIPS OR VISITS, WERE NOT FOR APPLICATION IN YOUR CASE AND THAT PAYMENT OF YOUR CLAIM SHOULD BE MADE.

THE CONTROLLING STATUTE, 37 U.S.C. 406, PROVIDES THAT SUBJECT TO SUCH CONDITIONS AND LIMITATIONS AS THE SECRETARIES MAY PRESCRIBE A MEMBER OF A UNIFORMED SERVICE WHO IS ORDERED TO MAKE A PERMANENT CHANGE OF STATION IS ENTITLED TO TRANSPORTATION IN KIND FOR HIS DEPENDENTS, TO REIMBURSEMENT THEREFOR, OR TO MONETARY ALLOWANCE IN PLACE OF TRANSPORTATION IN KIND. PARAGRAPH 7000-13, JOINT TRAVEL REGULATIONS, PROMULGATED BY THE SECRETARIES PURSUANT TO THAT AUTHORITY PROVIDES, HOWEVER, THAT MEMBERS OF THE UNIFORMED SERVICES ARE NOT ENTITLED TO OTHERWISE AUTHORIZED TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE FOR ANY TRAVEL TO A PLACE AT WHICH THEY DO NOT INTEND TO ESTABLISH A RESIDENCE, AND THAT TRAVEL EXPENSES OF DEPENDENTS FOR PURPOSES OTHER THAN WITH INTENT TO CHANGE THE DEPENDENTS' RESIDENCE MAY NOT BE CONSIDERED AN OBLIGATION OF THE GOVERNMENT. UNDER SUCH LIMITATION, A RIGHT TO TRANSPORTATION OF DEPENDENTS AT THE EXPENSE OF THE GOVERNMENT IS NOT AN ALLOWANCE PAYABLE IN ALL EVENTS ON THE BASIS THAT SOME TRAVEL WAS PERFORMED. EVEN THOUGH TRAVEL IS PERFORMED AND THE DEPENDENTS STAY WITH THE MEMBER FOR A LIMITED PERIOD, NO RIGHT TO REIMBURSEMENT BY THE GOVERNMENT ARISES UNLESS THE TRAVEL MAY BE CONSIDERED AS INCIDENT TO AN INTENDED CHANGE OF RESIDENCE RESULTING FROM AN ORDERED PERMANENT CHANGE OF STATION FOR THE MEMBER IN THE SERVICE. IT CONSISTENTLY HAS BEEN HELD BY THIS OFFICE UNDER THE CITED LAW AND REGULATIONS AND UNDER PRIOR STATUTORY AUTHORITY (33 COMP. GEN. 431 AND CASES THERE CITED) THAT THE EXPENSE OF TRAVEL OF DEPENDENTS FOR ANY PURPOSES NOT CONTEMPLATING A CHANGE OF THE DEPENDENTS' PRIMARY RESIDENCE IN CONNECTION WITH THE CHANGE OF THE MEMBER'S PERMANENT STATION IS NOT AN OBLIGATION OF THE GOVERNMENT.

THERE IS NOTHING IN THE RECORDS EXPLAINING WHY YOUR DEPENDENTS DELAYED TRAVELING TO YOUR DUTY STATION UNTIL YOUR TOUR OF DUTY WAS ALMOST COMPLETED. NEITHER IS THERE ANY EVIDENCE TO SHOW THAT PRIOR TO SUCH TRAVEL YOU CONTEMPLATED BRINGING THEM TO YOUR STATION AND ESTABLISHING A BONA FIDE RESIDENCE WITH THEM. INSOFAR AS THE RECORD SHOWS THE DECISION FOR YOUR DEPENDENTS' TRAVEL TO YOUR STATION AT FORT GORDON WAS MADE ON THE RECOMMENDATION OF YOUR FAMILY PHYSICIAN SO THAT YOUR DAUGHTER MIGHT RECEIVE MEDICAL TREATMENT WITH THE POSSIBILITY OF BEING REFERRED TO WALTER REED HOSPITAL FOR FURTHER CONSULTATION. SUCH CIRCUMSTANCES OFFER NO BASIS UPON WHICH WE MAY PROPERLY CONCLUDE THAT THE TRAVEL OF YOUR DEPENDENTS FROM ROCHELLE PARK TO AUGUSTA WAS PERFORMED FOR THE PURPOSE OF CHANGING THEIR RESIDENCE INCIDENT TO YOUR ASSIGNMENT TO FORT GORDON UNDER THE ORDERS OF SEPTEMBER 18, 1961, WITHIN THE CONTEMPLATION OF THE ABOVE-CITED PROVISIONS OF LAW AND REGULATIONS. WE TRUST YOU WILL UNDERSTAND THAT WE HAVE NO AUTHORITY TO WAIVE THE REQUIREMENTS OF THE AUTHORIZED AND THE DISALLOWANCE OF YOUR CLAIM BY THE SETTLEMENT DATED JANUARY 23, 1963, IS SUSTAINED.