B-168452, DEC. 15, 1969

B-168452, DEC. 15, 1969

TRANSPORTATION--DEPENDENTS--ADVANCE TRAVEL OF DEPENDENTS--AT HOME OF SELECTION PRIOR TO RETIREMENT CONCERNING MEMBER'S DEPENDENTS' TRAVEL FROM SUITLAND, MD; TO NORTH HIGHLANDS, CALIF; ARRIVING SEPT. 8, 1966, AND OCCASIONED BY HIS FATHER IN- LAW'S ILLNESS, WHERE MEMBER LATER WAS APPRISED OF ITS TERMINAL NATURE AND RECEIVED REQUESTED ORDERS DATED SEPT. 26, 1966, FOR PERMANENT TRANSFER TO CALIFORNIA, RETIRING THERE AUG. 1, 1968, MEMBER IS NOT ENTITLED TO TRAVEL EXPENSES OR DISLOCATION ALLOWANCE FOR DEPENDENTS, WHO SUBSEQUENTLY RESIDED AT HOME OF SELECTION PRIOR TO RETIREMENT, SINCE M7008, M7003-4 AND M9003- 1, JOINT TRAVEL REGULATIONS (JTR), REQUIRE CERTIFICATE, NOT FURNISHED HEREIN, THAT PRIOR TO THEIR DEPARTURE MEMBER HAD BEEN INFORMED TRANSFER ORDERS WOULD BE ISSUED, AND M9004-1 (2), JTR, PRECLUDES DISLOCATION ALLOWANCE RESPECTING TRAVEL FROM LAST DUTY STATION TO HOME UPON RETIREMENT.

TO TECHNICAL SERGEANT GERALD F. CONNORS, SR., USAF, RETIRED:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 3, 1969, REQUESTING REVIEW OF SETTLEMENT DATED NOVEMBER 14, 1968, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT FOR TRAVEL OF YOUR DEPENDENTS (WIFE AND FOUR CHILDREN) ON SEPTEMBER 8, 1966, FROM SUITLAND, MARYLAND, TO NORTH HIGHLANDS, CALIFORNIA, AND FOR DISLOCATION ALLOWANCE.

THE RECORD SHOWS THAT YOUR DEPENDENTS RETURNED TO YOUR HOME, 3649 JONOTHAN WAY, NORTH HIGHLANDS, CALIFORNIA, ON SEPTEMBER 8, 1966, AT PERSONAL EXPENSE DUE TO ILLNESS IN THE FAMILY. THEREAFTER, YOU REQUESTED A HUMANITARIAN REASSIGNMENT TO CALIFORNIA WHICH WAS APPROVED, AND BY PERMANENT CHANGE-OF-STATION ORDERS DATED SEPTEMBER 26, 1966, YOU WERE TRANSFERRED TO TRAVIS AIR FORCE BASE, CALIFORNIA. BY RETIREMENT ORDERS DATED MAY 8, 1968, YOU WERE RELIEVED FROM ACTIVE DUTY AT TRAVIS AIR FORCE BASE ON JULY 31, 1968, AND RETIRED EFFECTIVE AUGUST 1, 1968. SINCE YOU SELECTED NORTH HIGHLANDS, CALIFORNIA, AS YOUR HOME UPON RETIREMENT AND YOUR DEPENDENTS WERE ALREADY LOCATED AT NORTH HIGHLANDS, NO TRAVEL WAS PERFORMED BY THEM UPON YOUR RETIREMENT.

IN LETTER DATED JULY 2, 1968, TO THE CLAIMS DIVISION OF THIS OFFICE YOU STATED THAT YOU WERE TRANSFERRED TO WASHINGTON, D.C., IN SEPTEMBER 1965 AND THAT YOUR FAMILY ACCOMPANIED YOU. YOU SAID THAT THEY RESIDED WITH YOU UNTIL YOU RECEIVED WORD IN SEPTEMBER 1966 THAT YOUR WIFE'S FATHER WAS ILL. YOU RELATED THAT YOUR WIFE AND FOUR CHILDREN THEN FLEW TO CALIFORNIA, THINKING THAT IT WAS MERELY SOME AILMENT OF A TEMPORARY NATURE. WITHIN A WEEK, YOU SAID, THE ATTENDING PHYSICIAN ADVISED THE FAMILY THAT YOUR WIFE'S FATHER'S ILLNESS WAS TERMINAL WHEREUPON YOU REQUESTED A HUMANITARIAN ASSIGNMENT BACK TO CALIFORNIA. THIS WAS APPROVED AND BY THE ORDERS DATED SEPTEMBER 26, 1966, YOU WERE TRANSFERRED TO TRAVIS AIR FORCE BASE.

ALSO, IN YOUR LETTER OF JULY 2, 1968, YOU STATED THAT YOU WERE ADVISED THAT YOU WOULD NOT BE ABLE TO COLLECT TRAVEL PAY OR DISLOCATION ALLOWANCE BECAUSE YOUR DEPENDENTS LEFT PRIOR TO THE ISSUANCE OF THE ORDERS. YOU REQUESTED THAT WE CONSIDER THE MATTER AND ALLOW YOUR CLAIM ON THE BASIS THAT NOTHING WOULD HAVE BEEN GAINED IF YOUR FAMILY HAD RETURNED TO THE WASHINGTON, D.C., AREA JUST TO COLLECT THE TRAVEL PAY AND THE DISLOCATION ALLOWANCE.

BY SETTLEMENT DATED NOVEMBER 14, 1968, OUR CLAIMS DIVISION DISALLOWED YOUR CLAIM FOR THE REASON THAT THE TRAVEL WAS PERFORMED PRIOR TO YOUR ORDERS OF SEPTEMBER 26, 1966, CITING PARAGRAPHS M7000-8 AND M9004, JOINT TRAVEL REGULATIONS.

WITH YOUR LETTER OF NOVEMBER 3, 1969, YOU ENCLOSED A COPY OF LETTER DATED OCTOBER 13, 1969, TO YOU, FROM HEADQUARTERS, 60TH AIR BASE GROUP (MAC) TRAVIS AIR FORCE BASE, CALIFORNIA 94535, WHICH IN EFFECT RESTATES THE FACTS OF THE MATTER AND THE REASONS FOR THE DISALLOWANCE OF YOUR CLAIM AS SET FORTH IN THE SETTLEMENT OF NOVEMBER 14, 1968.

IN YOUR LETTER YOU SAY THAT YOUR RESIDENCE AT 3649 JONOTHAN WAY, NORTH HIGHLANDS, CALIFORNIA, HAS BEEN YOUR LEGAL RESIDENCE SINCE OCTOBER 1, 1958, AND THEREFORE YOU DO NOT CONCUR WITH THE STATEMENT IN THE AIR FORCE LETTER THAT YOUR DEPENDENTS ESTABLISHED A RESIDENCE THERE ONLY AFTER IT WAS DETERMINED THAT YOUR WIFE'S FATHER'S ILLNESS WAS TERMINAL. YOU ALSO ENCLOSED A COPY OF PARAGRAPH 87, AIR FORCE PAMPHLET 211-1-12, AIR FORCE GUIDE FOR RETIRED PERSONNEL, DATED FEBRUARY 1, 1966, WHICH EXPLAINS GENERALLY A MEMBER'S ENTITLEMENT TO TRANSPORTATION OF HIS DEPENDENTS TO HIS HOME OF SELECTION UPON RETIREMENT FROM THE SERVICE. SPECIFICALLY YOU REFER TO SUBPARAGRAPH (C) WHICH READS AS FOLLOWS:

"C. TRAVEL OF DEPENDENTS PRIOR TO EFFECTIVE DATE OF RETIREMENT ORDERS. TRAVEL OF DEPENDENTS BEFORE EFFECTIVE DATE OF RETIREMENT ORDERS IS AT THE RISK OF THE MEMBER. THIS MEANS THAT, IF ORDERS ARE CHANGED BEFORE THE EFFECTIVE DATE, THE MEMBER MUST BEAR THE EXPENSE OF THE TRAVEL. THE EXPRESSION -WITHIN 1 YEAR AFTER MEMBER'S TERMINATION OF ACTIVE DUTY- IS USED TO ESTABLISH THE FINAL DATE OF ENTITLEMENT, AND NOT TO ELIMINATE THE POSSIBILITY OF TRAVEL BEFORE THE EFFECTIVE DATE OF RETIREMENT ORDERS. TRAVEL OF DEPENDENTS BEFORE THE ISSUANCE OF RETIREMENT ORDERS PRECLUDES PAYMENT OF A TRAVEL ALLOWANCE SINCE THE CERTIFICATE REQUIRED BY PARAGRAPH 7000-8, JTR, IS NOT ISSUED INCIDENT TO RETIREMENT.'

IT APPEARS TO BE YOUR VIEW THAT PARAGRAPH 87C QUOTED ABOVE AUTHORIZES PAYMENT OF YOUR CLAIM FOR REIMBURSEMENT OF THE EXPENSES OF THE TRAVEL PERFORMED BY YOUR DEPENDENTS ON SEPTEMBER 8, 1966, INCIDENT TO YOUR RETIREMENT FROM THE SERVICE WHICH WAS EFFECTIVE AUGUST 1, 1968.

UNDER THE PROVISIONS OF 37 U.S.C. 406 AND 407 AUTHORITY IS PROVIDED, IN ACCORDANCE WITH THE REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, FOR THE TRANSPORTATION OF A MEMBER'S DEPENDENTS AND FOR THE PAYMENT OF A DISLOCATION ALLOWANCE INCIDENT TO A DIRECTED PERMANENT CHANGE OF STATION. THE UNIFORM REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED ARE PROMULGATED IN THE JOINT TRAVEL REGULATIONS.

PARAGRAPH M3003-1A OF THE JOINT TRAVEL REGULATIONS DEFINES THE TERM "PERMANENT CHANGE OF TATION" AS THE TRANSFER OR ASSIGNMENT OF A MEMBER OF THE UNIFORMED SERVICES FROM ONE PERMANENT STATION TO ANOTHER. THIS INCLUDES THE CHANGE FROM LAST DUTY STATION TO THE HOME OR TO THE PLACE FROM WHICH ORDERED TO ACTIVE DUTY UPON SEPARATION FROM THE SERVICE OR RELEASE FROM ACTIVE DUTY. AN ORDERED CHANGE OF STATION IS A CONDITION PRECEDENT TO SUCH TRANSPORTATION.

PARAGRAPH M7000-8 OF THE REGULATIONS SPECIFICALLY PROVIDES THAT TRANSPORTATION IS NOT AUTHORIZED WHERE THE DEPENDENTS DEPART THE OLD STATION PRIOR TO RECEIPT OF PERMANENT CHANGE-OF-STATION ORDERS OR PRIOR TO OFFICIAL NOTICE THAT SUCH ORDERS WOULD BE ISSUED. PARAGRAPH M7003-4 PROVIDES FOR PAYMENT OF A TRAVEL ALLOWANCE FOR DEPENDENTS' TRAVEL PRIOR TO THE ISSUANCE OF ORDERS PROVIDED THE VOUCHER IS SUPPORTED BY A CERTIFICATE OF THE COMMANDING OFFICER, OR HIS DESIGNATED REPRESENTATIVE, OF THE HEADQUARTERS ISSUING THE ORDERS THAT THE MEMBER WAS ADVISED PRIOR TO THE ISSUANCE OF THE CHANGE-OF-STATION ORDERS THAT SUCH ORDERS WOULD BE ISSUED. THIS PROVISION, IN OUR OPINION, HAS REFERENCE TO INSTANCES WHERE ALL PROVISIONS AND REQUIREMENTS OF THE ORDERS TO BE ISSUED HAVE BEEN COMPLETELY AND FINALLY DETERMINED AND ALL THAT REMAINS TO BE DONE IS THE WRITING OF THE ORDERS. SEE DECISION B 160968, APRIL 14, 1967, COPY ENCLOSED.

PARAGRAPH M9003-1 OF THE REGULATIONS PROVIDES FURTHER THAT A DISLOCATION ALLOWANCE IS NOT PAYABLE IN THE CIRCUMSTANCES OUTLINED IN PARAGRAPH M7000- 8 WHERE THE DEPENDENTS TRAVELED PRIOR TO THE ISSUANCE OF ORDERS AND THE VOUCHER IS NOT SUPPORTED BY A CERTIFICATION AS TO PRIOR NOTICE TO THE MEMBER. WITH RESPECT TO THE RETIREMENT OF A MEMBER, HOWEVER, PARAGRAPH M9004-1 (2) OF THE REGULATIONS PROVIDES THAT THE DISLOCATION ALLOWANCE WILL NOT BE PAYABLE IN ANY CASE IN CONNECTION WITH PERMANENT CHANGE-OF- STATION TRAVEL PERFORMED FROM LAST DUTY STATION TO HOME UPON RETIREMENT.

PARAGRAPH M7000-12 OF THE REGULATIONS PROVIDES 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. THUS EVEN THOUGH TRAVEL IS PERFORMED NO RIGHT TO REIMBURSEMENT BY THE GOVERNMENT ARISES UNLESS THE TRAVEL MAY BE CONSIDERED AS INCIDENT TO A CHANGE OF RESIDENCE RESULTING FROM AN ORDERED PERMANENT CHANGE OF STATION. 33 COMP. GEN. 431 (1954).

CONCERNING YOUR STATEMENT THAT YOUR HOME IN NORTH HIGHLANDS HAS BEEN YOUR ESTABLISHED RESIDENCE, IT IS CLEAR FROM YOUR OWN STATEMENT IN YOUR LETTER OF JULY 2, 1968, THAT YOUR WIFE AND CHILDREN TRAVELED TO NORTH HIGHLANDS THINKING THAT THE TRIP WAS OF A TEMPORARY NATURE. THEREFORE, AT THE TIME THEIR TRAVEL WAS PERFORMED TO NORTH HIGHLANDS, IT APPEARS THAT YOUR DEPENDENTS DID NOT INTEND TO REMAIN THERE. IN ANY EVENT, EVEN IF THEY HAD INTENDED TO REMAIN THERE, NO PERMANENT CHANGE-OF STATION ORDERS HAD BEEN ISSUED AND NONE WERE CONTEMPLATED AT THE TIME AND, THEREFORE, THE TRAVEL COULD NOT BE CONSIDERED AS INCIDENT TO A CHANGE OF RESIDENCE RESULTING FROM AN ORDERED CHANGE OF STATION.

CONSEQUENTLY, REIMBURSEMENT FOR THE COST OF YOUR DEPENDENTS' TRANSPORTATION AND PAYMENT OF A DISLOCATION ALLOWANCE IS NOT AUTHORIZED INCIDENT TO YOUR PERMANENT CHANGE-OF-STATION ORDERS OF SEPTEMBER 26, 1966.

PARAGRAPH 87 (C) OF AIR FORCE PAMPHLET 211-1-12, QUOTED ABOVE, DOES NOT, AS YOU CONTEND, SUPPORT ALLOWANCE OF YOUR CLAIM FOR DEPENDENT TRAVEL INCIDENT TO YOUR RETIREMENT ORDERS OF MAY 8, 1968. ON THE CONTRARY, IT SPECIFICALLY STATES THAT TRAVEL OF DEPENDENTS BEFORE THE ISSUANCE OF RETIREMENT ORDERS PRECLUDES PAYMENT OF THE TRAVEL ALLOWANCE SINCE THE CERTIFICATE REQUIRED BY THE JOINT TRAVEL REGULATIONS IS NOT ISSUED INCIDENT TO RETIREMENT.

SINCE YOU DID NOT APPLY FOR RETIREMENT UNTIL LONG AFTER YOUR DEPENDENTS TRAVELED TO NORTH HIGHLANDS, THERE IS NO BASIS ON WHICH THE TRAVEL OF YOUR DEPENDENTS FROM SUITLAND TO NORTH HIGHLANDS COULD BE CONSIDERED AS INCIDENT TO YOUR RETIREMENT ORDERS OF MAY 8, 1968.

ACCORDINGLY, AND SINCE YOUR DEPENDENTS WERE AT YOUR HOME OF SELECTION IN CALIFORNIA WHEN YOUR RETIREMENT ORDERS OF MAY 8, 1968, WERE ISSUED AND A DISLOCATION ALLOWANCE IS NOT AUTHORIZED INCIDENT TO RETIREMENT, THERE IS NO LEGAL BASIS FOR THE PAYMENT OF YOUR CLAIM.