[Protest of Proposed Navy Contract Award for Full-Service Bank]

B-28646, SEPTEMBER 23, 1942, 22 COMP. GEN. 262

TRANSPORTATION - DEPENDENTS OF MILITARY PERSONNEL EXCLUDED FROM ASSIGNED STATIONS THE PROVISION IN SECTION 4 (B) OF THE ACT OF JUNE 5, 1942, AUTHORIZING TRANSPORTATION AT GOVERNMENT EXPENSE OF DEPENDENTS OF MILITARY PERSONNEL, WHO ARE OTHERWISE ENTITLED TO TRANSPORTATION, TO LOCATIONS DESIGNATED BY SUCH MILITARY PERSONNEL WHEN THEY ARE TRANSFERRED OR ASSIGNED TO STATIONS WHERE GOVERNMENT QUARTERS ARE NOT AVAILABLE FOR DEPENDENTS, APPLIES ONLY AFTER THE SECRETARY OF WAR THROUGH HIS PROPER AGENT HAS REFUSED PERMISSION FOR THE DEPENDENTS TO ACCOMPANY THE OFFICER OR MAN BECAUSE OF THE NONAVAILABILITY OF GOVERNMENT QUARTERS, AND DOES NOT APPLY TO A CASE WHERE THE OFFICER OR MAN HIMSELF DETERMINES THAT PUBLIC QUARTERS ARE NOT AVAILABLE AT A STATION FROM WHICH DEPENDENTS HAVE NOT BEEN EXCLUDED BY PROPER AUTHORITY.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF WAR, SEPTEMBER 23, 1942:

THERE HAS BEEN RECEIVED YOUR LETTER OF SEPTEMBER 1, 1942, AS FOLLOWS:

A CLAIM HAS BEEN SUBMITTED BY BERNARD THIELEN, MAJOR, FA, FOR REIMBURSEMENT OF TRAVELING EXPENSES OF HIS WIFE FROM WEST POINT, NEW YORK, TO LOS ANGELES, CALIFORNIA, UNDER THE PROVISIONS OF SECTION 4 (B), PUBLIC LAW 580--- 77TH CONGRESS, JUNE 5, 1942.

MAJOR THIELEN WAS RELIEVED FROM THE UNITED STATES MILITARY ACADEMY, WEST POINT, NEW YORK, EFFECTIVE ABOUT MAY 30, 1942, AND ASSIGNED TO THE ARMORED FORCE POOL, FORT KNOX, KENTUCKY, BY PAR. 36, WAR DEPARTMENT SPECIAL ORDER NO. 59, MARCH 7, 1942. ON MAY 16, 1942, IN ANTICIPATION OF THIS MOVE, MRS. THIELEN TRAVELED TO FORT KNOX, KENTUCKY. MAJOR THIELEN HAS BEEN REIMBURSED BY THE GOVERNMENT FOR EXPENSES COVERING THIS TRAVEL IN THE AMOUNT OF $37.90.

WAR DEPARTMENT LETTER, DATED MAY 19, 1942, SUBJECT: AMENDMENT OF ORDERS FILE AG 201--- THIELEN, BERNARD (5-16-42) OD, AMENDED ORDERS AFFECTING MAJOR THIELEN BY ASSIGNING HIM TO HEADQUARTERS, SERVICES OF SUPPLY, WASHINGTON, D.C., EFFECTIVE MAY 23, 1942. THE CLAIMANT'S WIFE THEN MOVED FROM FORT KNOX, KENTUCKY, TO LOS ANGELES, CALIFORNIA, AND FURTHER REIMBURSEMENT IS REQUESTED UNDER THE PROVISIONS OF SECTION 4 (B), PUBLIC LAW 580--- 77TH CONGRESS, PREDICATED UPON THE STATEMENT BY MAJOR THIELEN THAT NO GOVERNMENT QUARTERS ARE AVAILABLE IN WASHINGTON, D.C.

IT IS CONSIDERED THAT THE " GOVERNMENT QUARTERS" SECTION OF THE ACT WAS INTENDED TO REFER TO QUARTERS AT MILITARY POSTS OR STATIONS TO WHICH DEPENDENTS ARE NOT PERMITTED TO ACCOMPANY MILITARY PERSONNEL OR TO A GOVERNMENT POST WHERE QUARTERS ARE NOT AVAILABLE. THERE IS NO RESTRICTION AGAINST DEPENDENTS OF OFFICERS ACCOMPANYING THEM TO WASHINGTON, D.C.

ON THE BASIS OF THE AMENDED ORDERS IN THE SUBJECT CASE, IT IS CONSIDERED THAT MAJOR THIELEN SHOULD, UNDER PAR. 7G (2), AR 30-920, BE REQUIRED TO REIMBURSE THE GOVERNMENT FOR THE EXCESS TRAVEL PAYMENT OVER THE APPLICABLE ALLOWANCE FOR TRAVEL FROM WEST POINT, NEW YORK, TO WASHINGTON, D.C.

THIS CASE IS SUBMITTED FOR CLARIFICATION AND A DECISION AS TO THE APPLICATION OF SECTION 4 (B), PUBLIC LAW 580--- 77TH CONGRESS TO THIS CLAIM AND TO MANY OTHERS THAT WILL UNDOUBTEDLY BE SUBMITTED UNDER THIS ACT.

SECTIONS 3 (B) AND 4 (B) OF THE ACT OF JUNE 5, 1942, 56 STAT. 314, 315, PROVIDE:

SEC. 3. * * * (B) WHEN CIVILIAN EMPLOYEES ARE ON DUTY AT PLACES DESIGNATED BY THE SECRETARY OF WAR AS WITHIN ZONES FROM WHICH THEIR DEPENDENTS SHOULD BE EVACUATED FOR MILITARY REASONS, OR UPON TRANSFER OR ASSIGNMENT TO DUTY OF SUCH CIVILIAN EMPLOYEES TO PLACES WHERE THEIR DEPENDENTS ARE NOT FOR MILITARY REASONS PERMITTED TO ACCOMPANY THEM, THEIR DEPENDENTS AND HOUSEHOLD EFFECTS MAY BE MOVED AT GOVERNMENT EXPENSE UNDER SUCH REGULATIONS AS THE SECRETARY OF WAR MAY PRESCRIBE, TO SUCH LOCATIONS AS MAY BE DESIGNATED BY THE EMPLOYEE CONCERNED AND LATER FROM SUCH LOCATIONS TO A DUTY STATION TO WHICH THE EMPLOYEE IS ASSIGNED AND AT WHICH THE ABOVE RESTRICTIONS DO NOT APPLY: PROVIDED, THAT THE PROVISIONS OF THIS SUBSECTION SHALL BE APPLICABLE TO TRAVEL PERFORMED BY DEPENDENTS AND HOUSEHOLD EFFECTS MOVED ON AND AFTER DECEMBER 8, 1941.

SEC. 4. * * * (B) WHEN SUCH MILITARY PERSONNEL ARE ON DUTY AT PLACES DESIGNATED BY THE SECRETARY OF WAR AS WITHIN ZONES FROM WHICH THEIR DEPENDENTS SHOULD BE EVACUATED FOR MILITARY REASONS, OR UPON TRANSFER OR ASSIGNMENT TO DUTY OF SUCH MILITARY PERSONNEL TO PLACES WHERE THEIR DEPENDENTS ARE NOT, FOR MILITARY REASONS, PERMITTED TO ACCOMPANY THEM OR WHERE GOVERNMENT QUARTERS FOR THEIR DEPENDENTS ARE NOT AVAILABLE, DEPENDENTS FOR WHOM TRAVEL ALLOWANCES AND TRAVEL IN KIND IS AUTHORIZED, AND HOUSEHOLD EFFECTS WHICH ARE AUTHORIZED TO BE MOVED AT GOVERNMENT EXPENSE, MAY BE MOVED AT GOVERNMENT EXPENSE TO SUCH LOCATIONS AS MAY BE DESIGNATED BY THE OFFICER, WARRANT OFFICER, OR ENLISTED MAN CONCERNED AND LATER FROM SUCH LOCATIONS TO A DUTY STATION TO WHICH SUCH OFFICER, WARRANT OFFICER, OR ENLISTED MAN MAY BE ASSIGNED AND AT WHICH THE ABOVE RESTRICTIONS DO NOT APPLY: PROVIDED, THAT THE PROVISIONS OF THIS SUBSECTION SHALL BE APPLICABLE TO TRAVEL PERFORMED BY DEPENDENTS AND HOUSEHOLD EFFECTS MOVED ON AND AFTER DECEMBER 8, 1941.

THESE WERE AMENDMENTS INSERTED BY THE COMMITTEE ON MILITARY AFFAIRS OF THE SENATE ON H.R. 4476, AND IN EXPLAINING THEM IT IS STATED IN SENATE REPORT NO, 1285, 77TH CONGRESS, SECOND SESSION:

SECTION 3. * * *

UPON THE OUTBREAK OF WAR, AND FOR SOME TIME PRIOR THERETO, IT WAS CONSIDERED ESSENTIAL TO EVACUATE THE DEPENDENTS AND HOUSEHOLD EFFECTS OF SOME CIVILIAN EMPLOYEES FROM DANGER AREAS. THIS SITUATION CONTINUES TO EXIST IN SOME AREAS AND MAY COME TO EXIST IN OTHER AREAS UNDER THE VARYING WAR CONDITIONS. SECTION 3 (B) WILL PERMIT THIS TO BE DONE

SECTION 4, AS AMENDED, WILL GRANT THE SAME AUTHORITY, WHERE IT DOES NOT EXIST, FOR MILITARY PERSONNEL, AS WILL SECTION 3 FOR CIVILIAN EMPLOYEES.

COL. L. P. WORRALL, TESTIFIED FOR THE WAR DEPARTMENT AS TO THE PURPOSE OF SECTION 4 (B) IN THE HEARINGS BEFORE THE SENATE MILITARY AFFAIRS COMMITTEE, ON H.R. 4476, AT PAGE 28, AS FOLLOWS:

THIS IS A PERMANENT MOVE ONLY. AS YOU ALL KNOW, THERE ARE A GREAT MANY PLACES WHERE TROOPS ARE SERVING NOW AND WHERE THERE ARE NOT ADEQUATE QUARTERS FOR DEPENDENTS. WE DO NOT ALLOW FAMILIES ON ANY OF THE LARGER CANTONMENTS, OBVIOUSLY THERE IS NO PLACE FOR THEM. THAT MEANS THEN THAT THE OFFICER GOES, IF HE IS ON A POST WHERE HIS FAMILY IS NOW RESIDING, THAT SPACE MAY BE NEEDED FOR SOMEONE ELSE, AND WHERE IS SHE TO GO? WE MUST LOGICALLY GET HER OFF THE MILITARY POST.

PRESUMABLY SHE WILL GO HOME TO SOME PLACE WHERE SHE ORIGINALLY CAME FROM. AT PRESENT THERE IS NO AUTHORITY TO MOVE HER OR HER HOUSEHOLD GOODS ANYWHERE EXCEPT WHERE THE OFFICER GOES, AND WE WON-T LET HER GO THERE.

SO, OUR THOUGHT IS, IF WE CAN MOVE HER BACK TO MOTHER, OR ANYWHERE SHE WOULD LIKE TO GO, THEN SHE MUST STAY THERE UNTIL AFTER THIS EMERGENCY IS OVER, AND THEN BRING HER AND HER HOUSEHOLD GOODS BACK TO WHEREVER THE HUSBAND IS THEN SERVING.

IT ALSO APPLIES TO ALL PERSONS, THAT IS, I MEAN, THOSE WHO ARE NOW AUTHORIZED TO HAVE HOUSEHOLD GOODS MOVED, THE FIRST THREE GRADES OF ENLISTED MAN AND ALL OFFICERS AND WARRANT OFFICERS. IT IS JUST A FAIR PROPOSITION.

NOW THE OTHER PORTION OF THIS IS:

TO ZONES WITHIN WHERE THEY ARE NOT ALLOWED.

AND IF THEY ARE ALREADY THERE, MAYBE THE OFFICER WILL NOT BE MOVED AND THEY WILL BE.

CONCEIVABLY ON THE WESTERN COAST, THE SITUATION MAY MAKE IT NECESSARY TO EVACUATE THE NONCOMBATANTS. THERE IS NO AUTHORITY IN LAW NOW TO MOVE THE FAMILY AWAY FROM THIS PLACE BECAUSE THE OFFICERS' STATION HAS NOT BEEN CHANGED, OR THE ENLISTED MEN. I SPEAK GENERALLY.

WE WANT TO HAVE AUTHORITY TO MOVE THE FAMILY OUT OF THAT AREA AND PUT THE FAMILY IN THE PLACE THEY SELECT, AND THEN AFTER THE EMERGENCY, THE FAMILY MAY BE MOVED BACK TO WHERE THE OFFICER IS SERVING, IT MAY BE THERE OR ELSEWHERE.

A DIFFERENCE EXISTS BETWEEN THE CLAUSE IN SECTION 3 (B) AND SECTION 4 (B) SET OUT BELOW, THE ITALICIZED PORTION BEING INCLUDED IN SECTION 4 (B) AND NOT IN SECTION 3 (B):

* * * OR UPON TRANSFER OR ASSIGNMENT TO DUTY * * * TO PLACES WHERE THEIR DEPENDENTS ARE NOT, FOR MILITARY REASONS, PERMITTED TO ACCOMPANY THEM OR WHERE GOVERNMENT QUARTERS FOR THEIR DEPENDENTS ARE NOT AVAILABLE * * *.

THIS DIFFERENCE DOUBTLESS IS DUE TO THE FACT THAT CIVILIAN EMPLOYEES ARE NOT ORDINARILY FURNISHED PUBLIC QUARTERS FOR DEPENDENTS AND IF SUCH QUARTERS ARE FURNISHED THEY ARE CHARGED A RENTAL THEREFOR. THIS IS NOT TRUE OF MILITARY PERSONNEL ENTITLED TO QUARTERS FOR DEPENDENTS. THE PURPOSE OF THE ADDITIONAL LANGUAGE IN SECTION 4 (B) WAS TO RECOGNIZE A RIGHT IN THE WAR DEPARTMENT TO EXCLUDE DEPENDENTS OF MILITARY PERSONNEL FROM AREAS NOT ALONE FOR MILITARY REASONS BUT ALSO BECAUSE QUARTERS FOR THE DEPENDENTS OF SUCH PERSONNEL ARE NOT AVAILABLE AT THE INDIVIDUAL'S NEW STATION. THE TESTIMONY OF COLONEL WORRALL SHOWS THAT AT THAT TIME SUCH PLACES INCLUDED STATIONS WHERE TROOPS ARE SERVING WHERE THERE ARE NO ADEQUATE QUARTERS FOR DEPENDENTS, AND THAT FAMILIES WERE NOT ALLOWED IN ANY OF THE LARGER CANTONMENTS. IT WAS NEVER INTENDED THAT AN OFFICER ORDERED TO DUTY IN WASHINGTON, D.C., OR ANY CITY OF THE UNITED STATES AND NOT WITHIN THE DANGER AREA, SHOULD HIMSELF DETERMINE THAT PUBLIC QUARTERS ARE NOT AVAILABLE AND THUS ON TRANSFER FROM ONE STATION TO ANOTHER IN CONTINENTAL UNITED STATES SECURE TRANSPORTATION OF HIS DEPENDENTS IN EXCESS OF THE COST OF TRANSPORTATION OF THE DEPENDENTS FROM THE LAST OLD STATION TO THE ULTIMATE NEW STATION ASSIGNED THE OFFICER. IT IS THE SECRETARY OF WAR WHO HAS THE AUTHORITY UNDER THE SECTION TO DETERMINE AREAS FROM WHICH DEPENDENTS ARE TO BE EVACUATED OR EXCLUDED OR ARE TO BE EXCLUDED BECAUSE GOVERNMENT QUARTERS FOR THE DEPENDENTS OF MILITARY PERSONNEL ARE NOT AVAILABLE, AND IN THAT SITUATION THE STATUTE PROVIDES THAT THE DEPENDENTS OR HOUSEHOLD EFFECTS "MAY BE MOVED AT GOVERNMENT EXPENSE" AS THEREIN PROVIDED. IT IS ONLY AFTER THE SECRETARY OF WAR THROUGH HIS PROPER AGENT HAS REFUSED TO PERMIT DEPENDENTS TO TRAVEL TO THE OFFICER'S OR MAN'S NEW PERMANENT STATION THAT THE CASE COMES WITHIN THE SECTION, AND THE OFFICER OR MAN MAY THEN DESIGNATE A LOCATION TO WHICH HIS DEPENDENTS OR HOUSEHOLD EFFECTS ARE TO BE MOVED AT GOVERNMENT EXPENSE. THE DEPENDENTS HAVING BEEN REFUSED PERMISSION TO ACCOMPANY THE OFFICER OR MAN TO HIS NEW STATION PURSUANT TO THE PROVISIONS OF THE SUBSECTION AND THE BENEFITS OF THE SUBSECTION HAVING BEEN ACCORDED, HE IS NOT ENTITLED TO ANY FURTHER BENEFIT UNDER THE PROVISION UNTIL HE IS ASSIGNED TO A STATION WHERE THE RESTRICTIONS IN THE SUBSECTION DO NOT APPLY.

AS THE DEPENDENT OF MAJOR THIELEN WAS NOT PROHIBITED FROM TRAVELING TO WASHINGTON WHEN THAT PLACE WAS ASSIGNED AS MAJOR THIELEN'S PERMANENT STATION HE IS NOT ENTITLED TO ANYTHING UNDER SECTION 4 (B) OF THE ACT OF JUNE 5, 1942. HIS RIGHTS TO TRANSPORTATION OF DEPENDENTS ARE FIXED BY SECTION 12 OF THE ACT OF MAY 18, 1920, 41 STAT. 604, 10 U.S.C. 756, AND SECTION 12 OF THE ACT OF JUNE 10, 1922, 42 STAT. 631, 37 U.S.C. 21. THE CONCLUSION AS TO HIS RIGHTS UNDER THOSE LAWS, AS STATED IN THE NEXT TO THE LAST PARAGRAPH OF YOUR LETTER, IS CORRECT.