B-170531, OCT 23, 1970, 50 COMP GEN 317

B-170531, OCT 23, 1970, 50 COMP GEN 317

MILITARY PERSONNEL - MISSING, INTERNED, ETC., PERSONS - HOUSETRAILER TRANSPORTATION THE TRANSPORTATION OF A HOUSETRAILER AT GOVERNMENT EXPENSE FOR THE DEPENDENTS OF A MEMBER OF THE UNIFORMED SERVICES IN A MISSING STATUS, AS DEFINED IN 37 U.S.C. 551(2), MAY NOT BE PROVIDED IN THE ABSENCE OF SPECIFIC AUTHORITY. 37 U.S.C. 554, IN AUTHORIZING THE TRANSPORTATION OF THE DEPENDENTS AND THE HOUSEHOLD AND PERSONAL EFFECTS OF MEMBERS IN A MISSING STATUS, DOES NOT EXPRESSLY PROVIDE FOR THE TRANSPORTATION OF A HOUSETRAILER OR A MOBILE HOME - AND THE WORDS "PERSONAL EFFECTS" AS USED IN THE SECTION MAY NOT BE CONSTRUED AS INCLUDING A HOUSETRAILER - AND 37 U.S.C. 409, IN PROVIDING FOR A TRAILER ALLOWANCE IN LIEU OF THE TRANSPORTATION OF BAGGAGE AND HOUSEHOLD GOODS, AND THE PAYMENT OF A DISLOCATION ALLOWANCE, RESTRICTS ENTITLEMENT TO THE MEMBER, OR IN CASE OF HIS DEATH TO HIS DEPENDENTS, AND MAKES NO PROVISION FOR PAYMENT IN THE EVENT THE MEMBER IS IN A MISSING STATUS.

TO THE SECRETARY OF THE ARMY, OCTOBER 23, 1970:

FURTHER REFERENCE IS MADE TO LETTER OF JULY 28, 1970, FROM THE DEPUTY FOR RESERVE AFFAIRS REQUESTING A DECISION AS TO THE LEGALITY OF TRANSPORTING A HOUSETRAILER AT GOVERNMENT EXPENSE FOR THE DEPENDENTS OF A MEMBER OF A UNIFORMED SERVICE WHEN THE MEMBER IS IN A MISSING STATUS. THE REQUEST WAS ASSIGNED PDTATAC CONTROL NO. 70-40 BY THE PER DIEM TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

IN THE LETTER THE DEPUTY SAYS THAT A CASUAL READING OF THE CURRENT LANGUAGE IN PARAGRAPH M10002, JOINT TRAVEL REGULATIONS, WOULD APPEAR TO AUTHORIZE THE MOVEMENT OF A HOUSETRAILER AT GOVERNMENT EXPENSE WHEN A MEMBER IS IN A MISSING STATUS. HE SAYS IT HAS BEEN RECOMMENDED, HOWEVER, THAT THAT PARAGRAPH BE AMENDED TO SPECIFICALLY PROVIDE FOR THE MOVEMENT OF A HOUSETRAILER UNDER SUCH CIRCUMSTANCES BUT THAT DOUBT EXISTS AS TO WHETHER AN AMENDMENT OF THAT NATURE CAN BE ACCOMPLISHED LEGALLY.

THE DEPUTY POINTS OUT THAT ALTHOUGH 37 U.S.C. 554, WHICH PROVIDES FOR THE TRAVEL AND TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS OF MEMBERS IN A MISSING STATUS, APPEARS TO AUTHORIZE PRACTICALLY THE SAME ENTITLEMENTS TO TRAVEL AND TRANSPORTATION ALLOWANCES AS IS AUTHORIZED FOR A MEMBER ON PERMANENT CHANGE OF STATION, THERE IS NO SPECIFIC PROVISION THEREIN COVERING A HOUSETRAILER. ALSO, HE SAYS THAT 37 U.S.C. 409, WHICH CONTAINS THE STATUTORY AUTHORITY FOR TRANSPORTATION OF A HOUSETRAILER, APPEARS TO RESTRICT THE ENTITLEMENT TO THOSE CASES WHERE A MEMBER IS ENTITLED TO TRANSPORTATION OF BAGGAGE AND HOUSEHOLD EFFECTS UNDER SECTION 406. SPECIFICALLY, THE DEPUTY REQUESTS OUR DECISION AS TO WHETHER THE WORDS "PERSONAL EFFECTS" AS USED IN SECTION 554(A) MAY BE CONSTRUED AS INCLUDING A HOUSETRAILER FOR THE PURPOSE OF TRANSPORTING IT WHEN A MEMBER IS IN A MISSING STATUS AS DEFINED IN SECTION 551(2).

SECTION 409 OF TITLE 37, U.S. CODE, PROVIDES THAT UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, AND IN LIEU OF TRANSPORTATION OF BAGGAGE AND HOUSEHOLD EFFECTS OR PAYMENT OF A DISLOCATION ALLOWANCE, A MEMBER OF THE UNIFORMED SERVICES, OR IN THE CASE OF HIS DEATH HIS DEPENDENTS, WHO WOULD OTHERWISE BE ENTITLED TO TRANSPORTATION OF BAGGAGE AND HOUSEHOLD GOODS, MAY TRANSPORT A HOUSETRAILER OR MOBILE DWELLING WITHIN THE CONTINENTAL UNITED STATES, WITHIN ALASKA, OR BETWEEN THE CONTINENTAL UNITED STATES AND ALASKA, FOR USE AS A RESIDENCE. PARAGRAPH M10001 OF THE JOINT TRAVEL REGULATIONS DEFINES HOUSETRAILER AS A RESIDENCE DESIGNED TO BE MOVED OVERLAND.

SECTION 409 STEMS FROM SECTION 303(C) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813, WHICH WAS THE BASIC AUTHORITY FOR THE PAYMENT OF THE VARIOUS CLASSES OF TRAVEL AND TRANSPORTATION ALLOWANCES AUTHORIZED FOR MEMBERS OF THE UNIFORMED SERVICES. ORIGINALLY NO TRAILER ALLOWANCE WAS INCLUDED IN THE STATUTE, AND IN THE ABSENCE OF SUCH PROVISION THERE WAS NO AUTHORITY TO REIMBURSE A MEMBER FOR THE COST OF TRANSPORTING A TRAILER OR HIS HOUSEHOLD EFFECTS IN THE TRAILER.

CONCERNING THIS VIEW, IT HAS LONG BEEN HELD THAT HOUSETRAILERS ARE NOT HOUSEHOLD GOODS OR PERSONAL EFFECTS. 32 COMP. GEN. 154 (1952); ID. 367; ID. 451; ID. 567 (1953). SEE, ALSO, IN RE SORENSEN'S ESTATE, 115 P. 2D 241 (1941) AND IN RE ARMOUR'S ESTATE, 99 A. 2D 374 (1953).

THEREAFTER, SECTION 303(C) WAS AMENDED BY THE CAREER INCENTIVE ACT OF 1955, 69 STAT. 18, 22, 37 U.S.C. 253(C). THE AMENDMENT PROVIDED AUTHORITY UNDER WHICH A MEMBER WHO RESIDES IN AND TRANSPORTS A HOUSETRAILER OR MOBILE DWELLING WITHIN THE CONTINENTAL UNITED STATES ON A PERMANENT CHANGE OF STATION CAN RECEIVE A TRAILER ALLOWANCE NOT TO EXCEED 20 CENTS A MILE.

IN 35 COMP. GEN. 581 (1956) WE HELD THAT THE TRAILER ALLOWANCE AUTHORIZED UNDER SECTION 303(C) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED BY THE 1955 ACT, WAS PAYABLE ONLY TO A SERVICE MEMBER AND IT MAY NOT BE PAID TO HIS DEPENDENT FOR MOVEMENT OF THE TRAILER BY THE DEPENDENT AFTER THE SERVICE MEMBER'S DEATH. AS A RESULT OF THIS DECISION, BY THE ACT OF MARCH 17, 1958, 72 STAT. 37, THE CONGRESS AMENDED SECTION 303(C) TO AUTHORIZE THE PAYMENT TO DEPENDENTS OF MEMBERS WHO DIE ON ACTIVE DUTY OF AN ALLOWANCE FOR MOVING A HOUSETRAILER IN LIEU OF TRANSPORTATION OF BAGGAGE AND HOUSEHOLD GOODS. THEREFORE, THE TRAILER ALLOWANCE PROVISIONS CURRENTLY IN 37 U.S.C. 409, AUTHORIZE TRANSPORTATION OF A HOUSETRAILER BY THE MEMBER HIMSELF OR, IN THE CASE OF HIS DEATH, BY HIS DEPENDENTS.

SECTION 554(B), CHAPTER 10 OF TITLE 37, U.S. CODE, PROVIDES THAT TRANSPORTATION (INCLUDING PACKING, CRATING, DRAYAGE, TEMPORARY STORAGE AND UNPACKING OF HOUSEHOLD AND PERSONAL EFFECTS) MAY BE PROVIDED FOR THE DEPENDENTS AND HOUSEHOLD AND PERSONAL EFFECTS OF A MEMBER OF A UNIFORMED SERVICE ON ACTIVE DUTY (WITHOUT REGARD TO PAY GRADE) "WHO IS OFFICIALLY REPORTED AS DEAD, INJURED, OR ABSENT FOR A PERIOD OF MORE THAN 29 DAYS IN A MISSING STATUS." SUCH TRANSPORTATION MAY BE PROVIDED TO THE MEMBER'S OFFICIAL RESIDENCE, TO THE RESIDENCE OF HIS DEPENDENTS, OR AS OTHERWISE PROVIDED.

SECTION 554 HAD ITS ORIGIN IN SECTION 12 OF THE MISSING PERSONS ACT, APPROVED MARCH 7, 1942, 56 STAT. 143, 146, FORMERLY CONTAINED IN 50 U.S.C. APP. 1012. SECTION 12 CONTAINED NO AUTHORIZATION FOR THE SHIPMENT OF EITHER A PRIVATELY OWNED VEHICLE OR A HOUSETRAILER BY OR FOR DEPENDENTS OF PERSONS IN A MISSING STATUS. THEREAFTER, SECTION 12 WAS AMENDED BY THE ACT OF AUGUST 29, 1951, 65 STAT. 207, AND THE ACT OF OCTOBER 19, 1965, 79 STAT. 992, TO PROVIDE FOR TRANSPORTATION AT GOVERNMENT EXPENSE OF PRIVATELY OWNED VEHICLES OF MISSING OR DECEASED MEMBERS. NO SIMILAR PROVISION, HOWEVER, HAS BEEN ENACTED FOR THE SHIPMENT OF A HOUSETRAILER OR MOBILE HOME BY THE DEPENDENTS OF PERSONS IN A MISSING STATUS.

IN ENACTING CHAPTER 10 OF TITLE 37, U.S. CODE, THE CONGRESS SPECIFIED THE PAY AND ALLOWANCES AND TRAVEL AND TRANSPORTATION BENEFITS AUTHORIZED IN THE CASE OF A MEMBER IN A MISSING STATUS AND ONLY THESE BENEFITS ARE PAYABLE, IF OTHERWISE PROPER, INCIDENT TO SUCH A STATUS. 44 COMP. GEN. 657 (1965). IN 47 COMP. GEN. 556 (1968) A CASE INVOLVING ANALOGOUS CIRCUMSTANCES, WE CONSIDERED THE QUESTION WHETHER PAYMENT OF DISLOCATION ALLOWANCE AUTHORIZED UNDER 37 U.S.C. 407 COULD BE MADE TO DEPENDENTS UPON RELOCATION OF THE HOUSEHOLD BY DEPENDENTS OF A MEMBER IN A MISSING STATUS. WE SAID THAT NEITHER SECTION 554 NOR SECTION 407 CONTAINS ANY PROVISION FOR PAYMENT OF DISLOCATION ALLOWANCE INCIDENT TO A MEMBER'S MISSING STATUS. WE CONCLUDED THAT, IN THE ABSENCE OF A SPECIFIC AUTHORIZATION, PAYMENT OF DISLOCATION ALLOWANCE IS NOT AUTHORIZED IN SUCH CIRCUMSTANCES. SEE ALSO, 44 COMP. GEN. 522 (1965).

SINCE SECTION 554 LIMITS ENTITLEMENT TO THOSE SPECIFIC TRAVEL AND TRANSPORTATION ALLOWANCES THERE MENTIONED AND AUTHORITY TO TRANSPORT HOUSETRAILERS OR MOBILE HOMES IS NOT ONE OF THE ALLOWANCES EXPRESSLY DESIGNATED, AND SINCE THE WORDS "PERSONAL EFFECTS" AS USED IN THAT SECTION MAY NOT BE CONSTRUED AS INCLUDING A HOUSETRAILER FOR THE PURPOSE OF TRANSPORTING IT WHEN A MEMBER IS IN A MISSING STATUS, WE ARE OF THE VIEW THAT NO AUTHORITY EXISTS FOR THE PAYMENT OF TRAILER ALLOWANCE IN SUCH A SITUATION.

THE QUESTION IS ANSWERED ACCORDINGLY.