B-160488, FEB. 14, 1967

B-160488, FEB. 14, 1967

TO THE SECRETARY OF THE AIR FORCE:

FURTHER REFERENCE IS MADE TO LETTER OF NOVEMBER 22, 1966, WITH ENCLOSURES, FROM THE UNDER SECRETARY OF THE AIR FORCE REQUESTING A DECISION WHETHER THE JOINT TRAVEL REGULATIONS, VOLUME 1, MAY BE AMENDED TO DELETE THE REQUIREMENT THAT A MEMBER COMPLETE 8 YEARS OF CONTINUOUS ACTIVE DUTY (WITH NO BREAK THEREIN OF MORE THAN 90 DAYS) IMMEDIATELY PRECEDING RETIREMENT FOR REASONS OTHER THAN PHYSICAL DISABILITY TO ENTITLE HIM TO SELECT A HOME FOR THE PURPOSE OF TRAVEL AND TRANSPORTATION ALLOWANCES. THE REQUEST WAS ASSIGNED PDTATAC CONTROL NO. 66-34 BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

THE PROPOSED AMENDMENT WOULD AFFECT PARAGRAPHS M4158-1A AND B, M7010-1A AND B, AND M8260-1 AND 2 OF THE REGULATIONS.

THE JOINT TRAVEL REGULATIONS WERE AMENDED BY CHANGE 43, DATED FEBRUARY 1, 1956, TO AUTHORIZE MEMBERS RETIRED FOR OTHER THAN PHYSICAL REASONS, OR DISCHARGED WITH SEVERANCE PAY, AFTER 8 YEARS OF CONTINUOUS SERVICE TO SELECT A HOME FOR PURPOSES OF TRAVEL AND TRANSPORTATION ALLOWANCES TO HOME UPON SEPARATION FROM THE SERVICE. THAT CHANGE RESULTED FROM AN AMENDMENT TO SECTIONS 303 (A) AND (C) OF THE CAREER COMPENSATION ACT OF 1949 BY PUBLIC LAW 368-84, AUGUST 11, 1955, 69 STAT. 691, WHICH AUTHORIZED TRAVEL AND TRANSPORTATION ALLOWANCES TO A SELECTED HOME FOR A MEMBER WHO:

"/1) IS RETIRED FOR PHYSICAL DISABILITY OR PLACED UPON THE TEMPORARY DISABILITY RETIRED LIST: OR

"/2) IS RETIRED WITH PAY FOR ANY OTHER REASON, OR IS DISCHARGED WITH SEVERANCE PAY, IMMEDIATELY FOLLOWING AT LEAST EIGHT YEARS OF CONTINUOUS ACTIVE DUTY (NO SINGLE BREAK THEREIN OF MORE THAN NINETY DAYS).'

THOSE PROVISIONS WERE AMENDED BY PUBLIC LAW 86-638, JULY 12, 1960, 74 STAT. 471, TO PLACE MEMBERS VOLUNTARILY RELEASED TO INACTIVE DUTY WITH READJUSTMENT PAY ON A PARITY FOR HOME SELECTION PURPOSES WITH MEMBERS DISCHARGED WITH SEVERANCE PAY BY CHANGING CLAUSE (2) TO READ AS FOLLOWS:

"/2) IS RETIRED WITH PAY FOR ANY OTHER REASON, OR IMMEDIATELY FOLLOWING AT LEAST EIGHT YEARS CONTINUOUS ACTIVE DUTY (NO SINGLE BREAK THEREIN OF MORE THAN NINETY DAYS), IS DISCHARGED WITH SEVERANCE PAY OR VOLUNTARILY RELEASED TO INACTIVE DUTY WITH READJUSTMENT PAY.'

SUBSTANTIALLY SIMILAR PROVISIONS ARE CURRENTLY CONTAINED IN 37 U.S.C. 404 (C) AND 406 (G).

AS A BASIS FOR THE PROPOSED AMENDMENT THE UNDER SECRETARY SAYS THAT REPORT NO. 967, HOUSE OF REPRESENTATIVES, ON H.R. 6600, 84TH CONGRESS, WHICH BECAME PUBLIC LAW 368, INDICATES AT PAGE 3 THAT THE 8-YEAR CONTINUOUS SERVICE REQUIREMENT RELATES ONLY TO MEMBERS DISCHARGED WITH SEVERANCE PAY AND DOES NOT INCLUDE A MEMBER WHO IS RETIRED WITH PAY. ADMITTEDLY, THE LANGUAGE OF THE STATUTE AS AMENDED IN 1960 (AND AS PRESENTLY APPEARING IN 37 U.S.C. 404 (C) ( LENDS SUPPORT TO THAT VIEW.

FOLLOWING THE ENACTMENT OF THE CAREER COMPENSATION ACT OF 1949, A PROVISION WAS INCLUDED IN THE JOINT TRAVEL REGULATIONS, EFFECTIVE APRIL 1, 1951, AUTHORIZING CERTAIN RESERVES TO SELECT A HOME UPON RETIREMENT FOR DISABILITY, OR FOR OTHER REASONS AFTER ONE YEAR OF CONTINUOUS ACTIVE DUTY, FOR PURPOSES OF TRAVEL AND TRANSPORTATION ALLOWANCES. IN DECISION OF SEPTEMBER 21, 1953, B-116568, SUSTAINED IN DECISION OF MARCH 10, 1954, 33 COMP. GEN. 386, WE HELD THAT THE PERTINENT PROVISION OF THE CAREER COMPENSATION ACT OF 1949, DID NOT CONTAIN AUTHORITY FOR THE PROMULGATION OF SUCH REGULATIONS. THE ABOVE QUOTED PROVISIONS OF PUBLIC LAW 368-84 WERE ENACTED TO PROVIDE AUTHORITY FOR THE SELECTION OF A HOME BY RESERVES UPON RETIREMENT AND SUCH PROVISIONS WERE MADE RETROACTIVE TO VALIDATE PAYMENTS WHICH HAD BEEN MADE ON THE BASIS OF THE INVALID REGULATIONS.

THE LANGUAGE ON PAGE 3 OF THE COMMITTEE REPORT TO WHICH THE UNDER SECRETARY REFERS HAS REFERENCE TO THE APPLICATION OF THE RETROACTIVE FEATURE OF THE LAW AND IN OUR OPINION THAT LANGUAGE SHOULD NOT BE CONSIDERED AS INDICATING THE INTENT OF CONGRESS IN CONNECTION WITH THE LAW'S PROSPECTIVE APPLICATION. AS TO THE PROSPECTIVE APPLICATION OF PUBLIC LAW 368-84, COMMITTEE REPORT NO. 967 STATES (PAGE 1) THAT:

"THE PROPOSED LEGISLATION PROVIDES AUTHORITY FOR THE PAYMENT OF TRAVEL AND TRANSPORTATION ALLOWANCES TO ALL MEMBERS OF THE UNIFORMED SERVICES TO A HOME OF SELECTION WHEN (1) A MEMBER IS RETIRED FOR PHYSICAL DISABILITY OR PLACED UPON THE TEMPORARY DISABILITY RETIRED LIST, OR (2) IS RETIRED FOR ANY REASON OR DISCHARGED WITH SEVERANCE PAY IMMEDIATELY FOLLOWING AT LEAST 8 YEARS OF CONTINUOUS ACTIVE DUTY.'

IN THE FULL COMMITTEE HEARINGS (NO. 25) BY THE COMMITTEE ON ARMED SERVICES, HOUSE OF REPRESENTATIVES, ON H.R. 6600 THE PURPOSE OF THE BILL IS EXPLAINED AS FOLLOWS:

"MR. BLANDFORD. ALL IT SIMPLY DOES, MR. CHAIRMAN, IS TO CORRECT AN INEQUITY THAT HAS EXISTED SINCE THE COMPTROLLER GENERAL'S DECISION WITH REGARD TO RESERVISTS, OF RESERVISTS OF LONG SERVICE, WHO WERE THOUGHT TO HAVE THE RIGHT TO SELECT THE HOME TO WHICH THEY COULD SHIP THEIR HOUSEHOLD EFFECTS UPON LEAVING THE SERVICE.

"AFTER THE CAREER COMPENSATION ACT BECAME LAW, THE COMPTROLLER GENERAL RULED THAT RESERVISTS DID NOT HAVE THIS PRIVILEGE. WE HAVE CASES OF RESERVISTS GOING OUT WITH MAY YEARS OF SERVICE, SOME OF THEM 30 YEARS OF SERVICE, AND THEY ARE HELD NOT TO HAVE THE RIGHT TO SELECT THEIR HOME FOR SHIPMENT OF HOUSEHOLD EFFECTS.

"THIS BILL GIVES THEM THE RIGHT, AFTER THEY HAVE HAD 8 YEARS OF CONTINUOUS ACTIVE DUTY.

"NOW, THE OTHER CORRECTION IS AS TO THE PEOPLE WHO WERE PLACED UPON THE TEMPORARY DISABILITY RETIRED LIST. UNDER THE COMPTROLLER GENERAL'S DECISION, IT HAS BEEN HELD THAT THEY, TOO, MAY NOT SELECT THE PLACE TO WHICH TO SHIP THEIR HOUSEHOLD EFFECTS.

"THIS ALLOWS THEM TO SHIP THEIR HOUSEHOLD EFFECTS TO THEIR HOME THAT THEY SELECT, THE SAME AS AN INDIVIDUAL PLACED UPON THE RETIRED LIST.'

THUS, IT SEEMS CLEAR THAT IN ENACTING PUBLIC LAW 368-84 CONGRESS INTENDED TO GIVE THE RIGHT TO SELECT A HOME FOR TRAVEL AND TRANSPORTATION ALLOWANCES UPON TERMINATION OF SERVICE BY RETIREMENT OR SEPARATION WITH SEVERANCE PAY ONLY TO THOSE RESERVISTS WHO ARE SEPARATED AFTER 8 YEARS OF CONTINUOUS ACTIVE DUTY, EXCEPT WHEN RETIRED FOR PHYSICAL DISABILITY. BELIEVE THAT INTENT WAS PROPERLY REFLECTED IN THE JOINT TRAVEL REGULATIONS, CHANGE 43, FEBRUARY 1, 1956.

THE LEGISLATIVE HISTORY OF THE AMENDMENT EFFECTED BY PUBLIC LAW 86 638 OF JULY 12, 1960, SHOWS THAT AS STATED ABOVE, IT WAS INTENDED ONLY TO PLACE MEMBERS RELEASED TO INACTIVE DUTY WITH READJUSTMENT PAY ON A PARITY WITH MEMBERS DISCHARGED WITH SEVERANCE PAY. IN SENATE REPORT NO. 1736 (PAGE 1) ON H.R. 10068, WHICH BECAME PUBLIC LAW 86-638, AN EXPLANATION OF THE BILL IS AS FOLLOWS:

"THIS BILL WOULD PERMIT A RESERVE OFFICER WHO IS RELEASED TO INACTIVE DUTY AFTER HAVING COMPLETED 8 YEARS OF ACTIVE DUTY TO SELECT A HOME FOR THE PURPOSE OF HIS TRAVEL ALLOWANCES AND THE TRANSPORTATION OF HIS DEPENDENTS AND HOUSEHOLD EFFECTS.'

WHILE, AS INDICATED BY THE UNDER SECRETARY, THE LANGUAGE OF THAT AMENDMENT COULD BE INTERPRETED AS NOT REQUIRING 8 YEARS' CONTINUOUS SERVICE FOR MEMBERS "RETIRED WITH PAY FOR ANY OTHER REASON" FOR ENTITLEMENT TO SELECT A HOME, WE BE LIVE THAT IF THE CONGRESS HAD INTENDED SUCH A SUBSTANTIAL CHANGE IN THE LAW IT WOULD HAVE EXPRESSLY SO PROVIDED. WE FIND NO INDICATION OF ANY SUCH CONGRESSIONAL INTENT IN THE LEGISLATIVE HISTORY OF PUBLIC LAW 86-638. AND THE REPOSITIONING OF THE TERM,"IMMEDIATELY FOLLOWING AT LEAST EIGHT YEARS CONTINUOUS ACTIVE DUTY," IN THE AMENDATORY LANGUAGE OF THAT LAW IS NOT SUFFICIENT TO OVERCOME THE OTHER PERSUASIVE REASONS FOR CONCLUDING THAT CONGRESS DID NOT INTEND TO ELIMINATE THE 8-YEAR CONTINUOUS SERVICE REQUIREMENT IN THE CASE OF RESERVES RETIRED WITH PAY FOR REASONS OTHER THAN PHYSICAL DISABILITY. THINK THERE IS A STRONG PRESUMPTION THAT IF CONGRESS HAD SO INTENDED IT WOULD HAVE, IN ENACTING PUBLIC LAW 86 638, REPEALED THE SEPARATE PROVISIONS OF CLAUSE 1 OF THE LAW RELATING TO DISABILITY RETIREMENTS AND DELETED THE WORK "OTHER" IN THE FIRST LINE OF CLAUSE 2 RATHER THAN CONTINUE THE LANGUAGE MAKING A DISTINCTION BETWEEN DISABILITY AND OTHER FORMS OF RETIREMENT WHICH WOULD NO LONGER HAVE ANY PURPOSE.

ACCORDINGLY, IT IS OUR VIEW THAT THE PROPOSED AMENDMENT TO THE JOINT TRAVEL REGULATIONS, WHICH WOULD DELETE THE 8-YEAR REQUIREMENT WITH RESPECT TO MEMBERS RETIRED FOR REASONS OTHER THAN PHYSICAL DISABILITY, WOULD GO BEYOND THE PURPOSE AND INTENT OF CONGRESS AND, THEREFORE, IS NOT ..END :