B-163798, OCT 26, 1970, 50 COMP GEN 320

B-163798, OCT 26, 1970, 50 COMP GEN 320

TRAVEL EXPENSES - MILITARY PERSONNEL - SHIP ASSIGNMENTS - SHIP OVERHAUL V INACTIVATION AWAY FROM HOME PORT THE TRANSPORTATION BENEFITS PRESCRIBED BY PUBLIC LAW 91-210, APPROVED MARCH 13, 1970, 37 U.S.C. 406B, FOR MEMBERS OF THE UNIFORMED SERVICES PERMANENTLY ATTACHED TO SHIPS BEING OVERHAULED AWAY FROM HOME PORT, WHOSE DEPENDENTS RESIDE AT THE HOME PORT, MAY NOT BE EXTENDED TO THE PERSONNEL OF SHIPS BEING INACTIVATED AWAY FROM THE HOME PORT TO AUTHORIZE REIMBURSEMENT FOR ROUND TRIP TRAVEL TO VISIT DEPENDENTS RESIDING AT THE HOME PORT. ALTHOUGH THE ACT DOES NOT DEFINE "OVERHAUL," AND ITS MEANING IS NOT REFLECTED IN THE LEGISLATIVE HISTORY OF THE ACT, SINCE THE NAVY'S DEFINITION OF "OVERHAUL" DOES NOT INCLUDE THE INACTIVATION OF A SHIP, THE BENEFITS OF THE ACT MAY NOT BE EXTENDED TO PERSONNEL OF SHIPS BEING INACTIVATED AWAY FROM HOME PORT. HOWEVER, NO EXCEPTION WILL BE TAKEN TO PAYMENTS ALREADY MADE.

TO THE SECRETARY OF DEFENSE, OCTOBER 26, 1970:

IT HAS COME TO OUR ATTENTION THAT PAYMENTS UNDER THE PROVISIONS OF PUBLIC LAW 91-210, 37 U.S.C. 406B, ARE BEING MADE FOR ROUND TRIP TRANSPORTATION OF PERSONNEL OF SHIPS BEING INACTIVATED AWAY FROM THEIR HOME PORT.

AS EXAMPLES OF CASES BEING ENCOUNTERED, WE HAVE RECEIVED COPIES OF FIVE TRAVEL VOUCHERS AND SUPPORTING DOCUMENTS FOR PAYMENTS TO CREW MEMBERS OF THE U.S.S. YORKTOWN (CVS-10), HOME PORT, NORFOLK, VIRGINIA, WHICH IS BEING INACTIVATED AT BOSTON, MASSACHUSETTS. WE ARE INFORMED THAT THE BOSTON NAVY FINANCE OFFICE PROCESSED 108 OF THESE VOUCHERS, TOTALING $6,159.20, IN MAY 1970. THESE ARE INCLUDED IN THE ACCOUNT OF THE BROOKLYN REGIONAL FINANCE CENTER.

SECTION 406B OF TITLE 37, U.S.C. ADDED AS A NEW SECTION TO CHAPTER 7 OF THAT TITLE BY SECTION B(1) OF PUBLIC LAW 91-210, APPROVED MARCH 13, 1970, PROVIDES AS FOLLOWS:

UNDER REGULATIONS PRESCRIBED BY THE SECRETARY CONCERNED, A MEMBER OF THE UNIFORMED SERVICES WHO IS ON PERMANENT DUTY ABOARD A SHIP WHICH IS BEING OVERHAULED AWAY FROM ITS HOME PORT AND WHOSE DEPENDENTS ARE RESIDING AT THE HOME PORT OF THE SHIP IS ENTITLED TO TRANSPORTATION, TRANSPORTATION IN KIND, REIMBURSEMENT FOR PERSONALLY PROCURED TRANSPORTATION, OR AN ALLOWANCE FOR TRANSPORTATION AS PROVIDED IN SECTION 404(D)(3) OF THIS CHAPTER FOR ROUND TRIP TRAVEL FROM THE PORT OF OVERHAUL TO THE HOME PORT ON OR AFTER THE THIRTY-FIRST, NINETY FIRST, AND ONE HUNDRED AND FIFTY- FIRST CALENDAR DAY AFTER THE DATE ON WHICH THE SHIP ENTERS THE OVERHAUL PORT OR AFTER THE DATE ON WHICH THE MEMBER BECOMES PERMANENTLY ATTACHED TO THE SHIP, WHICHEVER DATE IS LATER: PROVIDED, HOWEVER, THAT IN NO EVENT SHALL THE AMOUNT OF REIMBURSEMENT FOR PERSONALLY PROCURED TRANSPORTATION OR ALLOWANCE FOR TRANSPORTATION EXCEED THE COST OF GOVERNMENT-PROCURED COMMERCIAL ROUND TRIP AIR TRAVEL.

THE LAW WAS ORIGINALLY PROPOSED AS PART OF THE DEPARTMENT OF DEFENSE LEGISLATIVE PROGRAM FOR THE 90TH CONGRESS, AND THE DEPARTMENT OF THE NAVY REPRESENTED THE DEPARTMENT OF DEFENSE IN THE LEGISLATIVE PROCEEDINGS ON THE PROPOSAL. TESTIMONY ON H.R. 8020, 91ST CONGRESS, TAKEN BEFORE SUBCOMMITTEE NO. 2, COMMITTEE ON ARMED SERVICES, HOUSE OF REPRESENTATIVES, ON MARCH 25, 1969, AT PAGES 591 TO 596, SHOWS THE PURPOSE OF THE BILL (ENACTED AS PUBLIC LAW 91-210) WAS, AS THE LAW PROVIDES, TO ENTITLE A MEMBER OF THE UNIFORMED SERVICES, WHOSE DEPENDENTS ARE RESIDING AT HIS HOME PORT, TO GOVERNMENT-OWNED OR PROCURED ROUND TRIP TRANSPORTATION TO AND FROM THAT HOME PORT WHEN THE MEMBER IS PERMANENTLY ATTACHED TO A SHIP WHICH IS "BEING OVERHAULED" AT A LOCATION AWAY FROM THE HOME PORT. THE ANNUAL COST TO THE NAVY WAS ESTIMATED TO BE $754,000.

CHIEF OF NAVAL PERSONNEL MESSAGE N07220, APRIL 16, 1970, STATES THAT, FOR THE PURPOSE OF ENTITLEMENT TO THE TRANSPORTATION AUTHORIZED BY SECTION 406B, THE TERM "OVERHAUL" IS DEFINED AS APPLICABLE TO ANY SHIP DIRECTED TO BE AT A PORT OTHER THAN THE HOME PORT, FOR THE SPECIFIC PURPOSE OF PERFORMING MAINTENANCE. THE MESSAGE ALSO STATES THAT, IF OTHERWISE ENTITLED, MEMBERS ATTACHED TO SHIPS UNDERGOING REGULAR OVERHAUL, INTERIM OVERHAUL, RESTRICTED AVAILABILITY, INACTIVATION, AND TENDER AVAILABILITY, ARE QUALIFIED. EXCLUDED FROM ELIGIBILITY ARE VESSELS PERFORMING MAINTENANCE WHILE DEPLOYED AND VESSELS HOMEPORTED IN THE UNITED STATES, WHICH ARE CONTEMPLATED TO OPERATE CONTINUOUSLY OVERSEAS FOR 1 YEAR OR LONGER, WHILE SO DEPLOYED. THE DEFINITION OF OVERHAUL, IT IS STATED, "IS NOT TO BE CONFUSED IN ANY WAY WITH DEFINITION OF OVERHAULS FOR OTHER PURPOSES" CONTAINED IN NAVY REGULATION ARTICLE 2026. THE MESSAGE FURTHER STATES THAT ITS CONTENTS WERE APPROVED BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE OF THE DEPARTMENT OF DEFENSE. THE MESSAGE CLEARLY CONSTITUTES A LEGAL CONCLUSION AS TO THE MEANING OF THE TERM "OVERHAUL" AS USED IN THE STATUTE.

ARTICLE 2026-7, UNITED STATES NAVY REGULATIONS, DEFINES "REGULAR OVERHAUL" AS AN AVAILABILITY FOR THE ACCOMPLISHMENT OF GENERAL REPAIRS AND ALTERATIONS AT A NAVAL SHIPYARD OR OTHER SHORE BASED REPAIR ACTIVITY, NORMALLY SCHEDULED IN ADVANCE AND IN ACCORDANCE WITH AN ESTABLISHED CYCLE. ARTICLE 2050 STATES THAT A SHIP LEAVING A REPAIR ACTIVITY UPON COMPLETION OF ITS OVERHAUL NORMALLY SHALL BE READY FOR WAR SERVICE.

IN CONSTRUING STATUTES, WORDS AND PHRASES SHOULD BE GIVEN THEIR PLAIN, ORDINARY AND USUAL MEANING UNLESS A DIFFERENT PURPOSE IS MANIFEST BY THE STATUTE ITSELF. SEE CHAMPA V CONSOLIDATED FINANCE CORP., 110 NE 2D 289, 36 ALR 2D 185. THE LAW CONTAINS NO DEFINITION OF THE WORD "OVERHAUL," AND THERE IS NO CONSIDERATION OF ITS MEANING REFLECTED IN THE LEGISLATIVE HISTORY.

IN HOLLOWAY V WHEELER, TEX. CIV. APP., 261 S.W. 467, 468 (1924), A NON- MARITIME CASE, THE COURT DEFINED OVERHAUL AS "TO EXAMINE THOROUGHLY WITH A VIEW TO REPAIRS." SIMILAR DEFINITIONS ARE FOUND IN THE INTERNATIONAL MARITIME DICTIONARY (1948); THE OXFORD ENGLISH DICTIONARY (1961); BLACK'S LAW DICTIONARY, 4TH EDITION (1951); AND CORPUS JURIS SECONDUM, AT PAGE 542, VOLUME 67. BALLENTINE'S LAW DICTIONARY, THIRD EDITION (1969), DEFINES OVERHAUL AS "TO REPAIR COMPLETELY; TO RECONDITION." ON THE RECORD THERE APPEARS NO BASIS FOR A CONCLUSION THAT THE TERM WAS INTENDED IN ANY DIFFERENT SENSE IN PUBLIC LAW 91 210.

SINCE THE GENERALLY ACCEPTED NAVY DEFINITION OF OVERHAUL AT TIME OF ENACTMENT OF PUBLIC LAW 91-210 WAS THE DEFINITION CONTAINED IN ARTICLE 2026 OF THE NAVY REGULATIONS, IT APPEARS REASONABLE TO ASSUME THAT THE

WE FIND NO SOUND BASIS FOR THE VIEW THAT THE TERM "OVERHAUL" AS USED ESTIMATED ANNUAL COST TO THE NAVY OF THE LEGISLATION, $754,000, DID NOT INCLUDE ANY AMOUNT BASED ON TRAVEL OF PERSONNEL OF VESSELS UNDERGOING INACTIVATION. IN PUBLIC LAW 91-210, INCLUDES SHIP INACTIVATION. DURING INACTIVATION, SOME MAINTENANCE MAY BE PERFORMED INCIDENT TO THE PROCESS OF WITHDRAWING THE SHIP FROM ACTIVE SERVICE. HOWEVER, THE ESSENCE OF SUCH ACTIVITY IS TO PREPARE A SHIP FOR STORAGE, AND NOT TO REPAIR, RECONDITION, OR PREPARE A SHIP FOR COMBAT OR FOR CONTINUED ACTIVE SERVICE. THERE IS NO INTENTION, IN SUCH CASES, OF RETURNING THE SHIP TO A HOME PORT FOR FURTHER SERVICE AND WE UNDERSTAND THAT, COMMENCING WITH THE INACTIVATION PROCEDURE, THE NAVY BEGINS TO TRANSFER THE MEMBERS SERVING ON THE SHIP TO OTHER STATIONS AND DUTIES.

THE DURATION OF ANY PARTICULAR DUTY ASSIGNMENT TO A SHIP IN SUCH CASES WOULD APPEAR TO DEPEND ON THE MANPOWER NEEDS OF THE NAVY AND NOT ON THE LENGTH OF THE INACTIVATION PERIOD. IT IS OUR OPINION, THEREFORE, THAT OVERHAUL CANNOT INCLUDE INACTIVATION UNDER THE GENERAL MEANING OF THE TERM OR ITS GENERAL USAGE IN THE NAVY AND THAT THE DEFINITION CONTAINED IN CHIEF OF NAVAL PERSONNEL MESSAGE NO7220, INSOFAR AS IT RELATES TO INACTIVATION, GOES BEYOND THE SCOPE OF PUBLIC LAW 91-210.

HENCE, WE CONCLUDE THAT THERE IS NO LEGAL BASIS FOR APPLYING THE PROVISIONS OF, OR EXTENDING THE BENEFITS OF, 37 U.S.C. 406B TO PERSONNEL OF ANY SHIP UNDERGOING INACTIVATION AWAY FROM ITS HOME PORT. WHILE WE WILL NOT TAKE EXCEPTION TO PAYMENTS OF THE TYPE INVOLVED HERETOFORE MADE TO OR ON BEHALF OF PERSONNEL OF SHIPS WHICH HAVE BEEN OR ARE BEING INACTIVATED IF THE PAYMENTS ARE CORRECT IN OTHER RESPECTS, NO FURTHER PAYMENTS OF THIS TYPE SHOULD BE MADE.

AN EARLY REPLY, SETTING FORTH THE STEPS TAKEN TO IMPLEMENT THIS DECISION, WILL BE APPRECIATED.