B-145471, FEBRUARY 16, 1962, 41 COMP. GEN. 544

B-145471, FEBRUARY 16, 1962, 41 COMP. GEN. 544

TRANSPORTATION - DEPENDENTS - MILITARY PERSONNEL - DEATH OF MEMBER - SHORT DUTY PERIODS ALTHOUGH A REGULATION WHICH WOULD PERMIT PAYMENT OF EXPENSES FOR TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS OF RESERVISTS WHO DIE AS A RESULT OF SHORT TOURS OF ACTIVE DUTY WHEN THE MOVEMENT WAS NOT AUTHORIZED INCIDENT TO THE MEMBER'S CALL TO ACTIVE DUTY MAY NOT BE AUTHORIZED UNDER SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 253 (C), WHICH HAS NOT BEEN APPLIED AS AUTHORITY FOR TRANSPORTATION UNLESS THE DEPENDENTS OR HOUSEHOLD EFFECTS WERE LOCATED AWAY FROM THE HOME BY REASON OF THE MEMBER'S SERVICE AT THE TIME OF DEATH, SUCH A REGULATION ISSUED UNDER THE MISSING PERSONS ACT, 50 U.S.C. APP. 1001-1017, WHICH PROVIDES BENEFITS FOR MEMBERS CALLED TO ACTIVE DUTY EVEN THOUGH THE TOURS ARE OF SHORT DURATION, WOULD BE PROPER; HOWEVER, THERE IS NO AUTHORITY FOR THE ISSUANCE OF REGULATIONS AUTHORIZING TRANSPORTATION OF DEPENDENTS AND EFFECTS OF MEMBERS WHO DIE WHILE IN A TRAINING DUTY STATUS.

TO THE SECRETARY OF THE AIR FORCE, FEBRUARY 16, 1962:

REFERENCE IS MADE TO LETTER OF DECEMBER 8, 1961, FROM THE UNDER SECRETARY OF THE AIR FORCE, PDTATAC CONTROL NO. 61-18, REQUESTING DECISION AS TO WHETHER THE SECRETARIES OF THE UNIFORMED SERVICES MAY ISSUE REGULATIONS AUTHORIZING MOVEMENT OF DEPENDENTS AND HOUSEHOLD GOODS OF RESERVISTS WHO DIE AS A RESULT OF ACTIVE DUTY WHEN MOVEMENT WAS NOT AUTHORIZED INCIDENT TO CALL TO ACTIVE DUTY.

IT IS STATED THAT CASES ARISE WHERE RESERVISTS ARE CALLED TO SHORT TOURS OF ACTIVE DUTY OF ONE OR MORE DAYS FOR ANY PURPOSE AND DEATH OCCURS AS A RESULT THEREOF AND THAT THERE IS A REAL NEED FOR AUTHORITY FOR THE MOVEMENT OF DEPENDENTS AND HOUSEHOLD GOODS IN SUCH CASES REGARDLESS OF WHETHER THE DEPENDENTS HAVE MOVED AWAY FROM THEIR HOMES BECAUSE OF THE ACTIVE DUTY. THE CASE OF A SURVIVING SPOUSE WHO IS UNABLE TO MAINTAIN HER FAMILY AT THE HOME SITE BECAUSE OF THE DEATH OF HER HUSBAND IS CITED AS AN EXAMPLE OF SUCH NEED. IT IS CONTENDED THAT AUTHORITY FOR THE PROPOSED REGULATION IS PROVIDED IN SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 253 (C), AND IN THE MISSING PERSONS ACT, AS AMENDED, 50 U.S.C. APP. 1001-1017. IT IS SAID THAT UNDER THE LATTER ACT NO DISTINCTION IS FOUND BETWEEN MEMBERS CALLED TO ACTIVE DUTY FOR TRAINING AND THOSE CALLED TO ACTIVE DUTY FOR OTHER PURPOSES.

THE BASIC STATUTORY PROVISIONS GOVERNING THE TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS ARE CONTAINED IN SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 253 (C). UNDER THE EXPRESS LANGUAGE OF SUCH PROVISIONS, THE TRANSPORTATION CONCERNED IS AN ALLOWANCE WHICH ACCRUES TO A MEMBER UPON ENTRANCE ON OR RELEASE FROM ACTIVE DUTY ONLY FROM HOME TO FIRST STATION AND FROM LAST STATION TO HOME. CONSEQUENTLY, SUCH PROVISIONS HAVE NOT BEEN VIEWED AS AUTHORIZING ANY MOVEMENT OR DEPENDENTS OR HOUSEHOLD EFFECTS IN SUCH CASES WHEN THE DEPENDENTS AND HOUSEHOLD EFFECTS WERE AT THE MEMBER'S HOME AT THE TIME OF RELEASE FROM ACTIVE DUTY. ON THAT BASIS THE PROVISIONS OF SECTION 303 (C) AUTHORIZING SUCH TRANSPORTATION UPON THE DEATH OF A MEMBER WHILE ENTITLED TO RECEIVE BASIC PAY--- OBVIOUSLY A TERMINATION OF ACTIVE DUTY--- HAVE NOT BEEN APPLIED AS AUTHORIZING ANY TRANSPORTATION UNLESS THE DEPENDENTS OR HOUSEHOLD EFFECTS WERE LOCATED AWAY FROM THE HOME BY REASON OF HIS SERVICE AT THE TIME OF DEATH. IT IS RECOGNIZED THAT THE PROVISIONS IN QUESTION, STANDING ALONE, DO NOT CLEARLY PRECLUDE THE ISSUANCE OF REGULATIONS PROVIDING FOR THE TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS OF A MEMBER WHO DIES WHILE ON A SHORT PERIOD OF TRAINING DUTY EVEN THOUGH THE MEMBER HIMSELF HAD NO RIGHT TO MOVE HIS DEPENDENTS AND HOUSEHOLD EFFECTS INCIDENT TO SUCH DUTY. HOWEVER, NOTHING HAS BEEN FOUND IN THE LEGISLATIVE HISTORY OF THE 1949 ACT TO INDICATE THAT IT WAS THE LEGISLATIVE INTENT TO AUTHORIZE THE ISSUANCE OF SUCH REGULATIONS AND, AS MENTIONED ABOVE, THE PROVISIONS OF SECTION 303 (C) HAVE NOT HERETOFORE BEEN REGARDED AS GRANTING SUCH BROAD AUTHORITY. IN THE ABSENCE OF A CLEAR LEGISLATIVE EXPRESSION EVIDENCING SUCH AN INTENT, THE MATTER ADMITS OF TOO MUCH DOUBT FOR US TO CONCLUDE AT THIS LATE DATE THAT SUCH PROVISIONS CONSTITUTE AUTHORITY FOR THE PROPOSED REGULATION.

PRIOR TO THE AMENDMENT OF THE MISSING PERSONS ACT BY PUBLIC LAW 85 217, APPROVED AUGUST 29, 1957, SECTION 2 OF THE ACT, 50 U.S.C. APP. 1002, PROVIDED THAT ANY PERSON WHO IS IN ACTIVE SERVICE AND WHO IS OFFICIALLY DETERMINED TO BE ABSENT IN A STATUS THERE ENUMERATED SHALL, FOR THE PERIOD HE IS OFFICIALLY DETERMINED TO BE IN SUCH STATUS, BE ENTITLED TO RECEIVE OR HAVE CREDITED TO HIS ACCOUNT THE SAME PAY AND ALLOWANCES TO WHICH HE WAS ENTITLED AT THE BEGINNING OF SUCH ABSENCE OR TO WHICH HE BECAME ENTITLED THEREAFTER. SECTION 1, 50 U.S.C. APP. 1001, DEFINES THE TERM "ACTIVE SERVICE" TO MEAN ACTIVE SERVICE IN THE ARMY, NAVY, MARINE CORPS, AND COAST GUARD, INCLUDING ACTIVE FEDERAL SERVICE PERFORMED BY PERSONNEL OF THE RETIRED AND RESERVE COMPONENTS OF THOSE FORCES, THE COAST AND GEODETIC SURVEY, THE PUBLIC HEALTH SERVICE, AND ACTIVE FEDERAL SERVICE BY THOSE CIVILIANS SPECIFIED.

IT LONG HAS BEEN RECOGNIZED THAT TRAINING DUTY PERFORMED UNDER AUTHORITY OF STATUTORY PROVISIONS SUCH AS SECTION 7 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1176, 34 U.S.C. 853E (1946 USED.), AND UNDER PRIOR LAWS PROVIDING FOR TRAINING DUTY FOR NAVAL RESERVISTS, WAS NOT THE EQUIVALENT OF ACTIVE DUTY AND COULD NOT BE CONSIDERED AS SUCH IN THE ABSENCE OF SPECIFIC AUTHORITY THEREFOR. SEE 27 COMP. DEC. 228; 19 COMP. GEN. 101; 20 ID. 375. SUCH DISTINCTION WAS RECOGNIZED BY THE SECRETARY OF THE NAVY IN HIS LETTER OF NOVEMBER 7, 1946, QUOTED IN DECISION OF DECEMBER 5, 1946, 26 COMP. GEN. 390, IN WHICH HE STATED IN PART THAT:

(3) A RESERVIST ON TRAINING DUTY IS NOT CONSIDERED AS "IN THE ACTIVE MILITARY OR NAVAL SERVICE OF THE UNITED STATES," WITHIN THE MEANING OF THE WORDS AS USED IN SECTION 101 OF THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, AS AMENDED. THE ACT CLEARLY CONTEMPLATES A PERIOD OF INDEFINITE SERVICE FROM WHICH THE MAN COULD NOT BE RELEASED, NOTWITHSTANDING HARDSHIP ARISING FROM DEPENDENCY OR OTHER EQUALLY APPEALING CAUSES, WHEREAS TRAINING DUTY IS PRIMARILY ON A VOLUNTARY BASIS.

IN THAT DECISION IT WAS HELD, AMONG OTHER THINGS, THAT THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, 56 STAT. 381, 37 U.S.C. 201 (1946 USED.), AS AMENDED, PROVIDING FOR THE PAYMENT OF A MONTHLY FAMILY ALLOWANCE TO CERTAIN CLASSES OF DEPENDENTS OF ENLISTED MEN OF THE ARMED FORCES WHILE IN THE ACTIVE MILITARY OR NAVAL SERVICE OF THE UNITED STATES, DID NOT APPLY TO ENLISTED MEN OF THE NAVAL RESERVE WHO WERE ORDERED TO ACTIVE DUTY FOR TRAINING AS DISTINGUISHED FROM EXTENDED ACTIVE DUTY.

SINCE THE MISSING PERSONS ACT WAS ENACTED AS A WARTIME MEASURE PRIMARILY FOR THE PURPOSE OF CONTINUING THE PAY AND ALLOWANCES OF OFFICERS AND ENLISTED MEN ON EXTENDED ACTIVE DUTY WHO WERE IN A STATUS OF MISSING, MISSING IN ACTION, ETC., THERE APPEARS TO HAVE BEEN NO INTENTION THAT THE ACT, AS ORIGINALLY ENACTED OR AS AMENDED PRIOR TO 1957, SHOULD APPLY TO A RESERVIST WHO MIGHT BE ORDERED TO ACTIVE DUTY FOR TRAINING FOR A SHORT PERIOD.

PUBLIC LAW 85-217 AMENDED SECTION 2 OF THE MISSING PERSONS ACT, 50 U.S.C. APP. 1002, TO PROVIDE, IN ADDITION TO THE CONTINUANCE OF THE PAY AND ALLOWANCES OF ANY PERSON IN THE ACTIVE SERVICE AS PREVIOUSLY AUTHORIZED, FOR THE PAYMENT OF PAY AND ALLOWANCES IN THE CASE OF ANY PERSON PERFORMING FULL-TIME DUTY, OTHER FULL-TIME DUTY, OR INACTIVE DUTY TRAINING DURING THE PERIOD THAT HE IS OFFICIALLY DETERMINED TO BE IN A STATUS WITHIN THE PURVIEW OF THAT SECTION. IT DID NOT, HOWEVER, EFFECT ANY CHANGE IN THE MEANING OF THE TERM "ACTIVE SERVICE" INSOFAR AS THE ARMED FORCES ARE CONCERNED AND, WHILE IT AMENDED SECTION 12 OF THE MISSING PERSONS ACT, AS AMENDED, 50 U.S.C. APP. 1012, IT MADE NO CHANGE IN THE CLASS OF PERSONS ENTITLED TO SUCH BENEFITS. HENCE, IRRESPECTIVE OF THE PAY AND ALLOWANCE BENEFITS PROVIDED BY SECTION 2 OF THE MISSING PERSONS ACT, SECTION 12 PROVIDES ONLY FOR THE MOVEMENT OF DEPENDENTS AND HOUSEHOLD GOODS OF PERSONS IN "ACTIVE SERVICE," AND, AS INDICATED ABOVE, IT IS OUR OPINION THAT THE TERM "ACTIVE SERVICE" AS USED IN SECTION 12 REFERS TO THE SERVICE OF MEMBERS CALLED TO ACTIVE DUTY, EVEN THOUGH IT MAY BE FOR SHORT PERIODS OF TIME, BUT DOES NOT INCLUDE RESERVISTS PERFORMING TRAINING DUTY. THEREFORE CONCLUDE THAT UNDER THE MISSING PERSONS ACT PROVISIONS, REGULATIONS MAY BE ISSUED AUTHORIZING THE MOVEMENT OF DEPENDENTS AND HOUSEHOLD GOODS OF RESERVISTS WHO DIE WHILE IN ACTIVE SERVICE EVEN THOUGH THE MOVEMENT OF SUCH DEPENDENTS AND HOUSEHOLD GOODS WAS NOT AUTHORIZED INCIDENT TO THE CALL TO ACTIVE DUTY, BUT THAT SUCH PROVISIONS AFFORD NO AUTHORITY FOR THE ISSUANCE OF REGULATIONS AUTHORIZING THE MOVEMENT OF DEPENDENTS AND HOUSEHOLD GOODS OF MEMBERS WHO DIE WHILE IN A TRAINING DUTY STATUS.