B-117029, SEP 30, 1953

B-117029: Sep 30, 1953

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PRECIS-UNAVAILABLE THE SECRETARY OF THE ARMY: REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 14. AN ORGANIZATION STATIONED AT FORT DEVENS - LESS CERTAIN UNITS THEREOF - WAS DIRECTED TO PROCEED TO PINE CAMP. UPON COMPLETION OF WHICH THE MEMBERS THEREOF WERE TO RETURN TO FORT DEVENS. SUCH ORDERS WERE AMENDED UNDER DATE OF APRIL 29. THEY WERE FURTHER AMENDED ON DECEMBER 17. IT IS STATED THAT THE LATEST TENTATIVE DATE OF COMPLETION OF THE EXERCISE WAS SEPTEMBER 15. WHEN A MEMBER IS ASSIGNED TO TEMPORARY DUTY AWAY FROM HIS PERMANENT STATION UNDER ORDERS WHICH DO NOT PROVIDE FOR RETURN TO SUCH STATION OR WHICH DO NOT SPECIFY OR IMPLY ANY LIMIT TO THE PERIOD OF TEMPORARY DUTY. IF THE PERIOD OF TEMPORARY DUTY IS CONTEMPLATED TO BE FOR A PERIOD OF 20 WEEKS OR MORE DURATION.

B-117029, SEP 30, 1953

PRECIS-UNAVAILABLE

THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 14, 1953, REQUESTING DECISION AS TO THE PROPRIETY OF AMENDING TRAVEL ORDERS RETROACTIVELY UNDER THE CIRCUMSTANCES STATED BELOW.

BY MOVEMENT ORDERS DATED AUGUST 14, 1951, HEADQUARTERS, FORT DEVENS, MASSACHUSETTS, AN ORGANIZATION STATIONED AT FORT DEVENS - LESS CERTAIN UNITS THEREOF - WAS DIRECTED TO PROCEED TO PINE CAMP, NEW YORK, FOR THE PERFORMANCE OF TEMPORARY DUTY FOR A PERIOD COMMENCING ON OR ABOUT SEPTEMBER 2, 1951, AND ENDING ON OR ABOUT MARCH 1, 1952, UPON COMPLETION OF WHICH THE MEMBERS THEREOF WERE TO RETURN TO FORT DEVENS. SUCH ORDERS WERE AMENDED UNDER DATE OF APRIL 29, 1952, TO DIRECT A RETURN TO FORT DEVENS UPON COMPLETION OF TEMPORARY DUTY ON OR ABOUT OCTOBER 1, 1952, AND THEY WERE FURTHER AMENDED ON DECEMBER 17, 1952, TO REQUIRE SUCH RETURN UPON COMPLETION OF THE EXERCISE MENTIONED THEREIN AND AS DIRECTED BY THE EXERCISE DIRECTOR. SAID ORDERS DESIGNATED THE TEMPORARY DUTY AS FIELD DUTY AS CONTEMPLATED BY PARAGRAPH 4281-7, JOINT TRAVEL REGULATIONS. IT IS STATED THAT THE LATEST TENTATIVE DATE OF COMPLETION OF THE EXERCISE WAS SEPTEMBER 15, 1953, AND THAT DUE TO THE LONG PERIOD OF TEMPORARY DUTY, MANY OF THE MEMBERS OF THE ORGANIZATION "FOUND IT MORE OR LESS MANDATORY" TO MOVE THEIR DEPENDENTS AND SHIP OR STORE THEIR HOUSEHOLD GOODS DURING THE PERIOD INVOLVED.

PARAGRAPH 7007-2, JOINT TRAVEL REGULATIONS, AUTHORIZES TRANSPORTATION OF DEPENDENTS OF MEMBERS OF THE UNIFORMED SERVICES AT GOVERNMENT EXPENSE TO THE TEMPORARY DUTY STATION (NOT TO EXCEED ENTITLEMENT FOR TRAVEL FROM PERMANENT TO TEMPORARY STATION), WHEN A MEMBER IS ASSIGNED TO TEMPORARY DUTY AWAY FROM HIS PERMANENT STATION UNDER ORDERS WHICH DO NOT PROVIDE FOR RETURN TO SUCH STATION OR WHICH DO NOT SPECIFY OR IMPLY ANY LIMIT TO THE PERIOD OF TEMPORARY DUTY, IF THE PERIOD OF TEMPORARY DUTY IS CONTEMPLATED TO BE FOR A PERIOD OF 20 WEEKS OR MORE DURATION. SOMEWHAT SIMILAR PROVISIONS CONTAINED IN PARAGRAPH 8007-8, JOINT TRAVEL REGULATIONS, AUTHORIZE TRANSPORTATION OR STORAGE OF HOUSEHOLD GOODS WHEN A MEMBER IS UNDER ORDERS FROM A PERMANENT DUTY STATION, WHICH DIRECT THE PERFORMANCE OF TEMPORARY DUTY FOR AN INDETERMINATE PERIOD OF TIME, IF SUCH SHIPMENT OR STORAGE IS APPROVED BY THE SECRETARY CONCERNED.

IT IS PROPOSED TO AMEND THE FOREGOING ORDERS TO DECLARE THE TEMPORARY DUTY AS INDETERMINATE AND DELETE THE REQUIREMENT FOR RETURN TO PERMANENT STATION, AND TO GRANT APPROVAL BY THE SECRETARY OF THE ARMY IN THOSE CASES WHERE THE HOUSEHOLD GOODS OF MEMBERS OF SUCH ORGANIZATIONS WERE SHIPPED OR STORED DURING THE PERIOD INVOLVED, SUCH ACTION TO BE MADE RETROACTIVE TO EITHER AUGUST 14, 1951, 1952, OR DECEMBER 17, 1952, AND MAY BE APPROVED AT THIS TIME.

IN VIEW OF THE FACT THAT THE ORDERS OF AUGUST 14, AS AMENDED, DIRECTED A RETURN TO THE PERMANENT STATION AT FORT DEVENS UPON COMPLETION OF THE PERIOD OF TEMPORARY DUTY STATED THEREIN, IT APPEARS CLEAR THAT NO RIGHT TO TRANSPORTATION OF DEPENDENTS AND TRANSPORTATION OR STORAGE OF HOUSEHOLD GOODS ACCRUED TO THE MEMBERS TO WHOM YOU REFER UNDER THOSE ORDERS AND THE CITED REGULATIONS, AND THE FACT THAT THE ORIGINAL PERIOD OF TEMPORARY DUTY WAS EXTENDED, WITHOUT OTHER PERTINENT CHANGE IN THE BASIC ORDERS, WOULD NOT SEEM TO INCREASE THEIR RIGHTS IN THE PREMISES. ALSO, SINCE SEPTEMBER 15, 1953, WAS SET AS THE TENTATIVE DATE OF COMPLETION OF THE EXERCISE, IT APPEARS PROBABLE THAT THE ORGANIZATION NOW HAS RETURNED TO FORT DEVENS AS DIRECTED IN SUCH ORDERS AND AN AMENDMENT TO THE ORDERS IN THE MANNER PROPOSED, WOULD BE CONTRARY TO THE ACTUAL FACTS IN THE CASE. IT SEEMS LIKELY THAT THE DEPENDENTS OF MANY OF THE MEMBERS OF THE ORGANIZATIONS HERE INVOLVED DID NOT TRAVEL UNDER THE ORDERS MENTIONED - THE DEPENDENTS OF SOME MEMBERS MAY HAVE BEEN ASSIGNED PUBLIC QUARTERS AT FORT DEVENS AND MAY HAVE BEEN PERMITTED TO RESIDE IN SUCH QUARTERS BECAUSE OF THE PROVISION IN THE ORDERS REQUIRING A RETURN TO THAT PLACE. THE PURPOSE OF THE PROPOSED AMENDMENT IS TO CONFER CERTAIN RIGHTS UPON THOSE MEMBERS WHO, DESPITE THE APPARENT EFFECT OF THEIR ORDERS, INCURRED EXPENSES FOR TRANSPORTATION OF DEPENDENTS AND TRANSPORTATION OR STORAGE OF HOUSEHOLD EFFECTS. SUCH ACTION WOULD RESULT IN DIFFERENT MEMBERS OF THE ORGANIZATION INVOLVED HAVING ENTIRELY INCONSISTENT RIGHTS. THE LAW DOES NOT CONTEMPLATE SUCH A SITUATION. ALSO, SINCE IT APPEARS THAT THE TEMPORARY DUTY IS COMPLETED, A MEMBER WOULD HAVE NO OPPORTUNITY TO TRANSPORT HIS DEPENDENTS OR EFFECTS UNDER THE PROPOSED CHANGE. HIS RIGHT TO REIMBURSEMENT NECESSARILY WOULD DEPEND UPON HAVING PREVIOUSLY INCURRED EXPENSES FOR SUCH TRANSPORTATION FOR WHICH REIMBURSEMENT BY THE GOVERNMENT CLEARLY WAS NOT AUTHORIZED AT THE TIME.

SINCE PUBLICATION OF AN OFFICE DECISION DATED DECEMBER 9, 1944, 24 COMP. GEN. 439, THIS OFFICE HAS REPEATEDLY ADVISED CLAIMANTS, DISBURSING OFFICERS AND THE MILITARY DEPARTMENTS CONCERNED THAT EXCEPT TO COMPLETE OR CLARIFY INCOMPLETE OR AMBIGUOUS PROVISIONS, TRAVEL ORDERS MAY BE AMENDED RETROACTIVELY ONLY TO INCLUDE A PROVISION WHICH WAS ORIGINALLY INTENDED TO BE INCLUDED THEREIN BUT WHICH WAS OMITTED THROUGH ERROR OR INADVERTENCE IN PREPARING SUCH ORDERS. THERE APPEARS TO BE NO QUESTION BUT THAT THE ORDERS HERE INVOLVED EXPRESSED THE INTENT OF THE ISSUING AUTHORITY AT THE TIME THEY WERE ISSUED.

ACCORDINGLY, I HAVE TO ADVISE THAT THIS OFFICE COULD NOT CONSIDER PAYMENTS MADE UNDER THE PROPOSED AMENDATORY ORDERS AS AUTHORIZED.