B-119118, APRIL 6, 1954, 33 COMP. GEN. 431

B-119118: Apr 6, 1954

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WHICH AUTHORIZES TRANSPORTATION OF DEPENDENTS OF MEMBERS OF THE UNIFORMED SERVICES "WHEN ORDERED TO MAKE A CHANGE OF PERMANENT TATION" UNDER SUCH CONDITIONS AND LIMITATIONS AS PRESCRIBED BY THE SECRETARIES CONCERNED DOES NOT AUTHORIZE TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE FOR VISITS OR PERSONAL TRAVEL AND THE FACT THAT EXPRESS INSTRUCTIONS WERE NOT ISSUED IN THE JOINT TRAVEL REGULATIONS PRIOR TO SEPTEMBER 1. DID NOT ENLARGE THE SCOPE OF THE LAW OR CHANGE THE EXISTING RULE AND THEREFORE REMOVAL OF EXCEPTIONS TAKEN TO PAYMENT FOR SUCH TRAVEL IS UNAUTHORIZED. REFERENCE IS MADE TO ONE TAKEN TO A PAYMENT INVOLVING DEPENDENTS' TRAVEL WHERE THE RECORDS DID NOT SHOW THAT A RESIDENCE HAD BEEN ESTABLISHED AT THE PLACE TO WHICH TRAVEL HAD BEEN PERFORMED ONLY FOR THE PURPOSE OF VISITING A MEMBER RATHER THAN OF ESTABLISHING A RESIDENCE DOES NOT PROVIDE A PROPER BASIS FOR PAYMENT.

B-119118, APRIL 6, 1954, 33 COMP. GEN. 431

TRANSPORTATION - DEPENDENTS - MILITARY, NAVAL, ETC., PERSONNEL - CHANGE OF STATION - VISITS OR PERSONAL TRAVEL SUBSECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, WHICH AUTHORIZES TRANSPORTATION OF DEPENDENTS OF MEMBERS OF THE UNIFORMED SERVICES "WHEN ORDERED TO MAKE A CHANGE OF PERMANENT TATION" UNDER SUCH CONDITIONS AND LIMITATIONS AS PRESCRIBED BY THE SECRETARIES CONCERNED DOES NOT AUTHORIZE TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE FOR VISITS OR PERSONAL TRAVEL AND THE FACT THAT EXPRESS INSTRUCTIONS WERE NOT ISSUED IN THE JOINT TRAVEL REGULATIONS PRIOR TO SEPTEMBER 1, 1953, DID NOT ENLARGE THE SCOPE OF THE LAW OR CHANGE THE EXISTING RULE AND THEREFORE REMOVAL OF EXCEPTIONS TAKEN TO PAYMENT FOR SUCH TRAVEL IS UNAUTHORIZED.

ASSISTANT COMPTROLLER GENERAL WEITZEL TO THE SECRETARY OF THE NAVY, APRIL 6, 1954:

THERE HAS BEEN CONSIDERED A LETTER DATED MARCH 1, 1954, FROM THE ASSISTANT SECRETARY OF THE NAVY FOR AIR REQUESTING A REVIEW OF EXCEPTIONS TAKEN BY THE DIVISION OF AUDITS OF THIS OFFICE TO CERTAIN PAYMENTS OF MONETARY ALLOWANCES IN LIEU OF TRANSPORTATION OF DEPENDENTS MADE TO NAVAL PERSONNEL INCIDENT TO ORDERED CHANGES IN PERMANENT DUTY STATIONS.

AS AN EXAMPLE OF THE EXCEPTIONS, REFERENCE IS MADE TO ONE TAKEN TO A PAYMENT INVOLVING DEPENDENTS' TRAVEL WHERE THE RECORDS DID NOT SHOW THAT A RESIDENCE HAD BEEN ESTABLISHED AT THE PLACE TO WHICH TRAVEL HAD BEEN PERFORMED ONLY FOR THE PURPOSE OF VISITING A MEMBER RATHER THAN OF ESTABLISHING A RESIDENCE DOES NOT PROVIDE A PROPER BASIS FOR PAYMENT. IS ADVANCED THAT SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 814, IN AUTHORIZING TRANSPORTATION OF DEPENDENTS AT PUBLIC EXPENSE INCIDENT TO PERMANENT CHANGE OF STATION, DOES NOT REQUIRE THAT DEPENDENTS RESIDE AT THE MEMBER'S PERMANENT DUTY STATION BUT PROVIDES FOR ALLOWANCES UNDER SUCH CONDITIONS AND LIMITATIONS AS MAY BE PRESCRIBED BY THE SECRETARIES CONCERNED. IT APPEARS TO BE THE ADMINISTRATIVE VIEW THAT NO LEGAL LIMITATIONS APPLIED TO PAYMENTS BY THE GOVERNMENT OF THE TRAVEL EXPENSES OF DEPENDENTS TO MAKE VISITS UNTIL PARAGRAPH 7000 OF THE JOINT TRAVEL REGULATIONS WAS REVISED BY CHANGE 15, EFFECTIVE SEPTEMBER 1, 1953, TO ANNOUNCE THAT TRANSPORTATION OF DEPENDENTS TO PLACES WHERE THEY DO NOT INTEND TO REMAIN UNTIL FURTHER TRANSPORTATION IS AUTHORIZED IS NOT CONSIDERED A PROPER OBLIGATION OF THE GOVERNMENT. ON THE BASIS THAT REGULATIONS ISSUED UNDER THE CAREER COMPENSATION ACT IN EFFECT PRIOR TO THE AMENDMENT OF SEPTEMBER 1, 1953, EXPRESSED NO SUCH LIMITATION AND THAT NO DECISIONS OF THIS OFFICE PUBLISHED SUBSEQUENT TO THE CAREER COMPENSATION ACT HAVE APPLIED SUCH A LIMITATION, IT IS URGED THAT NOTICES OF EXCEPTIONS BE REMOVED IN ALL CASES WHERE DEPENDENTS ACTUALLY TRAVELED PRIOR TO SEPTEMBER 1, 1953, TO THE PLACES INDICATED, REGARDLESS OF THE REASON FOR THE TRAVEL, WITH THE UNDERSTANDING, HOWEVER, THAT IN CASES WHERE IT IS DETERMINED THAT TRAVEL WAS NOT PERFORMED AS INDICATED THE AMOUNTS PAID SHOULD BE RECOVERED FROM THE MEMBERS CONCERNED.

SECTION 12 OF THE ACT OF MAY 18, 1920, 41 STAT. 604, AUTHORIZED THE FURNISHING OF TRANSPORTATION IN KIND FOR SPECIFIED DEPENDENTS OF CERTAIN PERSONNEL OF THE ARMED SERVICES WHEN "ORDERED TO MAKE A PERMANENT CHANGE OF STATION.' THE RIGHT TO COMMERCIAL TRANSPORTATION COSTS FOR SUCH TRAVEL,"WHEN SUCH TRAVEL SHALL HAVE BEEN COMPLETED," WAS GRANTED IN SECTION 12 OF THE ACT OF JUNE 10, 1922, 42 STAT. 631. BOTH OF THOSE PROVISIONS WERE REENACTED AS A PART OF SECTION 12 OF THE ACT OF JUNE 16, 1942, 56 STAT. 364, THE WORDING PERTINENT HERE REMAINING THE SAME. THAT IS, TRAVEL OF DEPENDENTS AT GOVERNMENT EXPENSE WAS AUTHORIZED ONLY WHEN A PERMANENT CHANGE OF STATION WAS ORDERED AND PAYMENT OF COMMERCIAL TRANSPORTATION COSTS WAS AUTHORIZED ONLY AFTER TRAVEL WAS COMPLETED. SEE ALSO EXECUTIVE ORDER NO. 9222 DATED AUGUST 15, 1942.

THE SAID SECTION 12 OF THE ACT OF JUNE 16, 1942, WAS THE PERMANENT LAW AUTHORIZING TRANSPORTATION OF DEPENDENTS FROM ITS EFFECTIVE DATE UNTIL THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT. PRIOR TO THE CAREER COMPENSATION ACT THE STATUTORY PROVISIONS AUTHORIZING TRANSPORTATION OF DEPENDENTS HAD BEEN THE SUBJECT OF MANY DECISIONS AND SINCE THE LANGUAGE OF THOSE PROVISIONS WAS SUBSTANTIALLY REENACTED IN THE CAREER COMPENSATION ACT, SUCH DECISIONS ARE PERTINENT IN DETERMINING THE MEANING OF THE REENACTED LANGUAGE.

THE DECISIONS UNDER THE PRIOR STATUTES CLEARLY SHOW THAT TRAVEL FOR WHICH THE GOVERNMENT WAS OBLIGATED HAD TO BE TRAVEL INCIDENT TO A PARTICULAR ORDERED PERMANENT CHANGE OF STATION. WHETHER PARTICULAR TRAVEL MET THAT FIRST AND BASIC REQUIREMENT WAS DETERMINED ON THE BASIS OF THE FACTS IN EACH CASE. A-24027, AUGUST 29, 1928; 2 COMP. GEN. 567; 3 COMP. GEN. 109; A-45906, JANUARY 13, 1942, B-58284, AUGUST 2, 1946. CERTAIN FACTS HAVE BEEN TREATED IN THE DECISIONS AS SUFFICIENT TO SUPPORT THE CONCLUSION THAT TRAVEL IS NOT INCIDENT TO THE ORDERED PERMANENT CHANGE OF STATION. FOR EXAMPLE, TRAVEL OF DEPENDENTS MERELY FOR THE PURPOSE OF VISITING THE MEMBER LONG HAS BEEN HELD NOT TO BE INCIDENT TO A PERMANENT CHANGE OF STATION. ALSO, IT HAS BEEN HELD THAT THE TRAVEL EXPENSE OF DEPENDENTS FOR PLEASURE TRIPS OR FOR PURPOSES OTHER THAN A CHANGE OF THE DEPENDENTS' RESIDENCE IN CONNECTION WITH THE CHANGE OF THE MEMBER'S PERMANENT STATION MAY NOT BE CONSIDERED AN OBLIGATION OF THE GOVERNMENT. A-6663, JANUARY 22, 1925; A-24027, AUGUST 29, 1928; A-31434, MAY 16, 1930; B-28291, AUGUST 19, 1944; B 80932, DECEMBER 7, 1948; B-113943, APRIL 20, 1953.

FROM THE FOREGOING IT WILL BE SEEN THAT A RIGHT TO TRANSPORTATION FOR DEPENDENTS AT THE EXPENSE OF THE GOVERNMENT WAS NOT AN ALLOWANCE PAYABLE IN ALL EVENTS ON THE BASIS THAT SOME TRAVEL WAS PERFORMED. THE STATUTE WAS ENACTED IN RECOGNITION OF THE HARDSHIP MEMBERS OF THE SERVICE WOULD ENCOUNTER IF SOME PROVISION WAS NOT MADE FOR KEEPING THEM AND THEIR FAMILIES TOGETHER. IT WAS NEVER INTENDED TO BE A GIFT FOR TRAVEL NOT PERFORMED OR FOR TRAVEL WHICH COULD NOT BE CONSIDERED AS INCIDENT TO A CHANGE OF RESIDENCE RESULTING FROM AN ORDERED PERMANENT CHANGE OF STATION. THIS WAS THE STATE OF THE LAW WHEN THE CAREER COMPENSATION ACT BECAME EFFECTIVE.

SUBSECTION 303 (C) OF THE CAREER COMPENSATION ACT AUTHORIZES TRANSPORTATION OF DEPENDENTS FOR MEMBERS OF THE UNIFORMED SERVICES "WHEN ORDERED TO MAKE A CHANGE OF PERMANENT STATION.' THERE IS NO INDICATION IN THE LEGISLATIVE HISTORY OF THAT PROVISION THAT IT WAS INTENDED AS BEING ANYTHING MORE THAN SUBSTANTIALLY A REENACTMENT OF THE PRIOR AUTHORIZATION. THE SLIGHTLY CHANGED NEW LANGUAGE CANNOT BE DISTINGUISHED IN MEANING FROM THE PRIOR LANGUAGE AND HENCE IT MAY BE CONSIDERED AS GRANTING TRANSPORTATION FOR DEPENDENTS AT GOVERNMENT EXPENSE FOR VISITS OR PERSONAL TRAVEL ANY MORE THAN THE PRIOR LEGISLATION. THE USE OF THE WORDS "UNDER SUCH CONDITIONS AND LIMITATIONS" AS THE SECRETARIES MAY PRESCRIBE DOES NOT GRANT AUTHORITY TO ENLARGE THE BASIC AUTHORIZATION. THE REVISION OF THE JOINT TRAVEL REGULATIONS AS OF SEPTEMBER 1, 1953, TO ANNOUNCE THAT TRAVEL OF DEPENDENTS ON A VISIT BASIS OR FOR PERSONAL REASONS COULD NOT BE AT THE EXPENSE OF THE GOVERNMENT IS CONSISTENT WITH THE LAW, BUT THAT LIMITATION IS INHERENT IN THE LAW ITSELF AND THE LACK OF EXPRESS INSTRUCTIONS PRIOR TO SEPTEMBER 1, 1953, DID NOT, OF COURSE, ENLARGE THE SCOPE OF THE LAW OR CHANGE THE EXISTING RULE.

VIEWING THE STATUTORY AUTHORIZATION IN THIS LIGHT, PAYMENTS MADE INCIDENT TO TRAVEL OF DEPENDENTS OTHER THAN INCIDENT TO A CHANGE OF RESIDENCE WOULD BE UNAUTHORIZED. ONE CASE HAS COME TO ATTENTION WHERE THE OFFICER'S WIFE TRAVELED TO HIS NEW STATION FROM HER ESTABLISHED HOME AND BUSINESS AND RETURNED TO HER HOME AND BUSINESS THE NEXT DAY. NO SUPPORT FOR PAYMENT OF TRAVEL OF DEPENDENTS UNDER SUCH CIRCUMSTANCES IS FOUND IN THE LAW. AS A PRACTICAL MATTER, SERIOUS DOUBT AS TO THE PROPRIETY OF ANY PAYMENT FOR DEPENDENTS' TRAVEL ARISES WHEN IT IS DISCOVERED IN THE AUDIT THAT APPARENTLY NO CHANGE OF RESIDENCE HAS OCCURRED. IT IS UNDERSTOOD THAT THIS IS THE SITUATION IN A LARGE NUMBER OF THE AUDIT EXCEPTIONS HERE INVOLVED, AND THERE IS REASON FOR GRAVE DOUBT WHETHER, IN MANY OF THE CASES, THE DEPENDENTS ACTUALLY PERFORMED THE ALLEGED TRAVEL (OR ANY TRAVEL AT ALL), FOR WHICH REIMBURSEMENT WAS CLAIMED AND PAID. IF TRAVEL ACTUALLY WAS PERFORMED, AN AFFIDAVIT AS TO THE FACTS SURROUNDING THE TRAVEL MAY BE SUBMITTED IN SUPPORT OF THE PAYMENT; HOWEVER, IN THE ABSENCE OF SUCH FACTS THIS OFFICE MAY NOT PROPERLY CONCLUDE THAT A PARTICULAR PAYMENT WAS AUTHORIZED, IN THE FACE OF EVIDENCE THAT THERE HAD BEEN NO CHANGE IN THE PLACE WHERE THE DEPENDENT LIVES.

ACCORDINGLY, THE EXCEPTIONS IN QUESTION WILL BE CONTINUED IN THOSE CASES WHERE FACTS AVAILABLE TO THIS OFFICE GIVE RISE TO SUBSTANTIAL DOUBT THAT THE PAYMENTS INVOLVED WERE AUTHORIZED.