B-119374, AUG 5, 1954

B-119374: Aug 5, 1954

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REQUESTING DECISION AS TO WHETHER PAYMENT IS AUTHORIZED. THE MEMBER WAS DISCHARGED EFFECTIVE OCTOBER 1. HE WAS PROMOTED TO SERGEANT (E-5) EFFECTIVE ON DATE OF REENLISTMENT. IT BEING PROVIDED IN THE ORDERS THAT NO TRAVEL WAS INVOLVED. SINCE THE MEMBER WAS ENLISTED IN THE GRADE OF PRIVATE FIRST CLASS (E-3) AND PROMOTED TO SERGEANT (E-5) ON THE SAME DAY. YOU QUESTION (1) WHETHER REIMBURSEMENT IS AUTHORIZED FOR TRAVEL OF HIS DEPENDENTS FROM HOME TO FIRST STATION INCIDENT TO HIS ENLISTMENT AND (2) WHETHER IT IS AUTHORIZED NOTWITHSTANDING THAT REIMBURSEMENT MAY HAVE BEEN MADE FOR THEIR TRAVEL FROM LAST STATION TO HOME. THERE WAS NO AUTHORITY FOR THE TRANSPORTATION OF DEPENDENTS OF REGULARS FROM HOME TO FIRST STATION UPON ENLISTMENT OR FROM LAST STATION TO HOME UPON DISCHARGE.

B-119374, AUG 5, 1954

PRECIS-UNAVAILABLE

COLONEL H.S. RUTH, DEPARTMENT OF THE ARMY:

THERE HAS BEEN RECEIVED FROM THE CHIEF OF FINANCE BY FIRST INDORSEMENT DATED MARCH 18, 1954, YOUR LETTER OF FEBRUARY 12, 1954, TRANSMITTING A VOUCHER IN FAVOR OF SERGEANT JOHNNY G. CREEK, RA 18 019 538, FOR REIMBURSEMENT FOR TRAVEL OF HIS DEPENDENTS FROM HOMINY, OKLAHOMA, TO OAKLAND, CALIFORNIA, AND REQUESTING DECISION AS TO WHETHER PAYMENT IS AUTHORIZED.

BY ORDERS DATED SEPTEMBER 29, 1953, THE MEMBER WAS DISCHARGED EFFECTIVE OCTOBER 1, 1953, AS SERGEANT, ENLISTED RESERVE, AT CAMP STONEMAN, CALIFORNIA, UNDER AUTHORITY OF ARMY REGULATIONS 615-360 WHICH PROVIDE FOR THE DISCHARGE OF ENLISTED PERSONNEL UPON EXPIRATION OF TERM OF ENLISTMENT. THE NEXT DAY HE REENLISTED IN THE REGULAR ARMY AS A PRIVATE FIRST CLASS (E-3) AT OAKLAND ARMY BASE, CALIFORNIA, AND BY ORDERS DATED OCTOBER 5, 1953, HE WAS PROMOTED TO SERGEANT (E-5) EFFECTIVE ON DATE OF REENLISTMENT, GRANTED 30 DAYS' LEAVE EFFECTIVE IMMEDIATELY WITH LEAVE ADDRESS C/O JANE MOORE, HOMINY, OKLAHOMA, AND ASSIGNED TO DUTY AT OAKLAND ARMY BASE, IT BEING PROVIDED IN THE ORDERS THAT NO TRAVEL WAS INVOLVED. HE HAS CERTIFIED THAT HIS DEPENDENTS (WIFE AND TWO CHILDREN) TRAVELED FROM OLD PERMANENT STATION "C/O JANE MOORE HOMINY, OKLA." TO OAKLAND, CALIFORNIA, OCTOBER 30 TO NOVEMBER 3, 1953, BY PRIVATELY OWNED AUTOMOBILE AT PERSONAL EXPENSE. SINCE THE MEMBER WAS ENLISTED IN THE GRADE OF PRIVATE FIRST CLASS (E-3) AND PROMOTED TO SERGEANT (E-5) ON THE SAME DAY, YOU QUESTION (1) WHETHER REIMBURSEMENT IS AUTHORIZED FOR TRAVEL OF HIS DEPENDENTS FROM HOME TO FIRST STATION INCIDENT TO HIS ENLISTMENT AND (2) WHETHER IT IS AUTHORIZED NOTWITHSTANDING THAT REIMBURSEMENT MAY HAVE BEEN MADE FOR THEIR TRAVEL FROM LAST STATION TO HOME.

PRIOR TO THE ENACTMENT OF THE CAREER COMPENSATION ACT OF 1949, THERE WAS NO AUTHORITY FOR THE TRANSPORTATION OF DEPENDENTS OF REGULARS FROM HOME TO FIRST STATION UPON ENLISTMENT OR FROM LAST STATION TO HOME UPON DISCHARGE. HOWEVER, UPON DISCHARGE AND REENLISTMENT AT THE SAME STATION WITHOUT A BREAK IN SERVICE THE RIGHT TO TRANSPORTATION OF DEPENDENTS FROM THE OLD STATION TO THE NEW WAS SAVED TO THEM. 8 COMP. GEN. 76; 28 ID. 567, AND 29 ID. 4. SECTION 303(C) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 814, PROVIDES THAT UNDER SUCH CONDITIONS AND LIMITATIONS AND FOR SUCH RANKS, GRADES, OR RATINGS, AND TO AND FROM SUCH LOCATIONS AS MAY BE PRESCRIBED BY THE SECRETARIES CONCERNED, MEMBERS OF THE UNIFORMED SERVICES WHEN ORDERED TO MAKE A CHANGE OF PERMANENT STATION SHALL BE ENTITLED TO TRANSPORTATION IN KIND FOR DEPENDENTS OR TO REIMBURSEMENT THEREFOR, OR TO A MONETARY ALLOWANCE IN LIEU OF SUCH TRANSPORTATION IN KIND, AND THAT THE SECRETARY CONCERNED SHALL DEFINE THE TERM "PERMANENT STATION." THE LEGISLATIVE HISTORY OF SAID SECTION (PAGE 15, HOUSE REPORT 583; PAGE 19, HOUSE REPORT 779; PAGE 22, SENATE REPORT 733) SHOWS THAT THE CONGRESS INTENDED TO AUTHORIZE TRANSPORTATION OF DEPENDENTS OF MEMBERS, WHETHER REGULARS OR MEMBERS OF RESERVE COMPONENTS, "UPON ORIGINAL APPOINTMENT OR ENLISTMENT IN THE SERVICE AND UPON FINAL SEPARATION FROM THE SERVICE." CONFORMITY WITH SUCH LEGISLATIVE INTENT THE TERM "PERMANENT CHANGE OF STATION" IS DEFINED IN PARAGRAPH 3003-1A OF THE JOINT TRAVEL REGULATIONS AS INCLUDING THE CHANGE FROM HOME TO FIRST DUTY STATION UPON APPOINTMENT, CALL TO ACTIVE DUTY, ENLISTMENT OR INDICTION, AND FROM LAST DUTY STATION TO HOME UPON SEPARATION FROM THE SERVICE. AUTHORITY FOR TRANSPORTATION OF DEPENDENTS INCIDENT TO SUCH CHANGES OF STATION IS CONTAINED IN PARAGRAPH 7002-2 OF SAID REGULATIONS WHICH PROVIDES THAT, WITH CERTAIN EXCEPTIONS NOT HERE MATERIAL, ALL MEMBERS BEGINNING WITH THOSE IN PAY GRADE E-4 WITH NOT LESS THAN SEVEN YEARS' SERVICE ARE ENTITLED TO TRANSPORTATION OF DEPENDENTS UPON A PERMANENT CHANGE OF STATION FOR TRAVEL PERFORMED FROM THE OLD TO THE NEW PERMANENT STATION, OR BETWEEN OTHER AUTHORIZED POINTS.

SECTION 12 OF THE ACT OF MAY 18, 1920, 41 STAT. 604, AUTHORIZED THE FURNISHING OF TRANSPORTATION IN KIND FOR DEPENDENTS OF CERTAIN PERSONNEL OF THE ARMED SERVICES WHEN "ORDERED TO MAKE A PERMANENT CHANGE OF STATION," AND A RIGHT TO COMMERCIAL TRANSPORTATION COSTS FOR TRAVEL BY DEPENDENTS "WHEN SUCH TRAVEL SHALL HAVE BEEN COMPLETED" WAS GRANTED IN SECTION 12 OF THE ACT OF JUNE 10, 1922, 42 STAT. 631. BOTH OF THESE PROVISIONS WERE REENACTED AS A PART OF SECTION 12 OF THE ACT OF JUNE 16, 1942, 56 STAT. 364, WITHOUT CHANGE IN THE WORDING QUOTED HERE. THIS LEGISLATION CONSTITUTED THE PERMANENT LAW AUTHORIZING TRANSPORTATION OF DEPENDENTS PRIOR TO THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT OF 1949, AND HAS BEEN THE SUBJECT OF MANY DECISIONS. SINCE THE LANGUAGE OF THE EARLIER ACTS WAS SUBSTANTIALLY REENACTED IN THE CAREER COMPENSATION ACT, SUCH DECISIONS ARE PERTINENT IN DETERMINING THE MEANING OF THIS STATUTE.

THE PURPOSE OF THE EARLIER STATUTES RELATING TO TRANSPORTATION OF DEPENDENTS WAS TO RELIEVE MEMBERS OF THE BURDEN OF PERSONALLY BEARING THE EXPENSE OF TRAVEL OF DEPENDENTS NECESSITATED BY ORDERED CHANGES OF PERMANENT STATION. ON THIS BASIS THE DECISIONS CONSISTENTLY HAVE HELD THAT THE TRAVEL FOR WHICH THE GOVERNMENT IS OBLIGATED HAD TO BE TRAVEL INCIDENT TO A PARTICULAR ORDERED CHANGE OF PERMANENT STATION. TO THIS END CERTAIN FACTS HAVE BEEN TREATED IN THE DECISIONS AS SUPPORTING A CONCLUSION THAT CERTAIN TRAVEL IS NOT INCIDENT TO THE ORDERED CHANGE OF PERMANENT STATION, FOR EXAMPLE, TRAVEL OF DEPENDENTS MERELY FOR THE PURPOSE OF VISITING, OR FOR PLEASURE TRIPS, AND THUS, IN GENERAL, IT HAS BEEN HELD THAT TRAVEL EXPENSE OF DEPENDENTS 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. 2 COMP. GEN. 567; 3 ID. 109; 7 ID. 255; A-24027, AUGUST 29, 1928; A-31434, MAY 16, 1930; B-80932, DECEMBER 7, 1948.

THE AUTHORITY FOR TRANSPORTING DEPENDENTS CONTAINED IN SECTION 303(C) OF THE CAREER COMPENSATION ACT LIKEWISE IS LIMITED, EXCEPT UNDER CERTAIN SPECIFIED CONDITIONS, TO CASES IN WHICH THE SERVICE MEMBER IS "ORDERED TO MAKE A CHANGE OF PERMANENT STATION," AND THERE IS NOTHING IN ITS LEGISLATIVE HISTORY TO INDICATE THAT IT WAS INTENDED TO BE ANYTHING MORE THAN SUBSTANTIALLY A REENACTMENT OF THE PRIOR AUTHORIZATION. NEITHER THE SLIGHT CHANGES IN THE NEW LANGUAGE, WHICH CANNOT BE DISTINGUISHED IN MEANING FROM THE PRIOR LANGUAGE, NOR THE USE OF THE WORDS "UNDER SUCH CONDITIONS AND LIMITATIONS" AS THE SECRETARIES MAY PRESCRIBE, WOULD APPEAR TO GRANT AUTHORITY TO ENLARGE THE BASIC AUTHORIZATION. B-113943, APRIL 20, 1953; B-119118, APRIL 6, 1954. SINCE THE TRANSPORTATION OF DEPENDENTS INCIDENT TO THE CHANGE FROM HOME TO DUTY STATION AND FROM LAST STATION TO HOME IS AUTHORIZED ON THE SAME BASIS AS IN THE CASE OF A CHANGE OF PERMANENT DUTY STATION, IT FOLLOWS THAT SUCH TRANSPORTATION IS SUBJECT TO THE SAME LIMITATIONS. THUS UPON REENLISTMENT THE TRANSPORTATION OF DEPENDENTS TO WHICH A MEMBER IS ENTITLED INCIDENT TO SUCH ENLISTMENT IS LIMITED NOT TO EXCEED THE COST OF SUCH TRANSPORTATION FROM THE ESTABLISHED RESIDENCE OF HIS DEPENDENTS AT TIME OF REENLISTMENT, WHETHER LOCATED AT A MILITARY INSTALLATION OR ELSEWHERE, TO THE DUTY STATION TO WHICH THE MEMBER IS ASSIGNED UPON REENLISTMENT. 33 COMP. GEN. 131.

SINCE SERGEANT CREEK WAS APPOINTED SERGEANT IMMEDIATELY UPON REENLISTMENT HE IS ENTITLED TO SUCH TRANSPORTATION FOR DEPENDENTS AS MAY OTHERWISE BE AUTHORIZED. WHILE THE LOCATION OF HIS DEPENDENTS AT THE TIME OF HIS DISCHARGE IS NOT SHOWN, YOUR QUERY AS TO WHETHER PAYMENT ON THE PRESENT VOUCHER, IF AUTHORIZED, WOULD NONETHELESS BE AUTHORIZED EVEN THOUGH CLAIMANT HAD BEEN REIMBURSED FOR TRAVEL OF DEPENDENTS FROM LAST STATION TO HOME UPON SEPARATION FROM THE SERVICE, AFFORDS GROUND FOR AN ASSUMPTION THAT THEY WERE WITH HIM AT HIS STATION WHEN HE WAS DISCHARGED. ON THE BASIS OF SUCH ASSUMPTION IT WOULD APPEAR THAT THE TRAVEL WAS PERFORMED IN ACCOMPANYING THE MEMBER WHILE ON LEAVE AND MUST BE CONSIDERED TRAVEL FOR THE PURPOSE OF VISITING. HENCE, THE REIMBURSEMENT TO WHICH HE IS ENTITLED FOR TRAVEL OF DEPENDENTS INCIDENT TO HIS DISCHARGE AND REENLISTMENT IS LIMITED TO THE COST FOR TRAVEL FROM THE OLD STATION, CAMP STONEMAN, CALIFORNIA, TO THE NEW STATION, OAKLAND ARMY BASE, CALIFORNIA, AND ANY PAYMENT IN EXCESS OF SUCH AMOUNT WHICH MAY HAVE BEEN MADE TO HIM CONSTITUTES AN OVERPAYMENT WHICH SHOULD BE REFUNDED BY HIM.

IN VIEW OF THE FOREGOING, PAYMENT ON THE VOUCHER SUBMITTED BY YOU, WHICH IS RETAINED IN THIS OFFICE, IS NOT AUTHORIZED.