B-125181, JANUARY 16, 1956, 35 COMP. GEN. 399

B-125181: Jan 16, 1956

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ON EACH OCCASION WHEN THE MEMBER IS OFFICIALLY REPORTED TO BE INJURED. PROVIDED THERE IS AN ADMINISTRATIVE DETERMINATION THAT A REASONABLE RELATIONSHIP EXISTS BETWEEN THE CONDITIONS AND CIRCUMSTANCES OF THE DEPENDENTS AND THE DESTINATIONS TO WHICH TRANSPORTATION IS REQUESTED. 1956: REFERENCE IS MADE TO LETTER OF AUGUST 11. REQUESTING A DECISION WHETHER MOVEMENT OF THE DEPENDENTS AND HOUSEHOLD GOODS OF A MEMBER OF THE UNIFORMED SERVICES TO ONE PLACE UPON RECEIPT OF NOTIFICATION THAT THE MEMBER IS REPORTED AS MISSING PRECLUDES FURTHER MOVEMENT TO ANOTHER PLACE UPON RECEIPT OF NOTIFICATION THAT THE SAME MEMBER IS IN FACT DEAD. STATES THAT "NEITHER THE LANGUAGE OF * * * (THAT) ACT NOR THE HEARINGS THEREON PERMIT DETERMINATION AS TO WHETHER SUCH DUAL SHIPPING RIGHTS ARE PERMISSIBLE.'.

B-125181, JANUARY 16, 1956, 35 COMP. GEN. 399

TRANSPORTATION - DEPENDENTS AND HOUSEHOLD EFFECTS - MEMBERS OF UNIFORMED SERVICES - MISSING, INJURED OR DEAD DEPENDENTS AND HOUSEHOLD EFFECTS OF MEMBERS OF THE UNIFORMED SERVICES MAY BE MOVED AT GOVERNMENT EXPENSE, PURSUANT TO SECTION 12 OF THE MISSING PERSONS ACT, ON EACH OCCASION WHEN THE MEMBER IS OFFICIALLY REPORTED TO BE INJURED, MISSING FOR 30 DAYS OR MORE, INTERNED IN A FOREIGN COUNTRY, CAPTURED BY A HOSTILE FORCE, OR DEAD, PROVIDED THERE IS AN ADMINISTRATIVE DETERMINATION THAT A REASONABLE RELATIONSHIP EXISTS BETWEEN THE CONDITIONS AND CIRCUMSTANCES OF THE DEPENDENTS AND THE DESTINATIONS TO WHICH TRANSPORTATION IS REQUESTED.

TO THE SECRETARY OF THE ARMY, JANUARY 16, 1956:

REFERENCE IS MADE TO LETTER OF AUGUST 11, 1955, FROM THE ASSISTANT SECRETARY OF THE ARMY ( MANPOWER AND RESERVE FORCES), REQUESTING A DECISION WHETHER MOVEMENT OF THE DEPENDENTS AND HOUSEHOLD GOODS OF A MEMBER OF THE UNIFORMED SERVICES TO ONE PLACE UPON RECEIPT OF NOTIFICATION THAT THE MEMBER IS REPORTED AS MISSING PRECLUDES FURTHER MOVEMENT TO ANOTHER PLACE UPON RECEIPT OF NOTIFICATION THAT THE SAME MEMBER IS IN FACT DEAD. THE LETTER REFERS TO SECTION 12 OF THE MISSING PERSONS ACT, AS AMENDED, AND STATES THAT "NEITHER THE LANGUAGE OF * * * (THAT) ACT NOR THE HEARINGS THEREON PERMIT DETERMINATION AS TO WHETHER SUCH DUAL SHIPPING RIGHTS ARE PERMISSIBLE.' IT FURTHER STATES THAT OUR DECISION IS BEING REQUESTED "IN ORDER THAT THE REGULATIONS MAY BE MADE SPECIFIC ON THIS POINT.'

SECTION 12 OF THE MISSING PERSONS ACT, AS AMENDED, 50 U.S.C. APP. 1012, IS, IN PERTINENT PART, AS FOLLOWS:

THE DEPENDENTS AND HOUSEHOLD AND PERSONAL EFFECTS OF ANY PERSON IN ACTIVE SERVICE (WITHOUT REGARD TO PAY GRADE) WHO IS OFFICIALLY REPORTED AS DEAD, INJURED, MISSING FOR A PERIOD OF THIRTY DAYS OR MORE, INTERNED IN A FOREIGN COUNTRY, OR CAPTURED BY A HOSTILE FORCE, UPON APPLICATION BY SUCH DEPENDENTS, MAY BE MOVED (INCLUDING PACKING AND UNPACKING OF HOUSEHOLD EFFECTS), UPON RECEIPT BY SUCH DEPENDENTS OF SUCH OFFICIAL REPORT, TO SUCH LOCATION AS MAY BE DETERMINED IN ADVANCE OR SUBSEQUENTLY APPROVED BY THE HEAD OF THE DEPARTMENT CONCERNED OR BY SUCH PERSONS AS HE MAY DESIGNATE. THE COST OF SUCH TRANSPORTATION, INCLUDING PACKING AND UNPACKING OF HOUSEHOLD EFFECTS, SHALL BE CHARGED AGAINST APPROPRIATIONS CURRENTLY AVAILABLE. IN LIEU OF TRANSPORTATION AUTHORIZED BY THIS SECTION FOR DEPENDENTS, THE HEAD OF THE DEPARTMENT CONCERNED MAY AUTHORIZE THE PAYMENT IN MONEY OF AMOUNTS EQUAL TO SUCH COMMERCIAL TRANSPORTATION COSTS FOR THE WHOLE OR SUCH PART OF TRAVEL FOR WHICH TRANSPORTATION IN KIND IS NOT FURNISHED, WHEN SUCH TRAVEL SHALL HAVE BEEN COMPLETED. WHEN THE PERSON IS IN AN "INJURED" STATUS, THE MOVEMENT OF DEPENDENTS OR HOUSEHOLD AND PERSONAL EFFECTS PROVIDED FOR HEREIN MAY BE AUTHORIZED ONLY IN CASES WHERE THE ANTICIPATED PERIOD OF HOSPITALIZATION OR TREATMENT WILL BE OF PROLONGED DURATION. NO TRANSPORTATION SHALL BE AUTHORIZED PURSUANT TO THIS SECTION UNLESS A REASONABLE RELATIONSHIP EXISTS BETWEEN THE CONDITION AND CIRCUMSTANCES OF THE DEPENDENTS AND THE DESTINATION TO WHICH TRANSPORTATION IS REQUESTED. * * *

IT IS OUR VIEW THAT THE IMPORT OF THE LANGUAGE USED IN THE QUOTED SECTION IS THAT THE HEAD OF THE DEPARTMENT CONCERNED, OR HIS DESIGNEE, MAY AUTHORIZE OR APPROVE, SUBJECT TO THE CONDITIONS SPECIFIED, THE EXPENDITURE OF APPROPRIATED FUNDS FOR THE TRANSPORTATION OF THE DEPENDENTS AND EFFECTS OF ANY PERSON IN ACTIVE SERVICE (TO A LOCATION DETERMINED BY THE DEPARTMENT HEAD OR HIS DESIGNEE) ON EACH OCCASION WHEN SUCH PERSON MAY BE OFFICIALLY REPORTED EITHER TO BE DEAD, INJURED (WITH PROLONGED TREATMENT ANTICIPATED), MISSING FOR A PERIOD OF 30 DAYS OR MORE, INTERNED IN A FOREIGN COUNTRY, OR CAPTURED BY A HOSTILE FORCE.

ONE OF THE PRIMARY CONDITIONS SPECIFIED IS THAT APPEARING IN THE LAST QUOTED SENTENCE OF THE SECTION WHICH SAYS THAT " NO TRANSPORTATION SHALL BE AUTHORIZED PURSUANT TO THIS SECTION UNLESS A REASONABLE RELATIONSHIP EXISTS BETWEEN THE CONDITION AND CIRCUMSTANCES OF THE DEPENDENTS AND THE DESTINATION TO WHICH TRANSPORTATION IS REQUESTED.' SUCH SENTENCE PLAINLY CONTEMPLATES THAT THE DEPARTMENT HEAD, OR HIS DESIGNEE, SHALL DETERMINE IN EACH CASE, BEFORE AUTHORIZING OR APPROVING A PARTICULAR MOVEMENT OF DEPENDENTS AND EFFECTS UNDER SECTION 12, THAT A REASONABLE RELATIONSHIP EXISTS BETWEEN THE CONDITIONS AND CIRCUMSTANCES OF THE DEPENDENTS AND THE DESTINATION TO WHICH THEY REQUEST TRANSPORTATION. SUCH DISCRETIONARY DETERMINATIONS OF "REASONABLE RELATIONSHIP" IN EACH CASE AS IT OCCURS SHOULD PROVIDE A SUFFICIENT MEASURE OF LIMITATION AND CONTROL ON THE RIGHTS, REFERRED TO IN THE ASSISTANT SECRETARY'S LETTER AS "DUAL SHIPPING RIGHTS," WHICH WERE CREATED BY THE ENACTMENT OF THESE STATUTORY PROVISIONS.

ACCORDINGLY, THE QUESTION PRESENTED IS ANSWERED IN THE NEGATIVE, IT BEING ASSUMED THAT WHEN THE REGULATIONS ARE REVISED IN CONSONANCE WITH THIS CONCLUSION, THE REVISED REGULATIONS WILL CONTAIN APPROPRIATE AND ADEQUATE PROVISIONS TO CARRY OUT THE INTENT OF THE CONGRESS IN PROVIDING FOR DISCRETIONARY DETERMINATIONS OF "REASONABLE RELATIONSHIP * * * BETWEEN THE CONDITION AND CIRCUMSTANCES OF THE DEPENDENTS AND THE DESTINATION TO WHICH TRANSPORTATION IS REQUESTED.'

IT IS TO BE REMEMBERED, OF COURSE, THAT SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 253 (C), CONTAINS A SPECIFIC PROVISION AS FOLLOWS:

* * * UNDER REGULATIONS PRESCRIBED BY THE SECRETARY CONCERNED, TRANSPORTATION FOR DEPENDENTS AND BAGGAGE AND HOUSEHOLD EFFECTS ARE AUTHORIZED UPON THE DEATH OF A MEMBER OF THE UNIFORMED SERVICES WHILE ENTITLED TO RECEIVE BASIC PAY PURSUANT TO SECTION 232 (E) OF THIS TITLE.

SUCH PROVISION, UNLIKE SECTION 12 OF THE MISSING PERSONS ACT, AS AMENDED, IS PERMANENT LEGISLATION AND EVEN THOUGH THE EFFECTIVE DATE OF THE MISSING PERSONS ACT, AS AMENDED, SHOULD NOT BE EXTENDED BEYOND JULY 1, 1956 (SEE PUBLIC LAW 122, APPROVED JUNE 30, 1955, 69 STAT. 238), 50 U.S. CODE APP. 1015, THE QUOTED PROVISION OF SECTION 303 (C), BARRING REPEAL, WILL STILL AUTHORIZE MOVEMENT OF DEPENDENTS AND EFFECTS OF A MEMBER WHO DIES WHILE ENTITLED TO RECEIVE BASIC PAY. MOREOVER, THE FACT THAT A MEMBER'S DEPENDENTS AND EFFECTS HAD BEEN MOVED ONCE, UNDER SECTION 12 OF THE MISSING PERSONS ACT, AS AMENDED, UPON HIS BEING REPORTED MISSING WOULD NOT BAR THE FURTHER MOVEMENT OF THE SAME MEMBER'S DEPENDENTS AND EFFECTS, UNDER SECTION 303 (C) OF THE CAREER COMPENSATION ACT AND "REGULATIONS PRESCRIBED BY THE SECRETARY CONCERNED," SHOULD THE MEMBER LATER DIE "WHILE ENTITLED TO RECEIVE BASIC PAY.'