B-131061, MAY 24, 1957, 36 COMP. GEN. 781

B-131061, MAY 24, 1957, 36 COMP. GEN. 781

MILITARY PERSONNEL - TRANSPORTATION - DEPENDENTS - DEATH OF MEMBER - REASONABLE TIME FOR TRAVEL TRAVEL OF DEPENDENTS OF MEMBERS OF THE UNIFORMED SERVICES INCIDENT TO DEATH OF THE MEMBER MUST BE PERFORMED WITHIN A REASONABLE TIME FOR ENTITLEMENT TO PAYMENT OF TRAVEL EXPENSES, AND ANY DELAY IN EXCESS OF ONE YEAR MAY NOT BE CONSIDERED REASONABLE AND WOULD PRECLUDE TRAVEL EXPENSE REIMBURSEMENT.

TO GERTRUDE L. HUTCHINSON, MAY 24, 1957:

FURTHER REFERENCE IS MADE TO YOUR LETTER POSTMARKED FEBRUARY 19, 1957, AND ENCLOSURES, IN WHICH YOU REQUEST RECONSIDERATION OF THE SETTLEMENT OF JULY 9, 1956, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT FOR TRAVEL PERFORMED BY YOU BETWEEN MARCH 25 AND MARCH 30, 1956, FROM BERKELEY, CALIFORNIA, TO DAYTON, OHIO, VIA WASHINGTON, D.C.

YOUR LATE HUSBAND, CAPTAIN ROLLO WILSON HUTCHINSON (MC) USN, DIED AT THE UNITED STATES NAVAL HOSPITAL, OAKLAND, CALIFORNIA, WHILE ON ACTIVE DUTY ON NOVEMBER 13, 1950, AT WHICH TIME YOU WERE LIVING AT BERKELEY, CALIFORNIA. YOUR CLAIM FOR TRANSPORTATION TO DAYTON, OHIO, BY WAY OF WASHINGTON, D.C., IN MARCH 1956 AS INCIDENT TO YOUR HUSBAND'S DEATH IN NOVEMBER 1950, FORWARDED HERE BY THE CHIEF OF NAVAL PERSONNEL FOR SETTLEMENT UNDER THE PROVISIONS OF THE MISSING PERSONS ACT, AS AMENDED, 50 U.S.C., APP. 1012, WAS DISALLOWED FOR THREE REASONS; NAMELY, RECORDS FAIL TO SHOW THAT YOU MADE APPLICATION FOR THE TRAVEL; THAT THE TRAVEL WAS COMMENCED MORE THAN 6 YEARS AFTER YOUR HUSBAND'S DEATH; AND THAT A REASONABLE RELATIONSHIP DID NOT EXIST BETWEEN YOUR CONDITION AND CIRCUMSTANCES AND THE DESTINATION TO WHICH THE TRAVEL WAS PERFORMED.

IN REGARD TO THE ELEMENT OF DELAY, YOU NOW SAY THAT AT THE TIME OF YOUR HUSBAND'S DEATH YOU WERE UNDER HOSPITAL TREATMENT FOR THE CARE OF A BROKEN NECK. WHILE COPIES OF YOUR MEDICAL RECORD FROM UNITED STATES NAVAL FACILITIES SUBSTANTIATE THIS STATEMENT, IT IS NOTED THAT THE LAST ENTRY IS DATED FEBRUARY 12, 1951, ONLY 3 MONTHS AFTER CAPTAIN HUTCHINSON'S DEATH. FURTHER DELAY IS ATTRIBUTED BY YOU TO DIFFICULTY IN SELLING YOUR HOUSE WHICH WAS ON THE MARKET FOR FOUR YEARS BEFORE IT WAS SOLD. YOU STATE THAT IMMEDIATELY AFTER THE SALE YOU DEPARTED ON THE TRIP FOR WHICH YOU NOW SEEK REIMBURSEMENT.

SECTION 12 OF THE MISSING PERSONS ACT, AS AMENDED, 50 U.S.C., APP. 1012, PROVIDES FOR THE MOVING OF DEPENDENTS AND THEIR HOUSEHOLD GOODS "UPON RECEIPT BY SUCH DEPENDENTS" OF AN OFFICIAL REPORT THAT THE PERSON IN ACTIVE SERVICE IS DEAD, INJURED, MISSING FOR A PERIOD OF 30 DAYS OR MORE, INTERNED IN A FOREIGN COUNTRY, OR CAPTURED BY A HOSTILE FORCE. ALSO, SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 253 (C), ALLOWS TRANSPORTATION FOR DEPENDENTS AND THEIR PERSONAL EFFECTS "UPON THE DEATH OF A MEMBER OF THE UNIFORM SERVICES.' NEITHER STATUTE CONTAINS AN EXPRESS LIMITATION AS TO THE TIME WITHIN WHICH DEPENDENTS MUST PERFORM SUCH TRAVEL. HOWEVER, WHAT IS REASONABLY IMPLIED IN A STATUTE IS AS MUCH A PART OF IT AS WHAT IS EXPRESSED. DILLON V. GLASS, 256 U.S. 368, 373. THE FUNDAMENTAL REASON FOR PROVIDING TRANSPORTATION TO DEPENDENTS OF MILITARY PERSONNEL AT GOVERNMENT EXPENSE UNDER THESE CIRCUMSTANCES IS TO INSURE THEIR RETURN TO FAMILY AND FRIENDS DURING A DIFFICULT PERIOD OF LIFE OR, IF NECESSITY DEMANDS, THEIR TRAVEL TO A COMMUNITY WHERE THERE ARE EMPLOYMENT OPPORTUNITIES. HENCE, THERE IS AN IMPLIED LIMITATION THAT THIS TRAVEL MUST BE PERFORMED WITHIN A REASONABLE TIME IF IT IS TO BE AT GOVERNMENT EXPENSE.

A SIMILAR PROBLEM AROSE REGARDING THE TIME WITHIN WHICH TRAVEL TO A SELECTED HOME MUST BE PERFORMED FOLLOWING RETIREMENT TO ENTITLE MILITARY PERSONNEL TO PAYMENT OF TRAVEL EXPENSES. ACCOUNTING OFFICERS HAVE LONG TAKEN THE VIEW THAT A REASONABLE TIME FOR DELAY IN SUCH CIRCUMSTANCES SHOULD NOT EXCEED ONE YEAR. 8 COMP. GEN. 327; 24 ID. 291, 298. ALSO, IT HAS BEEN HELD THAT TRANSPORTATION OF A MEMBER'S DEPENDENTS FROM HIS LAST DUTY STATION TO HIS HOME UPON A RETIREMENT IS NOT AUTHORIZED AT GOVERNMENT EXPENSE WHERE TRAVEL IS NOT COMMENCED BY THE DEPENDENTS WITHIN ONE YEAR FROM THE DATE OF RETIREMENT. 16 COMP. GEN. 228. THIS RULE WOULD APPEAR TO BE EQUALLY APPLICABLE TO TRAVEL OF DEPENDENTS OF MEMBERS WHOSE ACTIVE SERVICE IS TERMINATED BY DEATH RATHER THAN BY RETIREMENT. CURRENTLY, THE REGULATIONS GOVERNING THE TRANSPORTATION AT GOVERNMENT EXPENSE OF MEMBERS OF THE UNIFORMED SERVICES AND THEIR DEPENDENTS, PUBLISHED AS THE JOINT TRAVEL REGULATIONS, PROVIDE (PARAGRAPH 4158-1A) THAT UPON RETIREMENT A MEMBER MAY SELECT A HOME AND RECEIVE TRAVEL ALLOWANCES THERETO FROM HIS LAST DUTY STATION, PROVIDED TRAVEL IS COMPLETED WITHIN ONE YEAR AFTER TERMINATION OF ACTIVE DUTY OF (PARAGRAPH 4158-2) IF UNDERGOING TREATMENT ON THAT DATE AT A GOVERNMENT HOSPITAL SUCH TRAVEL IS COMPLETED WITHIN ONE YEAR AFTER DISCHARGE FROM THE HOSPITAL OR TWO YEARS AFTER TERMINATION OF ACTIVE SERVICE, WHICHEVER IS EARLIER. ALSO, IN SUCH EVENT, A MEMBER SHALL BE ENTITLED TO TRANSPORTATION OF HIS DEPENDENTS (PARAGRAPH 7012-1A AND 2) FROM HIS LAST DUTY STATION OR OTHER AUTHORIZED POINT TO THE SELECTED HOME, PROVIDED SUCH TRAVEL IS PERFORMED PRIOR TO THE EXPIRATION OF THE MEMBER'S ENTITLEMENT TO SUCH TRANSPORTATION FOR HIS OWN TRAVEL. AS A FURTHER INDICATION THAT THE REGULATIONS INTEND THAT TRAVEL OF DEPENDENTS SHALL BE AT GOVERNMENT EXPENSE ONLY IF PERFORMED WITHIN A LIMITED TIME AFTER THE DEATH OF THE MEMBER, PARAGRAPH 8011-4 OF THESE REGULATIONS PROVIDES THAT, IN GENERAL, ENTITLEMENT TO SHIPMENT OF HOUSEHOLD EFFECTS SHALL TERMINATE IN ANY CASE WHERE SUCH EFFECTS ARE NOT TURNED OVER TO A TRANSPORTATION OFFICER OR A CARRIER FOR SHIPMENT WITHIN ONE YEAR FROM THE DATE OF RECEIPT BY A MEMBER'S DEPENDENTS OF OFFICIAL NOTICE THAT HE IS DEAD, INJURED, MISSING, INTERNED, OR CAPTURED.

IN VIEW OF THE FOREGOING, SINCE YOU REMAINED AT YOUR HOME IN CALIFORNIA UNTIL MARCH 1956 OR FOR MORE THAN 5 YEARS AFTER CAPTAIN HUTCHINSON'S DEATH, THE CONCLUSION APPEARS REQUIRED, IRRESPECTIVE OF THE REASONS FOR THE DELAY IN YOUR TRAVEL TO DAYTON, THAT THERE IS NO AUTHORITY UNDER APPLICABLE LAW AND REGULATIONS FOR THE ALLOWANCE OF YOUR CLAIM.