B-133779, NOVEMBER 22, 1957, 37 COMP. GEN. 354

B-133779, NOVEMBER 22, 1957, 37 COMP. GEN. 354

MILITARY PERSONNEL - RESERVISTS - ADDITIONAL TRANSPORTATION TO HOME OF SELECTION - RETIREMENT WITH PAY THE ACT OF AUGUST 1, 1955, WHICH AMENDED SECTION 303 OF THE CAREER COMPENSATION ACT OF 1949 TO PERMIT MEMBERS OF THE UNIFORMED SERVICES TO SELECT A HOME FOR TRAVEL AND TRANSPORTATION ALLOWANCES ON RETIREMENT IS APPLICABLE TO MEMBERS OF RESERVE COMPONENTS WHO, WHILE SERVING ON ACTIVE DUTY, BECAME SUBJECT TO ELIMINATION ACTION UNDER THE RESERVE OFFICER PERSONNEL ACT OF 1954 AND, UPON APPLICATION ON AND AFTER AUGUST 11, 1955, WERE GRANTED RETIRED PAY UNDER 10 U.S.C. 1036 IMMEDIATELY FOLLOWING COMPLETION OF EIGHT YEARS OR MORE OF CONTINUOUS ACTIVE DUTY, AND WHO WERE PAID TRAVEL ALLOWANCES ONLY TO THEIR HOMES OF RECORD OR PLACE OF ENTRY INTO THE SERVICE; AND, THEREFORE, SUCH MEMBERS ARE NOW ENTITLED TO ADDITIONAL AMOUNTS FOR TRAVEL TO HOME OF SELECTION PERFORMED WITHIN THE TIME LIMITATIONS. THE RIGHT TO TRANSPORTATION AND TRAVEL ALLOWANCES ON SEPARATION FROM ACTIVE DUTY ARISES BY VIRTUE OF ACTIVE-DUTY STATUS FROM WHICH THE MEMBER OF THE UNIFORMED SERVICES IS RELEASED RATHER THAN FROM A STATUS WHICH MAY BE REQUIRED AT THE TIME OF RELEASE, OR AS A RESULT OF IT, SO THAT WHEN A MEMBER WHOSE ACTIVE-DUTY STATUS AS A MASTER SERGEANT IN THE REGULAR ARMY IS TERMINATED BY RETIREMENT IN AN OFFICER GRADE UNDER SECTIONS 402 AND 409 OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 272, 279, THE STATUS AS MASTER SERGEANT GOVERNS THE WEIGHT OF HOUSEHOLD GOODS WHICH MAY BE SHIPPED AT GOVERNMENT EXPENSE INCIDENT TO RETIREMENT. MEMBERS OF RESERVE COMPONENTS OF THE UNIFORMED SERVICES WHO, FOLLOWING NOT LESS THAN EIGHT YEARS OF CONTINUOUS ACTIVE DUTY, ARE SEPARATED PRIOR TO THE ACTUAL DAY OF RETIREMENT BY REASON OF THE UNIFORM RETIREMENT DATE ACT OF APRIL 23, 1930, 5 U.S.C. 47A, WHICH REQUIRES RETIREMENTS TO BE EFFECTIVE ON THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH THE RETIREMENT WOULD OTHERWISE BE EFFECTIVE, MAY BE REGARDED AS HAVING BEEN RETIRED "IMMEDIATELY FOLLOWING AT LEAST EIGHT YEARS OF CONTINUOUS ACTIVE DUTY" FOR TRAVEL AND TRANSPORTATION ALLOWANCES TO A HOME OF SELECTION UNDER THE ACT OF AUGUST 11, 1955, WHICH AMENDED SECTION 303 OF THE CAREER COMPENSATION ACT OF 1949.

TO THE SECRETARY OF THE ARMY, NOVEMBER 22, 1957:

FURTHER REFERENCE IS MADE TO LETTER OF SEPTEMBER 10, 1957, FROM THE ASSISTANT SECRETARY OF THE ARMY ( FINANCIAL MANAGEMENT), REQUESTING DECISION ON QUESTIONS STATED TO HAVE ARISEN IN CONNECTION WITH THE ADMINISTRATION OF THE PROVISIONS OF THE ACT OF AUGUST 11, 1955, 69 STAT. 691, 37 U.S.C. 253.

IN ADDITION TO THE PROVISIONS FOR PAYMENT TO MILITARY PERSONNEL OF TRAVEL AND TRANSPORTATION ALLOWANCES FOR OFFICIAL TRAVEL WHILE ON ACTIVE DUTY, SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813, 37 U.S.C. 263 (A), AUTHORIZES THE PAYMENT OF SUCH ALLOWANCES, UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, FROM HOME OR FROM THE PLACE FROM WHICH ORDERED TO ACTIVE DUTY TO FIRST STATION UPON ENTERING ON ACTIVE DUTY, AND UPON SEPARATION FROM THE SERVICE, PLACEMENT UPON THE TEMPORARY DISABILITY RETIRED LIST, RELEASE FROM ACTIVE DUTY, OR RETIREMENT FROM LAST DUTY STATION TO HOME OR TO THE PLACE FROM WHICH ORDERED TO ACTIVE DUTY. THE PURPOSE OF SUCH PROVISIONS IS TO PROVIDE NOT ONLY FOR THE TRAVEL REQUIREMENTS OF A MEMBER IN THE PERFORMANCE OF HIS MILITARY DUTIES WHILE ON ACTIVE DUTY BUT ALSO TO ENABLE HIM TO PROCEED TO THE ACTIVE DUTY ASSIGNMENT AND, UPON ITS COMPLETION OR TERMINATION BY RETIREMENT, TO RETURN TO AN INACTIVE STATUS. THEREFORE, THE RIGHT TO TRANSPORTATION AND TRAVEL ALLOWANCES UPON SEPARATION FROM ACTIVE DUTY PROPERLY IS A PART OF AND ARISES THROUGH THE ACTIVE-DUTY STATUS FROM WHICH THE MEMBER IS BEING RELEASED RATHER THAN FROM A STATUS THAT MAY BE ACQUIRED BY HIM AT THE TIME OF SUCH RELEASE OR AS A RESULT OF IT.

THE ACT OF AUGUST 11, 1955, EFFECTIVE FROM APRIL 1, 1951, AMENDED SECTION 303 OF THE 1949 ACT, 37 U.S.C. 253, TO PROVIDE THAT UNDER UNIFORM REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED A MEMBER OF THE UNIFORMED SERVICES RETIRED FOR PHYSICAL DISABILITY OR PLACED UPON THE TEMPORARY DISABILITY RETIRED LIST, OR WHO IS RETIRED WITH PAY FOR ANY OTHER REASON, OR DISCHARGED WITH SEVERANCE PAY, IMMEDIATELY FOLLOWING AT LEAST EIGHT YEARS OF CONTINUOUS ACTIVE DUTY, WITH NO SINGLE BREAK THEREIN OF MORE THAN 90 DAYS, MAY SELECT HIS HOME FOR PURPOSES OF ENTITLEMENT TO THE TRAVEL AND TRANSPORTATION ALLOWANCES AND TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS AUTHORIZED BY THAT SECTION. THE BASIC RIGHT TO TRANSPORTATION AND TRAVEL ALLOWANCES UPON RETIREMENT APPEARS TO BE AFFECTED BY SUCH PROVISIONS OF LAW ONLY AS TO THE PLACE WHICH MAY BE CONSIDERED "HOME" BY THE PERSONNEL INVOLVED.

YOU REQUEST DECISION WHETHER MEMBERS OF RESERVE COMPONENTS OF THE ARMY WHO, WHILE SERVING ON ACTIVE DUTY, BECAME SUBJECT TO ELIMINATION ACTION UNDER THE RESERVE OFFICER PERSONNEL ACT OF 1954, 68 STAT. 1147, 50 U.S.C. 1181 NOTE, AND UPON APPLICATION, ON AND AFTER AUGUST 11, 1955, WERE GRANTED RETIRED PAY UNDER TITLE III OF THE ACT OF JUNE 29, 1948, 62 STAT. 1087, 10 U.S.C. 1036, IMMEDIATELY FOLLOWING THE COMPLETION OF EIGHT YEARS OR MORE OF CONTINUOUS ACTIVE DUTY, AND PAID TRAVEL ALLOWANCES INCIDENT TO THEIR RETIREMENT ONLY TO THEIR HOME OF RECORD OR PLACE OF ENTRY INTO THE SERVICE, MAY NOW HAVE THEIR ACCOUNTS ADJUSTED ON THE BASIS THAT THEY WERE "RETIRED WITH PAY" AS CONTEMPLATED BY THE ACT OF AUGUST 11, 1955, SO AS TO GIVE THEM ANY ADDITIONAL AMOUNTS FOUND DUE WHERE TRAVEL TO A HOME OF SELECTION WAS IN FACT PERFORMED WITHIN THE TIME LIMITATIONS PRESCRIBED UNDER THAT ACT. IN THE CASE OF YARNALL V. UNITED STATES, 131 C.ICLS. III, THE COURT OF CLAIMS CONCLUDED THAT A NAVAL RESERVE OFFICER GRANTED RETIRED PAY UNDER TITLE III OF THE ACT OF JUNE 29, 1948, WAS "RETIRED" WITHIN THE MEANING OF SECTION 412 (A) OF THE OFFICER PERSONNEL ACT OF AUGUST 7, 1947, 61 STAT. 874, 34 U.S.C. 410N, AND THUS WAS ENTITLED TO RETIRED PAY ON THE BASIS PROVIDED IN THE LATTER ACT. IT WOULD APPEAR PROPER, THEREFORE, TO CONSIDER THAT OFFICERS WHO UNDER THE INDICATED CIRCUMSTANCES WERE GRANTED RETIRED PAY UNDER TITLE III OF THE 1948 ACT ARE "RETIRED WITH PAY" WITHIN THE MEANING OF THE ACT OF AUGUST 11, 1955. ACCORDINGLY, YOUR QUESTION IS ANSWERED IN THE AFFIRMATIVE. FURTHER DECISION IS REQUESTED AS TO WHETHER MEMBERS SEPARATED FROM ACTIVE DUTY IN ONE GRADE FOR THE PURPOSE OF RETIREMENT TO BE EFFECTED IN ANOTHER, WHO ARE SO SEPARATED PRIOR TO THE ACTUAL DAY OF RETIREMENT FOLLOWING NOT LESS THAN EIGHT YEARS OF CONTINUOUS ACTIVE DUTY, ARE ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES TO A HOME OF SELECTION UNDER THE ACT OF AUGUST 11, 1955, AND IF SO, WHETHER THE GRADE LAST HELD ON ACTIVE DUTY OR THAT IN WHICH RETIRED SHOULD BE USED IN DETERMINING THE AUTHORIZED HOUSEHOLD GOODS WEIGHT ALLOWANCE.

CONSIDERING THAT AUTHORIZATION FOR TRAVEL AND TRANSPORTATION ALLOWANCES UPON SEPARATION FROM ACTIVE DUTY IS PROVIDED IN SECTION 303 OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, AS AN ADJUNCT TO THE ACTIVE DUTY FROM WHICH RELEASED, RATHER THAN TO A STATUS SUBSEQUENTLY ACQUIRED, THE CONCLUSION APPEARS TO BE REQUIRED THAT THE RANK OR GRADE IN WHICH SERVING UPON SEPARATION FROM THE ACTIVE-DUTY STATUS, RATHER THAN THAT ACQUIRED WHEN RETIRED, SHOULD GOVERN WITH RESPECT TO THE RIGHT TO SHIPMENT OF HOUSEHOLD GOODS UNDER THE CIRCUMSTANCES OF THE QUESTION PRESENTED. SEE B- 121780, APRIL 29, 1955. WHILE SOME LANGUAGE USED IN OUR DECISION OF FEBRUARY 1, 1954, B 115626, IS CONTRARY TO THE VIEWS EXPRESSED ABOVE, THE CONCLUSION IN THAT CASE--- THAT THE CLAIMANT WAS ENTITLED TO REIMBURSEMENT FOR HIS DEPENDENT WIFE'S TRAVEL TO THE HOME SELECTED BY HIM UPON RETIREMENT--- IS NOT INCONSISTENT WITH SUCH VIEWS. THE STATEMENT IN THE DECISION OF FEBRUARY 1, 1954, THAT THE CLAIMANT--- RETIRED IN THE RANK OF CHIEF WARRANT OFFICER WHILE SERVING ON ACTIVE DUTY AS A MASTER SERGEANT--- WAS ENTITLED TO THE TRAVEL ALLOWANCES AUTHORIZED FOR A CHIEF WARRANT OFFICER UPON RETIREMENT, WAS NOT NECESSARY TO THE CONCLUSION THAT HE WAS ENTITLED TO TRANSPORTATION OF HIS DEPENDENTS TO A SELECTED HOME. SINCE A MASTER SERGEANT HAS THE SAME RIGHT TO SELECT A HOME UPON RETIREMENT AS A CHIEF WARRANT OFFICER AND IT IS CLEAR THAT HE WAS RETIRED FROM AN ACTIVE- DUTY STATUS WHILE SERVING AS A MASTER SERGEANT, SUCH STATEMENT MAY BE DISREGARDED IN THE SETTLEMENT OF CLAIMS. WHERE A MEMBER'S ACTIVE-DUTY STATUS AS A MASTER SERGEANT IN THE REGULAR ARMY IS TERMINATED BY RETIREMENT IN AN OFFICER GRADE UNDER SECTIONS 402 AND 409 OF THE CAREER COMPENSATION ACT, 63 STAT. 816, 823, 37 U.S.C. 272, 279, THE WEIGHT OF HOUSEHOLD GOODS WHICH MAY BE SHIPPED AT GOVERNMENT EXPENSE INCIDENT TO SUCH RETIREMENT IS THAT AUTHORIZED FOR A MASTER SERGEANT.

UNDER THE UNIFORM RETIREMENT DATE ACT OF APRIL 23, 1930, 46 STAT. 253, 5 U.S.C. 47A, THE EFFECTIVE DATE OF ALL RETIREMENTS AUTHORIZED BY LAW FOR FEDERAL PERSONNEL, INCLUDING MILITARY PERSONNEL, FOR WHATEVER CAUSE RETIRED, IS THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH THE RETIREMENT WOULD OTHERWISE BE EFFECTIVE. PRESUMABLY, THE SEPARATIONS FROM ACTIVE DUTY FOR THE PURPOSE OF RETIREMENT TO WHICH REFERENCE IS MADE IN THIS QUESTION, WOULD INVOLVE SITUATIONS WHERE ACTUAL RETIREMENT IS DELAYED FOLLOWING THE SEPARATION FROM ACTIVE DUTY, ONLY BECAUSE OF THE REQUIREMENTS OF THAT ACT. SINCE IT APPEARS THAT THE SEPARATIONS WOULD BE EFFECTED FOR THE PURPOSE OF RETIREMENT ON THE DAY BEFORE THE DETERMINATED DATE OF RETIREMENT, BUT FOR SUCH STATUTORY DELAY, THE RESULTING RETIREMENTS MAY BE CONSIDERED AS ACCOMPLISHED "IMMEDIATELY FOLLOWING AT LEAST EIGHT YEARS OF CONTINUOUS ACTIVE DUTY" WITHIN THE INTENT OF THE PROVISIONS OF THE 1955 ACT, AND MEMBERS SO SITUATED MAY BE CONSIDERED AS ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES TO A HOME OF SELECTION, IF OTHERWISE QUALIFYING, WITH THE RIGHT TO TRANSPORTATION OF HOUSEHOLD GOODS DETERMINED ON THE BASIS OF THE RANK OR GRADE LAST HELD ON ACTIVE DUTY.