B-136163, JULY 16, 1958, 38 COMP. GEN. 28

B-136163, JULY 16, 1958, 38 COMP. GEN. 28

MILITARY PERSONNEL - TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS ADVANCE - UNUSUAL OR EMERGENCY SITUATIONS REGULATIONS WHICH ARE AUTHORIZED BY LAW FOR THE PURPOSE OF FIXING THE CONDITIONS FOR ENTITLEMENT TO A SUBSTANTIAL RIGHT SHOULD BE WRITTEN SO THAT THEY CAN BE ADMINISTERED FAIRLY AND JUSTLY; SO THAT THE RIGHT CAN BE DETERMINED WITH CERTAINTY; AND SO THAT A REASONABLY ACCURATE AUDIT OF THE PAYMENTS MADE PURSUANT TO THE REGULATIONS IS POSSIBLE. REGULATIONS TO PROVIDE FOR THE ADVANCE RETURN OF DEPENDENTS AND HOUSEHOLD EFFECTS OF MEMBERS OF THE UNIFORMED SERVICES FROM OVERSEAS TO THE UNITED STATES IN UNUSUAL OR EMERGENCY CONDITIONS SHOULD SET FORTH IN CLEAR AND SPECIFIC TERMS ACTUAL CONDITIONS OF SITUATIONS OF AN EMERGENCY NATURE WHICH ARISE AS RESULT OF OVERSEAS DUTY AS DISTINGUISHED FROM DUTY IN THE UNITED STATES; THEY SHOULD PROVIDE FOR A DETERMINATION BY THE OVERSEAS COMMANDER OR HIGHER AUTHORITY THAT THE FACTS COME WITHIN THE SITUATIONS DESCRIBED, SUPPORTED BY A STATEMENT OF FACTS; THEY SHOULD AUTHORIZE TRANSPORTATION ONLY IN THOSE CASES WHEN THERE IS A REASONABLE RELATIONSHIP BETWEEN THE FACTS AND DESTINATION TO WHICH TRAVEL IS REQUESTED, AND, FURTHER, THEY SHOULD REQUIRE THE USE OF GOVERNMENT TRANSPORTATION IF IT IS AVAILABLE. ALTHOUGH THE SITUATIONS DESCRIBED IN THE REGULATIONS PROVIDING FOR THE ADVANCE RETURN OF DEPENDENTS AND HOUSEHOLD EFFECTS OF MEMBERS OF THE UNIFORMED SERVICES FROM OVERSEAS WITH RESPECT TO "SERIOUS ILLNESS AMONG DEPENDENTS REQUIRING SPECIALIZED TREATMENT NOT AVAILABLE AT THE DUTY TATION" AND "SERIOUS ADVERSE EFFECT OF WEATHER, CLIMATE, OR LIVING CONDITIONS ON THE HEALTH OF DEPENDENTS" JUSTIFY RETURN AT GOVERNMENT EXPENSE PROVIDED THAT THE DETERMINATIONS ARE SUPPORTED BY A STATEMENT OF THE MEDICAL OFFICER AS TO THE SERIOUSNESS OF THE ILLNESS, THE ABSENCE OF MEDICAL TREATMENT, AND THAT THE ADVERSE EFFECTS AMOUNT TO ILLNESS, THE SITUATIONS DESIGNATED AS "FINANCIAL DIFFICULTIES" AND "MARITAL DIFFICULTIES" ARE NOT CONDITIONS JUSTIFYING GIVING OVERSEAS MEMBERS PREFERENTIAL BENEFITS OVER MEMBERS IN THE UNITED STATES, AND, ALSO, RETURN FOR LACK OF HOUSING FACILITIES AND EDUCATIONAL FACILITIES ARE MATTERS WHICH SHOULD BE DETERMINED BEFORE THE MEMBER GOES OVERSEAS.

TO THE SECRETARY OF THE NAVY, JULY 16, 1958:

FURTHER REFERENCE IS MADE TO LETTER OF APRIL 29, 1958, FROM THE ASSISTANT SECRETARY OF THE NAVY, PERSONNEL AND RESERVE FORCES, SUBMITTING FOR OUR CONSIDERATION PROPOSED CHANGES IN PARAGRAPHS 7009-3 AND 8010-2 OF THE JOINT TRAVEL REGULATIONS, RELATING TO THE RETURN UNDER UNUSUAL OR EMERGENCY CIRCUMSTANCES OF DEPENDENTS AND HOUSEHOLD EFFECTS OF MEMBERS OF THE UNIFORMED SERVICES FROM OVERSEAS STATIONS TO THE UNITED STATES PRIOR TO ORDERS DIRECTING RETURN TO THE MEMBERS.

SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 802, 814, 37 U.S.C. 253 (C), PROVIDES IN PART 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 IN CONNECTION WITH A CHANGE OF STATION (WHETHER TEMPORARY OR PERMANENT) MEMBERS SHALL BE ENTITLED TO TRANSPORTATION (INCLUDING PACKING, CRATING, DRAYAGE, TEMPORARY STORAGE, AND UNPACKING) OF BAGGAGE AND HOUSEHOLD EFFECTS, OR REIMBURSEMENT THEREFOR, TO AND FROM SUCH LOCATIONS AND WITHIN SUCH WEIGHT ALLOWANCES AS MAY BE PRESCRIBED BY THE SECRETARIES. IT IS ALSO PROVIDED AS FOLLOWS:

* * * WHEN ORDERS DIRECTING A CHANGE OF PERMANENT STATION FOR THE MEMBER CONCERNED HAVE NOT BEEN ISSUED, OR WHEN SUCH ORDERS HAVE BEEN ISSUED BUT ARE OF SUCH A NATURE THAT THEY CANNOT BE USED AS AUTHORITY FOR TRANSPORTATION OF DEPENDENTS AND BAGGAGE AND HOUSEHOLD EFFECTS, THE SECRETARIES CONCERNED MAY, NEVERTHELESS, AUTHORIZE THE MOVEMENT OF THE DEPENDENTS AND BAGGAGE AND HOUSEHOLD EFFECTS AND PRESCRIBE TRANSPORTATION IN KIND, REIMBURSEMENT THEREFOR, OR A MONETARY ALLOWANCE IN LIEU THEREOF AS AUTHORIZED IN THIS SUBSECTION, AS THE CASE MAY BE, ONLY UNDER UNUSUAL OR EMERGENCY CIRCUMSTANCES, INCLUDING BUT NOT LIMITED TO, (1) CIRCUMSTANCES WHEN DUTY IS BEING PERFORMED BY SUCH MEMBER AT PLACES DESIGNATED BY THE SECRETARY CONCERNED AS WITHIN ZONES FROM WHICH DEPENDENTS SHOULD BE EVACUATED, (2) CIRCUMSTANCES WHEN ORDERS WHICH DIRECT TEMPORARY DUTY TRAVEL OF SUCH MEMBER DO NOT PROVIDE FOR RETURN TO THE PERMANENT STATION OR DO NOT SPECIFY OR IMPLY ANY LIMIT TO THE PERIOD OF ABSENCE FROM THE PERMANENT STATION, OR (3) CIRCUMSTANCES WHEN SUCH MEMBERS ARE SERVING ON PERMANENT DUTY AT STATIONS OUTSIDE THE CONTINENTAL UNITED STATES OR IN ALASKA, OR ON SEA DUTY. * * *

AN EXPLANATION OF THE LANGUAGE APPEARING IN THE ABOVE-QUOTED PROVISION OF THE STATUTE IS FOUND AT PAGE 1714 IN THE REPORT (1NO. 47) OF THE HEARINGS BEFORE A SUBCOMMITTEE OF THE COMMITTEE ON ARMED SERVICES, HOUSE OF REPRESENTATIVES, EIGHTY-FIRST CONGRESS, FIRST SESSION, ON H.R. 2553, A FORERUNNER OF H.R. 5007 WHICH BECAME THE CAREER COMPENSATION ACT OF 1949, AS FOLLOWS:

UNDER THE PROPOSED SECTION, THE PRESIDENT IS REQUIRED TO AUTHORIZE TRANSPORTATION OR REIMBURSEMENT THEREFOR, OR A MONETARY ALLOWANCE IN LIEU THEREOF, UNDER UNUSUAL AND EMERGENCY CIRCUMSTANCES WHERE ORDERS DIRECTING A PERMANENT CHANGE OF STATION HAVE NOT BEEN ISSUED OR WHEN THEY HAVE BEEN ISSUED BUT ARE OF SUCH A NATURE THAT THEY CANNOT BE USED AS AN AUTHORITY FOR TRANSPORTATION. THE CIRCUMSTANCES UNDER WHICH SUCH AUTHORITY SHALL BE GRANTED INCLUDE: (A) EVACUATION OF DEPENDENTS FROM DANGEROUS ZONES; (B) CIRCUMSTANCES WHEN ORDERS DIRECTING TEMPORARY DUTY DO NOT PROVIDE FOR RETURN TO THE PERMANENT STATION OR DO NOT SPECIFY OR IMPLY ANY LIMIT AS TO THE PERIOD OF ABSENCE FROM THE PERMANENT STATION; AND (C) CIRCUMSTANCES WHEN MEMBERS ARE SERVING ON PERMANENT DUTY STATIONS OUTSIDE THE CONTINENTAL UNITED STATES OR IN ALASKA OR ON SEA DUTY.

ALL OF THE ABOVE MENTIONED ARE CONTAINED IN EXISTING LAW AND ARE REPEATED IN THIS SECTION IN ORDER TO TAKE CARE OF THE SITUATIONS WHICH MAY ARISE INVOLVING THE NEED FOR SUDDEN EVACUATION OF DEPENDENTS FROM A DANGEROUS ZONE WHERE THE MEMBER WILL REMAIN BUT THIS (SIC) DEPENDENTS WILL BE REMOVED (THUS NOT INVOLVING A CHANGE OF STATION FOR THE MEMBER). IT ALSO TAKES CARE OF THE SITUATION WHERE ORDERS ARE ISSUED DIRECTING TEMPORARY DUTY FOR UNSPECIFIED PERIODS OF TIME AND WITHOUT A PROVISION IN THEIR ORDERS FOR RETURN TO THEIR PERMANENT DUTY STATION. UNLESS A SPECIFIC PROVISION OF LAW PERMITS THE TRANSPORTATION OF DEPENDENTS SUCH A MEMBER WOULD NOT BE AUTHORIZED TRANSPORTATION OF HIS DEPENDENTS AND HOUSEHOLD EFFECTS BECAUSE OF HIS TEMPORARY DUTY ORDERS EVEN THOUGH SUCH ORDERS ACTUALLY AMOUNT TO A PERMANENT CHANGE OF STATION. THE OTHER CIRCUMSTANCES REFERRED TO IN THE SECTION IS THAT SITUATION WHERE AN OFFICER HAS BEEN ORDERED TO AN OVERSEAS DUTY WHERE HIS DEPENDENTS ARE NOT AUTHORIZED TO ACCOMPANY HIM. AFTER ARRIVAL AT THE NEW DUTY STATION, THE BAN ON THE ADMISSION OF DEPENDENTS TO SUCH AN AREA MAY BE LIFTED BUT BECAUSE THE MEMBER WILL REMAIN IN THAT STATION AND NO NEW ORDERS ARE ISSUED, THE DEPENDENTS WOULD NOT OTHERWISE BE ALLOWED TRANSPORTATION AT GOVERNMENT EXPENSE TO SUCH STATION UNLESS THIS PROVISION, CONTAINED IN THE PROPOSED SECTION, IS ENACTED.

PARAGRAPHS 7009-3 AND 8010-2 AS PRESENTLY PUBLISHED IN THE JOINT TRAVEL REGULATIONS, ISSUED UNDER THE ABOVE PROVISIONS OF LAW, PROVIDE FOR THE ADVANCE RETURN OF DEPENDENTS AND HOUSEHOLD EFFECTS OF MEMBERS OF THE UNIFORMED SERVICES FROM OVERSEAS TO THE UNITED STATES, IN THE CIRCUMSTANCES AND WITHIN THE LIMITATIONS THERE PRESCRIBED. THE PROPOSED CHANGES IN PARAGRAPHS 7009-3 AND 8010-2 OF THE REGULATIONS ARE AS FOLLOWS:

ADVANCE RETURN OF DEPENDENTS TO THE UNITED STATES. UNDER EMERGENCY OR UNUSUAL CIRCUMSTANCES OF A COMPASSIONATE NATURE, (SUCH AS: A FAMILY CATASTROPHE; SERIOUS ILLNESSES AMONG DEPENDENTS REQUIRING SPECIALIZED TREATMENT NOT AVAILABLE AT HIS DUTY STATION; SERIOUS ADVERSE EFFECTS OF WEATHER, CLIMATE, OR LIVING CONDITIONS ON THE HEALTH OF DEPENDENTS; DIRE FINANCIAL DIFFICULTIES ARISING AFTER DEPARTURE OF DEPENDENTS FROM THE UNITED STATES WHICH MAKE IT IMPOSSIBLE FOR THE MEMBER TO ADEQUATELY SUPPORT HIS DEPENDENTS UNLESS THEY ARE RETURNED TO THE UNITED STATES; OR SIMILAR CASES OF COMPARABLE MAGNITUDE), A MEMBER SERVING ON DUTY OUTSIDE THE UNITED STATES, REGARDLESS OF RANK OR GRADE, MAY BE FURNISHED TRANSPORTATION FOR HIS DEPENDENTS FROM THE MEMBER'S DUTY STATION OUTSIDE THE UNITED STATES TO AN APPROPRIATE DESTINATION IN THE UNITED STATES WITHOUT A PERMANENT CHANGE OF STATION FOR THE MEMBER CONCERNED. THE ORDER -ISSUING AUTHORITY WILL CITE THIS SUBPARAGRAPH IN THE ORDERS AUTHORIZING ADVANCE RETURN OF DEPENDENTS AND WILL DETERMINE THAT THERE EXISTS A REASONABLE RELATIONSHIP BETWEEN THE CONDITIONS AND CIRCUMSTANCES OF THE CASE AND THE DESTINATION TO WHICH TRAVEL IS AUTHORIZED. VOUCHERS COVERING PAYMENTS TO CARRIERS OR REIMBURSEMENT TO MEMBERS FOR COMMERCIAL TRANSPORTATION FOR TRANSOCEANIC TRAVEL DEPENDENTS UNDER THIS SUBPARAGRAPH WILL BE SUPPORTED BY THE STATEMENT OF THE ORDER-ISSUING AUTHORITY CONTAINING THE PERTINENT FACTS IN THE CASE WHICH DICTATED THE REQUIREMENT FOR ADVANCE RETURN OF DEPENDENTS. UPON RETURN OF THE MEMBER TO THE UNITED STATES UNDER PERMANENT CHANGE OF STATION ORDERS, TRANSPORTATION OF DEPENDENTS OF MEMBERS ENTITLED THERETO IN ACCORDANCE WITH PAR. 7000 IS AUTHORIZED FROM THE PLACE TO WHICH THEY WERE TRANSPORTED UNDER THIS SUBPARAGRAPH TO THE MEMBER'S NEW DUTY STATION OR THE PLACE SELECTED BY THE MEMBER FOR PERSONAL TRAVEL IN ACCORDANCE WITH PAR. 4157 OR 4158. RETURN TRANSPORTATION TO THE MEMBER'S OVERSEAS DUTY STATION OR TO ANOTHER OVERSEAS DUTY STATION FOR DEPENDENTS OF MEMBERS ENTITLED THERETO IN ACCORDANCE WITH PAR. 7000 MAY BE AUTHORIZED BY THE SECRETARY OF THE SERVICE CONCERNED OR HIS DESIGNATED REPRESENTATIVE AFTER DUE CONSIDERATION OF THE REMAINING LENGTH OF THE MEMBERS OVERSEAS DUTY TOUR AND THE REASONS WHICH REQUIRED THE ADVANCE RETURN OF DEPENDENTS TO THE UNITED STATES UNDER THIS PARAGRAPH.

8010-2 REVISED

2. ADVANCE RETURN OF HOUSEHOLD GOODS TO THE UNITED STATES. ORDERS AUTHORIZING TRANSPORTATION OF DEPENDENTS TO THE UNITED STATES UNDER PAR. 7009-3 MAY ALSO AUTHORIZE SHIPMENT OF HOUSEHOLD GOODS WITHIN AUTHORIZED WEIGHT ALLOWANCES TO AN APPROPRIATE LOCATION IN THE UNITED STATES. MEMBERS FOR WHOM NO WEIGHT ALLOWANCES ARE PRESCRIBED IN THE TABLE APPEARING IN PAR. 8001 WILL BE ENTITLED TO THE WEIGHT ALLOWANCES OF MEMBERS IN PAY GRADE E-4 WITH MORE THAN 4 YEARS SERVICE. SUBSEQUENT SHIPMENTS OF HOUSEHOLD GOODS IN THESE CASES IS RESTRICTED TO THOSE MEMBERS FOR WHOM A WEIGHT ALLOWANCE IS PRESCRIBED IN PAR. 8001 AND, IN THE CASE OF RESHIPMENT TO A LOCATION OUTSIDE THE UNITED STATES, UPON AUTHORIZATION OF THE SECRETARY CONCERNED OR HIS DESIGNATED REPRESENTATIVE.

THE LEGISLATIVE HISTORY QUOTED ABOVE AND THE EXAMPLES LISTED IN THE LAW AS COMING WITHIN THE TERM "UNUSUAL OR EMERGENCY CIRCUMSTANCES" WOULD INDICATE THAT THAT TERM AS USED IN THE STATUTE HAD REFERENCE TO CONDITIONS OF A GENERAL NATURE ARISING AT OVERSEAS DUTY STATIONS WHICH CANNOT READILY BE FORESEEN AND WHICH CHANGE IN AN UNEXPECTED MANNER. HENCE, IT IS NOT CLEAR THAT CONGRESS, IN ENACTING THE STATUTE, INTENDED TO AUTHORIZE THE ADVANCE RETURN AT GOVERNMENT EXPENSE OF DEPENDENTS AND HOUSEHOLD EFFECTS OF MEMBERS ON AN INDIVIDUAL CASE BASIS MERELY BECAUSE THE MEMBER ENCOUNTERS FINANCIAL DIFFICULTIES, HAS MARITAL TROUBLES, DESIRES TO RETURN DEPENDENTS TO THE UNITED STATES TO ATTEND SCHOOL, OR BECAUSE OF ILLNESS OF RELATIVES, ETC. VIRTUALLY ALL MEMBERS MAY BE FACED WITH ONE OR MORE OF SUCH PROBLEMS DURING THEIR SERVICE. THE LAW, HOWEVER, PROVIDES THAT THE UNUSUAL OR EMERGENCY CIRCUMSTANCES ARE NOT LIMITED TO THE CATEGORIES SPECIFICALLY LISTED AND WE HAVE RECOGNIZED THAT IT IS NOT SO RESTRICTIVE AS TO REQUIRE A CONCLUSION THAT THE SECRETARIES CONCERNED ARE NOT AUTHORIZED TO PRESCRIBE BY APPROPRIATE REGULATION OTHER CATEGORIES IN WHICH THE EARLY RETURN OF DEPENDENTS AND HOUSEHOLD EFFECTS WOULD BE AUTHORIZED. WE HAVE HELD THAT CONDITIONS OF A PERSONAL NATURE SUCH AS FINANCIAL DIFFICULTIES, ILLNESS OF A MOTHER IN-LAW, INADEQUATE EDUCATIONAL FACILITIES, DEATH OF A BROTHER-IN-LAW, OR RETURN OF A DEPENDENT TO ATTEND SCHOOL, MAY NOT BE CONSIDERED AS UNUSUAL OR EMERGENCY CIRCUMSTANCES AS CONTEMPLATED BY THE STATUTE. SEE B-126678, DATED SEPTEMBER 4, 1956; B- 130385, DATED FEBRUARY 15, 1957; B 126196, DATED DECEMBER 7, 1955; AND B- 130184, DATED JANUARY 10, 1957.

THE AUDIT DIFFICULTIES WHICH HAVE DEVELOPED UNDER THE CURRENT REGULATIONS RELATING TO ENTITLEMENT OF MEMBERS TO THE EARLY RETURN AT GOVERNMENT EXPENSE OF DEPENDENTS AND HOUSEHOLD EFFECTS FROM OVERSEAS STATIONS AROSE CHIEFLY BECAUSE OF THE VAGUE AND INDEFINITE PROVISIONS IN THOSE REGULATIONS. THE PROPOSED CHANGES IN THE REGULATIONS WOULD APPEAR TO CONTINUE THESE DIFFICULTIES. THE REGULATIONS AUTHORIZED BY THE LAW ARE FOR THE PURPOSE OF FIXING THE BASIC ENTITLEMENT OF MEMBERS IN THE MILITARY SERVICE TO A SUBSTANTIAL RIGHT AND THAT RIGHT DEPENDS ENTIRELY UPON MEETING THE CONDITIONS OF THOSE REGULATIONS. SUCH A REGULATION SHOULD BE WRITTEN SO THAT IT CAN BE ADMINISTERED FAIRLY AND JUSTLY; SO THAT THE MEMBER'S RIGHTS CAN BE DETERMINED WITH CERTAINTY, AND SO THAT A REASONABLY ACCURATE AUDIT OF THE PAYMENTS MADE PURSUANT TO THE REGULATION IS POSSIBLE. TO ACCOMPLISH THAT PURPOSE, THE USE OF PHRASES SUCH AS: "OF A COMPASSIONATE NATURE; " "FAMILY CATASTROPHE; " "DIRE FINANCIAL DIFFICULTIES; " AND "OR SIMILAR CASES OF COMPARABLE MAGNITUDE" SHOULD BE AVOIDED AS TOO VAGUE AND UNCERTAIN TO PERMIT THE REGULATIONS TO BE ADMINISTERED.

WE ARE OF THE OPINION THAT BASICALLY THE STATUTE AUTHORIZES THE SECRETARIES CONCERNED TO ISSUE REGULATIONS PROVIDING FOR THE EARLY RETURN OF DEPENDENTS AND HOUSEHOLD EFFECTS OF MILITARY PERSONNEL ONLY BECAUSE OF ACTUAL CONDITIONS OF AN EMERGENCY NATURE ARISING AT OVERSEAS DUTY STATIONS WHICH JUSTIFY SUCH RETURN AND WHICH GENERALLY COULD NOT ARISE, OR ARE MOST UNLIKELY TO ARISE IN THE CASE OF MEMBERS SERVING IN THE UNITED STATES FOR WHEN TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS GENERALLY IS AUTHORIZED ONLY UPON THE ISSUANCE OF PERMANENT CHANGE OF STATION ORDERS. EACH SITUATION DETERMINED BY THE SECRETARIES AS COMING WITHIN THAT BASIC CONCEPT SHOULD BE DESCRIBED IN CLEAR AND SPECIFIC TERMS AND IT SHOULD BE PROVIDED THAT THE OVERSEAS COMMANDER OR HIGHER AUTHORITY SHOULD DETERMINE IN EACH CASE THAT THE FACTS INVOLVED IN THAT CASE COME WITHIN ONE OF THOSE SITUATIONS DESCRIBED. ANY SUCH DETERMINATION BY AN OVERSEAS COMMANDER SHOULD BE SUPPORTED BY A STATEMENT OF FACTS ON WHICH HIS DETERMINATION IS BASED. THE REGULATIONS SHOULD AUTHORIZE TRANSPORTATION ONLY IN THOSE CASES WHERE THERE IS SOME REASONABLE RELATIONSHIP BETWEEN THE FACTS IN THE CASE AND THE DESTINATION TO WHICH TRAVEL IS REQUESTED. ALSO THE REGULATIONS SHOULD MAKE IT CLEAR THAT THE USE OF GOVERNMENT TRANSPORTATION IS REQUIRED, IF IT IS AVAILABLE.

IN AN EFFORT TO CLARIFY THE POSITION OF THIS OFFICE WITH RESPECT TO THE REGULATIONS CONCERNING EARLY RETURN OF DEPENDENTS AND HOUSEHOLD EFFECTS TO THE UNITED STATES FROM OVERSEAS STATIONS, WE HAVE EXAMINED THE PRESENT REGULATIONS CONTAINED IN PARAGRAPH 7009-3, JOINT TRAVEL REGULATIONS, AS WELL AS THE PROPOSED CHANGE TO THAT PARAGRAPH, AND IT IS OUR OPINION THAT WITH THE EXCEPTIONS DISCUSSED BELOW ALL OF THE CATEGORIES LISTED IN THE CURRENT REGULATIONS AND IN THE PROPOSED REGULATIONS ARE TOO INDEFINITE AND VAGUE TO PERMIT REASONABLE ADMINISTRATION OR AUDIT. THE CATEGORY "SERIOUS ILLNESSES AMONG DEPENDENTS REQUIRING SPECIALIZED TREATMENT NOT AVAILABLE AT HIS DUTY STATION" IN THE PROPOSED REGULATION, IF SUPPORTED BY A STATEMENT FROM A MEDICAL OFFICER AS TO THE SERIOUSNESS OF THE ILLNESS AND THE ABSENCE OF APPROPRIATE MEDICAL TREATMENT AND IF THE OTHER CONDITIONS SUGGESTED ABOVE ARE MET, WOULD APPEAR TO BE CLEAR AND UNAMBIGUOUS. LIKEWISE NO OBJECTION IS PERCEIVED TO THE CATEGORY "SERIOUS ADVERSE EFFECT OF WEATHER, CLIMATE, OR LIVING CONDITIONS ON THE HEALTH OF DEPENDENTS" IF THE "ADVERSE EFFECTS" ARE SUCH THAT THEY AMOUNT TO AN ILLNESS WITHIN THE FIRST-MENTIONED CATEGORY. BUT IN OUR VIEW, FINANCIAL DIFFICULTIES AND MARITAL DIFFICULTIES ARE NOT CONDITIONS WHICH THE LAW INTENDED TO BE USED AS A BASIS FOR GIVING MEMBERS ON FOREIGN SERVICE PREFERENTIAL TREATMENT OVER MEMBERS ON DOMESTIC SERVICE IN THE MATTER OF TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS. MOREOVER, IN GENERAL, THE LACK OF APPROPRIATE HOUSING FACILITIES AND EDUCATIONAL FACILITIES AT THE MEMBER'S OVERSEAS STATION ARE MATTERS WHICH USUALLY COULD HAVE BEEN DETERMINED BEFORE THE MEMBER DEPARTED FOR SUCH STATION.

IT IS NOTED THAT THE PROPOSED REGULATIONS AUTHORIZE TRANSPORTATION TO A DESIGNATED POINT IN THE UNITED STATES RATHER THAN THE PORT OF DEBARKATION. THAT CHANGE WOULD APPEAR TO BE WITHIN THE SCOPE OF THE LAW.

PAYMENTS WHICH HAVE BEEN MADE UNDER THE CURRENT REGULATIONS (PARAGRAPH 7009-3, JOINT TRAVEL REGULATIONS) WILL NOT BE QUESTIONED IN THE AUDIT OF DISBURSING OFFICERS' ACCOUNTS IF THERE HAS BEEN A REASONABLE COMPLIANCE WITH THE CONDITIONS OF THAT PARAGRAPH. HOWEVER, WE ARE CONSTRAINED TO ADVISE YOU THAT SUCH PARAGRAPH SHOULD BE CHANGED AS SOON AS PRACTICABLE TO ACCORD WITH THE INTENT OF THE STATUTE AS INDICATED ABOVE.