B-140090, SEPTEMBER 18, 1959, 39 COMP. GEN. 206

B-140090: Sep 18, 1959

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1959: REFERENCE IS MADE TO LETTER OF JUNE 16. SUBJECT TO THE CONDITION THAT SUCH TRANSPORTATION AND SUBSISTENCE WOULD BE AUTHORIZED ONLY WHERE THESE BENEFITS ARE NOT OTHERWISE PROVIDED BY FEDERAL. IF EITHER OF THESE QUESTIONS IS ANSWERED IN THE AFFIRMATIVE. IT IS PROPOSED TO AUTHORIZE TRANSPORTATION AND SUBSISTENCE FROM PLACE OF CONFINEMENT TO HOME OF RECORD. TO ALLOW TRANSPORTATION AND SUBSISTENCE TO HOME OF RECORD IN THE UNITED STATES WHEN RELEASE FROM CONFINEMENT IS OUTSIDE THE UNITED STATES. SHALL BE ENTITLED TO RECEIVE SUCH TRAVEL AND TRANSPORTATION ALLOWANCES AS ARE PROVIDED IN SUBSECTION (A) OF THIS SECTION. THE QUESTION FOR CONSIDERATION HERE IS WHETHER THE TERM . THERE WAS IN EFFECT THE ACT OF APRIL 27.

B-140090, SEPTEMBER 18, 1959, 39 COMP. GEN. 206

MILITARY PERSONNEL - TRAVEL - PRISONERS DISCHARGED FROM CIVIL PRISONS THE TERM "DISCHARGED PRISONERS" IN SECTION 303 (E) OF THE CAREER COMPENSATION ACT, WHICH DEFINES THE CLASSES OF MILITARY PERSONNEL ENTITLED TO TRAVEL AND TRANSPORTATION AT GOVERNMENT EXPENSE, HAS REFERENCE TO PRISONERS DISCHARGED FROM UNITED STATES MILITARY CONFINEMENT FACILITIES RATHER THAN TO FORMER MEMBERS DISCHARGED UNDER OTHER THAN HONORABLE CONDITIONS UPON RELEASE FROM CONFINEMENT IN CIVILIAN PRISONS; THEREFORE, THE TRAVEL AND TRANSPORTATION AUTHORITY IN SECTION 303 OF THE CAREER COMPENSATION ACT OF 1949 MAY NOT BE USED AS AUTHORITY FOR FURNISHING TRANSPORTATION AND SUBSISTENCE AT GOVERNMENT EXPENSE FOR FORMER MEMBERS RELEASED FROM CIVILIAN PRISONS.

TO THE SECRETARY OF THE AIR FORCE, SEPTEMBER 18, 1959:

REFERENCE IS MADE TO LETTER OF JUNE 16, 1959, AND ENCLOSURES, FROM THE ASSISTANT SECRETARY OF THE AIR FORCE, PDTATAC CONTROL NO. 59-7, REQUESTING A DECISION AS TO WHETHER THE JOINT TRAVEL REGULATIONS MAY BE AMENDED IN THE MANNER DESCRIBED IN THE LETTER AS FOLLOWS:

MAY THE JOINT TRAVEL REGULATIONS BE AMENDED TO AUTHORIZE TRANSPORTATION AND SUBSISTENCE WITHIN THE UNITED STATES OF FORMER MEMBERS DISCHARGED WHILE IN CONFINEMENT IN OTHER THAN UNITED STATES MILITARY CONFINEMENT FACILITIES AND SUBSEQUENTLY RELEASED FROM SUCH CONFINEMENT? OR, IN THE ALTERNATIVE, MAY THE JOINT TRAVEL REGULATIONS BE AMENDED IN THE FOREGOING MANNER, SUBJECT TO THE CONDITION THAT SUCH TRANSPORTATION AND SUBSISTENCE WOULD BE AUTHORIZED ONLY WHERE THESE BENEFITS ARE NOT OTHERWISE PROVIDED BY FEDERAL, STATE OR LOCAL LAW? IF EITHER OF THESE QUESTIONS IS ANSWERED IN THE AFFIRMATIVE, IT IS PROPOSED TO AUTHORIZE TRANSPORTATION AND SUBSISTENCE FROM PLACE OF CONFINEMENT TO HOME OF RECORD. THIS WOULD ALSO EXTEND THE PRESENT AUTHORIZATION CONTAINED IN PARAGRAPH 5303, JOINT TRAVEL REGULATIONS, TO ALLOW TRANSPORTATION AND SUBSISTENCE TO HOME OF RECORD IN THE UNITED STATES WHEN RELEASE FROM CONFINEMENT IS OUTSIDE THE UNITED STATES.

SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813, 37 U.S.C. 253 (A), AUTHORIZES THE PAYMENT, UNDER REGULATIONS TO BE PROMULGATED BY THE SECRETARIES CONCERNED, OF TRAVEL AND TRANSPORTATION ALLOWANCES, WITHIN SPECIFIED LIMITATIONS, GENERALLY ON THE BASIS OF TRAVEL BY MEMBERS OF THE UNIFORMED SERVICES PERFORMED WHILE IN AN ACTIVE DUTY STATUS ON PERMANENT CHANGE OF STATION, OR WHEN OTHERWISE AWAY FROM THEIR DESIGNATED POSTS OF DUTY ON PUBLIC BUSINESS, OR WHILE PROCEEDING TO THE FIRST DUTY STATION OR AWAY FROM THE LAST DUTY STATION INCIDENT TO ENTRANCE UPON OR DEPARTURE FROM ACTIVE MILITARY DUTY. SECTION 303 (E) OF THE ACT, 37 U.S.C. 253 (E), PROVIDES AS FOLLOWS:

(E) CADETS OF THE UNITED STATES MILITARY ACADEMY, MIDSHIPMEN OF THE UNITED STATES NAVAL ACADEMY, CADETS OF THE UNITED STATES COAST GUARD ACADEMY, APPLICANTS FOR ENLISTMENT, REJECTED APPLICANTS, GENERAL PRISONERS, DISCHARGED PRISONERS, INSANE PATIENTS TRANSFERRED FROM MILITARY HOSPITALS TO OTHER HOSPITALS OR THEIR HOME, AND PERSONS DISCHARGED FROM SAINT ELIZABETHS HOSPITAL AFTER TRANSFER FROM ONE OF THE UNIFORMED SERVICES, SHALL BE ENTITLED TO RECEIVE SUCH TRAVEL AND TRANSPORTATION ALLOWANCES AS ARE PROVIDED IN SUBSECTION (A) OF THIS SECTION, AS MAY BE PRESCRIBED BY THE SECRETARIES CONCERNED, DUE CONSIDERATION BEING GIVEN TO THE RIGHTS OF THE GOVERNMENT AS WELL AS THOSE OF THE INDIVIDUAL IN THE PROMULGATION OF REGULATIONS PRESCRIBING SAID ALLOWANCES.

SECTION 303 (E) AUTHORIZES TRAVEL AND TRANSPORTATION ALLOWANCES (AS PROVIDED IN SUBSECTION (A) ( TO THE CLASSES OF PERSONS THERE DESIGNATED, INCLUDING "DISCHARGED PRISONERS," DUE CONSIDERATION TO BE GIVEN TO THE RIGHTS OF THE GOVERNMENT AS WELL AS THOSE OF THE INDIVIDUAL IN THE PROMULGATION OF REGULATIONS PRESCRIBING SAID ALLOWANCES. THE QUESTION FOR CONSIDERATION HERE IS WHETHER THE TERM ,DISCHARGED PRISONERS" AS USED IN SECTION 303 (E) MAY BE CONSTRUED AS INCLUDING PRISONERS DISCHARGED IN THE CIRCUMSTANCES DESCRIBED IN THE LETTER OF THE ASSISTANT SECRETARY.

PRIOR TO THE ENACTMENT OF THE CAREER COMPENSATION ACT OF 1949, THERE WAS IN EFFECT THE ACT OF APRIL 27, 1946, 60 STAT. 126, 37 U.S.C. 112D, SECTION 1 OF WHICH PROVIDED AS FOLLOWS:

* * * THAT ANY MEMBER OF THE MILITARY OR NAVAL FORCES WHO IS HEREAFTER SEPARATED FROM ACTIVE SERVICE UNDER CONDITIONS OTHER THAN HONORABLE MAY BE FURNISHED TRANSPORTATION IN KIND AT GOVERNMENT EXPENSE FROM THE PLACE OF SEPARATION FROM ACTIVE SERVICE TO THE PLACE AT WHICH HE ENTERED UPON ACTIVE SERVICE OR HOME OF RECORD: PROVIDED, THAT NO TRANSPORTATION WILL BE FURNISHED UNDER THIS SECTION TO ANY PERSON WHO IS IN CONFINEMENT PURSUANT TO SENTENCE OF A CIVIL COURT AT THE TIME OF SEPARATION FROM ACTIVE SERVICE.

THAT STATUTORY PROVISION WAS REPEALED BY SECTION 531-C (19) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 840.

THE CURRENT PROVISIONS OF PARAGRAPH 5305 OF THE JOINT TRAVEL REGULATIONS PROVIDE THAT:

A FORMER MEMBER OF THE UNIFORMED SERVICES WHO HAS BEEN DISCHARGED UNDER OTHER THAN HONORABLE CONDITIONS WHILE IN CONFINEMENT BY CIVIL AUTHORITIES (FEDERAL, STATE, COUNTY, OR LOCAL) WITHIN CONTINENTAL UNITED STATES WILL NOT BE ENTITLED TO TRANSPORTATION AND SUBSISTENCE UNDER THESE REGULATIONS UPON PAROLE OR RELEASE THEREFROM.

THE ENCLOSURES FORWARDED HERE WITH THE LETTER OF THE ASSISTANT SECRETARY INDICATE THAT, IN SOME INSTANCES, PERSONS WHO ARE RELEASED FROM CONFINEMENT IN CIVILIAN PRISONS DO NOT HAVE FUNDS WITH WHICH TO SECURE TRANSPORTATION TO THEIR HOMES, AND THAT THE CIVIL AUTHORITIES DO NOT ALWAYS PROVIDE SUCH TRANSPORTATION FOR THEM. THE LETTER EXPRESSES THE ADMINISTRATIVE VIEW THAT THE BASIC POLICY BEHIND THE ACT OF APRIL 27, 1946, WAS TO FURNISH TRANSPORTATION AT GOVERNMENT EXPENSE FOR ALL MEMBERS SEPARATED FROM THE SERVICE UNDER CONDITIONS OTHER THAN HONORABLE EXCEPT IN THOSE CASES WHERE SUCH TRANSPORTATION WAS PROVIDED FOR UNDER OTHER FEDERAL, STATE, OR LOCAL LAW. ON THAT BASIS, IT IS SUGGESTED THAT THE PROPOSED CHANGES IN THE JOINT TRAVEL REGULATIONS WOULD NOT APPEAR TO CONTRAVENE THE POLICY ESTABLISHED BY CONGRESS IN THE ENACTMENT OF THE ACT OF APRIL 27, 1946, AND HENCE WOULD COME WITHIN THE MEANING OF SECTION 303 (E) OF THE CAREER COMPENSATION ACT OF 1949.

SECTION 1 OF THE ACT OF APRIL 27, 1946, WHICH WAS REPEALED BY THE CAREER COMPENSATION ACT OF 1949, SPECIFICALLY PROVIDED "THAT NO TRANSPORTATION WILL BE FURNISHED UNDER THIS SECTION TO ANY PERSON WHO IS IN CONFINEMENT PURSUANT TO SENTENCE OF A CIVIL COURT AT THE TIME OF SEPARATION FROM ACTIVE SERVICE.' THERE IS NOTHING IN THE LEGISLATIVE HISTORY OF THE 1949 ACT TO AFFIRMATIVELY SUGGEST THAT IN ENACTING SECTION 303 (E) OF THE ACT CONGRESS INTENDED, BY THE USE OF THE TERM ,DISCHARGED PRISONERS," TO OBLIGATE THE GOVERNMENT TO FURNISH TRANSPORTATION HOME FOR FORMER MEMBERS DISCHARGED FROM CIVILIAN PRISONS IN CIRCUMSTANCES WHERE SUCH TRANSPORTATION WAS SPECIFICALLY PROHIBITED BY THE PRIOR ACT. THE TERM "DISCHARGED PRISONERS" AS USED IN SECTION 303 (E) OF THE 1949 ACT IS NOT DEFINED IN THAT ACT. WE BELIEVE, HOWEVER, THAT SUCH TERM MUST BE CONSTRUED AS MEANING ONLY PRISONERS DISCHARGED FROM UNITED STATES MILITARY CONFINEMENT FACILITIES, SINCE THE SENTENCING TO AND DISCHARGE OF MEMBERS FROM THOSE FACILITIES ARE UNDER THE JURISDICTION AND CONTROL OF APPROPRIATE OFFICERS OF THE UNITED STATES. ON THE OTHER HAND, WHERE A MEMBER IS DISCHARGED UNDER OTHER THAN HONORABLE CONDITIONS WHILE IN CONFINEMENT PURSUANT TO SENTENCE OF A CIVIL COURT, THE UNITED STATES GOVERNMENT HAS NO JURISDICTION OR CONTROL OVER HIS CONFINEMENT OR RELEASE THEREFROM, THAT BEING A MATTER COMPLETELY WITHIN THE JURISDICTION AND CONTROL OF THE CIVIL AUTHORITIES. HENCE, THE PROVISIONS OF SECTIONS 303 (A) AND 303 (E) OF THE CAREER COMPENSATION ACT OF 1949, MAY NOT BE CONSIDERED AS AUTHORITY FOR FURNISHING TRANSPORTATION AND SUBSISTENCE AT GOVERNMENT EXPENSE FOR FORMER MEMBERS UPON THEIR RELEASE FROM CIVILIAN PRISONS IN THE CIRCUMSTANCES HERE INVOLVED.

ON THE ABOVE BASIS, WE BELIEVE THAT THE CURRENT REGULATIONS (PARAGRAPH 5305, JOINT TRAVEL REGULATIONS), EXPRESS THE INTENT OF CONGRESS, AND THERE IS NO AUTHORITY FOR THEIR AMENDMENT IN THE MANNER PROPOSED.