B-142890, JUNE 13, 1960, 39 COMP. GEN. 837

B-142890, JUNE 13, 1960, 39 COMP. GEN. 837

OVERSEAS EMPLOYEES - TRANSPORTATION OF HOUSEHOLD EFFECTS - WEIGHT LIMITATION - ADVANCE RETURN OF DEPENDENTS HOUSEHOLD GOODS AND PERSONAL EFFECTS OF OVERSEAS EMPLOYEES WHICH ARE SHIPPED INCIDENT TO THE ADVANCE RETURN OF THE EMPLOYEE'S IMMEDIATE FAMILY WHEN THE EMPLOYEE HAS ACQUIRED ELIGIBILITY OR WHEN THE PUBLIC INTEREST REQUIRES THE RETURN OF THE FAMILY FOR HUMANITARIAN OR PERSONAL REASONS, PURSUANT TO SECTION 28 OF THE BUREAU OF BUDGET CIRCULAR A-4, IS APPLICABLE TO ALL OF THE EMPLOYEE'S EFFECTS WHEN NO TRANSFER OR SEPARATION IS ORDERED, AND THERE IS NO BASIS FOR CONSTRUING THE STATUTE AS PERMITTING THE USE OF A NEW AGGREGATE WEIGHT LIMITATION FOR EACH TOUR OF DUTY.

TO THE GOVERNOR OF THE CANAL ZONE, JUNE 13, 1960:

ON MAY 10, 1960, YOU REQUESTED OUR OPINION REGARDING CERTAIN QUESTIONS THAT HAVE ARISEN CONCERNING THE INTERPRETATION OF THE PROVISIONS OF SECTION 7 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, AS AMENDED, 5 U.S.C. 73B-3, WHICH PERMITS THE ONE-WAY TRANSPORTATION TO THE UNITED STATES OF AN EMPLOYEE'S IMMEDIATE FAMILY AND HIS HOUSEHOLD GOODS,"NOT IN EXCESS OF ONE TIME PRIOR TO THE RETURN OF THE EMPLOYEE TO THE UNITED STATES * * * WHEN THE EMPLOYEE HAS ACQUIRED ELIGIBILITY FOR SUCH TRANSPORTATION OR WHEN THE PUBLIC INTEREST REQUIRES THE RETURN OF THE IMMEDIATE FAMILY FOR COMPELLING PERSONAL REASONS OF A HUMANITARIAN OR COMPASSIONATE NATURE * * *.'

YOU SAY THAT YOUR ADMINISTRATIVE REGULATIONS ARE BASED ON SECTION 28 OF EXECUTIVE ORDER NO. 9805, AS ADDED BY BUREAU OF THE BUDGET CIRCULAR NO. A- 4, MAY 2, 1955, AND AS YOU CONSTRUE IT, THAT SECTION PERMITS AN EMPLOYEE TO SHIP HOUSEHOLD GOODS TO THE UNITED STATES AT GOVERNMENT EXPENSE TO THE EXTENT OF THE MAXIMUM WEIGHT LIMIT PRESCRIBED IN EXECUTIVE ORDER NO. 9805 DURING EACH TOUR OF DUTY. THUS, AN EMPLOYEE WHO SERVES FIVE CONSECUTIVE TOURS OF DUTY CONCEIVABLY COULD TRANSPORT UP TO 43,750 POUNDS GROSS OF HOUSEHOLD GOODS AT GOVERNMENT EXPENSE DURING THE COURSE OF SUCH TOURS OF DUTY. YOU SAY, HOWEVER, THAT "THERE REMAINS SOME DOUBT IN OUR MIND THAT THE LAW CONTEMPLATES SUCH LIBERAL BENEFITS.'

YOU FURTHER SAY THAT IN MANY INSTANCES, TRANSPORTATION OF HOUSEHOLD EFFECTS HAS BEEN REQUESTED INCIDENT TO THE REPATRIATION OF ONE OR MORE MEMBERS OF THE IMMEDIATE FAMILY EVEN THOUGH SUCH FAMILY MEMBERS INTEND TO RETURN TO THE ISTHMUS TO RESIDE WITH THE EMPLOYEE, THE PRACTICE BEING FOR THE FAMILY MEMBERS TO TRAVEL TO THE UNITED STATES UNDER A REPATRIATION TRAVEL ORDER WITH RETURN TRANSPORTATION AUTHORIZED ON THE ORDER ISSUED TO THE EMPLOYEE FOR FREE HOME LEAVE TRAVEL. IN SOME OF THOSE CASES THE TRANSPORTATION IS REQUESTED SOLELY FOR THE PURPOSE OF SHIPPING ITEMS EXTENDED FOR USE WHILE ON VACATION IN THE UNITED STATES, SUCH AS CAMPING EQUIPMENT, CLOTHING, ETC., OR THE EMPLOYEE MAY DESIRE TO TRANSPORT FURNITURE OR OTHER ARTICLES FOR THE PURPOSE OF FURNISHING A VACATION HOME IN THE UNITED STATES, OR AS GIFTS TO RELATIVES OR FRIENDS. IN OTHER WORDS, THE ADVANCE TRAVEL RIGHT IS USED AS A SUBSTITUTE FOR THE NORTHBOUND PORTION OF HOME LEAVE TRAVEL OF THE FAMILY FOR THE PURPOSE OF OBTAINING FREE SHIPMENT OF HOUSEHOLD GOODS AND/OR PERSONAL EFFECTS, THE TRANSPORTATION OF WHICH IS SPECIFICALLY EXCLUDED IN THE STATUTORY AUTHORIZATION FOR FREE HOME LEAVE TRAVEL.

YOU SUBMIT THE FOLLOWING QUESTIONS AS REPHRASED BY US:

1. WHETHER UNDER SECTION 28 OF THE BUREAU OF THE BUDGET CIRCULAR NO. A-4 AN EMPLOYEE IS ENTITLED DURING EACH TOUR OF DUTY TO SHIP HOUSEHOLD GOODS BACK TO THE UNITED STATES TO THE EXTENT OF THE WEIGHT LIMITS PRESCRIBED UNDER SECTION 1 OF THE ACT, NAMELY, 8,750 POUNDS CRATED OR 7,000 POUNDS UNCRATED, OR ALTERNATIVELY, WHETHER SUCH WEIGHT LIMITATIONS APPLY TO THE AGGREGATE OF SHIPMENTS MADE--- WITHOUT A TRANSFER OR SEPARATION--- DURING SUCCESSIVE TOURS OF DUTY?

2. IF THE WEIGHT LIMITS APPLY TO EACH TOUR OF DUTY YOU REQUEST OUR OPINION AS TO WHETHER YOUR OFFICE MAY DENY USE OF THE ADVANCE REPATRIATION PROVISIONS OF THE ACT, SO FAR AS HOUSEHOLD GOODS ARE CONCERNED, IN CASES WHEN THE CIRCUMSTANCES INDICATE THAT THE TRANSPORTATION IS NOT INCIDENT TO THE BONA FIDE REPATRIATION OF THE EMPLOYEE'S IMMEDIATE FAMILY?

FROM YOUR LETTER WE ASSUME THAT WHEN YOU SPEAK OF AN EMPLOYEE'S AND HIS FAMILY'S RETURNING TO THE UNITED STATES IT IS FOR THE PURPOSE OF THE EMPLOYEE'S TAKING HOME LEAVE BETWEEN SUCCESSIVE TOURS OF DUTY AT THE ISTHMUS AND OUR REPLY WILL BE BASED UPON THAT ASSUMPTION. IN YOUR FIRST QUESTION YOU REFER TO THE WEIGHT LIMITATION OF THE SHIPMENT OF HOUSEHOLD EFFECTS UNDER SECTION 1 OF THE ACT. YOU APPARENTLY REFER TO SECTION A OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, PUBLIC LAW 600, 79TH CONG., 60 STAT. 806. UNDER THAT SECTION AN EMPLOYEE IS ENTITLED TO TRANSPORTATION, PACKING, CRATING, TEMPORARY STORAGE, DRAYAGE, AND UNPACKING OF HIS HOUSEHOLD GOODS AND PERSONAL EFFECTS NOT TO EXCEED 7,000 POUNDS IF UNCRATED OR 8,750 POUNDS IF CRATED UPON TRANSFER IN THE INTEREST OF THE GOVERNMENT FROM ONE OFFICIAL STATION TO ANOTHER, INCLUDING TRANSFER FROM ONE DEPARTMENT TO ANOTHER, FOR PERMANENT DUTY.

SECTION 7 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, 60 STAT. 808, AS AMENDED, WAS AMENDED BY THE ACT OF AUGUST 31, 1954, 68 STAT. 1008. THE SECOND PROVISO OF THE ACT OF AUGUST 31, 1954, AS YOU SAY, PROVIDES THAT THE EXPENSES OF TRANSPORTATION OF THE IMMEDIATE FAMILY AND SHIPMENT OF HOUSEHOLD EFFECTS FROM THE POST OF DUTY OF SUCH EMPLOYEE OUTSIDE THE UNITED STATES TO PLACE OF ACTUAL RESIDENCE SHALL BE ALLOWED,"NOT IN EXCESS OF ONE TIME," PRIOR TO THE RETURN OF SUCH EMPLOYEE TO THE UNITED STATES WHEN THE EMPLOYEE HAS ACQUIRED ELIGIBILITY FOR SUCH TRANSPORTATION OR WHEN THE PUBLIC INTEREST REQUIRES THE RETURN OF THE IMMEDIATE FAMILY FOR COMPELLING PERSONAL REASONS OF A HUMANITARIAN OR COMPASSIONATE NATURE, SUCH AS MAY INVOLVE PHYSICAL OR THE MENTAL HEALTH, DEATH OF ANY MEMBER OF THE IMMEDIATE FAMILY, OR OBLIGATION IMPOSED BY AUTHORITY OR CIRCUMSTANCES OVER WHICH THE INDIVIDUAL HAS NO CONTROL. THE FIRST PROVISO OF PUBLIC LAW 737, 83D CONG., PROVIDES FOR THE ROUND-TRIP TRAVEL OF EMPLOYEES AND TRANSPORTATION OF HIS IMMEDIATE FAMILY WHEN RETURNING TO THE UNITED STATES FOR HOME LEAVE BUT SPECIFICALLY EXCLUDES TRANSPORTATION OF "HOUSEHOLD EFFECTS.' THE WEIGHT LIMITATIONS OF SECTION 1 (A) OF THE ACT HAVE BEEN HELD TO APPLY ALSO TO SECTION 7 CASES. 32 COMP. GEN. 469.

SECTION 28 OF THE BUREAU OF THE BUDGET CIRCULAR A-4, DATED MAY 2, 1955, PROMULGATED BY THE DIRECTOR, BUREAU OF THE BUDGET, IMPLEMENTING THE ACT OF AUGUST 31, 1954, PROVIDES AS FOLLOWS:

SECTION 28. ALLOWANCE OF TRANSPORTATION EXPENSES OF IMMEDIATE FAMILY AND OF HOUSEHOLD GOODS AND PERSONAL EFFECTS.

AN EMPLOYEE SHALL BE ALLOWED ONE-WAY TRANSPORTATION EXPENSES FOR RETURNING HIS IMMEDIATE FAMILY AND HIS HOUSEHOLD GOODS AND PERSONAL EFFECTS FROM HIS POST OF DUTY OVERSEAS TO THE PLACE OF HIS ACTUAL RESIDENCE IN THE CONTINENTAL UNITED STATES, ITS TERRITORIES, OR POSSESSIONS PRIOR TO THE EMPLOYEE'S RETURN THERETO (A) WHEN THE EMPLOYEE HAS ACQUIRED ELIGIBILITY FOR RETURN TRANSPORTATION BY SATISFACTORILY COMPLETING AN AGREED-UPON PERIOD OF SERVICE, OR (B) WHEN, UNDER REGULATIONS PRESCRIBED BY THE HEAD OF THE DEPARTMENT CONCERNED, IT IS DETERMINED THAT THE PUBLIC INTEREST REQUIRES THE RETURN OF THE IMMEDIATE FAMILY FOR COMPELLING PERSONAL REASONS OF A HUMANITARIAN OR COMPASSIONATE NATURE, SUCH AS MAY INVOLVE PHYSICAL OR MENTAL HEALTH, DEATH OF ANY MEMBER OF THE IMMEDIATE FAMILY, OR OBLIGATIONS IMPOSED BY AUTHORITY OR CIRCUMSTANCES OVER WHICH THE INDIVIDUAL HAS NO CONTROL. THESE EXPENSES WILL BE PAID BY THE GOVERNMENT NOT IN EXCESS OF ONE TIME DURING EACH AGREED-UPON PERIOD OF SERVICE AND SHALL BE SUBJECT TO THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS. UNDER THIS SECTION, THE EMPLOYEE MAY ELECT TO RETAIN ANY PORTION OF HIS HOUSEHOLD GOODS AND PERSONAL EFFECTS WITH HIM, PROVIDED THAT THE TOTAL WEIGHT OF ALL RETURN SHIPMENTS SHALL NOT EXCEED THE APPLICABLE WEIGHT LIMITS. IF THE IMMEDIATE FAMILY AND HOUSEHOLD GOODS AND EFFECTS ARE RETURNED TO A LOCATION IN THE CONTINENTAL UNITED STATES, ITS TERRITORIES, OR POSSESSIONS OTHER THAN THE PLACE OF ACTUAL RESIDENCE AT TIME OF APPOINTMENT OR TRANSFER TO A POST OF DUTY OUTSIDE THE CONTINENTAL UNITED STATES, THE EXPENSES ALLOWABLE SHALL NOT EXCEED THOSE ALLOWED FOR THEIR RETURN OVER A USUALLY TRAVELED ROUTE BETWEEN THE POST OF DUTY AND SUCH PLACE OF ACTUAL RESIDENCE. ( ITALICS SUPPLIED.)

UNDER SECTION 28 AN EMPLOYEE OF THE PANAMA CANAL PRIOR TO HIS RETURN TO THE UNITED STATES IS ENTITLED TO REIMBURSEMENT OF ONE-WAY TRANSPORTATION EXPENSES FOR THE RETURN OF HIS IMMEDIATE FAMILY AND HOUSEHOLD GOODS AND PERSONAL EFFECTS TO HIS PLACE OF ACTUAL RESIDENCE IN THE UNITED STATES PROVIDED THE CONDITIONS SET FORTH THEREIN SHALL HAVE BEEN MET. AS NOTED IN THE ITALICIZED SECTION, THE AGGREGATE WEIGHT OF ALL RETURNED SHIPMENTS OF HOUSEHOLD GOODS AND PERSONAL EFFECTS TO THE UNITED STATES SHALL NOT EXCEED THE APPLICABLE WEIGHT LIMITATION OF 8,750 POUNDS CRATED OR 7,000 POUNDS UNCRATED OF HOUSEHOLD GOODS AND PERSONAL EFFECTS OF AN EMPLOYEE WITH AN IMMEDIATE FAMILY. THAT LIMITATION CARRIES OUT THE INTENT OF THE STATUTORY PROVISION AUTHORIZING THE "ADVANCE RETURN" OF THE EFFECTS. KNOW OF NO PROPER BASIS FOR CONSTRUING THE STATUTE AS PERMITTING A USE OF A NEW 8,750 POUND WEIGHT LIMITATION FOR EACH TOUR OF DUTY WHEN NO TRANSFER OR SEPARATION OCCURS BETWEEN THE TOURS OF DUTY. CF. 36 COMP. GEN. 10; 38 ID. 653.

YOUR FIRST QUESTION IS ANSWERED ACCORDINGLY, THUS RENDERING UNNECESSARY ANY ANSWER TO YOUR SECOND QUESTION.