B-156241, MAR. 22, 1965, 44 COMP. GEN. 574

B-156241, MAR. 22, 1965, 44 COMP. GEN. 574

TRANSPORTATION - HOUSEHOLD EFFECTS - MILITARY PERSONNEL - ADVANCE SHIPMENTS - EMERGENCY, ETC., CONDITIONS THE EVACUATION OF THE HOUSEHOLD EFFECTS OR MOTOR VEHICLE OF A MEMBER OF THE UNIFORMED SERVICES TO A PLACE DESIGNATED BY THE MEMBER OR TO NONTEMPORARY STORAGE WHEN THE MEMBER IS NOT BEING RELIEVED OF HIS OVERSEAS DUTY ASSIGNMENT IS CONTINGENT UPON AN AUTHORIZATION FOR THE TRANSPORTATION OF THE MEMBER'S DEPENDENTS, AND, THEREFORE, A MEMBER WITHOUT DEPENDENTS MAY NOT BE REGARDED AS COMING WITHIN THE PURVIEW OF 37 U.S.C. 406 (H), AS ADDED BY PUBLIC LAW 88-431, 78 STAT. 439, TO ENTITLE HIM TO THE ADVANCE MOVEMENT OF HIS HOUSEHOLD EFFECTS AND AUTOMOBILE PRIOR TO HIS RETURN FROM HIS OVERSEAS ASSIGNMENT.

TO THE SECRETARY OF THE AIR FORCE, MARCH 22, 1965:

FURTHER REFERENCE IS MADE TO A LETTER DATED FEBRUARY 12, 1965, FROM THE ASSISTANT SECRETARY OF THE AIR FORCE REQUESTING A DECISION WHETHER UNDER THE PROVISIONS OF 37 U.S.C. 406 (H) AS ADDED BY PUBLIC LAW 88 431, APPROVED AUGUST 14, 1964, (1) THE HOUSEHOLD EFFECTS OF A MEMBER OF THE UNIFORMED SERVICES WITHOUT DEPENDENTS ON DUTY OVERSEAS MAY BE EVACUATED TO A DESIGNATED PLACE OR TO NONTEMPORARY STORAGE AND (2) WHETHER A MOTOR VEHICLE OWNED BY SUCH A MEMBER MAY BE EVACUATED TO A PORT OF ENTRY IN THE UNITED STATES. IN NEITHER CASE IS THE MEMBER BEING RELIEVED OF DUTY OUTSIDE THE UNITED STATES. THE REQUEST WAS ASSIGNED PDTATAC CONTROL NO. 65-10 BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

SECTION 406 (H) OF TITLE 37, U.S.C. AS ADDED BY PUBLIC LAW 88-431 (78 STAT. 439) PROVIDES FOR THE ADVANCE RETURN OF DEPENDENTS, BAGGAGE, HOUSEHOLD EFFECTS, AND PRIVATELY OWNED VEHICLES OF MILITARY MEMBERS FROM OVERSEAS AREAS TO APPROPRIATE LOCATIONS IN THE UNITED STATES OR ITS POSSESSIONS WHEN SUCH RETURN IS DETERMINED BY THE SECRETARY CONCERNED TO BE IN THE BEST INTEREST OF THE MEMBER OR HIS DEPENDENTS AND THE UNITED STATES, AND AUTHORIZES THE RETURN TRANSPORTATION TO THE UNITED STATES OR ITS POSSESSIONS, OF UNMARRIED CHILDREN OF A MEMBER WHO WERE TRANSPORTED TO HIS OVERSEAS STATION AT GOVERNMENT EXPENSE AND BECOME 21 YEARS OF AGE WHILE THE MEMBER IS ASSIGNED TO OVERSEAS DUTY. IF THE MEMBER'S BAGGAGE AND HOUSEHOLD EFFECTS ARE IN NONTEMPORARY STORAGE UNDER SUBSECTION (D) OF THIS SECTION THE SECRETARY CONCERNED MAY AUTHORIZE THEIR MOVEMENT TO THE LOCATION CONCERNED.

IT APPEARS THAT THE PROVISIONS OF PUBLIC LAW 88-431 STEM FROM DEPARTMENT OF DEFENSE LEGISLATIVE PROPOSAL DOD 87-50 TO AMEND SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 253 (C). IN OUR DECISION OF JULY 16, 1958, 38 COMP. GEN. 28, WE CONSIDERED THE PROVISIONS OF SECTION 303 (C) OF THE 1949 ACT (NOW 37 U.S.C. 406 (C) ( UNDER WHICH THE SECRETARIES CONCERNED COULD, IN UNUSUAL OR EMERGENCY CIRCUMSTANCES, AUTHORIZE THE MOVEMENT AT GOVERNMENT EXPENSE OF THE DEPENDENTS AND BAGGAGE AND HOUSEHOLD GOODS OF A MEMBER WHEN ORDERS DIRECTING A CHANGE OF PERMANENT STATION FOR THE MEMBER HAD NOT BEEN ISSUED, OR WHEN SUCH ORDERS HAD BEEN ISSUED BUT COULD NOT BE USED AS AUTHORITY FOR THE TRANSPORTATION OF THE DEPENDENTS, BAGGAGE AND HOUSEHOLD GOODS. WE EXPRESSED THE VIEW THAT BASICALLY THE STATUTE AUTHORIZED THE SECRETARIES CONCERNED TO ISSUE REGULATIONS PROVIDING FOR THE EARLY RETURN OF DEPENDENTS AND HOUSEHOLD EFFECTS OF MEMBERS ONLY BECAUSE OF ACTUAL CONDITIONS OF AN EMERGENCY NATURE ARISING AT OVERSEAS DUTY STATIONS WHICH JUSTIFIED SUCH RETURN AND WHICH GENERALLY COULD NOT ARISE, OR ARE MOST UNLIKELY TO ARISE IN THE CASE OF MEMBERS SERVING IN THE UNITED STATES. ON THAT BASIS, WE EXPRESSED THE VIEW THAT CONDITIONS SUCH AS FINANCIAL DIFFICULTIES AND MARITAL DIFFICULTIES ARE NOT CONDITIONS WHICH THE LAW INTENDED TO BE USED AS A BASIS FOR GIVING SUCH PREFERENTIAL TREATMENT TO OVERSEAS PERSONNEL IN THE MATTER OF TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS, THESE CONDITIONS BEING NO DIFFERENT THAN ARE ENCOUNTERED BY MEMBERS ON DUTY IN THE UNITED STATES.

AS TO THE NEED FOR PUBLIC LAW 88-431, ITS LEGISLATIVE HISTORY SHOWS THAT IN THE HEARING (NO. 10) BEFORE SUBCOMMITTEE NO. 1, COMMITTEE ON ARMED SERVICES, HOUSE OF REPRESENTATIVES, ON H.R. 4739 WHICH BECAME PUBLIC LAW 88-431, MAJOR T. M. TWISDALE, U.S. ARMY, TESTIFIED ON BEHALF OF THE ARMED SERVICES. HIS TESTIMONY IS IN PART (PAGES 3005 AND 3006) AS FOLLOWS:

UNDER THE PRESENT PROVISIONS OF SECTION 406 (E) OF TITLE 37, UNITED STATES CODE, AUTHORITY FOR ADVANCE RETURN OF DEPENDENTS AND HOUSEHOLD GOODS OF MEMBERS IS LIMITED TO "UNUSUAL OR EMERGENCY CIRCUMSTANCES.' THESE LIMITATIONS HAVE BEEN FOUND UNDESIRABLE, AND TOO RESTRICTIVE TO MEET THE NEEDS OF THE SERVICES. THE ADVANCE RETURN OF DEPENDENTS UNDER CIRCUMSTANCES WHICH UNDER PRESENT LAW AND RULINGS OF THE COMPTROLLER GENERAL MAY NOT BE REGARDED AS "UNUSUAL OR EMERGENCY" IN NATURE IS CONSIDERED ESSENTIAL FROM THE STANDPOINT OF THE MORALE AND WELFARE OF MEMBERS AND THEIR DEPENDENTS.

UNFORESEEN FAMILY PROBLEMS, CHANGES IN A MEMBER'S STATUS, AND CHANGING ECONOMIC AND POLITICAL CONDITIONS IN THE VARIOUS OVERSEAS AREAS AT TIMES REQUIRE THE ADVANCE RETURN OF DEPENDENTS, HOUSEHOLD GOODS, AND PRIVATELY OWNED VEHICLES FROM AN OVERSEA AREA TO THE UNITED STATES, AS BEING IN THE BEST INTEREST OF THE INDIVIDUAL AND THE GOVERNMENT. SUCH INSTANCES, HOWEVER, OFTEN DO NOT SATISFY THE "UNUSUAL OR EMERGENCY CIRCUMSTANCES" REQUIREMENT OF THE PRESENT LAW. DEPENDENTS WHO ARE CONFRONTED WITH COMPELLING PERSONAL PROBLEMS FOR WHICH ADVANCE RETURN IS NOT NOW AUTHORIZED PLACE AN ADDITIONAL ADMINISTRATIVE BURDEN ON OVERSEA COMMANDERS. THOSE DEPENDENTS MAY ALSO HAVE AN ADVERSE EFFECT ON THE SPONSOR'S PERFORMANCE OF DUTY AND THE OPERATIONAL READINESS OF OUR COMBAT FORCES. IN CERTAIN INSTANCES IN THE PAST THEY HAVE CAUSED INCIDENTS PREJUDICIAL TO THE BEST INTERESTS OF THE UNITED STATES. EXAMPLES OF SITUATIONS WARRANTING ADVANCE RETURN OF DEPENDENTS WOULD INCLUDE SUCH COMPELLING PERSONAL REASONS AS MARITAL DIFFICULTIES, EXTREME FINANCIAL DIFFICULTIES BROUGHT ABOUT BY CIRCUMSTANCES SUCH AS CONFINEMENT OR REDUCTION IN GRADE OF THE MEMBER, WHICH PRECLUDE THE FURNISHING OF ADEQUATE SUPPORT FOR DEPENDENTS, DEATH OR SERIOUS ILLNESS OF CLOSE RELATIVES, AND OTHER SITUATIONS IN WHICH THE APPROPRIATE COMMANDER DETERMINES THAT THE BEST INTEREST OF THE GOVERNMENT AND THE MEMBER OR DEPENDENT WILL BE SERVED. IT IS NORMALLY BEST TO PERMIT, OR IF NECESSARY REQUIRE, THESE DEPENDENTS TO BE RETURNED TO LOCATIONS IN THE UNITED STATES IN ADVANCE OF THE RETURN OF THE SPONSORS.

UPON THE PERMANENT CHANGE OF STATION OF A MEMBER FROM OVERSEAS TO THE UNITED STATES PRESENT LAW AUTHORIZED THE RETURN OF A PRIVATELY OWNED VEHICLE, HOWEVER, THERE IS NO AUTHORITY FOR ITS ADVANCE RETURN. WHEN DEPENDENTS ARE RETURNED IN ADVANCE, AN AUTOMOBILE FOR USE BY DEPENDENTS IN THE UNITED STATES WOULD IN MOST INSTANCES BE A NECESSITY. AUTHORITY FOR THE ADVANCE RETURN OF A PRIVATELY OWNED VEHICLE AT THE TIME DEPENDENTS ARE RETURNED IS THEREFORE CONSIDERED NECESSARY.

IT SEEMS CLEAR FROM THE ABOVE TESTIMONY AND OTHER TESTIMONY TO THE SAME EFFECT RELATING TO THE BILL THAT IT WAS INTENDED TO PROVIDE AUTHORITY FOR THE ADVANCE MOVEMENT OF DEPENDENTS FROM OVERSEAS STATIONS FOR THE REASONS STATED AND TO PROVIDE AUTHORITY FOR THE MOVEMENT OF HOUSEHOLD EFFECTS FROM THE PLACE WHERE LOCATED OVERSEAS AND FROM NONTEMPORARY STORAGE TO THE APPROPRIATE LOCATION FOR THE USE OF THE DEPENDENTS WHO ARE BEING RETURNED FROM OVERSEAS. ALSO, IT WAS RECOGNIZED THAT THE DEPENDENTS USUALLY WOULD NEED AN AUTOMOBILE AND THEREFORE AUTHORITY WAS PROVIDED FOR THE ADVANCE MOVEMENT OF THE MEMBER'S MOTOR VEHICLE SO AS TO BE AVAILABLE FOR THEIR USE.

THE ENTIRE EMPHASIS OF THE STATUTORY PROVISIONS WHICH THE LAW ENLARGES AND ITS LEGISLATIVE HISTORY IS UPON THE NEED FOR ADVANCE RETURN OF DEPENDENTS. NOTHING WHATEVER IS FOUND IN THE LEGISLATIVE HISTORY OF THE LAW TO INDICATE ANY INTENTION THAT IT WAS TO BE VIEWED AS AUTHORITY FOR THE ADVANCE MOVEMENT OF THE HOUSEHOLD EFFECTS AND AUTOMOBILE OF A MEMBER WITHOUT DEPENDENTS. PRIOR TO THE ENACTMENT OF PUBLIC LAW 88-431, SECTION 406 (E) OF TITLE 37, U.S. CODE, WAS NOT VIEWED AS PROVIDING AUTHORITY FOR THE ADVANCE MOVEMENT OF HOUSEHOLD EFFECTS INDEPENDENTLY OF THE DEPENDENTS. PARAGRAPH 8301 OF THE JOINT TRAVEL REGULATIONS, CHANGE 131, IN EFFECT AT THAT TIME RELATING TO THE TRANSPORTATION OF HOUSEHOLD GOODS INCIDENT TO EVACUATION, PROVIDED THAT ORDERS PROVIDING FOR THE EVACUATION OF DEPENDENTS FROM AREAS OUTSIDE THE UNITED STATES UNDER PARAGRAPH 7101 OF THE REGULATIONS COULD ALSO AUTHORIZE THE TRANSPORTATION OF HOUSEHOLD GOODS WITHIN THE LIMITATIONS THERE PRESCRIBED. SIMILARLY, PARAGRAPHS 8302 AND 8303 RELATING TO TRANSPORTATION OF HOUSEHOLD GOODS INCIDENT TO UNUSUAL OR EMERGENCY CIRCUMSTANCES--- OFFICIAL SITUATIONS, AND PERSONAL SITUATIONS, RESPECTIVELY, PROVIDED THAT ORDERS AUTHORIZING THE TRANSPORTATION OF DEPENDENTS IN THESE CIRCUMSTANCES COULD ALSO AUTHORIZE THE TRANSPORTATION OF HOUSEHOLD GOODS. THUS, THE MOVEMENT OF THE MEMBER'S HOUSEHOLD EFFECTS WAS CONTINGENT ON AN AUTHORIZATION FOR THE TRANSPORTATION OF HIS DEPENDENTS.

SINCE THERE IS NO EVIDENCE OF ANY LEGISLATIVE INTENT THAT PUBLIC LAW 88- 431 IS TO HAVE ANY BROADER SCOPE IN THAT RESPECT, WE ARE OF THE OPINION THAT IT DOES NOT PROVIDE AUTHORITY FOR THE EVACUATION OF THE HOUSEHOLD EFFECTS OF A MEMBER WITHOUT DEPENDENTS TO A PLACE DESIGNATED BY THE MEMBER OR TO NONTEMPORARY STORAGE WHEN THE MEMBER IS NOT BEING RELIEVED OF HIS OVERSEAS DUTY ASSIGNMENT. NEITHER DOES IT PROVIDE AUTHORITY IN SUCH CIRCUMSTANCES FOR THE EVACUATION OF THE MEMBER'S MOTOR VEHICLE TO A PORT OF ENTRY INTO THE UNITED STATES. THE QUESTIONS PRESENTED ARE ANSWERED ACCORDINGLY.