B-157450, SEPT. 23, 1965, 45 COMP. GEN. 159

B-157450: Sep 23, 1965

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THE DEPENDENCY SITUATION OF THE MEMBERS PERMANENTLY ASSIGNED TO THE VESSELS CONCERNED IS THE SAME AS THE NEWLY ASSIGNED MEMBERS. 1965: FURTHER REFERENCE IS MADE TO LETTER DATED JULY 26. THE REQUEST WAS ASSIGNED CONTROL NO. 65-24 BY THE PER DIEM. IT IS STATED IN THE LETTER THAT OPERATIONAL COMMITMENTS IN THE WESTERN PACIFIC HAVE REQUIRED THAT CERTAIN SPECIFIED SHIPS AND STAFFS BE DEPLOYED IN THAT AREA FOR AN INDEFINITE PERIOD OF TIME. THAT IT IS CONTEMPLATED THAT THESE SHIPS AND STAFFS WILL BE AWAY FROM THEIR HOME PORTS AND HOME YARDS IN THE UNITED STATES FOR AT LEAST A YEAR. THAT THE NAVY DOES NOT INTEND TO BRING SHIPS AND STAFFS BACK TO THEIR HOME PORTS OR HOME YARDS UNTIL THEIR PRESENCE IS NO LONGER REQUIRED IN THE WESTERN PACIFIC.

B-157450, SEPT. 23, 1965, 45 COMP. GEN. 159

TRANSPORTATION - DEPENDENTS - MILITARY PERSONNEL - DEPLOYMENT WITHOUT HOME PORT OR YARD CHANGE NAVY MEMBERS ATTACHED TO SHIPS AND STAFFS DEPLOYED OVERSEAS FOR AT LEAST A YEAR WITHOUT A CHANGE IN HOME PORT OR HOME YARD, DUTY ANALOGOUS TO THAT OF PERSONNEL ASSIGNED TO OVERSEAS RESTRICTED AREAS, MAY BE AUTHORIZED TRANSPORTATION FOR DEPENDENTS AND HOUSEHOLD GOODS TO A DESIGNATED PLACE, AND PARAGRAPHS M7005-1 AND M8253-2B OF THE JOINT TRAVEL REGULATIONS, AS ANNOUNCED IN JOINT DETERMINATION 42-65, COVERING MEMBERS ISSUED CHANGE-OF- STATION ORDERS, MAY BE AMENDED ACCORDINGLY, THE MEMBERS DEPLOYED OVERSEAS FOR A PROLONGED PERIOD OF TIME, THE MAINTENANCE OF A RESIDENCE AT THE HOME PORT OR HOME YARD NO LONGER SERVES THE PURPOSE FOR WHICH INTENDED AND COULD RESULT IN UNDUE HARDSHIP: THEREFORE, CONTINUED RESIDENCE MAY BE REGARDED AS THE UNUSUAL CIRCUMSTANCES CONTEMPLATED BY 37 U.S.C. 406 (E), THAT AUTHORIZES THE TRANSPORTATION OF DEPENDENTS, BAGGAGE, AND HOUSEHOLD EFFECTS WHETHER OR NOT PERMANENT CHANGE OF ORDERS ISSUED, AND THE DEPENDENCY SITUATION OF THE MEMBERS PERMANENTLY ASSIGNED TO THE VESSELS CONCERNED IS THE SAME AS THE NEWLY ASSIGNED MEMBERS.

TO THE SECRETARY OF THE NAVY, SEPTEMBER 23, 1965:

FURTHER REFERENCE IS MADE TO LETTER DATED JULY 26, 1965, FROM THE UNDER SECRETARY OF THE NAVY, FORWARDED HERE BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE ON JULY 29, 1965, REQUESTING DECISION WHETHER THE JOINT TRAVEL REGULATIONS MAY BE AMENDED TO PROVIDE THAT MEMBERS ATTACHED TO SHIPS AND STAFFS DEPLOYED AWAY FROM HOME PORT OR HOME YARD FOR AN INDEFINITE PERIOD OF TIME UNDER THE CIRCUMSTANCES DESCRIBED BELOW MAY BE AUTHORIZED TRANSPORTATION FOR DEPENDENTS AND HOUSEHOLD GOODS TO A DESIGNATED PLACE IN ACCORDANCE WITH PARAGRAPH M7005 OF THE JOINT TRAVEL REGULATIONS. THE REQUEST WAS ASSIGNED CONTROL NO. 65-24 BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

IT IS STATED IN THE LETTER THAT OPERATIONAL COMMITMENTS IN THE WESTERN PACIFIC HAVE REQUIRED THAT CERTAIN SPECIFIED SHIPS AND STAFFS BE DEPLOYED IN THAT AREA FOR AN INDEFINITE PERIOD OF TIME; THAT IT IS CONTEMPLATED THAT THESE SHIPS AND STAFFS WILL BE AWAY FROM THEIR HOME PORTS AND HOME YARDS IN THE UNITED STATES FOR AT LEAST A YEAR; THAT THE NAVY DOES NOT INTEND TO BRING SHIPS AND STAFFS BACK TO THEIR HOME PORTS OR HOME YARDS UNTIL THEIR PRESENCE IS NO LONGER REQUIRED IN THE WESTERN PACIFIC; AND THAT SINCE PERSONNEL NOW ASSIGNED TO THESE SHIPS AND STAFFS WILL BE SEPARATED FROM THEIR DEPENDENTS FOR AT LEAST A YEAR, IT APPEARS SUCH DUTY IS ANALOGOUS TO THAT OF PERSONNEL ASSIGNED TO OVERSEAS RESTRICTED AREAS, INSOFAR AS CONCERNS TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD GOODS ENTITLEMENTS PRESCRIBED BY PARAGRAPHS M7005 AND M8253 OF THE JOINT TRAVEL REGULATIONS. ALSO, IT IS STATED THAT THE CURRENT REGULATIONS (JOINT DETERMINATION 42-65, JULY 14, 1965) PRESCRIBE ENTITLEMENT TO TRANSPORTATION FOR DEPENDENTS AND HOUSEHOLD GOODS TO BE A DESIGNATED PLACE INCIDENT TO RECEIPT OF PERMANENT CHANGE OF-STATION ORDERS ASSIGNING A MEMBER TO A SHIP OR STAFF WHICH HAS BEEN ASSIGNED TO SUCH OVERSEAS AREA FOR A CONTEMPLATED CONTINUOUS PERIOD OF 1 YEAR OR MORE FROM THE ISSUE DATE OF THE MEMBER'S ORDERS. IT IS POINTED OUT THAT MEMBERS WHO ARE ON PERMANENT DUTY ON BOARD SHIPS OR WITH SUCH STAFFS AT THE TIME THAT THE SHIPS OR STAFFS ARE DEPLOYED TO THE OVERSEAS AREA FOR A PROLONGED PERIOD ARE NOT COVERED BY THE REGULATION BECAUSE THE HOME PORT, HOME YARD, OR THE PERMANENT DUTY STATION IS NOT CHANGED.

THE PROPOSED AMENDMENTS AS WE UNDERSTAND THEM WOULD AUTHORIZE THE TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS OF MEMBERS ON PERMANENT DUTY ON BOARD A VESSEL TO DESIGNATED PLACES UPON DEPLOYMENT OF THE VESSEL TO AN OVERSEAS AREA FOR MORE THAN A YEAR WITHOUT CHANGE OF HOME PORT OR HOME YARD. SIMILAR AUTHORITY IS PROVIDED IN PARAGRAPHS M7005-1 AND M8253- 2B OF THE JOINT TRAVEL REGULATIONS AS REVISED AND SET FORTH IN JOINT DETERMINATION 42-65, JULY 14, 1965, FOR MEMBERS UPON ASSIGNMENT TO SUCH VESSELS. THE REGULATIONS AS SET FORTH IN JOINT DETERMINATION 42-65 HAVE NOT HERETOFORE BEEN CONSIDERED BY THIS OFFICE.

UNDER THE PERTINENT STATUTE, 37 U.S.C. 406, AND THE JOINT TRAVEL REGULATIONS ISSUED PURSUANT TO THE STATUTE, A DULY AUTHORIZED PERMANENT CHANGE OF STATION FIXES THE MEMBER'S RIGHT TO TRANSPORTATION OF HIS DEPENDENTS AND HOUSEHOLD EFFECTS, WITHIN PRESCRIBED LIMITATIONS, FROM THE OLD PERMANENT STATION TO THE NEW, OR AS OTHERWISE PROVIDED. SECTION 411 (D) OF TITLE 37 PROVIDES IN PERTINENT PART THAT THE SECRETARY CONCERNED SHALL DEFINE THE WORDS "PERMANENT STATION," WHICH DEFINITION SHALL INCLUDE A SHORT STATION OR THE HOME YARD OR HOME PORT OF A VESSEL TO WHICH A MEMBER OF THE UNIFORMED SERVICES MAY BE ORDERED, AND THAT AN AUTHORIZED CHANGE IN THE HOME YARD OR HOME PORT OF SUCH A VESSEL IS A CHANGE OF PERMANENT STATION.

A PERMANENT STATION IS DEFINED IN PARAGRAPH M1150-10A OF THE JOINT TRAVEL REGULATIONS AS THE POST OF DUTY OR OFFICIAL STATION (INCLUDING THE HOME PORT OR HOME YARD OF A VESSEL INSOFAR AS TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD GOODS IS CONCERNED) TO WHICH A MEMBER IS ASSIGNED OR ATTACHED FOR DUTY OTHER THAN "TEMPORARY DUTY" OR "TEMPORARY ADDITIONAL DUTY.' UNDER SUCH PROVISIONS THE DUTY STATION OF A MEMBER ASSIGNED TO A VESSEL, INSOFAR AS HIS RIGHT TO THE TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS IS CONCERNED, IS THE HOME YARD OR HOME PORT OF THE VESSEL TO WHICH HE IS ASSIGNED FOR DUTY. UNDER NORMAL CIRCUMSTANCES, THEREFORE, A RIGHT TO TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS ACCRUES FOR MEMBERS ASSIGNED TO A VESSEL ONLY UPON A CHANGE IN HOME PORT OR HOME YARD OF THE VESSEL. 43 COMP. GEN. 639.

SECTION 406 (E) OF TITLE 37 OF THE CODE PROVIDES, HOWEVER, THAT WHEN ORDERS DIRECTING A PERMANENT CHANGE OF STATION FOR THE MEMBER CONCERNED HAVE NOT BEEN ISSUED, OR WHEN THEY HAVE BEEN ISSUED BUT CANNOT BE USED AS AUTHORITY FOR THE TRANSPORTATION OF HIS DEPENDENTS, BAGGAGE, AND HOUSEHOLD EFFECTS, THE SECRETARIES CONCERNED MAY AUTHORIZE THE MOVEMENT OF THE DEPENDENTS, BAGGAGE, AND HOUSEHOLD EFFECTS AND PRESCRIBE TRANSPORTATION IN KIND, REIMBURSEMENT THEREFOR, OR A MONETARY ALLOWANCE IN PLACE THEREOF, IN CASES INVOLVING UNUSUAL OR EMERGENCY CIRCUMSTANCES INCLUDING THOSE IN WHICH THE MEMBER IS SERVING ON PERMANENT DUTY AT STATIONS OUTSIDE THE UNITED STATES, IN HAWAII OR ALASKA, OR ON SEA DUTY.

SECTION 406 (E) WAS DERIVED WITHOUT SUBSTANTIVE CHANGE FROM SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, CH. 681, 63 STAT. 814. IN OUR DECISION OF JULY 16, 1958, 38 COMP. GEN. 28, WE CONSIDERED THE PROVISIONS OF SECTION 303 (C) OF THE 1949 ACT UNDER WHICH THE SECRETARIES CONCERNED COULD IN UNUSUAL OR EMERGENCY CIRCUMSTANCES, AUTHORIZE THE MOVEMENT AT GOVERNMENT EXPENSE OF THE DEPENDENTS AND BAGGAGE AND HOUSEHOLD EFFECTS 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 EFFECTS. 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. WHILE THE EMPHASIS OF THE STATUTORY PROVISION IS UPON THE ADVANCE RETURN OF DEPENDENTS, THE LEGISLATIVE HISTORY OF THE LAW INDICATES AN INTENT TO PROVIDE AUTHORITY FOR MOVEMENT OF DEPENDENTS AND HOUSEHOLD EFFECTS BETWEEN POINTS IN THE UNITED STATES INCIDENT TO UNUSUAL OR EMERGENCY SITUATIONS WHEN THE MEMBER IS ON SEA DUTY. IN S.REPT. NO. 733, ON H.R. 5007, 81ST CONG., 1ST SESS. (WHICH BECAME THE CAREER COMPENSATION ACT OF 1949), ON PAGE 22, THE SENATE COMMITTEE ON ARMED SERVICES, REFERRING TO SECTION 303 (C) STATED IN PERTINENT PART AS FOLLOWS:

THIS SUBSECTION ALSO INCLUDES PROVISIONS FOR THE TRANSPORTATION OF DEPENDENTS EVEN THOUGH THERE IS INVOLVED NO CHANGE OF STATION IN ORDER THAT DEPENDENTS MAY TRAVEL AT GOVERNMENT EXPENSE BETWEEN POINTS IN THE UNITED STATES WHERE THE SERVICE MEMBER IS ON SEA DUTY OR ON DUTY OUTSIDE THE UNITED STATES AT A POST OF DUTY WHERE DEPENDENTS ARE NOT PERMITTED TO ACCOMPANY HIM. * * *

NORMALLY, A MEMBER ASSIGNED TO A VESSEL WILL DESIRE TO HAVE HIS DEPENDENTS RESIDE AT OR NEAR THE HOME PORT OR HOME YARD TO WHICH HIS SHIP WILL RETURN AT FREQUENT OR REGULAR INTERVALS. IN THE CASE, HOWEVER, OF A VESSEL WHICH IS SCHEDULED TO BE AWAY FROM ITS HOME PORT OR HOME YARD FOR PROLONGED PERIODS THERE WOULD APPEAR TO BE NO REASON FOR DEPENDENTS TO MAINTAIN A RESIDENCE AT THE HOME PORT OR HOME YARD. IN SUCH A SITUATION THE HOME PORT OR HOME YARD IS NO LONGER SERVING ITS PURPOSE. IN THAT VIEW WE BELIEVE THAT THE CIRCUMSTANCES PRESENTED IN THE UNDER SECRETARY'S LETTER WHERE OPERATIONAL COMMITMENTS IN THE WESTERN PACIFIC HAVE REQUIRED THAT CERTAIN SHIPS AND STAFFS BE DEPLOYED AWAY FROM THEIR HOME PORTS AND HOME YARDS FOR AT LEAST A YEAR TO AREAS WHERE DEPENDENTS ARE NOT PERMITTED --- CLEARLY A DEPARTURE FROM THE USUAL OR NORMAL EXPERIENCE OF NAVY MEMBERS ASSIGNED TO VESSELS AND A SITUATION IN WHICH CONTINUED RESIDENCE AT THE HOME PORT OR HOME YARD COULD RESULT IN UNDUE HARDSHIP TO THE MEMBERS AND THEIR DEPENDANTS--- MAY BE REGARDED AS UNUSUAL CIRCUMSTANCES CONTEMPLATED BY SECTION 406 (E). ON THAT BASIS WE SEE NO REASON FOR OBJECTION TO THE PROVISIONS OF THE REVISED PARAGRAPHS M7005-1 AND M8253-2B OF THE REGULATIONS AS ANNOUNCED IN JOINT DETERMINATION 42-65.

SINCE THE DEPENDENCY SITUATION OF MEMBERS PERMANENTLY ASSIGNED TO THE VESSELS HERE CONCERNED IS THE SAME AS THAT OF THE NEWLY ASSIGNED MEMBERS AND SINCE FOR THE PURPOSES OF SECTION 406 (E) OF TITLE 37 OF THE CODE IS IMMATERIAL WHETHER PERMANENT CHANGE-OF-STATION ORDERS HAVE BEEN ISSUED, WE HAVE NO OBJECTION TO AMENDING THE REGULATIONS AS PROPOSED.