B-158612, MAY 24, 1966

B-158612, MAY 24, 1966

TO DISBURSING OFFICER, COMMANDER LANDING SHIP FLOTILLA ONE, DEPARTMENT OF THE NAVY:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED DECEMBER 23, 1965, WITH ENCLOSURES, REQUESTING A DECISION AS TO THE ENTITLEMENT OF LIEUTENANT (JG) RONALD H. TOENSING, USN, TO PAYMENT OF HIS DEPENDENTS' TRAVEL, DISLOCATION ALLOWANCE AND TRANSPORTATION OF HOUSEHOLD EFFECTS UNDER THE CIRCUMSTANCES DESCRIBED BELOW. THE REQUEST FOR DECISION WAS ASSIGNED CONTROL NO. 66-8 BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

BY ORDERS DATED MAY 5, 1965, THE MEMBER WAS DIRECTED TO PROCEED FROM THE U.S.S. TOM GREEN COUNTY (LST-1159) (HOME PORT, YOKOSUKA, JAPAN) TO SAN DIEGO, CALIFORNIA, FOR TEMPORARY DUTY UNDER INSTRUCTION IN PRECOMMISSIONING TRAINING AND THEN TO MARE ISLAND, CALIFORNIA, IN CONNECTION WITH REACTIVATION OF THE U.S.S. ST. FRANCIS RIVER (LSMR-525) (HOME PORT, ASTORIA, OREGON) AND DUTY ON BOARD AS EXECUTIVE OFFICER WHEN THE VESSEL WAS PLACED IN COMMISSION.

THE MEMBER WAS DETACHED FROM THE U.S.S. TOM GREEN COUNTY ON JUNE 22, 1965. BY MESSAGE DATED JUNE 23, 1965, THE CHIEF OF NAVAL OPERATIONS ASSIGNED THE U.S.S. ST. FRANCIS RIVER A HOME PORT AT YOKOSUKA, JAPAN, ON COMMISSIONING. THEREAFTER, ON JUNE 25, 1965, THE MEMBER DEPARTED FROM TACHIKAWA AIR BASE, JAPAN, WITH HIS DEPENDENTS BY GOVERNMENT AIR AND ARRIVED AT TRAVIS AIR FORCE BASE, CALIFORNIA, THE SAME DAY. HIS HOUSEHOLD EFFECTS WERE SHIPPED ON GOVERNMENT BILL OF LADING FROM YOKOSUKA, JAPAN, TO NONTEMPORARY STORAGE AT OAKLAND, CALIFORNIA, AND FROM NONTEMPORARY STORAGE BACK TO YOKOSUKA. PARAGRAPH M8258-2, JOINT TRAVEL REGULATIONS IS CITED AS AUTHORITY FOR THIS SHIPMENT. THIS PROVIDES FOR SHIPMENT OF EFFECTS INCIDENT TO TRANSFERS FROM AN OVERSEAS ASSIGNMENT WHEN THE NEW PERMANENT DUTY STATION IS FOR THE TIME BEING INDETERMINATE.

IN YOUR LETTER OF DECEMBER 23, 1965, YOU SAY THAT SINCE THE MEMBER WAS DETACHED FROM THE U.S.S. TOM GREEN COUNTY PRIOR TO THE PROMULGATION OF MESSAGE DATED JUNE 23, 1965, FROM THE CHIEF OF NAVAL OPERATIONS ASSIGNING THE U.S.S. ST. FRANCIS RIVER A HOME PORT AT YOKOSUKA ON COMMISSIONING, HIS DEPENDENTS WERE NO LONGER AUTHORIZED TO REMAIN IN JAPAN. HOWEVER, YOUR DOUBT IN THE MATTER IS BASED ON THE FACT THAT APPLICABLE REGULATIONS DO NOT PROVIDE FOR DEPENDENTS' TRAVEL AND TRANSPORTATION ALLOWANCES TO THE HOME PORT OF A SHIP IN AN INACTIVE STATUS OR FOR PAYMENT OF SUCH ALLOWANCES WHEN THE TRANSFER INVOLVES VESSELS WHICH HAVE IDENTICAL HOME YARDS AND HOME PORTS (PARAGRAPH M7063, JOINT TRAVEL REGULATIONS).

UNDER THE PROVISIONS OF 37 U.S.C. 406 AND 407 AUTHORITY IS PROVIDED, IN ACCORDANCE WITH REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, FOR THE TRANSPORTATION OF A MEMBER'S DEPENDENTS AND HOUSEHOLD GOODS AND FOR THE PAYMENT OF A DISLOCATION ALLOWANCE INCIDENT TO A DIRECTED PERMANENT CHANGE OF STATION. PARAGRAPH M7063 OF THE REGULATIONS PROVIDES THAT UPON TRANSFER BETWEEN VESSELS A MEMBER IS ENTITLED TO TRANSPORTATION OF HIS DEPENDENTS AT GOVERNMENT EXPENSE FROM THE OLD HOME YARD OR OLD HOME PORT TO THE NEW HOME YARD OR HOME PORT. HOWEVER, PARAGRAPH M7063 IS NOT APPLICABLE TO TRANSFERS BETWEEN VESSELS HAVING THE SAME HOME YARD AND HOME PORT AND THE MOVEMENT OF DEPENDENTS IS NOT AUTHORIZED INCIDENT TO SUCH A TRANSFER. 43 COMP. GEN. 639. ALSO, THE APPLICABLE REGULATIONS PROVIDE THAT ASSIGNMENT OF A HOME PORT OR HOME YARD OF A SHIP IN INACTIVE STATUS IS NOT EFFECTIVE FOR PURPOSES OF TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS. THE ASSIGNED HOME PORT AND HOME YARD OF AN INACTIVE SHIP BECOMES EFFECTIVE FOR SUCH PURPOSES WHEN THE VESSEL FIRST IS PLACED IN COMMISSION OR IN SERVICE. SEE PARAGRAPH 14, OPNAVINST P3111.14J, JULY 15, 1964.

PARAGRAPH M7007 OF THE REGULATIONS PROVIDES GENERALLY FOR TRANSPORTATION OF DEPENDENTS UPON A MEMBER'S ASSIGNMENT TO INDETERMINATE TEMPORARY DUTY. IN OUR DECISION OF DECEMBER 4, 1963, 43 COMP. GEN. 474, WE HELD THAT TEMPORARY DUTY ORDERS IN CONNECTION WITH THE FITTING-OUT OF A VESSEL AND DUTY ON BOARD THAT VESSEL WHEN COMMISSIONED WERE IN SUBSTANCE PERMANENT CHANGE OF STATION ORDERS TO THE VESSEL WITH AN INTERVENING PERIOD OF TEMPORARY DUTY, SUCH TEMPORARY DUTY BEING LIMITED TO THE FITTING-OUT PERIOD OF THE VESSEL AND THAT SUCH TEMPORARY DUTY ASSIGNMENTS MAY NOT BE CONSIDERED TO BE OF AN INDETERMINATE NATURE WITHIN THE MEANING OF PARAGRAPH M7007 OF THE JOINT TRAVEL REGULATIONS. PARAGRAPH 7057 OF THE NAVY TRAVEL INSTRUCTIONS PROVIDED AT THAT TIME THAT WHEN A MEMBER WAS ORDERED TO SUCH TEMPORARY DUTY IN CONNECTION WITH THE FITTING-OUT, REACTIVATION OR CONVERSION OF A VESSEL AND FOR DUTY ON BOARD, THAT CLAIMS FOR DEPENDENT TRAVEL COULD BE PAID (1) WHEN THE VESSEL HAD BEEN PLACED IN COMMISSION OR IN SERVICE, (2) A HOME YARD OR HOME PORT HAD BEEN ASSIGNED, AND (3) THE MEMBER HAD REPORTED ON BOARD FOR DUTY. SINCE THESE REGULATIONS PRECLUDED PAYMENT FOR DEPENDENT TRAVEL DURING THE PERIOD OF TEMPORARY DUTY AND AS THE PLACE FROM WHICH THE MEMBERS WERE ORDERED TO THE TEMPORARY DUTY WAS THE PLACE ASSIGNED AS THE HOME PORT OF THE VESSEL WHEN COMMISSIONED, IT WAS HELD THAT NO REIMBURSEMENT FOR DEPENDENTS' TRAVEL OR PAYMENT OF DISLOCATION ALLOWANCE WAS AUTHORIZED IN THESE CIRCUMSTANCES. SEE ALSO OUR DECISION OF APRIL 22, 1964, TO THE SECRETARY OF THE NAVY, B- 152690.

SUBSEQUENTLY, THE NAVY TRAVEL INSTRUCTIONS WERE REVISED TO PROVIDE (PARAGRAPH 7056-2) THAT WHEN A MEMBER IS ORDERED TO TEMPORARY DUTY IN CONNECTION WITH THE CONVERSION OR FITTING-OUT OF A VESSEL AND DUTY ON BOARD WHEN COMMISSIONED, CLAIMS FOR A DEPENDENT'S TRAVEL MAY BE PAID WHEN THE MEMBER HAS RECEIVED HIS ORDERS, A HOME PORT OR HOME YARD HAS BEEN ASSIGNED AND THE DEPENDENTS HAVE COMPLETED THEIR TRAVEL FOR THE PURPOSE OF ESTABLISHING A RESIDENCE. IT FURTHER PROVIDES THAT TEMPORARY DUTY IN CONNECTION WITH CONVERSION, FITTING-OUT OR REACTIVATION OF A VESSEL (CFO) IS NOT CONSIDERED INDETERMINATE TEMPORARY DUTY UNDER THE PROVISIONS OF PARAGRAPH M7007 OF THE JOINT TRAVEL REGULATIONS.

THUS, IN THE SITUATION OF A MEMBER WHO IS ORDERED TO TEMPORARY DUTY IN CONNECTION WITH THE FITTING-OUT OF A VESSEL IN AN INACTIVE STATUS AND DUTY ON BOARD WHEN COMMISSIONED, A RIGHT TO TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS ACCRUES WHEN THE ASSIGNMENT OF THE HOME YARD OR HOME PORT OF THE SHIP BECOMES EFFECTIVE UPON THE VESSEL BEING PLACED IN COMMISSION OR IN SERVICE, THERE BEING NO ENTITLEMENT TO THE HOME PORT OF THE SHIP WHILE IT IS IN AN INACTIVE STATUS OR TO THE FITTING-OUT LOCATION OF THE SHIP.

IN THESE CIRCUMSTANCES, AND SINCE THE TOM GREEN COUNTY AND THE ST. FRANCIS RIVER WERE ASSIGNED THE SAME HOME PORT, YOKOSUKA, UPON THE LATTER VESSEL BEING COMMISSIONED THERE WAS NO CHANGE IN HOME PORT INCIDENT TO THE MEMBER'S TRANSFER BETWEEN THE VESSELS AND THEREFORE, THERE IS NO ENTITLEMENT TO TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS.

WITH RESPECT TO THE STATEMENT IN YOUR LETTER THAT THE MEMBER'S DEPENDENTS WERE NOT AUTHORIZED TO REMAIN AT YOKOSUKA AFTER HIS DETACHMENT FROM THE TOM GREEN COUNTY, IT HAS BEEN RECOGNIZED THAT MEMBER ASSIGNED TO A VESSEL HAS TWO STATIONS; (1) HIS OWN ABOARD THE SHIP, CARRYING WITH IT A RIGHT TO MILEAGE AND OTHER TRAVEL ALLOWANCES TO THE SHIP ITSELF AND (2) THE HOME YARD OR HOME PORT OF THE VESSEL CARRYING WITH IT TRAVEL AND TRANSPORTATION ALLOWANCES FOR MOVEMENT OF DEPENDENTS AND HOUSEHOLD EFFECTS. B-158218, FEBRUARY 7, 1966, 45 COMP. GEN. -----. BASICALLY, WE ARE CONCERNED HERE WITH (2) ABOVE, THAT IS THE MEMBER'S PERMANENT CHANGE OF STATION FOR DEPENDENTS, THE HOME PORT AS DISTINGUISHED FROM THE MEMBER'S DUTY STATION ON THE SHIP. SINCE ENTITLEMENT TO TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS IS ON THE BASIS OF THE ASSIGNED HOME PORT, THE FACT THAT THE MEMBER WAS DETACHED FROM THE TOM GREEN COUNTY TO PERMIT HIM TO COMPLY WITH HIS TEMPORARY DUTY ORDERS AS IN THE CIRCUMSTANCES INVOLVED HERE, WOULD NOT AFFECT THE STATUS OF HIS DEPENDENTS UNLESS THERE WAS A CHANGE IN HOME PORT. AND, THE TOM GREEN COUNTY WOULD STILL BE REGARDED AS THE MEMBER'S PERMANENT DUTY STATION UNTIL THE EXPIRATION OF HIS TEMPORARY DUTY ASSIGNMENT AND HE REPORTED ON BOARD THE ST. FRANCIS RIVER FOR PERMANENT DUTY. SEE OUR DECISION OF NOVEMBER 24, 1964, TO THE SECRETARY OF THE NAVY, B-155430, 44 COMP. GEN. 310.

LIEUTENANT TOENSING APPEARS TO CONTEND THAT UNDER THE TERMS OF AGREEMENT UNDER ARTICLE VI OF THE TREATY OF MUTUAL COOPERATION AND SECURITY: FACILITIES AND AREAS AND THE STATUS OF UNITED STATES ARMED FORCES IN JAPAN DATED JANUARY 19, 1960, 11 UST 1652, TIAS 4510, HIS DEPENDENTS WOULD NOT HAVE BEEN PERMITTED TO CONTINUE TO RESIDE IN JAPAN AFTER HIS DETACHMENT FROM THE U.S.S. TOM GREEN COUNTY TO PERFORM THE TEMPORARY DUTY INVOLVED. AS POINTED OUT ABOVE, HOWEVER, THE U.S.S. TOM GREEN COUNTY CONTINUED TO BE THE MEMBER'S PERMANENT DUTY STATION DURING THE PERIOD OF TEMPORARY DUTY, AND THE RECORD DOES NOT ESTABLISH THAT IN THESE CIRCUMSTANCES HIS DEPENDENTS COULD NOT HAVE CONTINUED TO REMAIN IN JAPAN WHILE HE WAS AWAY ON THE TEMPORARY DUTY ASSIGNMENT. AND, WHILE THE EFFECT OF SUCH TREATY MIGHT BE FOR CONSIDERATION IN DETERMINING THE MEMBER'S DUTY ASSIGNMENT, HIS RIGHT TO ALLOWANCES FOR THE TRAVEL OF HIS DEPENDENTS AND MOVEMENT OF HIS HOUSEHOLD EFFECTS IS FOR DETERMINATION UNDER THE STATUTORY PROVISIONS AND REGULATIONS RELATING TO THOSE ALLOWANCES.

FOR THE FOREGOING REASONS THE MEMBER'S ORDERS OF MAY 5, 1965, MAY NOT BE VIEWED AS COMPETENT PERMANENT CHANGE OF STATION ORDERS FOR WHICH HE IS AUTHORIZED TO RECEIVE TRANSPORTATION FOR HIS DEPENDENTS AND HOUSEHOLD EFFECTS AND PAYMENT OF DISLOCATION ALLOWANCE.