B-161246, JUNE 13, 1967, 46 COMP. GEN. 852

B-161246: Jun 13, 1967

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MILITARY PERSONNEL - TRANSPORTATION - TO OTHER THAN NEW STATION - TRAINING DUTY AND OVERSEAS ASSIGNMENT THE AUTHORITY IN 37 U.S.C. 406 FOR THE TRANSPORTATION OF THE DEPENDENTS AND HOUSEHOLD EFFECTS OF A MEMBER OF THE UNIFORMED SERVICES FROM HIS OLD TO HIS NEW PERMANENT DUTY STATION DOES NOT PERMIT ALLOWING A MEMBER ASSIGNED TO 20 WEEKS OR MORE OF TRAINING DUTY UNDER PERMANENT CHANGE-OF- STATION ORDERS THAT ARE SILENT AS TO HIS SUBSEQUENT. EVEN THOUGH THE MEMBER IS OFFICIALLY ADVISED OF THE OVERSEAS ASSIGNMENT. 1967: FURTHER REFERENCE IS MADE TO LETTER DATED MARCH 27. REQUESTING DECISION WHETHER THE JOINT TRAVEL REGULATIONS MAY BE AMENDED TO AUTHORIZE TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD GOODS AT GOVERNMENT EXPENSE TO A DESIGNATED LOCATION UPON DETACHMENT OF THE MEMBER FROM THE OLD PERMANENT DUTY STATION PRIOR TO ISSUANCE OF ORDERS ASSIGNING THE MEMBER TO A RESTRICTED AREA WHEN AN INTERVENING TRAINING DUTY COURSE OF 20 WEEKS OR MORE IS TO BE FOLLOWED IMMEDIATELY BY ONWARD MOVEMENT TO THE RESTRICTED AREA.

B-161246, JUNE 13, 1967, 46 COMP. GEN. 852

MILITARY PERSONNEL - TRANSPORTATION - TO OTHER THAN NEW STATION - TRAINING DUTY AND OVERSEAS ASSIGNMENT THE AUTHORITY IN 37 U.S.C. 406 FOR THE TRANSPORTATION OF THE DEPENDENTS AND HOUSEHOLD EFFECTS OF A MEMBER OF THE UNIFORMED SERVICES FROM HIS OLD TO HIS NEW PERMANENT DUTY STATION DOES NOT PERMIT ALLOWING A MEMBER ASSIGNED TO 20 WEEKS OR MORE OF TRAINING DUTY UNDER PERMANENT CHANGE-OF- STATION ORDERS THAT ARE SILENT AS TO HIS SUBSEQUENT, IMMEDIATE TRANSFER TO A RESTRICTED AREA OVERSEAS, THE ALTERNATIVE RIGHT TO MOVE TO THE TRAINING STATION OR TO SELECT A LOCATION, EVEN THOUGH THE MEMBER IS OFFICIALLY ADVISED OF THE OVERSEAS ASSIGNMENT, THE TRAINING ASSIGNMENT CONSTITUTING A PERMANENT CHANGE OF STATION AND NOT AN INTERMEDIATE ASSIGNMENT FOR FURTHER TRANSFER OVERSEAS TO A RESTRICTED AREA AND, THEREFORE, THE JOINT TRAVEL REGULATIONS MAY NOT BE AMENDED TO AUTHORIZE THE TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS TO A LOCATION DESIGNATED BY A MEMBER.

TO THE SECRETARY OF THE NAVY, JUNE 13, 1967:

FURTHER REFERENCE IS MADE TO LETTER DATED MARCH 27, 1967, FROM THE ASSISTANT SECRETARY OF THE NAVY, REQUESTING DECISION WHETHER THE JOINT TRAVEL REGULATIONS MAY BE AMENDED TO AUTHORIZE TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD GOODS AT GOVERNMENT EXPENSE TO A DESIGNATED LOCATION UPON DETACHMENT OF THE MEMBER FROM THE OLD PERMANENT DUTY STATION PRIOR TO ISSUANCE OF ORDERS ASSIGNING THE MEMBER TO A RESTRICTED AREA WHEN AN INTERVENING TRAINING DUTY COURSE OF 20 WEEKS OR MORE IS TO BE FOLLOWED IMMEDIATELY BY ONWARD MOVEMENT TO THE RESTRICTED AREA. THE REQUEST WAS ASSIGNED CONTROL NO. 67-13 BY THE DEPARTMENT OF DEFENSE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

IN THE LETTER IT IS STATED THAT THE CURRENT JOINT TRAVEL REGULATIONS,WHILE AUTHORIZING TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD GOODS FROM OLD TO NEW STATION INCIDENT TO TRANSFER OR ASSIGNMENT OF A MEMBER TO A SCHOOL OR INSTALLATION FOR A COURSE OF INSTRUCTION OF 20 WEEKS OR MORE, DO NOT EXTEND THIS ENTITLEMENT TO INCLUDE A DESIGNATED LOCATION.

FURTHER, IT IS STATED THAT PARAGRAPHS M7108 AND M8307, JOINT TRAVEL REGULATIONS, RESPECTIVELY, AUTHORIZE TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD GOODS TO A DESIGNATED LOCATION UNDER SOMEWHAT SIMILAR CIRCUMSTANCES, PROVIDED THE ONWARD MOVEMENT OF THE MEMBER TO THE RESTRICTED AREA IS CONTEMPLATED TO COMMENCE WITHIN 90 DAYS AFTER AN ALERT NOTICE. IT IS POINTED OUT, HOWEVER, THAT NO PROVISION IS MADE FOR TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD GOODS TO A DESIGNATED LOCATION WHEN PERMANENT CHANGE-OF-STATION ORDERS TO TRAINING DUTY ARE SILENT AS TO THE SUBSEQUENT ASSIGNMENT ON COMPLETION OF TRAINING DUTY.

IT IS EXPLAINED THAT THE INTENT OF THE PROPOSED REGULATIONS IS TO PROVIDE FOR AN ORDERLY RELOCATION OF FAMILIES OF CERTAIN MEMBERS WHO ARE ORDERED TO TRAINING DUTY WITH THE KNOWLEDGE THAT THEY ARE TO BE ASSIGNED TO A RESTRICTED AREA IMMEDIATELY UPON COMPLETION OF TRAINING DUTY, WITH A MINIMUM OF LEAVE (5 DAYS) TO BE GRANTED. THE ASSISTANT SECRETARY SAYS THE PROPOSED AMENDMENTS WOULD APPEAR TO BE IN THE INTERESTS OF THE GOVERNMENT AS WELL AS THE MEMBER. THEREFORE, HE REQUESTS OUR DECISION AS TO THE LEGALITY OF THE PROPOSED AMENDMENTS TO THE JOINT TRAVEL REGULATIONS TO AUTHORIZE TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS, AT THE ELECTION OF THE MEMBER, IN THOSE CASES WHERE THE MEMBERS ARE OFFICIALLY ADVISED WHEN ASSIGNED TO TRAINING DUTY FOR A PERIOD OF 20 WEEKS OR MORE THAT SUBSEQUENT ORDERS ON COMPLETION OF TRAINING DUTY WILL PROVIDE FOR IMMEDIATE ASSIGNMENT TO A RESTRICTED AREA.

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.

ORDINARILY, A MILITARY MEMBER ORDERED TO A SCHOOL AS A STUDENT FOR THE PURPOSE OF PURSUING A SPECIAL COURSE OF INSTRUCTION OF BRIEF, DEFINITE DURATION IS IN FACT IN A TEMPORARY DUTY STATUS WHILE SO ASSIGNED AND IS NOT ENTITLED TO THE RIGHTS AND BENEFITS AS FOR A PERMANENT CHANGE OF STATION. HOWEVER, IN VIEW OF REPRESENTATIONS MADE BY THE SECRETARY OF WAR, IN OUR DECISION TO HIM OF MARCH 10, 1945, 24 COMP. GEN. 667, THIS OFFICE STATED THAT ASSIGNMENTS TO SCHOOLS UNDER THE CONDITIONS STATED IN THE SECRETARY'S LETTER WILL BE CONSIDERED AS PERMANENT STATION ASSIGNMENTS IN ALL RESPECTS AND THAT THE RIGHTS OF PERSONNEL SO ASSIGNED WHEN TRANSFERRED TO A NEW STATION WILL BE FOR DETERMINATION ACCORDINGLY.

FOLLOWING OUR DECISION IN 24 COMP. GEN. 667, THE WAR DEPARTMENT PROMULGATED CIRCULAR NO. 267, DATED SEPTEMBER 5, 1946, TO THE EFFECT THAT AN ASSIGNMENT TO A SCHOOL FOR MORE THAN 5 MONTHS WOULD BE ON A PERMANENT CHANGE-OF-STATION BASIS. THIS MINIMUM OF 5 MONTHS AT ONE PLACE WAS CARRIED INTO THE JOINT TRAVEL REGULATIONS UNDER INDETERMINATE TEMPORARY DUTY AND PARAGRAPH M7007-2 NOW AUTHORIZES TRANSPORTATION OF DEPENDENTS INCIDENT TO CERTAIN TEMPORARY DUTY ASSIGNMENTS OF A CONTEMPLATED DURATION OF 20 WEEKS OR MORE.

ALTHOUGH ORDERS TO DUTY AS A STUDENT, EVEN FOR A PERIOD OF MORE THAN 5 MONTHS, LACKED CERTAIN ELEMENTS ORDINARILY PRESENT IN A PERMANENT CHANGE- OF-STATION, OUR OFFICE RAISED NO OBJECTION TO THOSE REGULATIONS, SINCE THE STATUTE AUTHORIZING TRANSPORTATION OF THE DEPENDENTS OF A MEMBER ORDERED TO MAKE A PERMANENT CHANGE OF STATION CLEARLY WAS INTENDED TO RELIEVE HIM TO THE EXTENT OF THE COST OF TRAVEL TO THE NEW STATION OF THE BURDEN OF TRANSPORTING HIS DEPENDENTS AT HIS OWN EXPENSE WHEN THE CONDITIONS OF THE SERVICE WARRANTED A CHANGE IN THEIR RESIDENCE. 21 COMP. GEN. 175, 177. THUS, ASSIGNMENTS TO SCHOOLS WHEN THE COURSES ARE TO BE 20 WEEKS OR MORE AT ONE PLACE WERE PLACED IN THE PERMANENT CHANGE-OF-STATION CATEGORY. COMP. GEN. 569 AND 34 COMP. GEN. 260. PARAGRAPH M1150-10B DEFINES THE SCHOOL OR INSTALLATION TO WHICH THE MEMBER IS SO ASSIGNED AS A PERMANENT DUTY STATION.

THE LAW IS PLAIN THAT TRANSPORTATION OF DEPENDENTS IS AUTHORIZED ONLY ON CHANGE OF PERMANENT STATION, EXCEPT IN "UNUSUAL OR EMERGENCY" CIRCUMSTANCES. 38 COMP. GEN. 453, 455 AND 34 COMP. GEN. 467, 469. AND IT HAS LONG BEEN HELD THAT THE BENEFITS OF THE STATUTE DO NOT ACCRUE WHEN THE DEPENDENTS PERFORM TRAVEL IN ANTICIPATION OF ORDERS BEING ISSUED TO THE MEMBER TO CHANGE STATIONS. 8 COMP. GEN. 334, AND AUTHORITIES CITED THEREIN. ALSO, IT IS FUNDAMENTAL THAT REGULATIONS OF AN EXECUTIVE DEPARTMENT MUST NOT BE INCONSISTENT WITH LAW BUT MUST CONFORM TO THE LAW. 32 COMP. GEN. 410.

IN LETTER DATED SEPTEMBER 6, 1956, THE THEN ASSISTANT SECRETARY OF THE NAVY REQUESTED OUR DECISION WHETHER IN CONNECTION WITH ASSIGNMENTS TO DUTY OUTSIDE THE UNITED STATES, THE SECRETARIES COULD AMEND THE JOINT TRAVEL REGULATIONS TO PROVIDE FOR TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD GOODS FROM THE MEMBER'S OLD DUTY STATION IN THE UNITED STATES TO A DESIGNATED POINT IN THE UNITED STATES FOR A PERIOD OF NOT LESS THAN 20 WEEKS AND SUBSEQUENTLY FROM SUCH DESIGNATED PLACE TO THE MEMBER'S OVERSEAS DUTY STATION WITHOUT FURTHER PERMANENT CHANGE-OF STATION ORDERS, NOTWITHSTANDING THE FACT THAT TRANSPORTATION OF DEPENDENTS TO THE OVERSEAS DUTY STATION WAS NOT RESTRICTED AT THE TIME THE MEMBER WAS SO ASSIGNED.

IN OUR DECISION TO THE THEN SECRETARY OF THE NAVY, B-129195, DATED OCTOBER 12, 1956, WE STATED THAT THE RIGHT OF A MEMBER OF THE UNIFORMED SERVICES TO PAYMENT FOR THE COST OF TRANSPORTING HIS DEPENDENTS ON PERMANENT CHANGE OF STATION UNDER ORDERS THAT DO NOT RESTRICT TRAVEL OF DEPENDENTS TO THE NEW STATION IS BASED ON, AND IS NO GREATER THAN, THE RIGHTS SECURED TO HIM UNDER SUCH ORDERS INCIDENT TO HIS OWN TRAVEL, UNLESS APPLICABLE PROVISIONS OF LAW PROVIDE OTHERWISE. WE EXPLAINED THAT SINCE THE MEMBER'S RIGHTS TO TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS ARE BASED ON HIS PERMANENT CHANGE-OF-STATION ORDERS, THERE WAS NO LEGAL BASIS TO AUTHORIZE TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS FROM THE OLD DUTY STATION TO A DESIGNATED PLACE IN THE UNITED STATES AND THENCE TO THE UNRESTRICTED NEW STATION OVERSEAS. ALSO, SEE DECISION OF OCTOBER 8, 1954, B-115509.

THE SAME REASONING WOULD APPEAR TO BE APPLICABLE WITH RESPECT TO THE AMENDMENT OF THE REGULATIONS NOW SUGGESTED BY THE ASSISTANT SECRETARY. THE LAW AND REGULATIONS LIMIT TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS AT GOVERNMENT EXPENSE ON PERMANENT CHANGE OF STATION ON THE BASIS OF ENTITLEMENT ONLY FROM THE OLD TO NEW STATION WHEN TRANSPORTATION TO THE NEW STATION IS NOT RESTRICTED. SINCE ASSIGNMENTS TO SCHOOLS FOR 20 WEEKS OR MORE ARE PERMANENT DUTY ASSIGNMENTS, AND MAY NOT BE TREATED AS INTERMEDIATE STATION ASSIGNMENTS FOR FURTHER TRANSFER OVERSEAS TO A RESTRICTED STATION, THE PROPOSED REGULATIONS AUTHORIZING TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS TO ANOTHER PLACE DESIGNATED BY THE MEMBER CONCERNED CANNOT BE ACCEPTED BY THIS OFFICE AS AUTHORIZED BY LAW.

AS STATED ABOVE, THE ASSISTANT SECRETARY CALLS ATTENTION TO PARAGRAPHS M7108 AND M8307 OF THE JOINT TRAVEL REGULATIONS RELATIVE TO TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS TO A DESIGNATED LOCATION INCIDENT TO AN ALERT NOTICE FOR MOVEMENT TO A RESTRICTED STATION OVERSEAS WHICH HE SAYS IS A MOVEMENT UNDER SOMEWHAT SIMILAR CIRCUMSTANCES. HE SEEMS TO FEEL THAT THIS WOULD SERVE AS A BASIS TO AUTHORIZE THE PROMULGATION OF THE PROPOSED REGULATIONS. IN OUR DECISION OF OCTOBER 28, 1965, TO THE SECRETARY OF THE NAVY, 45 COMP. GEN. 208, NO OBJECTION WAS INTERPOSED TO AMENDING THE JOINT TRAVEL REGULATIONS TO PROVIDE FOR TRANSPORTATION OF A MEMBER'S DEPENDENTS INCIDENT TO AN OFFICIAL ALERT NOTIFICATION PROVIDING THE ACTUAL MOVEMENT COMMENCES WITHIN A PERIOD OF 90 DAYS (OR SUCH SHORTER PERIOD AS MAY BE SPECIFIED IN THE REGULATIONS) AFTER THE ALERT NOTICE HAS BEEN ISSUED.

IN THE CITED DECISION OF OCTOBER 28, 1965, WE POINTED OUT THAT AN ALERT NOTICE DOES NOT CONFORM TO THE REQUIREMENTS OF A COMPETENT TRAVEL ORDER AND MAY NOT BE TREATED AS A COMPETENT PERMANENT CHANGE-OF STATION ORDER. WE CONCLUDED, HOWEVER, THAT TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS OF MEMBERS ALERTED FOR DEPLOYMENT TO A RESTRICTED STATION OVERSEAS, CONTEMPLATED TO COMMENCE WITHIN A PERIOD OF NOT MORE THAN 90 DAYS, MIGHT BE AUTHORIZED IN THE CIRCUMSTANCES IN THE SUBMISSION UNDER 37 U.S.C. 406 (E) WHICH PROVIDES AUTHORITY UNDER PROPER REGULATIONS FOR THE TRANSPORTATION OF DEPENDENTS, BAGGAGE, AND HOUSEHOLD EFFECTS AS AUTHORIZED UNDER SUBSECTION (A) OR (B) OF THAT SECTION, BUT ONLY IN UNUSUAL OR EMERGENCY CIRCUMSTANCES AND WHERE NOT OTHERWISE AUTHORIZED BY PERMANENT CHANGE-OF-STATION ORDERS.

REGULATIONS PROVIDING FOR TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS TO A DESIGNATED PLACE WHEN THE MEMBER IS ORDERED TO A RESTRICTED STATION HAVE BEEN ISSUED UNDER THE STATUTORY PROVISIONS RELATING TO SUCH MOVEMENTS UNDER UNUSUAL OR EMERGENCY CIRCUMSTANCES SINCE THE MEMBER'S ORDERS DO NOT CONSTITUTE AUTHORITY FOR MOVEMENT OF THE DEPENDENTS AND HOUSEHOLD EFFECTS TO HIS RESTRICTED STATION. THE AUTHORITY PROVIDED IN SECTION 406 (E) FOR MOVEMENT UNDER UNUSUAL OR EMERGENCY CIRCUMSTANCES MAY BE USED ONLY IF PERMANENT CHANGE-OF-STATION ORDERS HAVE NOT BEEN ISSUED, OR IF ISSUED, DO NOT CONSTITUTE AUTHORITY FOR THE MOVEMENT OF THE DEPENDENTS AND HOUSEHOLD EFFECTS. SINCE THE MEMBER'S ORDERS TO ATTEND A COURSE FOR MORE THAN 20 WEEKS CONSTITUTE PERMANENT CHANGE-OF-STATION ORDERS UNDER WHICH DEPENDENTS AND HOUSEHOLD EFFECTS ARE AUTHORIZED TO MOVE AT GOVERNMENT EXPENSE, WE FIND NO BASIS FOR AUTHORIZING AN ALTERNATIVE RIGHT TO MOVE TO THE TRAINING STATION OR TO A DESIGNATED LOCATION, AT THE ELECTION OF THE MEMBER, BY REASON OF NOTICE THAT ON COMPLETION OF THE TRAINING COURSE, AFTER A PERIOD OF 20 WEEKS OR MORE, THE MEMBER WILL BE FURTHER TRANSFERRED TO A RESTRICTED STATION OVERSEAS.