B-162268, SEPTEMBER 13, 1967, 47 COMP. GEN. 151

B-162268: Sep 13, 1967

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THE UNAVAILABILITY OF HIGH SCHOOL FACILITIES TO THE CHILD OF A MEMBER OF THE UNIFORMED SERVICES 2 YEARS AFTER THE MEMBER WHO ON A 3 YEAR OVERSEAS ASSIGNMENT WAS AWARE OF THE LACK PRIOR TO HIS DEPARTURE IS NOT THE UNUSUAL OR EMERGENCY CIRCUMSTANCES CONTEMPLATED BY 37 U.S.C. 406 (E) FOR THE ADVANCE TRANSPORTATION OF DEPENDENTS. PARAGRAPH M7103-2 (5) OF THE JOINT TRAVEL REGULATIONS MAY NOT BE CONSTRUED OTHER THAN AUTHORITY FOR THE ADVANCE RETURN OF DEPENDENTS TO THE UNITED STATES UPON CERTIFICATION BY AN OVERSEAS COMMANDER THAT THE LACK OF EDUCATIONAL FACILITIES OR HOUSING WAS BEYOND THE CONTROL OF THE MEMBER AND THE CONDITION AROSE AFTER DEPENDENTS DEPARTURE FOR THE OVERSEAS DUTY STATION. TO AUTHORIZE THE ADVANCE RETURN OF CHILDREN WHERE THE LACK OF EDUCATIONAL FACILITIES WAS KNOWN BEFORE DEPARTING FOR THE OVERSEAS STATION.

B-162268, SEPTEMBER 13, 1967, 47 COMP. GEN. 151

TRANSPORTATION - DEPENDENTS - MILITARY PERSONNEL - ADVANCE TRAVEL OF DEPENDENTS - SCHOOL FACILITIES LACKING, ETC. THE UNAVAILABILITY OF HIGH SCHOOL FACILITIES TO THE CHILD OF A MEMBER OF THE UNIFORMED SERVICES 2 YEARS AFTER THE MEMBER WHO ON A 3 YEAR OVERSEAS ASSIGNMENT WAS AWARE OF THE LACK PRIOR TO HIS DEPARTURE IS NOT THE UNUSUAL OR EMERGENCY CIRCUMSTANCES CONTEMPLATED BY 37 U.S.C. 406 (E) FOR THE ADVANCE TRANSPORTATION OF DEPENDENTS, AND PARAGRAPH M7103-2 (5) OF THE JOINT TRAVEL REGULATIONS MAY NOT BE CONSTRUED OTHER THAN AUTHORITY FOR THE ADVANCE RETURN OF DEPENDENTS TO THE UNITED STATES UPON CERTIFICATION BY AN OVERSEAS COMMANDER THAT THE LACK OF EDUCATIONAL FACILITIES OR HOUSING WAS BEYOND THE CONTROL OF THE MEMBER AND THE CONDITION AROSE AFTER DEPENDENTS DEPARTURE FOR THE OVERSEAS DUTY STATION, NOR THE REGULATIONS AMENDED, EITHER UNDER 37 U.S.C. 406 (E) REGARDING UNUSUAL OR EMERGENCY CONDITIONS OR SECTION 406 (H) PROVIDING FOR ADVANCE TRAVEL WHEN IN THE BEST INTERESTS OF A MEMBER OR HIS DEPENDENTS AND THE UNITED STATES, TO AUTHORIZE THE ADVANCE RETURN OF CHILDREN WHERE THE LACK OF EDUCATIONAL FACILITIES WAS KNOWN BEFORE DEPARTING FOR THE OVERSEAS STATION.

TO THE SECRETARY OF THE ARMY, SEPTEMBER 13, 1967:

BY LETTER DATED AUGUST 14, 1967, THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE FORWARDED LETTER OF AUGUST 3, 1967, FROM THE UNDER SECRETARY OF THE ARMY REQUESTING DECISION AS TO WHETHER THE JOINT TRAVEL REGULATIONS AS CURRENTLY WRITTEN PERMIT ADVANCE TRANSPORTATION OF DEPENDENTS DUE TO LACK OF EDUCATIONAL FACILITIES AT OVERSEAS STATIONS UNDER THE CIRCUMSTANCES PRESENTED. THE REQUEST HAS BEEN ASSIGNED PDTATAC CONTROL NO. 67-24.

IN HIS LETTER THE UNDER SECRETARY STATES THAT PARAGRAPH M7103-2 (5) OF THE JOINT TRAVEL REGULATIONS PERMITS APPROVAL OF ADVANCE TRANSPORTATION OF DEPENDENTS IN CASES WHERE THERE IS A LACK OF ADEQUATE EDUCATIONAL FACILITIES WHEN SUPPORTED BY A STATEMENT OF THE APPROVING AUTHORITY THAT THE INADEQUACY OF SUCH EDUCATIONAL FACILITIES WAS CAUSED BY CONDITIONS BEYOND THE CONTROL OF THE MEMBER AND AROSE AFTER COMMENCEMENT OF TRAVEL OF DEPENDENTS TO THE MEMBER'S OVERSEAS DUTY STATION. HE STATES FURTHER THAT A QUESTION HAS ARISEN AS TO THE INTERPRETATION OF THAT PROVISION WITH RESPECT TO CERTAIN CASES WHERE THE EDUCATIONAL FACILITIES AT THE OVERSEAS STATIONS WILL BE SUFFICIENT FOR A PORTION OF THE MEMBER'S TOUR BUT NOT FOR THE ENTIRE TOUR.

TO ILLUSTRATE THE PROBLEM, THE UNDER SECRETARY PRESENTS THE CASE OF A MEMBER WITH A CHILD ENTERING THE 7TH GRADE AT THE BEGINNING OF THE NEXT SCHOOL TERM, WHO TRANSFERS TO AN OVERSEAS STATION FOR A THREE YEAR TOUR DURING THE SUMMER VACATION. THE MEMBER IS AWARE, AT THE TIME OF TRANSFER THAT NO FACILITIES EXIST AT THAT STATION FOR CHILDREN IN THE 9TH AND HIGHER GRADES. WHEN THE CHILD HAS COMPLETED THE 7TH AND 8TH GRADES AND IS READY TO ENTER THE 9TH GRADE, THE MEMBER REQUESTS TRANSPORTATION OF HIS DEPENDENT CHILD TO THE UNITED STATES IN ACCORDANCE WITH PARAGRAPH M7103-2 (5) OF THE REGULATIONS ON THE PREMISE THAT THE LACK OF EDUCATIONAL FACILITIES FOR HIGH SCHOOL STUDENTS IN ITS APPLICATION TO HIS CASE "AROSE AFTER COMMENCEMENT OF TRAVEL OF DEPENDENTS TO THE MEMBER'S OVERSEAS STATION," EVEN THOUGH HE HAD KNOWLEDGE WHEN HE TRAVELED FROM THE UNITED STATES TWO YEARS PRIOR THERETO THAT HIGH SCHOOL EDUCATIONAL FACILITIES WERE NOT AVAILABLE AT THAT STATION.

THE UNDER SECRETARY ASKS WHETHER THE REGULATION AS CURRENTLY WRITTEN WILL PERMIT TRANSPORTATION OF THE DEPENDENT CHILD IN THE ILLUSTRATIVE CASE. NOT, HE ASKS FURTHER WHETHER THE UNDERLYING STATUTE IS BROAD ENOUGH TO PERMIT AN APPROPRIATE AMENDMENT TO THE REGULATIONS TO AUTHORIZE SUCH TRANSPORTATION.

AS A GENERAL PROPOSITION, SECTION 406 OF TITLE 37 OF THE UNITED STATES CODE, AUTHORIZES THE TRANSPORTATION OF DEPENDENTS WHEN THE MEMBER IS ORDERED TO MAKE A PERMANENT CHANGE OF STATION. SECTION 406 (E) OF TITLE 37 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 HAVE NOT BEEN ISSUED, OR WHEN SUCH ORDERS HAVE BEEN ISSUED BUT CANNOT BE USED AS AUTHORITY FOR THE TRANSPORTATION OF THE DEPENDENTS, BAGGAGE AND HOUSEHOLD EFFECTS.

IN THE DECISION OF JULY 16, 1958, 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 FROM OVERSEAS LOCATIONS 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.

WE SAID THAT IT WAS NOT CLEAR FROM THE LANGUAGE OF THE ACT, OR THE LEGISLATIVE HISTORY, THAT CONGRESS, IN ENACTING THE STATUTE, INTENDED TO AUTHORIZE THE ADVANCE RETURN AT GOVERNMENT EXPENSE OF DEPENDENTS OF MEMBERS ON AN INDIVIDUAL BASIS MERELY BECAUSE THE MEMBER ENCOUNTERS FINANCIAL DIFFICULTIES, HAS MARITAL TROUBLES, DESIRES TO RETURN DEPENDENTS TO THE UNITED STATES TO ATTEND SCHOOL, OR BECAUSE OF ILLNESS OR DEATH OF RELATIVES, ETC. IN THIS REGARD WE HAD PREVIOUSLY HELD THAT CONDITIONS OF A PERSONAL NATURE SUCH AS FINANCIAL DIFFICULTIES, ILLNESS, OR DEATH OF RELATIVES, INADEQUATE EDUCATIONAL FACILITIES, MAY NOT BE CONSIDERED AS UNUSUAL CIRCUMSTANCES AS CONTEMPLATED BY THE STATUTE. SEE B-126678, SEPTEMBER 4, 1956; B 130385, FEBRUARY 15, 1957; B-126196, DECEMBER 7, 1955; AND B-130184, JANUARY 10, 1957.

SUBSEQUENTLY, BY LETTER DATED JULY 1, 1959, THE THEN ASSISTANT SECRETARY OF THE NAVY PROPOSED AN ADDITIONAL CATEGORY TO BE ADDED TO PARAGRAPH 7009- 3 AS ITEM 6 OF THE JOINT TRAVEL REGULATIONS THEN IN EFFECT WHICH WOULD PROVIDE FOR ADVANCE RETURN OF DEPENDENTS TO THE UNITED STATES DUE TO LACK OF EDUCATIONAL FACILITIES OR HOUSING FOR DEPENDENTS WHEN SUPPORTED BY A CERTIFICATE BY THE MEMBER'S OVERSEAS COMMANDER THAT THE LACK OF SUCH EDUCATIONAL FACILITIES OR HOUSING WAS CAUSED BY CONDITIONS BEYOND THE CONTROL OF THE INDIVIDUAL AND AROSE AFTER COMMENCEMENT OF TRAVEL OF DEPENDENTS TO THE MEMBER'S DUTY STATION. IN OUR DECISION OF AUGUST 31, 1959, B-136163, WE SAID THE PROPOSED CHANGE APPEARS TO BE IN ACCORD WITH THE INTENT OF THE STATUTE AS CONSTRUED BY OUR DECISION OF JULY 16, 1958, 38 COMP. GEN. 28, AND WE PERCEIVED NO LEGAL OBJECTION TO THE PROPOSED CHANGE.

SUCH REGULATION, WHICH IS SUBSTANTIALLY THE SAME AS THE CURRENT REGULATION, SPECIFICALLY RESTRICTS THE ADVANCE TRANSPORTATION OF DEPENDENTS DUE TO LACK OF EDUCATIONAL FACILITIES FOR CHILDREN AT THE MEMBER'S OVERSEAS STATION TO SITUATIONS WHERE SUCH LACK OF FACILITIES COULD NOT HAVE BEEN DETERMINED BEFORE THE MEMBER DEPARTED FOR SUCH STATION. SINCE THE MEMBER DESCRIBED IN THE UNDER SECRETARY'S LETTER WAS AWARE AT THE TIME OF HIS DEPARTURE THAT NO FACILITIES EXIST FOR CHILDREN IN THE 9TH AND HIGHER GRADES, IT IS CLEAR THAT THE LACK OF FACILITIES DID NOT ARISE AFTER THE DEPENDENT'S TRAVEL OVERSEAS AND HIS CASE IS NOT WITHIN THE PURVIEW OF THE REGULATION AS CURRENTLY WRITTEN AND TRANSPORTATION OF THE DEPENDENT CHILD IN THE ILLUSTRATED CASE IS NOT AUTHORIZED.

CONCERNING THE UNDER SECRETARY'S QUESTION WHETHER THE UNDERLYING STATUTE IS BROAD ENOUGH TO PERMIT AN APPROPRIATE AMENDMENT TO THE REGULATIONS TO AUTHORIZE SUCH TRANSPORTATION, THE AUTHORITY TO AUTHORIZE TRANSPORTATION OF DEPENDENTS IN SITUATIONS WHERE CHANGE OF STATION ORDERS HAD NOT BEEN ISSUED, WAS ENLARGED BY THE ENACTMENT OF PUBLIC LAW 88-431 (NOW 37 U.S.C. 406 (H) ( AUTHORIZING THE RETURN OF DEPENDENTS FROM OVERSEAS TO THE UNITED STATES WHEN THE SECRETARY CONCERNED DETERMINES IT TO BE IN THE BEST INTERESTS OF THE MEMBER OR HIS DEPENDENTS AND THE UNITED STATES.

THE LEGISLATIVE HISTORY OF PUBLIC LAW 88-431, DISCLOSES THAT THE PRIMARY PURPOSE OF THE LEGISLATION WAS TO PROVIDE AUTHORITY FOR THE ADVANCE RETURN OF DEPENDENTS, HOUSEHOLD GOODS AND PRIVATELY OWNED VEHICLES OF MILITARY PERSONNEL FROM OVERSEAS AREAS TO LOCATIONS IN THE UNITED STATES UNDER SUCH CIRCUMSTANCES AS UNFORESEEN FAMILY PROBLEMS, MARITAL TROUBLE, AND FINANCIAL PROBLEMS BROUGHT ABOUT BY CIRCUMSTANCES SUCH AS CONFINEMENT OR REDUCTION IN GRADE OF THE MEMBER, REASONS WHICH WE HELD IN 38 COMP. GEN. 28, GENERALLY COULD NOT BE CONSIDERED AS "UNUSUAL OR EMERGENCY CIRCUMSTANCES" AS CONTEMPLATED BY THE PROVISIONS OF 37 U.S.C. 253 (C), THEN IN EFFECT, NOW RECODIFIED IN 37 U.S.C. 406 (E).

IN URGING THE ENACTMENT OF PUBLIC LAW 88-431, THE REPRESENTATIVE OF THE MILITARY DEPARTMENTS SAID (PAGE 3006 OF THE HEARINGS (NO. 10) HELD ON MAY 28, 1963, BEFORE SUBCOMMITTEE NO. 1, COMMITTEE ON ARMED SERVICES, HOUSE OF REPRESENTATIVES, ON H.R. 4739, WHICH BECAME PUBLIC LAW 88-431) THAT UNDER PRESENT LAW, SECTION 7 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, AS AMENDED BY THE ACT OF AUGUST 31, 1954 (5 U.S.C. 73B-3), AND REGULATIONS ISSUED PURSUANT THERETO, MEMBERS OF THE IMMEDIATE FAMILY AND HOUSEHOLD GOODS OF A CIVILIAN EMPLOYEE SERVING OUTSIDE THE UNITED STATES MAY BE RETURNED TO THE UNITED STATES, PRIOR TO RETURN OF THE EMPLOYEE, AT GOVERNMENT EXPENSE WHEN DETERMINED IN THE PUBLIC INTEREST, OR IF THE RETURN IS FOR ANY OTHER REASON THE EMPLOYEE MAY BE REIMBURSED FOR SUCH EXPENSES UPON COMPLETION OF HIS AGREED PERIOD OF SERVICE. THE WITNESS SAID THAT IT IS CONSIDERED THAT MILITARY PERSONNEL SHOULD BE AFFORDED RETURN TRANSPORTATION BENEFITS AT LEAST EQUIVALENT TO THOSE PROVIDED FOR CIVILIAN EMPLOYEES SERVING OVERSEAS, AND SINCE MILITARY MEMBERS ARE REQUIRED TO COMPLETE ASSIGNED OVERSEA TOURS OF DUTY, THE LEGISLATION PROPOSED WOULD IN THIS RESPECT EXTEND TO THE MILITARY MEMBERS SUBSTANTIALLY THE SAME RIGHTS NOW PROVIDED FOR CIVILIAN EMPLOYEES SERVING OVERSEAS.

WITH RESPECT TO THE RETURN TRANSPORTATION BENEFITS PROVIDED FOR CIVILIAN EMPLOYEES SERVING OVERSEAS, IT APPEARS THAT UNDER THE LAW THEN IN EFFECT, SECTION 7 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, AS AMENDED, EXPENSES OF TRANSPORTATION OF MEMBERS OF THE IMMEDIATE FAMILY OF AN EMPLOYEE SERVING AT A POST OUTSIDE CONTINENTAL UNITED STATES TO THE UNITED STATES WAS AUTHORIZED FOR COMPELLING PERSONAL REASONS OF A HUMAN, HUMANITARIAN OR PERSONAL NATURE, SUCH AS MAY INVOLVE PHYSICAL OR 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 LAW AT THAT TIME DID NOT PROVIDE AUTHORITY TO PAY TRAVEL EXPENSES OF DEPENDENTS OF CIVILIAN EMPLOYEES WHO WERE TRANSPORTED TO THE UNITED STATES FOR EDUCATIONAL PURPOSES. THEREAFTER, SPECIFIC AUTHORITY TO PAY SUCH TRAVEL EXPENSES WAS AUTHORIZED IN SECTION 221 OF THE "OVERSEAS DIFFERENTIALS AND ALLOWANCES ACT," (PUBLIC LAW 86-707, SEPTEMBER 6, 1960), 74 STAT. 794, 5 U.S.C. 3037 (4) (B) AND IMPLEMENTING REGULATIONS CONTAINED IN THE STANDARDIZED REGULATIONS (GOVERNMENT CIVILIANS, FOREIGN AREAS).

BASED ON THE FOREGOING, WE MUST CONCLUDE THAT THE PRESENT LAWS GOVERNING THE TRANSPORTATION OF DEPENDENTS OF MEMBERS OF THE UNIFORMED SERVICES DO NOT PROVIDE AUTHORITY FOR THE ADVANCE TRANSPORTATION OF DEPENDENTS TO THE UNITED STATES FOR EDUCATIONAL PURPOSES WHEN LACK OF EDUCATIONAL FACILITIES AT THE OVERSEAS STATION WAS KNOWN WHEN THE MEMBER WAS ORDERED OVERSEAS.