B-163106, JAN 6, 1972, 51 COMP GEN 392

B-163106: Jan 6, 1972

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PERSONS - STORAGE OF HOUSEHOLD EFFECTS - EXTENSION OF NONTEMPORARY STORAGE THE REQUIREMENT IN THE JOINT TRAVEL REGULATIONS THAT THE SECRETARY CONCERNED OR HIS DESIGNEE AT THE TERMINATION OF EACH YEAR A MEMBER OF THE UNIFORMED SERVICES IS IN A MISSING STATUS - THAT IS ABSENT FOR A PERIOD OF MORE THAN 29 DAYS - MUST DETERMINE THE NEED FOR AND AUTHORIZE AN EXTENSION OF THE NONTEMPORARY STORAGE OF THE HOUSEHOLD AND PERSONAL EFFECTS OF THE MEMBER PROVIDED UNDER PARAGRAPH M8101-6 OF THE REGULATIONS IS IN ACCORD WITH THE LANGUAGE OF PUBLIC LAW 90-236 (37 U.S.C. 554(B)) AND ITS LEGISLATIVE HISTORY AND. THE REGULATIONS MAY NOT BE AMENDED TO DELETE THE YEARLY APPROVAL REQUIREMENT TO PROVIDE FOR THE CONTINUATION OF NONTEMPORARY STORAGE SO LONG AS A MEMBER IS IN A MISSING STATUS.

B-163106, JAN 6, 1972, 51 COMP GEN 392

MILITARY PERSONNEL - MISSING, INTERNED, ETC., PERSONS - STORAGE OF HOUSEHOLD EFFECTS - EXTENSION OF NONTEMPORARY STORAGE THE REQUIREMENT IN THE JOINT TRAVEL REGULATIONS THAT THE SECRETARY CONCERNED OR HIS DESIGNEE AT THE TERMINATION OF EACH YEAR A MEMBER OF THE UNIFORMED SERVICES IS IN A MISSING STATUS - THAT IS ABSENT FOR A PERIOD OF MORE THAN 29 DAYS - MUST DETERMINE THE NEED FOR AND AUTHORIZE AN EXTENSION OF THE NONTEMPORARY STORAGE OF THE HOUSEHOLD AND PERSONAL EFFECTS OF THE MEMBER PROVIDED UNDER PARAGRAPH M8101-6 OF THE REGULATIONS IS IN ACCORD WITH THE LANGUAGE OF PUBLIC LAW 90-236 (37 U.S.C. 554(B)) AND ITS LEGISLATIVE HISTORY AND, THEREFORE, THE REGULATIONS MAY NOT BE AMENDED TO DELETE THE YEARLY APPROVAL REQUIREMENT TO PROVIDE FOR THE CONTINUATION OF NONTEMPORARY STORAGE SO LONG AS A MEMBER IS IN A MISSING STATUS.

TO THE SECRETARY OF THE NAVY, JANUARY 6, 1972:

WE AGAIN REFER TO LETTER OF JULY 27, 1971, FROM THE ASSISTANT SECRETARY OF THE NAVY (MANPOWER AND RESERVE AFFAIRS), REQUESTING A DECISION WHETHER, AS PRESENTLY REQUIRED BY THE JOINT TRAVEL REGULATIONS IN THE CASE OF A MEMBER WHO IS OFFICIALLY REPORTED AS BEING ABSENT FOR A PERIOD OF 30 DAYS OR MORE IN A MISSING STATUS, THE SECRETARY CONCERNED MUST DETERMINE THE NEED FOR AND AUTHORIZE AN EXTENSION OF NONTEMPORARY STORAGE OF HOUSEHOLD GOODS AT THE TERMINATION OF EACH YEAR THE MEMBER IS IN A MISSING STATUS, OR WHETHER THE REGULATIONS MAY BE AMENDED TO PROVIDE THAT SUCH NONTEMPORARY STORAGE MAY CONTINUE SO LONG AS THE MEMBER IS IN A MISSING STATUS, AS SUCH STATUS MAY BE DETERMINED OR CONTINUED BY THE SECRETARY CONCERNED OR HIS DESIGNEE. THE REQUEST WAS ASSIGNED CONTROL NO. 71-35 BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

PARAGRAPH M8354-3B, JOINT TRAVEL REGULATIONS, VOLUME 1, PROVIDES THAT WHEN A MEMBER IS OFFICIALLY REPORTED AS BEING ABSENT FOR A PERIOD OF 30 DAYS OR MORE IN A MISSING STATUS, NONTEMPORARY STORAGE OF HOUSEHOLD GOODS IS AUTHORIZED IN ACCORDANCE WITH PARAGRAPH M8101-6, ITEM 24, FOR A PERIOD OF NOT TO EXCEED 1 YEAR FROM THE DATE OF THE STATUS REPORT. ITEM 24 PROVIDES THAT SUCH STORAGE WILL TERMINATE NOT TO EXCEED 1 YEAR FROM THE DATE OF THE OFFICIAL MISSING STATUS REPORT, UNLESS FURTHER EXTENDED BY THE SECRETARY OF THE SERVICE CONCERNED, OR HIS DESIGNATED REPRESENTATIVE.

THE ASSISTANT SECRETARY SAYS THAT THOSE PROVISIONS OF THE REGULATIONS WERE ASSUMED TO REPRESENT THE SPIRIT AND INTENT OF THE LAW, IT BEING FURTHER ASSUMED THAT ENTITLEMENT TO NONTEMPORARY STORAGE IN SUCH CASES SHOULD NOT EXCEED 1 YEAR FROM THE DATE OF THE STATUS REPORT, UNLESS THE SECRETARY CONCERNED SHOULD DETERMINE THAT A LONGER PERIOD WAS JUSTIFIED BY THE FACTS IN A PARTICULAR CASE. HE SAYS THAT ONE OF THE UNIFORMED SERVICES, HOWEVER, HAS QUESTIONED SUCH ASSUMPTIONS, CONTENDING THAT AS LONG AS A MEMBER IS IN A MISSING STATUS, ENTITLEMENT TO NONTEMPORARY STORAGE IS JUSTIFIED AND THAT NO ADMINISTRATIVE ACTION SHOULD BE REQUIRED TO EXTEND THE ENTITLEMENT AS LONG AS THE MEMBER REMAINS IN THAT STATUS.

THE SERVICE QUESTIONING THE REGULATIONS POINTS OUT THAT THE HOUSEHOLD EFFECTS ARE THE PROPERTY OF THE MEMBER, THAT HE ALONE IS RESPONSIBLE FOR THEIR MANAGEMENT, THAT TO REQUIRE THE DEPENDENTS TO ASSUME RESPONSIBILITY FOR MANAGEMENT OF THE HOUSEHOLD GOODS IS NOT THE NORMAL SITUATION AND WHEN THE DEPENDENT FAILS TO REQUEST AN EXTENSION OF STORAGE THE MEMBER BECOMES LIABLE FOR THE STORAGE CHARGES INCURRED AFTER THE 1-YEAR PERIOD HAS EXPIRED. THEREFORE, THE ASSISTANT SECRETARY REQUESTS OUR ADVICE WHETHER THE REGULATIONS MAY BE AMENDED TO PROVIDE THAT SUCH HOUSEHOLD GOODS MAY BE CONTINUED IN NONTEMPORARY STORAGE SO LONG AS THE MEMBER IS IN A MISSING STATUS, AS SUCH STATUS MAY BE DETERMINED OR CONTINUED BY THE SECRETARY CONCERNED OR HIS DESIGNEE.

THE PERTINENT PROVISION OF 37 U.S.C. 554(B), AS ADDED BY PUBLIC LAW 90- 236, APPROVED JANUARY 2, 1968, 81 STAT. 764, IS AS FOLLOWS:

WHEN HE CONSIDERS IT NECESSARY, THE SECRETARY CONCERNED MAY, WITH RESPECT TO THE HOUSEHOLD AND PERSONAL EFFECTS OF A MEMBER WHO IS OFFICIALLY REPORTED AS ABSENT FOR A PERIOD OF MORE THAN 29 DAYS IN A MISSING STATUS, AUTHORIZE THE NONTEMPORARY STORAGE OF THOSE EFFECTS FOR A PERIOD OF ONE YEAR, OR LONGER WHEN JUSTIFIED.

THE LEGISLATIVE HISTORY OF H.R. 12961 WHICH BECAME PUBLIC LAW 90-236 SHOWS THAT THE PROVISION WAS ENACTED AT THE REQUEST OF THE DEPARTMENT OF DEFENSE BECAUSE OF THE NEED, IN SOME CASES, TO PROVIDE NONTEMPORARY STORAGE OF HOUSEHOLD EFFECTS WHEN THE MEMBER IS IN A MISSING STATUS, OUR OFFICE HAVING CONCLUDED THAT NONTEMPORARY STORAGE WAS NOT AUTHORIZED UNDER THE PERTINENT STATUTORY PROVISIONS THEN IN EFFECT. AS THERE STATED, IN B- 141976 OF MARCH 8, 1960, WE HELD THAT THE LAW DID NOT PROVIDE FOR NONTEMPORARY STORAGE OF HOUSEHOLD EFFECTS OF A PERSON IN A MISSING STATUS. IN 41 COMP. GEN. 402 (1961) WE FURTHER HELD THAT TEMPORARY STORAGE IS AUTHORIZED ONLY INCIDENT TO A SHIPMENT OF HOUSEHOLD EFFECTS AND MAY NOT EXCEED 180 DAYS IN THE ABSENCE OF A FURTHER EXPRESSION OF CONGRESSIONAL INTENT.

IN THE HEARINGS BEFORE SUBCOMMITTEE NO. 4, COMMITTEE ON ARMED SERVICES (REPORT NO. 31) IT IS STATED THAT THE PURPOSE OF THE LEGISLATION IS TO AUTHORIZE THE SECRETARY CONCERNED TO PERMIT THE NONTEMPORARY STORAGE OF HOUSEHOLD AND PERSONAL EFFECTS OF A MEMBER OF THE UNIFORMED SERVICES "FOR A PERIOD OF 1 YEAR, OR LONGER WHEN JUSTIFIED" SUBSEQUENT TO A DECLARATION THAT HE HAS BEEN MISSING, ETC., FOR A PERIOD OF MORE THAN 29 DAYS.

THE INTENTION TO LIMIT THE STORAGE TO 1 YEAR AND EXTEND IT FOR A LONGER PERIOD ONLY UPON A DETERMINATION BY THE SECRETARY THAT IT IS JUSTIFIED IS INDICATED BY THE STATEMENT IN THE HEARING THAT THE LAW AUTHORIZES NONTEMPORARY STORAGE OF HOUSEHOLD EFFECTS FOR 1 YEAR FOR DEPENDENTS OF A MEMBER WHO HAS BEEN DECLARED DEAD AND THAT "IT IS THE VIEW OF THE DEPARTMENT OF DEFENSE THAT A SIMILAR REQUIREMENT EXISTS FOR DEPENDENTS OF MEMBERS WHO ARE DECLARED AS MISSING."

IN VIEW OF THE PLAIN WORDING OF THE STATUTE AND THE INTENT EXPRESSED IN THE LEGISLATIVE HISTORY IT IS OUR VIEW THAT NONTEMPORARY STORAGE OF HOUSEHOLD EFFECTS OF A MEMBER IN A MISSING STATUS IS NOT AUTHORIZED FOR A PERIOD IN EXCESS OF 1 YEAR UNLESS THE SECRETARY CONCERNED AUTHORIZES AN ADDITIONAL PERIOD UPON A DETERMINATION THAT IT IS JUSTIFIED IN THE CASE OF THE MEMBER INVOLVED. THE PROPOSED AMENDMENT WOULD, THEREFORE, EXCEED THE STATUTORY AUTHORIZATION.

YOUR QUESTION IS ANSWERED ACCORDINGLY.