B-163529, JUNE 25, 1968, 47 COMP. GEN. 775

B-163529: Jun 25, 1968

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1968: FURTHER REFERENCE IS MADE TO LETTER OF JANUARY 30. THE REQUEST WAS ASSIGNED PDTATAC CONTROL NO. 68-7 BY THE PER DIEM. A MEMBER OTHERWISE ENTITLED TO TRANSPORTATION OF HOUSEHOLD GOODS SHALL BE ENTITLED TO NONTEMPORARY STORAGE OF SUCH HOUSEHOLD GOODS AS ARE IN THE OVERSEAS AREA AT DATE OF DEATH. HE STATES THAT THE RECOMMENDATION FOR AMENDING THE REGULATIONS WAS MADE BY THE DEPARTMENT OF THE ARMY FOR THE REASON THAT MEMBERS HAVE THE SAME PROBLEMS WHEN THE WIFE DIES IN THE UNITED STATES AS THEY DO WHEN SHE DIES IN AN OVERSEAS AREA AND THE ENTITLEMENT TO SHIPMENT OR NONTEMPORARY STORAGE OF HOUSEHOLD GOODS UNDER SUCH CIRCUMSTANCES SHOULD BE THE SAME. HE FURTHER STATES THAT PARAGRAPH M8303-2 WAS PROMULGATED PURSUANT TO THE UNUSUAL OR EMERGENCY CIRCUMSTANCES PROVISION OF 37 U.S.C. 406 (E).

B-163529, JUNE 25, 1968, 47 COMP. GEN. 775

STORAGE - HOUSEHOLD EFFECTS - MILITARY PERSONNEL - NONTEMPORARY STORAGE DEATH OF DEPENDENTS THE AUTHORITY IN PARAGRAPH M8303-2 OF THE JOINT TRAVEL REGULATIONS ENTITLING A MEMBER OF THE UNIFORMED SERVICES STATIONED OVERSEAS ON THE DATE OF DEATH OF A SOLE OR ALL DEPENDENTS WHO HAD RESIDED WITH HIM OVERSEAS TO THE NONTEMPORARY STORAGE OF HOUSEHOLD GOODS, NOT TO EXCEED THE PRESCRIBED WEIGHT LIMITATION, UNTIL THE DATE OF HIS NEXT ARRIVAL IN THE UNITED STATES (U.S.) FOR PERMANENT DUTY MAY NOT BE EXTENDED TO A MEMBER LOCATED AT A PERMANENT DUTY STATION IN THE U.S. AT THE TIME OF DEATH OF HIS SOLE OR ALL DEPENDENTS. THE REGULATION PROMULGATED PURSUANT TO THE UNUSUAL OR EMERGENCY CIRCUMSTANCES PROVISION OF 37 U.S.C. 406 (E) HAVING BEEN SUPERSEDED BY SUBSECTION 406 (H) RELATING TO THE INDIVIDUAL MOVEMENT OF DEPENDENTS AND EFFECTS FROM OVERSEAS AREAS, THE REGULATION MAY NOT BE AMENDED TO APPLY TO MEMBERS ON DUTY IN THE U.S.

TO THE SECRETARY OF THE AIR FORCE, JUNE 25, 1968:

FURTHER REFERENCE IS MADE TO LETTER OF JANUARY 30, 1968, FROM THE UNDER SECRETARY OF THE AIR FORCE REQUESTING A DECISION WHETHER THE JOINT TRAVEL REGULATIONS, VOLUME 1, CHAPTER 8, MAY BE AMENDED TO PROVIDE FOR SHIPMENT AND NONTEMPORARY STORAGE OF HOUSEHOLD GOODS NOT IN EXCESS OF THE PRESCRIBED WEIGHT LIMITATION WHEN THE SOLE DEPENDENT, OR ALL OF THE DEPENDENTS, OF A MEMBER OF THE UNIFORMED SERVICES DIE AT HIS PERMANENT DUTY STATION IN THE UNITED STATES. THE REQUEST WAS ASSIGNED PDTATAC CONTROL NO. 68-7 BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

THE UNDER SECRETARY STATES THAT PARAGRAPH M8303-2 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT UPON THE DEATH IN AN OVERSEAS AREA OF A SOLE DEPENDENT, OR OF ALL DEPENDENTS, AUTHORIZED TO RESIDE THEREIN, A MEMBER OTHERWISE ENTITLED TO TRANSPORTATION OF HOUSEHOLD GOODS SHALL BE ENTITLED TO NONTEMPORARY STORAGE OF SUCH HOUSEHOLD GOODS AS ARE IN THE OVERSEAS AREA AT DATE OF DEATH, NOT TO EXCEED THE PRESCRIBED WEIGHT LIMITATION, UNTIL THE DATE OF HIS NEXT ARRIVAL IN THE UNITED STATES FOR PERMANENT DUTY.

HE STATES THAT THE RECOMMENDATION FOR AMENDING THE REGULATIONS WAS MADE BY THE DEPARTMENT OF THE ARMY FOR THE REASON THAT MEMBERS HAVE THE SAME PROBLEMS WHEN THE WIFE DIES IN THE UNITED STATES AS THEY DO WHEN SHE DIES IN AN OVERSEAS AREA AND THE ENTITLEMENT TO SHIPMENT OR NONTEMPORARY STORAGE OF HOUSEHOLD GOODS UNDER SUCH CIRCUMSTANCES SHOULD BE THE SAME.

HE FURTHER STATES THAT PARAGRAPH M8303-2 WAS PROMULGATED PURSUANT TO THE UNUSUAL OR EMERGENCY CIRCUMSTANCES PROVISION OF 37 U.S.C. 406 (E), BUT THAT DOUBT EXISTS AS TO WHETHER ANY OF THE PROVISIONS OF 37 U.S.C. 406 AUTHORIZE THE AMENDMENT TO THE JOINT TRAVEL REGULATIONS PROPOSED BY THE DEPARTMENT OF THE ARMY.

SECTION 406 (B) OF TITLE 37, U.S. CODE, PROVIDES FOR TRANSPORTATION, INCLUDING DRAYAGE, OF BAGGAGE AND HOUSEHOLD EFFECTS IN CONNECTION WITH A TEMPORARY OR PERMANENT CHANGE OF STATION. AS AN ALTERNATIVE TO SHIPMENT, SECTION 406 (D) OF THE SAME TITLE PROVIDES FOR NONTEMPORARY STORAGE OF BAGGAGE AND HOUSEHOLD EFFECTS IN FACILITIES OF THE UNITED STATES, OR IN COMMERCIAL FACILITIES WHEN IT IS CONSIDERED TO BE MORE ECONOMICAL TO THE UNITED STATES. ANY OTHER MOVEMENT WITHIN THE UNITED STATES OR RESTORAGE OF THE EFFECTS AT GOVERNMENT EXPENSE WOULD NOT BE AUTHORIZED PRIOR TO FURTHER PERMANENT CHANGE OF STATION ORDERS EXCEPT AS MAY BE PROVIDED UNDER 37 U.S.C. 406 (E). 45 COMP. GEN. 771.

AS AN EXCEPTION TO THE ORDERS REQUIREMENT, SUBSECTION (E) OF SECTION 406 PROVIDES THAT WHEN ORDERS DIRECTING A PERMANENT CHANGE OF STATION HAVE NOT BEEN ISSUED, OR WHEN THEY HAVE BEEN ISSUED BUT CANNOT BE USED AS AUTHORITY FOR THE TRANSPORTATION OF DEPENDENTS, BAGGAGE AND HOUSEHOLD EFFECTS, THE SECRETARIES MAY AUTHORIZE THE MOVEMENT OF THE DEPENDENTS, BAGGAGE AND HOUSEHOLD EFFECTS AND PRESCRIBE TRANSPORTATION IN KIND, REIMBURSEMENT THEREFORE, OR A MONETARY ALLOWANCE IN PLACE THEREOF, AS AUTHORIZED UNDER SUBSECTION (A) OR (B) OF THAT SECTION IN CASES INVOLVING UNUSUAL OR EMERGENCY CIRCUMSTANCES INCLUDING THOSE SET FORTH IN CLAUSES (1), (2), AND (3) OF THAT SECTION.

NONTEMPORARY STORAGE OF HOUSEHOLD EFFECTS IS AUTHORIZED AS AN ALTERNATIVE TO THEIR SHIPMENT AND THE TRANSPORTATION OF HOUSEHOLD EFFECTS PROVIDED BY 37 U.S.C. 406 (E) IS AUTHORIZED ONLY IN UNUSUAL OR EMERGENCY CIRCUMSTANCES. BASED ON THE LEGISLATIVE HISTORY OF SECTION 406 (E) WE EXPRESSED THE OPINION IN DECISION OF JULY 16, 1958, 38 COMP. GEN. 28, THAT THE TERM "UNUSUAL OR EMERGENCY CIRCUMSTANCES" HAD REFERENCE TO CONDITIONS OF A GENERAL NATURE ARISING AT OVERSEAS DUTY STATIONS WHICH CANNOT READILY BE FORESEEN AND WHICH CHANGE INAN UNEXPECTED MANNER. WE SAID, THEREFORE, THAT IT WAS NOT CLEAR THAT CONGRESS, IN ENACTING THE LAW, INTENDED TO AUTHORIZE THE ADVANCE RETURN (TO THE UNITED STATES) AT GOVERNMENT EXPENSE OF DEPENDENTS AND HOUSEHOLD EFFECTS OF MEMBERS ON AN INDIVIDUAL CASE 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 OF RELATIVES, ETC. WE POINTED OUT THAT VIRTUALLY ALL MEMBERS MAY BE FOUND WITH ONE OR MORE OF SUCH PROBLEMS DURING THEIR SERVICE.

IN THAT REGARD WE REFERRED TO PRIOR DECISIONS HOLDING THAT CONDITIONS OF A PERSONAL NATURE SUCH AS FINANCIAL DIFFICULTIES, ILLNESS OF A MOTHER-IN- LAW, INADEQUATE EDUCATIONAL FACILITIES, DEATH OF BROTHER-IN-LAW, OR RETURN OF DEPENDENT TO ATTEND SCHOOL MAY NOT BE CONSIDERED AS THE UNUSUAL OR EMERGENCY CIRCUMSTANCES CONTEMPLATED BY THE STATUTES.

THE STATUTE IS CONCERNED PRIMARILY WITH EMERGENCIES DEEMED TO REQUIRE THE MOVEMENT OF DEPENDENTS, NOT THE MEMBER, AND WE SAID THAT BASICALLY IT AUTHORIZES THE SECRETARIES TO ISSUE REGULATIONS PROVIDING FOR THE EARLY RETURN OF DEPENDENTS AND HOUSEHOLD EFFECTS ONLY BECAUSE OF ACTUAL CONDITIONS OF AN EMERGENCY NATURE ARISING AT OVERSEAS DUTY STATIONS WHICH JUSTIFY SUCH RETURN AND WHICH GENERALLY COULD NOT ARISE, OR ARE MOST UNLIKELY TO ARISE IN THE CASE OF MEMBERS SERVING IN THE UNITED STATES. RECOGNIZED, HOWEVER, THAT UNDER CERTAIN CIRCUMSTANCES SUCH CONDITIONS MIGHT BE CONSIDERED TO INCLUDE SERIOUS ILLNESS AMONG DEPENDENTS REQUIRING SPECIALIZED TREATMENT NOT AVAILABLE AT THE MEMBER'S DUTY STATION AND THE SERIOUS ADVERSE EFFECT OF WEATHER, CLIMATE, OR LIVING CONDITIONS ON THE HEALTH OF DEPENDENTS AMOUNTING TO A SERIOUS ILLNESS NOT TREATABLE AT THE DUTY STATION.

IN DECISIONS OF SEPTEMBER 23, 1965, 45 COMP. GEN. 159, AND OCTOBER 28, 1965, 45 COMP. GEN. 208, WE HELD THAT 37 U.S.C. 406 (E) WAS APPLICABLE IN THE CASE OF UNUSUAL OR EMERGENCY CIRCUMSTANCES ARISING IN THE UNITED STATES. THOSE DECISIONS, HOWEVER, DO NOT REPRESENT ANY CHANGE IN THE VIEWS EXPRESSED IN 38 COMP. GEN. 28, AS TO WHAT MAY BE VIEWED AS CONSTITUTING THE UNUSUAL OR EMERGENCY CIRCUMSTANCES CONTEMPLATED BY THE STATUTE.

THE LIMITATIONS IMPOSED BY THE UNUSUAL OR EMERGENCY CIRCUMSTANCES REQUIREMENTS OF SECTION 406 (E) WERE FOUND TO BE TOO RESTRICTIVE TO MEET THE NEEDS OF THE SERVICES. CONSEQUENTLY, A NEW SUBSECTION (H) WAS ADDED TO 37 U.S.C. 406 BY PUBLIC LAW 88-431, APPROVED AUGUST 14, 1964, TO AUTHORIZE, AMONG OTHER THINGS, THE ADVANCE RETURN OF DEPENDENTS AND HOUSEHOLD EFFECTS OF MILITARY MEMBERS FROM OVERSEAS AREAS IN INDIVIDUAL CASES, WHEN SUCH RETURN IS DETERMINED TO BE IN THE BEST INTEREST OF THE MEMBER OR HIS DEPENDENTS AND THE UNITED STATES.

H. REP. NO. 415, 88TH CONG., DATED JUNE 18, 1963, TO ACCOMPANY H.R. 4739, WHICH BECAME PUBLIC LAW 88-431, SAYS THAT EXAMPLES OF SITUATIONS WARRANTING THE ADVANCE RETURN OF DEPENDENTS WOULD INCLUDE SUCH COMPELLING PERSONAL REASONS AS MARITAL DIFFICULTIES, EXTREME FINANCIAL DIFFICULTIES, DEATH OR SERIOUS ILLNESS OF CLOSE RELATIVES, AND OTHER SITUATIONS IN WHICH THE APPROPRIATE COMMANDER DETERMINES THAT THE BEST INTEREST OF THE GOVERNMENT AND THE MEMBER OR DEPENDENT WILL BE SERVED.

WE UNDERSTAND THAT PARAGRAPH M8303-2 OF THE JOINT TRAVEL REGULATIONS WAS PROMULGATED BY A JOINT DETERMINATION ISSUED IN JUNE OF 1964. HOWEVER, IT FIRST APPEARED IN VOLUME 1 OF THE JOINT TRAVEL REGULATIONS AS CHANGE 140 OF SEPTEMBER 1, 1964, OR AFTER THE ENACTMENT OF PUBLIC LAW 88-431.

PRESUMABLY, THE SECRETARIES IN PROMULGATING PARAGRAPH M8303-2 CONSIDERED THAT IN CASES WHERE A MEMBER'S DEPENDENTS DIE AT AN OVERSEAS STATION, THE DIFFICULTY OF ADEQUATELY DISPOSING OF UNNEEDED HOUSEHOLD EFFECTS LOCALLY, OR, IN THE ALTERNATIVE, THE COST OF RETURNING THEM TO THE UNITED STATES, OR THE FINANCIAL BURDEN WHICH WOULD RESULT FROM CONTINUED MAINTENANCE OF RENTED DEPENDENT QUARTERS AND THE REDUCTION IN HIS BASIC ALLOWANCE FOR QUARTERS AND OVERSEAS STATION PER DIEM TO THOSE AUTHORIZED FOR A SINGLE MEMBER, WERE CIRCUMSTANCES WHICH AFFORDED A BASIS FOR INVOKING THE EMERGENCY PROVISIONS OF 37 U.S.C. 406 (E). THOSE CIRCUMSTANCES AND OTHERS OF A SIMILAR NATURE, HOWEVER, SEEM CLEARLY TO RELATE TO THE INTEREST OF THE MEMBER AND THE UNITED STATES IN AN INDIVIDUAL CASE AND NOT TO A NEED TO MOVE HOUSEHOLD EFFECTS BECAUSE OF EMERGENCY CIRCUMSTANCES OF A GENERAL NATURE.

THE MOVEMENT OF DEPENDENTS AND HOUSEHOLD EFFECTS FOR SUCH REASONS IN INDIVIDUAL CASES IS SPECIFICALLY AUTHORIZED BY 37 U.S.C. 406 (H). TO THE EXTENT, THEREFORE, THAT O7 U.S.C. 406 (E) MAY HAVE AFFORDED ANY BASIS FOR MOVING DEPENDENTS AND HOUSEHOLD EFFECTS FOR SUCH REASONS, IT MUST BE REGARDED AS HAVING BEEN ENTIRELY SUPERSEDED BY THE PROVISIONS OF 37 U.S.C. 406 (H). ACCORDINGLY, IT IS OUR VIEW THAT SINCE AUGUST 14, 1964, SECTION 406 (H) HAS CONSTITUTED THE SOLE AUTHORITY FOR PARAGRAPH M8303-2 OF THE JOINT TRAVEL REGULATIONS.

IN THAT VIEW OF THE MATTER AND SINCE 37 U.S.C. 406 (H) HAS NO APPLICATION TO MEMBERS ON DUTY IN THE UNITED STATES, YOUR QUESTION MUST BE ANSWERED IN THE NEGATIVE.