B-163530, APRIL 16, 1968, 47 COMP. GEN. 556

B-163530, APRIL 16, 1968, 47 COMP. GEN. 556

TRANSPORTATION - DEPENDENTS - MILITARY PERSONNEL - DISLOCATION ALLOWANCE - MISSING STATUS OF MEMBER ENTITLEMENT TO PAYMENT OF THE DISLOCATION ALLOWANCE AUTHORIZED BY 37 U.S.C. 407, PREDICATED ON ORDERS DIRECTING A PERMANENT CHANGE OF STATION FOR MEMBERS OF THE UNIFORMED SERVICES, THE DETERMINATION THAT A MEMBER IN ACTIVE SERVICE IS IN A MISSING STATUS IS NOT A PROPER BASIS TO AUTHORIZE THE PAYMENT OF A DISLOCATION ALLOWANCE UNDER SECTION 554, WHICH ONLY AUTHORIZES THE TRAVEL AND TRANSPORTATION OF THE DEPENDENTS AND HOUSEHOLD AND PERSONAL EFFECTS OF A MEMBER WHO IS IN A MISSING STATUS. THEREFORE, THE DEPENDENTS OF MEMBERS MISSING IN ACTION, WHO ARE ISSUED TRAVEL ORDERS UNDER 37 U.S.C. 554 INCIDENT TO THE MEMBER'S MISSING STATUS AND NOT BECAUSE OF THE MEMBER'S PERMANENT CHANGE OF STATION, MAY NOT BE PAID A DISLOCATION ALLOWANCE, WHETHER OR NOT THEY HAD RELOCATED THEIR HOUSEHOLDS INCIDENT TO THE MEMBER'S PERMANENT CHANGE OF STATION TO A RESTRICTED AREA.

TO THE SECRETARY OF THE AIR FORCE, APRIL 16, 1968:

REFERENCE IS MADE TO LETTER DATED JANUARY 30, 1968, FROM THE UNDER SECRETARY OF THE AIR FORCE, REQUESTING A DECISION WHETHER UPON RECEIPT OF AN OFFICIAL NOTICE UNDER THE PROVISIONS OF 50 U.S.C. APP. 1012 (NOW CONTAINED IN 37 U.S.C. 554), PERTAINING TO A MEMBER OF THE UNIFORMED SERVICES IN ACTIVE SERVICE WHO IT HAS BEEN DETERMINED IS IN A MISSING, ETC., STATUS, THE RELOCATION OF HIS DEPENDENT'S HOUSEHOLD IS A PROPER BASIS FOR THE PAYMENT OF A DISLOCATION ALLOWANCE AUTHORIZED UNDER 37 U.S.C. 407. THE REQUEST HAS BEEN ASSIGNED PDTATAC CONTROL NO. 68-8, BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

THE UNDER SECRETARY STATES THAT THE REGULATIONS CONTAINED IN CHAPTER 7, PART D, VOLUME 1, JOINT TRAVEL REGULATIONS, PROMULGATED UNDER THE PROVISIONS OF 50 U.S.C. APP. 1012, PROVIDE THAT A DEPENDENT IS AUTHORIZED TRANSPORTATION TO CERTAIN LOCATIONS UPON RECEIPT OF AN OFFICIAL NOTICE THAT THE MEMBER HAS BEEN DETERMINED TO BE DEAD, INJURED, ABSENT FOR A PERIOD OF 30 DAYS OR MORE IN A STATUS OF MISSING, MISSING IN ACTION, INTERNED IN A FOREIGN COUNTRY, CAPTURED BY A HOSTILE FORCE, BELEAGUERED BY A HOSTILE FORCE, BESIEGED BY A HOSTILE FORCE, OR DETAINED IN A FOREIGN COUNTRY AGAINST HIS WILL. HE STATES FURTHER THAT THE CITED REFERENCES ARE SILENT AS TO WHETHER THE RELOCATION OF A DEPENDENT'S HOUSEHOLD INCIDENT TO SUCH AN OFFICIAL NOTICE, INVOLVING EXPENSES COMPARABLE TO A PERMANENT CHANGE OF STATION OF THE MEMBER, IS A PROPER BASIS FOR THE PAYMENT OF A DISLOCATION ALLOWANCE.

THE UNDER SECRETARY REQUESTS A DECISION AS TO ENTITLEMENT TO DISLOCATION ALLOWANCE IN THE FOLLOWING CIRCUMSTANCES:

A. AN AIR FORCE MEMBER IN ACTIVE SERVICE WAS PERMANENTLY STATIONED AT NELLIS AIR FORCE BASE, NEVADA, ON 8 SEPTEMBER 1965 WHEN HE RECEIVED A PERMANENT CHANGE OF STATION TO A RESTRICTED AREA IN SOUTHEAST AS IS. ALTHOUGH HIS DEPENDENTS WERE ENTITLED TO A MOVE TO A DESIGNATED PLACE IN CONNECTION WITH HIS PERMANENT CHANGE OF STATION, THEY REMAINED IN THE VICINITY OF NELLIS AFB AND THE MEMBER'S HOUSEHOLD WAS NOT RELOCATED. THE MEMBER WAS OFFICIALLY REPORTED MISSING IN ACTION ON 15 JULY 1967. ON 29 AUGUST 1967, HIS DEPENDENTS RELOCATED THE HOUSEHOLD PURSUANT TO ORDERS ISSUED IN ACCORDANCE WITH REFERENCE D (CHAPTER 7, PART D, VOLUME 1, JOINT TRAVEL REGULATIONS). IS THE DISLOCATION ALLOWANCE PAYABLE BASED ON MEMBER'S PERMANENT CHANGE-OF-STATION ORDERS TO SOUTHEAST ASIA AND THE SUBSEQUENT RELOCATION OF THE MEMBER'S HOUSEHOLD ON 29 AUGUST 1967 PURSUANT TO ORDERS ISSUED IN ACCORDANCE WITH REFERENCE D (CHAPTER 7, PART D, JTR/?

B. AN AIR FORCE MEMBER IN ACTIVE SERVICE, ACCOMPANIED BY HIS DEPENDENTS, WAS PERMANENTLY STATIONED IN SPAIN WHEN HE RECEIVED A PERMANENT CHANGE OF STATION TO A RESTRICTED AREA IN SOUTHEAST ASIA. HIS DEPENDENTS RELOCATED HIS HOUSEHOLD AND TRAVELED TO A DESIGNATED PLACE IN ARLINGTON, VIRGINIA, IN CONNECTION WITH HIS PERMANENT CHANGE OF STATION. THE MEMBER RECEIVED A DISLOCATION ALLOWANCE FOR THIS MOVE. THE MEMBER WAS OFFICIALLY REPORTED MISSING IN ACTION ON 4 NOVEMBER 1966. DURING JULY 1967, HIS DEPENDENTS MOVED TO DENVER, COLORADO, PURSUANT TO TRAVEL ORDERS ISSUED UNDER AUTHORITY OF REFERENCE D (SEE ABOVE). IS A DISLOCATION ALLOWANCE PAYABLE FOR THIS LAST MOVE OF DEPENDENTS?

SECTION 407 OF TITLE 37, U.S.C. AS AMENDED, PROVIDES FOR A DISLOCATION ALLOWANCE, IN PERTINENT PART, AS FOLLOWS:

(A) EXCEPT AS PROVIDED BY SUBSECTIONS (B) AND (C) OF THIS SECTION, UNDER REGULATIONS APPROVED BY THE SECRETARY CONCERNED, A MEMBER OF A UNIFORMED SERVICE WHOSE DEPENDENTS MAKE AN AUTHORIZED MOVE IN CONNECTION WITH HIS CHANGE OF PERMANENT STATION, OR WHOSE DEPENDENTS ARE COVERED BY SECTION 405 (A) OF THIS TITLE, IS ENTITLED TO A DISLOCATION ALLOWANCE EQUAL TO HIS BASIC ALLOWANCE FOR QUARTERS FOR ONE MONTH.

(C) A MEMBER IS NOT ENTITLED TO PAYMENT OF A DISLOCATION ALLOWANCE WHEN ORDERED FROM HIS HOME TO HIS FIRST DUTY STATION OR FROM HIS LAST DUTY STATION TO HIS HOME.

THE PROVISIONS OF THE MISSING PERSONS ACT, AS AMENDED, FORMERLY CONTAINED IN 50 U.S.C. APP. 1001-1015, WERE REPEALED BY SECTION 8 (A) OF PUBLIC LAW 89-554, 80 STAT. 632, 5 U.S.C. PREC. 101 NOTE. SECTION 5 OF THAT ACT, 37 U.S.C. PREC. 101, ADDED SIMILAR PROVISIONS AS CHAPTER 10, TITLE 37, U.S.C. SECTION 554 OF THAT CHAPTER, AS AMENDED, PROVIDES AUTHORITY FORMERLY CONTAINED IN 50 U.S.C. APP. 1012 FOR TRAVEL AND TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD AND PERSONAL EFFECTS, IN PERTINENT PART, AS FOLLOWS:

(B) TRANSPORTATION (INCLUDING PACKING, CRATING, DRAYAGE, TEMPORARY STORAGE AND UNPACKING OF HOUSEHOLD AND PERSONAL EFFECTS) MAY BE PROVIDED FOR THE DEPENDENTS AND HOUSEHOLD AND PERSONAL EFFECTS OF A MEMBER OF A UNIFORMED SERVICE ON ACTIVE DUTY (WITHOUT REGARD TO PAY GRADE) WHO IS OFFICIALLY REPORTED DEAD, INJURED, OR ABSENT FOR A PERIOD OF MORE THAN 29 DAYS IN A MISSING STATUS---

(1) TO THE MEMBER'S OFFICIAL RESIDENCE OF RECORD;

(2) TO THE RESIDENCE OF HIS DEPENDENT, NEXT OF KIN, OR OTHER PERSON ENTITLED TO CUSTODY OF THE EFFECTS, UNDER REGULATIONS PRESCRIBED BY THE SECRETARY CONCERNED, OR

(3) ON REQUEST OF THE MEMBER (IF INJURED), OR HIS DEPENDENT, NEXT OF KIN, OR OTHER PERSON DESCRIBED IN CLAUSE (2), TO ANOTHER LOCATION DETERMINED IN ADVANCE OR LATER APPROVED BY THE SECRETARY CONCERNED, OR HIS DESIGNEE.

(C) WHEN A MEMBER DESCRIBED IN SUBSECTION (B) OF THIS SECTION IS IN AN INJURED STATUS, TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD AND PERSONAL EFFECTS AUTHORIZED BY THIS SECTION MAY BE PROVIDED ONLY WHEN PROLONGED HOSPITALIZATION OR TREATMENT IS ANTICIPATED.

(D) TRANSPORTATION REQUESTED BY A DEPENDENT MAY BE AUTHORIZED UNDER THIS SECTION ONLY IF THERE IS A REASONABLE RELATIONSHIP BETWEEN THE CIRCUMSTANCES OF THE DEPENDENT AND THE REQUESTED DESTINATION.

(E) IN PLACE OF THE TRANSPORTATION FOR DEPENDENTS AUTHORIZED BY THIS SECTION, AND AFTER THE TRAVEL IS COMPLETED, THE SECRETARY CONCERNED MAY AUTHORIZE---

(1) REIMBURSEMENT FOR THE COMMERCIAL COST OF THE TRANSPORTATION; OR

(2) A MONETARY ALLOWANCE AT THE PRESCRIBED RATE FOR ALL, OR THAT PART, OF THE TRAVEL FOR WHICH TRANSPORTATION IN KIND IS NOT FURNISHED.

UNDER THE PROVISIONS OF 37 U.S.C. 406, ENTITLEMENT TO TRAVEL AND TRANSPORTATION ALLOWANCES FOR THE DEPENDENTS AND HOUSEHOLD EFFECTS OF MEMBERS OF THE UNIFORMED SERVICES GENERALLY IS PREDICATED ON ORDERS DIRECTING A PERMANENT CHANGE OF STATION. SPECIAL PROVISIONS AUTHORIZING SUCH ALLOWANCES WITHOUT REQUIRING A PERMANENT CHANGE OF STATION, ARE CONTAINED IN SECTIONS 405A, 406 (E) AND 554 OF TITLE 37, UNITED STATES CODE.

UNTIL ITS AMENDMENT BY PUBLIC LAW 89-26, DATED MAY 22, 1965, 79 STAT. 116, SECTION 407 OF TITLE 37, U.S.C. AUTHORIZED THE PAYMENT OF A DISLOCATION ALLOWANCE TO A MEMBER OF THE UNIFORMED SERVICES ONLY WHEN HIS DEPENDENTS MADE AN AUTHORIZED MOVE IN CONNECTION WITH HIS PERMANENT CHANGE OF STATION. THE LEGISLATIVE HISTORY OF PUBLIC LAW 89 26, WHICH AMENDED TITLE 37, U.S.C. BY ADDING SECTION 405A, AUTHORIZING PAYMENT OF AN EVACUATION ALLOWANCE UNDER CONDITIONS SPECIFIED THEREIN, SHOWS THAT IN AMENDING SECTION 407 OF TITLE 37 BY SPECIFICALLY AUTHORIZING A DISLOCATION ALLOWANCE WHEN DEPENDENTS ARE ORDERED EVACUATED BY COMPETENT AUTHORITY, CONGRESS WAS AWARE THAT PAYMENT OF A DISLOCATION ALLOWANCE WAS AUTHORIZED FOR THE MOVEMENT OF DEPENDENTS ONLY WHEN THE MOVEMENT OCCURRED IN CONNECTION WITH A PERMANENT CHANGE OF STATION.

IN ENACTING CHAPTER 10 OF TITLE 37, U.S. CODE, THE CONGRESS SPECIFIED THE PAY AND ALLOWANCES AND TRAVEL AND TRANSPORTATION BENEFITS AUTHORIZED IN THE CASE OF A MEMBER IN A MISSING STATUS AND ONLY THOSE BENEFITS ARE PAYABLE, IF OTHERWISE PROPER, INCIDENT TO SUCH A STATUS. 44 COMP. GEN. 657. SECTION 554, CHAPTER 10, PROVIDES FOR TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS UPON THE REQUEST OF THE MEMBER IF INJURED OR UPON THE REQUEST OF THE DEPENDENTS IF THE MEMBER IS OFFICIALLY REPORTED AS DEAD, INJURED, OR ABSENT FOR A PERIOD OF MORE THAN 29 DAYS IN A MISSING STATUS.

NEITHER SECTION 554 NOR SECTION 407, HOWEVER, CONTAINS ANY PROVISION FOR PAYMENT OF A DISLOCATION ALLOWANCE INCIDENT TO THE RELOCATION OF THE HOUSEHOLD OF DEPENDENTS IN THE CIRCUMSTANCES COVERED BY CHAPTER 10. THE ABSENCE OF A SPECIFIED AUTHORIZATION, WE ARE OF THE OPINION THAT PAYMENT OF A DISLOCATION ALLOWANCE IS NOT AUTHORIZED IN SUCH CIRCUMSTANCES.

THE MEMBER INVOLVED IN QUESTION "A" DID NOT RELOCATE HIS HOUSEHOLD TO A PLACE SELECTED BY HIM INCIDENT TO HIS PERMANENT CHANGE OF STATION UNDER THE ORDERS DATED SEPTEMBER 8, 1965, BUT RATHER, HE IN EFFECT ELECTED TO HAVE HIS DEPENDENTS REMAIN WHERE THEY WERE THEN LOCATED. LATER, AFTER THE MEMBER WAS REPORTED AS MISSING IN ACTION ON JULY 15, 1967, THE DEPENDENTS RELOCATED THEIR HOUSEHOLD TO A PLACE SELECTED BY THEM UNDER ORDERS ISSUED PURSUANT TO THE REGULATIONS IMPLEMENTING 37 U.S.C. 554. SUCH MOVE WAS NOT INCIDENT TO THE MEMBER'S PERMANENT CHANGE OF STATION BUT WAS INCIDENT TO HIS STATUS AS DETERMINED UNDER SECTION 554 AND, CONSEQUENTLY, THE PAYMENT OF A DISLOCATION ALLOWANCE IS NOT AUTHORIZED IN THESE CIRCUMSTANCES.

WITH RESPECT TO QUESTION "B," THE RELOCATION OF THE DEPENDENTS' HOUSEHOLD FROM ARLINGTON TO DENVER, THE PLACE SELECTED BY THEM UNDER TRAVEL ORDERS ISSUED UNDER AUTHORITY OF 37 U.S.C. 554, WAS INCIDENT TO THE MEMBER'S MISSING STATUS RATHER THAN INCIDENT TO A PERMANENT CHANGE OF STATION. ACCORDINGLY, FOR THE REASONS SET FORTH ABOVE, THE PAYMENT OF A DISLOCATION ALLOWANCE IS NOT AUTHORIZED.