B-164367, JUN. 21, 1968

B-164367: Jun 21, 1968

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HIRSCH: REFERENCE IS MADE TO YOUR LETTER OF MARCH 19. REQUESTING RECONSIDERATION OF HIS CLAIM FOR REIMBURSEMENT FOR TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS WHICH WAS DISALLOWED BY SETTLEMENT OF OUR CLAIMS DIVISION ON MARCH 7. LIEUTENANT BURKHOUSE WAS TRIED BEFORE A GENERAL COURT MARTIAL AND FOUND GUILTY OF STATED CHARGES. HE WAS SENTENCED TO FORFEIT ALL PAY AND ALLOWANCES. THE ORDER STATED THAT THE SENTENCE WAS ADJUDGED ON MAY 21. WERE SET ASIDE EFFECTIVE JANUARY 30. THE CHARGES WERE DISMISSED. PRIVILEGES AND PROPERTY OF WHICH THE ACCUSED HAD BEEN DEPRIVED BY VIRTUE OF THE FINDINGS AND SENTENCE WERE ORDERED RESTORED. LIEUTENANT BURKHOUSE REMAINED AT FORT LEWIS FROM MAY TO SEPTEMBER 1965 AND WAS THEN CONFINED AT FORT LEAVENWORTH.

B-164367, JUN. 21, 1968

TO MR. JOHN J. HIRSCH:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 19, 1968, IN BEHALF OF CHARLES P. BURKHOUSE, JR., FIRST LIEUTENANT, U.S. ARMY, REQUESTING RECONSIDERATION OF HIS CLAIM FOR REIMBURSEMENT FOR TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS WHICH WAS DISALLOWED BY SETTLEMENT OF OUR CLAIMS DIVISION ON MARCH 7, 1968.

GENERAL COURT-MARTIAL ORDER NO. 68, HEADQUARTERS, FORT LEWIS, WASHINGTON, DATED SEPTEMBER 3, 1965, STATES THAT ON MARCH 10, 1965, LIEUTENANT BURKHOUSE WAS TRIED BEFORE A GENERAL COURT MARTIAL AND FOUND GUILTY OF STATED CHARGES. HE WAS SENTENCED TO FORFEIT ALL PAY AND ALLOWANCES, TO BE CONFINED AT HARD LABOR FOR ONE YEAR, AND TO BE DISMISSED FROM THE SERVICE. THE ORDER STATED THAT THE SENTENCE WAS ADJUDGED ON MAY 21, 1965, AND APPROVED ON SEPTEMBER 3, 1965, HIS CONFINEMENT IN THE U.S. DISCIPLINARY BARRACKS, FORT LEAVENWORTH, KANSAS, BEING DIRECTED PENDING COMPLETION OF APPELLATE REVIEW. BY GENERAL COURT-MARTIAL ORDER NO. 9, HEADQUARTERS, FIRST UNITED STATES ARMY, FORT GEORGE MEADE, MARYLAND, DATED FEBRUARY 21, 1967, THE FINDINGS AND SENTENCE APPROVED SEPTEMBER 3, 1965, WERE SET ASIDE EFFECTIVE JANUARY 30, 1967, THE CHARGES WERE DISMISSED, AND ALL RIGHTS, PRIVILEGES AND PROPERTY OF WHICH THE ACCUSED HAD BEEN DEPRIVED BY VIRTUE OF THE FINDINGS AND SENTENCE WERE ORDERED RESTORED.

LIEUTENANT BURKHOUSE REMAINED AT FORT LEWIS FROM MAY TO SEPTEMBER 1965 AND WAS THEN CONFINED AT FORT LEAVENWORTH, KANSAS, UNTIL MARCH 2, 1966. HIS DEPENDENTS AND HOUSEHOLD EFFECTS WERE RETURNED TO BALTIMORE,MARYLAND, AT HIS EXPENSE IN JULY 1965. SUBSEQUENT TO HIS RELEASE FROM CONFINEMENT, THE OFFICER WAS PAID PAY AND ALLOWANCES DUE HIM FOR THE PERIOD OF CONFINEMENT WITH THE EXCEPTION OF HIS CLAIM FOR REIMBURSEMENT OF DEPENDENTS' TRAVEL AND TRANSPORTATION OF HOUSEHOLD EFFECTS. BY SETTLEMENT DATED MARCH 7, 1968, HIS CLAIM WAS DISALLOWED FOR THE REASONS STATED IN THAT SETTLEMENT.

IN YOUR LETTER YOU SAY THAT NO WRITTEN ORDERS WERE ISSUED TO LIEUTENANT BURKHOUSE AUTHORIZING HIS DEPENDENTS' TRAVEL AND SHIPMENT OF HOUSEHOLD EFFECTS AS A RESULT OF THE COURT-MARTIAL SENTENCE. YOU STATE, HOWEVER, THAT SINCE UNDER MILITARY LAW A PERSON SENTENCED TO MORE THAN 6 MONTHS' CONFINEMENT WOULD BE TRANSFERRED TO FORT LEAVENWORTH, KANSAS, LIEUTENANT BURKHOUSE WAS ADVISED TO MOVE HIS DEPENDENTS. INASMUCH AS HE TRANSFERRED HIS HOUSEHOLD GOODS AND DEPENDENTS TO BALTIMORE BEFORE HIS ORDERED TRANSFER TO FORT LEAVENWORTH, YOU CONTEND THAT SINCE THE OFFICER'S RIGHTS AND BENEFITS WERE ORDERED RESTORED, HE IS ENTITLED TO REIMBURSEMENT OF THE TRANSPORTATION COSTS.

AS A GENERAL PROPOSITION, TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS OF A MEMBER OF THE UNIFORMED SERVICES AT GOVERNMENT EXPENSE IS AUTHORIZED ONLY WHEN THAT MEMBER IS ORDERED TO MAKE A CHANGE OF PERMANENT STATION. 37 U.S.C. 406 (A) AND (B). SECTION 406 (E) OF THAT TITLE, PROVIDES FOR THE TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS TO BE AUTHORIZED BY THE SECRETARIES CONCERNED IN UNUSUAL OR EMERGENCY CIRCUMSTANCES WHEN ORDERS DIRECTING A CHANGE OF PERMANENT STATION FOR THE MEMBER CONCERNED HAVE NOT BEEN ISSUED, OR HAVE BEEN ISSUED BUT CANNOT BE USED AS AUTHORITY FOR SUCH TRANSPORTATION. SECTION 406 (H) OF TITLE 37, U.S.C. PROVIDES FOR THE ADVANCE RETURN OF DEPENDENTS, BAGGAGE, AND HOUSEHOLD EFFECTS FROM OVERSEAS AREAS TO THE UNITED STATES IN CERTAIN CASES WHEN IT IS DETERMINED TO BE IN THE BEST INTEREST OF THE MEMBER OR HIS DEPENDENTS AND THE UNITED STATES AND ORDERS FOR TRANSFER OF THE MEMBER HAVE NOT BEEN ISSUED, OR IF ISSUED, CANNOT BE USED AS AUTHORITY FOR THEIR TRANSPORTATION.

REGULATIONS PROMULGATED PURSUANT TO THE PROVISIONS OF SECTION 406 OF TITLE 37, UNITED STATES CODE, ARE CONTAINED IN THE JOINT TRAVEL REGULATIONS. PARAGRAPH M1150-10 OF THE REGULATIONS DEFINES A PERMANENT STATION AS THE POST OF DUTY OR OFFICIAL STATION TO WHICH A MEMBER IS ASSIGNED OR ATTACHED FOR DUTY OTHER THAN TEMPORARY DUTY OR TEMPORARY ADDITIONAL DUTY. PARAGRAPH M3003-1 OF THE REGULATIONS DEFINES THE TERM "PERMANENT CHANGE OF STATION" AS THE TRANSFER OR ASSIGNMENT OF A MEMBER FROM ONE PERMANENT STATION TO ANOTHER. THIS INCLUDES A CHANGE FROM LAST DUTY STATION TO HOME OR THE PLACE TO WHICH ORDERED TO ACTIVE DUTY UPON SEPARATION FROM THE SERVICE.

PARAGRAPH M7009-5 PROVIDES THAT EXCEPT FOR THE RETURN OF DEPENDENTS FROM OVERSEAS TO THE UNITED STATES UNDER PARAGRAPH M7103-2, ITEM 8, A MEMBER SEPARATED FROM THE SERVICE UNDER OTHER THAN HONORABLE CONDITIONS WILL NOT BE ENTITLED TO TRANSPORTATION OF DEPENDENTS IN CONNECTION WITH SUCH SEPARATION. PARAGRAPH M7103-2, ITEM 8, PROVIDES THAT THE TRANSPORTATION OF DEPENDENTS FROM AN OVERSEAS STATION TO THE UNITED STATES MAY BE AUTHORIZED BY THE OVERSEAS COMMANDER WHEN THE MEMBER IS SENTENCED TO CONFINEMENT IN CIVIL OR MILITARY FACILITIES OVERSEAS OR IS RETURNED TO THE UNITED STATES FOR CONFINEMENT IN CIVIL OR MILITARY FACILITIES.

PARAGRAPH M8303-1, JOINT TRAVEL REGULATIONS, AUTHORIZES TRANSPORTATION OF HOUSEHOLD EFFECTS ON THE SAME BASIS AS PROVIDED FOR DEPENDENTS IN PARAGRAPH M7103-2, ITEM 8. PARAGRAPH M8015-4 OF THE REGULATIONS PROVIDES GENERALLY THAT TRANSPORTATION OF HOUSEHOLD GOODS AT GOVERNMENT EXPENSE IS NOT AUTHORIZED FOR MEMBERS WHO ARE DROPPED, DISMISSED, SENT TO PRISON UNDER SENTENCE, OR TRANSFERRED AS PRISONERS TO A PLACE OF DETENTION.

THE PURPOSE OF THE STATUTE AND REGULATIONS AUTHORIZING TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS IS TO RELIEVE A MEMBER OF THE BURDEN OF PERSONNALLY DEFRAYING THE TRAVEL EXPENSES OF HIS DEPENDENTS AND THE COST OF MOVING HIS HOUSEHOLD EFFECTS WHEN SUCH EXPENSES ARE INCURRED AS A RESULT OF THE ORDERED PERMANENT CHANGE OF HIS DUTY STATION. 37 COMP. GEN. 21. THE PROVISIONS AUTHORIZING SUCH TRANSPORTATION UNDER CIRCUMSTANCES WHEN ORDERS DIRECTING A CHANGE OF PERMANENT STATION HAVE NOT BEEN ISSUED, ENACTED AS EXCEPTIONS TO THE GENERAL PURPOSE, MUST BE CONSIDERED IN THE LIGHT OF THE LEGISLATIVE INTENT IN THEIR ENACTMENT. 36 COMP. GEN. 135; 39 ID. 890.

IN 38 COMP. GEN. 28, WE STATED THAT THE TERM "UNUSUAL OR EMERGENCY CIRCUMSTANCES" AS USED IN SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 253 (C) (RECODIFIED AS 37 U.S.C. 406 (E), 1964 ED.), HAD REFERENCE TO CONDITIONS OF A GENERAL NATURE ARISING AT OVERSEAS DUTY STATIONS WHICH CANNOT READILY BE FORESEEN AND WHICH CHANGE IN AN UNEXPECTED MANNER. WE STATED FURTHER THAT, BASICALLY, THE STATUTE AUTHORIZED THE SECRETARIES CONCERNED TO ISSUE REGULATIONS PROVIDING FOR THE EARLY RETURN OF DEPENDENTS AND HOUSEHOLD EFFECTS OF MILITARY PERSONNEL 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, FOR WHOM TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS GENERALLY IS AUTHORIZED ONLY UPON THE ISSUANCE OF PERMANENT CHANGE OF STATION ORDERS.

IN 44 COMP. GEN. 724, WE STATED THAT THE PROVISIONS OF 406 (H) OF TITLE 37, U.S.C. NOW PROVIDES AUTHORITY FOR TRANSPORTATION OF DEPENDENTS LOCATED AT A MEMBER'S DUTY STATION OUTSIDE THE UNITED STATES, IN SITUATIONS RESULTING FROM THE CONFINEMENT OF A MEMBER, IF THE SECRETARY CONCERNED DETERMINES THAT IT IS IN THE BEST INTERESTS OF THE DEPENDENTS AND THE UNITED STATES TO AUTHORIZE SUCH MOVEMENT. COMPARE 44 COMP. GEN. 574.

THE STATUTE AND REGULATIONS PRESENTLY IN EFFECT GENERALLY MAKE NO PROVISION FOR THE TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS OF A MEMBER OF THE UNIFORMED SERVICES ON DUTY IN THE CONTINENTAL UNITED STATES, OTHER THAN UNDER ORDERS DIRECTING A CHANGE OF PERMANENT STATION FOR THE MEMBER CONCERNED. THE TRANSFER OF LIEUTENANT BURKHOUSE TO FORT LEAVENWORTH, KANSAS, FOR CONFINEMENT UNDER GENERAL COURT-MARTIAL ORDER NO. 68, DATED SEPTEMBER 3, 1965, DID NOT MAKE THAT FACILITY HIS NEW PERMANENT DUTY STATION AS HE WAS NOT ASSIGNED OR ATTACHED FOR DUTY AT FORT LEAVENWORTH. THEREFORE, THE TRANSFER WAS NOT A CHANGE OF PERMANENT STATION AS DEFINED IN THE JOINT TRAVEL REGULATIONS, SO AS TO ENTITLE THE OFFICER TO THE TRANSPORTATION OF HIS DEPENDENTS AND HOUSEHOLD EFFECTS AT GOVERNMENT EXPENSE.

ACCORDINGLY, THE MOVEMENT OF THE DEPENDENTS AND HOUSEHOLD EFFECTS OF LIEUTENANT BURKHOUSE AT THE TIME OF HIS CONFINEMENT WAS THE SOLE RESPONSIBILITY OF THE OFFICER. WHILE HE MAY HAVE BEEN ADVISED TO MOVE HIS DEPENDENTS AND HOUSEHOLD EFFECTS FROM FORT LEWIS BECAUSE OF HIS POSSIBLE TRANSFER TO FORT LEAVENWORTH FOR CONFINEMENT, SUCH TRANSFER TO BALTIMORE WAS NOT DIRECTED BY THE GOVERNMENT NOR AUTHORIZED AT GOVERNMENT EXPENSE. GENERAL COURT-MARTIAL ORDER NO. 9, DATED FEBRUARY 21, 1967, WHICH SET ASIDE THE SENTENCE IMPOSED ON LIEUTENANT BURKHOUSE, HAD THE EFFECT OF RESTORING THE OFFICER TO A DUTY STATUS AT HIS FORMER DUTY STATION AND ORDERED RESTORED THE RIGHTS, PRIVILEGES AND PROPERTY OF WHICH HE WAS DEPRIVED BY VIRTUE OF THE SENTENCE SET ASIDE. SINCE NEITHER THE SENTENCE NOR THE STATUTES AND REGULATIONS REQUIRED OR AUTHORIZED THE MOVEMENT OF THE DEPENDENTS AND HOUSEHOLD GOODS, THE RESTORATION ORDER PROVIDES NO LEGAL BASIS FOR REIMBURSEMENT OF THE EXPENSES INCIDENT TO SUCH MOVEMENT.

THEREFORE, THE SETTLEMENT OF MARCH 7, 1968, IS SUSTAINED.

REGARDING YOUR INQUIRY ABOUT FURTHER APPEAL OF THE OFFICER'S CLAIM, YOU ARE ADVISED THAT THE DECISIONS OF THIS OFFICE ARE CONCLUSIVE UPON THE EXECUTIVE DEPARTMENTS OF THE GOVERNMENT. INDEPENDENTLY OF THE JURISDICTION OF THE GENERAL ACCOUNTING OFFICE, HOWEVER, THE UNITED STATES COURT OF CLAIMS AND THE UNITED STATES DISTRICT COURTS HAVE JURISDICTION TO CONSIDER CERTAIN CLAIMS AGAINST THE GOVERNMENT. SEE 28 U.S.C. 1346 (A) (2), 1491, 2401 AND 2501.