B-169760, AUG 13, 1970, 50 COMP GEN 83

B-169760: Aug 13, 1970

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AS THE TEMPORARY LODGING ALLOWANCE IS A PERMANENT STATION ALLOWANCE THAT MAY NOT BE USED TO SUPPLEMENT THE TRANSPORTATION ALLOWANCES PRESCRIBED BY SUBSECTIONS 406(E) AND (H) FOR THE MOVEMENT OF DEPENDENTS. OR WHEN THE SECRETARY CONCERNED DETERMINES THE MOVEMENT IS IN THE BEST INTEREST OF THE MEMBER. 1970: FURTHER REFERENCE IS MADE TO LETTER DATED APRIL 23. FROM THE ASSISTANT SECRETARY OF THE NAVY (MANPOWER AND RESERVE AFFAIRS) REQUESTING A DECISION WHETHER THE JOINT TRAVEL REGULATIONS MAY BE AMENDED TO AUTHORIZE TEMPORARY LODGING ALLOWANCE IN THOSE CASES WHERE DEPENDENTS ARE AUTHORIZED ADVANCE RETURN TO THE UNITED STATES UNDER THE PROVISIONS OF 37 U.S.C. 406 (E) AND (H). THE REQUEST WAS ASSIGNED CONTROL NO. 70-26 BY THE PER DIEM.

B-169760, AUG 13, 1970, 50 COMP GEN 83

STATION ALLOWANCES - MILITARY PERSONNEL - TEMPORARY LODGINGS - ADVANCE RETURN OF DEPENDENTS FROM OVERSEAS THE TEMPORARY LODGING ALLOWANCE PAYABLE TO A MEMBER OF THE UNIFORMED SERVICES ON THE BASIS HE INCURS MORE THAN NORMAL EXPENSES FOR THE USE OF HOTEL ACCOMODATIONS AND PUBLIC RESTAURANTS FOR A PRESCRIBED PERIOD IMMEDIATELY PRECEDING DEPARTURE FROM AN OVERSEAS STATION ON A PERMANENT CHANGE OF STATION MAY NOT BE AUTHORIZED INCIDENT TO THE ADVANCE RETURN OF A MEMBER'S DEPENDENTS UNDER 37 U.S.C. 406(E) AND (H), AS THE TEMPORARY LODGING ALLOWANCE IS A PERMANENT STATION ALLOWANCE THAT MAY NOT BE USED TO SUPPLEMENT THE TRANSPORTATION ALLOWANCES PRESCRIBED BY SUBSECTIONS 406(E) AND (H) FOR THE MOVEMENT OF DEPENDENTS, BAGGAGE, AND HOUSEHOLD EFFECTS IN UNUSUAL OR EMERGENCY CIRCUMSTANCES, OR WHEN THE SECRETARY CONCERNED DETERMINES THE MOVEMENT IS IN THE BEST INTEREST OF THE MEMBER, HIS DEPENDENTS, OR THE UNITED STATES WITHOUT REGARD TO THE ISSUANCE OF CHANGE- OF-STATION ORDERS.

TO THE SECRETARY OF THE NAVY, AUGUST 13, 1970:

FURTHER REFERENCE IS MADE TO LETTER DATED APRIL 23, 1970, FROM THE ASSISTANT SECRETARY OF THE NAVY (MANPOWER AND RESERVE AFFAIRS) REQUESTING A DECISION WHETHER THE JOINT TRAVEL REGULATIONS MAY BE AMENDED TO AUTHORIZE TEMPORARY LODGING ALLOWANCE IN THOSE CASES WHERE DEPENDENTS ARE AUTHORIZED ADVANCE RETURN TO THE UNITED STATES UNDER THE PROVISIONS OF 37 U.S.C. 406 (E) AND (H). THE REQUEST WAS ASSIGNED CONTROL NO. 70-26 BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

IN HIS LETTER THE ASSISTANT SECRETARY STATES THAT IT HAS BEEN RECOMMENDED THAT PARAGRAPHS M4303-1 AND M4303-2E(1) OF THE JOINT TRAVEL REGULATIONS BE AMENDED TO PROVIDE FOR ENTITLEMENT TO TEMPORARY LODGING ALLOWANCE IN THOSE CASES WHERE DEPENDENTS, UNDER THE PROVISIONS OF PARAGRAPHS M7102, M7103, OR M7105, ARE AUTHORIZED ADVANCE RETURN TO THE UNITED STATES, OR ARE RETURNED TO THE UNITED STATES UNDER THE PROVISION OF PARAGRAPH M7104 OR M7108. HE SAYS THAT IN SUPPORT OF THE RECOMMENDATION IT WAS STATED THAT INCIDENT TO SUCH AUTHORIZED TRANSPORTATION FOR DEPENDENTS, A MEMBER INCURS HOTEL EXPENSES UNDER THE SAME CIRCUMSTANCES AS HE WOULD IF THE DEPENDENTS TRAVELED LATER INCIDENT TO PERMANENT CHANGE-OF-STATION ORDERS AND THEREFORE SHOULD BE ENTITLED TO THE TEMPORARY LODGING ALLOWANCES WHENEVER HIS DEPENDENTS ARE REQUIRED TO OCCUPY HOTEL OR HOTEL-LIKE ACCOMMODATIONS AND UTILIZE PUBLIC RESTAURANTS PENDING THEIR RETURN TO THE UNITED STATES AT GOVERNMENT EXPENSE.

THE ASSISTANT SECRETARY SAYS THAT THE STATUTORY AUTHORITY FOR ADVANCE RETURN OF DEPENDENTS UNDER THE PROVISIONS OF THE JOINT TRAVEL REGULATIONS REFERRED TO ABOVE IS EITHER 37 U.S.C. 406(E) OR 37 U.S.C. 406(H) AND SUCH AUTHORITY APPEARS TO EXTEND ONLY TO TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD GOODS AND IN ONE INSTANCE TO SHIPMENT OF A PRIVATELY OWNED VEHICLE.

THE ASSISTANT SECRETARY REFERS TO OUR DECISION OF NOVEMBER 13, 1969, 49 COMP. GEN. 299, IN WHICH THE QUESTION PRESENTED WAS WHETHER THE SECRETARIES CONCERNED HAVE THE AUTHORITY TO AMEND THE JOINT TRAVEL REGULATIONS TO PROVIDE ENTITLEMENT TO TEMPORARY LODGING ALLOWANCE WHEN THE DEPENDENTS OF A MEMBER OF THE UNIFORMED SERVICES MOVE FROM AN OVERSEAS RESIDENCE INCIDENT TO RECEIPT OF NOTICE THAT THE MEMBER IS IN A STATUS AS SET FORTH IN 37 U.S.C. 554(B).

HE STATES THAT IN THE DECISION THE OPINION WAS EXPRESSED THAT IN VIEW OF THE LEGISLATIVE HISTORY AS TO THE STATION ALLOWANCES TO BE CONTINUED WHILE A MEMBER IS IN A MISSING STATUS AND SINCE A MEMBER IN SUCH STATUS COULD NOT BE ORDERED TO MAKE A PERMANENT CHANGE OF STATION, THERE IS NO LEGAL AUTHORITY TO PROVIDE FOR THE PAYMENT OF TEMPORARY LODGING ALLOWANCES IN SUCH CASES. ALSO, HE SAYS THAT IT WAS STATED IN THAT DECISION THAT THE TEMPORARY LODGING ALLOWANCE ACCRUES ONLY INCIDENT TO AN ORDERED CHANGED OF PERMANENT STATION AND IS NOT PAYABLE TO EVERYONE BUT IS PAYABLE ONLY TO THOSE MEMBERS WHO MUST TEMPORARILY USE HOTEL OR HOTEL-LIKE ACCOMMODATIONS AND PUBLIC RESTAURANTS AS A CONSEQUENCE OF CHANGE OF PERMANENT STATION ORDERS.

IN HIS LETTER THE ASSISTANT SECRETARY SAYS THAT WHILE THE DECISION OF NOVEMBER 13, 1969, INVOLVED THE MISSING PERSONS ACT (37 U.S.C. 554(B)), QUESTION ARISES AS TO WHETHER THE PRINCIPLE ENUNCIATED THEREIN WOULD ALSO APPLY TO THE ADVANCE RETURN OF DEPENDENTS UNDER THE PROVISIONS OF 37 U.S.C. 406(E) AND (H) SINCE THERE IS NO PERMANENT CHANGE OF STATION INVOLVED.

SECTION 406(A) OF TITLE 37, U.S. CODE, PROVIDES THAT A MEMBER WHO IS ORDERED TO MAKE A CHANGE OF PERMANENT STATION IS ENTITLED TO TRANSPORTATION IN KIND FOR HIS DEPENDENTS, TO REIMBURSEMENT THEREFOR, OR TO A MONETARY ALLOWANCE AT A PRESCRIBED RATE NOT EXCEEDING THE RATE AUTHORIZED UNDER SECTION 404(D) OF THE STATUTE.

SECTION 406(B) PROVIDES THAT IN CONNECTION WITH A CHANGE OF TEMPORARY OR PERMANENT STATION, A MEMBER IS ENTITLED TO TRANSPORTATION OF BAGGAGE AND HOUSEHOLD EFFECTS, OR REIMBURSEMENT THEREFOR, WITHIN PRESCRIBED WEIGHT ALLOWANCES. ALSO, SECTION 406(C) PROVIDES THAT THE ALLOWANCES AUTHORIZED BY SUBSECTIONS (A) AND (B) (INCIDENT TO A CHANGE OF STATION) ARE IN ADDITION TO THOSE AUTHORIZED BY SECTIONS 404 AND 405 AND SUBJECT TO REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED. SECTION 406(C), HOWEVER, IS LIMITED TO SUBSECTIONS (A) AND (B).

AS AN EXCEPTION TO THE CHANGE-OF-STATION REQUIREMENTS IN SUBSECTIONS (A) AND (B), SUBSECTIONS (E) AND (H) OF SECTION 406 PROVIDE FOR THE MOVEMENT OF DEPENDENTS, BAGGAGE, AND HOUSEHOLD EFFECTS IN UNUSUAL OR EMERGENCY CIRCUMSTANCES OR WHEN THE SECRETARY CONCERNED DETERMINES IT TO BE IN THE BEST INTEREST OF THE MEMBER OR HIS DEPENDENTS AND THE UNITED STATES, WITHOUT REGARD TO THE ISSUANCE OF CHANGE-OF-STATION ORDERS. THOSE SUBSECTIONS PROVIDE THAT INCIDENT TO SUCH MOVEMENTS, THE SECRETARIES CONCERNED MAY PRESCRIBE TRANSPORTATION IN KIND, REIMBURSEMENT THEREFOR, OR A MONETARY ALLOWANCE IN PLACE THEREOF, AS AUTHORIZED UNDER SUBSECTION (A) OR (B).

AS INDICATED IN OUR DECISION OF NOVEMBER 13, 1969, 49 COMP. GEN. 299, TEMPORARY LODGING ALLOWANCES, INSOFAR AS DEPARTURE FROM THE STATION IS CONCERNED, ARE AUTHORIZED FOR THE PURPOSE OF PARTIALLY REIMBURSING A MEMBER FOR THE MORE THAN NORMAL EXPENSES INCURRED AT HOTEL OR HOTEL LIKE ACCOMMODATIONS AND PUBLIC RESTAURANTS NECESSARILY USED FOR PRESCRIBED PERIODS IMMEDIATELY PRECEDING DEPARTURE FROM THE OVERSEAS STATION ON A PERMANENT CHANGE OF STATION. PARAGRAPH M4303 OF THE REGULATIONS. WHILE IT IS PAYABLE TO MEMBERS INCIDENT TO THE USE OF THE ENUMERATED TRANSIENT LODGING AND SUBSISTENCE FACILITIES AS A CONSEQUENCE OF CHANGE OF PERMANENT STATION ORDERS, IT IS A PERMANENT STATION AND NOT A TRANSPORTATION ALLOWANCE. AS IN THE CASE OF THE OTHER STATION ALLOWANCES IT SUPPLEMENTS THE BASIC ALLOWANCES FOR QUARTERS AND SUBSISTENCE AND NOT THE TRANSPORTATION ALLOWANCES.

SUBSECTIONS (E) AND (H) OF SECTION 406 OF THE STATUTE PROVIDE FOR THE ALLOWANCES PAYABLE INCIDENT TO THE MOVEMENT OF DEPENDENTS AND HOUSEHOLD EFFECTS IN THE SPECIAL CIRCUMSTANCES THERE SET FORTH AND WE ARE OF THE OPINION THAT THE ALLOWANCES PAYABLE INCIDENT TO MOVEMENTS UNDER THOSE SUBSECTIONS ARE LIMITED TO THE SPECIFIC ALLOWANCES THERE AUTHORIZED. ONLY TRANSPORTATION ALLOWANCES ARE AUTHORIZED FOR SUCH MOVEMENTS.

ACCORDINGLY, THE QUESTION PRESENTED IS ANSWERED IN THE NEGATIVE.