B-170593, OCT 15, 1970, 50 COMP GEN 291

B-170593: Oct 15, 1970

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WHO HAVE BEEN FURNISHED TRANSPORTATION FOR THEMSELVES AND THEIR HOUSEHOLD AND PERSONAL EFFECTS INCIDENT TO THE MEMBER'S ENTRY INTO A MISSING STATUS. OR DETAINED IN A FOREIGN COUNTRY AGAINST A MEMBER'S WILL. TRANSPORTATION - DEPENDENTS - MILITARY PERSONNEL - MORE THAN ONE MOVEMENT WHEN THE STATUS OF A MEMBER OF THE UNIFORMED SERVICES IS CHANGED FROM ONE TO THE OTHER OF THE THREE CATEGORIES SPECIFIED IN 37 U.S.C. 554 - DEAD. 1970: FURTHER REFERENCE IS MADE TO LETTER OF JULY 30. IT IS STATED IN THE LETTER OF JULY 30. IT IS STATED IN THE LETTER THAT NOTHING CONTAINED IN 37 U.S.C. 551 THROUGH 558 WOULD APPEAR TO RESTRICT THE AUTHORITY OF THE SECRETARY CONCERNED IN THAT RESPECT. IT IS STATED THAT WHILE PARAGRAPHS M7152 -2 AND M8352-3.

B-170593, OCT 15, 1970, 50 COMP GEN 291

TRANSPORTATION - DEPENDENTS - MILITARY PERSONNEL - MISSING, INTERNED, ETC., MEMBERS THE DEPENDENTS OF A MEMBER OF THE UNIFORMED SERVICES IN A MISSING STATUS AS DEFINED IN 37 U.S.C. 551(2), WHO HAVE BEEN FURNISHED TRANSPORTATION FOR THEMSELVES AND THEIR HOUSEHOLD AND PERSONAL EFFECTS INCIDENT TO THE MEMBER'S ENTRY INTO A MISSING STATUS, MAY NOT AGAIN BE FURNISHED TRANSPORTATION WHILE THE MEMBER'S STATUS REMAINS UNCHANGED, 37 U.S.C. 554 REQUIRING A CHANGE OF STATUS FOR ENTITLEMENT TO TRANSPORTATION; AND A CHANGE FROM ONE CLASSIFICATION TO ANOTHER WITHIN THE "MISSING STATUS" CATEGORY, DEFINED AS MISSING; MISSING IN ACTION; INTERNED IN A FOREIGN COUNTRY; CAPTURED, BELEAGUERED, OR BESIEGED BY A HOSTILE FORCE; OR DETAINED IN A FOREIGN COUNTRY AGAINST A MEMBER'S WILL, DOES NOT CONSTITUTE A CHANGE WITHIN THE MEANING OF SECTION 554, AND THEREFORE REGULATIONS MAY NOT BE PROMULGATED TO AUTHORIZE ADDITIONAL TRANSPORTATION INCIDENT TO A MISSING STATUS. TRANSPORTATION - DEPENDENTS - MILITARY PERSONNEL - MORE THAN ONE MOVEMENT WHEN THE STATUS OF A MEMBER OF THE UNIFORMED SERVICES IS CHANGED FROM ONE TO THE OTHER OF THE THREE CATEGORIES SPECIFIED IN 37 U.S.C. 554 - DEAD, INJURED, OR ABSENT FOR A PERIOD OF MORE THAN 29 DAYS IN A MISSING STATUS - THE TRANSPORTATION OF DEPENDENTS AND OF HOUSEHOLD AND PERSONAL EFFECTS MAY BE FURNISHED INCIDENT TO EACH CHANGE IN THE STATUS OF THE MEMBER IN ACCORDANCE WITH 35 COMP. GEN. 399 (1956).

TO THE SECRETARY OF THE ARMY, OCTOBER 15, 1970:

FURTHER REFERENCE IS MADE TO LETTER OF JULY 30, 1970, FROM THE OFFICE OF THE ASSISTANT SECRETARY OF THE ARMY (DEPUTY FOR RESERVE AFFAIRS) REQUESTING A DECISION WHETHER UNDER LAW AND CURRENT REGULATIONS DEPENDENTS OF A MEMBER IN A MISSING STATUS AS DEFINED IN 37 U.S.C. 551(2), HAVING ONCE BEEN FURNISHED TRANSPORTATION FOR THEMSELVES AND THEIR HOUSEHOLD AND PERSONAL EFFECTS INCIDENT TO THE MEMBER'S ENTRY INTO A MISSING STATUS, MAY AGAIN BE FURNISHED WITH TRANSPORTATION WHILE THE MEMBER'S STATUS REMAINS UNCHANGED. THE REQUEST HAS BEEN ASSIGNED PDTATAC CONTROL NO. 70-41, BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

IT IS STATED IN THE LETTER OF JULY 30, 1970, THAT, IN SEVERAL INSTANCES, SUCH TRANSPORTATION HAS BEEN FURNISHED ON THE PREMISE THAT UNFORESEEN CIRCUMSTANCES, ARISING AFTER ARRIVAL OF THE DEPENDENTS AT THE ORIGINAL POINT SELECTED AT THE TIME THE MEMBER FIRST ENTERED A MISSING STATUS, JUSTIFIED FURTHER MOVEMENT TO ANOTHER PLACE UNDER 37 U.S.C. 554(B) AND (D). IT IS STATED IN THE LETTER THAT NOTHING CONTAINED IN 37 U.S.C. 551 THROUGH 558 WOULD APPEAR TO RESTRICT THE AUTHORITY OF THE SECRETARY CONCERNED IN THAT RESPECT. ALSO, IT IS STATED THAT WHILE PARAGRAPHS M7152 -2 AND M8352-3, JOINT TRAVEL REGULATIONS, LIMIT TRANSPORTATION IN THOSE CASES TO ONLY ONE MOVEMENT IN CONNECTION WITH EACH OFFICIAL STATUS REPORT, THERE IS NOTHING IN THE REGULATIONS TO RESTRICT THE REISSUANCE OF SUCH REPORTS ON A PERIODICAL OR OTHER BASIS EVEN THOUGH THERE WAS NO CHANGE IN THE STATUS OF THE MEMBER CONCERNED.

IF THE ANSWER TO THE BASIC QUESTION IS IN THE NEGATIVE, DECISION IS REQUESTED AS TO WHETHER THE REGULATIONS MAY BE AMENDED TO PROVIDE FOR THE ADDITIONAL TRANSPORTATION. ALSO OUR VIEWS ARE REQUESTED AS TO THE PROPRIETY OF RELOCATING DEPENDENTS AND HOUSEHOLD AND PERSONAL EFFECTS IN CASES WHERE "A MEMBER REPORTED DEAD *** WAS THEREAFTER FOUND TO BE IN A MISSING STATUS, OR VICE VERSA, OR A MEMBER REPORTED IN ONE MISSING STATUS WAS THEREAFTER FOUND TO BE, OR CHANGED TO, ANOTHER MISSING STATUS," IF AUTHORIZED OR APPROVED BY THE SECRETARY CONCERNED, OR HIS DESIGNEE, AND THERE IS A REASONABLE RELATIONSHIP BETWEEN THE CIRCUMSTANCES OF THE DEPENDENT AND THE REQUESTED DESTINATION.

SECTION 554 OF TITLE 37, U.S.C. PROVIDES IN MATERIAL 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 AS 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 THIS 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.

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.

(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.

SUBSECTION (B) SPECIFIES THREE STATUSES FOR WHICH TRANSPORTATION MAY BE FURNISHED, "DEAD, INJURED, OR ABSENT FOR A PERIOD OF MORE THAN 29 DAYS IN A MISSING STATUS." ACCORDINGLY, IN REPLY TO THE REQUEST FOR OUR VIEWS AS TO THE PROPRIETY OF FURNISHING TRANSPORTATION WHEN A MEMBER'S STATUS IS CHANGED FROM ONE TO THE OTHER OF THOSE THREE STATUSES, YOU ARE ADVISED THAT LEGALLY TRANSPORTATION MAY BE FURNISHED INCIDENT TO EACH SUCH CHANGE. 35 COMP. GEN. 399 (1956).

AS TO THE BASIC QUESTIONS, SECTION 551(2) OF TITLE 37 DEFINES "MISSING STATUS" AS THE STATUS OF A MEMBER OF A UNIFORMED SERVICE WHO IS OFFICIALLY CARRIED OR DETERMINED TO BE ABSENT IN A STATUS OF (A) MISSING; (B) MISSING IN ACTION; (C) INTERNED IN A FOREIGN COUNTRY; (D) CAPTURED, BELEAGUERED, OR BESIEGED BY A HOSTILE FORCE; OR (E) DETAINED IN A FOREIGN COUNTRY AGAINST HIS WILL. BY DEFINITION, THEREFORE, EACH OF CATEGORIES (A) THROUGH (E) IS INCLUDED IN THE TERM "MISSING STATUS" FOR THE PURPOSES OF 37 U.S.C. 554 AND THUS A CHANGE FROM ONE OF THESE CATEGORIES TO ANOTHER EFFECTS NO CHANGE IN THAT STATUS.

THE PRESENT REGULATIONS GOVERNING THE TRANSPORTATION RIGHTS HERE CONCERNED ARE CONTAINED IN CHAPTERS 7 (DEPENDENTS), 8 (HOUSEHOLD GOODS), AND 11 (PRIVATELY OWNED MOTOR VEHICLES), OF THE JOINT TRAVEL REGULATIONS. THE PERTINENT PROVISIONS OF THESE REGULATIONS AUTHORIZE THE TRANSPORTATION OF DEPENDENTS, HOUSEHOLD GOODS, AND PRIVATELY OWNED MOTOR VEHICLES OF A MEMBER ON ACTIVE DUTY (WITHOUT REGARD TO PAY GRADE) WHO IS OFFICIALLY REPORTED AS 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.

THESE REGULATIONS APPEAR TO HAVE BEEN ISSUED TO IMPLEMENT THE CONCLUSION REACHED IN 35 COMP. GEN. 399, WHICH CONSIDERED THE PROVISIONS OF SECTION 12 OF THE MISSING PERSONS ACT, AS THEN AMENDED, 50 U.S.C. APP. 1012. UNDER THOSE PROVISIONS, EACH OF THE STATED DEAD, INJURED, OR ABSENT CATEGORIES WAS CONSIDERED TO BE A DIFFERENT STATUS FOR THE PURPOSES OF THE TRANSPORTATION CONCERNED.

WHILE THE PROVISIONS OF SECTION 554 OF TITLE 37, U.S.C. WERE DERIVED FROM SECTION 12 OF THE MISSING PERSONS ACT, AS AMENDED, THE PRESENT PROVISIONS RELATING TO THE ABSENT CLASSES ARE MATERIALLY DIFFERENT. NO LONGER DOES EACH OF THESE CLASSES CONSTITUTE A SEPARATE STATUS; EACH IS NOW INCLUDED IN THE STATUS OF "ABSENT FOR A PERIOD OF MORE THAN 29 DAYS IN A MISSING STATUS."

ACCORDINGLY, IT MUST BE CONCLUDED THAT UNDER THE PRESENT PROVISIONS IN 37 U.S.C. 551 AND 554, TRANSPORTATION OF DEPENDENTS, HOUSEHOLD EFFECTS, AND PRIVATELY OWNED MOTOR VEHICLES OF MEMBERS OF THE UNIFORMED SERVICES IS AUTHORIZED ONLY WHEN THE MEMBER IS OFFICIALLY REPORTED EITHER AS DEAD, INJURED (WITH PROLONGED TREATMENT ANTICIPATED), OR ABSENT FOR A PERIOD OF MORE THAN 29 DAYS IN A MISSING STATUS. A CHANGE FROM ONE CLASSIFICATION TO ANOTHER WITHIN THE SINGLE "MISSING STATUS" CATEGORY DEFINED IN 37 U.S.C. 551(2) (FOR EXAMPLE, A CHANGE FROM MISSING IN ACTION TO INTERNED IN A FOREIGN COUNTRY) WOULD PROVIDE NO LEGAL BASIS FOR SUCH TRANSPORTATION. CLEARLY, THE ISSUANCE OF A REPORT WHICH DOES NO MORE THAN CONTINUE A MEMBER IN A "MISSING STATUS" WOULD NOT FULFILL THE LEGAL REQUIREMENT THAT A CHANGE IN A MEMBER'S STATUS MUST OCCUR BEFORE SUCH TRANSPORTATION MAY BE AUTHORIZED.

IT IS OUR VIEW, THEREFORE, THAT THERE IS NO LEGAL AUTHORITY FOR THE PROMULGATION OF REGULATIONS PROVIDING FOR MORE THAN ONE MOVEMENT OF THE DEPENDENTS, HOUSEHOLD EFFECTS, AND MOTOR VEHICLE OF A MEMBER WHO IS ABSENT IN A "MISSING STATUS" SO LONG AS THAT STATUS REMAINS UNCHANGED.

WE WILL NOT QUESTION CASES WHERE ADDITIONAL MOVEMENTS HAVE BEEN AUTHORIZED IN THESE CASES IN THE PAST. HOWEVER, THE APPLICABLE PROVISIONS OF THE JOINT TRAVEL REGULATIONS SHOULD BE REVISED TO CLEARLY CONFORM TO THE LIMITS OF THE STATUTORY AUTHORITY PROVIDED BY 37 U.S.C. 551 AND 554.