B-175681, JUL 31, 1973, 53 COMP GEN 55

B-175681: Jul 31, 1973

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TRANSPORTATION - DEPENDENTS - MILITARY PERSONNEL - ADVANCE TRAVEL OF DEPENDENTS - AMENDMENT OR REVOCATION OF ORDERS AN OFFICER OF THE UNIFORMED SERVICES WHOSE DEPENDENTS TRAVELED TO A SELECTED RETIREMENT HOME PRIOR TO THE ISSUANCE OF RETIREMENT ORDERS THAT WERE CANCELED AT HIS REQUEST PRIOR TO EFFECTIVE DATE. THEN TRAVELED TO THE OFFICER'S NEW PERMANENT DUTY STATION LOCATED IN THE CORPORATE LIMITS OF HIS OLD STATION IS ENTITLED TO A MONETARY ALLOWANCE FOR BOTH MOVES. ARE CANCELED OR MODIFIED BEFORE THEIR EFFECTIVE DATE FOR THE CONVENIENCE OF THE GOVERNMENT AND/OR IN CIRCUMSTANCES OVER WHICH A MEMBER HAS NO CONTROL. THE FACT THE OFFICER WITHDREW HIS RETIREMENT REQUEST IS IMMATERIAL SINCE THE GOVERNMENT WAS UNDER NO OBLIGATION TO ACCEPT THE REQUEST AND APPARENTLY DID SO PRIMARILY FOR THE CONVENIENCE OF THE GOVERNMENT.

B-175681, JUL 31, 1973, 53 COMP GEN 55

TRANSPORTATION - DEPENDENTS - MILITARY PERSONNEL - ADVANCE TRAVEL OF DEPENDENTS - AMENDMENT OR REVOCATION OF ORDERS AN OFFICER OF THE UNIFORMED SERVICES WHOSE DEPENDENTS TRAVELED TO A SELECTED RETIREMENT HOME PRIOR TO THE ISSUANCE OF RETIREMENT ORDERS THAT WERE CANCELED AT HIS REQUEST PRIOR TO EFFECTIVE DATE, AND THEN TRAVELED TO THE OFFICER'S NEW PERMANENT DUTY STATION LOCATED IN THE CORPORATE LIMITS OF HIS OLD STATION IS ENTITLED TO A MONETARY ALLOWANCE FOR BOTH MOVES. WHEN ORDERS THAT DIRECT A PERMANENT CHANGE OF STATION, INCLUDING ORDERS DIRECTING RELEASE FROM ACTIVE DUTY OR RETIREMENT, ARE CANCELED OR MODIFIED BEFORE THEIR EFFECTIVE DATE FOR THE CONVENIENCE OF THE GOVERNMENT AND/OR IN CIRCUMSTANCES OVER WHICH A MEMBER HAS NO CONTROL, THE BENEFITS PRESCRIBED BY 37 U.S.C. 406A ACCRUE, AND THE FACT THE OFFICER WITHDREW HIS RETIREMENT REQUEST IS IMMATERIAL SINCE THE GOVERNMENT WAS UNDER NO OBLIGATION TO ACCEPT THE REQUEST AND APPARENTLY DID SO PRIMARILY FOR THE CONVENIENCE OF THE GOVERNMENT.

TO J. G. SMITH, DEPARTMENT OF THE NAVY, JULY 31, 1973:

BY THIRD ENDORSEMENT DATED APRIL 7, 1972, THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE TRANSMITTED YOUR LETTER OF FEBRUARY 1, 1972, WITH ENCLOSURES, REQUESTING A DECISION AS TO THE ENTITLEMENT OF LIEUTENANT COMMANDER RICHARD G. CHAPPELL TO A MONETARY ALLOWANCE IN LIEU OF TRANSPORTATION FOR DEPENDENTS' TRAVEL IN THE CIRCUMSTANCES PRESENTED. THE REQUEST HAS BEEN ASSIGNED PDTATAC CONTROL NO. 72-16 BY THE COMMITTEE.

IN A LETTER DATED MARCH 1, 1971, THE CHIEF OF NAVAL PERSONNEL ADVISED COMMANDER CHAPPELL THAT ORDERS WOULD BE ISSUED EFFECTING HIS RETIREMENT FROM THE NAVAL SERVICE ON OR ABOUT JANUARY 1, 1972. THE LETTER, WHICH WAS DELIVERED TO THE OFFICER ON MARCH 15, 1971, AUTHORIZED THE MOVEMENT OF HIS HOUSEHOLD GOODS PRIOR TO RECEIPT OF RELEASE FROM ACTIVE DUTY ORDERS AND ADVISED HIM THAT IF TRAVEL OF DEPENDENTS WAS PERFORMED PRIOR TO ISSUANCE OF RETIREMENT ORDERS, A CERTIFIED COPY OF THAT LETTER SHOULD BE INCLUDED WHEN FILING A CLAIM.

BY BUPERS ORDER 153477, DATED SEPTEMBER 10, 1971, COMMANDER CHAPPELL WAS ADVISED BY THE CHIEF OF NAVAL PERSONNEL THAT HIS REQUEST TO BE TRANSFERRED TO THE RETIRED LIST WAS APPROVED BY THE SECRETARY OF THE NAVY, EFFECTIVE JANUARY 1, 1972. THE OFFICER WAS TO BE DETACHED FROM DUTY ON DECEMBER 31, 1971, AND WAS AUTHORIZED TO PROCEED TO HIS HOME OF SELECTION. ON JANUARY 1, 1972, HE WAS TO BE TRANSFERRED TO THE RETIRED LIST WITH THE GRADE AND RETIRED PAY OF LIEUTENANT COMMANDER, UNDER THE PROVISIONS OF 10 U.S.C. 6323.

THE RECORD SHOWS, HOWEVER, THAT BEFORE THE ORDERS DIRECTING COMMANDER CHAPPELL'S RETIREMENT BECAME EFFECTIVE THEY WERE CANCELED BY THE CHIEF OF NAVAL PERSONNEL ON DECEMBER 15, 1971, AND THAT NEW ORDERS (BUPERS ORDER NO. 166949) DIRECTING THE OFFICER TO REPORT TO THE COMMANDER IN CHIEF, U.S. ATLANTIC FLEET, FOR DUTY AT NORFOLK, VIRGINIA, WERE ISSUED ON DECEMBER 10, 1971.

PURSUANT TO AN INFORMAL REQUEST, THE OFFICE OF THE CHIEF OF NAVAL PERSONNEL FORWARDED TO OUR OFFICE ADDITIONAL INFORMATION IN THE MATTER. THIS CONSISTS OF A MESSAGE DATED DECEMBER 6, 1971, FROM THE COMMANDER, NAVAL AIR FORCE, U.S. ATLANTIC FLEET, REQUESTING CANCELLATION OF THE ORDERS OF SEPTEMBER 10, 1971, FOR THE REASON THAT THE OFFICER DESIRED TO REMAIN ON ACTIVE DUTY INDEFINITELY AND A LETTER FROM THE CHIEF OF NAVAL PERSONNEL TO THE SECRETARY OF THE NAVY, DATED DECEMBER 8, 1971, REQUESTING THE RETIREMENT APPROVAL BE CANCELED IN VIEW OF THE OFFICER'S REQUEST AND BECAUSE THE OFFICER'S SERVICE COULD BE EFFECTIVELY UTILIZED. THIS WAS APPROVED DECEMBER 14, 1971, BY THE ASSISTANT SECRETARY OF THE NAVY.

AN ORDER DATED DECEMBER 13, 1971, ISSUED BY THE COMMANDER, NAVAL AIR FORCE, U.S. ATLANTIC FLEET, NAVAL AIR STATION, NORFOLK, VIRGINIA, QUOTING CHIEF OF NAVAL PERSONNEL MESSAGE DATED DECEMBER 10, 1971, PROVIDED THAT COMMANDER CHAPPELL WAS TO BE DETACHED FROM DUTY ON STAFF IN DECEMBER 1971 AND WAS TO PROCEED AND REPORT TO THE COMMANDER-IN CHIEF, U.S. ATLANTIC FLEET, NORFOLK, VIRGINIA, FOR DUTY ON THE STAFF WITH 30 DAYS DELAY IN REPORTING, AND FOR ADDITIONAL DUTIES AS SPECIFIED IN THE ORDER.

ON JANUARY 20, 1972, COMMANDER CHAPPELL PRESENTED TWO VOUCHERS CLAIMING REIMBURSEMENT FOR DEPENDENT TRAVEL. ONE COVERED TRAVEL OF HIS DEPENDENTS FROM VIRGINIA BEACH, VIRGINIA, TO BOAZ, ALABAMA, HOME OF SELECTION, PERFORMED ON AUGUST 10, 1971, INCIDENT TO CERTIFICATE DATED MARCH 1, 1971, AND BUPERS ORDER 153477 SEPTEMBER 10, 1971, AS AMENDED (CANCELED) BY BUPERS ORDER 153477(1) DATED DECEMBER 15, 1971. THE OTHER PERTAINED TO THE RETURN TRAVEL OF HIS DEPENDENTS FROM BOAZ, ALABAMA, TO VIRGINIA BEACH, VIRGINIA, PERFORMED JANUARY 5 AND 6, 1972, INCIDENT TO ORDERS OF DECEMBER 10, 1971.

IN YOUR LETTER OF FEBRUARY 1, 1972, YOU CITE PARAGRAPH M7010 OF THE JOINT TRAVEL REGULATIONS (JTR) WHICH PROVIDES THAT A MEMBER IS ENTITLED TO TRANSPORTATION OF DEPENDENTS FROM LAST STATION TO HOME OF SELECTION UPON RETIREMENT. ALSO, YOU CITE PARAGRAPH M7051, JTR, WHICH PROVIDES THAT WHEN ORDERS ARE MODIFIED, CANCELED OR REVOKED AFTER COMMENCEMENT OF DEPENDENTS' TRAVEL, A MEMBER IS ENTITLED TO REIMBURSEMENT FOR SUCH TRAVEL FROM PLACE DEPENDENTS COMMENCED TRAVEL TO THE PLACE WHERE THEY RECEIVE NOTIFICATION OF CHANGE OF ORDERS AND THENCE TO THE NEW DUTY STATION.

YOU SAY THAT THE OFFICER'S RETIREMENT ORDERS WERE CANCELED PRIOR TO JANUARY 1, 1972, AND HE WAS ORDERED TO DUTY WITH COMMANDER-IN-CHIEF, ATLANTIC FLEET, AND YOU INDICATE THAT THE OLD AND NEW PERMANENT DUTY STATIONS WERE BOTH WITHIN THE CORPORATE LIMITS OF NORFOLK, VIRGINIA, THE PLACE WHERE HE RELOCATED HIS HOUSEHOLD ON JANUARY 6, 1972. YOU SAY FURTHER THAT PARAGRAPH M7051, JTR, COVERS ONLY THOSE MEMBERS ON PERMANENT CHANGE-OF-STATION ORDERS WHO WILL CONTINUE ON ACTIVE DUTY AND THEREFORE BELIEVE THAT THERE IS NO AUTHORITY FOR PAYMENT OF THE CLAIM.

BY LETTER DATED MARCH 2, 1972, THE CHIEF OF NAVAL PERSONNEL REPORTED COMMANDER CHAPPELL'S RETIREMENT ORDERS WERE CANCELED AT HIS OWN REQUEST. THEREAFTER, BY FIRST ENDORSEMENT DATED MARCH 10, 1972, TO YOUR LETTER OF FEBRUARY 1, 1972, THE DIRECTOR, NAVY MILITARY PAY SYSTEM EXPRESSED DOUBT AS TO ENTITLEMENT BECAUSE TRAVEL (BY DEPENDENTS) WAS PERFORMED BASED ON AN ADVANCE SELECTION OF A HOME UPON RETIREMENT AND BECAUSE THE RETIREMENT ORDERS WERE CANCELED AT THE MEMBER'S REQUEST. HOWEVER, IN A SECOND ENDORSEMENT DATED MARCH 28, 1972, THE CHIEF OF NAVAL PERSONNEL CONTENDED THAT THE OFFICER WAS OFFICIALLY NOTIFIED ON MARCH 1, 1971, THAT HE WOULD BE ISSUED ORDERS EFFECTING HIS RETIREMENT AND ALSO THAT THE FACT THE AMENDING ORDERS WHICH IN EFFECT CANCELED THE OFFICER'S RETIREMENT ORDERS WERE ISSUED AT THE OFFICER'S REQUEST DID NOT ALTER THEIR DIRECTIVE NATURE.

SECTION 406A OF TITLE 37, U.S. CODE, PROVIDES AS FOLLOWS:

UNDER UNIFORM REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, A MEMBER OF A UNIFORMED SERVICE IS ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCE UNDER SECTION 404 OF THIS TITLE, AND TO TRANSPORTATION OF HIS DEPENDENTS, BAGGAGE, AND HOUSEHOLD EFFECTS UNDER SECTIONS 406 AND 409 OF THIS TITLE, IF OTHERWISE QUALIFIED, FOR TRAVEL PERFORMED BEFORE THE EFFECTIVE DATE OF ORDERS THAT DIRECT HIM TO MAKE A CHANGE OF STATION AND THAT ARE LATER -

(1) CANCELED, REVOKED, OR MODIFIED TO DIRECT HIM TO RETURN TO THE STATION FROM WHICH HE WAS BEING TRANSFERRED; OR

(2) MODIFIED TO DIRECT HIM TO MAKE A DIFFERENT CHANGE OF STATION.

PARAGRAPH M7051, JTR, IMPLEMENTING THESE PROVISIONS PROVIDES IN PERTINENT PART THAT WHEN ORDERS DIRECTING A PERMANENT CHANGE OF STATION (WHICH INCLUDES FROM LAST DUTY STATION TO HOME OF SELECTION UPON RETIREMENT) ARE MODIFIED AFTER THE DATE TRAVEL OF DEPENDENTS UNDER THE ORDERS IS COMMENCED, AND A NEW PERMANENT STATION IS DESIGNATED, OR THE PERMANENT CHANGE-OF-STATION ORDERS ARE CANCELED OR REVOKED, TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE IS AUTHORIZED FOR THE TRAVEL PERFORMED FOR THE DISTANCE FROM THE PLACE DEPENDENTS COMMENCED TRAVEL, TO THE PLACE AT WHICH THEY RECEIVE NOTIFICATION OF THE MODIFICATION, CANCELLATION OR REVOCATION OF ORDERS, AND THENCE TO THE NEW STATION OR RETURN TO THE OLD STATION, NOT TO EXCEED THE DISTANCE FROM THE OLD STATION TO THE FIRST- NAMED STATION AND THENCE TO THE LAST-NAMED STATION OR RETURN TO THE OLD STATION.

UNDER THE PROVISIONS OF SECTION 406 OF TITLE 37, U.S. CODE, THE RIGHT OF A MEMBER TO PAYMENT FOR HIS DEPENDENTS' TRAVEL TO HIS NEW STATION IS BASED UPON, AND IS NO GREATER THAN, THE RIGHT SECURED TO HIM UNDER SUCH ORDERS INCIDENT TO HIS TRAVEL, UNLESS APPLICABLE PROVISIONS OF LAW PROVIDE OTHERWISE. 46 COMP. GEN. 852, 854 (1967). SECTION 406A OF THAT TITLE PROVIDES THAT, IF OTHERWISE QUALIFIED, THE PAYMENT OF DEPENDENTS' TRANSPORTATION IS AUTHORIZED WHEN A CHANGE-OF-STATION ORDER IS CANCELED, REVOKED OR MODIFIED PRIOR TO ITS EFFECTIVE DATE.

THE LEGISLATIVE HISTORY OF 37 U.S.C. 406A (PUBLIC LAW 88-238, 77 STAT. 475) REASONABLY SUPPORTS THE VIEW THAT ITS BENEFITS ARE TO ACCRUE WHEN ORDERS THAT DIRECT A PERMANENT CHANGE OF STATION (INCLUDING ORDERS DIRECTING RELEASE FROM ACTIVE DUTY OR RETIREMENT) ARE CANCELED OR MODIFIED BEFORE THEIR EFFECTIVE DATE FOR THE CONVENIENCE OF THE GOVERNMENT AND/OR IN CIRCUMSTANCES OVER WHICH THE MEMBER HAS NO CONTROL. 44 COMP. GEN. 655 (1965). WHILE IN THIS CASE APPARENTLY THE MEMBER REQUESTED THE CANCELLATION OF HIS RETIREMENT ORDERS, THE SECRETARY OF THE NAVY WAS UNDER NO OBLIGATION TO COMPLY WITH THAT REQUEST BUT APPARENTLY DID SO PRIMARILY FOR THE CONVENIENCE OF THE GOVERNMENT, I.E., BECAUSE HIS SERVICES COULD BE "EFFECTIVELY UTILIZED" ON ACTIVE DUTY. SEE WINFREE V. UNITED STATES, 125 CT. CL. 853 (1953).

ACCORDINGLY, IN THE CIRCUMSTANCES HERE INVOLVED, COMMANDER CHAPPELL IS ENTITLED TO MONETARY ALLOWANCE IN LIEU OF TRANSPORTATION FOR HIS DEPENDENTS' TRAVEL FROM VIRGINIA TO BOAZ, ALABAMA (HOME OF SELECTION), AND FROM BOAZ TO VIRGINIA BEACH, VIRGINIA. THE VOUCHER AND SUPPORTING DOCUMENTS RECEIVED WITH YOUR LETTER ARE RETURNED HEREWITH.