B-182932, MAR 18, 1975, 54 COMP GEN 754

B-182932, MAR 18, 1975, 54 COMP GEN 754

FAMILY ALLOWANCES - EVACUATION - MEMBER'S DUTY STATION NOT ORDERED EVACUATED WHERE THERE WAS AN ORDERED EVACUATION OF DEPENDENTS OF MEMBERS OF THE UNIFORMED SERVICES SERVING IN CYPRUS, AND DEPENDENTS EN ROUTE TO OTHER DESTINATIONS IN THE GENERAL AREA WERE DELAYED BECAUSE OF A SUSPENSION OF COMMERCIAL AIR TRANSPORTATION TO DESTINATIONS EAST OF ROME, ITALY, EVACUATION ALLOWANCES PROVIDED IN CHAPTER 12, 1 JOINT TRAVEL REGULATIONS, MAY NOT BE AUTHORIZED UNDER CURRENT REGULATIONS, NOR MAY SUCH REGULATIONS BE AMENDED TO PERMIT EVACUATION ALLOWANCES FOR DEPENDENTS EN ROUTE TO A STATION AT WHICH AN EVACUATION OF DEPENDENTS IS NOT ORDERED, IN THE ABSENCE OF STATUTORY AUTHORITY.

IN THE MATTER OF EVACUATION ALLOWANCE ENTITLEMENTS, MARCH 18, 1975:

THIS ACTION IS IN RESPONSE TO LETTER OF DECEMBER 16, 1974, FROM THE ASSISTANT SECRETARY OF THE NAVY (MANPOWER AND RESERVE AFFAIRS) REQUESTING A DECISION REGARDING THE PAYMENT OF EVACUATION ALLOWANCES IN THE CIRCUMSTANCES DESCRIBED. THE REQUEST WHICH WAS FORWARDED BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE TO THIS OFFICE ON DECEMBER 24, 1974, HAS BEEN ASSIGNED PDTATAC CONTROL NO. 74-46.

THE ASSISTANT SECRETARY OF THE NAVY INDICATES THAT DURING THE RECENT PERIOD OF MILITARY ACTION ON CYPRUS, AN EVACUATION OF DEPENDENTS WAS ORDERED. AT THE SAME TIME, COMMERCIAL AIR FLIGHTS TO DESTINATIONS EAST OF ROME, ITALY, WHICH INVOLVED TRAVEL IN THE GENERAL VICINITY OF CYPRUS WERE CANCELED. AS A RESULT, THE TRAVEL OF DEPENDENTS EN ROUTE TO OVERSEAS DUTY STATIONS OTHER THAN CYPRUS, BUT IN THAT GENERAL VICINITY, WAS HALTED FOR PERIODS OF TIME AWAITING RESUMPTION OF AIR TRAVEL TO THEIR DESTINATIONS. AS A RESULT SOME OF THE DEPENDENTS INVOLVED WERE REQUIRED TO REMAIN TEMPORARILY IN ITALY OR OTHER OVERSEAS POINTS, TRAVEL OF OTHER DEPENDENTS WAS HALTED BEFORE THEY COMMENCED TRAVEL FROM POINTS OF ORIGIN IN THE UNITED STATES AFTER DISESTABLISHING THEIR RESIDENCES AND SHIPPING THEIR HOUSEHOLD GOODS, WHILE STILL OTHER DEPENDENTS WERE STOPPED IN THE UNITED STATES AT POINTS EN ROUTE OR AT AERIAL PORTS OF EMBARKATION.

IT IS EXPLAINED THAT FOR MEMBERS OF THE UNIFORMED SERVICES WHO WERE STOPPED EN ROUTE, PAYMENT OF A PER DIEM IS AUTHORIZED BECAUSE THEY WERE IN A DELAY-AWAITING-TRANSPORTATION STATUS. FOR DEPENDENTS EN ROUTE TO THEIR SPONSOR'S DUTY STATION ON CYPRUS EVACUATION ALLOWANCES ARE AUTHORIZED IN ACCORDANCE WITH CHAPTER 12 OF VOLUME 1 OF THE JOINT TRAVEL REGULATIONS (1 JTR). HOWEVER, FOR DEPENDENTS WHOSE TRAVEL WAS INTERRUPTED EN ROUTE TO DUTY STATIONS OTHER THAN CYPRUS, THERE IS NO PROVISION IN 1 JTR FOR PAYMENT OF A PER DIEM.

IN SUCH CIRCUMSTANCES, THE ASSISTANT SECRETARY ASKS IF 1 JTR AS PRESENTLY WRITTEN MAY BE INTERPRETED AS PERMITTING THE PAYMENT OF EVACUATION ALLOWANCES TO DEPENDENTS DESTINED FOR LOCATIONS IN THE AFFECTED AREA, OTHER THAN CYPRUS. IF THE ANSWER IS IN THE AFFIRMATIVE A CLARIFYING AMENDMENT TO 1 JTR WILL BE MADE. IF THE ANSWER IS IN THE NEGATIVE, THE ASSISTANT SECRETARY WISHES TO KNOW IF 1 JTR MAY BE AMENDED TO SO PROVIDE IN FUTURE CASES.

SECTION 405A, TITLE 37, U.S.C. (1970) PROVIDES AS FOLLOWS:

UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, WHEN DEPENDENTS OF MEMBERS OF THE UNIFORMED SERVICES ARE ORDERED EVACUATED BY COMPETENT AUTHORITY, THEY MAY BE AUTHORIZED SUCH ALLOWANCES AS THE SECRETARY CONCERNED DETERMINES NECESSARY TO OFFSET THE EXPENSES INCIDENT TO THE EVACUATION. ALLOWANCES AUTHORIZED BY THIS SECTION ARE IN ADDITION TO THOSE AUTHORIZED BY ANY OTHER SECTION OF THIS TITLE. FOR THE PURPOSES OF THIS SECTION, A DEPENDENT "ORDERED EVACUATED BY COMPETENT AUTHORITY" INCLUDES -

(1) A DEPENDENT WHO IS PRESENT AT OR IN THE VICINITY OF THE MEMBER'S DUTY STATION WHEN THE EVACUATION OF DEPENDENTS IS ORDERED BY COMPETENT AUTHORITY AND WHO ACTUALLY MOVES TO AN AUTHORIZED SAFE HAVEN DESIGNATED BY THAT AUTHORITY, WHETHER SUCH SAFE HAVEN IS AT OR IN THE VICINITY OF THE MEMBER'S DUTY STATION OR ELSEWHERE;

(2) A DEPENDENT WHO ESTABLISHED A HOUSEHOLD AT OR IN THE VICINITY OF THE MEMBER'S DUTY STATION BUT WHO IS TEMPORARILY ABSENT THEREFROM FOR ANY REASON WHEN EVACUATION OF DEPENDENTS IS ORDERED BY COMPETENT AUTHORITY; AND

(3) A DEPENDENT WHO WAS AUTHORIZED TO JOIN THE MEMBER AND WHO DEPARTED FROM HIS FORMER PLACE OF RESIDENCE INCIDENT TO JOINING THE MEMBER BUT WHO, AS A RESULT OF THE EVACUATION OF DEPENDENTS, IS DIVERTED TO A SAFE HAVEN DESIGNATED BY COMPETENT AUTHORITY OR IS AUTHORIZED TO TRAVEL TO A PLACE THE DEPENDENT MAY DESIGNATE, EVEN THOUGH HE WAS IN THE UNITED STATES WHEN THE EVACUATION WAS ORDERED.

IN ACCORD WITH THE FOREGOING STATUTORY AUTHORITY, CHAPTER 12, 1 JTR, PROVIDES FOR EVACUATION ALLOWANCES WHICH INCLUDE PER DIEM ALLOWANCES FOR COMMAND-SPONSORED DEPENDENTS. PARAGRAPH M12007-1 PROVIDES THAT THE PER DIEM ALLOWANCE IS PROVIDED TO ASSIST A MEMBER IN MEETING THE EXCESS COSTS INVOLVED IN TEMPORARILY MAINTAINING HIS COMMAND-SPONSORED DEPENDENTS AT PLACES AWAY FROM HIS DUTY STATION. UNLESS SOONER TERMINATED FOR OTHER REASONS, THE ALLOWANCE IS TO TERMINATE ON THE DATE OF DETACHMENT (RELIEF FROM DUTY) OF THE MEMBER FROM THE DUTY STATION FROM WHICH THE EVACUATION OF DEPENDENTS WAS ORDERED. (PARA. M12007 2).

SECTION 405A OF TITLE 37, U.S.C., WHICH WAS ADDED BY ACT OF MAY 22, 1965, PUBLIC LAW 89-26, 79 STAT. 116, SPECIFICALLY PROVIDES THAT WHEN THE DEPENDENTS OF MEMBERS OF THE UNIFORMED SERVICES ARE ORDERED EVACUATED BY COMPETENT AUTHORITY, THEY MAY BE AUTHORIZED SUCH ALLOWANCES AS THE SECRETARY CONCERNED DETERMINES ARE NECESSARY TO OFFSET THE EXPENSES INCIDENT TO THE EVACUATION. IT ENUMERATES THREE INSTANCES IN WHICH A DEPENDENT WILL BE CONSIDERED AS "ORDERED EVACUATED BY COMPETENT AUTHORITY," NONE OF WHICH REFERS TO A SITUATION IN WHICH THE MEMBER'S DUTY STATION IS NOT ORDERED EVACUATED. MOREOVER, THERE IS NO INDICATION IN THE LEGISLATIVE HISTORY OF THAT PROVISION OF LAW OF AN INTENTION TO AUTHORIZE EVACUATION ALLOWANCES FOR DEPENDENTS OF A MEMBER WHOSE DUTY STATION IS, IN FACT, NOT ORDERED EVACUATED, OR TO CONSIDER SUCH DEPENDENT AS EVACUATED WHEN THE DEPENDENT IS PREVENTED FROM TRAVELING TO THE MEMBER'S DUTY STATION AS A RESULT OF THE SUSPENSION OF COMMERCIAL AIR TRAVEL.

IT IS RECOGNIZED THAT THE ADDITIONAL EXPENSES INCURRED BY DEPENDENTS DESTINED FOR LOCATIONS IN THE AREA AFFECTED BY THE SUSPENSION OF COMMERCIAL AIR TRANSPORTATION WERE SIMILAR TO EXPENSES EXPERIENCED BY DEPENDENTS DELAYED EN ROUTE TO CYPRUS. HOWEVER, IN THE ABSENCE OF STATUTORY AUTHORITY, 1 JTR MAY NOT AUTHORIZE THE PAYMENT OF EVACUATION ALLOWANCES FOR DEPENDENTS OF MEMBERS SERVING AT A DUTY STATION FROM WHICH AN EVACUATION OF DEPENDENTS IS NOT ORDERED, AND BOTH QUESTIONS MUST BE ANSWERED IN THE NEGATIVE.