B-29440, OCTOBER 28, 1942, 22 COMP. GEN. 403

B-29440: Oct 28, 1942

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IS SILENT AS TO THE METHOD OF TRANSPORTATION AND THE BASIS FOR PAYMENT THEREFOR. EXCEPT WHEN THE EXPRESS PROVISIONS THEREOF ARE IN CONFLICT WITH SAID LAWS AND REGULATIONS. AS FOLLOWS: SUBMITTED HEREWITH IS VOUCHER. PARKS IS THE LAWFUL WIFE OF ST SGT. PARKS IS OFFICIALLY REPORTED "MISSING IN ACTION. DUE TO THE ABSENCE OF DEFINITE LANGUAGE IN THE ABOVE REFERRED TO ACT AUTHORIZING REIMBURSEMENT OF EXPENSES IN LIEU OF TRANSPORTATION THE UNDERSIGNED IS IN DOUBT AS TO THE LEGALITY FOR PAYMENT OF THE ATTACHED CLAIM. IN THE EVENT YOUR DECISION IS IN THE AFFIRMATIVE. IT IS TO BE NOTED THAT CLAIM IS MADE FOR THE COST OF TRAVEL BY AIR. WHICH IS IN EXCESS OF THE COST OF TRAVEL BY RAIL. THE UNDERSIGNED IS OF THE OPINION THAT MANY SUCH CLAIMS WILL BE SUBMITTED.

B-29440, OCTOBER 28, 1942, 22 COMP. GEN. 403

TRANSPORTATION - DEPENDENTS OF MILITARY AND NAVAL PERSONNEL REPORTED AS INJURED, DEAD, MISSING, ETC. WHILE SECTION 12 OF THE ACT OF MARCH 7, 1942, RELATING TO THE TRANSPORTATION OF DEPENDENTS OF PERSONS OFFICIALLY REPORTED INJURED, DEAD, MISSING, ETC., IS SILENT AS TO THE METHOD OF TRANSPORTATION AND THE BASIS FOR PAYMENT THEREFOR, THE SAID SECTION SHOULD, WITH RESPECT TO DEPENDENTS OF MILITARY AND NAVAL PERSONNEL, BE CONSIDERED A TEMPORARY MODIFICATION OF PRIOR LAWS AS TO THE CONDITIONS UNDER WHICH DEPENDENTS OF SUCH PERSONNEL MAY BE FURNISHED TRANSPORTATION, AND, HENCE, SHOULD BE ADMINISTERED IN ACCORDANCE WITH SUCH PRIOR LAWS AND REGULATIONS THEREUNDER, EXCEPT WHEN THE EXPRESS PROVISIONS THEREOF ARE IN CONFLICT WITH SAID LAWS AND REGULATIONS.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO COL. J. P. TILLMAN, U.S. ARMY, OCTOBER 28, 1942:

THERE HAS BEEN RECEIVED, BY ENDORSEMENT DATED OCTOBER 2, 1942, YOUR LETTER OF SEPTEMBER 28, 1942, AS FOLLOWS:

SUBMITTED HEREWITH IS VOUCHER, WITH SUPPORTING PAPERS, COVERING CLAIM OF MRS. ROBERT F. PARKS, WIFE OF ST SGT. ROBERT F. PARKS, FOR REIMBURSEMENT OF HER TRAVELING EXPENSES FROM SEATTLE, WASHINGTON TO WASHINGTON, D.C. IN THE AMOUNT OF $159.00. THE VOUCHER HAS BEEN SUBMITTED TO THE UNDERSIGNED, A DISBURSING OFFICER, FOR PAYMENT UNDER THE PROVISIONS OF THE ACT OF MARCH 7, 1942 ( PUBLIC LAW 490 - 77TH CONGRESS) PERTAINING TO DEPENDENTS OF MILITARY PERSONNEL REPORTED "MISSING IN ACTION.' THE SUPPORTING DATA WITH THE VOUCHER WOULD APPEAR TO PROPERLY ESTABLISH THAT MRS. PARKS IS THE LAWFUL WIFE OF ST SGT. ROBERT F. PARKS; THE RECORDS PROPERLY REFLECT THE FACT THAT SGT. PARKS IS OFFICIALLY REPORTED "MISSING IN ACTION; " AND THE LEGAL RESIDENCE HAS BEEN PROPERLY ESTABLISHED.

SECTION 12 OF THE ABOVE MENTIONED ACT PROVIDES THAT "THE DEPENDENTS AND HOUSEHOLD AND PERSONAL EFFECTS OF ANY PERSON ON ACTIVE DUTY (WITHOUT REGARD TO PAY GRADE) * * * MAY BE MOVED * * * BY THE USE OF EITHER COMMERCIAL OR GOVERNMENT TRANSPORTATION:PROVIDED, THAT THE COST OF SUCH TRANSPORTATION, * * *, SHALL BE CHARGED AGAINST APPROPRIATIONS CURRENTLY AVAILABLE.'

DUE TO THE ABSENCE OF DEFINITE LANGUAGE IN THE ABOVE REFERRED TO ACT AUTHORIZING REIMBURSEMENT OF EXPENSES IN LIEU OF TRANSPORTATION THE UNDERSIGNED IS IN DOUBT AS TO THE LEGALITY FOR PAYMENT OF THE ATTACHED CLAIM.

IN THE EVENT YOUR DECISION IS IN THE AFFIRMATIVE, THERE ARISES THE QUESTION OF THE AMOUNT PAYABLE. IT IS TO BE NOTED THAT CLAIM IS MADE FOR THE COST OF TRAVEL BY AIR, WHICH IS IN EXCESS OF THE COST OF TRAVEL BY RAIL. INASMUCH AS SECTION 15 OF SAID ACT MAKES THE PROVISIONS OF SECTION 12 EFFECTIVE FROM SEPTEMBER 8, 1939, TO TWELVE MONTHS AFTER THE TERMINATION OF THE PRESENT WAR, THE UNDERSIGNED IS OF THE OPINION THAT MANY SUCH CLAIMS WILL BE SUBMITTED. ACCORDINGLY, YOUR CONSIDERATION OF THE FOLLOWING QUESTIONS IS RESPECTFULLY REQUESTED IN THE SETTLEMENT OF THE ATTACHED CLAIM AND FOR GUIDANCE IN THE CONSIDERATION OF FUTURE CLAIMS OF A SIMILAR NATURE:

1. IS REIMBURSEMENT LIMITED TO COST OF TRAVEL BY RAIL?

2. IN THE EVENT CLAIM IS MADE FOR TRAVEL BY RAIL, WOULD REIMBURSEMENT BE LIMITED, FOR PULLMAN ACCOMMODATIONS, TO THE SAME BASIS AS TRAVEL OF DEPENDENTS ON PERMANENT CHANGE OF STATION, AS PROVIDED IN WAR DEPARTMENT REGULATION AR 30-925-1-2, OCT. 8, 1935, OR WOULD PAYMENT BE MADE FOR ACCOMMODATIONS CLAIMED TO HAVE BEEN USED?

3. IN THE EVENT REIMBURSEMENT IS MADE ON THE BASIS OF ACTUAL EXPENSES WOULD RECEIPTS FOR SUCH EXPENSES BE REQUIRED?

4. IN CONNECTION WITH THE REIMBURSEMENT FOR, OR MOVEMENT ON GOVERNMENT B/L OF, HOUSEHOLD AND PERSONAL EFFECTS WOULD THERE BE A MINIMUM WEIGHT LIMITATION AT GOVERNMENT EXPENSE? IN THIS CONNECTION IT IS TO BE NOTED THAT THE ACT PROVIDES FOR SHIPMENTS OF HOUSEHOLD EFFECTS OF PERSONNEL NORMALLY NOT ENTITLED TO TRANSPORTATION AT GOVERNMENT EXPENSE.

YOUR DECISION AND INSTRUCTIONS IN THE PREMISES ARE RESPECTFULLY REQUESTED.

SECTION 10 OF THE ACT OF MARCH 7, 1942, 56 STAT. 145, PUBLIC LAW 490, 77TH CONGRESS, PROVIDES:

SEC. 10. THE DETERMINATION OF THE FACT OF DEPENDENCY UNDER THE PROVISIONS OF THIS ACT, AND THE DETERMINATION OF THE FACT OF DEPENDENCY UNDER THE PROVISIONS OF ANY AND ALL OTHER LAWS PROVIDING FOR THE PAYMENT OF PAY, ALLOWANCES, OR OTHER EMOLUMENTS TO ENLISTED MEN OF THE ARMY, NAVY, MARINE CORPS, AND COAST GUARD OF THE UNITED STATES WHERE SUCH PAYMENTS ARE CONTINGENT UPON DEPENDENCY, SHALL BE MADE BY THE HEAD OF THE DEPARTMENT CONCERNED, OR BY SUCH SUBORDINATE AS HE MAY DESIGNATE, AND SUCH DETERMINATION SO MADE SHALL BE FINAL AND CONCLUSIVE: PROVIDED, THAT THE ACT OF JUNE 4, 1920 (41 STAT. 824), AS AMENDED ( U.S.C.,TITLE 34, SEC. 943), IS HEREBY AMENDED BY DELETING THE WORD "ACTUALLY" IN THE FIRST PROVISO.

SECTION 12 OF THE ABOVE ACT, 56 STAT. 146, PROVIDES:

SEC. 12. THE DEPENDENTS AND HOUSEHOLD AND PERSONAL EFFECTS OF ANY PERSON ON ACTIVE DUTY (WITHOUT REGARD TO PAY GRADE) WHO IS OFFICIALLY REPORTED AS INJURED, DEAD, MISSING AS THE RESULT OF MILITARY OR NAVAL OPERATIONS, INTERNED IN A NEUTRAL COUNTRY, OR CAPTURED BY THE ENEMY MAY BE MOVED (INCLUDING PACKING AND UNPACKING OF HOUSEHOLD EFFECTS) TO THE OFFICIAL RESIDENCE OF RECORD FOR ANY SUCH PERSON, OR, UPON APPLICATION BY SUCH DEPENDENTS, TO SUCH OTHER LOCATIONS AS MAY BE DETERMINED BY THE HEAD OF THE DEPARTMENT CONCERNED OR BY SUCH PERSON AS HE MAY DESIGNATE, BY THE USE OF EITHER COMMERCIAL OR GOVERNMENT TRANSPORTATION: PROVIDED, THAT THE COST OF SUCH TRANSPORTATION, INCLUDING PACKING AND UNPACKING, SHALL BE CHARGED AGAINST APPROPRIATIONS CURRENTLY AVAILABLE.

THE ACT OF MAY 18, 1920, 41 STAT. 604 PROVIDES THAT TRANSPORTATION IN KIND SHALL BE FURNISHED THE DEPENDENTS OF COMMISSIONED OFFICERS, WARRANT OFFICERS, AND CERTAIN ENLISTED MEN, WHEN SUCH OFFICERS OR MEN ARE ORDERED TO MAKE A PERMANENT CHANGE OF STATION. THE ACT OF JUNE 10, 1922, 42 STAT. 631, AUTHORIZES, IN LIEU OF THE TRANSPORTATION IN KIND PROVIDED FOR IN THE 1920 ACT, REIMBURSEMENT OF COMMERCIAL COSTS OF TRANSPORTATION OF DEPENDENTS, UPON COMPLETION OF TRAVEL. LATER ACTS OF CONGRESS HAVE PROVIDED FOR TRANSPORTATION OF DEPENDENTS UNDER CONDITIONS NOT COVERED BY THE 1920 ACT. BUT THAT ACT AND THE ACT OF JUNE 10, 1922, REMAIN THE BASIC LAW ON THIS SUBJECT. SEE, IN THIS CONNECTION, REENACTMENT OF THE LAW IN SECTION 12 OF THE ACT OF JUNE 16, 1942, 56 STAT. 364, PUBLIC LAW NO. 607.

IN EFFECT, SECTION 12 OF THE ACT OF MARCH 7, 1942, HEREINBEFORE QUOTED, IS A TEMPORARY MODIFICATION OF PRIOR LAWS AS TO THE CONDITIONS UNDER WHICH TRANSPORTATION OF DEPENDENTS OF MILITARY OR NAVAL PERSONNEL MAY BE FURNISHED. IN OTHER WORDS, A DEPENDENT HAVING ESTABLISHED THE RIGHT TO TRANSPORTATION UNDER SECTION 12, IS ENTITLED TO THE BENEFITS PROVIDED IN THE 1920 AND 1922 ACTS AS AMENDED, AND IS GOVERNED BY THE REGULATIONS ISSUED PURSUANT TO THOSE ACTS, EXCEPT WHEN SUCH REGULATIONS CONFLICT WITH THE EXPRESS PROVISIONS OF THAT SECTION. HENCE, UNDER THE 1942 ACT, A DEPENDENT IS ENTITLED TO REIMBURSEMENT OF COMMERCIAL COSTS OF TRANSPORTATION ON THE BASIS ON WHICH AN OFFICER OR ENLISTED MAN IS ENTITLED TO REIMBURSEMENT UNDER THE 1922 ACT AND REGULATIONS THEREUNDER, BEARING IN MIND THAT UNDER THE NEW LEGISLATION A DEPENDENT MAY CHOOSE ANY DESTINATION, SUBJECT TO ADMINISTRATIVE APPROVAL.

IT IS BELIEVED THAT THE FOREGOING ANSWERS ALL THE QUESTIONS PROPOUNDED BY YOU EXCEPT THE ONE NUMBERED 4. THAT QUESTION APPARENTLY DEALS WITH A HYPOTHETICAL CASE AND NEED NOT BE CONSIDERED AT THIS TIME.

IN THE SUBJECT CASE, THE CLAIMANT AND HER MINOR CHILD HAVE BEEN DETERMINED, IN ACCORDANCE WITH SECTION 10 OF THE ACT OF MARCH 7, 1942, TO BE THE DEPENDENTS OF SERGEANT ROBERT F. PARKS, OFFICIALLY REPORTED " MISSING" AS OF MAY 7, 1942. IT HAS BEEN ADMINISTRATIVELY DETERMINED THAT STANLEY, PAGE COUNTY, VIRGINIA, IS THE OFFICIAL RESIDENCE OF RECORD OF SERGEANT PARKS. TRANSPORTATION IN KIND FOR HIS DEPENDENTS FROM SEATTLE, WASHINGTON, TO STANLEY WAS AUTHORIZED BY THE WAR DEPARTMENT, BUT WAS NOT ISSUED, BECAUSE THE CLAIMANT HAD LEFT SEATTLE PRIOR TO SUCH AUTHORIZATION. CLAIM IS MADE FOR REIMBURSEMENT OF COST OF AIR TRANSPORTATION, AND TRANSPORTATION OF BAGGAGE BY AIR AND RAIL, FROM SEATTLE TO WASHINGTON, D.C. THE VOUCHER, WHICH IS RETURNED HEREWITH, MAY NOT BE ALLOWED IN ITS PRESENT FORM, BUT MAY BE ALLOWED IF MODIFIED TO REPRESENT RAIL AND BERTH CHARGES, UNDER PERTINENT REGULATIONS, FROM SEATTLE TO WASHINGTON, NOT TO EXCEED SUCH CHARGES FROM SEATTLE TO STANLEY, THE DESTINATION APPROVED BY THE WAR DEPARTMENT.