B-3789, JUNE 10, 1939, 18 COMP. GEN. 921

B-3789, JUNE 10, 1939, 18 COMP. GEN. 921

TRANSPORTATION - DEPENDENTS - NAVY PERSONNEL ACT SELECTION LIST DISCHARGES OFFICERS WHOSE NAMES ARE NOT PLACED UPON THE PROMOTION LIST AND WHO ARE DISCHARGED PURSUANT TO SECTION 12 (C) OF THE NAVY PERSONNEL ACT APPROVED JUNE 23, 1938, 52 STAT. 949, ARE NOT ENTITLED TO BE FURNISHED TRANSPORTATION FOR THEIR DEPENDENTS FROM THE OLD PERMANENT DUTY STATION TO THEIR HOMES TO WHICH ORDERED TO PROCEED FOR DISCHARGE.

COMPTROLLER GENERAL BROWN TO THE SECRETARY OF THE NAVY, JUNE 10, 1939:

THERE HAS BEEN RECEIVED YOUR LETTER OF MAY 16, 1939, AS FOLLOWS:

SECTION 12 (C) OF THE NAVY PERSONNEL ACT APPROVED JUNE 23, 1938 (52 STAT. 949; 34 U.S. CODE, SUP. IV, SEC. 404 (C) (, PROVIDES:

"/C) LIEUTENANT COMMANDERS, LIEUTENANTS, AND LIEUTENANTS (JUNIOR GRADE) WHOSE NAMES ARE NOT PLACED UPON THE PROMOTION LIST SHALL BE HONORABLY DISCHARGED FROM THE NAVY WITH TWO YEARS' PAY IF LIEUTENANT COMMANDERS OR LIEUTENANTS OR WITH ONE YEAR'S PAY IF LIEUTENANTS (JUNIOR GRADE) ON JUNE 30 OF THE FISCAL YEAR IN WHICH THEY FAIL OF SELECTION AS BEST FITTED THE SECOND TIME: PROVIDED, THAT SUCH LIEUTENANT COMMANDERS, LIEUTENANTS, AND LIEUTENANTS (JUNIOR GRADE) WHO WERE APPOINTED AS ENSIGNS IN THE PERMANENT LINE OF THE NAVY, IN ACCORDANCE WITH THE PROVISIONS OF THE ACT OF MARCH 3, 1901, AS AMENDED, SHALL HAVE THE OPTION OF REVERTING TO SUCH PERMANENT WARRANT OR PERMANENT COMMISSIONED-WARRANT STATUS IN THE LINEAL POSITION TO WHICH THEIR SENIORITY WOULD HAVE ENTITLED THEM HAD THEIR SERVICE SUBSEQUENT TO SUCH APPOINTMENT BEEN RENDERED IN THE STATUS TO WHICH THEY REVERT.'

OFFICERS COMING WITHIN THE PROVISIONS OF THE ABOVE-QUOTED LAW WILL BE ORDERED FROM THEIR PERMANENT-DUTY STATIONS, SOME LOCATED OUTSIDE OF THE CONTINENTAL LIMITS OF THE UNITED STATES AND OTHERS WITHIN THE CONTINENTAL LIMITS OF THE UNITED STATES, TO THEIR HOMES FOR DISCHARGE. THE QUESTION HAS ARISEN IN THE NAVY DEPARTMENT, AS TO WHETHER OR NOT, UNDER SUCH ORDERS, TRANSPORTATION OF THE DEPENDENTS OF AN OFFICER IS AUTHORIZED FROM HIS OLD PERMANENT-DUTY STATION TO HIS HOME TO WHICH ORDERED FOR DISCHARGE.

IT WOULD APPEAR TO THE NAVY DEPARTMENT THAT OFFICERS ORDERED FROM OVERSEAS STATIONS TO THE UNITED STATES TO PROCEED TO THEIR HOMES FOR DISCHARGE PURSUANT TO THE PROVISIONS OF SECTION 12 (C), SUPRA, ARE IN THE SAME CATEGORY AS ENLISTED PERSONNEL ORDERED FROM OVERSEAS STATIONS TO THE UNITED STATES FOR SEPARATION FROM THE SERVICE. IN THIS CONNECTION ATTENTION IS INVITED TO ARTICLE 2505-15, U.S. NAVY TRAVEL INSTRUCTIONS, AND TO THE COMPTROLLER GENERAL'S DECISION OF AUGUST 5, 1924, A-4417, TO THE EFFECT THAT TRANSPORTATION OF DEPENDENTS ON TRANSFER TO A SHIP OR STATION FOR DISCHARGE IS AUTHORIZED ON TRANSFERS FROM A FOREIGN STATION TO THE UNITED STATES.

ATTENTION IS FURTHER INVITED TO THE ACT OF JUNE 24, 1935 (49 STAT. 421; 34 U.S. CODE, SEC. 896B), TO THE EFFECT THAT THE WORDS "PERMANENT CHANGE OF STATION" AS USED IN SECTION 12 OF THE ACT OF MAY 18, 1920 (41 STAT. 604; 34 U.S. CODE, SEC. 896), SHALL BE HELD TO INCLUDE THE HOME OF AN OFFICER TO WHICH HE IS ORDERED IN CONNECTION WITH RETIREMENT. THE EFFECT OF THIS AMENDATORY LEGISLATION IS TO AUTHORIZE TRANSPORTATION OF DEPENDENTS OF AN OFFICER ORDERED TO HIS HOME IN CONNECTION WITH RETIREMENT, REGARDLESS OF WHETHER HIS LAST PERMANENT DUTY STATION WAS WITHIN OR OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES.

WHILE THE CITED ACT OF JUNE 24, 1935, IS NOT EXPRESSLY APPLICABLE TO THE QUESTION AT HAND, IT NEVERTHELESS APPEARS INDICATIVE OF A LEGISLATIVE POLICY TO PROVIDE FOR TRANSPORTATION OF DEPENDENTS OF PERSONNEL DETACHED FROM ALL ACTIVE DUTY AND DIRECTED TO PROCEED TO THEIR HOMES FOR RETIREMENT OR FOR DISCHARGE WHICH BECOMES EFFECTIVE AFTER ARRIVAL AT THEIR HOMES.

YOUR DECISION IS REQUESTED ON THE QUESTION WHETHER OR NOT OFFICERS WHO ARE DISCHARGED PURSUANT TO THE PROVISIONS OF SECTION 12 (C) OF THE ACT OF JUNE 23, 1938, SUPRA, ARE ENTITLED TO BE FURNISHED TRANSPORTATION FOR THEIR DEPENDENTS FROM THE OLD PERMANENT-DUTY STATION TO THEIR HOMES TO WHICH ORDERED TO PROCEED FOR DISCHARGE.

SECTION 12 OF THE ACT OF MAY 18, 1920, 41 STAT. 604, PROVIDES, IN PART, AS FOLLOWS:

THAT HEREAFTER WHEN ANY COMMISSIONED OFFICER, NONCOMMISSIONED OFFICER OF THE GRADE OF COLOR SERGEANT AND ABOVE, INCLUDING ANY NONCOMMISSIONED OFFICER OF THE MARINE CORPS OF CORRESPONDING GRADE, WARRANT OFFICER, CHIEF PETTY OFFICER, OR PETTY OFFICER (FIRST CLASS), HAVING A WIFE OR DEPENDENT CHILD OR CHILDREN, IS ORDERED TO MAKE A PERMANENT CHANGE OF STATION, THE UNITED STATES SHALL FURNISH TRANSPORTATION IN KIND FROM FUNDS APPROPRIATED FOR THE TRANSPORTATION OF THE ARMY, THE NAVY, THE MARINE CORPS, THE COAST GUARD, THE COAST AND GEODETIC SURVEY, AND THE PUBLIC HEALTH SERVICE TO HIS NEW STATION FOR THE WIFE AND DEPENDENT CHILD OR CHILDREN: PROVIDED, THAT FOR PERSONS IN THE NAVAL SERVICE THE TERM "PERMANENT STATION," AS USED IN THIS SECTION, SHALL BE INTERPRETED TO MEAN A SHORE STATION OR THE HOME YARD OF THE VESSEL TO WHICH THE PERSON CONCERNED MAY BE ORDERED; AND A DULY AUTHORIZED CHANGE IN HOME YARD OR HOME PORT OF SUCH VESSEL SHALL BE DEEMED A CHANGE OF STATION: * * *.

BY SECTION 3 OF THE ACT OF JUNE 24, 1935, 49 STAT. 421, TITLE 34, U.S. CODE, SECTION 896B, IT WAS PROVIDED:

DURING THE FISCAL YEAR 1935 AND THEREAFTER, THE WORDS "PERMANENT CHANGE OF STATION" AS USED IN SECTION 12 OF THE ACT APPROVED MAY 18, 1920 (41 STAT. 604), AS AMENDED, SHALL BE HELD TO INCLUDE THE HOME OF AN OFFICER OR MAN TO WHICH HE IS ORDERED IN CONNECTION WITH RETIREMENT.

EXCEPT AS THE WORDS "PERMANENT CHANGE OF STATION" WERE BY THE ACT OF JUNE 24, 1935, DEFINED TO INCLUDE THE HOME OF AN OFFICER OR MAN TO WHICH ORDERED IN CONNECTION WITH RETIREMENT, THE LIMITATION OF THE ORIGINAL DEFINITION AS CONTAINED IN THE ACT OF MAY 18, 1920, FOR PERSONS IN THE NAVAL SERVICE IS STILL THE LAW. IN VIEW OF THE SUBSISTING DEFINITION OF THE TERM "PERMANENT CHANGE OF STATION" AS CONTAINED IN THE ACT OF MAY 18, 1920, THE BROADER DEFINITION CONTAINED IN SECTION 3 OF THE ACT OF JUNE 24, 1935, WOULD BE NO AUTHORITY FOR INCLUDING WITHIN THE TERMS THE HOME OF AN OFFICER ORDERED THERE FOR DISCHARGE, UNITED STATES V. PHISTERER, 94 U.S. 219; MCGOWAN V. UNITED STATES, 48 CT.CLS. 95; THE SPECIFIC CHANGE IN THE DEFINITION OF THE TERM CONTAINED IN THE 1935 ACT BEING APPLICABLE ONLY TO CASES OF RETIREMENT. THE PLAIN LANGUAGE OF THE SECTION DOES NOT APPEAR REASONABLY SUSCEPTIBLE OF INCLUDING WITHIN ITS PURPOSE A GREATER MODIFICATION OF THE ACT OF MAY 18, 1920, AS AMENDED, THAN IS EXPRESSLY AND SPECIFICALLY THEREIN MENTIONED.

UNDER THE PROVISIONS OF SECTION 12 (C) OF THE ACT OF JUNE 23, 1938, 52 STAT. 949, THE LIMITED CLASS OF OFFICERS THEREIN REFERRED TO ARE REQUIRED TO BE HONORABLY "DISCHARGED" (NOT RETIRED) FROM THE NAVY WITH 2 YEARS' OR 1 YEAR'S PAY AS THE CASE MAY BE. OFFICERS OF THE NAVY DIRECTED TO BE DISCHARGED OR TO BE RELIEVED FROM THEIR OLD PERMANENT STATION AND TRAVEL TO THEIR HOMES FOR DISCHARGE DO NOT MAKE A PERMANENT CHANGE OF STATION WITHIN THE MEANING OF THE ACT OF MAY 18, 1920, AS AMENDED BY SECTION 3 OF THE ACT OF JUNE 24, 1935, AND ARE NOT, THEREFORE, ENTITLED TO TRANSPORTATION FOR THEIR DEPENDENTS FROM THEIR OLD PERMANENT-DUTY STATION TO THEIR HOMES. A-10692, DATED SEPTEMBER 15, 1925; 27 COMP. DEC. 61, 391; 3 COMP. GEN. 358, BROOK'S CASE; 15 COMP. GEN. 1040; A-19902, DATED OCTOBER 24, 1927; A-60024, DATED APRIL 4, 1935; ARTICLE 2505-17, U.S. NAVY TRAVEL INSTRUCTIONS.