B-40451, MAY 12, 1944, 23 COMP. GEN. 875

B-40451, MAY 12, 1944, 23 COMP. GEN. 875

TRANSPORTATION - DEPENDENTS OF PERSONS REPORTED AS INJURED, DEAD, MISSING, ETC. THE AUTHORIZATION IN SECTION 12 OF THE ACT OF MARCH 7, 1942, FOR THE TRANSPORTATION OF DEPENDENTS OF PERSONS OFFICIALLY REPORTED INJURED, DEAD, MISSING, ETC., IS FOR THE FURNISHING OF TRANSPORTATION TO SUCH DEPENDENTS AND NOT THE PAYMENT OF A COMMUTED ALLOWANCE, AND, THEREFORE, WHERE THE DEPENDENTS TRAVEL AT THEIR OWN EXPENSE, THE ALLOWANCE FOR TRANSPORTATION MAY NOT EXCEED THE AMOUNT EXPENDED BY THEM FOR THE TRANSPORTATION; NOR MAY IT EXCEED THE AMOUNT WHICH IT WOULD HAVE COST THE GOVERNMENT TO HAVE FURNISHED TRANSPORTATION. 22 COMP. GEN. 403, MODIFIED.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF WAR, MAY 12, 1944:

REFERENCE IS MADE TO DECISION OF OCTOBER 28, 1942, 22 COMP. GEN. 403, ADDRESSED TO COLONEL J. P. HILLMAN, U.S. ARMY, IN WHICH IT WAS HELD THAT MRS. ROBERT F. PARKS, WIFE OF THE FIRST SERGEANT ROBERT F. PARKS, WHO HAD BEEN OFFICIALLY REPORTED AS MISSING IN ACTION, WAS ENTITLED UNDER THE PROVISIONS OF SECTION 12 OF THE MISSING PERSONS ACT OF MARCH 7, 1942, 56 STAT. 146, TO BE PAID AN AMOUNT EQUAL TO THE COST OF RAIL AND PULLMAN TRANSPORTATION FROM SEATTLE, WASHINGTON, TO WASHINGTON, D.C., BUT NOT TO EXCEED SUCH COSTS FROM SEATTLE TO STANLEY, VIRGINIA, HER HUSBAND'S OFFICIAL RESIDENCE, UPON HER CLAIM FOR REIMBURSEMENT OF THE COST OF TRAVEL BY COMMERCIAL AIR TRANSPORTATION FROM SEATTLE TO WASHINGTON, D.C., FOLLOWING THE RECEIPT OF THE REPORT THAT HER HUSBAND WAS MISSING IN ACTION.

THAT DECISION WAS ON THE BASIS THAT THE SAID PROVISIONS OF SECTION 12 OF THE MISSING PERSONS ACT OF MARCH 7, 1942, AUTHORIZING THE MOVING OF DEPENDENTS OF PERSONS OFFICIALLY REPORTED AS INJURED, DEAD, MISSING AS A RESULT OF MILITARY OR NAVAL OPERATIONS, INTERNED IN A NEUTRAL COUNTRY, OR CAPTURED BY THE ENEMY, TO THE OFFICIAL RESIDENCE OF RECORD FOR ANY SUCH PERSON OR TO SUCH OTHER LOCATION AS MIGHT BE DETERMINED BY THE HEAD OF THE DEPARTMENT CONCERNED, UNDER CERTAIN CONDITIONS, CONSTITUTED, IN EFFECT, A TEMPORARY MODIFICATION OF PRIOR LAWS AS TO THE CONDITIONS UNDER WHICH TRANSPORTATION OF DEPENDENTS OF MILITARY OR NAVAL PERSONNEL MAY BE FURNISHED; AND, HENCE, THAT UNDER THE SAID MISSING PERSONS ACT A DEPENDENT "IS ENTITLED TO REIMBURSEMENT OF COMMERCIAL COST OF TRANSPORTATION ON THE BASIS ON WHICH AN OFFICER OR ENLISTED MAN IS ENTITLED TO REIMBURSEMENT" FOR THE TRANSPORTATION OF HIS DEPENDENTS UNDER THE PROVISIONS OF SECTION 12 OF THE ACT OF JUNE 10, 1922, 42 STAT. 631 (RE-ENACTED IN SECTION 12 OF THE PAY READJUSTMENT ACT OF JUNE 16, 1942, 56 STAT. 364), AND REGULATIONS THEREUNDER.

THE EFFECT OF THE DECISION IN THAT CASE WAS TO LIMIT REIMBURSEMENT TO THE COST OF RAIL AND PULLMAN TRANSPORTATION FOR THE JOURNEY INVOLVED WHERE THE TRAVEL ACTUALLY HAD BEEN PERFORMED BY COMMERCIAL AIR TRANSPORTATION. THE LANGUAGE OF THE DECISION, HOWEVER, WOULD JUSTIFY A CONCLUSION THAT PAYMENT OF AN AMOUNT EQUAL TO THE COMMERCIAL COST OF TRANSPORTATION BY RAIL AND PULLMAN WOULD BE AUTHORIZED IN ANY CASE, IRRESPECTIVE OF THE MODE OF TRAVEL OR THE EXPENSES ACTUALLY INCURRED BY THE DEPENDENTS FOR TRANSPORTATION IN PERFORMING TRAVEL UNDER THE CONDITIONS SET FORTH IN THE ACT. CLAIMS HAVE BEEN SUBMITTED TO THIS OFFICE WHERE THE DEPENDENTS--- IN SOME CASES, TWO OR MORE--- RETURNED HOME OR TRAVELED TO OTHER POINTS IN THEIR OWN AUTOMOBILE AT A COST OBVIOUSLY MUCH LESS THAN THE TOTAL COST OF RAIL AND PULLMAN FARES AND THE QUESTION HAS ARISEN WHETHER, NEVERTHELESS, THE SAID PROVISIONS OF SECTION 12 OF THE MISSING PERSONS ACT ENTITLED THEM TO PAYMENT OF SUCH EXCESS AMOUNT.

THE FIFTH PARAGRAPH OF SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 365, INCORPORATING THE PRIOR PROVISIONS OF THE ACT OF MAY 18, 1920, 41 STAT. 604, AND THE ACT OF JUNE 10, 1922, 42 STAT. 631, AUTHORIZING THE TRANSPORTATION AT GOVERNMENT EXPENSE TO THE NEW STATION OF THE DEPENDENTS OF ANY OFFICER, WARRANT OFFICER, OR ENLISTED MAN ABOVE THE FOURTH GRADE,"ORDERED TO MAKE A PERMANENT CHANGE OF STATION," EXPRESSLY PROVIDES:

* * * THAT IN LIEU OF TRANSPORTATION IN KIND AUTHORIZED BY THIS SECTION FOR DEPENDENTS, THE PRESIDENT MAY AUTHORIZE THE PAYMENT IN MONEY OF AMOUNTS EQUAL TO SUCH COMMERCIAL TRANSPORTATION COSTS FOR THE WHOLE OR SUCH PART OF THE TRAVEL FOR WHICH TRANSPORTATION IN KIND IS NOT FURNISHED WHEN SUCH TRAVEL SHALL HAVE BEEN COMPLETED.

SECTION 12 OF THE MISSING PERSONS ACT, 56 STAT. 146, CONTAINS NO SUCH PROVISION. IT PROVIDES:

THE DEPENDENTS AND HOUSEHOLD AND PERSONNEL 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.

THUS, WITH RESPECT TO WHAT TRANSPORTATION MAY BE FURNISHED DEPENDENTS UNDER THE CONDITIONS STATED--- AND IN CONTRAST WITH THE PROVISIONS FOR THE TRANSPORTATION OF DEPENDENTS OF OFFICERS AND OTHERS ON A PERMANENT CHANGE OF STATION--- THE STATUTE PROVIDES ONLY THAT THEY "MAY BE MOVED * * * BY THE USE OF EITHER COMMERCIAL OR GOVERNMENT TRANSPORTATION.' WITHOUT MORE, SUCH PROVISION WOULD APPEAR TO AUTHORIZE AND CONTEMPLATE ONLY THE FURNISHING OF A SERVICE OR TRANSPORTATION IN KIND AND NOT THE MAKING OF ANY MONEY PAYMENTS. BY SECTION 15 OF THE ACT, 56 STAT. 147, HOWEVER, THE PROVISIONS OF SECTION 12, TOGETHER WITH OTHER SECTIONS OF THE ACT, ARE MADE RETROACTIVELY EFFECTIVE FROM SEPTEMBER 8, 1939, AND, AS TRANSPORTATION IN KIND CANNOT BE RETROACTIVELY FURNISHED, OF COURSE, THE AUTHORIZATION HAS NOT BEEN VIEWED AS INTENDED TO BE LIMITED TO THE FURNISHING OF TRANSPORTATION IN KIND BUT AS CONTEMPLATING, ALSO, THE REIMBURSEMENT OF DEPENDENTS FOR THE COST OF TRANSPORTATION INVOLVED IN TRAVEL PERFORMED BY THEM AT THEIR OWN EXPENSE UNDER THE CIRCUMSTANCES THERE SET FORTH. BUT VIEWING THE AUTHORIZATION THUS BROADLY, IT DOES NOT EXTEND TO MAKING MONEY PAYMENTS ON A COMMUTED BASIS OR IN EXCESS OF ACTUAL EXPENDITURES. REIMBURSEMENT MEANS REPAYMENT OR MAKING WHOLE AND IT IS WELL ESTABLISHED THAT AN AUTHORIZATION FOR THE REIMBURSEMENT OF TRAVEL EXPENSES DOES NOT AUTHORIZE THE PAYMENT OF MILEAGE, A PER DIEM, OR OTHER FORMS OF COMMUTED ALLOWANCES AND THAT THE COMMUTATION OF SUCH EXPENSES IS ALLOWABLE ONLY WHEN AUTHORIZED BY STATUTE. 4 COMP. GEN. 735; 10 ID. 475; 15 ID. 206; ID. 588; 18 ID. 680; ID. 934; 20 ID. 361.

THE STATUTE HERE INVOLVED AUTHORIZES THE FURNISHING OF TRANSPORTATION UNDER CERTAIN CONDITIONS AND NOT THE PAYMENT OF A COMMUTED ALLOWANCE, AND IT FOLLOWS THAT AN ALLOWANCE FOR SUCH TRANSPORTATION IN CASES WHERE THE DEPENDENTS TRAVEL AT THEIR OWN EXPENSE MAY NOT EXCEED THE AMOUNT EXPENDED BY THE CLAIMANT FOR SUCH TRANSPORTATION NOR MAY IT EXCEED THE AMOUNT WHICH IT WOULD HAVE COST THE GOVERNMENT TO HAVE FURNISHED TRANSPORTATION. THE EXTENT THAT THE SAID DECISION OF OCTOBER 28, 1942, OR OTHER DECISIONS MAY BE VIEWED AS AUTHORIZING PAYMENTS OTHERWISE, THEY NO LONGER WILL BE REGARDED AS CONTROLLING.