B-54714, FEBRUARY 1, 1946, 25 COMP. GEN. 571

B-54714, FEBRUARY 1, 1946, 25 COMP. GEN. 571

TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS UPON ENLISTMENT OR REENLISTMENT IN REGULAR MARINE CORPS ENLISTED MARINE CORPS PERSONNEL OF THE GRADES FOR WHICH TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS IS OTHERWISE AUTHORIZED MAY NOT BE REGARDED AS ENTITLED, UPON ENLISTMENT OR REENLISTMENT IN THE REGULAR MARINE CORPS PURSUANT TO THE PROVISIONS OF THE ARMED FORCES VOLUNTARY RECRUITMENT ACT OF 1945 AFTER DISCHARGE FROM EITHER THE REGULAR MARINE CORPS OR THE MARINE CORPS RESERVE, TO TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS AT GOVERNMENT EXPENSE TO THEIR FIRST PERMANENT STATION AFTER ENLISTMENT OR REENLISTMENT, ON THE BASIS OF THE COST OF TRANSPORTATION TO SUCH A FIRST PERMANENT STATION FROM THE LAST PERMANENT STATION PRIOR TO DISCHARGE.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, FEBRUARY 1, 1946:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 19, 1945 (FILE JAG:II:WJG:ZL20-4/MM) WITH ENCLOSURE FROM THE COMMANDANT OF THE MARINE CORPS REQUESTING AN EXPRESSION OF MY VIEWS AS TO THE LEGALITY OF PROPOSED REGULATION WHICH WOULD PERMIT THE TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS OF ENLISTED PERSONNEL OF GRADES ENTITLED UNDER EXISTING REGULATIONS TO TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS, ON THE BASIS OF THE COST OF TRANSPORTATION VIA THE DIRECT ROUTE FROM OLD PERMANENT STATION TO THE NEW PERMANENT STATION WHEN SUCH PERSONNEL ARE DISCHARGED AND ENLIST OR REENLIST IN THE REGULAR MARINE CORPS WITHIN 90 DAYS UNDER THE PROVISIONS OF PUBLIC LAW 190--- 79TH CONGRESS, APPROVED OCTOBER 6, 1945, 59 STAT. 538.

THE ENCLOSURE FROM THE COMMANDANT OF THE MARINE CORPS IS, IN PERTINENT PART, AS FOLLOWS:

1. IN ANTICIPATION OF PROBLEMS THAT WILL ARISE CONCERNING TRANSPORTATION OF DEPENDENTS AND SHIPMENT OF HOUSEHOLD EFFECTS INCIDENTAL TO ENLISTMENTS OR REENLISTMENTS UNDER THE PROVISIONS OF REFERENCE (A), IT HAS BEEN NOTED THAT REFERENCE (C) PROVIDES "WHEN A MAN REENLISTS UNDER CONTINUOUS SERVICE OR AT THE PLACE AT WHICH DISCHARGED, HE IS ENTITLED TO TRANSPORTATION FOR DEPENDENTS ON SUBSEQUENT TRANSFER TO A NEW STATION ON THE BASIS OF TRAVEL FROM THE OLD PERMANENT DUTY STATION TO THE NEW PERMANENT DUTY STATION," WHEREAS REFERENCE (D), APPARENTLY PROMULGATED PURSUANT TO THE DECISION LISTED BY REFERENCE (E), STATES "WHEN A MAN REENLISTS UNDER BROKEN SERVICE, OR AT A PLACE OTHER THAN THE ONE FROM WHICH DISCHARGED, HE IS NOT ENTITLED TO TRANSPORTATION FOR DEPENDENTS TO HIS FIRST PERMANENT DUTY STATION AFTER REENLISTMENT.' IT IS FELT THAT THE INVOCATION OF REFERENCE (D) IN CONSIDERING THE RIGHTS OF ENLISTED PERSONNEL WHO ENLIST OR REENLIST IN ACCORDANCE WITH REFERENCE (A) WILL RESULT IN UNDUE DISCRIMINATION AGAINST PERSONNEL WHO ARE DISCHARGED OVERSEAS OR AT SEPARATION CENTERS. IT IS NOT FELT THAT SUCH PERSONNEL SHOULD BE DENIED TRANSPORTATION FOR THEIR DEPENDENTS OR SHIPMENT OF THEIR HOUSEHOLD EFFECTS AT GOVERNMENT EXPENSE MERELY BECAUSE THEY DID NOT ENLIST OR REENLIST AT THE SAME STATION FROM WHICH DISCHARGED. IT APPEARS THAT THE DECISION LISTED BY REFERENCE (E) WAS BASED LARGELY ON THE PREMISE THAT THE ENLISTED MAN'S NEW ASSIGNMENT RESULTED FROM HIS OWN ACTIONS AND WAS NOT "IN DUE COURSE FOR THE PUBLIC INTEREST.' REFERENCE (A), HOWEVER, IS ENTITLED "AN ACT TO STIMULATE ENLISTMENTS IN THE REGULAR MILITARY AND NAVAL ESTABLISHMENTS OF THE UNITED STATES" AND IT IS ACCORDINGLY THE OPINION OF THIS OFFICE THAT EVEN THOUGH ENLISTMENT OR REENLISTMENT IN THE REGULAR MARINE CORPS IS NOT MADE AT THE STATION FROM WHICH DISCHARGED SUCH ACTION WHEN CONSIDERED IN CONJUNCTION WITH THE PURPOSE OF REFERENCE (A) WOULD REASONABLY APPEAR TO HAVE BEEN TAKEN "IN DUE COURSE FOR THE PUBLIC EREST.'

2. SECTION 8 OF REFERENCE (A), WHILE APPARENTLY APPLICABLE ONLY IN CONSIDERATION OF PAYMENT OF REENLISTMENT ALLOWANCES, DOES PROVIDE THAT IN DETERMINING WHETHER ACTIVE FEDERAL SERVICE IS CONTINUOUS, ANY INTERRUPTIONS OF NOT MORE THAN 90 DAYS EACH SHOULD BE DISREGARDED. ACCORDINGLY APPEARS THAT THE SPIRIT OR INTENT OF REFERENCE (A) WHILE PRECLUDING PAYMENT OF ACTIVE DUTY PAY TO ANY MAN UNLESS HE IS ACTUALLY ON ACTIVE DUTY, WAS TO CONSIDER SUCH MAN AS UNDER CONTINUOUS SERVICE WHEN HE ENLISTS OR REENLISTS WITHIN 90 DAYS FOR ALL PURPOSES OTHER THAN PAY. FURTHER ACCORD WITH THIS TREND OF THOUGHT, ATTENTION IS INVITED TO THE FACT THAT ORIGINAL ENLISTMENT CONTRACTS WERE "FOR THE DURATION OF THE WAR" AND SECTION 12 (D) OF REFERENCE (A) PROVIDES "FOR THE PURPOSES OF THIS TITLE, THE PRESENT WAR SHALL NOT BE CONSIDERED AS TERMINATING, IN THE CASE OF ANY INDIVIDUAL, BEFORE THE TERMINATION OF SUCH INDIVIDUAL'S FIRST PERIOD OF ENLISTMENT OR REENLISTMENT CONTRACTED WITHIN ONE YEAR AFTER THE DATE OF THE ENACTMENT OF THE ARMED FORCES VOLUNTARY RECRUITMENT ACT OF 1945.'

3. ACCORDINGLY, ISSUANCE OF THE FOLLOWING REGULATION IS CONTEMPLATED BY THE MARINE CORPS:

WHEN ENLISTED PERSONNEL OF GRADES ENTITLED UNDER EXISTING REGULATIONS TO TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS ARE DISCHARGED AND ENLIST OR REENLIST IN THE REGULAR MARINE CORPS WITHIN A PERIOD OF 90 DAYS, UNDER THE PROVISIONS OF PUBLIC LAW 190, TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS IS AUTHORIZED ON THE BASIS OF TRANSPORTATION VIA THE DIRECT ROUTE FROM THE OLD PERMANENT DUTY STATION TO THE NEW PERMANENT DUTY STATION.

4. IN THE EVENT TRANSPORTATION OF DEPENDENTS OR SHIPMENT OF HOUSEHOLD EFFECTS IS EFFECTED AT GOVERNMENT EXPENSE ON DISCHARGE FROM THE MARINE CORPS RESERVE TO THE HOME OF RECORD OF PERSONNEL, IT IS, OF COURSE, UNDERSTOOD THAT BEFORE CONSIDERATION WILL BE GIVEN TO THE GRANTING OF ALLOWANCE AS OUTLINED BY THE REGULATION ABOVE, ADJUSTMENT WILL BE REQUIRED IN ACCORDANCE WITH THE PROVISIONS OF REFERENCE (B).

5. IT IS REQUESTED THAT THE COMPTROLLER GENERAL BE ASKED TO RENDER AN ADVANCE DECISION EXPRESSING HIS VIEWS AS TO THE LEGALITY OF THE PROPOSED REGULATION.

APPARENTLY IT IS THE INTENTION OF THE PROPOSED REGULATION TO TRANSPORT THE DEPENDENTS AND HOUSEHOLD EFFECTS OF ENLISTED PERSONNEL OF THE GRADES ABOVE MENTIONED TO THE FIRST PERMANENT STATION FOLLOWING ENLISTMENT OR REENLISTMENT IN THE REGULAR MARINE CORPS WITHIN 90 DAYS FROM DATE OF DISCHARGE FROM EITHER THE REGULAR MARINE CORPS OR MARINE CORPS RESERVE, SUCH TRANSPORTATION TO BE FURNISHED FROM THE LOCATION OF THE DEPENDENTS AND HOUSEHOLD EFFECTS AT THAT TIME, REGARDLESS OF WHETHER ANY TRANSPORTATION HAD BEEN FURNISHED INCIDENT TO THE MAN'S DISCHARGE OR SEPARATION FROM ACTIVE SERVICE, EXCEPT THAT THE COMBINED COST OF ANY TRANSPORTATION SO FURNISHED AND OF TRANSPORTATION TO THE NEW PERMANENT STATION AT THE TIME OF ENLISTMENT OR REENLISTMENT WOULD BE LIMITED TO NOT TO EXCEED THE COST OF TRANSPORTATION FROM THE LAST PERMANENT DUTY STATION PRIOR TO DISCHARGE TO THE NEW PERMANENT STATION.

ARTICLE 16-164 (1) OF THE MARINE CORPS MANUAL IS, IN PART, AS FOLLOWS:

THE WORDS "PERMANENT CHANGE OF STATION" SHALL INCLUDE THE CHANGE FROM HOME TO FIRST PERMANENT STATION AND FROM LAST STATION TO HOME WHEN ORDERED TO ACTIVE DUTY OTHER THAN TRAINING DUTY, OF ANY OFFICER, WARRANT OFFICER, OR ENLISTED MAN, INCLUDING RETIRED PERSONNEL AND MEMBERS OF THE RESERVE, IN A GRADE FOR WHICH TRANSPORTATION OF DEPENDENTS IS AUTHORIZED AT GOVERNMENT EXPENSE, AND THE CHANGE FROM LAST STATION TO HOME IN CONNECTION WITH RETIREMENT, RELIEF FROM ACTIVE DUTY, OR TRANSFER TO THE RESERVE * * *

WITH RESPECT TO TRANSPORTATION OF HOUSEHOLD EFFECTS, ARTICLE 16-272 (4) OF SAID MANUAL IS AS FOLLOWS:

RETIRED PERSONNEL OF THE REGULAR MARINE CORPS AND PERSONNEL OF THE MARINE CORPS RESERVE, WHEN ORDERED TO ACTIVE DUTY OR TEMPORARY ACTIVE DUTY OTHER THAN TRAINING, ARE ENTITLED TO TRANSPORTATION OF THEIR HOUSEHOLD EFFECTS AS FOR A PERMANENT OR TEMPORARY CHANGE OF STATION, AS THE CASE MAY BE, AS PROVIDED IN ARTICLE 16-266 (1), FROM THEIR HOMES TO PLACE OF DUTY. UPON TERMINATION OF ACTIVE DUTY OR TEMPORARY ACTIVE DUTY THE PERMANENT OR TEMPORARY CHANGE-OF-STATION ALLOWANCES, AS THE CASE MAY BE, ARE AUTHORIZED BETWEEN ANY POINTS IN THE UNITED STATES BUT LIMITED IN COST TO SHIPMENT OF THE SAME WEIGHT WITHIN ALLOWANCE FROM PLACE OF DUTY TO PLACE TO WHICH MILEAGE HAS BEEN OR WILL BE OBTAINED, OR, IF NO MILEAGE IS INVOLVED, TO THE OFFICIAL RESIDENCE OF RECORD AT TIME OF CALL TO ACTIVE DUTY. ( ASST. COMP. GEN. DEC.-B 47498, 3-8-45.)

THUS, IT WILL BE SEEN THAT EXISTING MARINE CORPS REGULATIONS PERMIT RESERVISTS TO TRANSPORT DEPENDENTS AND HOUSEHOLD EFFECTS TO FIRST PERMANENT STATION UPON BEING ORDERED TO ACTIVE DUTY, AND FROM LAST STATION TO HOME FOLLOWING RELIEF FROM ACTIVE DUTY, BUT THAT SUCH BENEFITS DO NOT EXTEND TO MEMBERS OF THE REGULAR MARINE CORPS. TRANSPORTATION AT GOVERNMENT EXPENSE OF DEPENDENTS OF NAVAL RESERVISTS WHEN ORDERED TO ACTIVE DUTY OR UPON RELEASE THEREFROM WAS FIRST PROVIDED IN TITLE 11 OF THE FOURTH SUPPLEMENTAL NATIONAL DEFENSE APPROPRIATION ACT, 1941, APPROVED MARCH 17, 1941, 55 STAT. 34, 35. THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 359, MADE NO CHANGE IN EXISTING LAWS OR REGULATIONS GOVERNING TRANSPORTATION OF HOUSEHOLD EFFECTS, THE FIFTH PARAGRAPH OF SECTION 12 OF THE ACT, 56 STAT. 364, MERELY CONTINUING IN EFFECT BENEFITS PREVIOUSLY AUTHORIZED. SIMILARLY, IT HAS BEEN HELD THAT THE WORDS "PERMANENT CHANGE OF STATION" AS CONTAINED IN SAID PARAGRAPH DID NOT EXTEND BENEFITS UNDER PARAGRAPH SIX OF SAID SECTION TO PERSONS OTHER THAN THOSE ENTITLED TO TRANSPORTATION FOR DEPENDENTS UNDER PRIOR LAWS. 22 COMP. GEN. 645; ID. 885; AND 23 ID. 73. ALSO, THERE APPEARS NOTHING IN THE WARTIME ACTS OF OCTOBER 14, 1942, 56 STAT. 786, AND NOVEMBER 28, 1943, 57 STAT. 593, WHICH WOULD PERMIT MEMBERS OF THE REGULAR MARINE CORPS TO TRANSPORT THEIR DEPENDENTS AND HOUSEHOLD EFFECTS FROM HOME TO FIRST STATION OR FROM LAST STATION TO HOME UPON DISCHARGE FROM THE SERVICE.

ARTICLE 2505, PARAGRAPHS 18 (A) AND 18 (B), NAVY TRAVEL INSTRUCTIONS, REFERRED TO IN THE COMMANDANT'S LETTER, PROVIDES AS FOLLOWS:

(A) WHEN A MAN REENLISTS UNDER CONTINUOUS SERVICE AT THE PLACE AT WHICH DISCHARGED, HE IS ENTITLED TO TRANSPORTATION FOR DEPENDENTS ON SUBSEQUENT TRANSFER TO A NEW STATION ON THE BASIS OF TRAVEL FROM THE OLD PERMANENT DUTY STATION TO THE NEW PERMANENT DUTY STATION.

(B) WHEN A MAN REENLISTS UNDER BROKEN SERVICE, OR AT A PLACE OTHER THAN THE ONE FROM WHICH DISCHARGED, HE IS NOT ENTITLED TO TRANSPORTATION FOR DEPENDENTS TO HIS FIRST PERMANENT DUTY STATION AFTER REENLISTMENT.

THE QUOTED INSTRUCTIONS ARE IN CONSONANCE WITH 8 COMP. GEN. 76 AND DECISIONS A-22960 OF AUGUST 9, 1928; AND A-24252 OF SEPTEMBER 18, 1928. THUS, THE LEGALITY OF THE PROPOSED REGULATION APPEARS TO DEPEND ENTIRELY ON WHETHER THERE IS AUTHORITY UNDER THE ARMED FORCES VOLUNTARY RECRUITMENT ACT OF 1945, PUBLIC LAW 190--- 79TH CONGRESS, APPROVED OCTOBER 6, 1945, FOR THE TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS OF ENLISTED MARINE CORPS PERSONNEL, OF THE GRADES SPECIFIED, FROM LAST PERMANENT STATION TO NEW PERMANENT STATION UPON ENLISTMENT OR REENLISTMENT IN THE REGULAR MARINE CORPS WITHIN 90 DAYS FROM DATE OF DISCHARGE. THE COMMANDANT OF THE MARINE CORPS HAS SUGGESTED THAT SECTIONS 8 AND 12 (D) (11 (B) ( OF THE SAID ACT, 59 STAT. 541, 542, MAY BE VIEWED AS AUTHORITY FOR THE PROPOSED REGULATION. THESE SECTIONS PROVIDE AS FOLLOWS:

SEC. 8. SECTION 10 OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED, IS AMENDED BY INSERTING BEFORE THE LAST PARAGRAPH THEEOF A NEW PARAGRAPH READING AS FOLLOWS:

"THE AMOUNT OF ENLISTMENT ALLOWANCE PAYABLE TO PERSONS ENLISTED OR REENLISTED IN THE REGULAR MILITARY ESTABLISHMENT ON OR AFTER JUNE 1, 1945, OR IN THE REGULAR NAVAL ESTABLISHMENT ON OR AFTER FEBRUARY 1, 1945, SHALL BE COMPUTED AT THE RATE PRESCRIBED FOR ENLISTED MEN OF THE FIRST THREE GRADES. FOR THE PURPOSE OF DETERMINING THE ELIGIBILITY OF ANY PERSON ENLISTED OR REENLISTED IN THE REGULAR MILITARY ESTABLISHMENT ON OR AFTER JUNE 1, 1945, OR IN THE REGULAR NAVAL ESTABLISHMENT ON OR AFTER FEBRUARY 1, 1945, TO RECEIVE THE ENLISTMENT ALLOWANCE, AND IN COMPUTING THE AMOUNT THEREOF ALL CONTINUOUS ACTIVE FEDERAL SERVICE IN THE ARMY OF THE UNITED STATES, OR ANY COMPONENT THEREOF (IF ENLISTED OR REENLISTED IN THE REGULAR MILITARY ESTABLISHMENT), OR IN THE NAVY, MARINE CORPS, OR COAST GUARD, OR ANY RESERVE COMPONENT THREOF (IF ENLISTED OR REENLISTED IN THE REGULAR NAVAL ESTABLISHMENT) WHETHER IN ENLISTED GRADES OR IN COMMISSIONED, COMMISSIONED WARRANT, OR WARRANT OFFICER GRADES, SHALL, IF HONORABLY PERFORMED SUBSEQUENT TO THE PAYMENT OF THE LAST PREVIOUS ENLISTMENT ALLOWANCES BE CREDITED AS A PERIOD OF ACTIVE ENLISTED SERVICE. DETERMINING WHETHER ACTIVE FEDERAL SERVICE IS CONTINUOUS, ANY INTERRUPTION, OF NOT MORE THAN NINETY DAYS EACH, BETWEEN PERIODS OF SUCH SERVICE SHALL BE DISREGARDED.'

SEC. 11 (B). SECTION 500 OF THE SERVICEMEN'S READJUSTMENT ACT OF 1944 IS AMENDED BY INSERTING AT THE END THEREOF A NEW SUBSECTION READING AS FOLLOWS:

"/D) FOR THE PURPOSE OF THIS TITLE, THE PRESENT WAR SHALL NOT BE CONSIDERED AS TERMINATING, IN THE CASE OF ANY INDIVIDUAL, BEFORE THE TERMINATION OF SUCH INDIVIDUAL'S FIRST PERIOD OF ENLISTMENT OR REENLISTMENT CONTRACTED WITHIN ONE YEAR AFTER THE DATE OF THE ENACTMENT OF THE ARMED FORCES VOLUNTARY RECRUITMENT ACT OF 1945.'

IT WILL BE NOTED THAT THE CONTINUOUS SERVICE REFERRED TO IN SECTION 8 RELATES ONLY TO THE RIGHT TO RECEIVE AN ENLISTMENT ALLOWANCE UNDER THE PAY READJUSTMENT ACT OF 1942, FOLLOWING AN ENLISTMENT OR REENLISTMENT IN THE REGULAR MILITARY ESTABLISHMENT OR REGULAR NAVY ESTABLISHMENT, AND THAT SECTION 11 (B) OPERATES ONLY TO EXTEND THE TIME DURING WHICH DISCHARGED MILITARY PERSONNEL MAY APPLY FOR A LOAN UNDER SECTION 500 OF THE SERVICEMEN'S READJUSTMENT ACT OF 1944, 58 STAT. 284, 291. THUS, THERE APPEARS NO REASONABLE BASIS FOR CONCLUDING THAT EITHER OF THE QUOTED SECTIONS OF THE ACT MAY BE CONSIDERED AS ESTABLISHING A RIGHT TO THE TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS OF ENLISTED MARINE CORPS PERSONNEL FROM THE OLD PERMANENT STATION TO THE NEW PERMANENT STATION UPON ENLISTMENT OR REENLISTMENT IN THE REGULAR MARINE CORPS WITHIN 90 DAYS FROM DATE OF DISCHARGE. FURTHERMORE, WHILE THE STATED PURPOSE OF PUBLIC LAW 190 WAS TO STIMULATE VOLUNTARY ENLISTMENTS, AND WHILE THE HEARINGS WHICH PRECEDED THE PASSAGE OF THE BILL DISCLOSE THAT NUMEROUS INDUCEMENTS WERE DISCUSSED BY MEMBERS OF BOTH THE HOUSE AND SENATE COMMITTEES, NO MENTION WAS MADE OF LIBERALIZING EXISTING LAWS PROVIDING FOR THE TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS OF ENLISTED PERSONNEL. THEREFORE, IT MUST BE CONCLUDED THAT THE CONGRESS DID NOT INTEND TO PROVIDE ANY NEW OR ADDITIONAL RIGHTS TO SUCH TRANSPORTATION.

ACCORDINGLY, SINCE THE PROPOSED REGULATION WOULD ESTABLISH A RIGHT TO TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS NOT COVERED BY EXISTING LAWS, AND SINCE THE RIGHT TO SUCH TRANSPORTATION AT PUBLIC EXPENSE MUST BE FOUNDED UPON LEGISLATION, AND CANNOT BE CREATED BY ADMINISTRATIVE REGULATION, I HAVE TO ADVISE THAT I FIND NO LEGAL BASIS THEREFOR.