B-61991, JANUARY 30, 1947, 26 COMP. GEN. 538

B-61991: Jan 30, 1947

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TRANSPORTATION - DEPENDENTS - FLEET RESERVISTS RELEASED FROM ACTIVE DUTY - PLACE TO WHICH ENTITLED REGULAR NAVY ENLISTED MEN TRANSFERRED TO THE FLEET RESERVE AND RELEASED FROM ACTIVE DUTY ARE NOT ENTITLED TO TRANSPORTATION OF DEPENDENTS. ON THE BASIS OF AN ADMINISTRATIVE DETERMINATION THAT SUCH SELECTED PLACE IS THE "MOST APPROPRIATE" TO WHICH THE TRAVEL ALLOWANCE PRESCRIBED IN SECTION 21 OF THE ACT OF AUGUST 2. IS AUTHORIZED TO BE PAID. 1947: REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 15. THE ASSISTANT COMPTROLLER GENERAL OF THE UNITED STATES IN REFERENCE (A) HELD THAT THE RIGHT TO TRANSPORTATION OF DEPENDENTS INCIDENT TO RELEASE FROM ACTIVE DUTY IN THE CASE OF MEMBERS OF THE REGULAR NAVY TRANSFERRED TO A RESERVE COMPONENT AND SUBSEQUENTLY RELEASED FROM ACTIVE DUTY IS THE SAME AS THAT PROVIDED FOR OTHER RESERVISTS WHO HAVE BEEN ORDERED TO ACTIVE DUTY AND SUBSEQUENTLY RELEASED THEREFROM.

B-61991, JANUARY 30, 1947, 26 COMP. GEN. 538

TRANSPORTATION - DEPENDENTS - FLEET RESERVISTS RELEASED FROM ACTIVE DUTY - PLACE TO WHICH ENTITLED REGULAR NAVY ENLISTED MEN TRANSFERRED TO THE FLEET RESERVE AND RELEASED FROM ACTIVE DUTY ARE NOT ENTITLED TO TRANSPORTATION OF DEPENDENTS, UNDER SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942, FROM LAST PERMANENT STATION TO A POINT IN THE UNITED STATES OR ONE OF ITS POSSESSIONS, MORE DISTANT THAN THE HOME OR OFFICIAL RESIDENCE OF RECORD, SELECTED FOR FUTURE RESIDENCE BY SUCH PERSONNEL, ON THE BASIS OF AN ADMINISTRATIVE DETERMINATION THAT SUCH SELECTED PLACE IS THE "MOST APPROPRIATE" TO WHICH THE TRAVEL ALLOWANCE PRESCRIBED IN SECTION 21 OF THE ACT OF AUGUST 2, 1946, IS AUTHORIZED TO BE PAID.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE NAVY, JANUARY 30, 1947:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 15, 1946, FILE REFERENCE JAG:II:WJG:MH L20-4/MM, REQUESTING DECISION ON A QUESTION PRESENTED IN A LETTER FORWARDED THEREWITH FROM THE DEPUTY CHIEF OF NAVAL PERSONNEL, DATED OCTOBER 23, 1946, AS FOLLOWS: SUBJ: TRANSPORTATION OF DEPENDENTS OF ENLISTED PERSONNEL

TRANSFERRED TO THE FLEET RESERVE AND RELEASED FROM ACTIVE

DUTY REF: (A) DECISION OF THE ASSISTANT COMPTROLLER GENERAL OF

THE U.S., B-41227, DTD JUNE 22, 1944.

(B) SEC 21 OF PUBLIC LAW 604--- 79TH CONGRESS, APPROVED

AUG 2, 1946.

(C) SECNAV LETTER PERS-8110-CSM. CFR, L20-5, DTD 27 SEPT

1946, PAR 46-1905, NAVY DEPT. BULLETIN, 30 SEPT 1946.

1. PURSUANT TO REQUEST OF THE CHIEF OF NAVAL PERSONNEL AS TO WHETHER OR NOT ENLISTED PERSONNEL TRANSFERRED TO THE FLEET RESERVE MAY SELECT THEIR HOMES IN A MANNER SIMILAR TO THAT APPLICABLE TO PERSONNEL PLACED ON THE RETIRED LIST FOR THE PURPOSE OF TRANSPORTATION OF DEPENDENTS TO SUCH HOMES, THE ASSISTANT COMPTROLLER GENERAL OF THE UNITED STATES IN REFERENCE (A) HELD THAT THE RIGHT TO TRANSPORTATION OF DEPENDENTS INCIDENT TO RELEASE FROM ACTIVE DUTY IN THE CASE OF MEMBERS OF THE REGULAR NAVY TRANSFERRED TO A RESERVE COMPONENT AND SUBSEQUENTLY RELEASED FROM ACTIVE DUTY IS THE SAME AS THAT PROVIDED FOR OTHER RESERVISTS WHO HAVE BEEN ORDERED TO ACTIVE DUTY AND SUBSEQUENTLY RELEASED THEREFROM, THAT IS, FROM LAST STATION TO HOME. THE ASSISTANT COMPTROLLER GENERAL FURTHER STATED IN REFERENCE (A) THAT THERE APPEARS TO BE NO AUTHORITY OF LAW FOR PERSONNEL OF THE REGULAR NAVY TRANSFERRED TO A RESERVE COMPONENT AND SUBSEQUENTLY RELEASED FROM ACTIVE DUTY TO ELECT THE HOME ADDRESS TO WHICH THEIR DEPENDENTS MAY TRAVEL AT GOVERNMENT EXPENSE.

2. REFERENCE (B) PROVIDES "AN ENLISTED PERSON OF THE ARMY, NAVY, MARINE CORPS OR COAST GUARD, INCLUDING RESERVE COMPONENTS THEREOF, UPON DISCHARGE EXCEPT BY WAY OF PUNISHMENT FOR AN OFFENSE, RETIREMENT, OR RELIEF FROM ACTIVE DUTY, SHALL, UNDER SUCH REGULATIONS AS THE HEAD OF THE DEPARTMENT CONCERNED MAY PRESCRIBE FOR PERSONNEL UNDER HIS JURISDICTION, RECEIVE A MONEY ALLOWANCE OF 5 CENTS PER MILE FOR THE DISTANCE FROM THE PLACE OF DISCHARGE OR RELEASE FROM ACTIVE DUTY TO HIS HOME, OR PLACE OF ACCEPTANCE FOR ACTIVE DUTY, OR PLACE FROM WHICH ORDERED TO ACTIVE DUTY, OR SUCH OTHER PLACE AS MAY BE DETERMINED TO BE MOST APPROPRIATE BY THE HEAD OF THE DEPARTMENT CONCERNED.'

3. IN CARRYING OUT THE PROVISIONS OF REFERENCE (B, THE SECRETARY OF THE NAVY, IN PARAGRAPH 2 (A) OF REFERENCE (C) HAS DETERMINED THAT THE TERM "HOME" AS USED IN REFERENCE (B) MEANS, WITH RESPECT TO PERSONNEL TRANSFERRED TO THE FLEET RESERVE, THE HOME IN THE UNITED STATES OR ONE OF ITS POSSESSIONS THEY MAY SELECT AS FUTURE RESIDENCE, SUCH PLACE BEING DEEMED MOST APPROPRIATE FOR A PERSON TERMINATING HIS NAVAL CAREER. THIS ACTION WAS TAKEN IN ORDER THAT PERSONNEL TRANSFERRED TO THE FLEET RESERVE WOULD BE ON A PARITY WITH PERSONNEL PLACED ON THE RETIRED LIST.

4. IN VIEW OF THE PROVISIONS OF REFERENCES (B) AND (C) IT IS REQUESTED THAT THE MATTER BE REFERRED TO THE COMPTROLLER GENERAL OF THE UNITED STATES FOR A DECISION AS TO WHETHER OR NOT EXISTING REGULATIONS WITH RESPECT TO TRANSPORTATION OF DEPENDENTS MAY NOT BE CHANGED SO AS TO PROVIDE TRANSPORTATION FOR DEPENDENTS OF PERSONNEL TRANSFERRED TO THE FLEET RESERVE AND RELEASED FROM ACTIVE DUTY, FROM THE LAST PERMANENT DUTY STATION TO SUCH HOME IN THE UNITED STATES, OR ONE OF ITS POSSESSIONS AS MAY BE SELECTED BY SUCH PERSONNEL FOR THE PURPOSE OF PAYMENT OF TRAVEL ALLOWANCE AUTHORIZED BY REFERENCES (B) AND (C). AN EARLY DECISION WILL BE APPRECIATED.

REGULATIONS ISSUED PURSUANT TO SECTION 21 OF THE ACT OF AUGUST 2, 1946, 60 STAT. 856, QUOTED IN PARAGRAPH 2 OF SAID LETTER OF OCTOBER 23, 1946, PUBLISHED IN PARAGRAPH 46-1905, NAVY DEPARTMENT BULLETIN, DATED SEPTEMBER 30, 1946, PAGE 16, ARE IN MATERIAL PART, AS FOLLOWS:

(H) REGULAR TRANSFERRED TO FLEET RESERVE OR TO RETIRED LIST AND IMMEDIATELY RELEASED FROM ACTIVE DUTY.--- FROM PLACE OF TRANSFER AND RELEASE TO (1) PLACE OF ACCEPTANCE FOR ENLISTMENT OR (2) HOME IN U.S. OR ONE OF ITS POSSESSIONS HE MAY SELECT AS FUTURE RESIDENCE.

(I) FLEET RESERVIST RELEASED FROM ACTIVE DUTY FOLLOWING CONTINUOUS ACTIVE DUTY SINCE TRANSFER TO THE FLEET RESERVE (HAVING BEEN TRANSFERRED TO THE FLEET RESERVE AT NORMAL DATE OF EXPIRATION OF ENLISTMENT).--- FROM PLACE OF RELEASE TO (1) PLACE OF TRANSFER TO THE FLEET RESERVE, OR (2) HOME OF SELECTION AS STATED IN (H) ABOVE.

(J) FLEET RESERVIST RELEASED FROM ACTIVE DUTY FOLLOWING CONTINUOUS ACTIVE DUTY SINCE TRANSFER TO THE FLEET RESERVE (HAVING BEEN TRANSFERRED TO THE FLEET RESERVE AT OTHER THAN EXPIRATION OF ENLISTMENT).--- FROM PLACE OF RELEASE TO (1) PLACE OF ACCEPTANCE FOR LAST ENLISTMENT, OR (2) HOME OF SELECTION AS STATED IN (H) ABOVE:

UNDER THE ABOVE-QUOTED REGULATIONS A FLEET RESERVIST IS ENTITLED TO TRAVEL ALLOWANCE FOR TRAVEL TO PLACE OF ACCEPTANCE FOR ENLISTMENT, TO PLACE OF TRANSFER TO THE FLEET RESERVE, TO HIS HOME, OR TO A PLACE SELECTED BY HIM AS A FUTURE RESIDENCE IN THE UNITED STATES OR ONE OF ITS POSSESSIONS. THE QUESTION NOW PRESENTED IS WHETHER, IN VIEW OF THE PROVISIONS OF SECTION 21 OF THE ACT OF AUGUST 2, 1946, SUPRA, AND THE SAID REGULATIONS ISSUED PURSUANT THERETO, EXISTING REGULATIONS RELATING TO TRANSPORTATION OF DEPENDENTS NOW MAY BE CHANGED TO PROVIDE TRANSPORTATION FOR DEPENDENTS OF PERSONNEL TRANSFERRED TO THE FLEET RESERVE AND RELEASED FROM ACTIVE DUTY FROM LAST STATION TO THE PLACE IN THE UNITED STATES OR ONE OF ITS POSSESSIONS SELECTED FOR FUTURE RESIDENCE BY SUCH PERSONNEL FOR THE PURPOSE OF PAYMENT OF TRAVEL ALLOWANCE.

PROVISION FOR THE TRANSPORTATION OF DEPENDENTS OF PERSONNEL OF THE NAVY UPON PERMANENT CHANGE OF STATION IS CONTAINED IN SECTION 12 OF THE ACT OF JUNE 16, 1942, 56 STAT. 364, 366, PARAGRAPH 6 OF WHICH PROVIDES AS FOLLOWS:

THE WORDS "PERMANENT CHANGE OF STATION" AS USED IN THIS SECTION SHALL INCLUDE THE CHANGE FROM HOME TO FIRST STATION AND FROM LAST STATION TO HOME WHEN ORDERED TO ACTIVE DUTY OTHER THAN TRAINING DUTY, OF ANY OFFICER, WARRANT OFFICER, NURSE, OR ENLISTED MAN OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT, INCLUDING RETIRED PERSONNEL AND MEMBERS OF THE RESERVE COMPONENTS THEREOF, IN A GRADE FOR WHICH THE 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 A RESERVE COMPONENT.

THUS THE EXPRESS STATUTORY AUTHORITY FOR TRANSPORTATION OF DEPENDENTS OF PERSONNEL TRANSFERRED TO A RESERVE COMPONENT IS FOR TRAVEL OF SUCH DEPENDENTS AT GOVERNMENT EXPENSE FROM LAST STATION TO HOME, AND IN THE DECISION OF JUNE 22, 1944, B-41227, 23 COMP. GEN. 967, CITED IN SAID LETTER OF OCTOBER 23, 1946, IT WAS HELD THAT MEMBERS OF THE REGULAR NAVY TRANSFERRED BY THE SECRETARY OF THE NAVY TO THE FLEET RESERVE UNDER THE PROVISIONS OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1175, 1178, ARE ENTITLED TO THE SAME TRANSPORTATION FOR DEPENDENTS AS IS AUTHORIZED UNDER SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942 FOR OTHER RESERVE PERSONNEL OF THE NAVY UPON RELEASE FROM ACTIVE DUTY--- THAT IS, FROM LAST STATION TO HOME OR OFFICIAL RESIDENCE OF RECORD. IT WAS FURTHER HELD THAT WHERE DEPENDENTS TRAVEL TO A PLACE SELECTED BY THE PERSONNEL UPON RELEASE FROM ACTIVE DUTY RATHER THAN TO THE OFFICIAL RESIDENCE OF RECORD, THE COST TO THE GOVERNMENT FOR THE TRANSPORTATION OF THE DEPENDENTS MAY NOT EXCEED THE COST OF TRAVEL TO SUCH HOME OR OFFICIAL RESIDENCE OF RECORD.

WHILE SAID SECTION 21 OF THE ACT OF AUGUST 2, 1946, FURTHER AMENDING SECTION 126 OF THE ACT OF JUNE 3, 1916, AS AMENDED (10 U.S.C. 752 AND 34 U.S.C. 895/--- IN ADDITION TO AUTHORIZING PAYMENT OF TRAVEL ALLOWANCE TO CERTAIN SPECIFIC PLACES, INCLUDING HOME, THE LOCATIONS OF WHICH CAN BE DETERMINED FROM THE SERVICE RECORDS OF THE PERSONNEL CONCERNED--- AUTHORIZES PAYMENT OF THE PRESCRIBED TRAVEL ALLOWANCE TO "SUCH OTHER PLACE AS MAY BE DETERMINED TO BE MOST APPROPRIATE BY THE HEAD OF THE DEPARTMENT CONCERNED," IT WOULD APPEAR THAT THE STATUTE CONTEMPLATES A DISTINCT AND SEPARATE DETERMINATION BY PROPER ADMINISTRATIVE AUTHORITY IN EACH INDIVIDUAL CASE AND THAT, THEREFORE, THE INVOLVED REGULATIONS, INSOFAR AS FLEET RESERVISTS RELEASED FROM ACTIVE DUTY ARE CONCERNED, APPEAR TO GO BEYOND THE STATUTE IN THAT THEY ATTEMPT APPARENTLY TO MAKE A BLANKET DETERMINATION AND, IN EFFECT, TO DELEGATE TO EACH SUCH RESERVIST AUTHORITY TO DETERMINE THE "MOST APPROPRIATE PLACE" TO WHICH TRAVEL ALLOWANCE IS TO BE PAID TO HIM. HOWEVER, ASIDE FROM THE DOUBT AS TO WHETHER SAID SECTION 21 OF THE ACT OF AUGUST 2, 1946, CONSTITUTES AUTHORITY FOR THE PAYMENT OF A MONEY ALLOWANCE FOR THE DISTANCE FROM LAST STATION TO ANY POINT IN THE UNITED STATES OR ONE OF ITS POSSESSIONS SELECTED AS FUTURE RESIDENCE BY PERSONNEL OF THE REGULAR NAVY TRANSFERRED TO THE FLEET RESERVE AND RELEASED FROM ACTIVE DUTY, CLEARLY NO RIGHT TO TRANSPORTATION OF DEPENDENTS IS EXPRESSLY EXTENDED BY SAID SECTION 21 OF SAID ACT NOR DOES IT APPEAR THAT ANYTHING CONTAINED THEREIN IS INCONSISTENT WITH PREEXISTING PROVISIONS OF LAW GOVERNING TRANSPORTATION OF DEPENDENTS UPON TERMINATION OF SERVICE OF NAVAL PERSONNEL. THE AUTHORITY FOR THE TRANSPORTATION OF DEPENDENTS OF PERSONNEL TRANSFERRED TO A RESERVE COMPONENT AS CONTAINED IN THE APPLICABLE STATUTE, I.E., SECTION 12 OF THE ACT OF JUNE 16, 1942, IS FROM LAST STATION TO HOME, AND SINCE, AS HELD IN THE ABOVE-CITED DECISION OF JUNE 22, 1944, 23 COMP. GEN. 967, A FLEET RESERVIST HAS A HOME FOR PURPOSES OF TRANSPORTATION OF DEPENDENTS, THERE APPEARS TO BE NO AUTHORITY OF LAW FOR TRAVEL OF DEPENDENTS AT GOVERNMENT EXPENSE TO A POINT, MORE DISTANT THAN THE HOME OR OFFICIAL RESIDENCE OF RECORD, DETERMINED BY ADMINISTRATIVE AUTHORITY "TO BE MOST APPROPRIATE" FOR PAYMENT OF THE TRAVEL ALLOWANCE PRESCRIBED IN SECTION 21 OF THE ACT OF AUGUST 2, 1946.