B-131632, JULY 16, 1957, 37 COMP. GEN. 21

B-131632: Jul 16, 1957

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1957: FURTHER REFERENCE IS MADE TO LETTER OF APRIL 16. ARE RETURNED TO THE UNITED STATES FOR DISCHARGE AFTER THEY HAVE SERVED THE SENTENCE. IT WOULD APPEAR TO BE CONTRARY TO PUBLIC POLICY TO HAVE DEPENDENTS OF A MEMBER STRANDED IN A FOREIGN COUNTRY UNDER SUCH CIRCUMSTANCES. IT IS USUALLY DESIRABLE THAT DEPENDENTS AND HOUSEHOLD EFFECTS BE RETURNED TO THE UNITED STATES IN ADVANCE OF THE MEMBER. A SIMILAR PROBLEM IS RAISED IN EACH OF THE FOLLOWING SITUATIONS: A. WHETHER IT IS IMPOSED BY ADMINISTRATIVE MEANS OR PURSUANT TO SENTENCE OF COURT MARTIAL. IS UNDER CONDITIONS "OTHER THAN HONORABLE.'. IT SHOULD BE NOTED THAT WHILE IN SOME CASES THE MAN IS A MEMBER OF ONE OF THE SERVICES DURING THE PERIOD TRAVEL OF DEPENDENTS IS TO BE PERFORMED.

B-131632, JULY 16, 1957, 37 COMP. GEN. 21

MILITARY PERSONNEL - TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS DISHONORABLE DISCHARGE TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS OF MEMBERS OF THE ARMED FORCES DISCHARGED FROM THE SERVICE UNDER OTHER THAN HONORABLE CIRCUMSTANCES MAY NOT BE AUTHORIZED AT GOVERNMENT EXPENSE IN THE ABSENCE OF EXPRESS STATUTORY AUTHORITY THEREFOR.

TO THE SECRETARY OF THE ARMY, JULY 16, 1957:

FURTHER REFERENCE IS MADE TO LETTER OF APRIL 16, 1957, FROM THE ASSISTANT SECRETARY OF THE ARMY, REQUESTING A DECISION AS TO WHETHER THE SECRETARIES CONCERNED MAY PRESCRIBE REGULATIONS AUTHORIZING TRAVEL OF DEPENDENTS AND TRANSPORTATION OF HOUSEHOLD EFFECTS AT GOVERNMENT EXPENSE OF MEMBERS OF THE UNIFORMED SERVICES, IN THE CIRCUMSTANCES DESCRIBED IN THE LETTER AS FOLLOWS:

AS YOU KNOW, UNDER THE NATO STATUS OF FORCES AGREEMENTS, AND SIMILAR AGREEMENT WITH NON-NATO NATIONS, A FOREIGN STATE MAY EXERCISE JURISDICTION OVER A MEMBER OF THE UNITED STATES FORCES IN CASE OF VIOLATION OF THE LAWS OF THE RECEIVING STATE. THIS HAS RESULTED IN MEMBERS OF OUR FORCES BEING SENTENCED TO, AND SERVING, PERIODS OF CONFINEMENT IN FOREIGN CIVIL CONFINEMENT FACILITIES. SUCH MEMBERS, WITH FEW EXCEPTIONS, ARE RETURNED TO THE UNITED STATES FOR DISCHARGE AFTER THEY HAVE SERVED THE SENTENCE. IT WOULD APPEAR TO BE CONTRARY TO PUBLIC POLICY TO HAVE DEPENDENTS OF A MEMBER STRANDED IN A FOREIGN COUNTRY UNDER SUCH CIRCUMSTANCES. AS THE SENTENCE MAY BE FOR A TERM OF SEVERAL YEARS, IT IS USUALLY DESIRABLE THAT DEPENDENTS AND HOUSEHOLD EFFECTS BE RETURNED TO THE UNITED STATES IN ADVANCE OF THE MEMBER.

IN ADDITION TO THE PROBLEM RAISED BY THE FACT SITUATION SET OUT IN THE PRECEDING PARAGRAPH, A SIMILAR PROBLEM IS RAISED IN EACH OF THE FOLLOWING SITUATIONS:

A. A MEMBER DISCHARGED OVERSEAS PURSUANT TO SENTENCE OF COURT MARTIAL.

B. A MEMBER RETURNED FROM OVERSEAS TO THE UNITED STATES, ITS TERRITORIES OR POSSESSIONS, FOR DISCHARGE PURSUANT TO SENTENCE OF COURT-MARTIAL.

C. A MEMBER RETURNED FROM OVERSEAS TO THE UNITED STATES, ITS TERRITORIES OR POSSESSIONS, FOR ADMINISTRATIVE DISCHARGE.

D. A MEMBER RETURNED FROM OVERSEAS TO THE UNITED STATES TO SERVE A SENTENCE OF CONFINEMENT; HE MAY OR MAY NOT BE DISCHARGED UPON TERMINATION OF CONFINEMENT.

E. A MEMBER SERVING SENTENCE OF CONFINEMENT IN A MILITARY CONFINEMENT FACILITY OVERSEAS, DISCHARGE NOT YET EFFECTED.

F. A MEMBER GIVEN AN ADMINISTRATIVE DISCHARGE WHILE SERVING A SENTENCE OF CIVIL COURT IN A CIVIL CONFINEMENT FACILITY WITHIN THE CONTINENTAL UNITED STATES.

G. A MEMBER DISCHARGED WITHIN THE CONTINENTAL UNITED STATES PURSUANT TO A SENTENCE OF COURT-MARTIAL.

H. A MEMBER SERVING A SENTENCE IN A CIVIL OR MILITARY CONFINEMENT FACILITY WITHIN THE CONTINENTAL UNITED STATES.

I. A MEMBER GIVEN AN ADMINISTRATIVE DISCHARGE WITHIN THE CONTINENTAL UNITED STATES, ITS TERRITORIES OR POSSESSIONS.

IN EACH OF THE CASES ABOVE, THE DISCHARGE MENTIONED, WHETHER IT IS IMPOSED BY ADMINISTRATIVE MEANS OR PURSUANT TO SENTENCE OF COURT MARTIAL, IS UNDER CONDITIONS "OTHER THAN HONORABLE.' IT SHOULD BE NOTED THAT WHILE IN SOME CASES THE MAN IS A MEMBER OF ONE OF THE SERVICES DURING THE PERIOD TRAVEL OF DEPENDENTS IS TO BE PERFORMED, IN OTHER CASES HE HAS BEEN SEPARATED FROM THE SERVICE.

YOU ASK (1) WHETHER THE SECRETARIES CONCERNED MAY, IN THE SITUATION DESCRIBED, AUTHORIZE THE TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS FROM THE LAST DUTY STATION OF THE MEMBER CONCERNED TO HIS HOME OF RECORD, AND (2), IF OUR REPLY IS IN THE NEGATIVE, WHETHER, WHERE DEPENDENTS ARE LOCATED AT THE MEMBER'S DUTY STATION OUTSIDE THE UNITED STATES, TRANSPORTATION MAY BE AUTHORIZED TO THE PORT OF DEBARKATION IN THE COUNTRY IN WHICH THE HOME OF RECORD IS LOCATED.

SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 814, 37 U.S.C. 253 (C), PROVIDES IN PART THAT UNDER SUCH CONDITIONS AND LIMITATIONS AND FOR SUCH RANKS, GRADES, OR RATINGS AND TO AND FROM SUCH LOCATIONS AS MAY BE PRESCRIBED BY THE SECRETARIES CONCERNED, MEMBERS OF THE UNIFORMED SERVICES "WHEN ORDERED TO MAKE A CHANGE OF PERMANENT STATION" SHALL BE ENTITLED TO TRANSPORTATION IN KIND FOR DEPENDENTS OR TO REIMBURSEMENT THEREFOR, OR TO A MONETARY ALLOWANCE IN LIEU OF SUCH TRANSPORTATION IN KIND. IT IS FURTHER PROVIDED THAT "IN CONNECTION WITH A CHANGE OF STATION (WHETHER TEMPORARY OR PERMANENT)" MEMBERS OF THE UNIFORMED SERVICES SHALL BE ENTITLED TO TRANSPORTATION (INCLUDING PACKING, CRATING, DRAYAGE, TEMPORARY STORAGE, AND UNPACKING) OF BAGGAGE AND HOUSEHOLD EFFECTS, OR REIMBURSEMENT THEREFOR, TO AND FROM SUCH LOCATIONS AND WITHIN SUCH WEIGHT ALLOWANCES AS MAY BE PRESCRIBED BY THE SECRETARIES.

THE PURPOSE OF THE STATUTES AUTHORIZING TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS AT GOVERNMENT EXPENSE IS TO RELIEVE A MEMBER OF THE ARMED FORCES OF THE BURDEN OF PERSONALLY DEFRAYING THE EXPENSES OF MOVING HIS HOUSEHOLD WHEN SUCH MOVE IS MADE NECESSARY BY AN ORDERED CHANGE OF STATION. PARAGRAPH 5 OF SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942, EFFECTIVE JUNE 1, 1942, 56 STAT. 365, 37 U.S.C. 112 (1946 USED.), PROVIDED THAT:

WHEN ANY OFFICER, WARRANT OFFICER, OR ENLISTED MAN ABOVE THE FOURTH GRADE, HAVING DEPENDENTS AS DEFINED IN SECTION 4 HEREOF, IS ORDERED TO MAKE A PERMANENT CHANGE OF STATION, THE UNITED STATES SHALL FURNISH TRANSPORTATION IN KIND * * * TO HIS NEW STATION FOR SUCH DEPENDENTS. * * * THAT THE PERSONNEL OF ALL THE SERVICES MENTIONED IN THE TITLE OF THIS ACT SHALL HAVE THE BENEFIT OF ALL EXISTING LAWS APPLYING TO THE ARMY AND THE MARINE CORPS FOR THE TRANSPORTATION OF HOUSEHOLD EFFECTS: * * * THAT IN LIEU OF TRANSPORTATION IN KIND AUTHORIZED BY THIS SECTION FOR DEPENDENTS, THE PRESIDENT MAY AUTHORIZE THE PAYMENT IN MONEY * * * EQUAL TO SUCH COMMERCIAL TRANSPORTATION * * * WHEN SUCH TRAVEL SHALL HAVE BEEN COMPLETED.

PRIOR TO THE ENACTMENT OF THE PAY READJUSTMENT ACT OF 1942, SIMILAR PROVISIONS FOR THE TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS OF OFFICERS, AND ENLISTED MEN IN THE HIGHER GRADES, IN THE SEVERAL ARMED SERVICES, WHEN ORDERED TO MAKE A PERMANENT CHANGE OF STATION, WERE CONTAINED IN SECTION 12 OF THE ACT OF MAY 18, 1920, 41 STAT. 604, AND SECTION 12 OF THE ACT OF JUNE 10, 1922, 42 STAT. 631.

REGULATIONS ISSUED BY THE SEVERAL ARMED SERVICES UNDER THE PROVISIONS OF THESE STATUTES UNIFORMLY HAVE BARRED TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS AT GOVERNMENT EXPENSE OF MEMBERS INCIDENT TO THEIR SEPARATION FROM THE SERVICE UNDER CONDITIONS OTHER THAN HONORABLE.

UNLIKE THE EARLIER STATUTES, SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949 CONFERS UPON THE SECRETARIES CONCERNED THE AUTHORITY TO DESIGNATE BY REGULATIONS THE CONDITIONS AND LIMITATIONS GOVERNING THE TRANSPORTATION AT GOVERNMENT EXPENSE OF DEPENDENTS AND HOUSEHOLD EFFECTS OF MEMBERS OF THE UNIFORMED SERVICES. WHILE THE LANGUAGE OF SUCH PROVISIONS OF LAW IS SOMEWHAT DIFFERENT FROM THAT USED IN THE PRIOR STATUTES CITED, THE CHANGES MADE DO NOT EVIDENCE ANY INTENT TO CHANGE OR INCREASE THE RIGHTS MEMBERS WERE GRANTED UNDER THE PRIOR LEGISLATION AS FAR AS THE QUESTIONS HERE INVOLVED ARE CONCERNED. SEE 35 COMP. GEN. 673.

THE PROVISIONS OF SECTIONS 303 (A) AND 303 (E) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 253 (A) AND 253 (E), RELATE TO TRAVEL AND TRANSPORTATION ALLOWANCES OF MEMBERS (NOT DEPENDENTS) IN THE SEVERAL CIRCUMSTANCES THERE ENUMERATED. HENCE, SUCH PROVISIONS OF LAW MAY NOT BE CONSIDERED AS AUTHORITY FOR TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS AT GOVERNMENT EXPENSE OF A MEMBER DISCHARGED UNDER OTHER THAN HONORABLE CONDITIONS.

WHILE THE TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS OF MEMBERS DISCHARGED FROM THE SERVICE UNDER OTHER THAN HONORABLE CONDITIONS, IN THE CIRCUMSTANCES HERE INVOLVED, RAISES FINANCIAL PROBLEMS FOR THE MEMBERS, UNTIL THERE IS STATUTORY AUTHORITY FOR THE GOVERNMENT TO ASSUME THE EXPENSES OF TRANSPORTATION ON A DIFFERENT BASIS THAN IS NOW AUTHORIZED, IT WOULD SEEM THAT SUCH EXPENSES MUST BE BORNE BY THE PERSONS CONCERNED. BELIEVE THAT THE CURRENT REGULATIONS (PARAGRAPHS 7011-5 AND 8000-4 (4), JOINT TRAVEL REGULATIONS) EXPRESS THE INTENT OF CONGRESS, AND THAT THERE IS NO AUTHORITY FOR THEIR AMENDMENT IN THE MANNER PROPOSED.