B-157681, DEC. 17, 1965, 45 COMP. GEN. 350

B-157681, DEC. 17, 1965, 45 COMP. GEN. 350

STORAGE - HOUSEHOLD EFFECTS - MILITARY PERSONNEL - NONTEMPORARY - TEMPORARY DUTY REGULATIONS AUTHORIZING NONTEMPORARY STORAGE OF HOUSEHOLD EFFECTS OF MEMBERS OF THE UNIFORMED SERVICES ORDERED TO TEMPORARY DUTY FOR PERIODS IN EXCESS OF SIX MONTHS WHEN SUCH NONTEMPORARY STORAGE IS NOT IN CONNECTION WITH ANY PERMANENT CHANGE OF STATION OR PREDICATED ON A PARTICULAR GOVERNMENT NEED OR THE ASSIGNMENT OR VACATION OF QUARTERS ARE REGULATIONS WITHOUT LEGAL EFFECT AND, THEREFORE, PAYMENTS MADE FOR SUCH NONTEMPORARY STORAGE IN ADDITION TO THE PER DIEM AND OTHER TRAVEL AND TRANSPORTATION ALLOWANCES FOR TEMPORARY DUTY ARE NOT PROPER, AND ANY STORAGE CHARGES INCURRED SUBSEQUENT TO 60 DAYS AFTER THE DATE OF THIS DECISION (FEBRUARY 15, 1966) MAY NOT BE PAID.

TO THE SECRETARY OF DEFENSE, DECEMBER 17, 1965:

PARAGRAPH M8206 OF THE JOINT TRAVEL REGULATIONS, AS ADDED BY CHANGE 151 DATED AUGUST 1, 1965, EFFECTIVE MAY 28, 1965, READS AS FOLLOWS:

WHEN A MEMBER IS ORDERED TO TEMPORARY DUTY (TEMPORARY ADDITIONAL DUTY) FOR A PERIOD IN EXCESS OF 6 MONTHS (PAR. M3003-2D), OR IS ORDERED TO CONTINUOUS TEMPORARY DUTY (TEMPORARY ADDITIONAL DUTY) ASSIGNMENTS AT VARIOUS PLACES FOR A TOTAL OF MORE THAN 6 MONTHS, HIS HOUSEHOLD GOODS, WITHIN PRESCRIBED PERMANENT CHANGE-OF-STATION WEIGHT ALLOWANCE, MAY BE PLACED IN NONTEMPORARY STORAGE UNDER THE PROVISIONS OF PAR. M8101. UPON TERMINATION OF TEMPORARY DUTY (TEMPORARY ADDITIONAL DUTY) AND RETURN TO THE PERMANENT DUTY STATION, OR UPON ASSIGNMENT OF A NEW PERMANENT STATION, TRANSPORTATION OF A MEMBER'S HOUSEHOLD GOODS IS AUTHORIZED FROM PLACE OF STORAGE TO GOVERNMENT QUARTERS, TO CIVILIAN HOUSING IN THE VICINITY OF THE MEMBER'S PERMANENT DUTY STATION, OR TO THE NEW PERMANENT STATION, AS APPLICABLE.

UNDER THE ABOVE-QUOTED PROVISIONS OF PARAGRAPH M8206, AS WE UNDERSTAND THEM, A MEMBER ORDERED TO TEMPORARY DUTY (TEMPORARY ADDITIONAL DUTY) FOR A PERIOD IN EXCESS OF 6 MONTHS WOULD BE ENTITLED TO NONTEMPORARY STORAGE OF HIS HOUSEHOLD GOODS ON THE BASIS OF HIS PERMANENT CHANGE OF STATION WEIGHT ALLOWANCE.

AT THE OUTSET, WE ASSUME, OF COURSE, THAT THE ORDERED TEMPORARY DUTY IN EXCESS OF 6 MONTHS CONTEMPLATED BY PARAGRAPH M8206 IS LIMITED TO UNUSUAL OR EMERGENCY CIRCUMSTANCES AND IS TO BE AUTHORIZED OR APPROVED AS PROVIDED IN PARAGRAPH M3003-2 (D) OF THE JOINT TRAVEL REGULATIONS. SEE 38 COMP. GEN. 853.

SECTION 406 (D) OF TITLE 37, U.S. CODE, AUTHORIZES NONTEMPORARY STORAGE OF HOUSEHOLD EFFECTS IN EITHER GOVERNMENT OR COMMERCIAL FACILITIES WHICHEVER IS DETERMINED TO BE MORE ECONOMICAL TO THE GOVERNMENT AND EXPRESSLY PROVIDES THAT:

* * * THE WEIGHT OF BAGGAGE AND HOUSEHOLD EFFECTS STORED, PLUS THE WEIGHT OF THE BAGGAGE AND HOUSEHOLD EFFECTS TRANSPORTED, IN CONNECTION WITH A CHANGE OF STATION MAY NOT BE MORE THAN THE MAXIMUM WEIGHT LIMITATIONS IN REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED WHEN IT IS NOT OTHERWISE FIXED BY LAW.

UNDER THE PROVISIONS OF 37 U.S.C. 406 (B) AND (C), A MEMBER WHO IS ORDERED TO MAKE A TEMPORARY OR PERMANENT CHANGE OF STATION IS ENTITLED TO TRANSPORTATION OF HIS HOUSEHOLD EFFECTS, INCLUDING TEMPORARY STORAGE, WITHIN SUCH WEIGHT ALLOWANCES PRESCRIBED BY THE SECRETARIES CONCERNED. HENCE, IT IS OUR VIEW THAT 37 U.S.C. 406 (D) WHEN READ IN THE LIGHT OF 37 U.S.C. 406 (B) AND (C), HAS THE EFFECT GENERALLY OF LIMITING THE MEMBER'S ENTITLEMENT TO NONTEMPORARY STORAGE TO THE WEIGHT ALLOWANCE WHICH HE IS ENTITLED TO SHIP UNDER HIS ORDERS. PARAGRAPH M8101-1 OF THE REGULATIONS PROVIDES THAT NONTEMPORARY STORAGE TEMPORARY DUTY WEIGHT ALLOWANCE SHIPMENTS OF HOUSEHOLD GOODS IS NOT AUTHORIZED. PRIOR TO THE ACT OF AUGUST 5, 1955, 69 STAT. 532, WHICH AMENDED SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, AND WHICH ULTIMATELY BECAME 37 U.S.C. 406 (D), NONTEMPORARY STORAGE OF HOUSEHOLD GOODS WAS NOT AUTHORIZED AT GOVERNMENT EXPENSE IN COMMERCIAL FACILITIES BUT NONTEMPORARY STORAGE WAS AUTHORIZED IN GOVERNMENT FACILITIES TO THE EXTENT THAT THE FACILITIES WERE AVAILABLE. REGULATIONS IN EFFECT AT THAT TIME AUTHORIZED NONTEMPORARY STORAGE OF HOUSEHOLD GOODS IN GOVERNMENT FACILITIES PRIMARILY IN INSTANCES WHERE THE MEMBER WAS ORDERED UNDER PERMANENT CHANGE-OF-STATION ORDERS TO AN OVERSEAS STATION AND PARTICULARLY WHERE MOVEMENT OF THE EFFECTS TO THE OVERSEAS STATION WAS RESTRICTED FOR MILITARY OR FOR OTHER REASONS. NONTEMPORARY STORAGE WAS ALSO AUTHORIZED AT THAT TIME IN INSTANCES SUCH AS UNDER ORDERS (1) TO SEA DUTY; (2) TO ATTEND A COURSE OF INSTRUCTION OF 20 WEEKS OR MORE; (3) UPON RETIREMENT, ETC. FURTHER, NONTEMPORARY STORAGE WAS AUTHORIZED UNDER ORDERS WHICH DETACHED THE MEMBER FROM HIS PERMANENT STATION AND ORDERED HIM TO TEMPORARY DUTY, TO TEMPORARY DUTY PENDING FURTHER ASSIGNMENT OR TO AWAIT FURTHER ORDERS. SUCH ORDERS, HOWEVER, INITIATED A PERMANENT CHANGE OF STATION. SEE PARAGRAPH M8006-2A, CHANGE 22, APRIL 1, 1954, JOINT TRAVEL REGULATIONS. THESE REGULATIONS CLEARLY CONTEMPLATED THAT NONTEMPORARY STORAGE WAS AUTHORIZED ONLY IN CONNECTION WITH A PERMANENT CHANGE OF STATION OR UNDER ORDERS INITIATING AN ULTIMATE CHANGE OF PERMANENT STATION. SIMILAR SITUATIONS ARE CURRENTLY CONTROLLED BY PARAGRAPH M8101-6 OF THE JOINT TRAVEL REGULATIONS.

IN SUPPORT OF THE VIEW THAT NONTEMPORARY STORAGE IS GENERALLY LIMITED TO MEMBERS MOVING UNDER ORDERS FOR PERMANENT CHANGE OF STATION, IT WAS STATED DURING THE COURSE OF SUBCOMMITTEE HEARINGS NO. 24, DATED JUNE 22, 1955, COMMITTEE ON ARMED SERVICES, HOUSE OF REPRESENTATIVES, ON H.R. 6277 (WHICH BECAME THE ACT OF AUGUST 5, 1955, PUBLIC LAW 245) AT PAGE 4166, AS FOLLOWS:

MR. KILDAY. AND SPECIFICALLY, THIS WOULD PERMIT THE STORAGE ON A NONTEMPORARY BASIS OF PERSONS MOVING UNDER ORDERS FOR PERMANENT CHANGE OF STATION IN EITHER GOVERNMENT OR COMMERCIAL FACILITIES?

MR. BLANDFORD. THAT IS RIGHT, SIR.

MR. KILDAY. WHEREAS, AT THE PRESENT TIME, IT COULD BE STORED IN GOVERNMENT FACILITIES ONLY.

MR. BLANDFORD. THAT IS RIGHT.

MOREOVER, THE CAPTION OF THE LAW ITSELF (PUBLIC LAW 245, 84TH CONGRESS, 69 STAT. 532, NOW CODIFIED IN 37 U.S.C. 406 (D) ( WHICH READS: "TO AMEND SUBSECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949 RELATING TO TRANSPORTATION AND STORAGE OF HOUSEHOLD GOODS OF MILITARY PERSONNEL ON PERMANENT CHANGE OF STATION," INDICATES THAT NONTEMPORARY STORAGE ENTITLEMENT WAS INTENDED TO BE AUTHORIZED INCIDENT TO PERMANENT CHANGE-OF- STATION MOVES. IN THIS CONNECTION SEE THE ENCLOSED COPY OF OUR DECISION OF OCTOBER 28, 1958, B-137529.

IN OUR DECISION OF MAY 3, 1957, 36 COMP. GEN. 757, WE CONSIDERED A LETTER DATED MARCH 16, 1957, FROM THE ASSISTANT SECRETARY OF THE NAVY (FINANCIAL MANAGEMENT) REQUESTING A DECISION AS TO THE LEGALITY OF PAYING PER DIEM ALLOWANCES TO NAVY PERSONNEL INCIDENT TO ASSIGNMENTS TO ANTARCTICA FOR A PERIOD OF APPROXIMATELY 18 MONTHS. ONE OF THE REASONS GIVEN FOR THE ADMINISTRATIVE DETERMINATION TO ADMINISTER THE OPERATION ON A TEMPORARY DUTY BASIS WAS THAT THE COSTS OF PERMANENT CHANGE-OF-STATION ALLOWANCES, PAYABLE BOTH AT THE BEGINNING AND END OF THE OPERATION IF IT WERE CONDUCTED ON A PERMANENT CHANGE-OF-STATION BASIS, WOULD PROBABLY OFFSET THE PER DIEM PAYABLE ON A TEMPORARY DUTY BASIS. IN VIEW OF THE LENGTH OF THE ASSIGNMENTS, HOWEVER, WE CONCLUDED THAT THEY COULD NOT BE CONSIDERED TEMPORARY FOR PER DIEM PURPOSES.

BY LETTER OF FEBRUARY 3, 1959, THE UNDER SECRETARY OF THE ARMY REQUESTED RECONSIDERATION OF THE CONCLUSION REACHED IN OUR DECISION OF MAY 3, 1957, AND STATED VARIOUS INSTANCES IN WHICH HE SAID THE DEPARTMENT OF THE ARMY FINDS IT NECESSARY TO PLACE ARMY PERSONNEL ON TEMPORARY DUTY FOR PERIODS IN EXCESS OF 6 MONTHS AT THE SAME PLACE. UPON RECONSIDERATION OF THE MATTER WE CONCLUDED IN OUR DECISION OF JUNE 22, 1959, 38 COMP. GEN. 853, THAT A LIMITATION OF 6 MONTHS APPEARS TO BE A REASONABLE CRITERION TO FOLLOW UNDER ORDINARY CIRCUMSTANCES IN DIRECTING TEMPORARY DUTY AT ONE PLACE. WE SAID, HOWEVER, THAT IF THE SERVICES PROMULGATED REGULATIONS SETTING FORTH REASONABLE TIME LIMITATIONS FOR TEMPORARY ASSIGNMENTS, WITH APPROPRIATE ADMINISTRATIVE STANDARDS FOR APPROVAL, IN EXCEPTIONAL CASES, OF TEMPORARY DUTY ASSIGNMENTS WHICH ARE NOT OF SHORT DURATION, WE BELIEVED THAT PAYMENT OF PER DIEM IN CERTAIN CASES FOR PERIODS IN EXCESS OF 6 MONTHS COULD BE AUTHORIZED. ONE OF THE REASONS FOR REACHING SUCH CONCLUSION WAS THE FACT, AS POINTED OUT IN THE 1957 LETTER BY THE ASSISTANT SECRETARY OF THE NAVY, THAT IF THESE PROLONGED ASSIGNMENTS WERE ADMINISTERED ON A PERMANENT CHANGE-OF-STATION BASIS, THE ALLOWANCES PAYABLE ON THAT BASIS WOULD PROBABLY OFFSET THE PER DIEM THAT WOULD BE PAYABLE FOR TEMPORARY DUTY. IN CONCLUDING THAT PER DIEM WOULD BE PAYABLE, UNDER APPROPRIATE REGULATIONS, INCIDENT TO CERTAIN TEMPORARY DUTY ASSIGNMENTS FOR PROLONGED PERIODS, WE DID NOT CONTEMPLATE THAT PERMANENT CHANGE-OF-STATION TRAVEL AND TRANSPORTATION ALLOWANCES--- INCLUDING NONTEMPORARY STORAGE WHICH NORMALLY IS A PERMANENT CHANGE-OF-STATION ALLOWANCE--- WOULD BE AUTHORIZED INCIDENT TO SUCH TEMPORARY ASSIGNMENTS.

WE HAVE RECOGNIZED THAT UNDER THE "UNUSUAL OR EMERGENCY CIRCUMSTANCES" PROVISIONS IN SECTION 406 (E), REGULATIONS COULD PROVIDE FOR DRAYAGE AND NONTEMPORARY STORAGE OF A MEMBER'S AUTHORIZED WEIGHT ALLOWANCE OF HOUSEHOLD EFFECTS INCIDENT TO ASSIGNMENT OR TERMINATION OF ASSIGNMENT OF QUARTERS UNDER THE JURISDICTION OF THE UNIFORMED SERVICES EVEN THOUGH NO DUTY ASSIGNMENT AWAY FROM THE MEMBER'S STATION IS INVOLVED, PROVIDED THAT SUCH MOVES ARE DIRECTED BY THE COMMANDER IN THE INTEREST OF THE GOVERNMENT. B-129019, SEPTEMBER 25, 1956; B-141427, DECEMBER 31, 1959; AND 43 COMP. GEN. 587. IMPLEMENTING REGULATIONS ARE CONTAINED IN PARAGRAPH M8308 OF THE JOINT TRAVEL REGULATIONS. IN THOSE CIRCUMSTANCES THE RELOCATION OF THE MEMBER'S HOUSEHOLD IS MADE NECESSARY BY REASON OF THE ASSIGNMENT OR VACATION OF GOVERNMENT QUARTERS ORDERED IN THE INTEREST OF THE UNITED STATES. THE NONTEMPORARY STORAGE WHICH SECTION M8206 PURPORTS TO AUTHORIZE, HOWEVER, DOES NOT APPEAR TO BE PREDICATED ON ANY PARTICULAR GOVERNMENT NEED, OR ORDERS RESPECTING THE MEMBER'S QUARTERS. ON THE CONTRARY, IT IS APPARENTLY CONTEMPLATED THAT THE STORAGE WILL BE PROVIDED AT THE MEMBER'S ELECTION AND FOR HIS CONVENIENCE INCIDENT TO HIS PROLONGED TEMPORARY DUTY ASSIGNMENT. WE FIND NO LEGAL BASIS FOR AUTHORIZING SUCH BENEFIT IN ADDITION TO THE PER DIEM AND OTHER TRAVEL AND TRANSPORTATION ALLOWANCES PAYABLE ON ACCOUNT OF SUCH AN ASSIGNMENT. CONSEQUENTLY, IT IS OUR VIEW THAT THE PARAGRAPH IS WITHOUT LEGAL EFFECT TO AUTHORIZE NONTEMPORARY STORAGE IN SUCH CIRCUMSTANCES. ANY PAYMENTS FOR SUCH STORAGE CHARGES INCURRED SUBSEQUENT TO 60 DAYS AFTER THE DATE OF THIS DECISION WILL BE THE SUBJECT OF QUESTION BY OUR OFFICE IN THE AUDIT OF DISBURSING OFFICERS' ACCOUNTS.