B-127228, OCT. 1, 1956

B-127228, OCT. 1, 1956

TO THE SECRETARY OF THE AIR FORCE:

WE DESIRE TO CALL TO YOUR ATTENTION A MATTER WHICH HAS COME TO LIGHT IN THE COURSE OF OUR AUDIT AT THE AIR FORCE AUDIT BRANCH, DENVER, COLORADO.

IN JUNE OF 1952, WHEN IT WAS NOTED THAT THE AIR FORCE HAD BEEN ORDERING MEMBERS TO TEMPORARY DUTY FOR THE PURPOSE OF ESCORTING DEPENDENTS OF DECEASED MILITARY PERSONNEL AND HAD BEEN MAKING PAYMENTS OF TRAVEL EXPENSES ARISING UNDER SUCH ORDERS, CORRESPONDENCE WAS INITIATED WITH THE AIR FORCE FINANCE CENTER CALLING ATTENTION TO THE FACT THAT WE COULD FIND NO AUTHORITY TO REIMBURSE MEMBERS FOR EXPENSES INCURRED IN ESCORTING DEPENDENTS OF DECEASED PERSONNEL AND, THEREFORE, RECOMMENDED THAT THE AIR FORCE FIELD OFFICES BE NOTIFIED TO DISCONTINUE SUCH PAYMENTS. HOWEVER, IN VIEW OF THE ASSERTED MORALE PROBLEM AND THE ISOLATED INSTANCES OF SUCH CLAIMS, THE AIR FORCE WAS ADVISED AT THAT TIME THAT NO OBJECTION WOULD BE RAISED TO PAYMENTS ALREADY MADE.

ON JULY 3, 1952, A REPLY WAS RECEIVED FROM THE AIR FORCE FINANCE CENTER CONCURRING IN OUR VIEWS AND, IN PARAGRAPH 11 OF AIR FORCE FINANCE TECHNICAL DIGEST DATED JULY 3, 1952, THERE WAS PUBLISHED AN ITEM AS FOLLOWS:

"IT HAS BEEN BROUGHT TO THE ATTENTION OF THIS HEADQUARTERS THAT FINANCE OFFICERS ARE EFFECTING PAYMENT FOR TRAVEL EXPENSES ON BEHALF OF MILITARY ESCORTS WHO ARE PLACED ON TEMPORARY DUTY FOR THE PURPOSE OF ACCOMPANYING DEPENDENTS OF DECEASED MEMBERS TO VARIOUS DESIGNATED LOCATIONS.

"THERE IS NO AUTHORITY TO PLACE MEMBERS IN A TRAVEL STATUS FOR THE ABOVE PURPOSE AND THEREFORE PAYMENTS ARE NOT AUTHORIZED. NO ACTION WILL BE TAKEN TO EFFECT COLLECTION OF PAYMENTS MADE (REFERENCE: AFR 143-2, ELIGIBILITY AND EXPENSES FOR CARE AND DISPOSITION OF REMAINS, AND AFR 143- 5, MILITARY HONORS AND ESCORTS FOR DECEASED PERSONNEL.)"

THE FOREGOING ITEM WAS RESCINDED BY SECTION III, PARAGRAPH A, AIR FORCE FINANCE TECHNICAL DIGEST OF MARCH 26, 1954, WHICH CONCLUDES THAT:

"* * * THE AIR FORCE POLICY ON THE SUBJECT WILL BE PUBLISHED BY THE DIRECTOR OF MILITARY PERSONNEL.'

THE MATTER WAS AGAIN BROUGHT TO THE ATTENTION OF THE DIRECTOR OF FINANCE, DENVER, COLORADO, IN OUR LETTER DATED JUNE 19, 1956, IN WHICH THE CHIEF, AIR FORCE AUDIT BRANCH, ADVISED:

"SINCE THERE IS NO PROVISION OF LAW THAT WOULD WARRANT PAYMENT OF TRAVEL ALLOWANCES TO MEMBERS SOLELY FOR THE PURPOSE OF ESCORTING DEPENDENTS OF DECEASED MEMBERS, WE WILL BE REQUIRED TO STATE EXCEPTIONS AGAINST ALL SUCH PAYMENTS ENCOUNTERED IN THE AUDIT. IT IS THEREFORE REQUESTED THAT ALL INTERESTED PERSONNEL BE ADVISED THAT TRAVEL EXPENSES UNDER THESE CIRCUMSTANCES ARE NOT PAYABLE FROM APPROPRIATED FUNDS.'

BY HIS LETTER OF JULY 9, 1956, TO THE CHIEF, AIR FORCE AUDIT BRANCH, THE DIRECTOR OF FINANCE, STATED:

"THE RECISION OF THE FINANCE TECHNICAL DIGEST ITEM OF 3 JULY 1952, AS REFERENCED IN YOUR LETTER, WAS PROMPTED BY AN OPINION OF THE JUDGE ADVOCATES GENERAL OF THE ARMY, NAVY AND AIR FORCE THAT TRAVEL OF ESCORTS FOR THE PURPOSE OF ACCOMPANYING DEPENDENTS OF MILITARY PERSONNEL WHO ARE INCAPABLE OF TRAVELING TO THEIR HOMES ALONE DUE TO AGE, PHYSICAL, OR MENTAL CONDITION; WHOSE MILITARY SPONSOR IS DEAD, MISSING IN ACTION, MISSING OR OTHERWISE UNACCOUNTED FOR; IS DEEMED IN THE BEST INTEREST OF THE GOVERNMENT AND, THEREFORE, MAY PROPERLY BE REGARDED AS TRAVEL UPON ,PUBLIC BUSINESS" WITHIN THE CONTEMPLATION OF SECTION 303 OF THE CAREER COMPENSATION ACT OF 1949 (63 STAT. 802).

"THE JUDGE ADVOCATES GENERAL OF THE SERVICES RECOGNIZED THAT THE PROPRIETY OF PAYMENT OF TRAVEL ALLOWANCES FOR ESCORTS OF THESE DEPENDENTS REVOLVED UPON THE MEANING OF THE TERM "PUBLIC BUSINESS" AND IN THAT CONNECTION STATED:

" "* * * IF A STRICT AND NARROW INTERPRETATION IS REQUIRED, THEN IT WOULD APPEAR THAT ONLY SUCH TRAVEL FROM WHICH THE GOVERNMENT DERIVES SOME BENEFIT, SHOULD BE AUTHORIZED AT GOVERNMENT EXPENSE; AND CONVERSELY THAT IN THE ABSENCE OF SPECIFIC STATUTORY PROVISION THEREFORE, TRAVEL FROM WHICH NO BENEFIT INSURE TO THE GOVERNMENT, EVEN THOUGH PERFORMED PURSUANT TO OTHERWISE PROPER ORDERS, WOULD IN NO RESPECT OBLIGATE THE GOVERNMENT FOR THE EXPENSE OF SUCH TRAVEL.

" "IF, ON THE OTHER HAND, A LIBERAL INTERPRETATION IS TO BE TAKEN OF "PUBLIC BUSINESS," THEN IT WOULD BE SUFFICIENT THAT SUCH ORDERS MEET THE TEST OF BEING ISSUED IN THE "BEST INTEREST OF THE GOVERNMENT.' UNDER THIS INTERPRETATION TRAVEL ORDERS OF THE TYPE CONTEMPLATED * * * IF ISSUED BY COMPETENT AUTHORITY WHEN IN HIS SOUND DISCRETION THE PURPOSE OF ISSUANCE THEREOF WAS IN THE BEST INTEREST OF THE MILITARY SERVICE, WOULD BE LEGAL UNDER SECTION 303, SUPRA.THE FORMER INTERPRETATION WOULD PLACE THE GOVERNMENT AND THE MEMBER IN A CONTRACTUAL RELATIONSHIP HOLDING THE GOVERNMENT RESPONSIBLE ONLY FOR SUCH EXPENSES OCCURRING IN THE PURSUIT OF GOVERNMENT BUSINESS. IT IS NOT BELIEVED THAT IT WAS EVER THE INTENT OF CONGRESS TO HOLD THE NEEDS OF THE MILITARY SERVICE TO SO STRICT A CONSTRUCTION. THE LATTER INTERPRETATION IS MORE REALISTIC. THE RELATIONSHIP OF THE GOVERNMENT WITH THE MEMBERS OF THE ARMED FORCES IS UNIQUE AND CANNOT BE REDUCED TO BARE CONTRACTUAL ESSENTIALS.

" "THERE IS NO LOGICAL BASIS TO CONCLUDE THAT THIS ASSISTANCE SHOULD CEASE AT THE DEATH OR PLACEMENT IN A MISSING STATUS OF THE MILITARY SPONSOR. ON THE CONTRARY, THIS IS INCREASED AND BROUGHT INTO SHARP FOCUS BY THE DEATH OF THE MEMBER. THE OBLIGATION TO RETURN DEPENDENTS TO THEIR HOME WHEN THEIR MILITARY SPONSOR IS DEAD OR MISSING IS RECOGNIZED AND SPECIFICALLY PROVIDED FOR IN LAW. IT IS THE RESPONSIBILITY OF THE MILITARY ESTABLISHMENT TO EFFECT AND SUPERVISE THIS RELOCATION AND TO ASSIST THOSE INCAPACITATED BY AGE, PHYSICAL, OR MENTAL CONDITION IN RETURNING TO THEIR HOMES AS A MATTER OF PUBLIC TRUST.'

"THE AIR FORCE POLICY SETTING FORTH THE CONDITIONS UNDER WHICH ESCORTS MAY BE PROVIDED FOR DEPENDENTS OF MILITARY PERSONNEL HAS NOT BEEN PUBLISHED TO DATE; HOWEVER, IT IS ANTICIPATED THAT SAME WILL BE FORTHCOMING IN THE IMMEDIATE FUTURE.'

AIR FORCE REGULATION NO. 34-6, DATED JUNE 28, 1956--- EFFECTIVE JULY 1, 1956--- MAKING PROVISION FOR "TRAVEL AIDES FOR DEPENDENTS OF DECEASED OR MISSING AIR FORCE MILITARY PERSONNEL," HAS SINCE BEEN RECEIVED HERE. PURPORTS TO AUTHORIZE TRAVEL OF SUCH AIDES, EITHER MILITARY OR CIVILIAN, AT GOVERNMENT EXPENSE AND OUTLINES THE POLICY AND CONDITIONS UNDER WHICH SUCH ESCORTS WILL BE PROVIDED AT GOVERNMENT EXPENSE FOR DEPENDENTS OF DECEASED OR MISSING AIR FORCE MILITARY PERSONNEL.

IN 1952, WHEN THIS QUESTION FIRST AROSE, THE BASIC STATUTORY PROVISIONS AUTHORIZING FUNERAL EXPENSES OF ARMY AND AIR FORCE PERSONNEL WHO DIE WHILE IN THE ACTIVE MILITARY SERVICE WERE CONTAINED IN THE ACT OF MARCH 9, 1928, 45 STAT. 251, AS AMENDED BY THE ACT OF MAY 17, 1938, 52 STAT. 398 (10 U.S.C. 916-918B). THESE STATUTES, HOWEVER, WERE REPEALED BY SECTION 14 (C) (1) OF THE ACT OF JULY 15, 1954, 68 STAT. 481, WHICH CONTAINS THE CURRENT AUTHORITY FOR THE RECOVERY, CARE, AND DISPOSITION OF THE REMAINS OF MEMBERS OF THE UNIFORMED SERVICES AND CERTAIN OTHER PERSONNEL. SECTION 2 AUTHORIZES THE SEVERAL SECRETARIES TO PROVIDE VARIOUS SERVICES--- INCLUDING ROUND TRIP TRANSPORTATION AND PRESCRIBED ALLOWANCES FOR AN ESCORT OF ONE PERSON TO ACCOMPANY THE REMAINS OF THE DECEDENT TO THE TOWN OR CITY, OR NATIONAL OR OTHER CEMETERY, DESIGNATED BY THE PERSON RECOGNIZED AS THE PERSON TO DIRECT THE DISPOSITION OF THE REMAINS OR, IN THE ABSENCE OF SUCH DESIGNATION, TO A NATIONAL OR OTHER CEMETERY DESIGNATED BY THE SECRETARY IN WHICH THE BURIAL OF THE DECEDENT IS AUTHORIZED. UNDER THE PRIOR LAWS ESCORTS FOR THE REMAINS OF DECEASED MILITARY PERSONNEL WERE PROVIDED FOR UNDER REGULATIONS PROMULGATED BY THE ARMY AND AIR FORCE. SEE PARAGRAPH 3A (6), AIR FORCE REGULATION NO. 143-2, JULY 17, 1951, AND PARAGRAPH 3, AIR FORCE REGULATION NO. 143-5, JANUARY 22, 1952. NOWHERE IN EITHER THE EARLIER STATUTES OR IN THE 1954 ACT IS THERE ANY PROVISION WHATEVER FOR ESCORTS FOR LIVING PERSONS--- DEPENDENTS OF SERVICE PERSONNEL--- ALTHOUGH THE 1954 ACT (SECTION 7 (A) ( DOES MAKE PROVISION FOR CERTAIN EXPENSES--- NOT INCLUDING ESCORTS -- FOR CARE, ETC., OF THE REMAINS OF DEPENDENTS OF MILITARY PERSONNEL WHEN THE DEPENDENTS DIE WHILE RESIDING WITH SUCH MILITARY PERSONNEL AT A PLACE OF DUTY OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES OR IN ALASKA OR WHILE IN TRANSIT TO OR FROM SUCH PLACE OF DUTY. IN ADDITION, CERTAIN OTHER SERVICES MAY BE PROVIDED IN SUCH CASES ON A REIMBURSABLE BASIS.

AN EXAMPLE OF QUESTIONED EXPENSES OF THE NATURE HERE INVOLVED IS VOUCHER 20857, IN THE MAY 1955 ACCOUNTS OF R. L. GRIFFITH, SYMBOL 225 029, COVERING A PAYMENT OF $44.10 TO CAPTAIN FRANK A. PFEFFER, A0712308, FOR TEMPORARY DUTY TRAVEL PERFORMED APRIL 15 TO 17, 1955, FROM MACDILL AIR FORCE BASE, FLORIDA, TO EGLIN AIR FORCE BASE, FLORIDA, AND RETURN, FOR THE PURPOSE OF ACCOMPANYING THE DEPENDENT OF MAJOR GEORGE W. MELCHING, A02099481, DECEASED. ANOTHER EXAMPLE, WHICH GOES STILL FURTHER IN THAT IT CONCERNS THE FURNISHING OF AN ESCORT FOR THE REMAINING DEPENDENTS UPON THE DEATH OF ONE OF THEIR NUMBER, IS VOUCHER 12078 IN THE JUNE 1956 ACCOUNTS OF W. J. EVERLY, SYMBOL 225 219, WHICH COVERS PAYMENT OF $114.90 TO CAPTAIN GEORGIA M. POLLARD, USAF/NC), AN2242172, FOR TEMPORARY DUTY TRAVEL PERFORMED MARCH 1 TO APRIL 21, 1956, FROM SOUTH RUISLIP, ENGLAND, TO DALLAS, TEXAS, AND RETURN. TRAVEL ORDER 3CAGA/2-623) DATED FEBRUARY 29, 1956, AS AMENDED, DIRECTS THAT TRAVEL BE PERFORMED FOR THE PURPOSE OF ESCORTING THE MINOR DEPENDENT CHILDREN OF MASTER SERGEANT BEN W. ADAMS, AF18200530, TO THE ZONE OF THE INTERIOR, AND RETURN TO HER PERMANENT DUTY STATION. IT IS INDICATED THAT CAPTAIN POLLARD ESCORTED THE INFANT CHILD AND TWO OTHER MINOR CHILDREN TO ROGERS, TEXAS, FROM APO 125 FOLLOWING THE DEATH IN CHILDBIRTH OF MRS. BEN W. ADAMS.

SINCE, BY VARIOUS STATUTES--- INCLUDING ANNUAL APPROPRIATION ACTS--- THE CONGRESS HAS FOUND IT NECESSARY TO MAKE SPECIFIC PROVISION FOR ESCORTS FOR THE REMAINS OF DECEASED MILITARY PERSONNEL IN ORDER TO AUTHORIZE PAYMENT OF THE EXPENSES OF SUCH ESCORTS, IT SEEMS TO FOLLOW THAT HAD THE CONGRESS INTENDED THAT ESCORTS SHOULD BE PROVIDED FOR THE DEPENDENTS OF LIVING OR DECEASED MILITARY PERSONNEL, IT WOULD HAVE INCLUDED IN SUCH STATUTES LANGUAGE CLEARLY INDICATING THAT INTENT. THE FAILURE OF THE CONGRESS AFFIRMATIVELY TO AUTHORIZE ESCORTS FOR DEPENDENTS OF DECEASED MEMBERS OF THE UNIFORMED SERVICES, PARTICULARLY SINCE THE ACT OF JULY 15, 1954, DEALING IN DETAIL WITH RELATED MATTERS, WAS ENACTED AT A TIME WHEN THE PRACTICE OF FURNISHING SUCH ESCORTS WAS BEING ACTIVELY QUESTIONED BY US, WOULD APPEAR TO US EFFECTIVELY TO PRECLUDE ANY CONCLUSION THAT ESCORTS FOR THAT PURPOSE NOW MAY BE FURNISHED ON THE BASIS THAT THE TRAVEL IS UPON "PUBLIC BUSINESS" WITHIN THE CONTEMPLATION OF SECTION 303 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 802, EVEN IF SUCH POSITION OTHERWISE MIGHT HAVE BEEN CONSIDERED TENABLE.

ACCORDINGLY, WHILE THERE MAY APPEAR TO BE WORTHY HUMANITARIAN REASONS FOR PROVIDING SUCH ESCORTS FOR DEPENDENTS OF DECEASED MILITARY PERSONNEL IN CERTAIN CASES, IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY THEREFORE, WE ARE CONSTRAINED TO HOLD THAT SUCH PAYMENTS WERE IMPROPER. THE GOVERNMENT WAS NOT LEGALLY OBLIGATED TO PAY THE EXPENSES INCURRED AND, IN ANY CASE WHERE EXCEPTIONS HAVE BEEN RAISED IN THE AUDIT, APPROPRIATE STEPS SHOULD BE TAKEN TO RECOVER FROM THE PAYEES THE AMOUNTS PAID. ALSO, IT IS SUGGESTED THAT APPROPRIATE ACTION BE TAKEN TO PREVENT SIMILAR PAYMENTS IN THE FUTURE.