B-153355, MARCH 31, 1964, 43 COMP. GEN. 639

B-153355, MARCH 31, 1964, 43 COMP. GEN. 639

TRANSPORTATION - DEPENDENTS - MILITARY PERSONNEL - VESSEL AND PORT CHANGES WHEN NAVY MEMBERS ARE TRANSFERRED FROM SEA DUTY TO SEA DUTY INVOLVING VESSELS HAVING THE SAME HOME YARD AND HOME PORT--- CONSIDERED A PERMANENT STATION UNDER 37 U.S.C. 406 WITH THE SAME STATUS AS ANY OTHER DUTY STATION --- THERE IS NO ENTITLEMENT TO TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS AT GOVERNMENT EXPENSE, NO PERMANENT CHANGE OF STATION HAVING OCCURRED, AND PARAGRAPH 7063 OF THE JOINT TRAVEL REGULATIONS AUTHORIZING TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE FROM THE OLD HOME YARD OR OLD HOME PORT OF A VESSEL TO A NEW HOME YARD OR NEW HOME PORT, IN ACCORDANCE WITH PARAGRAPH 7056 OF THE NAVY TRAVEL INSTRUCTIONS, NOT APPLYING TO TRANSFERS BETWEEN VESSELS HAVING THE SAME HOME YARD AND HOME PORT, THE JOINT TRAVEL REGULATIONS MAY NOT BE REVISED TO AUTHORIZE SUCH TRANSPORTATION.

TO THE SECRETARY OF THE NAVY, MARCH 31, 1964:

REFERENCE IS MADE TO LETTER DATED JANUARY 17, 1964, FROM THE UNDER SECRETARY OF THE NAVY, REQUESTING DECISION AS TO WHETHER CHAPTERS 7 AND 8, JOINT TRAVEL REGULATIONS, MAY BE REVISED SO AS TO SPECIFICALLY AUTHORIZE TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD GOODS INCIDENT TO A MEMBER'S TRANSFER FROM SEA DUTY TO SEA DUTY IN CASES WHERE THE VESSELS INVOLVED HAVE IDENTICAL HOME YARDS AND PORTS. THE REQUEST WAS ASSIGNED CONTROL NO. 64-3 BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

IT IS STATED IN THE LETTER THAT, SINCE THE EXISTING PROBLEM IS BY ITS VERY NATURE PECULIAR TO THE NAVY, AN UNDUE HARDSHIP IS EXPERIENCED BY NAVY MEMBERS WHEN TRANSFERRED BETWEEN VESSELS HAVING THE SAME HOME YARDS AND PORTS. IT IS POINTED OUT THAT, GENERALLY, THE LOCATION DESIGNATED BY THE MEMBER AS THE PLACE WHERE DEPENDENTS WILL RESIDE DURING HIS TOUR OF SEA DUTY IS GOVERNED BY THE LOCATION OF THE HOME YARD AND PORT TOGETHER WITH THE OPERATING SCHEDULE OF THE VESSEL TO WHICH HE IS ASSIGNED. WHEN ASSIGNED TO A VESSEL WHICH IS SCHEDULED TO BE AWAY FROM ITS HOME YARD OR PORT DURING THE MAJOR PORTION OF THE SEA DUTY ASSIGNMENT, IT IS SAID THAT THE MEMBER MAY PREFER TO HAVE HIS DEPENDENTS RESIDE AT A PLACE OTHER THAN THE OLD STATION OR THE HOME YARD OR PORT AND THAT, CONVERSELY, WHEN ASSIGNED TO A VESSEL WHICH WILL RETURN TO ITS HOME YARD OR PORT AT FREQUENT OR REGULAR INTERVALS, THE MEMBER MAY DESIRE TO HAVE HIS DEPENDENTS RESIDE AT OR NEAR SUCH HOME YARD OR PORT. THEREFORE, SINCE THE SELECTION OF A DESIGNATED PLACE MADE BY THE MEMBER IS BASED ON THE ORIGINAL SEA DUTY ASSIGNMENT, THE UNDER SECRETARY SAYS A SUBSEQUENT TRANSFER TO ANOTHER VESSEL, WHEN THE HOME YARD AND PORT ARE IDENTICAL, CAN OPERATE TO DEFEAT THE MEMBER'S INTENT WITH REGARD TO THE DESIRED RESIDENCE OF HIS DEPENDENTS DURING HIS TOUR OF SEA DUTY.

UNDER EARLIER STATUTES AUTHORIZING THE TRANSPORTATION AT GOVERNMENT EXPENSE OF DEPENDENTS OF MEMBERS OF THE UNIFORMED SERVICES WHEN ORDERED TO MAKE A PERMANENT CHANGE OF STATION, IT WAS THE RULE THAT THE TRAVEL OF DEPENDENTS FOR WHICH TRANSPORTATION IN KIND (OR REIMBURSEMENT UPON COMPLETION WHEN PERFORMED AT PERSONAL EXPENSE) WAS AUTHORIZED, WAS LIMITED TO TRAVEL EQUAL TO THE DISTANCE FROM THE LASTPLACE WHERE THE DEPENDENTS WERE LOCATED TO THE NEW STATION, NOT TO EXCEED THE DISTANCE FROM THE MEMBER'S LAST OLD STATION TO HIS NEW PERMANENT STATION. ALSO IN CONNECTION WITH THE PROBLEM AS TO WHAT SHALL CONSTITUTE THE STATION OF A SHIP FOR PURPOSES OF DETERMINING A MEMBER'S ENTITLEMENT TO TRANSPORTATION FOR HIS DEPENDENTS, IT HAS LONG BEEN RECOGNIZED THAT THE LAW FIXES THE HOME YARD OR THE HOME PORT OF THE SHIP AS HER PERMANENT STATION. SEE 40 COMP. GEN. 271; 42 COMP. GEN. 65; AND COMPARE 42 COMP. GEN. 167.

UNDER THE PERTINENT STATUTE, 37 U.S.C. 406, AND THE JOINT TRAVEL REGULATIONS ISSUED PURSUANT TO THE STATUTE, A DULY AUTHORIZED PERMANENT CHANGE OF STATION FIXES THE MEMBER'S RIGHT TO TRANSPORTATION OF HIS DEPENDENTS AND HOUSEHOLD EFFECTS, WITHIN PRESCRIBED LIMITATIONS, FROM THE OLD PERMANENT STATION TO THE NEW, OR AS OTHERWISE PROVIDED. SECTION 411 (D) OF TITLE 37 PROVIDES IN PERTINENT PART THAT THE SECRETARY CONCERNED SHALL DEFINE THE WORDS "PERMANENT STATION," WHICH DEFINITION SHALL INCLUDE A SHORE STATION OR THE HOME YARD OR HOME PORT OF A VESSEL TO WHICH A MEMBER OF THE UNIFORMED SERVICES MAY BE ORDERED, AND THAT AN AUTHORIZED CHANGE IN THE HOME YARD OR HOME PORT OF SUCH A VESSEL IS A CHANGE OF PERMANENT STATION.

A PERMANENT STATION IS DEFINED IN PARAGRAPH 1150-10A OF THE JOINT TRAVEL REGULATIONS AS THE POST OF DUTY OR OFFICIAL STATION (INCLUDING THE HOME PORT OR HOME YARD OF A VESSEL INSOFAR AS TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD GOODS IS CONCERNED) TO WHICH A MEMBER IS ASSIGNED OR ATTACHED FOR DUTY OTHER THAN "TEMPORARY DUTY" OR "TEMPORARY ADDITIONAL DUTY," THE LIMITS OF WHICH WILL BE THE CORPORATE LIMITS OF THE CITY OR TOWN IN WHICH THE MEMBER IS STATIONED. PARAGRAPH 7063 OF THE REGULATIONS PROVIDES THAT A MEMBER IS ENTITLED TO TRANSPORTATION OF HIS DEPENDENTS AT GOVERNMENT EXPENSE IF THE TRAVEL IS PERFORMED FROM THE VESSEL'S OLD HOME YARD OR OLD HOME PORT AT WHICH THE DEPENDENTS ARE LOCATED TO THE VESSEL'S NEW HOME YARD OR NEW HOME PORT AS SELECTED BY THE MEMBER. IF TRANSPORTATION OF THE DEPENDENTS IS FROM A PLACE OTHER THAN THE OLD HOME YARD OR HOME PORT OF THE VESSEL TO THE NEW HOME YARD OR HOME PORT, OR FROM THE OLD HOME YARD OR HOME PORT TO A PLACE OTHER THAN THE NEW HOME YARD OR HOME PORT, ENTITLEMENT IS LIMITED EITHER FROM THE OLD HOME YARD TO THE NEW HOME YARD, OR FROM THE OLD HOME PORT TO THE NEW HOME PORT, WHICHEVER IS GREATER. PARAGRAPH 7056, NAVY TRAVEL INSTRUCTIONS, STATES THAT THE PROVISIONS OF PARAGRAPH 7063, JOINT TRAVEL REGULATIONS, ARE NOT APPLICABLE TO TRANSFERS BETWEEN VESSELS HAVING THE SAME HOME YARD AND HOME PORT. THUS IT WILL BE SEEN THAT THE APPLICABLE STATUTE AND REGULATIONS AS CURRENTLY CONSTITUTED MERELY CARRY FORWARD THE LONG ESTABLISHED RULE THAT THE MAXIMUM AMOUNT REIMBURSABLE ON ACCOUNT OF DEPENDENT TRAVEL BETWEEN POINTS OTHER THAN THE OLD AND THE NEW STATION COULD NOT, IN ANY EVENT, EXCEED THE AMOUNT IT WOULD HAVE COST THE GOVERNMENT HAD TRAVEL BEEN BETWEEN THE OLD AND THE NEW PERMANENT STATIONS. 34 COMP. GEN. 467.

THE DECISIONS OF THIS OFFICE UNIFORMLY HAVE HELD THAT A MEMBER'S RIGHT TO TRAVEL ALLOWANCES CANNOT ARISE UNDER THE STATUTE UNTIL A PERMANENT CHANGE OF STATION HAS BEEN ORDERED AND THE DEPENDENTS MOVE IN CONNECTION WITH SUCH CHANGE OF STATION. 37 COMP. GEN. 715. WHETHER PARTICULAR TRAVEL MEETS THAT FIRST AND BASIC REQUIREMENT IS FOR DETERMINATION ON THE BASIS OF THE FACTS OF EACH CASE. 33 COMP. GEN. 431. FOR EXAMPLE IT HAS BEEN HELD THAT A CHANGE IN DUTY ASSIGNMENT FROM ONE POINT TO ANOTHER WITHIN THE CORPORATE LIMITS OF THE SAME CITY IS NOT A PERMANENT CHANGE OF STATION WITHIN THE MEANING OF THE APPLICABLE STATUTE AND REGULATIONS, AND NO RIGHT TO TRAVEL AND TRANSPORTATION ALLOWANCES WOULD ACCRUE TO A MEMBER IN CONNECTION WITH SUCH A TRANSFER. SEE 36 COMP. GEN. 113. ALSO, IN THE CASE CONSIDERED IN OUR DECISION OF JUNE 19, 1957, 36 COMP. GEN. 824, INVOLVING DISLOCATION ALLOWANCE, THE MEMBER WAS TRANSFERRED FROM HIS DUTY ASSIGNMENT (U.S. NAVAL SCHOOLS COMMAND) AT NEW PORT, RHODE ISLAND, TO A NEW DUTY ASSIGNMENT ABOARD THE U.S.S. TWEEDY (DE 532) WITH A HOME PORT AT NEWPORT, RHODE ISLAND, AND A HOME YARD AT CHARLESTON, SOUTH CAROLINA. SINCE THE MEMBER KEPT HIS HOME AND FAMILY AT NEWPORT, ALTHOUGH IT WAS NECESSARY TO RELOCATE THEM THERE, THE CONCLUSION WAS REQUIRED THAT INSOFAR AS THE MEMBER'S RIGHTS WITH RESPECT TO DEPENDENTS WERE CONCERNED HIS ORDERS TO SEA DUTY WERE EFFECTIVE ONLY AS A TRANSFER FROM ONE MILITARY ESTABLISHMENT TO ANOTHER WITHIN THE SAME CITY (NEWPORT), AND NO PERMANENT CHANGE OF STATION OCCURRED. HENCE NO ENTITLEMENT TO DISLOCATION ALLOWANCE ACCRUED BY REASON OF THE CHANGE OF RESIDENCE IN NEW PORT FOLLOWING RECEIPT OF ORDERS.

THE PRESENT STATUTORY AUTHORITY FOR TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS, 37 U.S.C. 406, CONTINUES THE CONCEPT THAT THE HOME PORT OR HOME YARD OF A VESSEL HAS THE SAME STATUS AS ANY OTHER DUTY STATION WITH REGARD TO ENTITLEMENT TO TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS AT GOVERNMENT EXPENSE. THEREFORE, IT IS OUR VIEW THAT THERE IS NO AUTHORITY UNDER PRESENT LAW WHICH WOULD PERMIT TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS AT GOVERNMENT EXPENSE INCIDENT TO A MEMBER'S TRANSFER FROM SEA DUTY TO SEA DUTY WHEN THE VESSELS INVOLVED HAVE IDENTICAL HOME YARDS AND PORTS SINCE, IN SUCH CASE, THERE IS NO CHANGE OF STATION SO FAR AS TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD GOODS IS CONCERNED. IN ARRIVING AT THIS CONCLUSION THERE HAVE NOT BEEN OVERLOOKED THE PROVISIONS OF SECTION 406 (E) (3) TO THE EFFECT THAT WHEN ORDERS DIRECTING A CHANGE OF PERMANENT STATION FOR THE MEMBER CONCERNED HAVE NOT BEEN ISSUED, OR WHEN THEY HAVE BEEN ISSUED BUT CANNOT BE USED AS AUTHORITY FOR THE TRANSPORTATION OF HIS DEPENDENTS, ETC., THE SECRETARIES CONCERNED MAY AUTHORIZE THE MOVEMENT OF THE MEMBER'S DEPENDENTS AT GOVERNMENT EXPENSE ON THE BASIS PRESCRIBED. SUCH PROVISIONS, HOWEVER, MAY BE USED ONLY UNDER UNUSUAL OR EMERGENCY CIRCUMSTANCES, INCLUDING THOSE IN WHICH THE MEMBER IS SERVING ON SEA DUTY. IT IS OUR UNDERSTANDING THAT THIS PROVISION WAS NOT INTENDED TO CONSTITUTE AUTHORITY FOR THE ISSUANCE OF REGULATIONS PROVIDING FOR THE MOVEMENT OF DEPENDENTS AT GOVERNMENT EXPENSE IN THE CIRCUMSTANCES UNDER CONSIDERATION AND IT IS NOT CONTENDED IN THE UNDER SECRETARY'S LETTER THAT THE PROVISIONS CONSTITUTE SUCH AUTHORITY.