B-115509, OCT 8, 1954

B-115509, OCT 8, 1954

PRECIS-UNAVAILABLE

MR. SECRETARY:

THERE HAS BEEN CONSIDERED A LETTER DATED JANUARY 21, 1954, FROM THE ACTING SECRETARY OF THE ARMY, WITH ATTACHED STATEMENT, REQUESTING RECONSIDERATION OF DECISION OF JUNE 23, 1953, B-115509, 32 COMP GEN 569, IN WHICH IT WAS HELD THAT WHERE A MEMBER IS ASSIGNED TO TWO OR MORE PLACES AS A STUDENT FOR COURSES OF INSTRUCTION OF A TOTAL PERIOD OF 20 WEEKS OR MORE, BUT LESS THAN 20 WEEKS DURATION AT ANY ONE PLACE, HE IS NOT ENTITLED TO TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE INCIDENT TO SUCH ASSIGNMENT.

IN THE DECISION OF JUNE 23, 1953, IT IS POINTED OUT THAT THE JOINT TRAVEL REGULATIONS ISSUED PURSUANT TO SECTION 303 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 802, 813, 814, PROVIDE IN SECTION 7000 THEREOF THAT MEMBERS OF THE UNIFORMED SERVICES ARE ENTITLED TO TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE UPON "A PERMANENT CHANGE OF STATION" FOR TRAVEL PERFORMED FROM THE OLD STATION TO THE NEW PERMANENT STATION, WITH CERTAIN EXCEPTIONS INCLUDING THE CASE OF AN OFFICER ASSIGNED TO A SCHOOL OR INSTALLATION AS A STUDENT FOR A COURSE OF INSTRUCTION OF LESS THAN 20 WEEKS. SUCH PROVISION OF THE REGULATIONS WAS CONSTRUED, IN THE LIGHT OF THE GENERAL PURPOSE OF THE REGULATIONS IN AUTHORIZING TRANSPORTATION OF DEPENDENTS ONLY UPON ORDERS TO MAKE A PERMANENT CHANGE OF STATION TO THE EXCLUSION OF ORDERED TEMPORARY CHANGES OF STATION, AS CONTEMPLATING THAT MEMBERS OF THE UNIFORMED SERVICES WERE ENTITLED TO TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE IN CONNECTION WITH AN ASSIGNMENT TO A SCHOOL OR INSTALLATION AS A STUDENT ONLY IF THE COURSE OF INSTRUCTION WAS TO BE 20 WEEKS OR MORE IN DURATION AT ANY ONE PLACE.

IT APPEARS TO BE THE ADMINISTRATIVE VIEW THAT THE REGULATIONS WERE SUSCEPTIBLE, UPON THE BASIS OF THE ARGUMENTS PRESENTED IN THE STATEMENT ACCOMPANYING THE LATTER OF THE ACTING SECRETARY OF THE ARMY OF AN INTERPRETATION WHICH WOULD AUTHORIZE THE TRANSPORTATION OF DEPENDENTS AS FOR A PERMANENT CHANGE OF STATION IN CASES ARISING UNDER ORDERS OF THE TYPE HERE INVOLVED. IN SUPPORT OF SUCH VIEW, IT IS CONTENDED THAT SINCE THE ARTILLERY SCHOOL CONDUCTS A PORTION OF ITS COURSE AT FORT SILL AND THE BALANCE AT SAN MARCOS FOR A TOTAL OF 31 WEEKS, IT IS TO BE CONSIDERED ONE COURSE OF INSTRUCTION FOR A PERIOD IN EXCESS OF 5 MONTHS. ALSO, IT IS POINTED OUT IN THE SUBMISSION THAT TO PROVIDE PROPER AUTHORITY FOR THE TRANSPORTATION OF DEPENDENTS OF A MEMBER TRANSFERRED ON PERMANENT CHANGE OF STATION ORDERS TO PURSUE A PROGRESSIVE COURSE OF INSTRUCTION, PARAGRAPH 7011 HAS BEEN ADDED TO THE JOINT TRAVEL REGULATIONS, EFFECTIVE DECEMBER 1, 1953. SUCH PARAGRAPH PROVIDES IN PART THAT UNDER PERMANENT CHANGE OF STATION ORDERS TO A COURSE OF INSTRUCTION WHICH WILL BE FOLLOWED BY ANOTHER COURSE OR COURSES OF INSTRUCTION AT THE SAME OR OTHER PLACES SO THE AGGREGATE DURATION OF ALL COURSES IS 20 WEEKS OR MORE, THE MEMBER SHALL BE ENTITLED TO TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE AS HE MAY ELECT, (1) TO A DESIGNATED PLACE IN THE SAME MANNER AS IS AUTHORIZED UNDER PARAGRAPH 7005 FOR MOVEMENT OF DEPENDENTS UPON TRANSFER OR ASSIGNMENT OF MEMBERS TO A RESTRICTED AREA, OR (2) TO THE VARIOUS PLACES TO WHICH HE MAY BE ASSIGNED FOR TRAINING PROVIDED THAT TRANSPORTATION IS NOT AUTHORIZED TO A PLACE AT WHICH THE PERIOD OF TRAINING WILL BE OF LESS THAN 4 WEEKS DURATION. IT FURTHER PROVIDES THAT THE MEMBER'S INITIAL ELECTION SHALL BE FINAL AND CONCLUSIVE, AND ORDERS DIRECTING INITIAL ASSIGNMENT TO TRAINING SHALL INDICATE SUCH ELECTION, SPECIFYING THE PLACE SELECTED IF APPLICABLE.

SECTION 12 OF THE ACT OF MAY 18, 1920, 41 STAT. 604, REENACTED AS PARAGRAPH 6 OF THE PAY READJUSTMENT ACT OF 1943, 56 STAT. 365, PROVIDED THAT OFFICERS, AND ENLISTED MEN OF CERTAIN GRADES, WHEN "ORDERED TO MAKE A PERMANENT CHANGE OF STATION" WERE ENTITLED TO TRANSPORTATION FOR THEIR DEPENDENTS TO THE NEW STATION NOT TO EXCEED THE COST FROM THE OLD TO THE NEW STATION. THESE ACTS WERE INTERPRETED AS NOT PRECLUDING TRANSPORTATION OF DEPENDENTS TO A POINT OTHER THAN THE NEW STATION, AND BY REGULATIONS BASED ON SUCH INTERPRETATION THE TRANSPORTATION OF DEPENDENTS OF ELIGIBLE PERSONNEL ORDERED TO MADE A PERMANENT CHANGE OF STATION FROM ANY POINT TO ANY POINT, NOT TO EXCEED THE COST OF TRAVEL FROM THE OLD TO THE NEW STATION, WAS AUTHORIZED. 27 COMP. DEC. 510; 2 COMP GEN. 567. HOWEVER, THE CITED ACTS IN PLAIN TERMS PROVIDED FOR TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE ONLY ON PERMANENT CHANGE OF STATION, AND THE DECISIONS OF THIS OFFICE, WITHOUT EXCEPTION, HELD THAT THEY AFFORDED NO AUTHORITY FOR THE EXPENDITURE OF PUBLIC FUNDS FOR THE TRANSPORTATION OF DEPENDENTS TO OR FROM TEMPORARY DUTY STATIONS. 27 COMP DEC. 400; 2 COMP GEN. 464. ASSIGNMENTS TO SCHOOLS AS STUDENTS FOR THE PURPOSE OF TAKING A SPECIAL COURSE OF INSTRUCTION GENERALLY BEING OF BRIEF AND DEFINITE DURATION, CONTEMPLATING A FURTHER ASSIGNMENT TO A NEW STATION OR RETURN TO THE OLD PERMANENT STATION, WERE CONSIDERED ORDERS TO TEMPORARY DUTY AND THE SCHOOLS WERE TREATED AS TEMPORARY DUTY STATIONS, EXCEPT WHERE THE COURSE OF INSTRUCTION AT ONE PLACE WAS SCHEDULED FOR FIVE MONTHS OR OVER. SUCH ASSIGNMENTS WERE ORDERED AS PERMANENT CHANGES OF STATION UNDER REGULATIONS SET FORTH IN SECTION 6, ARTICLE 2505, NAVY TRAVEL INSTRUCTIONS, CHANGE 2, APRIL 1, 1937, AND SECTION 6, WAR DEPARTMENT CIRCULAR NO. 267, SEPTEMBER 5, 1946. ALTHOUGH ORDERS TO DUTY AS A STUDENT, EVEN THOUGH FOR A PERIOD OF MORE THAN 5 MONTHS, LACKED CERTAIN ELEMENTS ORDINARILY PRESENT IN A PERMANENT CHANGE OF STATION, THIS OFFICE RAISED NO OBJECTION TO THOSE REGULATIONS, SINCE THE STATUTE AUTHORIZING TRANSPORTATION OF THE DEPENDENTS OF A MEMBER ORDERED TO MAKE A PERMANENT CHANGE OF STATION CLEARLY WAS INTENDED TO RELIEVE HIM TO THE EXTENT OF THE COST OF TRAVEL TO THE NEW STATION OF THE BURDEN OF TRANSPORTING HIS DEPENDENTS AT HIS OWN EXPENSE WHEN THE CONDITIONS OF THE SERVICE WARRANTED A CHANGE IN THEIR RESIDENCE. 21 COMP. GEN 175, 177. IT SEEMS SELF-EVIDENT, HOWEVER, THAT ASSIGNMENTS TO SCHOOLS TO PURSUE COURSES OF INSTRUCTION SCHEDULED FOR EVEN SHORTER PERIODS (AS LITTLE AS 4 WEEKS UNDER THE QUESTIONED REGULATION) PROPERLY COULD NOT HAVE BEEN REGARDED AS FALLING WITHIN THE MEANING OF THE TERM "PERMANENT CHANGE OF STATION" AS USED IN THE APPLICABLE STATUES.

CURRENTLY THE STATUTORY AUTHORITY FOR TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE IS CONTAINED IN SECTION 303(C) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 814, WHICH PROVIDES THAT MEMBERS OF THE UNIFORMED SERVICES "WHEN ORDERED TO MAKE A PERMANENT CHANGE OF STATION" SHALL BE ENTITLED TO TRANSPORTATION OF DEPENDENTS UNDER SUCH CONDITIONS AND LIMITATIONS, AND TO AND FROM SUCH LOCATIONS, AS MAY BE PRESCRIBED BY THE SECRETARIES CONCERNED. THIS SECTION OF THE CAREER COMPENSATION ACT ALSO CONTAINS PROVISIONS SIMILAR TO THOSE FOUND IN THE WARTIME ACTS OF JUNE 5, 1942, 56 STAT. 315, AND OF NOVEMBER 28, 1943, 57 STAT. 593, FOR TRANSPORTATION OF DEPENDENTS UNDER UNUSUAL OR EMERGENCY CIRCUMSTANCES WHEN NO ORDERS DIRECTING A CHANGE OF PERMANENT STATION HAVE BEEN ISSUED, WHICH PRESUMABLY CONSTITUTE THE AUTHORITY FOR THE PROMULGATION OF PARAGRAPH 7005, CITED IN PARAGRAPH 7011, CHANGE 18, JOINT TRAVEL REGULATIONS.

IT IS FUNDAMENTAL THAT REGULATIONS OF EXCUTIVE DEPARTMENTS MUST NOT BE INCONSISTENT WITH LAW, BUT MUST CONFORM TO THE LAW. 32 COMP. GEN. 410. THE PROVISIONS IN THE CAREER COMPENSATION ACT OF 1949 FOR TRANSPORTATION OF DEPENDENTS OF MEMBERS OF THE UNIFORMED SERVICES WHEN ORDERED TO MAKE A PERMANENT CHANGE OF STATION WOULD NOT APPEAR TO DIFFER FROM THOSE IN THE EARLIER STATUTES TO SUCH DEGREE AS TO SERVE AS STATUTORY AUTHORITY FOR A REGULATION PURPORTING TO AUTHORIZE TRANSPORTATION OF DEPENDENTS TO A STATION WHERE THE SPECIFIED PERIOD OF DUTY IS TO BE LESS THAN 20 WEEKS ALTHOUGH NOT LESS THAN 4 WEEKS, AND THIS NOTWITHSTANDING THE FACT THAT ALL DUTY DIRECTED IN THE THE ORDERS EXTENDS OVER A PERIOD OF NOT LESS THAN 20 WEEKS. FURTHER, WHILE PARAGRAPH 7005, JOINT TRAVEL REGULATIONS, PROVIDES IN PROPER CASES FOR THE TRANSPORTATION OF DEPENDENTS TO ANY POINT IN THE UNITED STATES SELECTED BY A MEMBER WHEN SUCH MEMBER IS TRANSFERRED OR ASSIGNED UNDER PERMANENT CHANGE OF STATION ORDERS TO A PLACE WHERE HIS DEPENDENTS ARE NOT PERMITTED, FOR MILITARY REASONS, TO ACCOMPANY HIM, IT SEEMS OBVIOUS THAT THE MERE FACT THAT THE DUTY ENJOINED AT A PARTICULAR STATION IS TO BE OF SUCH BRIEF DURATION AS NOT TO WARRANT TRANSPORTATION OF DEPENDENTS WOULD NOT, AS PROPOSED IN PARAGRAPH 7011, JOINT TRAVEL REGULATIONS, CONSTITUTE SUCH STATION A PLACE FROM WHICH DEPENDENTS ARE BARRED "FOR MILITARY REASONS." SUCH STATIONS CAN BE REGARDED ONLY AS TEMPORARY DUTY STATIONS AND THE LAW IS PLAIN THAT TRANSPORTATION OF DEPENDENTS IS AUTHORIZED ONLY ON CHANGE OF PERMANENT STATION, EXCEPT IN "UNUSUAL OR EMERGENCY CIRCUMSTANCES." TO THE EXTENT THAT THE AMENDED REGULATIONS PURPORT TO PROVIDE OTHERWISE, THEY CANNOT BE ACCEPTED BY THIS OFFICE AS AUTHORIZED BY LAW.

IT FOLLOWS THAT THE DECISION OF JUNE 23, 1953, MUST BE AFFIRMED. FURTHER, THIS OFFICE FINDS ON THE PRESENT RECORD NO SUFFICIENT JUSTIFICATION TO REMOVE THE EXCEPTIONS STATED ON ACCOUNT OF PAYMENTS MADE AS REIMBURSEMENT FOR TRANSPORTATION OF DEPENDENTS INCIDENT TO ORDERS UNDER WHICH THE COURSE OF INSTRUCTION AT ANY ONE PLACE WAS SCHEDULED FOR LESS THAN 20 WEEKS, AND WILL BE REQUIRED TO TAKE EXCEPTION TO ANY OTHER SUCH PAYMENTS FOUND IN THE ACCOUNTS.