B-131632, MAY 14, 1965, 44 COMP. GEN. 724

B-131632, MAY 14, 1965, 44 COMP. GEN. 724

DISCHARGES AND DISMISSALS - MILITARY PERSONNEL - OTHER THAN HONORABLE - TRANSPORTATION OF DEPENDENTS, HOUSEHOLD EFFECTS, ETC. AN AMENDMENT TO THE JOINT TRAVEL REGULATIONS TO AUTHORIZE THE RETURN TRANSPORTATION OF DEPENDENTS, HOUSEHOLD EFFECTS AND PRIVATELY OWNED VEHICLES OF MEMBERS OF THE UNIFORMED SERVICES WHO WHILE SERVING OVERSEAS ARE INVOLVED IN CIRCUMSTANCES REQUIRING SEPARATION UNDER OTHER THAN HONORABLE CONDITIONS OR CONFINEMENT IS WITHIN THE PURVIEW OF PUBLIC LAW 88 -431, WHICH AMENDED 37 U.S.C. 406 (H) TO PERMIT ADVANCE TRANSPORTATION IN SUCH CIRCUMSTANCES, WHETHER SEPARATION IS EFFECTED OVERSEAS OR IN THE UNITED STATES, AND IN CASES OF CONFINEMENT OF MEMBERS WHEN THERE IS A DETERMINATION THAT THE BEST INTERESTS OF THE DEPENDENTS AND THE UNITED STATES REQUIRE THE RETURN TRANSPORTATION OF THE DEPENDENTS AND EFFECTS.

TO THE SECRETARY OF THE AIR FORCE, MAY 14, 1965:

BY LETTER DATED APRIL 12, 1965, THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE FORWARDED LETTER OF APRIL 8, 1965, FROM THE ASSISTANT SECRETARY OF THE AIR FORCE, REQUESTING DECISION AS TO WHETHER THE JOINT TRAVEL REGULATIONS MAY BE AMENDED TO AUTHORIZE THE RETURN TRANSPORTATION OF DEPENDENTS, HOUSEHOLD EFFECTS AND THE PRIVATELY OWNED VEHICLE OF A MEMBER SERVING OVERSEAS, IN CASES INVOLVING SEPARATION UNDER OTHER THAN HONORABLE CONDITIONS IN THE VARIOUS CIRCUMSTANCES PRESENTED. THE REQUEST HAS BEEN ASSIGNED PDTATAC CONTROL NO. 65-15.

IN HIS LETTER, THE ASSISTANT SECRETARY STATED THAT THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE HAS RECEIVED A RECOMMENDATION THAT THE JOINT TRAVEL REGULATIONS BE AMENDED TO AUTHORIZE RETURN TRANSPORTATION TO THE UNITED STATES FOR A MEMBER'S DEPENDENTS, HOUSEHOLD EFFECTS AND PRIVATELY OWNED VEHICLE IN SITUATIONS INVOLVING DISCHARGE OF THE MEMBER OUTSIDE THE UNITED STATES UNDER OTHER THAN HONORABLE CONDITIONS, THE VIEW HAVING BEEN EXPRESSED THAT PUBLIC LAW 88-431, APPROVED AUGUST 14, 1964, PROVIDES AUTHORITY FOR SUCH ACTION. HE REFERS TO OUR DECISION OF JULY 16, 1957, 37 COMP. GEN. 21, IN WHICH THE QUESTION WAS CONSIDERED UNDER THE STATUTORY PROVISIONS THEN IN EFFECT AND WAS ANSWERED IN THE NEGATIVE. STATES FURTHER THAT WHILE NEITHER PUBLIC LAW 88-431, NOR ITS LEGISLATIVE HISTORY RELATES SPECIFICALLY TO RETURN TRANSPORTATION IN OTHER THAN HONORABLE DISCHARGE CASES, THERE IS A QUESTION AS TO WHETHER THE PROVISION OF THE LAW AUTHORIZING RETURN TRANSPORTATION,"IF THE SECRETARY CONCERNED DETERMINES IT TO BE IN THE BEST INTERESTS OF THE MEMBER OR HIS DEPENDENTS AND THE UNITED STATES," IS APPLICABLE IN SUCH CASES. ACCORDINGLY HE REQUESTS A DECISION WHETHER UNDER THE PROVISIONS OF PUBLIC LAW 88-431, THE JOINT TRAVEL REGULATIONS MAY BE AMENDED TO AUTHORIZE RETURN TRANSPORTATION TO THE UNITED STATES OF DEPENDENTS, HOUSEHOLD EFFECTS AND PRIVATELY OWNED VEHICLE IN 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 CIVIL OR A MILITARY CONFINEMENT FACILITY OVERSEAS, DISCHARGE NOT YET EFFECTED.

IN 37 COMP. GEN. 21, WE CONSIDERED A REQUEST BY THE ASSISTANT SECRETARY OF THE ARMY AS TO WHETHER THE SECRETARIES CONCERNED COULD AUTHORIZE THE TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS FROM THE LAST DUTY STATION OF THE MEMBER CONCERNED TO HIS HOME OF RECORD, UNDER CIRCUMSTANCES SIMILAR TO THOSE LISTED IN SITUATIONS A TO E ABOVE, AND THE FURTHER QUESTION IF THE REPLY WAS IN THE NEGATIVE, WHETHER, WHERE SUCH DEPENDENTS WERE LOCATED AT A MEMBER'S DUTY STATION OUTSIDE THE UNITED STATES, TRANSPORTATION COULD BE AUTHORIZED TO THE PORT OF DEBARKATION IN THE COUNTRY IN WHICH THE HOME OF RECORD WAS LOCATED. WE HELD THAT THE PROVISIONS OF SECTIONS 303 (A) AND (C) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 814, RELATE TO TRAVEL AND TRANSPORTATION ALLOWANCES OF MEMBERS, NOT DEPENDENTS, IN THE CIRCUMSTANCES THERE ENUMERATED AND SUCH PROVISIONS OF LAW COULD NOT BE CONSIDERED AS AUTHORITY FOR TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS AT GOVERNMENT EXPENSE OF A MEMBER DISCHARGED UNDER OTHER THAN HONORABLE CONDITIONS. WE STATED FURTHER THAT UNTIL THERE IS STATUTORY AUTHORITY FOR THE GOVERNMENT TO ASSUME THE EXPENSES OF TRANSPORTATION ON A DIFFERENT BASIS THAN WAS THEN AUTHORIZED, IT WOULD SEEM THAT SUCH EXPENSES IN THE CIRCUMSTANCES PRESENTED MUST BE BORNE BY THE PERSONS CONCERNED.

IN OUR DECISION OF JULY 16, 1958, 38 COMP. GEN. 28, WE CONSIDERED PROPOSED CHANGES IN THE JOINT TRAVEL REGULATIONS RELATING TO THE RETURN UNDER UNUSUAL OR EMERGENCY CIRCUMSTANCES OF DEPENDENTS AND HOUSEHOLD EFFECTS OF MEMBERS OF THE UNIFORMED SERVICES FROM OVERSEA STATIONS TO THE UNITED STATES PRIOR TO ORDERS DIRECTING RETURN OF THE MEMBERS. CONCLUDED THAT THE PROVISION IN SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 814, AUTHORIZING THE RETURN, UNDER REGULATIONS ISSUED BY THE SECRETARIES CONCERNED, OF DEPENDENTS AND HOUSEHOLD EFFECTS FROM OVERSEAS STATIONS "UNDER UNUSUAL OR EMERGENCY CIRCUMSTANCES" DID NOT PROVIDE AUTHORITY FOR THEIR ADVANCE RETURN FOR REASONS SUCH AS FINANCIAL DIFFICULTIES, MARITAL TROUBLES, THE DESIRE TO RETURN DEPENDENTS TO THE UNITED STATES TO ATTEND SCHOOL, OR BECAUSE OF ILLNESS OF RELATIVES.

PUBLIC LAW 88-431, APPROVED AUGUST 14, 1964, 78 STAT. 439, AMENDED SECTION 406 OF TITLE 37, U.S.C. BY ADDING SUBSECTION (H) AS FOLLOWS:

"/H) IN THE CASE OF A MEMBER WHO IS SERVING AT A STATION OUTSIDE THE UNITED STATES OR IN HAWAII OR ALASKA, IF THE SECRETARY CONCERNED DETERMINES IT TO BE IN THE BEST INTERESTS OF THE MEMBER OR HIS DEPENDENTS AND THE UNITED STATES, HE MAY, 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, BAGGAGE, AND HOUSEHOLD EFFECTS---

"/1) AUTHORIZE THE MOVEMENT OF THE MEMBER'S DEPENDENTS, BAGGAGE, AND HOUSEHOLD EFFECTS AT THAT STATION TO AN APPROPRIATE LOCATION IN THE UNITED STATES OR ITS POSSESSIONS AND PRESCRIBE TRANSPORTATION IN KIND, REIMBURSEMENT THEREFOR, OR A MONETARY ALLOWANCE IN PLACE THEREOF, AS THE CASE MAY BE, AS AUTHORIZED UNDER SUBSECTION (A) OR (B) OF THIS SECTION; AND

"/2) AUTHORIZE THE TRANSPORTATION OF ONE MOTOR VEHICLE OWNED BY THE MEMBER AND FOR HIS OR HIS DEPENDENTS' PERSONAL USE TO THAT LOCATION ON A VESSEL OWNED, LEASED, OR CHARTERED BY THE UNITED STATES OR BY PRIVATELY OWNED AMERICAN SHIPPING SERVICES. * * *"

THE LEGISLATIVE HISTORY OF PUBLIC LAW 88-431, DISCLOSES THAT THE PRIMARY PURPOSE OF THE LEGISLATION WAS TO PROVIDE AUTHORITY FOR THE ADVANCE RETURN OF DEPENDENTS, HOUSEHOLD GOODS AND PRIVATELY OWNED VEHICLES OF MILITARY PERSONNEL FROM OVERSEAS AREAS TO LOCATIONS IN THE UNITED STATES UNDER SUCH CIRCUMSTANCES AS UNFORESEEN FAMILY PROBLEMS, MARITAL TROUBLE, AND FINANCIAL PROBLEMS BROUGHT ABOUT BY CIRCUMSTANCES SUCH AS CONFINEMENT OR REDUCTION IN GRADE OF THE MEMBER, REASONS WHICH WE HELD IN 38 COMP. GEN. 28, GENERALLY COULD NOT BE CONSIDERED AS "UNUSUAL OR EMERGENCY CIRCUMSTANCES" AS CONTEMPLATED BY THE PROVISIONS OF 37 U.S.C. 253 (C), THEN IN EFFECT, NOW RECODIFIED IN 37 U.S.C. 406 (E). SEE IN THIS CONNECTION THE STATEMENT OF MAJOR J. M. TWISDALE, OFFICE, CHIEF OF FINANCE, U.S. ARMY, COMMENCING ON PAGE 3005 OF THE HEARINGS (NO. 10) HELD ON MAY 28, 1963, BEFORE SUBCOMMITTEE NO. 1, COMMITTEE ON ARMED SERVICES, HOUSE OF REPRESENTATIVES. PAGES 3016 3017 OF THE HEARINGS FURTHER SHOW THAT MAJOR TWISDALE WHO TESTIFIED ON BEHALF OF THE SERVICES AS TO THE NEED FOR THE LEGISLATION WAS CALLED UPON BY MR. BLANDFORD, COUNSEL FOR THE COMMITTEE, FOR AN EXPLANATION AS FOLLOWS:

"MR. BLANDFORD. IS IT INTENDED THAT THE SECRETARY WILL BE AUTHORIZED, IN THE INTEREST OF THE GOVERNMENT AND THE MEMBER, TO RETURN DEPENDENTS OF A MEMBER WHO IS BEING RETURNED FOR DISCHARGE UNDER OTHER THAN HONORABLE CONDITIONS?

LET ME GIVE YOU A SITUATION.

A MEMBER RECEIVES A BCD OR AN UNDESIRABLE DISCHARGE.

HE IS OVERSEAS WITH HIS FAMILY.

IS IT INTENDED THAT THIS PROPOSAL WOULD PERMIT HIM TO MOVE HIS FAMILY BACK TO THE UNITED TATES?

MAJOR TWISDALE. YES, SIR; IT IS INTENDED.

OTHERWISE THERE WOULD BE NO AUTHORITY TO RETURN THE DEPENDENT.

MR. BLANDFORD. RIGHT. I HAVE NO OTHER QUESTIONS.'

SUCH TESTIMONY SUPPORTS THE VIEW THAT PUBLIC LAW 88-431, WAS INTENDED TO PROVIDE STATUTORY AUTHORITY FOR THE ADVANCE TRANSPORTATION OF DEPENDENTS, HOUSEHOLD EFFECTS AND PRIVATELY OWNED MOTOR VEHICLES FROM OVERSEAS STATIONS TO THE UNITED STATES IN THE CASE OF MEMBERS WHO WERE PLACED IN CONFINEMENT, RESULTING IN FINANCIAL DIFFICULTIES FOR THE DEPENDENTS, AND TO PROVIDE AUTHORITY FOR SUCH TRANSPORTATION IN THE CASE OF MEMBERS DISCHARGED UNDER OTHER THAN HONORABLE CONDITIONS. ACCORDINGLY, WE NOW CONCLUDE THAT 37 U.S.C. 406 (H) AS ADDED BY PUBLIC LAW 88-431, PROVIDES AUTHORITY FOR THE SECRETARIES TO PROMULGATE REGULATIONS AUTHORIZING THE RETURN TRANSPORTATION OF DEPENDENTS, HOUSEHOLD EFFECTS AND A PRIVATELY OWNED MOTOR VEHICLE OF A MEMBER SERVING OVERSEAS, IN CASES INVOLVING SEPARATION UNDER OTHER THAN HONORABLE CONDITIONS WHETHER SUCH SEPARATION IS EFFECTED OVERSEAS OR IN THE UNITED STATES. YOUR QUESTION, AS IT RELATES TO THE SITUATIONS LISTED AS A TO C, IS ANSWERED IN THE AFFIRMATIVE. ALSO, IT IS OUR VIEW THAT REGULATIONS MAY BE ISSUED TO AUTHORIZE RETURN TRANSPORTATION TO THE UNITED STATES FOR DEPENDENTS, HOUSEHOLD EFFECTS AND A PRIVATELY OWNED MOTOR VEHICLE IN THE SITUATIONS LISTED AS D AND E IF THE SECRETARY CONCERNED DETERMINES THAT BECAUSE OF CIRCUMSTANCES RESULTING FROM THE CONFINEMENT OF THE MEMBER IT IS IN THE BEST INTERESTS OF THE DEPENDENTS AND THE UNITED STATES TO AUTHORIZE SUCH MOVEMENT.