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B-154518, MAY 14, 1968, 47 COMP. GEN. 641

B-154518 May 14, 1968
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ETC. - AVIATION CANDIDATE PROGRAM MEMBERS OF THE AVIATION OFFICER CANDIDATE PROGRAM WHO ENLISTED IN THE NAVY IN PAY GRADE E-2 AND ARE PROMOTED TO E-5 UPON ARRIVAL AT A TEMPORARY DUTY STATION ARE ENTITLED TO THE TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE UNDER ORDERS THAT DESIGNATE THE TEMPORARY DUTY STATION THEIR PERMANENT STATION AS AN OFFICER PRIOR TO THEIR BEING COMMISSIONED. THE FACT THAT AN ORDERED CHANGE OF STATION IS INCIDENT TO A PROMOTION AND CONTINUED SERVICE IN THE HIGHER GRADE HAS NO BEARING ON THE RIGHT. 1968: REFERENCE IS MADE TO LETTER OF MARCH 11. THIS REQUEST WAS ASSIGNED CONTROL NO. 68-16 BY THE PER DIEM. IN THE ABOVE DECISION IT WAS HELD THAT A MEMBER ORDERED FROM CIVILIAN LIFE TO ACTIVE DUTY AT PENSACOLA.

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B-154518, MAY 14, 1968, 47 COMP. GEN. 641

TRANSPORTATION - DEPENDENTS - MILITARY PERSONNEL - CADETS, MIDSHIPMEN, ETC. - AVIATION CANDIDATE PROGRAM MEMBERS OF THE AVIATION OFFICER CANDIDATE PROGRAM WHO ENLISTED IN THE NAVY IN PAY GRADE E-2 AND ARE PROMOTED TO E-5 UPON ARRIVAL AT A TEMPORARY DUTY STATION ARE ENTITLED TO THE TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE UNDER ORDERS THAT DESIGNATE THE TEMPORARY DUTY STATION THEIR PERMANENT STATION AS AN OFFICER PRIOR TO THEIR BEING COMMISSIONED. THE FACT THAT AN ORDERED CHANGE OF STATION IS INCIDENT TO A PROMOTION AND CONTINUED SERVICE IN THE HIGHER GRADE HAS NO BEARING ON THE RIGHT, EITHER AS AN OFFICER OR ENLISTED MAN, TO ENTITLEMENT UNDER PARAGRAPH M7053 OF THE JOINT TRAVEL REGULATIONS TO THE TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE FOR TRAVEL PERFORMED TO A FIRST PERMANENT STATION DESIGNATED SUBSEQUENT TO THE TEMPORARY DUTY ASSIGNMENT OF A MEMBER.

TO THE SECRETARY OF THE NAVY, MAY 14, 1968:

REFERENCE IS MADE TO LETTER OF MARCH 11, 1968, FROM THE UNDER SECRETARY OF THE NAVY IN WHICH HE REFERS TO OUR DECISION OF AUGUST 7, 1964, 44 COMP. GEN. 67, AND REQUESTS A DECISION CONCERNING THE ENTITLEMENT OF MEMBERS SERVING UNDER THE PRESENT AVIATION OFFICER CANDIDATE PROGRAM TO REIMBURSEMENT FOR TRANSPORTATION OF THEIR DEPENDENTS PERFORMED PRIOR TO THE DATE THEY RECEIVE THEIR COMMISSIONS AS ENSIGNS. THIS REQUEST WAS ASSIGNED CONTROL NO. 68-16 BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

IN THE ABOVE DECISION IT WAS HELD THAT A MEMBER ORDERED FROM CIVILIAN LIFE TO ACTIVE DUTY AT PENSACOLA, FLORIDA, AS AN AVIATION CADET, A GRADE INELIGIBLE FOR TRANSPORTATION AT GOVERNMENT EXPENSE OF DEPENDENTS, MAY NOT BE REIMBURSED FOR THE COST OF THE TRAVEL OF HIS DEPENDENT WIFE FROM HOME TO PENSACOLA PERFORMED PRIOR TO THE DATE HE RECEIVED HIS COMMISSION AS AN OFFICER AND PERMANENT DUTY ASSIGNMENT THERE.

THE UNDER SECRETARY STATES THAT THE NAVAL AVIATION CADET PROGRAM (NAVCAD PROGRAM) HAS BEEN DISCONTINUED AND THAT THE AVIATION OFFICER CANDIDATE PROGRAM (ACC PROGRAM) IS BEING UTILIZED. UNDER THE ACC PROGRAM MEMBERS ARE ENLISTED IN THE NAVY IN PAY GRADE E-2 AND ORDERED TO PENSACOLA FOR A COURSE OF INSTRUCTION INVOLVING LESS THAN 11 WEEKS OF TEMPORARY DUTY UNDER INSTRUCTION. THEY ARE PROMOTED TO PAY GRADE E-5 IMMEDIATELY AFTER ARRIVAL AT PENSACOLA, ARE COMMISSIONED AS ENSIGNS UPON SUCCESSFUL COMPLETION OF THE COURSE OF INSTRUCTION, AND ARE THEN ASSIGNED AS OFFICERS TO ATTEND COURSES OF INSTRUCTION IN EXCESS OF 20 WEEKS AT PENSACOLA.

THE UNDER SECRETARY FURTHER STATES THAT THE LAST ASSIGNMENT AT PENSACOLA ESTABLISHES IT AS THE MEMBERS' FIRST PERMANENT DUTY STATION AS OFFICERS, AND CONCLUDES THAT UNDER B-154518, SUPRA, THERE IS NO QUESTION AS TO THEIR ENTITLEMENT TO TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE FROM THEIR HOME OR THE PLACE FROM WHICH ORDERED TO ACTIVE DUTY TO PENSACOLA, PROVIDED THAT THE DEPENDENTS' TRAVEL IS PERFORMED AFTER THEY ARE COMMISSIONED. HE SUGGESTS, HOWEVER, THAT THE EARLY PROMOTION OF THE ACC MEMBERS TO GRADE E-5 SHOULD OVERCOME THEIR LACK OF ELIGIBLE GRADE FOR DEPENDENTS' TRANSPORTATION AND THEREFORE SHOULD RESULT IN THEIR BEING ENTITLED TO THE TRANSPORTATION OF THEIR DEPENDENTS AT GOVERNMENT EXPENSE UPON THE RECEIPT OF ASSIGNMENT ORDERS, EVEN THOUGH ISSUED PRIOR TO THEIR COMMISSIONING.

ACCORDING TO THE UNDER SECRETARY, IT IS CONTEMPLATED THAT PRIOR TO THE ISSUANCE OF SUCH ORDERS, A CONCLUSION BY AUTHORIZED AND COGNIZANT OFFICERS UNDER THE JURISDICTION OF THE CHIEF OF NAVAL AIR TRAINING, BASED UPON THE ACC MEMBERS' PROGRESS IN THE ASSIGNED COURSE OF INSTRUCTION, WILL BE REACHED SEVERAL WEEKS PRIOR TO THE COMPLETION OF THEIR COURSE AS TO WHICH CANDIDATES WILL BE SUBSEQUENTLY COMMISSIONED. AFTER SUCH FINDING, BUT PRIOR TO COMMISSIONING, IT IS CONTEMPLATED THAT ORDERS WILL BE ISSUED TO THE SELECTED MEMBERS INFORMING THEM THAT THEY WILL BE COMMISSIONED AS ENSIGNS AT A SPECIFIED FUTURE DATE. THE SAME SET OF ORDERS WILL DIRECT THEM, AS OFFICERS, TO PERFORM DUTY UNDER INSTRUCTION AT PENSACOLA FOR DESIGNATED COURSES OF INSTRUCTION LASTING IN EXCESS OF 20 WEEKS.

CONTINUING, THE UNDER SECRETARY SAYS THAT IN THE INDICATED CIRCUMSTANCES AFTER SUCH MEMBERS RECEIVE THEIR ORDERS TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE WOULD APPEAR TO BE AUTHORIZED UNDER THE AUTHORITY OF PARAGRAPH M7000-8 OF THE JOINT TRAVEL REGULATIONS. HOWEVER, SINCE THE PERMANENT CHANGE OF STATION IS FROM HOME OR PLACE FROM WHICH ORDERED TO ACTIVE DUTY AS AN ENLISTED MEMBER TO HIS FIRST PERMANENT DUTY STATION AND SUCH STATION IS BASED UPON HIS OFFICER'S STATUS, HE REQUESTS CONFIRMATION, IF PROPER, CONCERNING THE MEMBER'S ENTITLEMENT TO TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE AFTER HE RECEIVES ORDERS WHICH INCLUDE DESIGNATION OF PENSACOLA AS HIS FIRST PERMANENT DUTY STATION AS AN OFFICER.

IF OUR DETERMINATION IS THAT THE ACC MEMBER'S ENTITLEMENT WILL NOT EXIST UNTIL AFTER HE IS COMMISSIONED EVEN THOUGH ORDERS ARE ISSUED AS SPECIFIED FURTHER ADVICE IS SOUGHT AS TO WHETHER OR NOT SUCH A MEMBER COULD BE REIMBURSED AFTER HE IS COMMISSIONED FOR TRAVEL PERFORMED BY HIS DEPENDENTS PRIOR THERETO BUT AFTER RECEIPT OF THE ORDERS PRESCRIBED ABOVE. AS TO THAT PREMISE THE UNDER SECRETARY EXPRESSES THE VIEW THAT THERE TOO REIMBURSEMENT WOULD BE COMPATIBLE WITH THE PROVISIONS OF PARAGRAPH M7000-8 OF THE JOINT TRAVEL REGULATIONS.

PARAGRAPH M7000-8 OF THE REGULATIONS PROVIDES THAT MEMBERS OF THE UNIFORMED SERVICES ARE ENTITLED TO TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE UPON A PERMANENT CHANGE OF STATION (SEE PARAGRAPH M3003 -1) FOR TRAVEL PERFORMED FROM THE OLD STATION TO THE NEW PERMANENT STATION OR AUTHORIZED POINTS EXCEPT FOR ANY TRAVEL OF DEPENDENTS PERFORMED PRIOR TO RECEIPT OF ORDERS DIRECTING A PERMANENT CHANGE OF STATION OR PRIOR TO RECEIPT OF OFFICIAL NOTICE THAT SUCH ORDERS WOULD BE ISSUED.

THE DECISION OF AUGUST 7, 1964, CONSIDERED THE QUESTION OF A MEMBER'S ENTITLEMENT FOR DEPENDENTS' TRAVEL PERFORMED BEFORE HIS COMMISSIONING AND AT A TIME WHEN HE WAS INELIGIBLE AS AN AVIATION CADET FOR DEPENDENT TRAVEL AT GOVERNMENT EXPENSE. THE CONCLUSION REACHED WAS BASED ON THE FACT THAT SINCE SUCH INELIGIBILITY EXISTED UNTIL THE MEMBER WAS ACTUALLY COMMISSIONED--- HE WAS LEGALLY A MEMBER WITHOUT DEPENDENTS UNTIL THAT TIME --- A RIGHT TO DEPENDENT TRAVEL COULD NOT ACCRUE FOR TRAVEL PERFORMED PRIOR TO THAT EVENT AND WHILE HE SERVED IN THE INELIGIBLE STATUS. THAT DECISION, HOWEVER, DOES NOT HOLD THAT TRAVEL BENEFITS FOR DEPENDENTS ON AN ORDERED PERMANENT CHANGE OF STATION INCIDENT TO A CHANGE IN STATUS FROM ONE ELIGIBLE GRADE TO ANOTHER MAY NOT BE PAID FOR TRAVEL PERFORMED BETWEEN THE TIME ORDERS ARE ISSUED AND THEIR EFFECTIVE DATE TO THE EXTENT OTHERWISE AUTHORIZED BY THE JOINT TRAVEL REGULATIONS. SEE 43 COMP. GEN. 133.

SECTION 406 OF TITLE 37 OF THE U.S.C. PROVIDES THAT UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, A MEMBER OF THE UNIFORMED SERVICES WHO IS ORDERED TO MAKE A CHANGE OF PERMANENT STATION IS ENTITLED, AS THEREIN SPECIFIED, TO THE MOVEMENT OF HIS DEPENDENTS AND HOUSEHOLD EFFECTS AT GOVERNMENT EXPENSE AND PARAGRAPH M3003-1 OF THE JOINT TRAVEL REGULATIONS DEFINES A "PERMANENT CHANGE OF STATION" AS INCLUDING, AMONG OTHER THINGS, THE CHANGE FROM HOME OR PLACE FROM WHICH ORDERED TO ACTIVE DUTY, TO FIRST STATION UPON APPOINTMENT, CALL TO ACTIVE DUTY, ENLISTMENT, OR INDUCTION.

ENLISTED MEMBERS IN PAY GRADES E-1, E-2, E-3, AND E-4 WITH LESS THAN FOUR YEARS OF SERVICE, ARE BY STATUTE MEMBERS WITHOUT DEPENDENTS. SUCH AN INELIGIBLE ENLISTED MEMBER, HOWEVER, WHO WHILE AT A TEMPORARY OR PERMANENT DUTY STATION BECOMES ELIGIBLE BECAUSE OF THE ACQUISITION OF SUFFICIENT SERVICE OR PROMOTION TO AN APPROPRIATE GRADE IS ENTITLED TO THE TRANSPORTATION OF HIS DEPENDENTS AND HOUSEHOLD EFFECTS AT GOVERNMENT EXPENSE UPON THE RECEIPT OF ORDERS CHANGING HIS PERMANENT DUTY STATION. SEE 35 COMP. GEN. 670; 37 COMP. GEN. 715; 38 COMP. GEN. 478, SUPRA; AND B- 147914, DATED JANUARY 30, 1962. SINCE, UNDER THE GOVERNING STATUTORY PROVISIONS, THE RIGHT TO TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS AT GOVERNMENT EXPENSE IN SUCH CASES ACCRUES ON THE BASIS OF THE ORDERS WHICH DIRECT A CHANGE IN PERMANENT STATION AND NOT BY VIRTUE OF THE MEMBER'S PROMOTION, WE SEE NO REASON WHY THE FACT THAT THE ORDERED CHANGE OF STATION MAY BE INCIDENT TO CONTINUED SERVICE IN A STILL HIGHER GRADE SHOULD HAVE ANY BEARING UPON THAT RIGHT.

IT IS OUR VIEW, THEREFORE, THAT FOR PURPOSES OF TRANSPORTATION OF DEPENDENTS, THE MEMBERS HERE CONCERNED SHOULD BE VIEWED AS COMING UNDER PARAGRAPH M7053 OF THE JOINT TRAVEL REGULATIONS WHICH PROVIDES THAT WHEN A MEMBER CALLED TO ACTIVE DUTY IS FIRST ASSIGNED TO A TEMPORARY DUTY STATION AND IS SUBSEQUENTLY ORDERED TO MAKE A PERMANENT CHANGE OF STATION, HE IS ENTITLED TO TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE FOR TRAVEL PERFORMED TO THE PERMANENT STATION, PROVIDED ENTITLEMENT WILL NOT EXCEED THAT FROM HIS HOME OF RECORD OR THE PLACE FROM WHICH HE WAS ORDERED TO ACTIVE DUTY TO HIS FIRST PERMANENT STATION.

FOR SUCH REASONS WE ARE IN AGREEMENT WITH THE UNDER SECRETARY'S VIEW THAT THE MEMBERS CONCERNED ARE ENTITLED TO TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE FROM HOME TO FIRST DUTY STATION AFTER THEY RECEIVE ORDERS WHICH INCLUDE THE DESIGNATION OF PENSACOLA AS THE FIRST PERMANENT DUTY STATION AS AN OFFICER. ALSO, IT IS OUR VIEW THAT THE SAME RESULT WOULD OBTAIN IF THE ORDERS DESIGNATED PENSACOLA AS THE FIRST PERMANENT DUTY STATION AS AN ENLISTED MAN.

NO ANSWER TO THE UNDER SECRETARY'S ALTERNATE QUESTION APPEARS TO BE REQUIRED.

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