B-134844, APRIL 30, 1958, 37 COMP. GEN. 715

B-134844, APRIL 30, 1958, 37 COMP. GEN. 715

MILITARY PERSONNEL - TRANSPORTATION - DEPENDENTS AND HOUSEHOLD EFFECTS - TRAVEL IN EXCESS OF DISTANCE FROM OLD TO NEW STATION UNDER THE LAW, TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS OF MEMBERS OF THE UNIFORMED SERVICES INCIDENT TO AN ORDERED CHANGE OF STATION IS LIMITED TO THE DISTANCE FROM THE OLD TO THE NEW PERMANENT STATION, AND, IN THE ABSENCE OF SPECIFIC STATUTORY PROVISION, THERE IS NO AUTHORITY FOR THE PROMULGATION OF REGULATIONS WHICH WOULD AUTHORIZE EXCESS TRANSPORTATION OF HOUSEHOLD EFFECTS OR OF DEPENDENTS OF PERSONNEL FORMERLY IN ELIGIBLE GRADES OR NEWLY ACQUIRED DEPENDENTS OF ELIGIBLE PERSONNEL BASED ON AN ORDERED PERMANENT CHANGE OF STATION ALONE, WHETHER THE STATIONS INVOLVED ARE OVERSEAS OR IN THE UNITED STATES.

TO THE SECRETARY OF THE NAVY, APRIL 30, 1958:

FURTHER REFERENCE IS MADE TO LETTER OF JANUARY 7, 1958, FROM THE ASSISTANT SECRETARY OF THE NAVY ( PERSONNEL AND RESERVE FORCES), REQUESTING A DECISION AS TO WHETHER THE SECRETARIES CONCERNED MAY PRESCRIBE REGULATIONS AUTHORIZING TRAVEL OF DEPENDENTS AND TRANSPORTATION OF HOUSEHOLD EFFECTS AT GOVERNMENT EXPENSE OF MEMBERS OF THE UNIFORMED SERVICES, IN THE CIRCUMSTANCES DESCRIBED IN THE LETTER AS FOLLOWS:

ORDINARILY THE REGULATIONS HAVE LIMITED TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD GOODS TO THE DISTANCE BETWEEN PERMANENT STATIONS. IN CASES WHERE A MEMBER MAY HAVE SEVERAL MILITARY STATIONS PRIOR TO ACQUIRING THE NECESSARY GRADE OR SERVICE FOR TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD GOODS, QUESTION ARISES AS TO WHETHER A GREATER ENTITLEMENT THAN THAT ACCRUING ON THE CURRENT PERMANENT CHANGE OF STATION INVOLVED MAY LAWFULLY BE PRESCRIBED UNDER THE SEEMINGLY BROAD AUTHORITY UNDERSCORED IN THE ABOVE QUOTED STATUTE.

THE SITUATIONS NOW INVOLVED AND THE ENTITLEMENT REQUIRED IN EACH SUCH SITUATION ARE AS FOLLOWS:

(A) A MEMBER NOT ACCOMPANIED BY HIS DEPENDENTS ACQUIRES THE NECESSARY GRADE OR SERVICE FOR TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD GOODS WHILE SERVING AT AN OVERSEAS DUTY STATION. HE IS SUBSEQUENTLY TRANSFERRED ON A PERMANENT CHANGE OF STATION TO ANOTHER OVERSEAS DUTY STATION.

QUAERE: WOULD EXISTING STATUTES PERMIT THE ISSUANCE OF REGULATIONS AUTHORIZING TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD GOODS FROM THE PLACE DEPENDENTS AND HOUSEHOLD GOODS WERE LOCATED UPON RECEIPT OF SUCH PERMANENT CHANGE OF STATION ORDERS TO THE MEMBER'S NEW PERMANENT DUTY STATION?

(B) A MEMBER NOT ACCOMPANIED BY HIS DEPENDENTS ACQUIRES THE NECESSARY GRADE OR SERVICE FOR TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD GOODS WHILE SERVING AT A DUTY STATION WITHIN THE UNITED STATES. HE IS SUBSEQUENTLY TRANSFERRED ON A PERMANENT CHANGE OF STATION TO ANOTHER STATION WITHIN OR OUTSIDE THE UNITED STATES.

QUAERE: WOULD EXISTING STATUTES PERMIT THE ISSUANCE OF REGULATIONS AUTHORIZING TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD GOODS FROM THE PLACE DEPENDENTS AND HOUSEHOLD GOODS WERE LOCATED UPON RECEIPT OF SUCH PERMANENT CHANGE OF STATION ORDERS TO THE MEMBER'S NEW PERMANENT DUTY STATION?

(C) QUAERE: WOULD THE REPLIES TO (A) AND (B) DIFFER IF THE MEMBER INVOLVED WERE OF AN APPROPRIATE GRADE BUT ACQUIRED DEPENDENTS PRIOR TO SUCH A TRANSFER?

SUBSECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 814, 37 U.S.C. 253 (C), PROVIDES IN PART THAT UNDER SUCH CONDITIONS AND LIMITATIONS AND FOR SUCH RANKS, GRADES, OR RATINGS AND TO AND FROM SUCH LOCATIONS AS MAY BE PRESCRIBED BY THE SECRETARIES CONCERNED, MEMBERS OF THE UNIFORMED SERVICES WHEN ORDERED TO MAKE A CHANGE OF PERMANENT STATION SHALL BE ENTITLED TO TRANSPORTATION IN KIND FOR DEPENDENTS, OR TO REIMBURSEMENT THEREFOR, OR TO A MONETARY ALLOWANCE IN LIEU OF SUCH TRANSPORTATION IN KIND. IT IS FURTHER PROVIDED THAT IN CONNECTION WITH A CHANGE OF STATION (WHETHER TEMPORARY OR PERMANENT) MEMBERS SHALL BE ENTITLED TO TRANSPORTATION (INCLUDING PACKING, CRATING, DRAYAGE, TEMPORARY STORAGE, AND UNPACKING) OF BAGGAGE AND HOUSEHOLD EFFECTS, OR REIMBURSEMENT THEREFOR, TO AND FROM SUCH LOCATIONS AND WITHIN SUCH WEIGHT ALLOWANCES AS MAY BE PRESCRIBED BY THE SECRETARIES.

THE PURPOSE OF THE STATUTES AUTHORIZING THE TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS AT GOVERNMENT EXPENSE IS TO RELIEVE A MEMBER OF THE ARMED FORCES OF THE BURDEN OF PERSONALLY DEFRAYING THE EXPENSES OF MOVING HIS HOUSEHOLD BETWEEN STATIONS WHEN SUCH MOVE IS MADE NECESSARY BY AN ORDERED CHANGE OF STATION. PARAGRAPH 5 OF SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942, EFFECTIVE JUNE 16, 1942, 56 STAT. 365, 37 U.S.C. 112 (1946 USED.), WHICH INCORPORATES THE LANGUAGE PREVIOUSLY APPEARING IN SECTION 12 OF THE ACT OF MAY 18, 1920, 41 STAT. 604, PROVIDED THAT---

WHEN ANY OFFICER, WARRANT OFFICER, OR ENLISTED MAN ABOVE THE FOURTH GRADE, HAVING DEPENDENTS AS DEFINED IN SECTION 4 HEREOF, IS ORDERED TO MAKE A PERMANENT CHANGE OF STATION, THE UNITED STATES SHALL FURNISH TRANSPORTATION IN KIND * * * TO HIS NEW STATION FOR SUCH DEPENDENTS. * * * THAT THE PERSONNEL OF ALL THE SERVICES MENTIONED IN THE TITLE OF THIS ACT SHALL HAVE THE BENEFIT OF ALL EXISTING LAWS APPLYING TO THE ARMY AND THE MARINE CORPS FOR THE TRANSPORTATION OF HOUSEHOLD EFFECTS: * * * THAT IN LIEU OF TRANSPORTATION IN KIND AUTHORIZED BY SECTION FOR DEPENDENTS, THE PRESIDENT MAY AUTHORIZE THE PAYMENT IN MONEY * * * EQUAL TO SUCH COMMERCIAL TRANSPORTATION * * * WHEN SUCH TRAVEL SHALL HAVE BEEN COMPLETED.

UNDER THE PROVISIONS OF THESE PRIOR STATUTES IT CONSISTENTLY WAS HELD NOT ONLY THAT THE TRANSPORTATION AUTHORIZED WAS LIMITED TO SUCH PERSONS AS WERE DEPENDENT UPON THE MEMBER ON THE EFFECTIVE DATE OF THE ORDERS TO MAKE A PERMANENT CHANGE OF STATION, AND TO THE DISTANCE BETWEEN THE OLD AND THE NEW PERMANENT STATION, BUT THAT THE TRAVEL PERFORMED MUST HAVE BEEN INCIDENT TO THE ORDERED CHANGE OF STATION. 27 COMP. DEC. 510; 2 COMP. GEN. 567; ID. 712; 4 ID. 438; 24 ID. 927, AND 26 ID. 339. WHILE THE LANGUAGE USED IN THE EARLIER STATUTES WAS SOMEWHAT DIFFERENT FROM THAT USED IN SUBSECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, THE CHANGES MADE DO NOT EVIDENCE AN INTENT TO CHANGE OR INCREASE THE RIGHTS MEMBERS WERE GRANTED UNDER THE PRIOR LEGISLATION, AND NO EVIDENCE OF SUCH INTENT HAS BEEN FOUND IN THE LEGISLATIVE HISTORY OF THE 1949 ACT. AS TO THE PROPOSED PROVISIONS WHICH BECAME SUBSECTION 303 (C) IT WAS STATED, PAGE 1712 OF THE HOUSE HEARINGS ON H.R. 2553, 81ST CONGRESS, THAT "THAT IS SUBSTANTIALLY WHAT WE HAVE IN THE PRESENT LAW," AND ON PAGE 281 OF THE SENATE HEARINGS ON H.R. 5007, 81ST CONGRESS, THESE SAME PROVISIONS WERE PASSED OVER WITH AN INDICATION THAT THEY WOULD EFFECT NO CHANGE IN EXISTING LAW. HENCE, WE HAVE HELD THAT THE PROVISIONS OF SUBSECTION 303 (C) OF THE CAREER COMPENSATION ACT HERE INVOLVED, WHILE NOT EXPRESSLY SO RESTRICTED, MAY NOT BE CONSIDERED AS GRANTING TRANSPORTATION FOR DEPENDENTS AT GOVERNMENT EXPENSE FOR VISITS OR MERE PERSONAL TRAVEL, 33 COMP. GEN. 431; THAT THEY AFFORD NO LEGAL BASIS FOR REIMBURSING A MEMBER OF THE UNIFORMED SERVICES FOR TRANSPORTATION OF DEPENDENTS ACQUIRED SUBSEQUENT TO THE EFFECTIVE DATE OF ORDERS ASSIGNING THE MEMBER TO A NEW PERMANENT STATION, 35 COMP. GEN. 673; AND THAT, AS TO MEMBERS INELIGIBLE FOR TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS WHEN ORDERED TO MAKE A PERMANENT CHANGE OF STATION, THEY AFFORD NO LEGAL BASIS FOR AUTHORIZING THE TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS TO A CURRENT OVERSEAS STATION WHERE A MEMBER MEETS THE ELIGIBILITY CONDITIONS BY ATTAINING THE NECESSARY GRADE OR COMPLETING THE REQUIRED SERVICE. COMP. GEN. 670.

SIMILARLY, SINCE IT WOULD NOT APPEAR, IN THE ABSENCE OF SOME SPECIFIC STATUTORY PROVISION, THAT TRAVEL OF DEPENDENTS, OR SHIPMENT OF HOUSEHOLD EFFECTS, IN EXCESS OF THE DISTANCE FROM THE OLD TO THE NEW PERMANENT STATION PROPERLY MAY BE REGARDED AS INCIDENT TO THE ORDERED CHANGE OF STATION WITHIN THE MEANING THE APPLICABLE STATUTE, IT MUST BE CONCLUDED THAT THERE IS NO AUTHORITY FOR THE PROMULGATION OF REGULATIONS AUTHORIZING SUCH EXCESS TRANSPORTATION OF HOUSEHOLD EFFECTS, OR OF DEPENDENTS OF THERETOFORE INELIGIBLE PERSONNEL, OR NEWLY ACQUIRED DEPENDENTS OF ELIGIBLE PERSONNEL, BASED UPON AN ORDERED PERMANENT CHANGE OF STATION ALONE, WHETHER THE STATIONS INVOLVED ARE OVERSEAS OR IN THE UNITED STATES.