B-139704, AUGUST 6, 1959, 39 COMP. GEN. 76

B-139704, AUGUST 6, 1959, 39 COMP. GEN. 76

MILITARY PERSONNEL - TRANSPORTATION- DEPENDENTS - DISLOCATION ALLOWANCE COMMISSIONED AS OFFICERS THE TRANSPORTATION OF DEPENDENTS OF NAVAL AVIATION CADETS WHO ARE COMMISSIONED AS OFFICERS AND ORDERED TO ACTIVE DUTY IS CONSIDERED A MOVEMENT FROM HOME, OR FROM PLACE WHICH ORDERED TO ACTIVE DUTY, TO THE FIRST DUTY STATION SO THAT PAYMENT OF A DISLOCATION ALLOWANCE FOR SUCH TRAVEL IS SPECIFICALLY PROHIBITED BY PARAGRAPH 9003-3 OF THE JOINT TRAVEL REGULATIONS, AND THE FACT THAT AVIATION CADETS SERVE IN A SPECIAL ENLISTED GRADE IS NO DIFFERENT FROM SERVING IN ANY OTHER CAPACITY WHILE TRAINING FOR APPOINTMENT AS COMMISSIONED OFFICER FOR PAYMENT OF TRANSPORTATION OF DEPENDENTS OF NEWLY APPOINTED OFFICERS.

TO THE SECRETARY OF THE NAVY, AUGUST 6, 1959:

REFERENCE IS MADE TO LETTER OF MAY 7, 1959, FROM THE ASSISTANT SECRETARY OF THE NAVY, PDTATAC CONTROL NO. 59-17, QUESTIONING THE PROPRIETY OF AUDIT EXCEPTIONS TAKEN BY OUR NAVY AUDIT BRANCH TO DISLOCATION ALLOWANCE PAYMENTS MADE INCIDENT TO PERMANENT CHANGES OF STATION OF MEMBERS WHO WERE COMMISSIONED AS OFFICERS FOLLOWING AVIATION CADET STATUS. THE EXCEPTIONS WERE TAKEN ON THE BASIS THAT SUCH CHANGES OF STATION CONSTITUTED A MOVE FROM HOME TO FIRST STATION UPON APPOINTMENT, IN CONNECTION WITH WHICH PAYMENT OF A DISLOCATION ALLOWANCE IS PROHIBITED BY PARAGRAPH 9003-3, JOINT TRAVEL REGULATIONS.

SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 814, AS AMENDED BY SECTION 2 (12) OF THE CAREER INCENTIVE ACT OF 1955, 69 STAT. 21, 37 U.S.C. 253 (C), AUTHORIZES PAYMENT OF A DISLOCATION ALLOWANCE, UNDER REGULATIONS APPROVED BY THE SECRETARY CONCERNED, TO A MEMBER OF THE UNIFORMED SERVICES WHOSE DEPENDENTS ARE AUTHORIZED TO MOVE AND ACTUALLY DO MOVE IN CONNECTION WITH HIS PERMANENT CHANGE OF STATION, BUT PROVIDES FURTHER THAN A MEMBER IS NOT ENTITLED TO PAYMENT OF A DISLOCATION ALLOWANCE WHEN ORDERED FROM HOME TO FIRST DUTY STATION OR FROM LAST STATION TO HOME. PARAGRAPH 9003-3, JOINT TRAVEL REGULATIONS, PROVIDES THAT SUCH ALLOWANCE WILL NOT BE PAYABLE IN CONNECTION WITH PERMANENT CHANGE OF STATION TRAVEL PERFORMED "FROM HOME OR FROM PLACE FROM WHICH ORDERED TO ACTIVE DUTY TO FIRST PERMANENT DUTY STATION UPON APPOINTMENT, CALL TO ACTIVE DUTY, ENLISTMENT, REENLISTMENT, OR INDUCTION.'

PARAGRAPH 3003-1 OF THE JOINT TRAVEL REGULATIONS PROMULGATED PURSUANT TO THE AUTHORITY CONTAINED IN THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 802, 37 U.S.C. 231 NOTE, DEFINES THE TERM PERMANENT CHANGE OF STATION AS INCLUDING THE CHANGE FROM HOME, OR FROM THE PLACE FROM WHICH ORDERED TO ACTIVE DUTY, TO FIRST STATION UPON APPOINTMENT, CALL TO ACTIVE DUTY, ENLISTMENT, ETC. PARAGRAPH 7000 OF THESE REGULATIONS CITES PARAGRAPH 3003- 1 AND PROVIDES THAT, WITH CERTAIN STATED EXCEPTIONS, 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, OR BETWEEN POINTS OTHERWISE AUTHORIZED. ENLISTED MEMBERS OF THE UNIFORM SERVICES GENERALLY WHO QUALIFY FOR APPOINTMENT AS COMMISSIONED OFFICERS UPON SUCCESSFULLY COMPLETING OFFICER CANDIDATE SCHOOL OR SIMILAR TRAINING ARE DISCHARGED FROM THE ENLISTED STATUS HELD WHILE UNDER INSTRUCTION AND ARE APPOINTED AND ORDERED TO ACTIVE DUTY AS OFFICERS. THE REGULATIONS REFERRED TO ABOVE CONSISTENTLY HAVE BEEN INTERPRETED AS ENTITLING SUCH OFFICERS UPON APPOINTMENT AND ORDERS TO ACTIVE DUTY TO TRANSPORTATION OF THEIR DEPENDENTS AT GOVERNMENT EXPENSE FROM THE PLACE FROM WHICH ORDERED TO ACTIVE DUTY OR FROM HOME OF RECORD TO THE PERMANENT STATION. SINCE THIS AUTHORIZATION FOR MOVEMENT OF DEPENDENTS INCLUDES AUTHORITY FOR THEIR TRAVEL FROM HOME, IT IS CONSIDERED THAT PAYMENT OF A DISLOCATION ALLOWANCE INCIDENT TO SUCH MOVEMENT IS BARRED BY THE PROVISION OF SECTION 2 (12) OF THE ACT OF MARCH 31, 1955, 69 STAT. 18, 21, 37 U.S.C. 253 (C), EXPRESSLY BARRING PAYMENT OF THIS ALLOWANCE TO MEMBERS WHEN ORDERED FROM HOME TO FIRST DUTY STATION.

SECTION 6911 OF TITLE 10 OF THE U.S.C. DESIGNATES THE GRADE OF AVIATION CADET AS A SPECIAL ENLISTED GRADE IN THE NAVAL SERVICE AND PROVIDES FOR THE PROCUREMENT OF NAVAL AVIATION CADETS BY ENLISTMENT OF MALE CITIZENS IN SUCH SPECIAL ENLISTED GRADE AND BY THE TRANSFER OF QUALIFIED MEMBERS OF THE NAVAL SERVICE TO SUCH SPECIAL ENLISTED GRADE. IT FURTHER PROVIDES THAT AVIATION CADETS, PRESUMABLY THOSE WHO FAIL TO QUALIFY FOR COMMISSIONS BY SUCCESSFULLY COMPLETING THE COURSE OF CADET TRAINING, MAY BE TRANSFERRED TO ANOTHER ENLISTED GRADE OR RATING IN THE NAVAL SERVICE, RELEASED FROM ACTIVE DUTY, OR DISCHARGED. THUS, THE STATUS IN THE SPECIAL ENLISTED GRADE, WHETHER ACQUIRED BY ENLISTMENT FROM CIVIL LIFE OR BY TRANSFER, BEGINS AND ENDS WITH THE PERIOD OF AVIATION CADET TRAINING.

THE CAREER COMPENSATION ACT OF 1949, CLEARLY CONTEMPLATES ISSUANCE OF REGULATIONS TO ENTITLE AN OFFICER COMMISSIONED DIRECTLY FROM CIVIL LIFE AND ORDERED TO ACTIVE DUTY TO TRANSPORTATION OF HIS DEPENDENTS AND HOUSEHOLD EFFECTS FROM HIS HOME TO HIS DUTY STATION. THE FACT THAT A MEMBER HAS SERVED FOR A TIME IN SOME OTHER STATUS HAS NOT BEEN REGARDED A SUFFICIENT GROUND TO REQUIRE DISCRIMINATION AGAINST SUCH MEMBER BY DENYING HIM TRANSPORTATION OF HIS DEPENDENTS INCIDENT TO HIS APPOINTMENT AND ORDERS TO ACTIVE DUTY AS AN OFFICER. WE PERCEIVE NO MATERIAL DIFFERENCE BETWEEN SERVING IN A SPECIAL ENLISTED GRADE AND SERVING IN ANY OTHER CAPACITY WHILE IN TRAINING FOR APPOINTMENT AS A COMMISSIONED OFFICER SUCH AS WOULD WARRANT A CHANGE IN THE ESTABLISHED PROCEDURE OF FURNISHING A NEWLY APPOINTED OFFICER TRANSPORTATION FOR HIS DEPENDENTS FROM HOME, OR FROM PLACE FROM WHICH ORDERED TO ACTIVE DUTY, TO DUTY STATION. ON THIS BASIS, THE CONCLUSION APPEARS REQUIRED THAT PAYMENT OF THE DISLOCATION ALLOWANCE TO THE OFFICERS HERE INVOLVED WAS NOT AUTHORIZED AND REFUND OF SUCH PAYMENTS SHOULD BE MADE.