B-143272, AUGUST 5, 1960, 40 COMP. GEN. 77

B-143272, AUGUST 5, 1960, 40 COMP. GEN. 77

MILITARY PERSONNEL - TRANSPORTATION OF DEPENDENTS - ADVANCE PAYMENT THE AUTHORITY FOR ADVANCE TRAVEL PAYMENTS TO MEMBERS OF THE UNIFORMED SERVICES INCIDENT TO RELEASE FROM ACTIVE DUTY OR ACTIVE DUTY FOR TRAINING IN SECTION 201 (D) OF THE CAREER COMPENSATION ACT OF 1940, AS AMENDED BY THE ACT OF MAY 20, 1958, IS LIMITED TO THE PERSONAL TRAVEL OF THE MEMBERS, AND NOTHING IN THE LANGUAGE OF THE 1958 ACT OR ITS LEGISLATIVE HISTORY INDICATES IT WAS INTENDED TO PERMIT ADVANCE PAYMENT FOR THE TRAVEL OF THE MEMBER'S DEPENDENTS INCIDENT TO RELEASE FROM ACTIVE DUTY; THEREFORE, THE PAYMENT OF DEPENDENT TRAVEL ALLOWANCES PRIOR TO THE DEPARTURE OF THE MEMBER FROM HIS LAST DUTY STATION IS PRECLUDED BY THE ADVANCE PAYMENT PROHIBITION IN SECTION 3648, REVISED STATUTES, 31 U.S.C. 529.

TO THE SECRETARY OF THE AIR FORCE, AUGUST 5, 1960:

REFERENCE IS MADE TO LETTER OF JUNE 6, 1960, FROM THE ASSISTANT SECRETARY OF THE AIR FORCE, REQUESTING DECISION WHETHER FINAL PAYMENT MAY BE MADE TO MEMBERS OF THE UNIFORMED SERVICES FOR TRAVEL OF THEIR DEPENDENTS INCIDENT TO RELEASE FROM ACTIVE DUTY OR ACTIVE DUTY FOR TRAINING PRIOR TO DEPARTURE OF THE MEMBER FROM HIS LAST DUTY STATION, REGARDLESS OF WHETHER TRAVEL IS SUBSEQUENTLY PERFORMED. THE REQUEST WAS ASSIGNED PDTATAC CONTROL NO. 60- 22.

THE ASSISTANT SECRETARY POINTS OUT THAT SUBSECTION 4 OF SECTION 1 OF THE ACT OF MAY 20, 1958, 72 STAT. 124, AS AMENDED SECTION 201 (D) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 232 (D), TO INCLUDE THE FOLLOWING PROVISION:

ANY PAYMENTS ACCRUING UNDER ANY LAW TO ANY MEMBER OF A UNIFORMED SERVICE INCIDENT TO HIS RELEASE FROM ACTIVE DUTY OR ACTIVE DUTY FOR TRAINING OR FOR HIS RETURN HOME INCIDENT TO RELEASE FROM THAT DUTY, MAY BE PAID TO THAT MEMBER BEFORE HIS DEPARTURE FROM HIS LAST DUTY STATION, WHETHER OR NOT HE ACTUALLY PERFORMS THE TRAVEL INVOLVED.

THE ASSISTANT SECRETARY STATES THAT THE LANGUAGE OF THE PROVISION SEEMS BROAD ENOUGH TO COVER PAYMENT OF TRAVEL ALLOWANCES ACCRUING TO MEMBERS FOR THEIR DEPENDENTS INCIDENT TO THE RELEASE OF SUCH MEMBERS FROM ACTIVE DUTY AND ACTIVE DUTY FOR TRAINING AND THAT, ALTHOUGH THE LANGUAGE IS NOT ENTIRELY CLEAR, IT APPEARS REASONABLE TO CONCLUDE THAT IT WAS INTENDED THAT PAYMENT SHOULD BE MADE WHETHER OR NOT TRAVEL IS ACTUALLY PERFORMED BY DEPENDENTS, SINCE PAYMENT IS CLEARLY AUTHORIZED PRIOR TO DEPARTURE OF MEMBER FROM LAST DUTY STATION. IN URGING ADOPTION OF THIS VIEW HE STATES THAT IT WILL PROVIDE A MEANS OF SETTLING ACCOUNTS WHILE PAYEES ARE STILL UNDER MILITARY CONTROL AND WILL AVOID CONSIDERABLE ADMINISTRATIVE EXPENSE NOW ENCOUNTERED AS A RESULT OF EXTENSIVE CORRESPONDENCE AND ADJUSTMENT ACTIONS WHICH ARE NECESSARY AFTER FORMER MEMBERS HAVE RETURNED TO CIVILIAN LIFE.

SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 253 (C), PROVIDES THAT, UNDER SUCH CONDITIONS AND LIMITATIONS 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. PRIOR TO THE ENACTMENT OF THAT PROVISION THE TRANSPORTATION OF DEPENDENTS UPON NORMAL CHANGE OF PERMANENT STATION WAS GOVERNED BY SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 365, 366, 37 U.S.C. 112 (1946 USED.), WHICH PROVIDED FOR TRANSPORTATION IN KIND OR FOR THE PAYMENT OF COMMERCIAL TRANSPORTATION COSTS FOR WHICH TRANSPORTATION IN KIND WAS NOT FURNISHED "WHEN SUCH TRAVEL SHALL HAVE BEEN COMPLETED.' THERE ALSO WAS IN EFFECT TEMPORARY WARTIME LEGISLATION FOR TRAVEL OF DEPENDENTS WHICH, AS AMENDED BY THE ACT OF FEBRUARY 12, 1946, 60 STAT. 5, 50 U.S.C. 1012, AUTHORIZED THE PAYMENT OF COMMERCIAL TRANSPORTATION COSTS "WHEN SUCH TRAVEL SHALL HAVE BEEN COMPLETED.' THIS HAD BEEN THE RULE FOR MANY YEARS UNDER PRIOR LEGISLATION. SEE 33 COMP. GEN. 431, 432. IN LIEU OF TRANSPORTATION IN KIND FOR DEPENDENTS OF MEMBERS UNDER ANY PROVISION OF LAW, SECTION 2 OF THE ACT OF APRIL 27, 1946, 60 STAT. 126, 127 37 U.S.C. 112E (1946 USED.), PROVIDED FOR PAYMENT OF A FIXED RATE PER MILE FOR LAND TRAVEL "WHEN SUCH TRAVEL SHALL HAVE BEEN COMPLETED.' WHILE THAT SAME SECTION FURTHER PROVIDED AUTHORITY FOR PAYMENT IN ADVANCE OF ACTUAL TRAVEL BY DEPENDENTS, SUCH AUTHORITY WAS SPECIFICALLY LIMITED TO THE PERIOD BETWEEN THE DATE OF ENACTMENT AND JULY 1, 1946. THE LEGISLATIVE HISTORY OF THE CAREER COMPENSATION ACT OF 1949 SHOWS THAT SECTION 303 (C) WAS TO BE A REENACTMENT OF THE LAW THEN IN EFFECT, INCLUDING THE TEMPORARY LAW. SEE PAGE 1712, HEARINGS BEFORE SUBCOMMITTEE, COMMITTEE ON ARMED SERVICES, HOUSE OF REPRESENTATIVES, H.R. 2553, A BILL SIMILAR TO H.R. 5007, WHICH BECAME THE CAREER COMPENSATION ACT OF 1949. HENCE, IT SEEMS REASONABLY CLEAR THAT CONGRESS INTENDED THE TRAVEL ALLOWANCE PROVIDED FOR TRAVEL OF DEPENDENTS TO ACCRUE ONLY ON A REIMBURSABLE BASIS FOR THE COST OF TRAVEL ACTUALLY PERFORMED. IN LINE WITH SUCH CONGRESSIONAL INTENT THE JOINT TRAVEL REGULATIONS PROMULGATED PURSUANT TO SECTION 303 (C) OF THE CAREER COMPENSATION ACT PROVIDE (PARAGRAPH 7003-1) FOR PAYMENT TO THE MEMBER OF A MONETARY ALLOWANCE FOR TRAVEL "PERFORMED" BY HIS DEPENDENTS.

SECTION 201 (D) OF THE CAREER COMPENSATION ACT, PRIOR TO AND AS AMENDED BY THE ACT OF MAY 20, 1958, RELATES TO THE PAY AND ALLOWANCES ACCRUING UNDER THAT ACT TO A MILITARY MEMBER ON THE BASIS OF HIS OWN SERVICE, INCLUDING THOSE FOR HIS RETURN HOME INCIDENT TO HIS RELEASE FROM ACTIVE DUTY OR TRAINING DUTY. WHILE THE QUOTED AMENDATORY PROVISIONS OF THE ACT OF MAY 20, 1958, INCLUDE PAYMENTS ACCRUING TO THE MEMBER UNDER OTHER LAWS, INCIDENT TO HIS RELEASE FROM ACTIVE DUTY OR ACTIVE DUTY TRAINING, THE ADVANCE TRAVEL PAYMENT PROVISIONS ARE LIMITED BY THEIR OWN TERMS TO HIS PERSONAL TRAVEL AND WE FIND NOTHING IN THE LANGUAGE OF THE 1958 PROVISIONS OR THE LEGISLATIVE HISTORY PRECEDING THEIR ENACTMENT TO SUGGEST THAT ANYTHING MORE WAS INTENDED. IT IS OUR VIEW, THEREFORE, THAT THE ADVANCE PAYMENT PROHIBITION IN SECTION 3648 REVISED STATUTES, 31 U.S.C. 529, PRECLUDES PAYMENT OF THE TRAVEL ALLOWANCE PROVIDED FOR TRAVEL OF DEPENDENTS PRIOR TO THE PERFORMANCE OF THE TRAVEL FOR WHICH THE ALLOWANCE ACCRUES. COMPARE 39 COMP. GEN. 659. ACCORDINGLY, YOUR QUESTION IS ANSWERED IN THE NEGATIVE.