B-144302, DECEMBER 19, 1960, 40 COMP. GEN. 375

B-144302, DECEMBER 19, 1960, 40 COMP. GEN. 375

MILITARY PERSONNEL - TRAVEL AND TRANSPORTATION UPON RETIREMENT - TIME LIMITATIONS IN VIEW OF THE LONG-STANDING RULE THAT ONE YEAR IS A REASONABLE TIME FOR TRAVEL OF MEMBERS OF THE UNIFORMED SERVICES TO THEIR HOMES IN COMPLIANCE WITH RETIREMENT ORDERS AND THE CONGRESSIONAL RECOGNITION OF SUCH RULE, THE JOINT TRAVEL REGULATIONS MAY NOT BE AMENDED TO PROVIDE FOR AN EXTENSION OF THE ONE-YEAR LIMITATION SO THAT MEMBERS UPON RETIREMENT WHO DESIRE TO ACQUIRE EDUCATION AND TRAINING TO QUALIFY FOR CIVILIAN EMPLOYMENT MAY HAVE ADDITIONAL TIME TO SELECT A HOME AND TO PERFORM TRAVEL IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY FOR SUCH EXTENSION OF TIME.

TO THE SECRETARY OF THE AIR FORCE, DECEMBER 19, 1960:

REFERENCE IS MADE TO LETTER OF OCTOBER 10, 1960, FROM THE ASSISTANT SECRETARY OF THE AIR FORCE, PDTATAC CONTROL NO. 60-36, REQUESTING DECISION ON CERTAIN QUESTIONS RELATING TO THE PROPOSED EXTENSION OF THE ONE-YEAR TIME LIMITATION FOR THE SELECTION OF A HOME BY MEMBERS OF THE UNIFORMED SERVICES UPON RETIREMENT, IN THE CIRCUMSTANCES DESCRIBED BELOW.

THE LETTER OF THE ASSISTANT SECRETARY STATES THAT MANY MEMBERS OF THE UNIFORMED SERVICES ARE BEING FORCED INTO UNEXPECTED EARLY RETIREMENT; THAT FREQUENTLY THESE MEMBERS, IN READJUSTING THEIR AFFAIRS PREPARATORY TO RETURNING TO CIVILIAN LIFE, FIND IT NECESSARY TO ACQUIRE ADDITIONAL EDUCATION OR TRAINING IN ORDER TO QUALIFY FOR ACCEPTABLE CIVILIAN EMPLOYMENT; AND THAT WHEN SCHOOLING, TRAINING, OR OTHER READJUSTMENT PERIODS REQUIRE MORE THAN A YEAR, THESE MEMBERS MAY BE UNABLE TO SELECT A HOME AND TRAVEL THERETO WITHIN ONE YEAR AFTER RETIREMENT AS IS NOW GENERALLY REQUIRED BY THE JOINT TRAVEL REGULATIONS, IN ORDER TO BE ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES.

IT IS FURTHER STATED THAT THE REQUIREMENT FOR TRAVEL WITHIN ONE YEAR AFTER RETIREMENT IS NOT CONTAINED IN THE CAREER COMPENSATION ACT OF 1949, AS AMENDED; THAT, AS STATED IN 8 COMP. GEN. 327 AT PAGE 330, THE GENESIS OF THE ONE-YEAR RULE IS BASED ON RULINGS OF 1906 AND PRIOR YEARS BY THE ACCOUNTING OFFICERS OF THE GOVERNMENT TO THE EFFECT THAT SUCH TRAVEL MUST BE PERFORMED WITHIN A REASONABLE TIME AFTER RETIREMENT, AND THAT ONE YEAR WAS CONSIDERED TO BE A REASONABLE TIME FOR SUCH TRAVEL; THAT THE ONE-YEAR RULE HAD ITS BEGINNING AT A TIME WHEN THERE WAS NO SPECIFIC AUTHORITY FOR TRAVEL TO A SELECTED HOME UPON RETIREMENT; THAT THE TRAVEL WAS PERFORMED PURSUANT TO ORDERS ISSUED PRIOR TO OR CONCURRENTLY WITH RETIREMENT AND, LIKE ORDERS DIRECTING A PERMANENT CHANGE OF STATION, WAS REQUIRED TO BE COMPLETED WITHIN A REASONABLE TIME; THAT THE CAREER COMPENSATION ACT SPECIFICALLY PROVIDES FOR TRAVEL TO A SELECTED HOME UPON RETIREMENT AND FURTHER STATES THAT THE SECRETARIES CONCERNED MAY PRESCRIBE CONDITIONS UNDER WHICH TRAVEL AND TRANSPORTATION ALLOWANCES SHALL BE AUTHORIZED; AND THAT IT APPEARS THAT THE SECRETARIES ARE RESPONSIBLE FOR DETERMINING WHAT IS A REASONABLE TIME FOR PERFORMING TRAVEL TO A SELECTED HOME UPON RETIREMENT, DEPENDING ON THE CIRCUMSTANCES WHICH NECESSITATE DELAY.

IN VIEW OF WHAT IS SET FORTH ABOVE, A DECISION IS REQUESTED ON THE FOLLOWING QUESTIONS: ,WHETHER IT WOULD BE WITHIN THE SPIRIT AND INTENT OF THE LAW TO AMEND THE JOINT TRAVEL REGULATIONS TO PROVIDE THAT A MEMBER ENTITLED TO SELECT A HOME AFTER TERMINATION OF ACTIVE DUTY FOR THE PURPOSES OF RECEIVING TRAVEL AND TRANSPORTATION ALLOWANCES, MAY SELECT SUCH A HOME AND COMPLETE TRAVEL THERETO WITHIN TWO YEARS, OR, WHEN A MEMBER IS CONFINED IN, OR UNDERGOING TREATMENT AT, A HOSPITAL AT TIME OF TERMINATION OF ACTIVE DUTY, WITHIN SUCH LONGER PERIOD AS MAY BE APPROVED BY THE SECRETARY OF THE SERVICE CONCERNED.'

IF THE ANSWER TO THE PREVIOUS QUESTION IS NEGATIVE OUR OPINION IS REQUESTED AS TO "WHETHER THE JOINT TRAVEL REGULATIONS MAY BE AMENDED TO AUTHORIZE AN EXTENSION OF THE ONE-YEAR TIME LIMIT IN ANY CASE THAT MAY BE APPROVED BY THE SECRETARY CONCERNED OR HIS DESIGNATED REPRESENTATIVE.'

SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813, AS AMENDED, 37 U.S.C. 253 (A), PROVIDES IN PART THAT, UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, MEMBERS OF THE UNIFORMED SERVICES SHALL BE ENTITLED TO RECEIVE TRAVEL AND TRANSPORTATION ALLOWANCES FOR TRAVEL PERFORMED OR TO BE PERFORMED UNDER COMPETENT ORDERS UPON SEPARATION FROM THE SERVICE, PLACEMENT UPON THE TEMPORARY DISABILITY RETIRED LIST, RELEASE FROM ACTIVE DUTY, OR RETIREMENT, FROM LAST DUTY STATION TO HOME OR TO THE PLACE FROM WHICH ORDERED TO ACTIVE DUTY. THAT SECTION FURTHER PROVIDES THAT, UNDER UNIFORMED REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, A MEMBER OF THE UNIFORMED SERVICES WHO IS (1) RETIRED FOR PHYSICAL DISABILITY OR PLACED UPON THE TEMPORARY DISABILITY RETIRED LIST; OR (2) IS RETIRED WITH PAY FOR ANY OTHER REASON, OR DISCHARGED WITH SEVERANCE PAY, IMMEDIATELY FOLLOWING AT LEAST EIGHT YEARS OF CONTINUOUS ACTIVE DUTY (NO SINGLE BREAK THEREIN OR MORE THAN 90 DAYS), MAY SELECT HIS HOME FOR THE PURPOSE OF THE TRAVEL AND TRANSPORTATION ALLOWANCES PAYABLE UNDER THAT SECTION.

CURRENTLY, THE JOINT TRAVEL REGULATIONS PROMULGATED PURSUANT TO THE 1949 ACT PROVIDE (PARAGRAPH 4158-1A) THAT UPON RETIREMENT A MEMBER MAY SELECT A HOME AND RECEIVE TRAVEL ALLOWANCES THERETO FROM HIS LAST DUTY STATION, PROVIDED TRAVEL TO SUCH HOME IS COMPLETED WITHIN ONE YEAR AFTER TERMINATION OF ACTIVE DUTY, OR (PARAGRAPH 4158-2) IF UNDERGOING TREATMENT ON THAT DATE AT A GOVERNMENT HOSPITAL SUCH TRAVEL IS COMPLETED WITHIN ONE YEAR AFTER DISCHARGE FROM THE HOSPITAL OR TWO YEARS AFTER TERMINATION FROM ACTIVE SERVICE, WHICHEVER IS EARLIER.

ON THE BASIS THAT AN ORDER TO AN OFFICER ON RETIREMENT TO PROCEED TO HIS HOME WAS A MILITARY ORDER TO BE OBEYED AT ONCE, OR WITHIN A REASONABLE TIME AND, HAVING IN MIND ITS PUBLIC BUSINESS CHARACTER, IT LONG HAD BEEN HELD BY THE COURTS AND THE ACCOUNTING OFFICERS THAT UNLESS IT WAS OBEYED WITHIN A REASONABLE TIME, IT LOST ITS CHARACTER AS AN ORDER TO TRAVEL ON PUBLIC BUSINESS AND, IF TRAVEL WAS SUBSEQUENTLY PERFORMED, IT WAS NOT TRAVEL UNDER THE ORDER FOR MILEAGE PURPOSES. WHAT WAS A REASONABLE TIME DEPENDED UPON THE CIRCUMSTANCES IN EACH CASE. THE "REASONABLE TIME" RELATED TO OBEDIENCE TO THE ORDER AND NOT THE CIRCUMSTANCES OF THE OFFICER. ON THE BASIS OF SUCH DECISIONS, THE WAR DEPARTMENT IN 1916 FORMULATED THE RULE THAT UNLESS TRAVEL TO HOME WAS PERFORMED WITHIN ONE YEAR AFTER RETIREMENT, IT WAS NOT TO BE CONSIDERED AS HAVING BEEN PERFORMED WITHIN A REASONABLE TIME AND MILEAGE WAS NOT PAYABLE. SEE 4 COMP. GEN. 954 AND 8 COMP. GEN. 327. EXCEPT IN WARTIME CASES WHERE IMMEDIATE COMPLIANCE WITH THE ORDER WAS PREVENTED BY THE EXISTING TRAVEL CONDITIONS, THE ONE-YEAR RULE SO FORMULATED HAS UNIFORMLY BEEN APPLIED SINCE 1916. 24 COMP. GEN. 291, 298, AND COMPARE 36 COMP. GEN. 781. EVEN IN WARTIME CASES, THE MEMBERS WERE REQUIRED TO PERFORM THE TRAVEL WITHIN A YEAR AFTER THE END OF THE WAR.

AS POINTED OUT IN THE ASSISTANT SECRETARY'S LETTER, SECTION 303 (A) OF THE 1949 ACT, AS AMENDED, CONTAINS NO SPECIFIC REQUIREMENT THAT TRAVEL OF A MEMBER TO A SELECTED HOME MUST BE PERFORMED WITHIN ONE YEAR AFTER RETIREMENT, IN ORDER TO ENTITLE HIM TO TRAVEL AND TRANSPORTATION ALLOWANCES. HOWEVER, SECTION 303 (A) PROVIDES THE TRAVEL ALLOWANCES ONLY FOR TRAVEL ON PUBLIC BUSINESS AND THE FACT THAT THE STATUTE CONTAINS NO EXPRESS LIMITATION AS TO THE TIME WITHIN WHICH TRAVEL MUST BE PERFORMED BY A MEMBER TO A SELECTED HOME UPON RETIREMENT DOES NOT CHANGE THE CHARACTER OF THE RETIREMENT ORDER AS A MILITARY ORDER TO TRAVEL ON PUBLIC BUSINESS WHICH IS TO BE COMPLIED WITH AT ONCE, OR WITHIN A REASONABLE TIME, IF IT IS TO RETAIN ITS PUBLIC BUSINESS ASPECT FOR THE PAYMENT OF THE ALLOWANCES PROVIDED FOR MEMBERS TRAVELING ON PUBLIC BUSINESS. THE FUNDAMENTAL REASON FOR PROVIDING TRANSPORTATION AT GOVERNMENT EXPENSE FOR MEMBERS OF THE UNIFORMED SERVICES UPON RETIREMENT IS TO INSURE THEIR TRAVEL FROM LAST DUTY STATION TO HOME AND, HENCE, SUCH TRAVEL MAY NOT BE TREATED AS UNRELATED TO THE RETIREMENT OR AS GIVING RISE TO A RIGHT TO TRANSPORTATION AT GOVERNMENT EXPENSE INDEPENDENTLY OF THE RETIREMENT ORDERS.

IN SUCH CONNECTION, IT IS TO BE NOTED THAT SECTION 303 (B) OF THE 1949 ACT, AS AMENDED, 37 U.S.C. 253 (C), PROVIDES THAT "NONTEMPORARY STORAGE OF BAGGAGE AND HOUSEHOLD EFFECTS SHALL NOT BE AUTHORIZED FOR A PERIOD LONGER THAN ONE YEAR FROM THE DATE MEMBERS ARE SEPARATED FROM THE SERVICE, EXCEPT A LONGER PERIOD MAY BE AUTHORIZED BY REGULATIONS PROMULGATED BY THE RESPECTIVE SECRETARIES WHERE A MEMBER IS CONFINED IN A HOSPITAL OR IN ITS VICINITY UNDERGOING MEDICAL TREATMENT ON THE DATE OF SEPARATION.' AS TO THE EXCEPTION MADE BY SUCH PROVISIONS, IT LONG HAS BEEN RECOGNIZED THAT MEMBER UNDERGOING TREATMENT IN A HOSPITAL ON THE DATE OF HIS RETIREMENT IS, BECAUSE OF CONDITIONS BEYOND HIS CONTROL, UNABLE TO SELECT A HOME AND TRAVEL THERETO UNTIL HIS DISCHARGE FROM THE HOSPITAL. IN SUCH CIRCUMSTANCES, SERVICE REGULATIONS LONG HAVE APPLIED THE ONE-YEAR RULE TO DATE OF RELEASE FROM HOSPITAL OR MEDICAL TREATMENT IN THE CASE OF REGULARS, AND THE JOINT TRAVEL REGULATIONS (PARAGRAPH 4158-2) PRESENTLY AUTHORIZE ALL SUCH MEMBERS TO SELECT A HOME AND RECEIVE TRAVEL ALLOWANCES THERETO PROVIDED TRAVEL TO THE SELECTED HOME IS COMPLETED WITHIN ONE YEAR AFTER DISCHARGE FROM THE HOSPITAL OR TWO YEARS AFTER TERMINATION OF ACTIVE SERVICE, WHICHEVER IS EARLIER. SUCH REGULATIONS, HOWEVER, ARE BASED UPON SPECIFIC STATUTORY PROVISIONS TO SUCH EFFECT, APPARENTLY REFLECTING A CONGRESSIONAL VIEW THAT THE ONE-YEAR PERIOD FOR SELECTION OF A HOME SHOULD NOT BEGIN TO RUN IN THE CASE OF ANY DISABLED MEMBER UNTIL HE IS PHYSICALLY ABLE TO COMPLY WITH HIS ORDERS. SEE 35 COMP. GEN. 331. SUCH PROVISIONS WOULD APPEAR TO CONSTITUTE CONGRESSIONAL RECOGNITION THAT GENERALLY UNLESS THE DUTY ENJOINED A MILITARY ORDER IS PERFORMED WITHIN ONE YEAR THE ORDER HAS NOT BEEN COMPLIED WITH IN A REASONABLE TIME.

IT MAY BE, AS SUGGESTED IN THE LETTER OF THE ASSISTANT SECRETARY, THAT FREQUENTLY MEMBERS UPON RETIREMENT DESIRE TO ACQUIRE ADDITIONAL EDUCATION OR TRAINING IN ORDER TO QUALIFY FOR ACCEPTABLE CIVILIAN EMPLOYMENT. SUCH MATTERS, HOWEVER, DO NOT RELATE ANY IMPEDIMENT PREVENTING OBEDIENCE OF THEIR ORDERS BUT CONCERN THE PERSONAL CIRCUMSTANCES OF THE MEMBERS.

IN VIEW OF THE LONG-STANDING AND UNIFORM ADMINISTRATIVE VIEW THAT ONE YEAR IS A REASONABLE TIME FOR PERFORMING TRAVEL TO HOME IN COMPLIANCE WITH A MILITARY RETIREMENT ORDER UNLESS SUCH TRAVEL IS PREVENTED BY CIRCUMSTANCES BEYOND THE CONTROL OF THE MEMBER AND THE APPARENT LEGISLATIVE RECOGNITION OF THAT VIEW, THE CONCLUSION IS REQUIRED THAT THE EXTENSION OF THE ONE-YEAR RULE AS PROPOSED IN THE LETTER OF THE ASSISTANT SECRETARY MAY NOT BE ACCOMPLISHED IN THE ABSENCE OF LEGISLATION SO PROVIDING. THE SUBMITTED QUESTIONS ARE ANSWERED IN THE NEGATIVE.