B-145315, APRIL 13, 1961, 40 COMP. GEN. 577

B-145315, APRIL 13, 1961, 40 COMP. GEN. 577

MILITARY PERSONNEL - TRANSPORTATION OF DEPENDENTS - PROMOTION TO ELIGIBLE GRADE WHILE OVERSEAS UNDER THE CAREER COMPENSATION ACT OF 1949 AND THE JOINT TRAVEL REGULATIONS, MEMBERS OF THE UNIFORMED SERVICES WHO, WHILE ASSIGNED TO RESTRICTED AREAS, ARE PROMOTED TO GRADES ENTITLING THEM TO TRANSPORTATION OF DEPENDENTS MAY BE ACCORDED THE SAME TRANSPORTATION BENEFITS UPON SUBSEQUENT PERMANENT CHANGE OF STATION TO UNRESTRICTED AREAS AS PERSONNEL WHO WERE ALREADY SERVING IN ELIGIBLE GRADES BEFORE LEAVING THE UNITED STATES; THEREFORE, SUCH PROMOTED MEMBERS MAY BE REIMBURSED FOR DEPENDENT TRAVEL UPON PERMANENT CHANGE OF STATION TO UNRESTRICTED AREAS EVEN THOUGH THEIR DEPENDENTS BEGIN TRAVEL FROM A PLACE TO WHICH THEY HAD NOT BEEN TRANSPORTED AT GOVERNMENT EXPENSE.

TO T. A. MOORE, DEPARTMENT OF THE NAVY, APRIL 13, 1961:

BY THIRD ENDORSEMENT DATED MARCH 13, 1961, CONTROL NO. 61-5, THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE FORWARDED YOUR LETTER OF FEBRUARY 6, 1961, WITH VOUCHER AND SUPPORTING PAPERS, REQUESTING AN ADVANCE DECISION WHETHER DARL EVANS, ACR2, USN, 236-88 35, IS ENTITLED TO REIMBURSEMENT FOR THE TRAVEL OF HIS DEPENDENTS (WIFE AND CHILD) FROM BUFFALO, NEW YORK, TO MIRAMAR, CALIFORNIA.

BY ORDERS EFFECTIVE JANUARY 15, 1959, THE MEMBER'S STATUS WITH THE ANTARCTIC SUPPORT ACTIVITIES, MCMURDO SOUND, ANTARCTICA, WAS CHANGED FROM TEMPORARY ADDITIONAL DUTY TO PERMANENT DUTY. ON JUNE 16, 1959, WHILE STILL IN ANTARCTICA HE WAS PROMOTED FROM THE RATING OF ACR3 TO ACR2, WHICH MADE HIM ELIGIBLE FOR DEPENDENT TRAVEL ALLOWANCES INCIDENT TO ANY SUBSEQUENT CHANGE OF DUTY STATION. ORDERS PREPARED SEPTEMBER 4, 1959, TRANSFERRED THE MEMBER FROM ANTARCTICA TO THE NAVAL AIR STATION, GLYNCO, BRUNSWICK, GEORGIA, FOR 15 WEEKS OF INSTRUCTION, AND AFTER TEMPORARY DUTY THERE AND AT THE NAVAL AIR STATIONS AT LAKEHURST, NEW JERSEY, AND OLATHE, KANSAS, UNDER SUBSEQUENT ORDERS, HE FINALLY REPORTED ON NOVEMBER 14, 1960, TO THE NAVAL AIR STATION, MIRAMAR, CALIFORNIA, UNDER A PERMANENT DUTY ASSIGNMENT. THE MEMBER HAS CERTIFIED THAT HE MOVED HIS FAMILY TO BUFFALO, NEW YORK, IN APRIL 1958, WHERE HE SAYS THEY REMAINED UNTIL NOVEMBER 1959. HIS CLAIM IS PRESENTED ON THE BASIS OF THEIR TRAVEL FROM BUFFALO TO MIRAMAR DURING THE PERIOD NOVEMBER 3, 1959, TO NOVEMBER 14, 1960.

DOUBT IS EXPRESSED WHETHER UNDER CURRENT LAWS AND REGULATIONS THE DECISION IN 24 COMP. GEN. 750 MAY BE APPLIED IN THIS AND SIMILAR CASES TO REIMBURSE THE MEMBER FOR THE TRAVEL OF HIS DEPENDENTS. IN THAT DECISION THERE WERE CONSIDERED THE WARTIME ACTS OF OCTOBER 14, 1942, 56 STAT. 786, AND NOVEMBER 28, 1943, 57 STAT. 593, WHICH PROVIDED FOR THE TRANSPORTATION OF DEPENDENTS OF ELIGIBLE NAVAL PERSONNEL TO SELECTED PLACES IN THE UNITED STATES INCIDENT TO ASSIGNMENTS OF SUCH PERSONNEL TO SEA DUTY OR TO RESTRICTED AREAS OVERSEAS, AND FOR THE FURTHER TRANSPORTATION OF THE DEPENDENTS TO UNRESTRICTED STATIONS IN THE UNITED STATES TO WHICH SUCH PERSONNEL WERE SUBSEQUENTLY ASSIGNED. IT WAS HELD THAT PERSONNEL PROMOTED WHILE SERVING OVERSEAS TO GRADES ENTITLING THEM TO TRANSPORTATION OF DEPENDENTS WERE ENTITLED, UPON RETURN TO THE UNITED STATES, TO TRANSPORTATION OF THEIR DEPENDENTS TO THEIR PERMANENT STATIONS FROM THE PLACES WHERE THEY HAD BEEN LEFT OR SENT WHEN SUCH PERSONNEL WERE ORDERED OVERSEAS, EVEN THOUGH THE DEPENDENTS HAD NOT BEEN TRANSPORTED TO A SELECTED POINT IN THE UNITED STATES AT GOVERNMENT EXPENSE. IT WAS RECOGNIZED THAT THE ACTS OF OCTOBER 14, 1942, AND NOVEMBER 28, 1943, DID NOT SPECIFICALLY COVER THE SITUATION OF PERSONNEL WHO WERE PROMOTED WHILE SERVING OVERSEAS TO GRADES ENTITLING THEM TO TRANSPORTATION OF DEPENDENTS. WE CONCLUDED, HOWEVER, THAT SUCH STATUTES REASONABLY MAY NOT BE VIEWED AS INTENDING THAT SUCH PERSONNEL UPON RETURN TO PERMANENT DUTY IN THE UNITED STATES, AND BEING THEN OTHERWISE ENTITLED TO TRANSPORTATION OF THEIR DEPENDENTS, SHOULD BE ACCORDED DIFFERENT TREATMENT IN HAVING THEIR DEPENDENTS TRANSPORTED TO THEIR PERMANENT STATIONS IN THIS COUNTRY THAN WAS PROVIDED IN LIKE SITUATIONS FOR PERSONNEL WHO WERE ALREADY SERVING IN SUCH GRADES BEFORE LEAVING THE COUNTRY.

SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 253, NOW IN EFFECT, PROVIDES THAT MEMBERS OF THE UNIFORMED SERVICES WHEN ORDERED TO MAKE A CHANGE OF PERMANENT STATION SHALL BE ENTITLED TO TRANSPORTATION OF DEPENDENTS UNDER SUCH CONDITIONS AND LIMITATIONS, AND TO AND FROM SUCH LOCATIONS, AS MAY BE PRESCRIBED BY THE SECRETARIES CONCERNED. SECTION 7005 OF THE JOINT TRAVEL REGULATIONS PROVIDES, ESSENTIALLY THE SAME AS THE WARTIME ACTS OF 1942 AND 1943, FOR THE TRANSPORTATION OF DEPENDENTS TO A DESIGNATED LOCATION WHEN THE MEMBER IS TRANSFERRED OR ASSIGNED TO A RESTRICTED AREA AND FROM SUCH DESIGNATED LOCATION UPON LATER TRANSFER TO AN UNRESTRICTED AREA. LIKE THE PRIOR STATUTES, THE REGULATION DOES NOT SPECIFICALLY COVER THE SITUATION OF PERSONNEL WHO ARE PROMOTED TO AN ELIGIBLE GRADE AFTER BEING TRANSFERRED TO A RESTRICTED AREA. HOWEVER, THERE IS NO EVIDENCE OF AN INTENT TO REDUCE THE RIGHTS OF MEMBERS TO REIMBURSEMENT FOR THE TRAVEL OF DEPENDENTS GRANTED UNDER THE EARLIER ACTS. THEREFORE, UNDER THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, AND THE JOINT TRAVEL REGULATIONS ISSUED PURSUANT THERETO, IT IS CONCLUDED THAT IN THIS AND SIMILAR CASES THE MEMBER AFTER RECEIVING AN ELIGIBLE GRADE IS ENTITLED TO REIMBURSEMENT IF OTHERWISE PROPER, THE SAME AS UNDER THE WARTIME ACTS, FOR DEPENDENT TRAVEL AS A RESULT OF SUBSEQUENT ORDERS CHANGING HIS STATION TO AN UNRESTRICTED AREA EVEN THOUGH THE DEPENDENTS COMMENCE THEIR TRAVEL FROM A PLACE TO WHICH THEY HAD NOT BEEN TRANSPORTED AT GOVERNMENT EXPENSE. CF. 38 COMP. GEN. 453. ACCORDINGLY, PAYMENT MAY BE MADE ON THE PRESENT VOUCHER, RETURNED HEREWITH, FOR THE DEPENDENTS' TRAVEL FROM BUFFALO, NEW YORK, TO MIRAMAR, CALIFORNIA, IF OTHERWISE CORRECT.