B-149804, SEPTEMBER 28, 1962, 42 COMP. GEN. 183

B-149804, SEPTEMBER 28, 1962, 42 COMP. GEN. 183

TRANSPORTATION - DEPENDENTS - MILITARY PERSONNEL - DISLOCATION ALLOWANCES - VESSEL AND PORT CHANGES RESERVE MEMBERS OF THE NAVY WHO, WHEN THE HOME PORT OR HOME YARD OF THE VESSEL TO WHICH THEY ARE ASSIGNED IS CHANGED INCIDENT TO THE PROCESS OF RELEASING THEM FROM ACTIVE DUTY, MOVE THEIR DEPENDENTS TO ANOTHER LOCATION HAVE NOT HAD A CHANGE OF STATION WHICH BEARS ANY RELATION TO THE PERFORMANCE OF DUTY ABOARD THE VESSEL OR AT THE HOME PORT TO CONSTITUTE A PERMANENT CHANGE OF STATION UNDER SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 253 (C), FOR ENTITLEMENT TO DISLOCATION ALLOWANCES, AND THE FACT THAT THE MEMBERS WERE NOT RELEASED FROM DUTY UNTIL APPROXIMATELY 1 MONTH AFTER THE EFFECTIVE DATE OF THE CHANGE OF THE HOME PORT DOES NOT AFFORD ANY BASIS FOR THE CONCLUSION THAT THE CHANGE WAS FOR ANY PURPOSE OTHER THAN RELEASE OF THE MEMBERS FROM ACTIVE DUTY.

TO THE SECRETARY OF THE NAVY, SEPTEMBER 28, 1962:

REFERENCE IS MADE TO LETTER OF AUGUST 14, 1962, FROM THE UNDER SECRETARY OF THE NAVY REQUESTING A DECISION CONCERNING AN INTERPRETATION OF THE CURRENT REGULATIONS FOR THE PAYMENT OF DISLOCATION ALLOWANCE TO RESERVISTS IN THE CIRCUMSTANCES DESCRIBED IN THE LETTER. WE HAVE BEEN INFORMALLY ADVISED BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE THAT THE SUBMISSION HAS BEEN ASSIGNED PDTATAC CONTROL NO. 62-16.

THE UNDER SECRETARY'S LETTER STATES THAT IN OCTOBER 1961 HUNDREDS OF RESERVISTS WERE INVOLUNTARILY RECALLED TO ACTIVE DUTY IN CONNECTION WITH THE INTERNATIONAL SITUATION--- PRESUMABLY PURSUANT TO JOINT RESOLUTION OF AUGUST 1, 1961, PUBLIC LAW 87-117, 75 STAT. 242, 10 U.S.C. 263 NOTE. MANY OF THESE RESERVISTS WERE ORDERED UP AS GROUPS TO SHIPS, THE HOME PORTS OF WHICH WERE SCHEDULED TO BE CHANGED, AND OTHERS WERE ORDERED WITH SQUADRONS WHICH WERE ACTIVATED FOR THE EMERGENCY AND WERE LATER RE-HOME PORTED ELSEWHERE. UNDER PRESENT SCHEDULES, THESE RESERVISTS HAVE BEEN OR ARE BEING RELEASED TO INACTIVE DUTY. THE UNDER SECRETARY FURTHER STATES THAT INCIDENT TO PREPARING FOR THIS RELEASE, THE HOME PORTS OF THE RESERVE SHIPS AND THE PERMANENT STATIONS OF AIRCRAFT SQUADRONS WERE CHANGED BACK TO THEIR ORIGINAL LOCATIONS. IT IS STATED THAT THESE CHANGES TOOK PLACE IN ADVANCE OF THE ACTUAL DATE OF RELEASE OF THE MEMBERS; IN MOST CASES, THE INDIVIDUAL WAS NOT AT THE TIME OF THE CHANGE IN HOME PORT IN RECEIPT OF ORDERS RELEASING HIM TO INACTIVE DUTY. THE UNDER SECRETARY STATES, HOWEVER, THAT THE PROSPECTIVE RELEASE DATE HAD BEEN PROMULGATED. THE QUESTION OF ENTITLEMENT ARISES AS A RESULT OF THIS DUAL STATUS, NAMELY, CHANGE IN HOME PORT WITH IMPENDING RELEASE FORM ACTIVE DUTY. WE HAVE BEEN FURNISHED INFORMALLY A COPY OF CHIEF OF NAVAL OPERATIONS MESSAGE OF JUNE 8, 1962, TO THE VARIOUS NAVAL COMMANDS, ADVISING THEM OF THE EARLY RELEASE OF RESERVISTS ON AUGUST 1, 1962.

SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 253 (C), AUTHORIZES PAYMENT OF A DISLOCATION ALLOWANCE, UNDER REGULATIONS APPROVED BY THE SECRETARIES CONCERNED, TO A MEMBER OF THE UNIFORMED SERVICES WHOSE DEPENDENTS ARE AUTHORIZED TO MOVE AND ACTUALLY MOVE IN CONNECTION WITH HIS PERMANENT CHANGE OF STATION. THE THE SECTION DEFINES THE TERM "PERMANENT STATION" TO INCLUDE A DULY AUTHORIZED CHANGE IN HOME YARD OR HOME PORT OF A VESSEL AND DECLARES THAT SUCH A CHANGE SHALL BE DEEMED A PERMANENT CHANGE OF STATION. JOINT TRAVEL REGULATIONS ISSUED PURSUANT TO THAT AUTHORITY PROVIDE IN PARAGRAPH 9002-1 THAT, WITH CERTAIN STATED EXCEPTIONS, THE DISLOCATION ALLOWANCE IS PAYABLE TO A MEMBER WHENEVER DEPENDENTS "RELOCATE THEIR HOUSEHOLD" IN CONNECTION WITH A PERMANENT CHANGE OF STATION. THE PERTINENT STATUTORY PROVISIONS, HOWEVER, DENY PAYMENT OF THE DISLOCATION ALLOWANCE WHEN A MEMBER IS ORDERED FROM LAST DUTY STATION TO HOME AND IN CONSONANCE WITH SUCH RESTRICTION PARAGRAPH 9003-4 OF THE REGULATIONS PRECLUDES PAYMENT OF A DISLOCATION ALLOWANCE FOR TRAVEL PERFORMED FROM LAST DUTY STATION TO HOME OR TO THE PLACE FROM WHICH ORDERED TO ACTIVE DUTY UPON SEPARATION FROM THE SERVICE OR RELEASE FROM ACTIVE DUTY. ON THE BASIS THAT NO DUTY REQUIRED OF A MEMBER AT A SEPARATION CENTER, TRAVEL TO A SEPARATION CENTER FOR THE PURPOSE OF RELEASE FROM ACTIVE DUTY HAS NOT BEEN VIEWED AS A PERMANENT CHANGE OF STATION TRAVEL, EVEN THOUGH THE MEMBER'S ORDERS PURPORTED TO EFFECT A PERMANENT CHANGE OF STATION TO THE SEPARATION CENTER, BUT AS TRAVEL BEING PERFORMED FROM LAST DUTY STATION TO HOME FOR PURPOSES OF PARAGRAPHS 9003-4. SEE 38 COMP. GEN. 405.

THE UNDER SECRETARY'S LETTER CITES AS AN EXAMPLE OF THE PROBLEM THE CHANGE IN HOME PORT OF THE U.S.S. WATTS AS FOLLOWS:

A. MEMBERS WERE CALLED TO ACTIVE DUTY AS ITS RESERVE CREW ON OCTOBER 1, 1961, UPON ACTIVATION OF THE U.S.S. WATTS, WHICH HAD UNTIL THAT DATE BEEN ASSIGNED AS A RESERVE TRAINING VESSEL.

B. PERSONNEL WERE ORDERED TO THE U.S.S. WATTS, THEN AT BREMERTON, WASHINGTON, WHERE THE SHIP WAS UNDERGOING REPAIRS AT PUGET SOUND NAVAL SHIPYARD UNTIL DECEMBER 18, 1961.

C. THE HOME PORT OF THE U.S.S. WATTS WAS CHANGED FROM TACOMA, WASHINGTON, TO LONG BEACH, CALIFORNIA, ON DECEMBER 18, 1961.

D. EFFECTIVE JUNE 30, 1962, THE HOME PORT OF THE U.S.S. WATTS WAS CHANGED FROM LONG BEACH, CALIFORNIA, TO TACOMA, WASHINGTON.

E. ON AUGUST 1, 1962, INVOLUNTARILY RECALLED MEMBERS WERE RELEASED TO INACTIVE DUTY.

THE LETTER STATES THAT SOME OF THE MEMBERS CONCERNED MOVED THEIR DEPENDENTS FROM LONG BEACH, CALIFORNIA, TO TACOMA, WASHINGTON, INCIDENT TO THE CHANGE OF HOME PORT, AND LATER MOVED THEIR DEPENDENTS TO SOME OTHER LOCATION INCIDENT TO THEIR SEPARATION ORDERS. OTHERS, INCIDENT TO THE HOME PORT CHANGE, MOVED THEIR FAMILIES TO THEIR PERMANENT RESIDENCES IN THE TACOMA AREA AND NO FURTHER MOVE WAS MADE ON SEPARATION.

THE QUESTION PRESENTED IS WHETHER THE MEMBERS IN QUESTION ARE ENTITLED TO PAYMENT OF A DISLOCATION ALLOWANCE ON THE BASIS OF AN ORDERED CHANGE IN THE HOME PORT OF THE VESSEL WHEN SUCH CHANGE IS CONTEMPORANEOUS WITH AND FOR THE SOLE PURPOSE OF RELEASING RESERVISTS FROM ACTIVE DUTY, AND THE MOVEMENT OF DEPENDENTS TO THE NEW HOME PORT IS NOT FOR ANY PURPOSE OF ESTABLISHING A RESIDENCE AT THE NEW HOME PORT AS SUCH.

AS STATED ABOVE, THE LAW PROVIDES THAT IN THE CASE OF A MEMBER ASSIGNED TO A VESSEL A CHANGE IN THE HOME PORT OR THE HOME YARD OF THE VESSEL SHALL BE DEEMED A PERMANENT CHANGE OF STATION. THE TERM "PERMANENT STATION" WHERE TRAVEL AND TRANSPORTATION ALLOWANCES ARE CONCERNED, HOWEVER, HAS LONG BEEN UNDERSTOOD TO MEAN AND PRESENTLY IS DEFINED IN PARAGRAPH 1150-10 OF THE JOINT TRAVEL REGULATIONS AS THE PLACE TO WHICH A MEMBER IS ASSIGNED OR ATTACHED "FOR DUTY" OTHER THAN TEMPORARY DUTY AND IT SEEMS APPARENT THAT IT IS USED IN THAT CONNOTATION IN THE LAW. THUS, FOR THE CHANGE IN HOME PORT OR HOME YARD OF A VESSEL TO GIVE RISE TO A RIGHT TO TRAVEL AND TRANSPORTATION ALLOWANCES FOR DEPENDENTS TO THE NEW HOME PORT OR HOME YARD THE REGULATIONS CONTEMPLATE THAT THE CHANGE BEAR SOME RELATION TO THE PERFORMANCE OF DUTY BY MEMBERS ASSIGNED TO THE VESSEL, EITHER ABOARD THE VESSEL OR AT THE HOME PORT OR HOME YARD OF THE VESSEL. TO CONCLUDE OTHERWISE WOULD RENDER THE PROVISIONS OF PARAGRAPH 9003-4, AND THE STATUTORY PROVISIONS ON WHICH THAT PARAGRAPH 9003-4, AND THE STATUTORY PROVISIONS ON WHICH THAT PARAGRAPH IS BASED, MEANINGLESS IN THE CASE OF RESERVE MEMBERS OF THE NAVY ASSIGNED TO A VESSEL WHOSE HOME PORT OR HOME YARD IS CHANGED SOLELY AS A PART OF THE PROCESS OF RELEASING THEM FROM ACTIVE DUTY AND CONFER UPON THEM A BENEFIT NOT AUTHORIZED FOR OTHER RESERVE MEMBERS OF THE ARMED FORCES ASSIGNED TO A NON-DUTY STATION FOR THE PURPOSE OF RELEASE FROM ACTIVE DUTY. THE FACT THAT THE MEMBERS OF THE U.S.S. WATTS WERE NOT ACTUALLY RELEASED FROM ACTIVE DUTY UNTIL APPROXIMATELY 1 MONTH AFTER THE EFFECTIVE DATE OF THE CHANGE IN THE HOME PORT--- WE HAVE BEEN INFORMALLY ADVISED THAT THE U.S.S. WATTS ARRIVED AT TACOMA, WASHINGTON, JULY 17, 1962--- AFFORDS NO BASIS FOR CONCLUDING THAT THE CHANGE IN THE HOME POST WAS FOR ANY PURPOSE OTHER THAN RELEASE OF THE MEMBERS CONCERNED FROM ACTIVE DUTY.

FOR SUCH REASONS, WE CONCLUDE THAT THE RESERVE MEMBERS CONCERNED ARE NOT ENTITLED TO DISLOCATION ALLOWANCE ON THE BASIS OF THE CHANGE IN THE HOME PORT OF THE U.S.S. WATTS UNDER THE CIRCUMSTANCES RELATED, OR IN CASES OF OTHER SIMILAR HOME PORT OR HOME YARD CHANGES.