B-154270, JULY 17, 1964, 44 COMP. GEN. 15

B-154270, JULY 17, 1964, 44 COMP. GEN. 15

TRAVEL EXPENSES - MILITARY PERSONNEL - RETIREMENT - TO SELECTED HOME - TIME LIMITATION A PROPOSED CHANGE TO THE JOINT TRAVEL REGULATIONS TO EXTEND THE 1 YEAR PERIOD IN WHICH MEMBERS OF THE UNIFORMED SERVICES MAY SELECT A HOME ON RELEASE FROM ACTIVE DUTY OR RETIREMENT TO COVER CASES WHERE THE MEMBER IS HOSPITALIZED OR UNDERGOES MEDICAL TREATMENT DURING THE 1-YEAR PERIOD AFTER RELEASE BUT BEFORE COMPLETION OF TRAVEL, WHEN THE LONGSTANDING ADMINISTRATIVE PRACTICE RECOGNIZES 1 YEAR AS A REASONABLE TIME FOR TRAVEL UNLESS THE MEMBER IS CONFINED IN A HOSPITAL AND UNDERGOING TREATMENT ON THE DATE OF RELEASE OR RETIREMENT, MAY NOT BE APPROVED IN THE ABSENCE OF LEGISLATION AUTHORIZING TRAVEL OVER SUCH AN EXTENDED PERIOD.

TO THE SECRETARY OF THE NAVY, JULY 17, 1964:

REFERENCE IS MADE TO LETTER DATED MAY 15, 1964, FROM THE UNDER SECRETARY OF THE NAVY, REQUESTING DECISION WHETHER CURRENT JOINT TRAVEL REGULATIONS MAY BE AMENDED TO AUTHORIZE THE PAYMENT OF TRAVEL AND TRANSPORTATION ALLOWANCES TO MEMBERS WHO ON DATE OF TERMINATION OF ACTIVE DUTY ARE ELIGIBLE TO TRAVEL TO HOME OF SELECTION BUT WHO BECOME HOSPITALIZED WITHIN THE 1-YEAR SELECTION PERIOD AUTHORIZED BY THE REGULATIONS AND PRIOR TO COMPLETING TRAVEL TO THE SELECTED HOME. THE REQUEST WAS ASSIGNED CONTROL NO. 64-16 BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

IN THE LETTER IT IS STATED THAT THE JOINT TRAVEL REGULATIONS AT PARAGRAPH 4158-2, 7012-2, AND 8260-4 PROVIDE EXTENSION OF THE 1-YEAR PERIOD DURING WHICH A MEMBER MAY SELECT A HOME AND PERFORM TRAVEL THERETO ONLY IN THE CASE OF MEMBERS WHO, ON TERMINATION OF ACTIVE DUTY, ARE CONFINED IN OR UNDERGOING TREATMENT AT A GOVERNMENT HOSPITAL (OR A CIVILIAN HOSPITAL AT GOVERNMENT EXPENSE); THAT THIS EXTENSION IS PREMISED ON THE BELIEF THAT A MEMBER SHOULD ENJOY AN UNINTERRUPTED PERIOD OF AT LEAST 1 YEAR WITHIN WHICH HE IS FREE TO VISIT AND SELECT AMONG THE VARIOUS LOCATIONS AT WHICH HE WOULD LIKE TO ESTABLISH HIS FUTURE HOME. IN THE LETTER IT IS SAID THAT ONE CATEGORY OF MEMBER WAS INADVERTENTLY EXCLUDED FROM THE EXTENSION OF TIME DISCUSSED ABOVE, WHICH IS THE CASE OF THE MEMBER WHO, WHILE NOT HOSPITALIZED ON THE DATE OF TERMINATION OF ACTIVE DUTY, BECOMES HOSPITALIZED WITHIN THE 1 YEAR SELECTION PERIOD GRANTED TO HIM AND PRIOR TO COMPLETING TRAVEL TO A SELECTED HOME; THAT IF HIS STAY IN THE HOSPITAL CONSUMES ALL OR A SUBSTANTIAL PART OF THE 1-YEAR PERIOD RUNNING FROM DATE OF TERMINATION OF ACTIVE DUTY, THE MEMBER LOSES ALL ENTITLEMENT TO MILEAGE, TRANSPORTATION OF DEPENDENTS AND SHIPMENT OF HOUSEHOLD GOODS UNDER THE JOINT TRAVEL REGULATIONS AS PRESENTLY WRITTEN.

IT APPEARS FROM THE LETTER FROM THE UNDER SECRETARY THAT DOUBT AS TO AUTHORITY TO ISSUE REGULATIONS TO COVER THIS SITUATION IS BASED ON THE INTERPRETATION OF CLAUSE (3) OF THE ACT OF JULY 31, 1958, 72 STAT. 455, WHICH AMENDED THE ACT OF AUGUST 11, 1955, 69 STAT. 691, 37 U.S.C. 253 NOTE, WITH RESPECT TO MEMBERS WHO ARE AUTHORIZED TO PERFORM TRAVEL TO A HOME OF SELECTION UPON TERMINATION OF ACTIVE DUTY.

IN VIEW OF THIS THE UNDER SECRETARY ASKS WHETHER WE WOULD BE REQUIRED TO OBJECT TO AN AMENDMENT TO THE JOINT TRAVEL REGULATIONS TO PRESCRIBE THAT, IN THE CASES DISCUSSED ABOVE, TRAVEL AND TRANSPORTATION ALLOWANCES TO A HOME SELECTED BY THE MEMBER WILL BE ALLOWED PROVIDED THAT TRAVEL IS PERFORMED WITHIN 1 YEAR AFTER A PERIOD OF HOSPITALIZATION OR MEDICAL TREATMENT WHICH OCCURRED WITHIN THE 1 YEAR PERIOD FOLLOWING TERMINATION OF ACTIVE DUTY OR 2 YEARS AFTER THE DATE OF TERMINATION OF ACTIVE DUTY, WHICHEVER IS EARLIER, UNLESS A FURTHER EXTENSION OF TIME IS APPROVED BY THE SECRETARY OF THE SERVICE CONCERNED OR HIS DESIGNATED REPRESENTATIVE. IN THE EVENT THIS IS NOT CONSIDERED PERMISSIBLE, THE QUESTION IS ASKED WHETHER AN EXTENSION BEYOND THE 1-YEAR TIME LIMIT IS EQUIVALENT TO THE PERIOD OF HOSPITALIZATION OR MEDICAL TREATMENT WOULD BE PERMISSIBLE AND, FURTHER, IF OUR DECISION IS FAVORABLE TO THE MEMBER, AND SINCE THE OVERSIGHT IS SAID TO HAVE BEEN THE RESULT OF ADMINISTRATIVE OMISSION RATHER THAN SPECIFIC PROHIBITION, THE UNDER SECRETARY ASKS WHETHER THE BENEFIT INVOLVED MAY BE GRANTED IN APPROPRIATE CASES WHICH HAVE OCCURRED SINCE THE ENACTMENT OF THE ACT OF JULY 31, 1958.

THE ACT OF AUGUST 11, 1955, 69 STAT. 691, AMENDED SECTION 303 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813 (NOW 37 U.S.C. 404 AND 406), TO PROVIDE, EFFECTIVE APRIL 1, 1951, THAT, UNDER UNIFORM REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, A MEMBER OF THE UNIFORMED SERVICES WHO (1) IS RETIRED FOR PHYSICAL DISABILITY OR PLACED ON THE TEMPORARY DISABILITY RETIRED LIST, OR (2) IS RETIRED WITH PAY FOR ANY OTHER REASON, OR IS DISCHARGED WITH SEVERANCE PAY, IMMEDIATELY FOLLOWING AT LEAST 8 YEARS OF CONTINUOUS ACTIVE DUTY, MAY SELECT HIS HOME FOR TRAVEL AND TRANSPORTATION ALLOWANCE PURPOSES, AND IS ENTITLED TO TRANSPORTATION FOR HIS DEPENDENTS AND HOUSEHOLD EFFECTS TO THE SELECTED HOME. THE 1955 ACT PROVIDED, HOWEVER, THAT IN THE CASE OF SUCH SEPARATIONS PRIOR TO AUGUST 11, 1955, NO ADDITIONAL AMOUNT COULD BE PAID TO MEMBERS AS A RESULT OF THE ACT UNLESS THE TRAVEL TO SUCH SELECTED HOME WAS PERFORMED ON OR PRIOR TO APRIL 28, 1953, OR WITHIN 1 YEAR AFTER SUCH RETIREMENT, PLACEMENT UPON THE TEMPORARY DISABILITY RETIRED LIST, OR DISCHARGE, WHICHEVER IS LATER.

IN LETTER DATED NOVEMBER 23, 1955, THE THEN ASSISTANT SECRETARY OF THE ARMY REQUESTED OUR DECISION AS TO WHETHER THE ACT OF AUGUST 11, 1955, CONTAINS AUTHORITY FOR THE PROMULGATION OF REGULATIONS WHICH WOULD PERMIT MEMBERS OF THE UNIFORMED SERVICE, UNDERGOING TREATMENT IN A GOVERNMENT HOSPITAL (OR A CIVILIAN HOSPITAL AT GOVERNMENT EXPENSE) WHEN THEIR ACTIVE SERVICE TERMINATES UNDER CONDITIONS ENTITLING THEM TO SELECT A HOME FOR TRAVEL AND TRANSPORTATION ALLOWANCE PURPOSES, TO MAKE SUCH SELECTION AND TRAVEL THERE AT GOVERNMENT EXPENSE WITHIN A PERIOD OF 1 YEAR AFTER DATE OF DISCHARGE FROM THE HOSPITAL OR TERMINATION OF MEDICAL TREATMENT, OR 2 YEARS AFTER TERMINATION OF ACTIVE SERVICE, WHICHEVER IS EARLIER.

IN OUR DECISION 35 COMP. GEN. 331, WE STATED THAT ONE OF THE MAIN REASONS FOR THE ENACTMENT OF THE 1955 ACT WAS TO GRANT TO MEMBERS OF THE RESERVE COMPONENTS THE SAME RIGHT TO SELECTION OF A HOME AS MEMBERS OF THE REGULAR SERVICES HAD UNDER REGULATIONS AND PRECEDENTS THEN IN EFFECT. FURTHER, WE SAID THAT SINCE PARAGRAPH 1150-3 OF THE JOINT TRAVEL REGULATIONS IN EFFECT AT THE TIME OF THE PASSAGE OF THE 1955 ACT PERMITTED MEMBERS OF THE REGULAR SERVICES A 1-YEAR PERIOD FOR SELECTION AND TRAVEL TO A HOME--- EXTENDED TO 1 YEAR AFTER DATE OF DISCHARGE FROM THE HOSPITAL OR MEDICAL TREATMENT IN THE CASE OF A MEMBER UNDERGOING MEDICAL TREATMENT IN A GOVERNMENT HOSPITAL ON THE DATE OF HIS RETIREMENT OR TRANSFER TO THE FLEET RESERVE OR THE FLEET MARINE CORPS RESERVE--- AND SECTIONS 1 AND 2 OF THE ACT, 37 U.S.C. 253 (A) AND 253 (C), RESPECTIVELY, CONTAIN NO LANGUAGE INDICATING AN INTENT TO PLACE ANY LIMITATION ON SUCH RIGHT, THE PROMULGATION OF REGULATIONS ALLOWING THE SAME PERIODS FOR SELECTION AND TRAVEL TO THE HOME (IN THE CASE OF RETIREMENT, ETC., ON OR AFTER AUGUST 11, 1955) WOULD APPEAR TO BE PROPER UNDER THE ACT UNLESS SECTION 3 THEREOF PROVIDES AN ABSOLUTE 1-YEAR LIMITATION HAVING PROSPECTIVE AS WELL AS RETROACTIVE EFFECT. BASED ON THIS REASONING AND THE FACT THAT THE 1955 ACT WAS PASSED FOR LIBERALIZING RATHER THAN RESTRICTING OR NARROWING THE STATUTORY PROVISIONS FOR TRAVEL AND TRANSPORTATION ALLOWANCES UPON RETIREMENT, PLACEMENT ON THE TEMPORARY DISABILITY RETIRED LIST OR DISCHARGE WITH SEVERANCE PAY, WE CONCLUDED (35 COMP. GEN. 331) THAT THE PROPOSED REGULATION WAS WITHIN THE SCOPE OF THE LAW, BUT THAT BECAUSE OF THE LIMITATION IN SECTION 3 SUCH REGULATION COULD NOT BE MADE RETROACTIVE TO COVER MEMBERS WHO WERE RETIRED BEFORE AUGUST 11, 1955, AND WHO COULD NOT TRAVEL TO A SELECTED HOME WITHIN 1 YEAR FOLLOWING THEIR RETIREMENT BECAUSE OF BEING HOSPITALIZED OR UNDERGOING MEDICAL TREATMENT.

SINCE SECTION 3 OF THE 1955 ACT PRECLUDED THE ISSUANCE OF REGULATIONS EXTENDING THE 1-YEAR PERIOD FOR SELECTION OF A HOME IN CASES OF MEMBERS COVERED BY THE ACT WHO WERE RETIRED, ETC., PRIOR TO AUGUST 11, 1955, AND WERE HOSPITALIZED OR UNDERGOING MEDICAL TREATMENT AT THE TIME OF RETIREMENT, IT APPEARS THAT THE SERVICES REQUESTED REMEDIAL LEGISLATION TO CORRECT SUCH INEQUITY. AS A RESULT, THERE WAS ENACTED THE 1958 ACT.

THE ACT OF JULY 31, 1958, 72 STAT. 455, 37 U.S.C. 253, NOTE PROVIDES, AS FOLLOWS:

THAT SECTION 3 OF THE ACT OF AUGUST 11, 1955 (69 STAT. 691), IS AMENDED BY AMENDING THE SECOND SENTENCE TO READ AS FOLLOWS:"NO ADDITIONAL AMOUNT MAY BE PAID AS A RESULT OF THE ENACTMENT OF THIS SECTION TO A MEMBER OF A UNIFORMED SERVICE WHO WAS RETIRED, DISCHARGED, OR PLACED ON THE TEMPORARY DISABILITY RETIRED LIST BEFORE AUGUST 11, 1955, UNLESS TRAVEL TO A HOME SELECTED BY THAT MEMBER WAS PERFORMED---

TABLE

"/1) BEFORE APRIL 29, 1953;

"/2) WITHIN ONE YEAR AFTER THAT RETIREMENT, DISCHARGE, OR PLACEMENT ON THE TEMPORARY DISABILITY RETIRED LIST; OR

"/3) WITHIN ONE YEAR AFTER A PERIOD OF HOSPITALIZATION OR MEDICAL TREATMENT WHICH PREVENTS QUALIFICATION UNDER CLAUSES (1) OR (2).'

THE 1958 ACT APPLIES ONLY TO PERSONS WHO WERE RETIRED, DISCHARGED OR PLACED ON THE TEMPORARY DISABILITY RETIRED LIST BEFORE AUGUST 11, 1955. THE LEGISLATIVE HISTORY (HEARINGS BEFORE THE SENATE COMMITTEE ON ARMED SERVICES ON H.R. 7902, 85TH CONG., 2D SESS., 24-26) SHOWS THAT THE LEGISLATION WAS SPONSORED BY THE DEPARTMENT OF THE AIR FORCE AND THAT THE REASONS FOR THE LEGISLATION WERE PRESENTED IN A STATEMENT BY LIEUTENANT COLONEL E. W. QUINLAN, OFFICE OF THE CHIEF OF FINANCE, U.S. ARMY. THE STATEMENT IN PERTINENT PART IS AS FOLLOWS:

IF ENACTED THIS LEGISLATION WOULD AMEND THE ACT OF AUGUST 11, 1955 (PUBLIC LAW 368, 84TH CONG.), TO PROVIDE AUTHORITY BETWEEN APRIL 1, 1951, AND AUGUST 11, 1955, FOR TRAVEL AND TRANSPORTATION ALLOWANCES TO A HOME OF SELECTION FOR MEMBERS WHO WERE CONFINED IN A GOVERNMENT HOSPITAL ON DATE OF SEPARATION FROM ACTIVE SERVICE, PROVIDED SUCH MEMBERS PERFORMED THE TRAVEL BEFORE APRIL 29, 1953, OR WITHIN 1 YEAR AFTER RELEASE FROM THE HOSPITAL. * * *

IT IS RECOGNIZED THAT CLAUSE (3) OF THE 1958 ACT DOES NOT SPECIFICALLY LIMIT THE EXTENSION OF THE 1-YEAR PERIOD TO CASES WHERE THE MEMBER WAS HOSPITALIZED OR UNDERGOING MEDICAL TREATMENT AT THE TIME OF RETIREMENT. IN VIEW OF THE ADMINISTRATIVE REPRESENTATIONS MADE, HOWEVER, AS TO THE PURPOSE FOR THE PROPOSED LEGISLATION IT SEEMS APPARENT THAT IT WAS THE LEGISLATIVE INTENT THAT IT WOULD EXTEND THE PERIOD FOR SELECTING A HOME ONLY IN THOSE CASES WHERE THE MEMBER WAS HOSPITALIZED OR UNDERGOING MEDICAL TREATMENT ON THE DATE OF RETIREMENT, ETC. THUS, INSOFAR AS PRACTICABLE, THE 1958 ACT ACCORDED TO RESERVISTS RETIRED PRIOR TO THE 1955 ACT THE SAME PAY PERIOD FOR SELECTING A HOME THAT MEMBERS OF THE REGULAR SERVICES HAD UNDER ADMINISTRATIVE REGULATIONS AT THAT TIME. HENCE, WE FIND NO BASIS FOR CONCLUDING THAT THE 1958 ACT MAY BE VIEWED AS AN EXPRESSION OF LEGISLATIVE APPROVAL OR SANCTION FOR EXTENDING THE PERIOD IN WHICH TO SELECT A HOME IN CASES WHERE THE MEMBER IS HOSPITALIZED AND UNDERGOES MEDICAL TREATMENT SUBSEQUENT TO, BUT NOT AT THE TIME OF, HIS RETIREMENT OR DISCHARGE.

IN CONNECTION WITH THIS MATTER THERE PROPERLY IS FOR CONSIDERATION THE CLOSELY RELATED ACT OF AUGUST 5, 1955, 69 STAT. 532, WHICH AMENDED SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949 (NOW 37 U.S.C. 406 (D) (, TO PROVIDE FOR NONTEMPORARY STORAGE OF BAGGAGE AND HOUSEHOLD EFFECTS IN COMMERCIAL FACILITIES UPON PERMANENT CHANGE OF STATION WHEN MORE ECONOMICAL TO THE GOVERNMENT. THE SECOND PROVISO OF THAT STATUTE PROVIDES THAT NONTEMPORARY STORAGE OF BAGGAGE AND HOUSEHOLD GOODS SHALL NOT BE AUTHORIZED FOR A PERIOD LONGER THAN 1 YEAR FROM THE DATE THE MEMBERS ARE SEPARATED FROM THE SERVICE, EXCEPT THAT 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 DATE OF SEPARATION.'

THE LEGISLATIVE HISTORY OF THAT STATUTE SHOWS THAT THE PROVISO IS INTENDED TO PROVIDE AN EXCEPTION FOR THE INDIVIDUAL WHO IS RETIRED BUT WHO IS CONTINUED IN A SERVICE HOSPITAL SO THAT HE WILL BE ALLOWED TO CONTINUE TO STORE HIS HOUSEHOLD EFFECTS AT GOVERNMENT EXPENSE UNTIL SUCH TIME AS IT IS DETERMINED THAT FURTHER HOSPITALIZATION WILL BE OF NO BENEFIT TO HIM AND HE CAN TRAVEL TO HIS HOME OF SELECTION. SEE HEARINGS BEFORE THE HOUSE OF REPRESENTATIVES, COMMITTEE ON ARMED SERVICES, SUBCOMMITTEE NO. 2, JUNE 22, 1955, H.R. 6277, 84TH CONG., 1ST SESS. 4169.

APPARENTLY, IT WAS CONTEMPLATED THAT THE AUTHORIZED PERIOD OF STORAGE UPON RETIREMENT WOULD BE COEXTENSIVE WITH THE PERIOD THEN AUTHORIZED FOR A MEMBER OF A REGULAR COMPONENT TO TRAVEL TO HIS HOME OF SELECTION UPON RETIREMENT. ADMINISTRATIVE REGULATIONS HAVE BEEN ISSUED UPON THAT BASIS. THE JOINT TRAVEL REGULATIONS (PARAGRAPH 4158 2) PRESENTLY AUTHORIZE ELIGIBLE MEMBERS TO SELECT A HOME AND RECEIVE TRAVEL ALLOWANCES THERETO, PROVIDED TRAVEL TO THE SELECTED HOME IS COMPLETED WITHIN 1 YEAR AFTER DISCHARGE FROM THE HOSPITAL OR 2 YEARS AFTER TERMINATION OF ACTIVE SERVICE, WHICHEVER IS EARLIER. SIMILAR PROVISIONS WITH RESPECT TO THE AUTHORIZED PERIOD OF STORAGE ARE CONTAINED IN PARAGRAPH 8260-4. SUCH REGULATIONS REFLECT THE CONGRESSIONAL VIEW THAT IN THE CASE OF A MEMBER WHO IS CONFINED IN A HOSPITAL OR IN ITS VICINITY UNDERGOING MEDICAL TREATMENT "ON DATE OF SEPARATION" THE 1-YEAR PERIOD FOR SELECTION OF A HOME SHOULD NOT BEGIN TO RUN UNTIL HE IS PHYSICALLY ABLE TO COMPLY WITH HIS ORDERS. SEE 40 COMP. GEN. 375, 376, CITING 35 COMP. GEN. 331. DECISION OF APRIL 10, 1963, 42 COMP. GEN. 571, WE CONSIDERED A CLAIM FOR TRAVEL ALLOWANCE FOR THE TRAVEL OF A CHILD UNDER 5 YEARS OF AGE AT THE TIME OF THE MEMBER'S RETIREMENT, BUT OVER 5 AT THE TIME THE TRAVEL TO THE HOME OF SELECTION WAS PERFORMED. IT WAS HELD THAT WHILE THE LAW AND REGULATIONS PERMIT THE PERFORMANCE OF TRAVEL TO HOME OF SELECTION WITHIN 1 YEAR AFTER THE MEMBER'S TERMINATION OF ACTIVE DUTY, THE TRAVEL RIGHTS ACCRUE AS AN INCIDENT OF AND AT TIME OF RETIREMENT, AND SUCH PROVISIONS ARE NOT VIEWED AS ESTABLISHING AN ADDITIONAL PERIOD OF TIME DURING WHICH THE HOME OF SELECTION TRAVEL RIGHTS PROVIDED TO A 8AMBER BY STATUTE INCIDENT TO HIS RETIREMENT MAY BE INCREASED OR DECREASED BY EVENTS OCCURRING SUBSEQUENT TO HIS RETIREMENT. IT WOULD APPEAR THAT THIS REASONING ALSO IS FOR APPLICATION IN THE CASE OF A MEMBER WHO SUFFERS AN ILLNESS WHICH REQUIRES HOSPITALIZATION OR MEDICAL TREATMENT AFTER HIS RETIREMENT.

IN VIEW OF THE LONGSTANDING ADMINISTRATIVE VIEW THAT 1 YEAR IS A REASONABLE TIME FOR THE PERFORMANCE OF TRAVEL TO A HOME OF SELECTION UNLESS SUCH TRAVEL IS PREVENTED BY REASON OF THE FACT THAT ON THE DATE OF RELEASE OR RETIREMENT THE MEMBER IS CONFINED IN A HOSPITAL OR UNDERGOING TREATMENT, AND IN VIEW OF THE APPARENT LEGISLATIVE RECOGNITION THAT AN EXTENSION IS PROPER ONLY UNDER THESE CIRCUMSTANCES, WE ARE OF THE OPINION THAT, IN THE ABSENCE OF LEGISLATION AUTHORIZING THE PROMULGATION OF REGULATIONS ON THE BASIS PROPOSED, THE MATTER IS TOO DOUBTFUL FOR US TO APPROVE THE PROPOSED REGULATIONS.