B-156744, JUN. 17, 1965, 44 COMP. GEN. 796

B-156744, JUN. 17, 1965, 44 COMP. GEN. 796

TRANSPORTATION - AUTOMOBILES - MILITARY PERSONNEL - RESTRICTED STATION STATUS UPON REASSIGNMENT UNDER ORDERS OF MEMBERS OF THE UNIFORMED SERVICES FROM UNRESTRICTED DUTY AREAS IN AN ACCOMPANIED STATUS TO RESTRICTED AREAS ON A NONACCOMPANIED BASIS WITHIN AN OVERSEAS COMMAND, THE MEMBERS ALTHOUGH ENTITLED UNDER PARAGRAPH 7005-3 OF THE JOINT TRAVEL REGULATIONS TO THE TRANSPORTATION OF DEPENDENTS TO A DESIGNATED PLACE, EVEN THOUGH THE DEPENDENTS ARE NOT REQUIRED TO BE MOVED, AND UNDER PARAGRAPH 8253-2.D TO SHIPMENT OF HOUSEHOLD GOODS TO THE SAME PLACE, MAY NOT SHIP AT GOVERNMENT EXPENSE A MOTOR VEHICLE FOR THE PERSONAL USE OF DEPENDENTS, THE REASSIGNMENT NOT COMING WITHIN THE UNUSUAL AND EMERGENCY CONDITIONS CONTEMPLATED BY 37 U.S.C. 406 (H), AUTHORIZING THE RETURN OF DEPENDENTS, BAGGAGE, HOUSEHOLD EFFECTS AND A MOTOR VEHICLE TO THE UNITED STATES WHEN ORDERS HAVE NOT BEEN ISSUED, OR CANNOT BE USED; THEREFORE, 10 U.S.C. 2634 GOVERNING AND LIMITING THE SHIPMENT OF A MOTOR VEHICLE TO A MEMBER'S NEW STATION, PARAGRAPH 7005 MAY NOT BE AMENDED TO AUTHORIZE TRANSPORTATION OF A MOTOR VEHICLE INCIDENT TO THE REASSIGNMENT.

TO THE SECRETARY OF THE AIR FORCE, JUNE 17, 1965:

FURTHER REFERENCE IS MADE TO LETTER DATED APRIL 30, 1965, FROM THE ASSISTANT SECRETARY OF THE AIR FORCE REQUESTING A DECISION WHETHER THE JOINT TRAVEL REGULATIONS MAY BE AMENDED TO PROVIDE THAT WHEN TRANSPORTATION OF DEPENDENTS TO A DESIGNATED PLACE IS AUTHORIZED UNDER PARAGRAPH 7005-3 THEREOF, MOVEMENT TO THE SAME PLACE OF ONE MOTOR VEHICLE OWNED BY THE MEMBER MAY ALSO BE AUTHORIZED AT GOVERNMENT EXPENSE FOR HIS DEPENDENTS' PERSONAL USE. THE REQUEST WAS ASSIGNED PDTATAC CONTROL NO. 65 -16 BY THE COMMITTEE.

THE ASSISTANT SECRETARY SAYS IT HAS BEEN FOUND NECESSARY IN RECENT MONTHS TO REASSIGN MEMBERS FROM UNRESTRICTED TO RESTRICTED AREAS WITHIN THE OVERSEAS COMMAND. FOR EXAMPLE, A MEMBER CURRENTLY ON DUTY IN AN ACCOMPANIED STATUS AT PLACES SUCH AS JAPAN, OKINAWA, TAIWAN, THE PHILIPPINES, OR HAWAII, MAY BE REASSIGNED ON A NONACCOMPANIED BASIS TO VIETNAM THUS MAKING IT NECESSARY TO MOVE HIS DEPENDENTS AND HOUSEHOLD GOODS TO A DESIGNATED PLACE PENDING HIS RETURN TO THE UNITED STATES FOR DUTY. SINCE THE REASSIGNMENT ALSO MAKES IT NECESSARY FOR HIM TO DISPOSE OF HIS PRIVATELY OWNED VEHICLE, THE ASSISTANT SECRETARY QUESTIONS WHETHER THE STATUTORY AUTHORITY CONTAINED IN 37 U.S.C. 406 (H) AS ADDED BY PUBLIC LAW 88-431, APPROVED AUGUST 14, 1964, WILL PERMIT SHIPMENT OF THE VEHICLE AT GOVERNMENT EXPENSE. HE SUGGESTS THAT THE NATURE OF THE ASSIGNMENT IN THESE CASES BRINGS THEM WITHIN THE UNUSUAL AND EMERGENCY CONDITIONS CONTEMPLATED BY 37 U.S.C. 406 (H) AND THAT, THEREFORE, IT WOULD BE PERMISSIBLE TO MAKE A GENERAL FINDING UNDER THAT LAW THAT THE MOVEMENT OF THE DEPENDENTS, HOUSEHOLD GOODS, AND MOTOR VEHICLES IS IN THE BEST INTEREST OF THE GOVERNMENT AND THE MEMBER.

PARAGRAPH 7005-3 OF THE JOINT TRAVEL REGULATIONS PROVIDES IN SUBSTANCE THAT WHEN A MEMBER ON DUTY OUTSIDE THE UNITED STATES IS TRANSFERRED OR ASSIGNED BY PERMANENT CHANGE OF STATION ORDERS TO RESTRICTED AREA, HE WILL BE ENTITLED TO TRANSPORTATION OF HIS DEPENDENTS TO A DESIGNATED PLACE. PARAGRAPH 8253-2.D OF THE REGULATIONS AUTHORIZES SHIPMENT OF HOUSEHOLD GOODS TO THE SAME PLACE. SUCH REGULATIONS, HOWEVER, DO NOT REQUIRE THE MOVEMENT OF DEPENDENTS TO ANY PLACE; THEY MAY CONTINUE TO RESIDE AT THE OLD STATION OR MOVE AS THE MEMBER MAY ELECT. UNDER THE PROVISIONS OF SECTION 2634 OF TITLE 10, UNITED STATES CODE, WHEN A MEMBER OF AN ARMED FORCE IS ORDERED TO MAKE A PERMANENT CHANGE OF STATION, A MOTOR VEHICLE OWNED BY HIM AND FOR HIS PERSONAL USE MAY BE TRANSPORTED ONLY TO HIS NEW STATION AT THE EXPENSE OF THE UNITED STATES.

SECTION 406 (H) OF TITLE 37, U.S.C. AS ADDED BY PUBLIC LAW 88-431 (78 STAT. 439) PROVIDES THAT IN THE CASE OF A MEMBER WHO IS SERVING AT A STATION OUTSIDE THE UNITED STATES OR IN HAWAII OR ALASKA, IF THE SECRETARY CONCERNED DETERMINES IT TO BE IN THE BEST INTERESTS OF THE MEMBER OR HIS DEPENDENTS AND THE UNITED STATES, HE MAY, WHEN ORDERS DIRECTING A PERMANENT CHANGE OF STATION HAVE NOT BEEN ISSUED, OR WHEN THEY HAVE BEEN ISSUED BUT CANNOT BE USED AS AUTHORITY FOR THE TRANSPORTATION OF DEPENDENTS, BAGGAGE, AND HOUSEHOLD EFFECTS, AUTHORIZE THE MOVEMENT OF DEPENDENTS, BAGGAGE, HOUSEHOLD EFFECTS, AND A PRIVATELY OWNED VEHICLE OF MILITARY MEMBERS FROM OVERSEAS AREAS TO APPROPRIATE LOCATIONS IN THE UNITED STATES OR ITS POSSESSIONS. IT FURTHER PROVIDES THAT THE MOTOR VEHICLE MAY BE TRANSPORTED FOR THE MEMBER'S OR DEPENDENTS' PERSONAL USE.

SINCE, IN THE SUBMITTED CASES, PERMANENT CHANGE OF STATION ORDERS HAVE BEEN ISSUED AND SUCH ORDERS SERVE AS AUTHORITY FOR THE TRANSPORTATION OF DEPENDENTS, BAGGAGE AND HOUSEHOLD EFFECTS, SUCH CASES DO NOT COME WITHIN THE LITERAL LANGUAGE OF 37 U.S.C. 406 (H). IN THE HEARINGS (NO. 10) BEFORE SUBCOMMITTEE NO. 1, COMMITTEE ON ARMED SERVICES, HOUSE OF REPRESENTATIVES, ON H.R. 4739 WHICH BECAME 37 U.S.C. 406 (H), MAJOR T. M. TWISDALE, U.S. ARMY, TESTIFIED IN PART (PAGES 3005 AND 3006) IN EXPLANATION OF THE PURPOSE OF THE LEGISLATION AS FOLLOWS:

"UNDER THE PRESENT PROVISIONS OF SECTION 406 (E) OF TITLE 37, U.S.C. AUTHORITY FOR ADVANCE RETURN OF DEPENDENTS AND HOUSEHOLD GOODS OF MEMBERS IS LIMITED TO "UNUSUAL OR EMERGENCY CIRCUMSTANCES.' THESE LIMITATIONS HAVE BEEN FOUND UNDESIRABLE, AND TOO RESTRICTIVE TO MEET THE NEEDS OF THE SERVICES. THE ADVANCE RETURN OF DEPENDENTS UNDER CIRCUMSTANCES WHICH UNDER PRESENT LAW AND RULINGS OF THE COMPTROLLER GENERAL MAY NOT BE REGARDED AS "UNUSUAL OR EMERGENCY" IN NATURE IS CONSIDERED ESSENTIAL FROM THE STANDPOINT OF THE MORALE AND WELFARE OF MEMBERS AND THEIR DEPENDENTS.

"UNFORESEEN FAMILY PROBLEMS, CHANGES IN A MEMBER'S STATUS, AND CHANGING ECONOMIC AND POLITICAL CONDITIONS IN THE VARIOUS OVERSEA AREAS AT TIMES REQUIRE THE ADVANCE RETURN OF DEPENDENTS, HOUSEHOLD GOODS, AND PRIVATELY OWNED VEHICLES FROM AN OVERSEA AREA TO THE UNITED STATES, AS BEING IN THE BEST INTEREST OF THE INDIVIDUAL AND THE GOVERNMENT. SUCH INSTANCES, HOWEVER, OFTEN DO NOT SATISFY THE "UNUSUAL OR EMERGENCY CIRCUMSTANCES" REQUIREMENT OF THE PRESENT LAW. DEPENDENTS WHO ARE CONFRONTED WITH COMPELLING PERSONAL PROBLEMS FOR WHICH ADVANCE RETURN IS NOT NOW AUTHORIZED PLACE AN ADDITIONAL ADMINISTRATIVE BURDEN ON OVERSEA COMMANDERS. THOSE DEPENDENTS MAY ALSO HAVE AN ADVERSE EFFECT ON THE SPONSOR'S PERFORMANCE OF DUTY AND THE OPERATIONAL READINESS OF OUR COMBAT FORCES. IN CERTAIN INSTANCES IN THE PAST THEY HAVE CAUSED INCIDENTS PREJUDICIAL TO THE BEST INTERESTS OF THE UNITED STATES. EXAMPLES OF SITUATIONS WARRANTING ADVANCE RETURN OF DEPENDENTS WOULD INCLUDE SUCH COMPELLING PERSONAL REASONS AS MARITAL DIFFICULTIES, EXTREME FINANCIAL DIFFICULTIES BROUGHT ABOUT BY CIRCUMSTANCES SUCH AS CONFINEMENT OR REDUCTION IN GRADE OF THE MEMBER, WHICH PRECLUDE THE FURNISHING OF ADEQUATE SUPPORT FOR DEPENDENTS, DEATH OR SERIOUS ILLNESS OF CLOSE RELATIVES, AND OTHER SITUATIONS IN WHICH THE APPROPRIATE COMMANDER DETERMINES THAT THE BEST INTERESTS OF THE GOVERNMENT AND THE MEMBER OR DEPENDENT WILL BE SERVED. IT IS NORMALLY BEST TO PERMIT, OR IF NECESSARY REQUIRE, THESE DEPENDENTS TO BE RETURNED TO LOCATIONS IN THE UNITED STATES IN ADVANCE OF THE RETURN OF THE SPONSORS.

"UPON THE PERMANENT CHANGE OF STATION OF A MEMBER FROM OVERSEAS TO THE UNITED STATES PRESENT LAW AUTHORIZED THE RETURN OF A PRIVATELY OWNED VEHICLE, HOWEVER, THERE IS NO AUTHORITY FOR ITS ADVANCE RETURN. WHEN DEPENDENTS ARE RETURNED IN ADVANCE, AN AUTOMOBILE FOR USE BY DEPENDENTS IN THE UNITED STATES WOULD IN MOST INSTANCES BE A NECESSITY. AUTHORITY FOR THE ADVANCE RETURN OF A PRIVATELY OWNED VEHICLE AT THE TIME DEPENDENTS ARE RETURNED IS THEREFORE CONSIDERED NECESSARY.'

THUS, AS EXPRESSLY PROVIDED BY THE LAW, IT SEEMS CLEAR THAT 37 U.S.C. 406 (H) IS INTENDED TO APPLY ONLY TO SPECIAL CIRCUMSTANCES (SEE PARAGRAPH 7103 OF THE JOINT TRAVEL REGULATIONS) WHERE THE MOVEMENT OF THE MEMBER IS NOT INVOLVED OR SUCH MOVEMENT DOES NOT GIVE RISE TO ANY ENTITLEMENT TO TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS AND THE GOVERNMENT, NOT THE MEMBER, MAKES THE DECISION IN SUCH CASES.

SINCE THE BENEFITS OF 37 U.S.C. 406 (H) ARE EXPRESSLY LIMITED (AND WERE INTENDED TO BE LIMITED) TO CASES WHERE ORDERS DIRECTING A CHANGE OF PERMANENT STATION HAVE NOT BEEN ISSUED OR, IF ISSUED, CANNOT SERVE AS AUTHORITY FOR THE TRANSPORTATION OF THE MEMBER'S DEPENDENTS, BAGGAGE, AND HOUSEHOLD EFFECTS, AND PARAGRAPH 7005 OF THE JOINT TRAVEL REGULATIONS RELATES TO CASES IN WHICH PERMANENT CHANGE OF STATION ORDERS PROVIDING AUTHORITY FOR THE TRANSPORTATION OF THE MEMBER'S DEPENDENTS, BAGGAGE, AND HOUSEHOLD EFFECTS HAVE BEEN ISSUED, IT IS OUR VIEW THAT 37 U.S.C. 406 (H) AFFORDS NO AUTHORITY FOR THE PROPOSED CHANGE IN THE REGULATIONS. ANY RIGHT TO THE TRANSPORTATION OF A MOTOR VEHICLE IN SUCH CIRCUMSTANCES IS GOVERNED BY THE PROVISIONS OF 10 U.S.C. 2634. PLAINLY SUCH PROVISIONS DO NOT AUTHORIZE TRANSPORTATION OF A MEMBER'S AUTOMOBILE TO ANY PLACE OTHER THAN "TO HIS NEW STATION.'