B-158725, MAY 12, 1966, 45 COMP. GEN. 689

B-158725, MAY 12, 1966, 45 COMP. GEN. 689

STATION ALLOWANCES - MILITARY PERSONNEL - DEPENDENTS - ARRIVAL AT HOME PORT PRIOR TO VESSEL NAVAL MEMBERS OF VESSELS HAVING TWO ROTATING CREWS WHOSE DEPENDENTS ARRIVE OVERSEAS BETWEEN THE DATE OF THE OFFICIAL ANNOUNCEMENT OF THE CHANGE IN HOME PORT OF A VESSEL FROM THE UNITED STATES TO AN OVERSEAS PORT AND THE EFFECTIVE DATE OF CHANGE MAY NOT BE PAID STATION ALLOWANCES FOR DEPENDENTS UNDER 37 U.S.C. 405, WHICH WHILE AUTHORIZING TRAVEL AND TEMPORARY DUTY AND PERMANENT STATION ALLOWANCES FOR MEMBERS ON DUTY OUTSIDE THE UNITED STATES, HAWAII, OR ALASKA, CONSIDERS DEPENDENTS ONLY FOR PERMANENT STATION ALLOWANCE PURPOSES, AND ALTHOUGH THE VESSEL TO WHICH ASSIGNED IS THE PERMANENT POST OF DUTY OF A MEMBER, HIS PERMANENT STATION FOR TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS IS THE HOME YARD OR PORT OF THE VESSEL, ACCORDINGLY ABSENT A STATION OUTSIDE THE UNITED STATES WITHIN THE CONTEMPLATION OF 37 U.S.C. 405 FOR ENTITLEMENT TO STATION ALLOWANCES UNTIL A CHANGE OF HOME PORT BECOMES EFFECTIVE, PARAGRAPH M4301- 4C OF THE JOINT TRAVEL REGULATIONS MAY NOT BE AMENDED TO AUTHORIZE STATION ALLOWANCES TO MEMBERS FOR DEPENDENTS ARRIVING OVERSEAS PRIOR TO THE EFFECTIVE DATE OF A HOME PORT CHANGE.

TO THE SECRETARY OF THE ARMY, MAY 12, 1966:

REFERENCE IS MADE TO LETTER OF MARCH 2, 1966, FROM THE UNDER SECRETARY OF THE ARMY FORWARDED HERE BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE, REQUESTING A DECISION WHETHER PARAGRAPH M4301-4C OF THE JOINT TRAVEL REGULATIONS MAY BE REVISED SO AS TO AUTHORIZE STATION ALLOWANCES IN CASES INVOLVING INITIAL ARRIVAL OF DEPENDENTS AND/OR MEMBERS OVERSEAS WHEN SUCH ARRIVAL OCCURS BETWEEN THE DATE OF THE OFFICIAL ANNOUNCEMENT OF THE CHANGE IN HOME PORT OF A VESSEL FROM A PORT IN THE UNITED STATES TO AN OVERSEAS PORT AND THE EFFECTIVE DATE OF CHANGE OF HOME PORT.

THE REQUEST FOR DECISION WAS ASSIGNED PDTATAC CONTROL NO. 66-14 BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

SECTION 405 OF TITLE 37, U.S. CODE, PROVIDES THAT THE SECRETARIES CONCERNED MAY AUTHORIZE PAYMENT OF A PER DIEM, CONSIDERING ALL ELEMENTS OF THE COST OF LIVING TO MEMBERS OF THE UNIFORMED SERVICES AND THEIR DEPENDENTS, INCLUDING A COST OF QUARTERS, SUBSISTENCE, AND OTHER NECESSARY INCIDENTAL EXPENSES, TO SUCH A MEMBER WHO IS "ON DUTY OUTSIDE OF THE UNITED STATES OR IN HAWAII OR ALASKA," WHETHER OR NOT HE IS IN A TRAVEL STATUS, EXCEPT THAT DEPENDENTS MAY NOT BE CONSIDERED IN DETERMINING THE PER DIEM ALLOWANCE FOR A MEMBER IN A TRAVEL STATUS.

IN CASES INVOLVING THE ARRIVAL OF DEPENDENTS OVERSEAS PRIOR TO ARRIVAL OF THE MEMBER, THE UNDER SECRETARY POINTS OUT THAT THE CURRENT PROVISIONS OF PARAGRAPH M4301-4C OF THE JOINT TRAVEL REGULATIONS, PROMULGATED PURSUANT TO 37 U.S.C. 405, PRECLUDE PAYMENT OF STATION ALLOWANCES PRIOR TO THE EFFECTIVE DATE OF THE CHANGE OF HOME PORT. THIS REGULATION (PARAGRAPH M4301-4C) EXPRESSLY PROVIDES THAT WHEN AN OLD STATION IS IN THE UNITED STATES, ENTITLEMENT WILL BEGIN ON THE DAY OF ARRIVAL OF DEPENDENTS, IF ON OR AFTER THE EFFECTIVE DATE OF ORDERS DIRECTING THE CHANGE OF STATION, OR THE DATE OF DEPARTURE OF THE MEMBER FROM THE UNITED STATES, WHICHEVER IS LATER. IN CASE A VESSEL HAVING A HOME PORT OR HOME YARD OUTSIDE THE UNITED STATES IS AT A PORT IN THE UNITED STATES ON THE DATE THE MEMBER REPORTS FOR DUTY, THE REGULATIONS PROVIDE THAT THE DATE OF REPORTING WILL BE CONSIDERED TO BE THE DAY OF DEPARTURE FROM THE UNITED STATES. THE UNDER SECRETARY SUGGESTS THAT HIS REGULATION IS MORE RESTRICTIVE THAN NECESSARILY REQUIRED BY 37 U.S.C. 405 AND SAYS IT WOULD SEEM THAT THE SECRETARIES IN PRESCRIBING THE REGULATIONS WITHIN THE INTENT AND SCOPE OF THE LAW, SHOULD BE ABLE TO COVER ALL SITUATIONS WHEREIN THE ASSIGNMENT OF THE MEMBER IS OF A NATURE WHICH CAN BE CONSTRUED AS DUTY OUTSIDE THE UNITED STATES OR IN HAWAII OR IN ALASKA.

IN SUPPORT OF THE NEED FOR REVISING PARAGRAPH M4301-4C OF THE REGULATIONS, THE UNDER SECRETARY SAYS THAT ONE OF THE PROBLEM SITUATIONS INVOLVES A VESSEL HAVING TWO CREWS WHICH ROTATE AT INTERVALS OF 1 TO 6 MONTHS WITH BOTH CREWS BEING CONSIDERED ON SEA DUTY AND RECEIVING SUBMARINE PAY. HE POINTS OUT THAT THE OFFICIAL ANNOUNCEMENT OF THE PROSPECTIVE CHANGE IN HOME PORT FROM A PORT IN THE UNITED STATES TO A SPECIFIED OVERSEAS PORT WAS MADE TO THE MEMBERS OF THE CREW OVER 2 MONTHS PRIOR TO THE DESIGNATED EFFECTIVE DATE OF THE CHANGE. MOVEMENT OF THE DEPENDENTS AND MEMBERS OF THE CREW NOT CURRENTLY ON BOARD TO THE PROSPECTIVE NEW HOME PORT OVERSEAS, THE UNDER SECRETARY SAYS, HAS BEEN DIRECTED TO BE ACCOMPLISHED PRIOR TO THE EFFECTIVE DATE OF THE CHANGE OF HOME PORT IN ORDER TO PERMIT TEAM TRAINING IN THE OVERSEAS AREA PRIOR TO ARRIVAL OF THE VESSEL. THE SHIP, ITS CREW, AND THEIR DEPENDENTS, THE UNDER SECRETARY SAYS, WILL LEAVE THE UNITED STATES WELL BEFORE THE ARBITRARY "EFFECTIVE DATE" OF CHANGE OF HOME PORT AND WILL UNDOUBTEDLY ARRIVE AT ITS NEW HOME PORT OVERSEAS PRIOR TO THE EFFECTIVE DATE. IT IS STATED THAT THE MANNER AND TIME IN WHICH THESE MOVEMENTS ARE TO BE MADE ARE NECESSARY AND ARE IN THE BEST INTERESTS OF THE GOVERNMENT.

THE UNDER SECRETARY FURTHER SAYS THAT THE FACT THAT THE DESIGNATED LOCATION OF A PERMANENT DUTY STATION (HOME PORT) DOES NOT OFFICIALLY CHANGE UNTIL AFTER THE MEMBER DEPARTS FROM THE OLD LOCATION OR AFTER HIS ARRIVAL AT THE NEW LOCATION, IN ITSELF, DOES NOT APPEAR TO REQUIRE THAT THE REGULATIONS PRECLUDE AUTHORIZING STATION ALLOWANCES UNTIL THE DATE THAT THE DESIGNATED CHANGE IS OFFICIAL. THE PROPOSED REVISION OF THE REGULATIONS, THE UNDER SECRETARY SAYS, IS ON THE BASIS THAT THE MEMBER'S RECEIPT OF AN OFFICIAL ANNOUNCEMENT OF A PROSPECTIVE CHANGE OF HOME PORT OF A SHIP FROM THE UNITED STATES PORT TO A PORT OUTSIDE THE UNITED STATES OR IN HAWAII OR ALASKA COUPLED WITH HIS REPORTING ON BOARD SHIP AND/OR HIS ACTUAL DEPARTURE FROM THE UNITED STATES UNDER ORDERS, REFLECTS A REASONABLE INTERPRETATION OF THE WORDS "ON DUTY OUTSIDE OF THE UNITED STATES OR IN HAWAII OR ALASKA" AS USED IN THE STATUTE. AS FOLLOWS:

C. OLD STATION IN UNITED STATES. WHEN THE OLD DUTY STATION IS IN THE UNITED STATES, ENTITLEMENT WILL BEGIN ON THE DATE OF ARRIVAL OF ONE OR MORE DEPENDENTS OR ON THE DATE OF DEPARTURE OF THE MEMBER FROM THE UNITED STATES, WHICHEVER IS LATER, PROVIDED THAT IN NO CASE WILL SUCH ALLOWANCES BE PAID FOR ANY DAY EARLIER THAN THE SIXTIETH DAY PRIOR TO THE EFFECTIVE DATE OF THE PERMANENT CHANGE-OF-STATION ORDERS (CHANGE OF HOME PORT OR HOME YARD). SHOULD A VESSEL, SEABORNE STAFF, OR MOBILE UNIT, BE AT A PORT IN THE UNITED STATES ON THE DATE THE MEMBER REPORTS ON BOARD FOR DUTY, THE DATE OF REPORTING WILL BE CONSIDERED TO BE THE DATE OF DEPARTURE OF THE MEMBER FROM THE UNITED STATES. SHOULD A MEMBER, ATTACHED TO A VESSEL, SEABORNE STAFF, OR MOBILE UNIT, NOT BE REQUIRED TO REPORT ON BOARD AT A PORT IN THE UNITED STATES, THE DATE OF HIS ACTUAL DEPARTURE FROM THE UNITED STATES UNDER ORDERS WILL BE AT THE EARLIEST DATE ON WHICH STATION ALLOWANCES MAY BE PAID.

WHILE TRAVEL AND TEMPORARY DUTY AND PERMANENT STATION ALLOWANCES FOR MEMBERS ON DUTY OUTSIDE THE UNITED STATES ARE PRESCRIBED PURSUANT TO 37 U.S.C. 405, THE STATUTE EXPRESSLY PRECLUDES THE CONSIDERATION OF DEPENDENTS IN DETERMINING TRAVEL AND TEMPORARY DUTY ALLOWANCES AND, HENCE, ONLY PERMANENT STATION ALLOWANCES MAY BE PROVIDED ON ACCOUNT OF DEPENDENTS UNDER THAT SECTION. THIS APPEARS TO BE ADMINISTRATIVELY RECOGNIZED SINCE THE DEPARTMENTAL REGULATIONS GENERALLY AUTHORIZE THE ALLOWANCES ON SUCH BASIS. CONSEQUENTLY, WE HAVE HELD THAT UNDER THE CURRENT PROVISIONS OF PARAGRAPH M4301-4C OF THE REGULATIONS, STATION ALLOWANCES COULD NOT COMMENCE PRIOR TO THE EFFECTIVE DATE OF THE CHANGE OF HOME PORT OF THE VESSEL. IN OUR DECISION OF JANUARY 10, 1964, B 152330, 43 COMP. GEN. 505, COPY ENCLOSED, WE CONSIDERED THE LEGALITY OF PAYMENT OF TEMPORARY LODGING ALLOWANCE TO MEMBERS WHOSE DEPENDENTS ARRIVED IN THE VICINITY OF THE DESIGNATED HOME PORT OF THE U.S.S. PROVIDENCE (CLG-6), LOCATED OVERSEAS, PRIOR TO THE EFFECTIVE DATE OF THE CHANGE OF THE HOME PORT OF THAT VESSEL TO SUCH DESIGNATED PLACE. WE POINTED OUT THAT TEMPORARY LODGING ALLOWANCE IS AUTHORIZED BY THE REGULATIONS (PARAGRAPH M4303) AS A PERMANENT STATION EMOLUMENT AND THAT A CHANGE OF HOME PORT CONSTITUTES A PERMANENT CHANGE OF STATION INSOFAR AS TRANSPORTATION OF DEPENDENTS OF A MEMBER ATTACHED TO A VESSEL IS CONCERNED. WE HOLD, THEREFOR, THAT INASMUCH AS THE DEPENDENTS ARRIVED AT THE NEW HOME PORT PRIOR TO THE EFFECTIVE DATE OF THE CHANGE OF HOME PORT, ENTITLEMENT TO THE TEMPORARY LODGING ALLOWANCE COULD NOT COMMENCE UNTIL THE CHANGE-OF-STATION ORDERS BECAME EFFECTIVE. THIS DECISION WAS AFFIRMED ON JULY 22, 1964, B-152330, B 153361. ALSO, IN A RECENT DECISION, B-158108, FEBRUARY 21, 1966, COPY ENCLOSED, INVOLVING THE TRANSFER OF AN OFFICER FROM ONE OVERSEAS AREA TO ANOTHER, WE HELD THAT SINCE THE DEPENDENTS ARRIVED AT THE NEW STATION PRIOR TO THE EFFECTIVE DATE OF THE TRANSFER, THE RULES SET FORTH IN 43 COMP. GEN. 505, WERE APPLICABLE AND THAT UNDER THE PROVISIONS OF PARAGRAPH M4301-4B OF THE REGULATIONS THERE WAS NO AUTHORITY FOR PAYMENT OF A HOUSING AND COST-OF- LIVING ALLOWANCE ON ACCOUNT OF THE MEMBER'S DEPENDENTS FOR THE PERIOD PRIOR TO THE EFFECTIVE DATE OF THE TRANSFER.

IN THE CASE OF A VESSEL HAVING TWO CREWS, SUCH AS A NUCLEAR POWERED SUBMARINE, THE VESSEL IS CONSIDERED TO BE THE PERMANENT DUTY STATION (DESIGNATED POST OF DUTY) OF THE MEMBERS OF BOTH CREWS. AS TO SUCH A CASE, IF THE SUBMARINE IS HOMEPORTED OUTSIDE THE UNITED STATES, PARAGRAPH 4150-5, NAVY TRAVEL INSTRUCTIONS, PROVIDES THAT, IF OTHERWISE ENTITLED, BOTH CREWS ARE ENTITLED TO STATION ALLOWANCES. WITH RESPECT TO THE PAYMENT OF STATION ALLOWANCES TO MEMBERS ASSIGNED TO SHIPS OR FLEET UNITS, PARAGRAPH M4304 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT THE TERMS ,PERMANENT DUTY STATION" OR "MEMBER'S DUTY STATION" WILL BE CONSTRUED TO INCLUDE THE HOME YARD OR HOME PORT OF A VESSEL.

WHILE THE VESSEL IS THE PERMANENT POST OF DUTY OF A MEMBER ASSIGNED TO A VESSEL, THE HOME YARD OR HOME PORT OF THE VESSEL IS HIS PERMANENT STATION FOR THE PURPOSE OF TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS AND WE HAVE CONCURRED IN THE ADMINISTRATIVE VIEW THAT A MEMBER ASSIGNED TO A VESSEL HOMEPORTED OUTSIDE THE UNITED STATES OR IN HAWAII OR ALASKA IS TO BE VIEWED AS BEING ON DUTY OUTSIDE OF THE UNITED STATES OR IN HAWAII OR ALASKA FOR PURPOSES OF THE STATION ALLOWANCES PRESCRIBED PURSUANT TO 37 U.S.C. 405, WITHOUT REGARD TO THE ACTUAL LOCATION OF THE VESSEL.

AS INDICATED ABOVE, THE VESSEL IS THE MAN'S PERMANENT DUTY STATION. WHILE HE IS AT THAT POST OF DUTY HE IS THERE AS A MEMBER WITHOUT DEPENDENTS AND, HENCE, THE ACTUAL LOCATION OF THE VESSEL IS IMMATERIAL INSOFAR AS STATION ALLOWANCES FOR DEPENDENTS ARE CONCERNED. THE HOME PORT OF A VESSEL IS HIS PERMANENT STATION FOR PURPOSES OF DEPENDENT TRAVEL AND IT IS THE CHANGE IN HOME PORT THAT CONSTITUTES A PERMANENT CHANGE OF STATION INSOFAR AS TRANSPORTATION OF HIS DEPENDENTS IS CONCERNED, AND A RIGHT TO DEPENDENT TRAVEL PURSUANT TO SUCH CHANGE, GENERALLY, DOES NOT ACCRUE UNTIL THE DATE ON WHICH THE CHANGE IN HOME PORT BECOMES EFFECTIVE. IN THIS REGARD, IT MAY BE NOTED THAT ENTITLEMENT TO THE MOVEMENT OF DEPENDENTS AND HOUSEHOLD EFFECTS IN THE CASE OF OFF-CREW MEMBERS OF TWO- CREW NUCLEAR-POWERED SUBMARINES ACCRUES ON HOME PORT CHANGES ON THE BASIS OF THE CHANGE OF HOME PORT CERTIFICATE AND NOT THE MOVEMENT ORDERS TRANSFERRING THE OFF-CREW MEMBERS TO THE NEW HOME PORT. SEE 44 COMP. GEN. 507. CONSEQUENTLY TO PERMIT A COMMENCEMENT DATE, FOR EXAMPLE, EARLIER THAN THE EFFECTIVE DATE OF THE CHANGE OF HOME PORT FOR STATION ALLOWANCE PURPOSES NECESSARILY WOULD REQUIRE COMBINING THE MEMBER'S STATION ABOARD SHIP WITH HIS STATION FOR DEPENDENT TRAVEL PURPOSES AND WOULD RESULT IN THE ANOMALOUS SITUATION OF THE MEMBER NOT HAVING A CHANGE OF PERMANENT STATION FOR DEPENDENT TRAVEL PURPOSES UNTIL THE EFFECTIVE DATE OF THE HOME PORT CHANGE AND BEING ENTITLED TO PERMANENT STATION ALLOWANCES AT A PERMANENT STATION WHICH DOES NOT IN FACT EXIST AS SUCH. THIS IS EQUALLY APPLICABLE, OF COURSE, TO OTHER CHANGE-OF-STATION SITUATIONS. IN OUR VIEW THE LAW DOES NOT CONTEMPLATE SUCH A RESULT, ESPECIALLY SINCE A MEMBER EN ROUTE BETWEEN PERMANENT STATIONS UNDER PERMANENT CHANGE-OF-STATION ORDERS WOULD BE IN A TRAVEL STATUS UNTIL THE CHANGE BECAME EFFECTIVE AND STATION ALLOWANCES FOR DEPENDENTS MAY NOT BE PRESCRIBED FOR MEMBERS IN A TRAVEL STATUS.

IN THE LIGHT OF THE FOREGOING, IT IS OUR VIEW THAT UNLESS AND UNTIL A PERMANENT CHANGE OF STATION OR A CHANGE IN HOME PORT OF A VESSEL ACTUALLY BECOMES EFFECTIVE, IN CASES OF THE TYPE INVOLVED IN YOUR QUESTION, THE MEMBER MAY NOT BE CONSIDERED AS HAVING A STATION OUTSIDE THE UNITED STATES WITHIN THE CONTEMPLATION OF 47 U.S.C. 405 FOR WHICH STATION ALLOWANCES WOULD BE PAYABLE ON ACCOUNT OF DEPENDENTS. ACCORDINGLY, IT IS CONCLUDED THAT THE REVISION OF PARAGRAPH M4301-4C OF THE JOINT TRAVEL REGULATIONS AS PROPOSED WOULD NOT BE CONSISTENT WITH THE LAW.