B-161039, APRIL 28, 1967, 46 COMP. GEN. 767

B-161039, APRIL 28, 1967, 46 COMP. GEN. 767

TRANSPORTATION - DEPENDENTS - MILITARY PERSONNEL - ADVANCE TRAVEL OF DEPENDENTS - INDUCTION INTO THE MILITARY SERVICES ALTHOUGH THE TRAVEL OF A DEPENDENT TO THE OVERSEAS STATION OF A MEMBER OF THE UNIFORMED SERVICES INCIDENT TO THE MEMBER'S PERMANENT CHANGE-OF-DUTY STATION IS NOT FOR THE CONVENIENCE OF THE GOVERNMENT, THE RETURN OF THE DEPENDENT, UPON PASSING HIS PRE-INDUCTION TESTS OVERSEAS, TO THE PLACE IN THE UNITED STATES WHERE HE REGISTERED FOR MILITARY SERVICE MAY BE CONSIDERED AN OBLIGATION OF THE GOVERNMENT. THEREFORE, UNDER 37 U.S.C. 406 (H), PROVIDING FOR THE ADVANCE RETURN OF DEPENDENTS TO THE UNITED STATES, PARAGRAPH M7103 OF THE JOINT TRAVEL REGULATIONS MAY BE AMENDED TO AUTHORIZE THE RETURN OF A DEPENDENT FROM OVERSEAS TO THE PLACE TO WHICH ORDERED TO REPORT FOR INDUCTION UPON DETERMINATION THAT PROVIDING TRANSPORTATION AT GOVERNMENT EXPENSE WOULD BE IN THE BEST INTERESTS OF THE GOVERNMENT AND THE MEMBER OR HIS DEPENDENT.

TO THE SECRETARY OF THE NAVY, APRIL 28, 1967:

FURTHER REFERENCE IS MADE TO LETTER DATED FEBRUARY 18, 1967, FROM THE UNDER SECRETARY OF THE NAVY, FORWARDED HERE BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE ON FEBRUARY 28, 1967, REQUESTING A DECISION WHETHER THIS OFFICE WOULD BE REQUIRED TO OBJECT TO AN AMENDMENT OF THE JOINT TRAVEL REGULATIONS TO PROVIDE TRANSPORTATION AT GOVERNMENT EXPENSE FOR THE DEPENDENT OF A MEMBER OF THE UNIFORMED SERVICES FROM THE MEMBER'S OVERSEAS DUTY STATION TO THE PLACE TO WHICH THE DEPENDENT IS ORDERED BY HIS LOCAL SELECTIVE SERVICE BOARD FOR INDUCTION. THIS REQUEST WAS ASSIGNED CONTROL NO. 67-5 BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

THE UNDER SECRETARY STATES IN HIS LETTER THAT IT HAS BEEN REPORTED TO THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE THAT IN A SITUATION WHERE A DEPENDENT OF A MEMBER STATIONED OVERSEAS PASSES HIS PRE- INDUCTION PHYSICAL AND MENTAL TESTS AT THE OVERSEAS LOCATION, THERE IS THE POSSIBILITY OF FINANCIAL HARDSHIP ON THE MEMBER WHEN THE DEPENDENT IS ORDERED BY HIS SELECTIVE SERVICE BOARD TO REPORT FOR INDUCTION AT THE LOCATION WHERE HE HAD REGISTERED PRIOR TO MOVING OVERSEAS WITH HIS MILITARY MEMBER PARENT AND IS REQUIRED TO TRAVEL AT PERSONAL EXPENSE TO THE LOCAL BOARD FOR INDUCTION. IN THIS CONNECTION, THE UNDER SECRETARY ADDS THAT THE VIEW OF THE INTERESTED SERVICE IS THAT THE DEPENDENT MOVED OVERSEAS WITH HIS MILITARY MEMBER PARENT FOR THE GOVERNMENT'S CONVENIENCE AND THAT HIS TRAVEL TO THE INDUCTION LOCATION SHOULD BE CONSIDERED AN OBLIGATION OF THE GOVERNMENT RATHER THAN THE MILITARY MEMBER.

IT IS FURTHER STATED BY THE UNDER SECRETARY THAT WHILE VOLUME I, CHAPTER, PART C, JOINT TRAVEL REGULATIONS, PROVIDES FOR THE TRANSPORTATION OF DEPENDENTS UNDER UNUSUAL OR EMERGENCY CIRCUMSTANCES, INCLUDING RETURN OF DEPENDENTS TO THE UNITED STATES FOR COMPELLING PERSONAL REASONS, AS WELL AS FOR REASONS OF NATIONAL INTEREST, THIS CHAPTER CONTAINS NO SPECIFIC PROVISION UNDER WHICH A DEPENDENT MIGHT BE RETURNED AT GOVERNMENT EXPENSE FOR INDUCTION. IN ADDITION, HE CITES PARAGRAPH M5050, JOINT TRAVEL REGULATIONS, AS AUTHORIZING THE FURNISHING OF TRANSPORTATION AND MEAL TICKETS TO APPLICANTS FOR ENLISTMENT IN REGULAR SERVICES OR RESERVE COMPONENTS FOR TRAVEL FROM THEIR HOMES TO PLACE OF PHYSICAL EXAMINATION OR PLACE OF ACCEPTANCE FOR ENLISTMENT.

ALSO, THE UNDER SECRETARY CITES PARAGRAPH M5051 (FURNISHING TRANSPORTATION REQUESTS AND MEAL TICKETS TO APPLICANTS FOR FLYING TRAINING FOR TRAVEL BETWEEN THEIR RESIDENCE AND PLACES OF QUALIFYING EXAMINATIONS, PHYSICAL EXAMINATIONS, AND OTHER PROCESSING), AND PARAGRAPH M5052 (ENTITLEMENT OF MEMBERS INDUCTED IN ANY OF THE UNIFORMED SERVICES TO TRAVEL AND TRANSPORTATION ALLOWANCES FOR TRAVEL FROM PLACE OF INDUCTION TO FIRST STATION). HE SAYS, HOWEVER, THAT THERE IS NO PROVISION FOR TRANSPORTATION OF INDUCTEES AT GOVERNMENT EXPENSE FROM HOME TO PLACE OF INDUCTION. ACCORDINGLY, THREE QUESTIONS HAVE BEEN PRESENTED AS FOLLOWS:

SPECIFICALLY, (QUESTION 1) MAY JOINT TRAVEL REGULATIONS, VOLUME 1,CHAPTER 7, PARAGRAPH M7103-1, BE AMENDED TO PROVIDE FOR RETURN TRAVEL OF DEPENDENTS TO THE PLACE OF INDUCTION? IN THE EVENT THIS QUESTION IS ANSWERED IN THE NEGATIVE (QUESTION 2) MAY PARAGRAPH M7105 OF SUCH REGULATIONS BE AMENDED TO PROVIDE SPECIFICALLY THAT RETURN OF DEPENDENTS FROM OVERSEAS AREAS FOR INDUCTION INTO THE ARMED FORCES SHALL BE CONSIDERED TO BE IN THE NATIONAL INTEREST WITHIN THE CONTEMPLATION OF THAT PARAGRAPH? IN THE EVENT BOTH OF THESE QUESTIONS ARE ANSWERED IN THE NEGATIVE (QUESTION 3) MAY JOINT TRAVEL REGULATIONS, VOLUME 1, CHAPTER 5, PART B, BE AMENDED TO PROVIDE FOR TRANSPORTATION OF INDUCTEES: (A) FROM HOME TO PLACE OF INDUCTION; AND (B) FROM THE OVERSEAS PERMANENT DUTY STATION OF HIS MILITARY MEMBER PARENT TO THE PLACE OF INDUCTION?

SUBSECTION 406 (H) OF TITLE 37, U.S. CODE, AS ADDED BY SECTION 1 (A) OF PUBLIC LAW 88-431, APPROVED AUGUST 14, 1964, 78 STAT. 439, PROVIDES, AMONG OTHER THINGS, FOR THE ADVANCE RETURN TO THE UNITED STATES AT GOVERNMENT EXPENSE OF THE DEPENDENTS OF A MEMBER 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. THIS AUTHORITY HAS BEEN IMPLEMENTED BY PARAGRAPHS M7103-1 AND M7103-2, ITEM 7, JOINT TRAVEL REGULATIONS, WHICH PROVIDE THAT THE COMMANDING OFFICER MAY APPROVE THE REQUEST OF A MEMBER WHO IS PERMANENTLY STATIONED OUTSIDE THE UNITED STATES FOR THE TRANSPORTATION OF HIS DEPENDENTS TO A DESIGNATED PLACE IN THE UNITED STATES, INCLUDING ALASKA AND HAWAII, IN PUERTO RICO, OR IN A TERRITORY OR POSSESSION OF THE UNITED STATES, NOTWITHSTANDING THE FACT THAT HIS PERMANENT STATION REMAINS UNCHANGED, WHEN DETERMINED THAT THE BEST INTERESTS OF THE MEMBER OR HIS DEPENDENTS AND THE GOVERNMENT WILL BE SERVED BY THE RETURN OF ONE OR MORE OF HIS DEPENDENTS FOR COMPELLING PERSONAL REASONS, SUCH AS MARITAL DIFFICULTIES, FINANCIAL DIFFICULTIES, UNFORESEEN FAMILY PROBLEMS, DEATH OR SERIOUS ILLNESS OF CLOSE RELATIVES, OR FOR REASONS OF A HUMANITARIAN OR COMPASSIONATE NATURE, AND IN OTHER SITUATIONS WHICH HAVE AN ADVERSE EFFECT ON THE MEMBER'S PERFORMANCE OF DUTY.

WE DO NOT AGREE WITH THE VIEW EXPRESSED THAT THE DEPENDENT MOVED OVERSEAS WITH HIS MEMBER PARENT FOR THE CONVENIENCE OF THE GOVERNMENT AND, ON THAT BASIS, HIS TRAVEL TO THE INDUCTION STATION SHOULD BE CONSIDERED AN OBLIGATION OF THE GOVERNMENT. CLEARLY, THE DEPENDENT WAS NOT ORDERED BY THE GOVERNMENT TO PROCEED OVERSEAS WITH HIS PARENT AND SUCH TRAVEL WAS NOT FOR THE PERFORMANCE OF DUTY BY THE DEPENDENT. RATHER, THE DEPENDENT MOVED OVERSEAS FOR THE PERSONAL CONVENIENCE OF THE PARENT, FOR HIS OWN CONVENIENCE AND THE CONVENIENCE OF OTHER MEMBERS OF THE FAMILY THAT MIGHT BE CONCERNED.

WHILE TRANSPORTATION OF A MEMBER'S DEPENDENTS IS AUTHORIZED AT GOVERNMENT EXPENSE INCIDENT TO THE MEMBER'S CHANGE OF PERMANENT STATION, THE MOVEMENT OF THE DEPENDENTS IS NOT REQUIRED AND IF THE MEMBER ELECTS TO MOVE HIS DEPENDENTS TO HIS NEW STATION OVERSEAS WE FIND NO BASIS FOR THE VIEW THAT THE MOVE IS FOR THE CONVENIENCE OF THE GOVERNMENT. IN DECISIONS RENDERED PRIOR TO ENACTMENT OF PUBLIC LAW 88-431 AND SIMILAR PROVISIONS WITH RESPECT TO CIVILIAN EMPLOYEES, INVOLVING TRAVEL TO REPORT FOR INDUCTION INTO THE ARMED SERVICES, WE GENERALLY HAVE VIEWED TRAVEL TO THE PLACE ORDERED TO REPORT FOR INDUCTION AS THE PERSONAL RESPONSIBILITY OF THE INDIVIDUAL CONCERNED. 24 COMP. GEN. 472.

ON MARCH 30, 1951, WE WERE REQUESTED BY THE DEPARTMENT OF AGRICULTURE TO RULE ON THE QUESTION AS TO WHETHER THE INDUCTION OF SIX EMPLOYEES OF THE DEPARTMENT OF AGRICULTURE--- SERVING AT VARIOUS DUTY STATIONS IN MEXICO--- PRIOR TO THE COMPLETION OF THEIR AGREED PERIOD OF SERVICE WOULD ENTITLE THEM TO REIMBURSEMENT OF THE EXPENSES OF THEIR RETURN TRAVEL TO THE UNITED STATES. THE APPLICABLE STATUTE, SECTION 7 OF THE ACT OF AUGUST 2, 1946, CH. 744, 60 STAT. 808, 5 U.S.C. 5729, PROVIDED FOR RETURN TRANSPORTATION OF THE EMPLOYEE TO THE UNITED STATES IF SEPARATED PRIOR TO EXPIRATION OF THE AGREED PERIOD OF SERVICE FOR REASONS BEYOND HIS CONTROL. IN OUR DECISION OF MAY 23, 1951, 30 COMP. GEN. 478, IN WHICH WE REACHED AN AFFIRMATIVE CONCLUSION ON THAT QUESTION, WE SAID THAT UNDER THE CIRCUMSTANCES NOT ONLY WERE THE SEPARATIONS FOR THE PURPOSE OF INDUCTION INTO THE MILITARY SERVICE FOR REASONS BEYOND THE EMPLOYEES' CONTROL BUT ALSO "FOR THE PURPOSE OF THE GOVERNMENT.' ALSO, WE HELD IN OUR DECISION OF NOVEMBER 1, 1951, 31 COMP. GEN. 159, THAT THE SEPARATION OF THREE OTHER DEPARTMENT OF AGRICULTURE EMPLOYEES UNDER SIMILAR CIRCUMSTANCES, BUT WHO EITHER HAD ENLISTED OR WERE RECALLED FOR ACTIVE MILITARY DUTY AT THEIR REQUEST "PROPERLY MAY BE VIEWED AS SERVING A VITAL AND PARAMOUNT PURPOSE OF THE UNITED STATES," AND THAT REIMBURSEMENT FOR THEIR TRAVEL WAS AUTHORIZED EVEN THOUGH THE SEPARATIONS WERE NOT FOR REASONS BEYOND THEIR CONTROL.

GENERALLY, THE INDUCTION OF A DEPENDENT OF A MEMBER AS WELL AS THE DATE THEREOF IS INDETERMINABLE AT THE TIME OF HIS MOVEMENT TO AN OVERSEAS STATION AND, OF COURSE, BEYOND THE DEPENDENT'S CONTROL AND IN THE GOVERNMENT'S INTEREST. BROAD AUTHORITY IS PROVIDED IN SECTION 406 (H) TO AUTHORIZE THE ADVANCE MOVEMENT OF A MEMBER'S DEPENDENTS FROM OVERSEAS TO AN APPROPRIATE LOCATION IN THE UNITED STATES IF DETERMINED TO BE IN THE BEST INTERESTS OF THE MEMBER OR HIS DEPENDENTS AND THE UNITED STATES. ARE OF THE OPINION THAT IN VIEW OF THAT AUTHORITY, PARAGRAPH M7103 OF THE REGULATIONS MAY BE AMENDED TO PROVIDE FOR RETURN TRANSPORTATION OF A DEPENDENT FROM OVERSEAS TO THE PLACE IN THE UNITED STATES TO WHICH ORDERED TO REPORT FOR INDUCTION WHEN AUTHORIZED ON THE BASIS OF A DETERMINATION THAT SUCH TRANSPORTATION WOULD BE IN THE BEST INTERESTS OF THE GOVERNMENT AND THE MEMBER OR DEPENDENT.

YOUR FIRST QUESTION THEREFORE IS ANSWERED IN THE AFFIRMATIVE, MAKING ANSWERS TO THE SECOND AND THIRD QUESTIONS UNNECESSARY.