B-164507, JUL. 8, 1968

B-164507, JUL. 8, 1968

TO MRS. DONALD D. VANMETER:

REFERENCE IS MADE TO YOUR LETTER DATED MAY 26, 1968, AND ENCLOSURE, IN WHICH YOU REQUEST A DECISION CONCERNING YOUR ENTITLEMENT TO TRANSPORTATION OF HOUSEHOLD GOODS AT GOVERNMENT EXPENSE INCIDENT TO THE DEATH OF YOUR LATE HUSBAND, LIEUTENANT COLONEL DONALD D. VANMETER, 0498792, ARMY RESERVE. BY LETTER DATED JUNE 3, 1968, THE HONORABLE OMAR BURLESON, HOUSE OF REPRESENTATIVES, FORWARDED A COPY OF THE ABOVE LETTER TO US WITH THE REQUEST THAT WE CLARIFY THE QUESTION PRESENTED BY YOU.

WITH YOUR LETTER YOU ENCLOSED A COPY OF LETTER ORDER UNITED STATES ARMY RESERVE T-03-37154, DATED MARCH 20, 1968, WHICH ORDERED YOUR HUSBAND TO ACTIVE DUTY FOR TRAINING FOR 13 DAYS PLUS ALLOWABLE TIME NECESSARY TO PERFORM TRAVEL AND DIRECTED HIM TO PROCEED AND REPORT ON APRIL 22, 1968, TO DARNALL ARMY HOSPITAL, FORT HOOD, TEXAS, FOR TRAINING. THAT ORDER STATED THAT IT CONSTITUTED A PERMANENT CHANGE-OF STATION ORDER AND AUTHORIZED SHIPMENT OF TEMPORARY CHANGE-OF-STATION WEIGHT ALLOWANCE, BUT NOT TRAVEL OF DEPENDENTS AND SHIPMENT OF PERMANENT CHANGE-OF-STATION WEIGHT ALLOWANCE. YOUR HUSBAND'S HOME OF RECORD AND CURRENT LOCATION WAS SHOWN IN THOSE ORDERS AS VETERANS ADMINISTRATION HOSPITAL, BIG SPRING, TEXAS.

IN YOUR LETTER YOU SAY THAT YOU HUSBAND DIED AT DARNALL ARMY HOSPITAL ON MAY 9, 1968, AND THAT THE ARMY INFORMED YOU THAT SINCE HE DIED WHILE ON ACTIVE DUTY YOU WERE ENTITLED TO ALL BENEFITS EXCEPT TRANSPORTATION OF HOUSEHOLD GOODS. ALSO, YOU QUOTED THE PROVISIONS OF PARAGRAPH M7150, JOINT TRAVEL REGULATIONS, AS SET FORTH BELOW AND UNDERSCORED THOSE PORTIONS AS INDICATED:

"THE PROVISIONS OF THIS PART ARE APPLICABLE TO DEPENDENTS OF A MEMBER (WITHOUT REGARD TO PAY GRADE) IN ACTIVE SERVICE OTHER THAN FOR TRAINING DUTY WHO IS OFFICIALLY REPORTED AS DEAD, INJURED, ABSENT FOR A PERIOD OF 30 DAYS OR MORE IN A STATUS OF MISSING, MISSING IN ACTION, INTERNED IN A FOREIGN COUNTRY, CAPTURED BY A HOSTILE FORCE, BELEAGURED BY OR DETAINED IN A FOREIGN COUNTRY AGAINST HIS WILL (50 U.S.C. APP 1012), AND TO A MEMBER WHO DIES WHILE ENTITLED TO BASIC PAY (37 U.S.C. 406F).'

IN VIEW OF THOSE UNDERSCORED PORTIONS AND SINCE YOU SAY YOUR HUSBAND WAS ON ACTIVE DUTY FOR TRAINING AND DIED WHILE ENTITLED TO BASIC PAY, YOU EXPRESS THE BELIEF THAT THE ARMY FURNISHED YOU WITH INFORMATION WHICH CONFLICTS WITH THE ABOVE REGULATION. ACCORDINGLY, YOU DESIRE OUR DECISION IN THE MATTER.

THE PROVISIONS OF PARAGRAPH M7150, JOINT TRAVEL REGULATIONS, TO WHICH YOU HAVE REFERRED, RELATE TO TRANSPORTATION AT GOVERNMENT EXPENSE OF THE DEPENDENTS OF MEMBERS WHO HAVE BEEN OFFICIALLY REPORTED AS DEAD AFTER HAVING BEEN IN A MISSING STATUS AND TO THE DEPENDENTS OF MEMBERS WHO DIE WHILE ON ACTIVE DUTY AND ENTITLED TO BASIC PAY. SIMILAR REGULATIONS RELATING TO TRANSPORTATION AT GOVERNMENT EXPENSE OF THE HOUSEHOLD GOODS OF SUCH MEMBERS ARE CONTAINED IN PARAGRAPHS M8350 AND M8353, JOINT TRAVEL REGULATIONS, WHICH READ IN PERTINENT PART, AS FOLLOWS: "M8350 GENERAL.

THE PROVISIONS OF THIS PART APPLY TO HOUSEHOLD GOODS AND PRIVATELY OWNED MOTOR VEHICLES (PAR. M11005) OF A MEMBER (WITHOUT REGARD TO PAY GRADE) IN ACTIVE SERVICE OTHER THAN FOR TRAINING DUTY WHO IS OFFICIALLY REPORTED AS DEAD, INJURED, ABSENT FOR A PERIOD OF 30 DAYS OR MORE IN A STATUS OF MISSING, MISSING IN ACTION, * * * (50 U.S. CODE, APP. 1012), AND TO A MEMBER WHO DIES WHILE ENTITLED TO BASIC PAY (37 U.S.C. 406 (F) ). "M8353 WHEN AUTHORIZED. 1. GENERAL. UPON RECEIPT OF NOTICE THAT THE MEMBER HAS BEEN DETERMINED TO COME WITHIN THE PURVIEW OF PAR. M8350, TRANSPORTATION OF HOUSEHOLD GOODS IS AUTHORIZED TO THE MEMBER'S OFFICIAL RESIDENCE OF RECORD OR TO THE RESIDENCE OF HIS DEPENDENT, NEXT OF KIN, OR OTHER PERSON ENTITLED TO RECEIVE CUSTODY OF THE HOUSEHOLD GOODS. * * *"

WE ARE ENCLOSING A COPY OF OUR DECISION OF FEBRUARY 16, 1962, 41 COMP. GEN. 544, IN WHICH WE CONSTRUED SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 253 (C), AND PUBLIC LAW 84-217 (WHICH AMENDED SECTIONS 2 AND 12 OF THE MISSING PERSONS ACT, 50 U.S.C. APP. 1002 AND 1012) IN CONNECTION WITH PROPOSED REGULATIONS WHICH WOULD HAVE AUTHORIZED MOVEMENT OF DEPENDENTS AND HOUSEHOLD GOODS OF RESERVISTS WHO DIE AS A RESULT OF ACTIVE TRAINING DUTY WHEN MOVEMENT WAS NOT AUTHORIZED INCIDENT TO CALL TO SUCH DUTY. SECTION 303 (C), AS AMENDED (LATER REENACTED AND CODIFIED AS 37 U.S.C. 406), PROVIDED, AMONG OTHER THINGS, THAT UNDER REGULATIONS PRESCRIBED BY THE SECRETARY CONCERNED, TRANSPORTATION FOR DEPENDENTS, BAGGAGE AND HOUSEHOLD EFFECTS ARE AUTHORIZED UPON THE DEATH OF A MEMBER OF THE UNIFORMED SERVICES WHILE ENTITLED TO RECEIVE BASIC PAY. PARAGRAPH M8350, QUOTED ABOVE, IMPLEMENTS 50 U.S.C. APP. 1012 AND 37 U.S.C. 406 (F).

AS YOU WILL OBSERVE FROM THAT DECISION, WE CONCLUDED THAT NEITHER THE PROVISIONS OF SECTION 303 (C) OF THE CAREER COMPENSATION ACT, AS AMENDED, NOR SECTION 12 OF THE MISSING PERSONS ACT, AS AMENDED, PROVIDED ANY AUTHORITY FOR THE ISSUANCE OF REGULATIONS AUTHORIZING THE MOVEMENT OF DEPENDENTS AND HOUSEHOLD GOODS OF MEMBERS WHO DIE WHILE IN A TRAINING DUTY STATUS, FROM THE MEMBER'S HOME OF RECORD TO SOME OTHER PLACE.

ACCORDINGLY, IT APPEARS THAT THE INFORMATION FURNISHED TO YOU BY THE ARMY IS IN CONSONANCE WITH PARAGRAPH M8350 OF THE JOINT TRAVEL REGULATIONS AND OUR DECISION OF FEBRUARY 16, 1962, MENTIONED ABOVE. HOWEVER, THE PROVISIONS OF THE MISSING PERSONS ACT, AS AMENDED, FORMERLY CONTAINED IN 50 U.S.C. APP 1001-1015, WERE REPEALED BY SECTION 8 (A) OF PUBLIC LAW 89- 554, APPROVED SEPTEMBER 6, 1966, 80 STAT. 632. SECTION 5 OF THAT ACT ADDED SIMILAR PROVISIONS AS CHAPTER 10, TITLE 37 U.S. CODE. SECTION 554 OF THAT CHAPTER, AS AMENDED, PROVIDES AUTHORITY FORMERLY CONTAINED IN 50 U.S.C. APP. 1012 FOR TRAVEL AND TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD AND PERSONAL EFFECTS, IN PERTINENT PART, AS FOLLOWS:

"/B) TRANSPORTATION (INCLUDING PACKING, CRATING, DRAYAGE, TEMPORARY STORAGE AND UNPACKING OF HOUSEHOLD AND PERSONAL EFFECTS) MAY BE PROVIDED FOR THE DEPENDENTS AND HOUSEHOLD AND PERSONAL EFFECTS OF A MEMBER OF A UNIFORMED SERVICE ON ACTIVE DUTY (WITHOUT REGARD TO PAY GRADE) WHO IS OFFICIALLY REPORTED AS DEAD, INJURED, OR ABSENT FOR A PERIOD OF MORE THAN 29 DAYS IN A MISSING STATUS--

"/2) TO THE RESIDENCE OF HIS DEPENDENT, NEXT OF KIN, OR OTHER PERSON ENTITLED TO CUSTODY OF THE EFFECTS, UNDER REGULATIONS PRESCRIBED BY THE SECRETARY CONCERNED; OR

"/3) ON REQUEST OF THE MEMBER (IF INJURED), OR HIS DEPENDENT, NEXT OF KIN, OR OTHER PERSON DESCRIBED IN CLAUSE (2), TO ANOTHER LOCATION DETERMINED IN ADVANCE OR LATER APPROVED BY THE SECRETARY CONCERNED, OR HIS DESIGNEE.

"/D) TRANSPORTATION REQUESTED BY A DEPENDENT MAY BE AUTHORIZED UNDER THIS SECTION ONLY IF THERE IS A REASONABLE RELATIONSHIP BETWEEN THE CIRCUMSTANCES OF THE DEPENDENT AND THE REQUESTED DESTINATION.'

THE LEGISLATIVE HISTORY OF PUBLIC LAW 89-554 SHOWS THAT IN REENACTING AND CODIFYING THE PROVISION FORMERLY CONTAINED IN 50 U.S.C. 1012 THE WORDS "A MEMBER OF A UNIFORMED SERVICE ON ACTIVE DUTY * * * OR ABSENT FOR A PERIOD OF MORE THAN 29 DAYS IN A MISSING STATUS" WERE SUBSTITUTED FOR "ANY PERSON IN ACTIVE SERVICE * * * ABSENT FOR A PERIOD OF THIRTY DAYS OR MORE IN ANY STATUS LISTED IN SECTION 2 OF THIS ACT" FOR CLARITY AND TO CONFORM TO THE DEFINITIONS IN 37 U.S.C. 101 (20) AND (23) AND REVISED SECTION 551 (2) OF THE NEW CHAPTER 10. THOSE DEFINITIONS IN 37 U.S.C. 101 ARE AS FOLLOWS:

"/20) -ACTIVE SERVICE- MEANS SERVICE ON ACTIVE DUTY;

"/23) -MEMBER- MEANS A PERSON APPOINTED OR ENLISTED IN OR CONSCRIPTED INTO, A UNIFORMED SERVICE; AND" THE TERM "ACTIVE DUTY" IS ALSO DEFINED IN 37 U.S.C. 101, AS FOLLOWS:

"/18) -ACTIVE DUTY- MEANS FULL-TIME DUTY IN THE ACTIVE SERVICE OF A UNIFORMED SERVICE, AND INCLUDES DUTY ON THE ACTIVE LIST, FULL-TIME TRAINING DUTY, ANNUAL TRAINING DUTY, AND ATTENDANCE, WHILE IN THE ACTIVE SERVICE, AT A SCHOOL DESIGNATED AS A SERVICE SCHOOL BY LAW OR BY THE SECRETARY CONCERNED; " (UNDERSCORING ADDED.)

IN VIEW OF THE FOREGOING, IT IS OUR OPINION THAT THE PROVISIONS OF 37 U.S.C. 554 WHEN READ IN CONJUNCTION WITH THE ABOVE DEFINITIONS NOW ARE SUFFICIENTLY BROAD TO PROVIDE AUTHORITY FOR THE MOVEMENT OF THE DEPENDENTS AND HOUSEHOLD EFFECTS IN THE CASE OF A MEMBER ON ANNUAL TRAINING DUTY WHOSE DEATH HAS OFFICIALLY BEEN DETERMINED TO HAVE OCCURRED WHILE IN A MISSING STATUS WITHIN THE CONTEMPLATION OF CHAPTER 10, TITLE 37, U.S.C.

SINCE YOU SAY YOUR HUSBAND DIED AT FORT HOOD, TEXAS, IT WOULD APPEAR, HOWEVER, THAT HIS DEATH DID NOT OCCUR UNDER CIRCUMSTANCES COVERED BY CHAPTER 10.

AS INDICATED ABOVE, SECTION 406 (F) HAS SUPERSEDED THE SIMILAR PROVISIONS OF SECTION 303 (C) OF THE 1949 ACT AND PROVIDES THAT UNDER REGULATIONS PRESCRIBED BY THE SECRETARY CONCERNED, TRANSPORTATION FOR DEPENDENTS AND HOUSEHOLD EFFECTS OF A MEMBER IS AUTHORIZED IF HE DIES WHILE ENTITLED TO BASIC PAY. THE ABOVE-QUOTED DEFINITIONS ARE ALSO FOR CONSIDERATION IN DETERMINING ENTITLEMENT UNDER THIS PROVISION AND, THEREFORE, SINCE ANNUAL TRAINING DUTY IS DEFINED AS ACTIVE DUTY FOR WHICH BASIC PAY IS AUTHORIZED, WE ARE OF THE OPINION THAT IN AN OTHERWISE PROPER CASE, SECTION 406 (F) WOULD PROVIDE AUTHORITY UNDER ADMINISTRATIVE REGULATIONS FOR THE MOVEMENT OF THE DEPENDENTS AND HOUSEHOLD EFFECTS OF A MEMBER WHO DIES WHILE ON ANNUAL TRAINING DUTY.

IT IS NOTED THAT COLONEL VANMETER DID NOT DIE DURING THE 13 DAYS OF TRAINING DUTY DIRECTED IN HIS ORDERS OF MARCH 20, 1968, AND WE DO NOT HAVE SUFFICIENT INFORMATION TO DETERMINE WHETHER THE MOVEMENT OF HIS HOUSEHOLD EFFECTS COULD BE AUTHORIZED AT GOVERNMENT EXPENSE.

IF, HOWEVER, HE DIED IN A TRAINING DUTY STATUS ENTITLING HIM TO BASIC PAY AT THE TIME OF HIS DEATH, WE WOULD NOT BE REQUIRED TO OBJECT TO A DETERMINATION BY THE SECRETARY OF THE ARMY THAT THE MOVEMENT OF HIS HOUSEHOLD EFFECTS IS AUTHORIZED AT GOVERNMENT EXPENSE TO AN APPROPRIATE PLACE, WITHIN THE APPLICABLE WEIGHT ALLOWANCE.

A COPY OF THIS LETTER IS BEING FURNISHED TO THE HONORABLE OMAR BURLESON.