B-167479, NOVEMBER 13, 1969, 49 COMP. GEN. 299

B-167479, NOVEMBER 13, 1969, 49 COMP. GEN. 299

MILITARY PERSONNEL -- MISSING, INTERNED, ETC., PERSONS -- EVACUATION OF DEPENDENTS -- TEMPORARY LODGING ALLOWANCE THE PAYMENT OF A TEMPORARY LODGING ALLOWANCE INCIDENT TO THE EVACUATION OF THE DEPENDENTS OF A MEMBER OF THE UNIFORMED SERVICES MISSING IN ACTION MAY NOT BE AUTHORIZED, AS THE ALLOWANCE ACCRUES ONLY IN CONNECTION WITH A PERMANENT CHANGE OF STATION TO PARTIALLY REIMBURSE A MEMBER FOR THE MORE THAN NORMAL EXPENSES TEMPORARILY INCURRED AT HOTEL OR HOTEL-LIKE ACCOMMODATIONS AND PUBLIC RESTAURANTS IMMEDIATELY PRECEDING DEPARTURE FROM AN OVERSEAS STATION ON A PERMANENT CHANGE OF STATION. UNDER THE MISSING PERSONS ACT, WHICH DESIGNATES THE ITEMS OF PAY AND ALLOWANCES THAT MAY BE CONTINUED WHILE A MEMBER IS IN A MISSING STATUS, ALTHOUGH A HOUSING AND COST-OF-LIVING STATION ALLOWANCE MAY BE PAID, A TEMPORARY LODGING ALLOWANCE INCIDENT TO THE EVACUATION OF DEPENDENTS MAY NOT, BECAUSE A MEMBER IN A MISSING STATUS CANNOT MEET THE PERMANENT CHANGE-OF-STATION REQUIREMENT. MILITARY PERSONNEL -- MISSING, INTERNED, ETC., PERSONS -- EVACUATION OF DEPENDENTS -- TRANSPORTATION ENTITLEMENT WHEN IT IS NECESSARY TO EVACUATE THE DEPENDENTS OF A MEMBER ON ACTIVE DUTY WHO IS OFFICIALLY REPORTED AS DEAD, INJURED, OR ABSENT FOR A PERIOD OF MORE THAN 29 DAYS IN A MISSING STATUS, PURSUANT TO 37 U.S.C. 554(B), IRRESPECTIVE OF THE MEMBER'S PAY GRADE, TRANSPORTATION MAY BE PROVIDED FOR DEPENDENTS, PERSONAL EFFECTS, AND HOUSEHOLD EFFECTS- INCLUDING THE PACKING, CRATING, DRAYAGE, TEMPORARY STORAGE, AND UNPACKING OF THE HOUSEHOLD EFFECTS--TO THE MEMBER'S OFFICIAL RESIDENCE, TO THE RESIDENCE OF THE DEPENDENTS, OR AS OTHERWISE PROVIDED, BUT NO OTHER ALLOWANCES ARE PAYABLE INCIDENT TO THE EVACUATION. STATION ALLOWANCES -- MILITARY PERSONNEL -- TEMPORARY LODGINGS -- INJURED MEMBER THE ENTITLEMENT OF AN INJURED MEMBER OF THE UNIFORMED SERVICES WHEN PROLONGED HOSPITALIZATION OR TREATMENT IS ANTICIPATED TO THE TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS IS NO BASIS TO AUTHORIZE PAYMENT OF A TEMPORARY LODGING ALLOWANCE INCIDENT TO THE EVACUATION OF HIS DEPENDENTS OCCASIONED BY HIS INJURED STATUS, UNLESS THE MOVEMENT OF THE DEPENDENTS AND HOUSEHOLD EFFECTS IS IN CONNECTION WITH AN ORDERED PERMANENT CHANGE OF STATION FOR THE MEMBER.

TO THE SECRETARY OF THE ARMY, NOVEMBER 13, 1969:

FURTHER REFERENCE IS MADE TO LETTER DATED JUNE 30, 1969, FROM THE ASSISTANT SECRETARY OF THE ARMY (MANPOWER AND RESERVE AFFAIRS) REQUESTING A DECISION WHETHER THE SECRETARIES CONCERNED HAVE THE AUTHORITY TO AMEND THE JOINT TRAVEL REGULATIONS TO PROVIDE ENTITLEMENT TO TEMPORARY LODGING ALLOWANCE WHEN THE DEPENDENTS OF A MEMBER OF THE UNIFORMED SERVICES MOVE FROM AN OVERSEAS RESIDENCE IINCIDENT TO RECEIPT OF NOTICE THAT THE MEMBER IS IN A STATUS AS SET FORTH IN 37 U.S.C. 554(B). THE REQUEST WAS ASSIGNED CONTROL NO. 69-27 BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

IN THE ASSISTANT SECRETARY'S LETTER IT IS STATED THAT UNDER THE PROVISIONS OF 37 U.S.C. 552(A), A MEMBER WHO IS IN A MISSING STATUS, AS DEFINED IN 37 U.S.C. 551(2), IS, FOR THE PERIOD HE IS IN THAT STATUS, ENTITLED TO RECEIVE OR HAVE CREDITED TO HIS ACCOUNT THE SAME PAY AND ALLOWANCES, AS DEFINED IN CHAPTER 10 OF TITLE 37, TO WHICH HE WAS ENTITLED AT THE BEGINNING OF THAT PERIOD OR MAY THEREAFTER BECOME ENTITLED. FURTHER, IT IS STATED THAT PAY AND ALLOWANCES ARE DEFINED IN 37 U.S.C. 551(3)(F) AS INCLUDING "STATION PER DIEM ALLOWANCES FOR NOT MORE THAN 90 DAYS." AND IT IS STATED THAT STATION ALLOWANCES INCLUDE TEMPORARY LODGING ALLOWANCES (PARAGRAPH M4300-4, JOINT TRAVEL REGULATIONS).

THE ASSISTANT SECRETARY SAYS IT IS RECOGNIZED THAT A MEMBER WHO IS REPORTED DEAD IS NOT ENTITLED TO THE PAY AND ALLOWANCES REFERRED TO IN 37 U.S.C. 552(A) AND THEREFORE THE SECRETARIES COULD NOT PRESCRIBE A TEMPORARY LODGING ALLOWANCE UNDER 37 U.S.C. 405 INCIDENT TO MOVEMENT OF DEPENDENTS UPON RECEIPT OF NOTICE OF DEATH OF A MEMBER. HE SAYS IT DOES APPEAR, HOWEVER, THAT THE SECRETARIES, WITHIN THE AUTHORITY VESTED IN THEM BY 37 U.S.C. 405, MAY PROVIDE FOR CONTINUATION OF PAYMENT OF STATION ALLOWANCES IN THE CASE OF A MEMBER WHO WAS ENTITLED THERETO AT THE TIME HE ENTERED A MISSING STATUS AND PAYMENT OF TEMPORARY LODGING ALLOWANCES TO WHICH HE WOULD HAVE THEREAFTER BECOME ENTITLED. BUT HE SAYS SOME DOUBT POSSIBLY MAY ARISE AS TO THE LEGALITY OF AUTHORIZING TEMPORARY LODGING ALLOWANCE IN THE CASE WHERE THE MEMBER IS OF A PAY GRADE NOT ENTITLED TO STATION ALLOWANCES AT THE TIME HE ENTERED A MISSING STATUS AS DEFINED IN 37 U.S.C. 551(2), OR AN INJURED STATUS UNDER THE PROVISIONS OF 37 U.S.C. 554(B).

STATION ALLOWANCES PAYABLE OUTSIDE THE UNITED STATES CONSIST OF HOUSING AND COST-OF-LIVING ALLOWANCES, INTERIM HOUSING ALLOWANCES AND TEMPORARY LODGING ALLOWANCES. PARAGRAPH M4300-4, JOINT TRAVEL REGULATIONS. HOUSING AND COST-OF-LIVING ALLOWANCES ARE AUTHORIZED FOR THE PURPOSE OF DEFRAYING THE AVERAGE EXCESS DAILY LIVING COSTS EXPERIENCED BY MEMBERS ON PERMANENT DUTY. PARAGRAPH M4301 OF THE REGULATIONS.

TEMPORARY LODGING ALLOWANCES, HOWEVER, DO NOT RELATE TO AVERAGE EXCESS DAILY LIVING COSTS BUT, INSOFAR AS DEPARTURE FROM THE STATION IS CONCERNED, ARE AUTHORIZED FOR THE PURPOSE OF PARTIALLY REIMBURSING A MEMBER FOR THE MORE THAN NORMAL EXPENSES INCURRED AT HOTEL OR HOTEL LIKE ACCOMMODATIONS AND PUBLIC RESTAURANTS NECESSARILY USED FOR PRESCRIBED PERIODS IMMEDIATELY PRECEDING DEPARTURE FROM THE OVERSEAS STATION ON A PERMANENT CHANGE OF STATION. PARAGRAPH M4303 OF THE REGULATIONS. THE TEMPORARY LODGING ALLOWANCE ACCRUES IN SUCH CASES ONLY INCIDENT TO AN ORDERED CHANGE OF PERMANENT STATION. AS ITS NAME IMPLIES, IT IS A TEMPORARY ALLOWANCE. IT IS NOT PAYABLE TO EVERYONE BUT IS PAYABLE ONLY TO THOSE MEMBERS WHO MUST TEMPORARILY USE THE ENUMERATED TRANSIENT LODGING AND SUBSISTENCE ACCOMMODATIONS AS A CONSEQUENCE OF CHANGE OF PERMANENT STATION ORDERS.

SECTION 552 OF TITLE 37, U.S. CODE, STEMS FROM SECTION 2 OF THE APP. 1002. THE LEGISLATIVE HISTORY OF THE MISSING PERSONS ACT, FIRST MISSING PERSONS ACT, AS AMENDED, FORMERLY CONTAINED IN 50 U.S.C. ENACTED IN 1942 AS TEMPORARY WARTIME LEGISLATION, SHOWS THAT THE BASIC PURPOSE OF THE ACT WAS TO PROVIDE FOR THE DEPENDENTS OF MEMBERS WHO WERE MISSING BY CONTINUING THEIR PAY OR CREDITING TO THEIR ACCOUNT THE SAME PAY AND ALLOWANCES TO WHICH THEY WERE ENTITLED AT THE BEGINNING OF SUCH PERIOD OF ABSENCE, OR BECAME ENTITLED THEREAFTER.

THE ACT AS AMENDED AND TEMPORARILY EXTENDED WAS FURTHER AMENDED AND MADE PERMANENT BY PUBLIC LAW 85-217, APPROVED AUGUST 29, 1957, 71 STAT. 491. SECTION 2 OF THE 1942 ACT, AS AMENDED, WAS FURTHER AMENDED BY THE 1957 ACT TO SPECIFICALLY DESIGNATE THE ITEMS OF PAY AND ALLOWANCES WHICH A MEMBER IS ENTITLED TO RECEIVE OR HAVE CREDITED TO HIS ACCOUNT WHILE ABSENT IN A STATUS WITHIN THE CONTEMPLATION OF THAT SECTION. SUCH ITEMS INCLUDED "STATION PER DIEM ALLOWANCES FOR NOT TO EXCEED NINETY DAYS, TO WHICH HE WAS ENTITLED AT THE BEGINNING OF SUCH PERIOD OF ABSENCE OR MAY BECOME ENTITLED THEREAFTER ***."

HEARINGS WERE HELD ON MARCH 6, 1957, BEFORE SUBCOMMITTEE NO. 1, COMMITTEE ON ARMED SERVICES, HOUSE OF REPRESENTATIVES, ON H.R. 2404, A BILL WHICH PRECEDED H.R. 5807, THAT WAS ENACTED AS PUBLIC LAW 85-217. UNDER H.R. 2404, NEITHER TRAVEL PER DIEM NOR STATION ALLOWANCES WOULD HAVE BEEN AUTHORIZED INCIDENT TO A MISSING STATUS. MAJOR E. A. TURROU, THE ADJUTANT GENERAL'S OFFICE, DEPARTMENT OF THE ARMY, TESTIFIED AS TO THE NEED TO CONTINUE STATION ALLOWANCES. HE SAID THAT IT WAS THE POLICY WHEN AN INDIVIDUAL WAS PLACED IN A MISSING-IN-ACTION STATUS TO CARRY HIM IN SUCH STATUS GENERALLY FOR 30 DAYS BEFORE ACTION WAS TAKEN TO EVACUATE THE DEPENDENTS BACK TO THE UNITED STATES.

MAJOR TURROU FURTHER STATED THAT DURING SUCH PERIOD THAT THE INDIVIDUAL HAS DEPENDENTS IN THE AREA, ADDITIONAL COSTS ARE ACCRUING TO THE DEPENDENTS WHO MUST RENT AN APARTMENT, PURCHASE THEIR FOOD, AND PAY FOR UTILITIES IN THAT COUNTRY ON THE HIGHER LIVING COSTS. THEREFORE, HE SAID IT WAS THE FEELING OF THE DEPARTMENT THAT THOSE STATION ALLOWANCES SHOULD CONTINUE AS LONG AS THE NEED EXISTS FOR THE FAMILY OF THE INDIVIDUAL, AND AS SOON AS THEY ARE EVACUATED TO THE UNITED STATES, THE ALLOWANCES, OF COURSE, WOULD BE TERMINATED.

IT APPEARS THAT, ON THE BASIS OF SUCH TESTIMONY, THE PROVISION FOR CONTINUING STATION ALLOWANCES FOR NOT TO EXCEED 90 DAYS WAS INCLUDED IN H.R. 5807. NOTHING WAS SAID AS TO THE PAYMENT OF TEMPORARY LODGING ALLOWANCE INCIDENT TO THE EVACUATION OF THE DEPENDENTS AND IT SEEMS CLEAR THAT IT WAS THE INTENTION ONLY TO CONTINUE THE STATION ALLOWANCES (HOUSING AND COST-OF-LIVING) TO WHICH THE MEMBER WOULD HAVE BEEN ENTITLED AT SUCH STATION IF HE HAD NOT ENTERED A MISSING STATUS.

IN VIEW OF THE LEGISLATIVE HISTORY AS TO THE STATION ALLOWANCES TO BE CONTINUED WHILE THE MEMBER IS IN A MISSING STATUS AND SINCE A MEMBER IN SUCH STATUS COULD NOT BE ORDERED TO MAKE A PERMANENT CHANGE OF STATION, WE ARE OF THE OPINION THAT THERE IS NO LEGAL AUTHORITY TO PROVIDE FOR THE PAYMENT OF TEMPORARY LODGING ALLOWANCE INCIDENT TO THE EVACUATION OF THE DEPENDENTS OF A MEMBER IN SUCH A STATUS.

WITH RESPECT TO THE EVACUATION OF DEPENDENTS, SECTION 554(B) OF TITLE 37, U.S. CODE, PROVIDES THAT TRANSPORTATION (INCLUDING PACKING, CRATING, DRAYAGE, TEMPORARY STORAGE AND UNPACKING OF HOUSEHOLD 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." SUCH TRANSPORTATION MAY BE PROVIDED TO THE MEMBER'S OFFICIAL RESIDENCE, TO THE RESIDENCE OF HIS DEPENDENTS OR AS OTHERWISE PROVIDED. UNDER THOSE PROVISIONS NO OTHER ALLOWANCES ARE PAYABLE INCIDENT TO SUCH MOVE.

IN THE CASE OF A MEMBER IN AN INJURED STATUS, TRANSPORTATION OF THE DEPENDENTS AND EFFECTS MAY BE PROVIDED (SECTION 554(C)) ONLY WHEN PROLONGED HOSPITALIZATION OR TREATMENT IS ANTICIPATED. BUT, LIKE THE CASE OF A MEMBER WHO IS REPORTED DEAD OR IN A MISSING STATUS, WE FIND NO BASIS FOR AUTHORIZING TEMPORARY LODGING ALLOWANCE INCIDENT TO THE EVACUATION OF HIS DEPENDENTS BECAUSE OF HIS INJURED STATUS UNLESS THEIR MOVEMENT IS IN CONNECTION WITH AN ORDERED PERMANENT CHANGE OF STATION FOR THE MEMBER.

FOR THE FOREGOING REASONS, WE ARE OF THE OPINION THAT THE PROPOSED CHANGE IN THE JOINT TRAVEL REGULATIONS IS NOT AUTHORIZED.