B-169091, JUNE 1, 1970, 49 COMP. GEN. 821

B-169091, JUNE 1, 1970, 49 COMP. GEN. 821

TRANSPORTATION -- DEPENDENTS -- MILITARY PERSONNEL -- EMERGENCY, ETC., CONDITIONS -- NATURAL DISASTERS THE MOVEMENTS OF DEPENDENTS, BAGGAGE, AND HOUSEHOLD EFFECTS OF MEMBERS OF THE UNIFORMED SERVICES IN UNUSUAL OR EMERGENCY CIRCUMSTANCES ARISING AT DUTY STATIONS IN THE UNITED STATES, SUCH AS HURRICANE CAMILLE, MAY NOT BE AUTHORIZED UNDER 37 U.S.C. 406(E), NOTWITHSTANDING THE AUTHORITY IS NOT RESTRICTED TO OVERSEAS LOCATIONS AS IS THE AUTHORITY IN 37 U.S.C. 406(H), PROVIDING FOR EVACUATION FROM DISASTER AREAS. THE AUTHORITY IN SECTION 406(E) FOR THE MOVEMENT OF DEPENDENTS, BAGGAGE, AND HOUSEHOLD EFFECTS FROM PLACE TO PLACE IN THE UNITED STATES IN UNUSUAL OR EMERGENCY CIRCUMSTANCES INCIDENT TO SOME MILITARY OPERATION OR REQUIREMENT, AFFORDS NO AUTHORITY FOR SUCH MOVEMENTS INCIDENT SOLELY TO NATURAL DISASTERS, EVEN THOUGH THE MOVEMENTS MAY BE IN THE BEST INTEREST OF THE MEMBER, HIS DEPENDENTS, AND THE UNITED STATES.

TO THE SECRETARY OF THE NAVY, JUNE 1, 1970:

IN LETTER RECEIVED HERE FEBRUARY 17, 1970, THE ASSISTANT SECRETARY OF THE NAVY (MANPOWER AND RESERVE AFFAIRS) REQUESTED A DECISION WHETHER SECTION 406(E) OF TITLE 37, U.S. CODE, PROVIDES AUTHORITY FOR THE MOVEMENT OF DEPENDENTS, BAGGAGE AND HOUSEHOLD EFFECTS OF MEMBERS OF THE UNIFORMED SERVICES IN UNUSUAL OR EMERGENCY CIRCUMSTANCES ARISING AT DUTY STATIONS IN THE UNITED STATES. THE REQUEST WAS ASSIGNED CONTROL NO. 70-6 BY THE PIER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

SECTION 406(E) OF TITLE 37, U.S. CODE, PROVIDES THAT WHEN ORDERS DIRECTING A PERMANENT CHANGE OF STATION FOR THE MEMBER CONCERNED 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, THE SECRETARIES MAY AUTHORIZE THE MOVEMENT OF THE DEPENDENTS, BAGGAGE, AND HOUSEHOLD EFFECTS AND PRESCRIBE TRANSPORTATION IN KIND, REIMBURSEMENT THEREFOR, OR A MONETARY ALLOWANCE IN PLACE THEREOF, IN CASES INVOLVING UNUSUAL OR EMERGENCY CIRCUMSTANCES INCLUDING THOSE IN WHICH--

(1) THE MEMBER IS PERFORMING DUTY AT A PLACE DESIGNATED BY THE SECRETARY CONCERNED AS BEING WITHIN A ZONE FROM WHICH DEPENDENTS SHOULD BE EVACUATED;

(2) ORDERS WHICH DIRECT THE MEMBER'S TRAVEL IN CONNECTION WITH TEMPORARY DUTY DO NOT PROVIDE FOR RETURN TO THE PERMANENT STATION OR DO NOT SPECIFY OR IMPLY ANY LIMIT TO THE PERIOD OF ABSENCE FROM HIS PERMANENT STATION; OR

(3) THE MEMBER IS SERVING ON PERMANENT DUTY AT A STATION OUTSIDE THE UNITED STATES, IN HAWAII OR ALASKA, OR ON SEA DUTY.

IN HIS LETTER THE ASSISTANT SECRETARY SAYS THAT WHEN HURRICANE CAMILLE APPROACHED THE UNITED STATES GULF COAST IN AUGUST OF 1969, MILITARY DEPENDENTS LOCATED IN THE GULFPORT AND BILOXI, MISSISSIPPI, AREAS AS WELL AS ELSEWHERE ALONG THE PREDICTED AND ACTUAL PATH OF THAT STORM WERE CAUSED TO EVACUATE THEIR HOMES AND TO SEEK SHELTER AT INLAND LOCATIONS. AND, HE STATES, DUE TO THE DEVASTATION WROUGHT BY THE HURRICANE, REESTABLISHMENT OF PERMANENT RESIDENCES IN THOSE COASTAL AREAS HAS NOT IN ALL CASES BEEN POSSIBLE.

ALSO, HE SAYS THAT WHILE ALLOWANCES FOR EVACUATION FROM OVERSEAS AREAS ARE AUTHORIZED BY CHAPTER 12 OF THE JOINT TRAVEL REGULATIONS BASED UPON THE PROVISIONS OF 37 U.S.C. 405A, IT APPEARS CLEAR THAT IT WAS THE CONGRESSIONAL INTENT IN ENACTING THAT LAW TO MAKE THE ALLOWANCES CONTEMPLATED THEREIN APPLICABLE SOLELY TO DEPENDENTS WHO ARE LOCATED AT OR ARE EN ROUTE TO OVERSEAS STATIONS AND NOT TO DEPENDENTS EVACUATED FROM AREAS WITHIN THE UNITED STATES.

THE ASSISTANT SECRETARY REFERS TO 38 COMP. GEN. 28 (1958), WHICH HE SAYS MIGHT BE INTERPRETED TO INDICATE THAT THE APPLICATION OF SECTION 406(E) WITH RESPECT TO EVACUATION ZONES CONTEMPLATED BY SUBSECTION (1) THEREOF, REFERRED TO OVERSEAS LOCATIONS ONLY. WITH RESPECT TO THIS, HE SAYS THAT SINCE THE LANGUAGE WAS RENDERED IN RESPONSE TO AN INQUIRY SPECIFICALLY ADDRESSING ADVANCE RETURN OF DEPENDENTS FROM OVERSEAS STATIONS, HE BELIEVES THAT IT WAS NOT OUR INTENTION IN THE USE OF THAT LANGUAGE TO IMPOSE SUCH A RESTRICTION.

THE ASSISTANT SECRETARY'S QUESTION IS NOT LIMITED TO ANY PARTICULAR CIRCUMSTANCE. HIS DISCUSSION OF THE PROBLEM, HOWEVER, INDICATES THAT HE IS PRIMARILY CONCERNED WITH THE MOVEMENT OF DEPENDENTS INCIDENT TO NATURAL DISASTERS SUCH AS THAT RESULTING FROM HURRICANE CAMILLE.

AS A GENERAL PROPOSITION, SECTION 406 OF TITLE 37 OF THE U.S.C. AUTHORIZES THE TRANSPORTATION OF DEPENDENTS WHEN THE MEMBER IS ORDERED TO MAKE A PERMANENT CHANGE OF STATION. AS AN EXCEPTION TO THE ORDERS REQUIREMENT, SUBSECTION (E) OF SECTION 406 PROVIDES FOR THE MOVEMENT OF DEPENDENTS, BAGGAGE AND HOUSEHOLD EFFECTS IN UNUSUAL OR EMERGENCY CIRCUMSTANCES WITHOUT REGARD TO THE ISSUANCE OF ORDERS DIRECTING A CHANGE OF STATION.

SUBSECTION (E) WAS DERIVED WITHOUT SUBSTANTIVE CHANGE FROM SECTION 303(C) OF THE CAREER COMPENSATION ACT OF 1949, CH. 681, 63 STAT. 814. IN 38 COMP. GEN. 28 (1958) WE CONSIDERED PROPOSED CHANGES IN THE JOINT TRAVEL REGULATIONS RELATING TO THE RETURN UNDER UNUSUAL OR EMERGENCY CIRCUMSTANCES OF DEPENDENTS AND HOUSEHOLD EFFECTS OF MEMBERS OF THE UNIFORMED SERVICES FROM OVERSEAS STATIONS TO THE UNITED STATES PRIOR TO ORDERS DIRECTING RETURN OF THE MEMBERS. WE SAID THAT THE TERM "UNUSUAL OR EMERGENCY CIRCUMSTANCES" AS USED IN SECTION 303(C) OF THE CAREER COMPENSATION ACT OF 1949 HAD REFERENCE TO CONDITIONS OF A GENERAL NATURE ARISING AT OVERSEAS DUTY STATIONS WHICH CANNOT READILY BE FORESEEN AND WHICH CHANGE IN AN UNEXPECTED MANNER. WE SAID FURTHER THAT THE STATUTE IN CONCERNED PRIMARILY WITH EMERGENCIES DEEMED TO REQUIRE THE MOVEMENT OF DEPENDENTS, NOT THE MEMBER, AND THAT, BASICALLY IT AUTHORIZES THE SECRETARIES TO ISSUE REGULATIONS PROVIDING FOR THE EARLY RETURN OF DEPENDENTS AND HOUSEHOLD EFFECTS ONLY BECAUSE OF ACTUAL CONDITIONS OF AN EMERGENCY NATURE ARISING AT OVERSEAS DUTY STATIONS WHICH JUSTIFY SUCH RETURN AND WHICH GENERALLY COULD NOT ARISE, OR ARE MOST UNLIKELY TO ARISE IN THE CASE OF MEMBERS SERVING IN THE UNITED STATES.

THE 1958 DECISION CONCERNED THE APPLICABILITY OF CLAUSE 1 OF THE STATUTE, QUOTED ABOVE, AND AS STATED BY THE ASSISTANT SECRETARY, IT WAS RENDERED IN RESPONSE TO AN INQUIRY SPECIFICALLY ADDRESSED TO ADVANCE RETURN OF DEPENDENTS FROM OVERSEAS STATIONS. SECTION 406(E), HOWEVER, IS NOT RESTRICTED TO THE MOVEMENT OF DEPENDENTS LOCATED IN OVERSEAS AREAS AND WE HAVE SO HELD.

IN 45 COMP. GEN. 159 (1965) WE HELD THAT UNDER THE UNUSUAL AND EMERGENCY CIRCUMSTANCE PROVISION OF SECTION 406(E) THE JOINT TRAVEL REGULATIONS COULD BE AMENDED TO PROVIDE THAT MEMBERS ATTACHED TO SHIPS AND STAFFS DEPLOYED AWAY FROM HOME PORT OR HOME YARD (CONTEMPLATED TO BE FOR AT LEAST 1 YEAR) ON OPERATIONAL COMMITMENTS IN THE WESTERN PACIFIC MAY BE AUTHORIZED TRANSPORTATION FOR DEPENDENTS AND HOUSEHOLD EFFECTS TO A DESIGNATED PLACE IN ACCORDANCE WITH PARAGRAPH M7005 OF THE REGULATIONS.

IN 45 COMP. GEN. 208 (1965) WE CONCLUDED THAT UNDER THOSE PROVISIONS (406(E)) THE JOINT TRAVEL REGULATIONS SHOULD BE AMENDED TO PERMIT THE MOVEMENT OF DEPENDENTS, BAGGAGE AND HOUSEHOLD EFFECTS OF MEMBERS OF THE UNIFORMED SERVICES, IN THE CASE OF MEMBERS WHO ARE ASSIGNED TO UNITS WHICH HAVE BEEN ALERTED FOR POSSIBLE DEPLOYMENT OVERSEAS, IN THE SAME MANNER AND ON THE SAME BASIS AS WAS AUTHORIZED FOR MEMBERS ASSIGNED TO RESTRICTED STATIONS. IN ARRIVING AT THIS CONCLUSION WE SAID THAT WHILE THE EMPHASIS OF THE STATUTORY PROVISION IS UPON THE RETURN OF DEPENDENTS FROM OVERSEAS STATIONS PRIOR TO ORDERS, THE LEGISLATIVE HISTORY INDICATES AN INTENT TO ALSO PROVIDE AUTHORITY IN UNUSUAL OR EMERGENCY CIRCUMSTANCES FOR THE MOVEMENT OF DEPENDENTS AND HOUSEHOLD EFFECTS BETWEEN POINTS IN THE UNITED STATES.

THE UNUSUAL OR EMERGENCY CIRCUMSTANCES CONSIDERED IN THE 1965 DECISIONS, HOWEVER, INVOLVED CIRCUMSTANCES INCIDENT TO MILITARY OPERATIONS OR MILITARY NEED. THE MOVEMENT OF DEPENDENTS FOR REASONS ENTIRELY UNRELATED TO ANY MILITARY REQUIREMENT WAS NOT INVOLVED.

NATURAL DISASTERS SUCH AS HURRICANE CAMILLE WOULD APPEAR TO BE ENTIRELY UNRELATED TO ANY MILITARY OPERATION OR NEED AND THE QUESTION WHETHER ANY INDIVIDUAL SHOULD LEAVE THE AREA THREATENED BY SUCH NATURAL DISASTER APPEARS, GENERALLY, TO HAVE BEEN REGARDED AS FOR DETERMINATION BY THE INDIVIDUAL CONCERNED IN THE LIGHT OF HIS OR HER PARTICULAR CIRCUMSTANCES. THE MILITARY AND CIVILIAN POPULATION ARE ALIKE IN THIS RESPECT AND, WHEN SUCH A DISASTER HAS HAPPENED, NEEDED ASSISTANCE HAS BEEN PROVIDED BY RELIEF ORGANIZATIONS AND THE ARMED FORCES TO ALL IN NEED WITHOUT REGARD TO THEIR MILITARY OR CIVILIAN STATUS. INSOFAR AS WE ARE AWARE, THE STATUTORY PROVISIONS RELATING TO THE TRANSPORTATION OF DEPENDENTS HAVE NEVER BEEN VIEWED AS AUTHORIZING TRANSPORTATION WITHIN THE CONTINENTAL UNITED STATES IN SUCH CASES.

WE RECOGNIZED THAT, ASIDE FROM ANY MILITARY REQUIREMENTS, IT MAY BE IN THE INTEREST OF THE MEMBER OR HIS DEPENDENTS AND THE UNITED STATES TO EVACUATE DEPENDENTS FROM AN AREA IN THE UNITED STATES WHICH HAS SUFFERED A DISASTER SUCH AS THAT RESULTING FROM HURRICANE CAMILLE. STATUTORY AUTHORITY FOR THE EVACUATION OF DEPENDENTS FOR SUCH REASONS, HOWEVER, IS NOT PROVIDED BY 37 U.S.C. 406(E) BUT IS CONTAINED IN 37 U.S.C. 406(H). THE PROVISIONS OF 37 U.S.C. 406(H) APPLY ONLY IN THE CASE OF DEPENDENTS WHO ARE LOCATED IN OVERSEAS AREAS. 47 COMP. GEN. 775 (1968).

IN LINE WITH THE FOREGOING, IT IS OUR OPINION THAT 37 U.S.C. 406(E) PROVIDES AUTHORITY FOR THE MOVEMENT OF DEPENDENTS AND HOUSEHOLD EFFECTS FROM PLACE TO PLACE IN THE UNITED STATES IN UNUSUAL OR EMERGENCY CIRCUMSTANCES INCIDENT TO SOME MILITARY OPERATION OR REQUIREMENT. WE DO NOT, HOWEVER, FIND ANY SOUND LEGAL BASIS FOR CONCLUDING THAT SECTION 406(E) AFFORDS AUTHORITY FOR SUCH MOVEMENTS INCIDENT SOLELY TO NATURAL DISASTERS EVEN THOUGH THE MOVEMENTS MAY BE IN THE BEST INTEREST OF THE MEMBER OR THE DEPENDENTS AND THE UNITED STATES.