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B-177018, DEC 22, 1972

B-177018 Dec 22, 1972
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WAS FOR THE PURPOSE OF DISTINGUISHING OVERHAULS FROM INACTIVATIONS. WHILE THE PURPOSE OF THIS OVERHAUL WAS TO RENDER THE VESSEL FIT FOR ACTIVE SERVICE WITH THE TURKISH NAVY. IT SEEMS CLEAR THAT THE OPERATION WAS NOT TO PREPARE THE VESSEL FOR "MOTHBALLING" OR RETIREMENT FROM ACTIVE SERVICE. IS OF THE OPINION THAT THE TRAVEL REASONABLY MAY BE VIEWED AS COMING WITHIN THE CONTEMPLATION OF 37 U.S.C. 406B. S. GAETANO: REFERENCE IS MADE TO YOUR LETTER OF AUGUST 4. DURING THE PERIOD OF OVERHAUL THREE CREW MEMBERS WERE GIVEN AUTHORIZATION TO TRAVEL FROM PHILADELPHIA TO NEW LONDON AND RETURN UNDER THE AUTHORITY OF PARAGRAPH M6700 OF THE JOINT TRAVEL REGULATIONS. THEY HAVE CLAIMED MILEAGE ALLOWANCES FOR TRAVEL FROM PHILADELPHIA TO NEW LONDON.

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B-177018, DEC 22, 1972

MILITARY PERSONNEL - TRAVEL EXPENSES - OVERHAUL OF VESSEL FOR LOAN TO TURKEY ADVANCE DECISION AS TO THE LEGALITY OF PAYMENT OF THE CLAIMS OF THREE FORMER CREW MEMBERS OF THE U.S.S. ENTEMEDOR FOR REIMBURSEMENT INCIDENT TO ROUND TRIP TRANSPORTATION FROM PLACE OF OVERHAUL TO HOME PORT. THE LANGUAGE USED IN DECISION B-163798, OCTOBER 26, 1970, 50 COMP. GEN. 320, WAS FOR THE PURPOSE OF DISTINGUISHING OVERHAULS FROM INACTIVATIONS, EVEN THOUGH IN THE INACTIVATION PROCESS SOME INCIDENTAL MAINTENANCE MIGHT BE PERFORMED. WHILE THE PURPOSE OF THIS OVERHAUL WAS TO RENDER THE VESSEL FIT FOR ACTIVE SERVICE WITH THE TURKISH NAVY, RATHER THAN FOR CONTINUED ACTIVE SERVICE WITH THE UNITED STATES NAVY, IT SEEMS CLEAR THAT THE OPERATION WAS NOT TO PREPARE THE VESSEL FOR "MOTHBALLING" OR RETIREMENT FROM ACTIVE SERVICE. IN THESE CIRCUMSTANCES THE COMP. GEN. IS OF THE OPINION THAT THE TRAVEL REASONABLY MAY BE VIEWED AS COMING WITHIN THE CONTEMPLATION OF 37 U.S.C. 406B.

TO MR. S. GAETANO:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 4, 1972, WITH ATTACHMENTS, FILE REFERENCE NFO-4, FORWARDED HERE BY ENDORSEMENT OF SEPTEMBER 11, 1972, FROM THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE (CONTROL NO. 72-44), REQUESTING AN ADVANCE DECISION AS TO THE LEGALITY OF PAYMENT OF THE CLAIMS OF THREE FORMER CREW MEMBERS OF THE U.S.S. ENTEMEDOR (SS- 340) FOR REIMBURSEMENT INCIDENT TO ROUND TRIP TRANSPORTATION FROM PLACE OF OVERHAUL TO HOME PORT.

YOU SAY THAT ON JUNE 4, 1972, THE U.S.S. ENTEMEDOR, HOMEPORTED AT NEW LONDON, CONNECTICUT, ARRIVED AT THE NAVAL SHIPYARD, PHILADELPHIA, PENNSYLVANIA, FOR A RESTRICTED AVAILABILITY OVERHAUL. DURING THE PERIOD OF OVERHAUL THREE CREW MEMBERS WERE GIVEN AUTHORIZATION TO TRAVEL FROM PHILADELPHIA TO NEW LONDON AND RETURN UNDER THE AUTHORITY OF PARAGRAPH M6700 OF THE JOINT TRAVEL REGULATIONS.

THE CREW MEMBERS TRAVELED TO NEW LONDON VIA PRIVATELY OWNED VEHICLE ON JULY 14, 1972, AND RETURNED VIA GOVERNMENT PROCURED AIR; THEY HAVE CLAIMED MILEAGE ALLOWANCES FOR TRAVEL FROM PHILADELPHIA TO NEW LONDON. FOLLOWING THEIR RETURN TO PHILADELPHIA THE ENTEMEDOR RETURNED TO NEW LONDON AND WAS DECOMMISSIONED ON JULY 31, 1972, FOR LOAN TO THE TURKISH GOVERNMENT.

YOU REFER TO SECRETARY OF THE NAVY INSTRUCTION 7220.67, CHANGE 1, AS INDICATING THAT A RULING BY THE COMPTROLLER GENERAL OF THE UNITED STATES LIMITED THE TRANSPORTATION PROVIDED UNDER THE PROVISIONS OF PUBLIC LAW 91- 210 TO OVERHAULS INVOLVING THE PERFORMANCE OF MAINTENANCE FOR CONTINUED ACTIVE SERVICE. THEREFORE, YOU ARE DOUBTFUL REGARDING THE ALLOWANCES CLAIMED, AS THE U.S.S. ENTEMEDOR DID NOT REMAIN IN AN ACTIVE SERVICE STATUS IN THE NAVY UPON COMPLETION OF OVERHAUL.

BY ENDORSEMENT TO YOUR LETTER, THE CHIEF OF NAVAL PERSONNEL EXPRESSES THE OPINION THAT THE MEMBERS ARE ENTITLED TO REIMBURSEMENT FOR THEIR TRAVEL EXPENSES BECAUSE THE ENTEMEDOR CONTINUED AS AN ACTIVE SHIP IN THE UNITED STATES NAVY AFTER COMPLETION OF OVERHAUL AND UNTIL SUCH TIME AS IT WAS DECOMMISSIONED. ADDITIONALLY, HE STATES THAT UNDER THE PROVISIONS OF PUBLIC LAW 92-270 (50 U.S. CODE APP. 1878ZZ-4 TO -8, APRIL 6, 1972), TITLE TO THE SHIP REMAINS WITH THE UNITED STATES, AND AT THE END OF THE LOAN PERIOD, NOT TO EXCEED FIVE YEARS, IT IS TO BE RETURNED TO THE UNITED STATES NAVY.

IN ANOTHER ENDORSEMENT, THE COMPTROLLER OF THE NAVY CONTENDS THAT REIMBURSEMENT SHOULD NOT BE AUTHORIZED BECAUSE THE ENTEMEDOR WAS NOT BEING OVERHAULED FOR THE PURPOSE OF CONTINUED ACTIVE SERVICE WITH THE UNIFORMED SERVICES OF THE UNITED STATES.

SECTION 406B OF TITLE 37, U.S. CODE, ADDED AS A NEW SECTION TO CHAPTER 7 OF THAT TITLE BY SECTION (1) OF PUBLIC LAW 91-210, APPROVED MARCH 13, 1970, PROVIDES:

"UNDER REGULATIONS PRESCRIBED BY THE SECRETARY CONCERNED, A MEMBER OF THE UNIFORMED SERVICES WHO IS ON PERMANENT DUTY ABOARD A SHIP WHICH IS BEING OVERHAULED AWAY FROM ITS HOME PORT AND WHOSE DEPENDENTS ARE RESIDING AT THE HOME PORT OF THE SHIP IS ENTITLED TO TRANSPORTATION, TRANSPORTATION IN KIND, REIMBURSEMENT FOR PERSONALLY PROCURED TRANSPORTATION, OR AN ALLOWANCE FOR TRANSPORTATION AS PROVIDED IN SECTION 404(D)(3) OF THIS CHAPTER FOR ROUND TRIP TRAVEL FROM THE PORT OF OVERHAUL TO THE HOME PORT

WE HELD IN DECISION B-163798, OCTOBER 26, 1970 (50 COMP. GEN. 320) AND AGAIN ON DECEMBER 22, 1970, THAT THIS STATUTE DOES NOT AUTHORIZE REIMBURSEMENT FOR ROUND TRIP TRAVEL TO VISIT DEPENDENTS AT THE HOME PORT WHEN A SHIP IS BEING INACTIVATED. WE STATED IN THE LATTER DECISION, THAT "IT SEEMS CLEAR *** THAT THE LEGISLATION WAS ENACTED TO AUTHORIZE TRAVEL OF MEMBERS INCIDENT TO THE OVERHAUL OF VESSELS FOR CONTINUED ACTIVE OPERATION ***."

THE TERM "OVERHAUL" IS EMPLOYED IN 37 U.S.C. 406B WITHOUT LIMITATION AS TO TYPE OF OVERHAUL, NOR DOES THE LEGISLATIVE HISTORY INDICATE THAT THIS PROVISION IS TO BE RESTRICTED TO OVERHAULS PERFORMED ONLY FOR CERTAIN PURPOSES. OUR USE OF THE PHRASE "CONTINUED ACTIVE OPERATION" IN CONNECTION WITH OVERHAULS WAS FOR THE PURPOSE OF DISTINGUISHING OVERHAULS FROM INACTIVATIONS, EVEN THOUGH IN THE INACTIVATION OR "MOTHBALLING" PROCESS SOME INCIDENTAL MAINTENANCE MIGHT BE PERFORMED.

WE HAVE BEEN ADVISED, INFORMALLY, THAT PRIOR TO OVERHAUL, IT HAD BEEN DETERMINED THAT U.S.S. ENTEMEDOR WOULD BE DECOMMISSIONED UPON RETURN TO NEW LONDON, AND TURNED OVER TO THE TURKISH NAVY, FOR FURTHER SERVICE. WHILE THE PURPOSE OF THE OVERHAUL WAS TO RENDER THE VESSEL FIT FOR ACTIVE SERVICE WITH THE TURKISH NAVY, RATHER THAN FOR CONTINUED ACTIVE SERVICE WITH THE UNITED STATES NAVY, IT SEEMS CLEAR THAT THE OPERATION WAS NOT TO PREPARE THE VESSEL FOR "MOTHBALLING" OR RETIREMENT FROM ACTIVE SERVICE. RATHER IT WAS IN FACT AN OVERHAUL FOR CONTINUED ACTIVE SERVICE EVEN THOUGH THE VESSEL WAS DECOMMISSIONED UPON RETURN TO ITS HOME PORT. IN THESE CIRCUMSTANCES WE ARE OF THE OPINION THAT THE TRAVEL REASONABLY MAY BE VIEWED AS COMING WITHIN THE CONTEMPLATION OF 37 U.S.C. 406B.

THEREFORE, WE CONCLUDE THAT THE TRANSPORTATION ENTITLEMENTS PROVIDED IN 37 U.S.C. 406B PROPERLY ARE FOR APPLICATION IN THE PRESENT CIRCUMSTANCES AND, IF OTHERWISE PROPER, THE MEMBERS MAY BE REIMBURSED FOR TRAVEL BY PRIVATELY OWNED VEHICLE FROM PHILADELPHIA TO NEW LONDON.

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