B-18851, AUGUST 25, 1941, 21 COMP. GEN. 175

B-18851, AUGUST 25, 1941, 21 COMP. GEN. 175

TRANSPORTATION - DEPENDENTS - NAVAL RESERVE OFFICERS - TEMPORARY FIRST DUTY STATION THE APPROPRIATION MADE BY THE FOURTH SUPPLEMENTAL NATIONAL DEFENSE APPROPRIATION ACT, 1941, APPROVED MARCH 17, 1941, FOR THE "TRANSPORTATION OF DEPENDENTS OF RETIRED AND RESERVE OFFICERS * * WHEN ORDERED TO ACTIVE DUTY (OTHER THAN TRAINING) AND UPON RELEASE THEREFROM * * *" IS AVAILABLE FOR THE TRANSPORTATION OF DEPENDENTS OF SUCH OFFICERS ONLY IN CONNECTION WITH PERMANENT MOVEMENTS OF THE OFFICERS, AND, THEREFORE, IS NOT AVAILABLE FOR THE TRANSPORTATION OF THE DEPENDENTS OF A NAVAL RESERVE OFFICER TO HIS FIRST DUTY STATION WHICH WAS A TEMPORARY ONE.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY, AUGUST 25, 1941:

I HAVE YOUR LETTER OF JULY 15, 1941, AS FOLLOWS:

THERE IS FORWARDED HEREWITH FOR YOUR CONSIDERATION A LETTER FROM THE BUREAU OF NAVIGATION, NAVY DEPARTMENT, DATED JULY 10, 1941, TRANSMITTING CLAIM OF ENSIGN THOMAS A. MCCLELLAND, C-V (S), U.S. NAVAL RESERVE, FOR PAYMENT OF COST OF TRAVEL OF DEPENDENTS FROM ENGLEWOOD, COLORADO, TO ANNAPOLIS, MD.

TITLE VI, NAVAL APPROPRIATION ACT FOR THE FISCAL YEAR 1941, AS CONTAINED IN THE FOURTH SUPPLEMENTAL NATIONAL DEFENSE APPROPRIATION ACT, 1941, APPROVED MARCH 17, 1941, ( PUBLIC LAW 13, 77TH CONGRESS), PROVIDES THE NECESSARY FUNDS UNDER THE " BUREAU OF SUPPLIES AND ACCOUNTS," FOR THE "TRANSPORTATION OF DEPENDENTS OF RETIRED AND RESERVE OFFICERS * * * WHEN ORDERED TO ACTIVE DUTY (OTHER THAN TRAINING) AND UPON RELEASE THEREFROM.'

THE QUESTION ARISES AS TO WHETHER PAYMENT OF THE ENCLOSED CLAIM IS AUTHORIZED UNDER THE TERMS OF THE ABOVE QUOTED LANGUAGE FROM THE ACT OF MARCH 17, 1941, WITHOUT REGARD TO THE EXISTING INSTRUCTIONS ON THE SUBJECT OF REIMBURSEMENT FOR TRAVEL OF DEPENDENTS AS CONTAINED IN ARTICLE 2505-6, U.S. NAVAL TRAVEL INSTRUCTIONS.

IN CONNECTION WITH THE ATTACHED CLAIM, YOUR DECISION IS REQUESTED AS TO WHETHER TRANSPORTATION OF DEPENDENTS OF THIS RESERVE OFFICER TO HIS FIRST DUTY STATION IS AUTHORIZED UNDER THE PROVISIONS OF THE ACT OF MARCH 17, 1941, SUPRA, IRRESPECTIVE OF WHETHER THE DUTY INVOLVED IS TEMPORARY OR PERMANENT IN NATURE, SO LONG AS THE DUTY IS NOT FOR TRAINING PURPOSES, OR WHETHER TRANSPORTATION OF DEPENDENTS UNDER SAID ACT IS AUTHORIZED ONLY TO THE FIRST PERMANENT DUTY STATION.

IN VIEW OF THE NUMBER OF SIMILAR CASES INVOLVED, YOUR EARLY DECISION IN THE PRESENT CASE WILL BE APPRECIATED.

SECTION 12 OF THE ACT OF MAY 18, 1920, 41 STAT. 604, THE BASIC STATUTORY CONDITIONS UNDER WHICH THE TRANSPORTATION OF THE DEPENDENTS OF MILITARY AND NAVAL PERSONNEL AT GOVERNMENT EXPENSE IS AUTHORIZED, READS, IN PERTINENT PART, AS FOLLOWS:

* * * HEREAFTER WHEN ANY COMMISSIONED OFFICER, NONCOMMISSIONED OFFICER OF THE GRADE OF COLOR SERGEANT AND ABOVE, INCLUDING ANY NONCOMMISSIONED OFFICER OF THE MARINE CORPS OF CORRESPONDING GRADE, WARRANT OFFICER, CHIEF PETTY OFFICER, OR PETTY OFFICER (FIRST), HAVING A WIFE OR DEPENDENT CHILD OR CHILDREN, IS ORDERED TO MAKE A PERMANENT CHANGE OF STATION, THE UNITED STATES SHALL FURNISH TRANSPORTATION IN KIND FROM FUNDS APPROPRIATED FOR THE TRANSPORTATION OF THE ARMY, THE NAVY, THE MARINE CORPS, THE COAST GUARD, THE COAST AND GEODETIC SURVEY AND THE PUBLIC HEALTH SERVICE TO HIS NEW STATION FOR THE WIFE AND DEPENDENT CHILD OR CHILDREN: * * * ( ITALICS SUPPLIED.)

BY SECTION 12 OF THE ACT OF JUNE 10, 1922, 42 STAT. 631, PROVISION WAS MADE FOR PAYMENT OF MONEY EQUALLING COMMERCIAL TRANSPORTATION COSTS IN LIEU OF THE TRANSPORTATION IN KIND AUTHORIZED BY THE ABOVE-QUOTED SECTION, WHEN THE TRAVEL SHALL HAVE BEEN COMPLETED.

IN VIEW THAT SECTION 12 OF THE ACT OF MAY 18, 1920, SUPRA, IN PLAIN TERMS PROVIDES FOR TRANSPORTATION OF DEPENDENTS ONLY ON PERMANENT CHANGE OF STATION, THE DECISIONS OF THIS OFFICE, WITHOUT EXCEPTION, HAVE REFUSED TO AUTHORIZE OR APPROVE ANY EXPENDITURE OF PUBLIC FUNDS IN CONNECTION WITH THE TRANSPORTATION OF THE DEPENDENTS OF SERVICE PERSONNEL TO OR FROM TEMPORARY DUTY STATIONS UNDER APPROPRIATIONS SUCH AS THE ONE IN THE NAVAL APPROPRIATION ACT FOR THE FISCAL YEAR ENDING JUNE 30, 1941 (ACT OF JUNE 11, 1940, 54 STAT. 265, 276), WHICH PROVIDES A SPECIFIC SUM FOR ,TRANSPORTATION OF DEPENDENTS OF OFFICERS AND ENLISTED MEN.' HOWEVER, YOU EXPRESS SOME DOUBT AS TO THE APPLICABILITY OF THIS GENERAL RULE TO RESERVE OFFICERS ORDERED TO ACTIVE DUTY BY REASON OF THE DIFFERENT APPROPRIATING LANGUAGE IN THE FOURTH SUPPLEMENTAL NATIONAL DEFENSE APPROPRIATION ACT, 1941 (ACT OF MARCH 17, 1941, 55 STAT. 34). THIS ACT, MAKING APPROPRIATIONS "SUPPLEMENTAL AND IN ADDITION TO THE APPROPRIATIONS IN THE NAVAL APPROPRIATION ACT FOR THE FISCAL YEAR ENDING JUNE 30, 1941," MAKES AN APPROPRIATION IN LANGUAGE AS FOLLOWS:

* * * TRANSPORTATION OF DEPENDENTS OF RETIRED AND RESERVE OFFICERS AND OF RETIRED AND RESERVE ENLISTED MEN (OF GRADES ENTITLED TO TRANSPORTATION FOR DEPENDENTS IN THE REGULAR NAVY) WHEN ORDERED TO ACTIVE DUTY (OTHER THAN TRAINING AND UPON RELEASE THEREFROM * * *.

PRIOR TO THE ENACTMENT OF THE ABOVE PROVISION IT WAS HELD IN DECISION TO THE SECRETARY OF THE NAVY DATED JANUARY 13, 1941, 20 COMP. GEN. 363, THAT TRANSPORTATION OF DEPENDENTS OF RESERVE OR RETIRED OFFICERS FROM THEIR HOMES TO THEIR FIRST DUTY STATIONS WAS NOT AUTHORIZED. SEE, ALSO, 20 COMP. GEN. 71, WITH RESPECT TO ARMY RESERVE OFFICERS. IN THE DECISION OF JANUARY 13, 1941 (20 COMP. GEN. AT PAGE 367), IT WAS SUGGESTED THAT, UNDER THE STRICT LANGUAGE OF THE LAW, OFFICERS OF THE NAVAL RESERVE AND MARINE CORPS RESERVE WERE NOT ENTITLED TO TRANSPORTATION OF DEPENDENTS. ALSO IN THAT DECISION IT WAS STATED THAT SECTION 3 OF THE NAVAL APPROPRIATION ACT OF JUNE 24, 1935, 49 STAT. 421, PROVIDING THAT THE WORDS "PERMANENT CHANGE OF STATION" AS USED IN SECTION 12 OF THE ACT OF MAY 18, 1920, AS AMENDED, SHALL BE HELD TO INCLUDE THE HOME OF AN OFFICER OR MAN TO WHICH HE IS ORDERED IN CONNECTION WITH RETIREMENT, GOES NO FURTHER THAN ITS PLAIN LANGUAGE IMPORTS AND THE WORDS "PERMANENT STATION" AS USED IN THE 1920 ACT DO NOT INCLUDE THE HOME OF AN OFFICER EXCEPT WHERE HE IS ORDERED THERETO IN CONNECTION WITH HIS RETIREMENT. IN VIEW OF THESE AND RELATED HOLDINGS WHICH PRECEDED THE ENACTMENT OF THE FOURTH SUPPLEMENTAL NATIONAL DEFENSE APPROPRIATION ACT, 1941, AND THE SETTLED POLICY OF THE CONGRESS, IT SEEMS CLEAR THAT THE PURPOSE OF THE ABOVE-QUOTED PROVISION OF THAT ACT WAS MERELY TO AUTHORIZE TRANSPORTATION OF THE DEPENDENTS OF THE PERSONS AND IN THE CIRCUMSTANCES THEREIN DESCRIBED AS PROVIDED BY THE BASIC LAW OF MAY 18, 1920, AND NOT TO AUTHORIZE THE TRANSPORTATION OF DEPENDENTS OF RETIRED AND RESERVE PERSONNEL UNDER NEW OR DIFFERENT CONDITIONS THAN THOSE PRESCRIBED IN THE BASIC LAW.

AS HAS BEEN STATED ABOVE, SECTION 12 OF THE ACT OF MAY 18, 1920, DOES NOT PROVIDE FOR TRANSPORTATION OF DEPENDENTS TO OR FROM TEMPORARY STATIONS AND THE LANGUAGE OF THAT SECTION SHOWS THAT IT IS NOT THE PURPOSE OF THE CONGRESS TO PROVIDE TRANSPORTATION FOR DEPENDENTS IN CONNECTION WITH EVERY MOVEMENT OF AN OFFICER; BUT ONLY IF THE MOVEMENT CAN BE CLASSED AS PERMANENT.

SECTION 6, ARTICLE 2505, NAVY TRAVEL INSTRUCTIONS, DEALING WITH TRANSPORTATION OF DEPENDENTS, PROVIDES, IN PART, AS FOLLOWS:

6. ORDERED TO DUTY UNDER INSTRUCTION.--- IT IS A PERMANENT CHANGE OF STATION ONLY WHEN THE COURSE AT ONE PLACE IS SCHEDULED FOR FIVE MONTHS OR OVER. * * *

ENSIGN MCCLELLAND'S ORDERS DATED APRIL 15, 1941, DIRECTED HIM TO REPORT TO THE SUPERINTENDENT, UNITED STATES NAVAL ACADEMY, ON OR BEFORE APRIL 26, 1941, FOR A SPECIAL COURSE IN COMMUNICATIONS. IN THE LETTER OF THE BUREAU OF NAVIGATION TO YOU UNDER DATE OF JULY 10, 1941, IT IS STATED THAT THE SCHEDULED LENGTH OF THIS COURSE IS FOUR MONTHS.

IN VIEW OF THE FOREGOING, IT APPEARS THE OFFICER'S FIRST ASSIGNMENT WAS TO A TEMPORARY STATION AND THE APPROPRIATION IN THE FOURTH SUPPLEMENTAL NATIONAL DEFENSE APPROPRIATION ACT OF 1941 IS NOT AVAILABLE TO PAY FOR THE TRANSPORTATION OF THE DEPENDENTS OF ENSIGN MCCLELLAND FOR TRAVEL WHICH THEY PERFORMED IN CONNECTION WITH HIS ASSIGNMENT TO A TEMPORARY STATION BY ORDERS OF APRIL 15, 1941.