B-44585, JULY 14, 1945, 25 COMP. GEN. 45

B-44585, JULY 14, 1945, 25 COMP. GEN. 45

TRANSPORTATION - DEPENDENTS OF PERSONS REPORTED AS INJURED, DEAD, MISSING, ETC. THE PROVISIONS OF PROPOSED NAVY DEPARTMENT INSTRUCTIONS UNDER SECTION 12 OF THE MISSING PERSONS ACT, RESPECTING THE TRANSPORTATION OF DEPENDENTS OF PERSONNEL OFFICIALLY REPORTED INJURED, DEAD, MISSING, ETC., WHICH WOULD AUTHORIZE REIMBURSEMENT FOR THE COST OF DEPENDENTS' TRANSPORTATION, OR THE FURNISHING OF TRANSPORTATION IN KIND, TO THE OFFICIAL RESIDENCE OF THE SENIOR DEPENDENT, RESIDENCE OF RELATIVES, OR OTHER PLACES NOT THE OFFICIAL RESIDENCE OF THE PERSON REPORTED INJURED, MISSING, DEAD, ETC., WITHOUT ADVANCE APPLICATION TO AND DETERMINATION BY THE HEAD OF THE DEPARTMENT OR A DESIGNATED PERSON, ARE NOT IN CONFORMANCE WITH THE STATUTE. NAVY DEPARTMENT INSTRUCTIONS UNDER SECTION 12 OF THE MISSING PERSONS ACT RESPECTING THE TRANSPORTATION OF DEPENDENTS OF PERSONNEL OFFICIALLY REPORTED INJURED, DEAD, MISSING, ETC., SHOULD NOT REQUIRE THAT ALL DEPENDENTS OTHER THAN A LAWFUL WIFE OR LEGITIMATE CHILDREN TRAVEL AT PERSONAL EXPENSE AND CLAIM REIMBURSEMENT UPON COMPLETION OF TRAVEL WITHOUT ADVANCE APPLICATION FOR TRANSPORTATION AND DETERMINATION BY PROPER AUTHORITY AS TO THE PLACE TO WHICH TRAVEL IS TO BE PERMITTED AT PUBLIC EXPENSE.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, JULY 14, 1945:

THERE HAS BEEN RECEIVED YOUR LETTER OF JUNE 19, 1945 (JAG:II: WJG:Z,L20- 4/P7), FORWARDING A DRAFT OF PROPOSED REVISED INSTRUCTIONS COVERING TRANSPORTATION OF DEPENDENTS OF SERVICE PERSONNEL UNDER SECTION 12 OF THE MISSING PERSONS ACT OF MARCH 7, 1942, 56 STAT. 146, 50 U.S.C. 1012, SUPP. IV, APPENDIX, AND REQUESTING AN EXPRESSION OF MY VIEWS AS TO THE LEGALITY OF SUCH INSTRUCTIONS INSOFAR AS CONCERNS DISBURSEMENTS TO BE MADE IN ACCORDANCE THEREWITH.

THE PROPOSED INSTRUCTIONS ARE AS FOLLOWS:

FROM: THE SECRETARY OF THE NAVY: TO: ALL SHIPS AND STATIONS.

SUBJECT: TRANSPORTATION FOR DEPENDENTS UNDER THE " MISSING PERSONS

ACT.'

REF. (A) PUBLIC LAW 490, APPROVED 7 MARCH 1942.

(B) PUBLIC LAW 408, APPROVED 1 JULY 1944.

(C) SECNAV LETTER DATED 2 JUNE 1944, PERS 811 CSM-LMR,

L20-4.

1. THE FOLLOWING INSTRUCTIONS HEREBY CANCEL AND REPLACE INSTRUCTIONS CONTAINED IN REFERENCE (C).

2. SECTION 12 OF REFERENCE (A), AS AMENDED BY REFERENCE (B), RETROACTIVELY EFFECTIVE TO 8 SEPTEMBER 1939, AND TO CONTINUE EFFECTIVE UNTIL THE TERMINATION OF THE PRESENT WAR AND FOR TWELVE (12) MONTHS THEREAFTER, AUTHORIZES TRANSPORTATION FOR DEPENDENTS OF PERSONNEL OF THE NAVAL ESTABLISHMENT (INCLUDING THE MARINE CORPS AND THE COAST GUARD), WHEREVER SERVING, AND WITHOUT REGARD TO PAY GRADE, WHEN SUCH PERSONNEL HAVE BEEN OFFICIALLY REPORTED AS INJURED, DEAD, OR MISSING AS THE RESULT OF MILITARY OR NAVAL OPERATIONS, INTERNED IN A NEUTRAL COUNTRY, OR CAPTURED BY THE ENEMY. REFERENCES (A) AND (B) ALSO INCLUDE CIVILIAN OFFICERS OR EMPLOYEES OF THE SAME AGENCIES DURING SUCH TIME AS THEY MAY BE ASSIGNED FOR DUTY OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES OR IN ALASKA, EXCLUSIVE OF PART-TIME OR INTERMITTENT EMPLOYEES OR NATIVE LABOR CASUALLY HIRED ON AN HOURLY OR PER DIEM BASIS.

3. THE TRANSPORTATION AUTHORIZED HEREIN WILL BE FURNISHED BY GOVERNMENT OR COMMERCIAL CONVEYANCE ON THE SAME BASIS AS PROVIDED BY EXISTING INSTRUCTIONS FOR TRAVEL OF DEPENDENTS ON PERMANENT CHANGES OF STATION. THE TRANSPORTATION AUTHORIZED, WHEN APPLIED FOR AS HEREINAFTER, PROVIDED, IS FROM THE PLACE AT WHICH OFFICIAL NOTICE OF STATUS OF THE PERSON CONCERNED IS FIRST RECEIVED, TO THE OFFICIAL RESIDENCE OF RECORD OF SUCH PERSON, OR TO THE OFFICIAL RESIDENCE OF THE SENIOR DEPENDENT, OR TO THE RESIDENCE OF RELATIVES, OR TO SUCH OTHER PLACE AS MAY BE SPECIFICALLY AUTHORIZED IN ADVANCE OR SUBSEQUENTLY APPROVED BY:

(A) THE DIRECTOR OF THE TRANSPORTATION DIVISION, BUREAU OF NAVAL PERSONNEL, WITH RESPECT TO PERSONNEL IN THE NAVY.

(B) THE OFFICER IN CHARGE OF THE CASUALTY DIVISION, PERSONNEL DEPARTMENT, U.S. MARINE CORPS, WITH RESPECT TO PERSONNEL IN THE MARINE CORPS.

(C) THE CHIEF, MILITARY MORALE DIVISION, OFFICE OF PERSONNEL, U.S. COAST GUARD, WITH RESPECT TO THE PERSONNEL OF THE COAST GUARD.

THE REQUEST FOR TRANSPORTATION OR CLAIM FOR REIMBURSEMENT WHEN TRAVEL IS PERFORMED AT OWN EXPENSE SHALL CONTAIN A CERTIFICATE BY THE AUTHORIZED APPLICANT OR CLAIMANT SHOWING THE DATE AND PLACE OF FIRST RECEIPT OF THE OFFICIAL NOTICE REFERRED TO.

(4) APPLICATIONS FOR THE TRANSPORTATION AUTHORIZED HEREIN SHALL BE SUBMITTED BY THE SENIOR DEPENDENT IN EACH CASE ON REQUIRED FORMS ( NAVY, MARINE CORPS, OR COAST GUARD) TO THE NEAREST NAVY, MARINE CORPS, OR COAST GUARD ACTIVITY, DEPENDING ON THE BRANCH OF THE SERVICE INVOLVED, CONTAINING THE CERTIFICATE REFERRED TO IN PARAGRAPH 3 HEREOF, SIGNED BY THE SENIOR DEPENDENT, AND ACCOMPANIED BY THREE (3) CERTIFIED COPIES OF THE OFFICIAL NOTICE. WHEN TRANSPORTATION IS REQUESTED TO THE OFFICIAL RESIDENCE OF THE SENIOR DEPENDENT OR THE RESIDENT OF RELATIVES IT WILL BE FURNISHED WITHOUT REFERENCE TO THE HEADQUARTERS OF THE AGENCY CONCERNED. IN ALL OTHER CASES THE APPLICATIONS WILL BE REFERRED TO THE BUREAU OF NAVAL PERSONNEL, THE QUARTERMASTER GENERAL, MARINE CORPS, OR THE COMMANDANT, U.S. COAST GUARD, AS THE CASE MAY BE, FOR VERIFICATION OR APPROVAL.

5. WHEN TRAVEL AUTHORIZED HEREIN IS PERFORMED AT OWN EXPENSE, CLAIM FOR REIMBURSEMENT SHALL BE SUBMITTED BY THE SENIOR DEPENDENT ON REQUIRED FORMS ( NAVY, MARINE CORPS, OR COAST GUARD) TO THE BUREAU OF NAVAL PERSONNEL, THE QUARTERMASTER, U.S. MARINE CORPS, OR THE COMMANDANT, U.S. COAST GUARD, WASHINGTON, D.C., DEPENDING ON THE BRANCH OF THE SERVICE INVOLVED, AND ACCOMPANIED BY THREE (3) CERTIFIED COPIES OF THE OFFICIAL NOTICE, AS WELL AS THE CERTIFICATE REFERRED TO IN PARAGRAPH 3 HEREOF.

6. EFFECTIVE AS OF 12 MAY 1944, REIMBURSEMENT FOR TRAVEL PERFORMED AT OWN EXPENSE MAY NOT EXCEED AMOUNTS ACTUALLY EXPENDED, NOR MAY IT EXCEED WHAT IT WOULD HAVE COST GHE GOVERNMENT TO HAVE FURNISHED TRANSPORTATION BY AUTHORIZED MEANS. FOR THIS REASON, AND IN ORDER TO DETERMINE AMOUNTS ALLOWED, THE CLAIMS MUST SHOW MODE AND CLASS OF TRAVEL. IF PULLMAN, PARLOR CAR, OR STATEROOM ACCOMMODATIONS ARE OCCUPIED, AND REIMBURSEMENT FOR SUCH ACCOMMODATIONS IS REQUESTED, CLAIM MUST BE ACCOMPANIED BY RECEIPTS OR IDENTIFICATION STUBS FOR SUCH ACCOMMODATIONS, OR, IF NOT OBTAINED, BY AN ITEMIZED ACCOUNT OF THE TRANSPORTATION AND ACCOMMODATIONS OCCUPIED, TOGETHER WITH THE COST THEREOF. IF TRAVEL IS PERFORMED BY PRIVATELY-OWNED AUTOMOBILE, THE CLAIM MUST BE ACCOMPANIED BY AN ITEMIZED ACCOUNT OR RECEIPTS FOR EXPENSES INCURRED WHICH ARE DIRECTLY INCIDENT TO THE OPERATION AND MOVEMENT OF SUCH AUTOMOBILE. REIMBURSEMENT FOR DEPRECIATION OR REPAIRS IS NOT AUTHORIZED.

7. THE TERM "DEPENDENTS" AS USED HEREIN, WILL INCLUDE THE FOLLOWING:

(A) LAWFUL WIFE.

(B) UNMARRIED CHILDREN UNDER TWENTY-ONE (21) YEARS OF AGE.

(C) STEP-CHILDREN AND ADOPTED CHILDREN, WHEN SUCH STEP-CHILDREN OR ADOPTED CHILDREN ARE, IN FACT, DEPENDENT UPON THE PERSON CLAIMING DEPENDENCY.

(D) THE FATHER OR MOTHER OF THE PERSON CONCERNED, PROVIDING HE OR SHE IS, IN FACT, DEPENDENT UPON SUCH PERSON FOR HIS OR HER CHIEF SUPPORT AND IS A MEMBER OF THE IMMEDIATE HOUSEHOLD OF THE PERSON CONCERNED.

(E) SUCH DEPENDENT AS HAD BEEN DESIGNATED IN OFFICIAL RECORDS OR SUCH OTHER PERSON AS MAY BE DETERMINED TO BE A DEPENDENT BY THE DIRECTOR, DEPENDENTS WELFARE DIVISION, BUREAU OF NAVAL PERSONNEL, WITH RESPECT TO PERSONNEL IN THE NAVY, OR BY THE AUTHORITIES MENTIONED IN PARAGRAPH 3 HEREOF, WITH RESPECT TO PERSONNEL IN THE MARINE CORPS OR THE COAST GUARD, AND PROVIDED SUCH DEPENDENT IS A MEMBER OF THE IMMEDIATE HOUSEHOLD OF THE PERSON CONCERNED.

8. THE TERM " OFFICIAL NOTICE," AS USED HEREIN, SHALL INCLUDE VERBAL NOTICE BY COMPETENT AUTHORITY SUBSEQUENTLY CONFIRMED IN WRITING BY SUCH COMPETENT AUTHORITY, AND INCLUDING THE DATE OF THE VERBAL NOTICE.

9. THE TERM " RESULT OF MILITARY OR NAVAL OPERATIONS," AS USED HEREIN, IS NOT LIMITED TO OPERATIONS INCIDENT TO ACTUAL WARFARE, BUT INCLUDES DUTIES DIRECTLY CONNECTED WITH MILITARY OR WARLIKE FUNCTIONS, AS DISTINGUISHED FROM ADMINISTRATIVE FUNCTIONS. DEATH FROM NATURAL CAUSES WOULD NOT BE CONSIDERED THE RESULT OF MILITARY OR NAVAL OPERATIONS. NEITHER WOULD DEATH OR INJURY RESULTING FROM AN ACCIDENT WHILE IN A PASSENGER STATUS ON BOARD NAVAL AIRCRAFT IN AUTHORIZED FLIGHT. ON THE OTHER HAND, THE CREW OF THE AIRCRAFT WOULD BE CONSIDERED AS ENGAGED IN A MILITARY FUNCTION, AND THEIR DEATH OR INJURY WOULD THEREFORE BE THE RESULT OF MILITARY OR NAVAL OPERATIONS.

10. IN VIEW OF THE FACT THAT THE LEGALITY OF TRANSPORTATION FOR DEPENDENTS OTHER THAN A LAWFUL WIFE AND LEGITIMATE CHILDREN IS CONTINGENT UPON A DETERMINATION OF THE FACT OF DEPENDENCY, IT WILL BE NECESSARY FOR THE TRAVEL OF SUCH DEPENDENTS TO BE PERFORMED AT OWN EXPENSE, SUBJECT TO CLAIM FOR REIMBURSEMENT. UPON COMPLETION OF THE TRAVEL, CLAIMS MAY BE SUBMITTED IN THE MANNER PROVIDED HEREIN, AT WHICH TIME THE FACT OF DEPENDENCY WILL BE DETERMINED.

11. TRANSPORTATION FOR DEPENDENTS OF CIVILIAN OFFICERS OR EMPLOYEES AUTHORIZED HEREIN WILL BE CHARGEABLE TO THE SAME APPROPRIATION AVAILABLE FOR TRAVEL OF THE CIVILIANS.

SECTION 12 OF THE MISSING PERSONS ACT, CITED, IS AS FOLLOWS:

THE DEPENDENTS AND HOUSEHOLD AND PERSONAL EFFECTS OF ANY PERSON ON ACTIVE DUTY (WITHOUT REGARD TO PAY GRADE) WHO IS OFFICIALLY REPORTED AS INJURED, DEAD, MISSING AS A RESULT OF MILITARY OR NAVAL OPERATIONS, INTERNED IN A NEUTRAL COUNTRY, OR CAPTURED BY THE ENEMY, MAY BE MOVED (INCLUDING PACKING AND UNPACKING OF HOUSEHOLD EFFECTS) TO THE OFFICIAL RESIDENCE OF RECORD FOR ANY SUCH PERSON, OR, UPON APPLICATION OF SUCH DEPENDENTS, TO SUCH OTHER LOCATIONS AS MAY BE DETERMINED BY THE HEAD OF THE DEPARTMENT CONCERNED OR BY SUCH PERSON AS HE MAY DESIGNATE, BY THE USE OF EITHER COMMERCIAL OR GOVERNMENT TRANSPORTATION: PROVIDED, THAT THE COST OF SUCH TRANSPORTATION, INCLUDING PACKING AND UNPACKING SHALL BE CHARGED AGAINST APPROPRIATIONS CURRENTLY AVAILABLE.

PARAGRAPH 3 OF THE PROPOSED INSTRUCTIONS WOULD AUTHORIZE REIMBURSEMENT FOR COST OF TRAVEL OF DEPENDENTS TO THE OFFICIAL RESIDENCE OF THE SENIOR DEPENDENT, OR TO THE RESIDENCE OF RELATIVES, OR TO ANY OTHER PLACE UPON APPROVAL BY THE PERSON DESIGNATED THEREIN SUBSEQUENT TO PERFORMANCE OF THE TRAVEL. THE OFFICIAL RESIDENCE OF THE SENIOR DEPENDENT, THE RESIDENCE OF RELATIVES AND OTHER PLACES ARE NOT PLACES TO WHICH DEPENDENTS MAY TRAVEL AT PUBLIC EXPENSE UPON SUBSEQUENT APPROVAL OF THE TRAVEL BY THE HEAD OF THE DEPARTMENT OR A DESIGNATED PERSON. IF TRAVEL TO A PLACE OTHER THAN THE OFFICIAL RESIDENCE OF THE PERSON OFFICIALLY REPORTED AS INJURED, DEAD, ETC., IS DESIRED BY A DEPENDENT, THE STATUTE REQUIRES THAT APPLICATION BE MADE THEREFOR AND THAT THE HEAD OF THE DEPARTMENT, OR A PERSON DESIGNATED BY HIM, MAKE A DETERMINATION AS TO WHETHER TRANSPORTATION TO THE PLACE DESIGNATED BY THE DEPENDENT AT PUBLIC EXPENSE IS WARRANTED. SEE DECISION OF DECEMBER 1, 1944, B-44585. WHERE TRAVEL WAS PERFORMED PRIOR TO THE DATE OF THE ACT, WITHIN THE PERIOD RETROACTIVELY COVERED BY THE ACT, APPLICATION COULD NOT, OF COURSE, HAVE BEEN MADE IN ACCORDANCE WITH THE PROVISIONS THEREOF, AND, IN SUCH CASES, IF OTHERWISE PROPER, NO OBJECTION WOULD BE REQUIRED WHERE REIMBURSEMENT WAS MADE UPON SUBSEQUENT APPROVAL OF THE TRAVEL. HOWEVER, IT REASONABLY MAY BE PRESUMED THAT WITH FEW, IF ANY, EXCEPTIONS CLAIMS FOR TRAVEL PRIOR TO THE DATE OF THE ACT HAVE BEEN SETTLED. THE PROPOSED INSTRUCTIONS SHOULD BE MODIFIED IN THIS RESPECT TO CONFORM TO THE PROVISIONS OF THE STATUTE.

THE PROPOSED INSTRUCTIONS IN PARAGRAPH 4 WHICH WOULD PERMIT TRAVEL OF DEPENDENTS TO THE OFFICIAL RESIDENCE OF THE SENIOR DEPENDENT, OR TO THE RESIDENCE OF RELATIVES, WITHOUT APPLICATION TO AND A DETERMINATION BY THE HEAD OF THE DEPARTMENT--- OR A PERSON DESIGNATED BY HIM--- ARE NOT WITHIN THE CONDITIONS OF THE STATUTE, IT BEING A REQUIREMENT OF THE STATUTE THAT A DETERMINATION BE MADE ON APPLICATION OF THE DEPENDENT IN ALL CASES WHERE TRAVEL IS DESIRED TO A PLACE OTHER THAN THE OFFICIAL RESIDENCE OF THE PERSON REPORTED AS INJURED, DEAD, ETC. IF IT IS ADMINISTRATIVELY CONSIDERED DESIRABLE THAT THE DETERMINATION IN CASES OF APPLICATION FOR TRAVEL TO THE OFFICIAL RESIDENCE OF THE SENIOR DEPENDENT, OR TO THE RESIDENCE OF RELATIVES, BE MADE BY A PERSON OTHER THAN ONE OF THOSE DESIGNATED IN PARAGRAPH 3 OF THE PROPOSED INSTRUCTIONS--- SUCH AS THE COMMANDING OFFICER, OR OTHER OFFICER OF THE NAVY, MARINE CORPS, OR COAST GUARD ACTIVITY AT WHICH THE APPLICATION IS RECEIVED--- THE INSTRUCTIONS SHOULD SPECIFY THE PERSON DESIGNATED TO MAKE THE DETERMINATION IN SUCH CASES.

THE DECISION OF MAY 12, 1944, 23 COMP. GEN. 875, CONSTRUED SECTION 12 OF THE MISSING PERSONS ACT AS AUTHORIZING REIMBURSEMENT OF ONLY THE ACTUAL COST OF THE TRANSPORTATION USED. WHILE UNDER THE PRIOR DECISIONS PAYMENTS WHICH HAD BEEN MADE ON A COMMERCIAL COST BASIS, IRRESPECTIVE OF ACTUAL COST, WERE NOT QUESTIONED, IF OTHERWISE CORRECT, ALL PAYMENTS MADE AFTER MAY 12, 1944, WERE REQUIRED TO BE ON AN ACTUAL COST BASIS EVEN THOUGH THE TRAVEL INVOLVED MAY HAVE BEEN PERFORMED PRIOR TO THAT DATE. PARAGRAPH 6 OF THE PROPOSED INSTRUCTIONS IS NOT ENTIRELY CLEAR IN THIS RESPECT, THE FIRST SENTENCE THEREOF BEING SO WORDED THAT IT MIGHT BE CONSTRUED AS APPLYING ONLY TO TRAVEL PERFORMED ON OR AFTER MAY 12, 1944. CLARIFICATION OF THIS PARAGRAPH APPEARS NECESSARY.

PARAGRAPH 10 OF THE PROPOSED INSTRUCTIONS WOULD REQUIRE THAT TRAVEL OF ALL DEPENDENTS OTHER THAN A LAWFUL WIFE OR LEGITIMATE CHILDREN BE PERFORMED AT PERSONAL EXPENSE, SUBJECT TO CLAIM FOR REIMBURSEMENT UPON COMPLETION OF THE TRAVEL, AT WHICH TIME THE FACT OF DEPENDENCY WOULD BE DETERMINED. PRIMARILY, THE AUTHORIZATION UNDER THE STATUTE IS TO MOVE DEPENDENTS AT PUBLIC EXPENSE, THAT IS, TO FURNISH TRANSPORTATION IN KIND WHERE PRACTICABLE, AND EXCEPT FOR TRAVEL TO THE OFFICIAL RESIDENCE OF THE PERSON REPORTED AS INJURED, DEAD, ETC., THE STATUTE REQUIRES THAT APPLICATION BE MADE BY THE DEPENDENT AND THAT THE HEAD OF THE DEPARTMENT, OR A PERSON DESIGNATED BY HIM, DETERMINE THE PLACE TO WHICH TRANSPORTATION AT PUBLIC EXPENSE IS WARRANTED. THEREFORE, THE PROPOSED INSTRUCTIONS WHICH WOULD AUTHORIZE A CERTAIN CLASS OF DEPENDENTS TO TRAVEL AT PERSONAL EXPENSE, SUBJECT TO CLAIM FOR REIMBURSEMENT, EITHER TO THE OFFICIAL RESIDENCE OF THE PERSON REPORTED AS INJURED, DEAD, ETC., OR TO SOME OTHER PLACE WITHOUT MAKING APPLICATION FOR TRANSPORTATION, OR WITHOUT A DETERMINATION HAVING BEEN MADE BY PROPER AUTHORITY IF TRAVEL IS TO A PLACE OTHER THAN THE OFFICIAL RESIDENCE OF SUCH PERSON, DO NOT CONFORM TO THE PROVISIONS OF THE STATUTE. EXCEPT AS HEREINBEFORE INDICATED, THE PROPOSED INSTRUCTIONS APPEAR TO BE CONSISTENT WITH THE STATUTE TO THE EXTENT THAT THIS OFFICE WOULD NOT BE REQUIRED TO OBJECT TO DISBURSEMENTS MADE IN ACCORDANCE THEREWITH, IF OTHERWISE CORRECT.