B-56031, JUNE 19, 1946, 25 COMP. GEN. 887

B-56031, JUNE 19, 1946, 25 COMP. GEN. 887

TRANSPORTATION FROM LAST STATION TO HOME FOR DEPENDENTS AND HOUSEHOLD EFFECTS OF REGULAR ARMY ENLISTED MEN UPON DISCHARGE, REGULAR ARMY ENLISTED MEN ARE NOT ENTITLED UNDER SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942 TO TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS FROM LAST STATION TO HOME, EVEN THOUGH SUCH ENLISTED MEN MAY HAVE BEEN RETAINED IN SERVICE DURING THE WAR BEYOND THE EXPIRATION OF THEIR ENLISTMENT CONTRACTS.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF WAR, JUNE 19, 1946:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 12, 1946, AS FOLLOWS:

THERE HAS BEEN BROUGHT TO MY ATTENTION THE DECISION OF THE ASSISTANT COMPTROLLER GENERAL OF THE UNITED STATES, B-45487, DATED 22 JUNE 1945 (24 COMP. GEN. 915,) WHEREIN IT WAS HELD THAT THE DISCHARGE FOR REASONS OTHER THAN MISCONDUCT, OF MEMBERS OF THE ENLISTED RESERVE CORPS, OR OF PERSONS INDUCTED INTO THE ARMY UNDER THE SELECTIVE TRAINING AND SERVICE ACT OF 1940 (54 STAT. 885), AS AMENDED, WHILE SERVING ON ACTIVE DUTY IN THE UPPER THREE GRADES, MAY BE REGARDED AS A RELEASE FROM ACTIVE DUTY SO AS TO ENTITLE SUCH PERSONNEL TO TRANSPORTATION OF DEPENDENTS FROM LAST DUTY STATION TO HOME, UNDER SECTION 12 OF THE ACT OF 16 JUNE 1942 (56 STAT. 364).

THERE IS NOW BEFORE THE WAR DEPARTMENT, FOR CONSIDERATION, THE QUESTION WHETHER, UNDER EXISTING LAW, ENLISTED PERSONNEL OF THE REGULAR ARMY MAY BE FURNISHED TRANSPORTATION IN KIND FOR THEIR DEPENDENTS OR REIMBURSEMENT IN LIEU THEREOF, TOGETHER WITH TRANSPORTATION OF THEIR HOUSEHOLD GOODS, IN CONNECTION WITH TRAVEL FROM THEIR LAST DUTY STATIONS TO THEIR HOMES, PROVIDED ARMY REGULATIONS ARE APPROPRIATELY AMENDED TO PERMIT SUCH ACTION. IN THIS CONNECTION, THE MAJORITY OF PERSONNEL WHO ENLISTED IN THE REGULAR ARMY DURING AND PRIOR TO THE WAR, AND WHO WOULD BE AFFECTED BY SUCH AMENDMENT TO THE REGULATIONS, HAVE COMPLETED THE PERIOD OF ENLISTMENT FOR WHICH THEY ORIGINALLY CONTRACTED, BUT WERE RETAINED IN THE SERVICE FOR LONGER PERIODS, WITHOUT BREAK IN SERVICE, BECAUSE OF MILITARY NECESSITY.

YOUR DECISION IS REQUESTED ON THE QUESTION PRESENTED ABOVE.

PARAGRAPHS 5 AND 6 OF SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 364, 365, 366, PROVIDES:

WHEN ANY OFFICER, WARRANT OFFICER, OR ENLISTED MAN ABOVE THE FOURTH GRADE, HAVING DEPENDENTS AS DEFINED IN SECTION 4 HEREOF, 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 SUCH DEPENDENTS: PROVIDED, THAT FOR PERSONS IN THE NAVAL SERVICE THE TERM "PERMANENT STATION" AS USED IN THIS SECTION SHALL BE INTERPRETED TO MEAN A SHORE STATION OR THE HOME YARD OR HOME PORT OF THE VESSEL TO WHICH THE PERSON CONCERNED MAY BE ORDERED; AND A DULY AUTHORIZED CHANGE IN HOME YARD OR HOME PORT OF SUCH VESSEL SHALL BE DEEMED A CHANGE OF STATION: PROVIDED FURTHER THAT IF THE COST OF SUCH TRANSPORTATION EXCEED THAT FOR TRANSPORTATION FROM THE OLD TO THE NEW STATION, THE EXCESS COST SHALL BE PAID TO THE UNITED STATES BY THE OFFICER, WARRANT OFFICER, OR ENLISTED MAN CONCERNED; PROVIDED FURTHER, THAT TRANSPORTATION SUPPLIED THE DEPENDENTS OF SUCH OFFICER, WARRANT OFFICER, OR ENLISTED MAN, TO OR FROM STATIONS BEYOND THE CONTINENTAL LIMITS OF THE UNITED STATES, SHALL NOT BE OTHER THAN BY GOVERNMENT TRANSPORT, IF SUCH TRANSPORTATION IS AVAILABLE AS MAY BE DETERMINED BY THE HEAD OF THE DEPARTMENT CONCERNED: PROVIDED FURTHER, THAT THE PERSONNEL OF ALL THE SERVICES MENTIONED IN THE TITLE OF THIS ACT SHALL HAVE THE BENEFIT OF ALL EXISTING LAWS APPLYING TO THE ARMY AND MARINE CORPS FOR THE TRANSPORTATION OF HOUSEHOLD EFFECTS: AND PROVIDED FURTHER, THAT IN LIEU OF TRANSPORTATION COSTS FOR THE WHOLE OR SUCH PART OF THE TRAVEL FOR WHICH TRANSPORTATION IN KIND IS NOT FURNISHED WHEN SUCH TRAVEL SHALL HAVE BEEN COMPLETED.

THE WORDS "PERMANENT CHANGE OF STATION" AS USED IN THIS SECTION SHALL INCLUDE THE CHANGE FROM HOME TO FIRST STATION AND FROM LAST STATION TO HOME WHEN ORDERED TO ACTIVE DUTY OTHER THAN TRAINING DUTY, OF ANY OFFICER, WARRANT OFFICER, NURSE, OR ENLISTED MAN OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT, INCLUDING RETIRED PERSONNEL AND MEMBERS OF THE RESERVE COMPONENTS THEREOF, IN A GRADE FOR WHICH THE TRANSPORTATION OF DEPENDENTS IS AUTHORIZED AT GOVERNMENT EXPENSE, AND THE CHANGE FROM LAST STATION TO HOME IN CONNECTION WITH RETIREMENT, RELIEF FROM ACTIVE DUTY, OR TRANSFER TO A RESERVE COMPONENT.

IN DECISION OF AUGUST 4, 1943, 23 COMP. GEN. 73, IT WAS HELD WITH RESPECT TO SUCH PROVISIONS THAT WHILE THE UPPER THREE ENLISTED GRADES OF NAVAL RESERVISTS DISCHARGED FROM THE SERVICE WHILE ON ACTIVE DUTY DO NOT THEREBY LOSE THEIR RIGHTS TO TRANSPORTATION OF DEPENDENTS AUTHORIZED UPON RELIEF FROM ACTIVE DUTY, SUCH RIGHTS DO NOT EXTEND TO ENLISTED MEN OF THE REGULAR SERVICES UPON DISCHARGE. IT WAS SAID IN THAT DECISION:

THE EFFECT OF THE QUOTED SIXTH PARAGRAPH OF SECTION 12 OF THE ACT OF JUNE 16, 1942, AS TO RIGHTS OF OFFICERS AND ENLISTED MEN TO TRANSPORTATION OF THEIR DEPENDENTS, WAS CONSIDERED IN DECISION OF JANUARY 12, 1943, 22 COMP. GEN. 645, AND IT WAS THEREIN HELD THAT SUCH PROVISION MERELY DEFINED THE WORDS "PERMANENT CHANGE OF STATION" AS THAT TERM IS USED IN PARAGRAPH 5 OF SECTION 12, AND THAT IT DID NOT EXTEND SUCH BENEFITS TO OTHER THAN THOSE PERSONS ENTITLED TO TRANSPORTATION FOR DEPENDENTS UNDER PRIOR LAWS. HAS BEEN HELD THAT THE PROVISION DOES NOT AUTHORIZE TRANSPORTATION AT GOVERNMENT EXPENSE FROM HOME TO FIRST DUTY STATION FOR DEPENDENTS OF OFFICERS OF THE REGULAR ARMY APPOINTED FROM CIVIL LIFE. 22 COMP. GEN. 885. SIMILARLY, IT DOES NOT AUTHORIZE TRANSPORTATION FOR DEPENDENTS OF OFFICERS AND ENLISTED MEN OF THE REGULAR SERVICES UPON THEIR DISCHARGE FROM THE SERVICE.

FOLLOWING THE PRINCIPLES OF THAT DECISION WITH RESPECT TO NAVAL RESERVISTS, IT WAS HELD IN DECISION OF JUNE 22, 1945, 24 COMP. GEN. 915, THAT THE UPPER THREE GRADES OF THE ARMY ENLISTED RESERVE CORPS LIKEWISE ARE ENTITLED UPON DISCHARGE TO TRANSPORTATION OF THEIR DEPENDENTS UNDER THE SAID PROVISIONS OF SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942; THAT IS, THAT THEY DO NOT LOSE THE RIGHT TO TRANSPORTATION OF DEPENDENTS AUTHORIZED BY THAT ACT UPON TERMINATION OF ACTIVE DUTY BECAUSE SUCH TERMINATION TAKES THE FORM OF A DISCHARGE INSTEAD OF A RELEASE TO INACTIVE DUTY. IT WAS HELD, ALSO, IN THE LATTER DECISION THAT SINCE THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, 54 STAT. 886, PROVIDES FOR THE TRANSFER OF INDUCTED MEN TO RESERVE COMPONENTS UPON TERMINATION OF ACTIVE SERVICE, THEY ARE TO BE REGARDED AS SUBSTANTIALLY ON THE SAME BASIS AS RESERVISTS WITH RESPECT TO TRANSPORTATION OF THEIR DEPENDENTS, AND, HENCE, ARE ENTITLED TO TRANSPORTATION OF THEIR DEPENDENTS UPON TERMINATION OF ACTIVE DUTY ALTHOUGH SUCH TERMINATION TAKES THE FORM OF A DISCHARGE RATHER THAN A TRANSFER TO A RESERVE COMPONENT.

THE BASIS FOR THOSE DECISIONS AS TO RESERVISTS AND INDUCTEES DOES NOT EXTEND TO ENLISTED MEN OF THE REGULAR ARMY, HOWEVER. AS POINTED OUT IN THE DECISION OF AUGUST 4, 1943, THE VARIOUS PRIOR STATUTORY PROVISIONS AUTHORIZING THE TRANSPORTATION OF DEPENDENTS FROM HOME TO FIRST STATION AND FROM LAST STATION TO HOME IN THE CASE OF CERTAIN CLASSES OF PERSONNEL WHICH WERE CONSOLIDATED IN THE SAID SIXTH PARAGRAPH OF SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942 (SEE 22 COMP. GEN. 645), DID NOT PROVIDE FOR THE TRANSPORTATION OF THE DEPENDENTS OF REGULAR ARMY ENLISTED MEN UPON DISCHARGE FROM THE SERVICE, AND THERE APPEARS TO BE NOTHING IN EITHER THE LANGUAGE OR THE LEGISLATIVE HISTORY OF THE SAID SIXTH PARAGRAPH TO WARRANT SUCH A CONCLUSION THAT THE CONGRESS INTENDED THEREBY TO EXTEND SUCH BENEFITS TO ENLISTED MEN OF REGULAR SERVICES UPON DISCHARGE. PROVISION WAS MADE FOR RESERVE PERSONNEL AND RETIRED PERSONNEL, BOTH AS TO THOSE ORDERED TO ACTIVE DUTY IN SUCH CATEGORIES AND THOSE RETIRED OR TRANSFERRED TO RESERVE COMPONENTS FROM ACTIVE SERVICE. SUCH CLASSES OF PERSONNEL GENERALLY REMAIN IN THE SERVICE IN AN INACTIVE STATUS AND SUBJECT TO FURTHER ORDERS UPON RELIEF FROM ACTIVE DUTY, WHEREAS REGULAR ENLISTED MEN, AS A CLASS, SEVER ALL RELATIONS WITH THE SERVICE UPON DISCHARGE, AND, HENCE, THERE DOES NOT EXIST THE SAME BASIS FOR TREATING THE TERMINATION OF THEIR ACTIVE SERVICE GENERALLY AS INVOLVING A CHANGE OF STATION OR AS PROVIDING AN OCCASION FOR THE TRANSPORTATION OF THEIR DEPENDENTS OR HOUSEHOLD GOODS AS INCIDENT TO THEIR SERVICE. THE BASIC RULE, OF COURSE, IS THAT PERSONS ENTERING OR LEAVING THE GOVERNMENT SERVICE MUST BEAR THE EXPENSES INCIDENT THERETO, IN THE ABSENCE OF EXPRESS STATUTORY PROVISIONS OTHERWISE. SEE 22 COMP. GEN. 885, AND CASES CITED THEREIN. WHILE THE DECISIONS DISCUSSED ABOVE HELD IN CONSONANCE WITH THE SPIRIT AND PURPOSE OF THE STATUTE THAT THE CLASSES OF PERSONNEL FOR WHOM TRANSPORTATION OF DEPENDENTS UPON RELEASE FROM ACTIVE DUTY WAS AUTHORIZED BY THE SAID SIXTH PARAGRAPH OF SECTION 12 DID NOT LOSE SUCH RIGHT BECAUSE THE ACTIVE DUTY WAS TERMINATED BY DISCHARGE, THERE WOULD APPEAR TO BE NO BASIS FOR HOLDING THAT A REGULAR ENLISTED MAN, NOT OTHERWISE WITHIN THE PROVISIONS OF THAT PARAGRAPH, COULD GAIN SUCH A RIGHT, OR A RIGHT TO TRANSPORTATION OF HIS HOUSEHOLD GOODS UPON DISCHARGE, BY REASON OF HAVING BEEN RETAINED IN SERVICE DURING THE WAR BEYOND THE EXPIRATION OF HIS ENLISTMENT CONTRACT, IN THE ABSENCE OF SOME STATUTORY PROVISION TO THAT EFFECT.

IT FOLLOWS THAT THE QUESTIONS SUBMITTED MUST BE ANSWERED IN THE NEGATIVE.