B-126158, DECEMBER 5, 1955, 35 COMP. GEN. 331

B-126158, DECEMBER 5, 1955, 35 COMP. GEN. 331

TRAVELING EXPENSES - MILITARY, NAVAL , ETC., PERSONNEL - SELECTION OF HOME - TIME LIMITATIONS REGULATIONS WHICH WOULD PERMIT MEMBERS OF THE UNIFORMED SERVICES, HOSPITALIZED WHEN ACTIVE SERVICE TERMINATES UNDER CONDITIONS ENTITLING THEM TO SELECT A HOME FOR TRAVEL AND TRANSPORTATION ALLOWANCES, TO MAKE A HOME SELECTION WITHIN ONE YEAR AFTER DISCHARGE FROM THE HOSPITAL, OR TWO YEARS AFTER TERMINATION OF ACTIVE SERVICE, WHICHEVER IS EARLIER, ARE NOT CONTRARY TO THE TIME LIMITATION IN SECTION 3 OF THE ACT OF AUGUST 11, 1955, 37 U.S. CODE, 253 NOTE, WHICH IS APPLICABLE TO SEPARATIONS PRIOR TO THE DATE OF THE ACT.

TO THE SECRETARY OF THE ARMY, DECEMBER 5, 1955:

REFERENCE IS MADE TO LETTER OF NOVEMBER 23, 1955, FROM THE ASSISTANT SECRETARY OF THE ARMY, REQUESTING A DECISION AS TO WHETHER THE ACT OF AUGUST 11, 1955 ( PUBLIC LAW 368, 84TH CONGRESS), 69 STAT. 691, 37 U.S.C. 253, CONTAINS AUTHORITY FOR THE PROMULGATION OF REGULATIONS WHICH WOULD PERMIT MEMBERS OF THE UNIFORMED SERVICES, UNDERGOING TREATMENT IN A GOVERNMENT HOSPITAL (OR A CIVILIAN HOSPITAL AT GOVERNMENT EXPENSE) WHEN THEIR ACTIVE SERVICE TERMINATES UNDER CONDITIONS ENTITLING THEM TO SELECT A HOME FOR TRAVEL AND TRANSPORTATION ALLOWANCE PURPOSES, TO MAKE SUCH SELECTION AND TRAVEL THERE AT GOVERNMENT EXPENSE WITHIN A PERIOD OF ONE YEAR AFTER DATE OF DISCHARGE FROM THE HOSPITAL OR TERMINATION OF MEDICAL TREATMENT, OR TWO YEARS AFTER TERMINATION OF ACTIVE SERVICE, WHICHEVER IS EARLIER.

THE FIRST TWO SECTIONS OF THE ACT OF AUGUST 11, 1955, AMENDED SECTION 303 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813, 37 U.S.C. 253, SO AS TO AUTHORIZE THE PROMULGATION OF REGULATIONS GOVERNING THE SELECTION OF A HOME UPON PLACEMENT ON THE TEMPORARY DISABILITY RETIRED LIST, RETIREMENT, OR DISCHARGE WITH SEVERANCE PAY, FOR PURPOSES OF TRAVEL AND TRANSPORTATION ALLOWANCES (INCLUDING TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS), IN THE CIRCUMSTANCES THERE PROVIDED. SECTION 3 OF SUCH 1955 ACT IS AS FOLLOWS:

THIS ACT SHALL BE EFFECTIVE FROM APRIL 1, 1951. NO ADDITIONAL AMOUNT MAY BE PAID TO MEMBERS OF THE UNIFORMED SERVICES AS A RESULT OF ENACTMENT OF THIS AMENDATORY ACT UNLESS TRAVEL TO SUCH SELECTED HOME BE PERFORMED ON OR PRIOR TO APRIL 28, 1953, OR WITHIN ONE YEAR AFTER SUCH RETIREMENT, PLACEMENT UPON THE TEMPORARY DISABILITY RETIRED LIST, OR DISCHARGE, WHICHEVER IS LATER.

SECTIONS 1 AND 2 OF THE 1955 ACT CONTAIN NO EXPRESS LIMITATION ON THE TIME WITHIN WHICH A MEMBER MAY SELECT HIS HOME AND PERFORM THE TRAVEL. ONE OF THE MAIN REASONS FOR ENACTING SUCH PROVISIONS OF LAW WAS TO GRANT TO MEMBERS OF THE RESERVE COMPONENTS, THE SAME RIGHT TO SELECTION OF A HOME AS MEMBERS OF THE REGULAR SERVICES HAD UNDER REGULATIONS AND PRECEDENTS THEN IN EFFECT. SINCE PARAGRAPH 1150-3 OF THE JOINT TRAVEL REGULATIONS, IN EFFECT AT THE TIME OF THE PASSAGE OF THAT ACT, PERMITTED MEMBERS OF THE REGULAR SERVICES A ONE YEAR PERIOD FOR SELECTION AND TRAVEL TO A HOME--- EXTENDED TO ONE YEAR AFTER DATE OF DISCHARGE FROM THE HOSPITAL OR MEDICAL TREATMENT IN THE CASE OF A MEMBER UNDERGOING MEDICAL TREATMENT IN A GOVERNMENT HOSPITAL ON THE DATE OF HIS RETIREMENT OR TRANSFER TO THE FLEET RESERVE OR THE FLEET MARINE CORPS RESERVE--- AND SECTIONS 1 AND 2 OF THE ACT CONTAIN NO LANGUAGE INDICATING AN INTENT TO PLACE ANY LIMITATION ON SUCH RIGHT, THE PROMULGATION OR REGULATIONS ALLOWING THE SAME PERIODS FOR SELECTION AND TRAVEL TO THE HOME (IN CASES OF RETIREMENT, ETC., ON OR AFTER AUGUST 11, 1955), WOULD APPEAR TO BE PROPER UNDER THE 1955 ACT UNLESS SECTION 3 OF THAT ACT PROVIDES AN ABSOLUTE ONE YEAR LIMITATION HAVING PROSPECTIVE AS WELL AS RETROACTIVE EFFECT.

THE LANGUAGE OF THE SECOND SENTENCE OF SECTION 3 OF THE 1955 ACT IS NOT CLEAR BUT THAT SECTION APPARENTLY WAS INCLUDED IN THE ACT FOR THE PURPOSE OF EXTENDING THE BENEFITS OF THE ACT, INSOFAR AS PRACTICABLE, TO MEMBERS WHO WERE SEPARATED FROM ACTIVE SERVICE, UNDER THE CONDITIONS SPECIFIED DURING THE PERIOD FROM APRIL 951 (THE EFFECTIVE DATE OF THE JOINT TRAVEL REGULATIONS), TO AUGUST 10, 1955, AND WERE NOT ENTITLED TO COMPARABLE BENEFITS UNDER THE REGULATIONS AND PRECEDENTS IN EFFECT DURING THAT PERIOD.

IN GENERAL, THE 1955 ACT WAS PASSED FOR THE PURPOSE OF LIBERALIZING, RATHER THAN RESTRICTING OR NARROWING THE STATUTORY PROVISIONS FOR TRAVEL AND TRANSPORTATION ALLOWANCES UPON RETIREMENT, PLACEMENT ON THE TEMPORARY DISABILITY RETIRED LIST OR DISCHARGE WITH SEVERANCE PAY. IN VIEW OF THAT PURPOSE AND SINCE THE REGULATION PROVISION NOW PROPOSED REPRESENTS A REASONABLE AND LOGICAL EXTENSION OF THE EXISTING REGULATION IN THE LIGHT OF THE NEW STATUTORY PROVISIONS, WE ARE NOT REQUIRED TO HOLD THAT THE ISSUANCE OF SUCH PROPOSED REGULATION WOULD BE CONTRARY TO THE INTENT AND PURPOSE OF SECTION B OF THE 1955 ACT. IN OTHER WORDS, IT IS OUR VIEW THAT IT REASONABLY AND PROPERLY MAY BE HELD THAT THE ABSOLUTE TIME LIMITATION FIXED IN SECTION 3 WAS INTENDED TO BE APPLIED ONLY WITH RESPECT TO CASES INVOLVING SEPARATIONS FROM ACTIVE SERVICE PRIOR TO AUGUST 11, 1955.