B-41508, MAY 5, 1944, 23 COMP. GEN. 846

B-41508, MAY 5, 1944, 23 COMP. GEN. 846

TRANSPORTATION OF HOUSEHOLD EFFECTS OF CONTRACT EMPLOYEES UPON INDUCTION INTO MILITARY SERVICE WHERE CONTRACT OF EMPLOYMENT REQUIRED THE PERFORMANCE OF SERVICE IN ALASKA FOR A TWO-YEAR PERIOD AND CONTAINED A PROVISION FOR TRANSPORTATION OF THE EMPLOYEE'S HOUSEHOLD GOODS TO AND FROM ALASKA, FROM AND TO THE PLACE OF ACCEPTANCE OF EMPLOYMENT IN THE UNITED STATES, TRANSPORTATION AT GOVERNMENT EXPENSE OF THE EMPLOYEE'S HOUSEHOLD GOODS BACK TO THE UNITED STATES PRIOR TO THE EXPIRATION OF THE CONTRACT PERIOD DUE TO THE EMPLOYEE'S INDUCTION IN THE MILITARY SERVICE--- RATHER THAN AS INCIDENT TO A TRANSFER OF OFFICIAL STATION OR TERMINATION OF HIS CONTRACT OF EMPLOYMENT--- IS NOT AUTHORIZED UNDER THE UNIFORM TRANSPORTATION OF HOUSEHOLD EFFECTS STATUTE OF OCTOBER 10, 1940, AND EXECUTIVE REGULATIONS THEREUNDER.

COMPTROLLER GENERAL WARREN TO THE ACTING SECRETARY OF THE NAVY, MAY 5, 1944:

I HAVE A LETTER OF APRIL 15, 1944 (FILE JAG:III:WMCL:EM), AS FOLLOWS:

EINAR H. MILLER (CAF-6) REPORTED TO THE U.S. NAVAL OPERATING BASE, KODIAK, ALASKA, ON 11 MARCH 1942 FOR A TWO YEAR PERIOD OF DUTY AT THAT STATION. MILLER WOULD HAVE COMPLETED THE TWO YEAR PERIOD ON 3 MARCH 1944, BUT DUE TO HIS INDUCTION INTO THE ARMED FORCES OF THE UNITED STATES UNDER THE " SELECTIVE TRAINING AND SERVICE ACT OF 1940" (50 U.S.C. 302-318) APPROVED 16 SEPTEMBER 1940, HE WAS PLACED ON FURLOUGH AND LEFT THAT BASE ON 11 OCTOBER 1943. UNDER THE ACT OF 10 OCTOBER 1940 (5 U.S.C. 73C-1) AND EXECUTIVE ORDERS 8588 AND 9122 ISSUED IN PURSUANCE THEREOF, MILLER WOULD HAVE BEEN ENTITLED, UPON HIS COMPLETION OF THE TWO YEARS' DUTY AT KODIAK, TO REIMBURSEMENT FOR EXPENSES OF RETURN TRANSPORTATION TO SAN DIEGO, CALIFORNIA, THE PLACE OF ACCEPTANCE OF EMPLOYMENT, AND ALSO EXPENSES OF RETURN SHIPMENT OF HIS HOUSEHOLD EFFECTS TO THAT CITY.

UNDER THE PROVISIONS OF THE ABOVE-MENTIONED ACT OF 10 OCTOBER 1940, REIMBURSEMENT FOR EXPENSES OF TRANSPORTATION IS AUTHORIZED WHEN A CIVILIAN EMPLOYEE IS TRANSFERRED FROM ONE OFFICIAL STATION TO ANOTHER FOR PERMANENT DUTY. THE INABILITY OF MILLER TO COMPLETE THE TWO YEAR PERIOD OF DUTY UNDER HIS CONTRACT WAS NOT DUE TO ANY FAULT OR NEGLIGENCE ON HIS PART NOR WAS IT FOR HIS CONVENIENCE, BUT WAS INVOLUNTARY AND REQUIRED BY OFFICIAL ORDERS ISSUED IN PURSUANCE OF A FEDERAL STATUTE COVERING HIS INDUCTION INTO THE ARMED FORCES OF THE UNITED STATES.

THE DEPARTMENT IS PREPARED TO APPROVE REIMBURSEMENT FOR SUCH EXPENSES IN THE CASE OF MILLER AND OTHER EMPLOYEES WHO, UNDER SIMILAR CIRCUMSTANCES, ARE UNABLE TO COMPLETE THEIR FULL PERIOD OF EMPLOYMENT DUE TO THEIR INDUCTION INTO THE ARMED FORCES. HOWEVER, BEFORE AUTHORIZING SUCH REIMBURSEMENT, THE DECISION OF YOUR OFFICE IS REQUESTED AS TO THE AVAILABILITY OF FUNDS FOR THIS PURPOSE.

THE LETTER DOES NOT DISCLOSE THE AUTHORITY PURSUANT TO WHICH THE CONTRACT OF EMPLOYMENT WAS ENTERED INTO WITH EINAR H. MILLER FOR A PERIOD OF TWO YEARS--- PRESUMABLY CONTAINING A PROVISION FOR THE TRANSPORTATION OF HIS HOUSEHOLD GOODS TO AND FROM ALASKA, FROM AND TO THE PLACE OF ACCEPTANCE OF EMPLOYMENT IN THE UNITED STATES. THE ACT OF APRIL 9, 1943, 57 STAT. 61, PUBLIC LAW 28, AUTHORIZING PAYMENT OF THE TRANSPORTATION EXPENSES OF EMPLOYEES, UNDER SUCH CIRCUMSTANCES, ENACTED AFTER THE CONTRACT WAS ENTERED INTO, DOES NOT AUTHORIZE TRANSPORTATION OF THEIR HOUSEHOLD GOODS. NEITHER HAS THERE BEEN FURNISHED A COPY OF THE CONTRACT OF EMPLOYMENT.

HOWEVER, THAT MAY BE, YOUR ATTENTION IS INVITED TO THE DECISION OF JULY 16, 1943, 23 COMP. GEN. 32, 34, WHEREIN IT WAS STATED:

OBVIOUSLY THE STATUTE AND THE PRESIDENT'S REGULATIONS ISSUED PURSUANT THERETO, E.O. 8588, NOVEMBER 7, 1940, SECTION 1 OF WHICH IS QUOTED IN YOUR LETTER, ARE APPLICABLE ONLY WHEN AN EMPLOYEE ACTUALLY IS TRANSFERRED FROM ONE STATION TO ANOTHER FOR PERMANENT DUTY, WHICH SITUATION, OF COURSE, CONTEMPLATES THAT THE EMPLOYEE REPORT TO HIS NEW OFFICIAL STATION. COMPARE 18 COMP. GEN. 408. THERE IS NO REASONABLE BASIS FOR APPLYING THE LAW AND REGULATION TO AUTHORIZE THE TRANSPORTATION OF HOUSEHOLD GOODS, INCIDENT TO A PAPER TRANSFER OF OFFICIAL STATIONS MADE SOLELY FOR THE PURPOSE OF THE ADMINISTRATIVE RECORD OF AN EMPLOYEE WHO HAS LEFT HIS CIVILIAN POSITION AND HAS ENTERED THE ACTIVE MILITARY SERVICE. ACCORDINGLY, ON THE BASIS OF THE FACTS PRESENTED, IT MUST BE HELD THAT THERE IS NO AUTHORITY TO REIMBURSE MR. MCCOY, OR HIS WIFE, FOR THE COST OF TRANSPORTING HIS HOUSEHOLD GOODS FROM WILKES-BARRE TO CHESTER, PENNSYLVANIA.

SIMILARLY HERE, IF, AS IS UNDERSTOOD FROM THE LETTER, SUPRA, THE SOLE REASON FOR PROPOSING TO TRANSPORT THE HOUSEHOLD GOODS OF MR. MILLER BACK TO THE UNITED STATES AT THE EXPENSE OF THE GOVERNMENT IS THE FACT THAT HE HAS ENTERED THE ACTIVE MILITARY SERVICE UNDER THE TERMS OF THE SELECTIVE TRAINING AND SERVICE ACT, A DUTY REQUIRED AS A CITIZEN IN COMMON WITH ALL OTHER CITIZENS SUBJECT TO THE DRAFT, RATHER THAN AS INCIDENT TO A TRANSFER OF OFFICIAL STATION OR TERMINATION OF HIS CONTRACT OF EMPLOYMENT, THERE DOES NOT APPEAR TO BE ANY AUTHORITY UNDER THE ACT OF OCTOBER 10, 1940, 54 STAT. 1105, OR THE REGULATIONS OF THE PRESIDENT ISSUED PURSUANT THERETO, TO REIMBURSE THE EMPLOYEE FROM APPROPRIATED FUNDS FOR THE COST OF TRANSPORTING HIS HOUSEHOLD GOODS TO THE PLACE OF ACCEPTANCE OF EMPLOYMENT WITHIN THE UNITED STATES.

THERE HAS NOT BEEN OVERLOOKED THE FOLLOWING PROVISO APPEARING IN THE ACT OF JUNE 26, 1943, 57 STAT. 204, PUBLIC LAW 92:

* * * PROVIDED FURTHER, THAT DURING THE FISCAL YEAR 1944 THE DEPENDENTS AND HOUSEHOLD EFFECTS OF SUCH PERSONNEL OF THE NAVAL ESTABLISHMENT ON DUTY AT STATIONS OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES, AND IN ALASKA, AS MAY BE DETERMINED UPON BY THE SECRETARY, MAY, PRIOR TO THE ISSUANCE OF ORDERS FOR THE RELIEF OF SUCH PERSONNEL FROM THEIR STATIONS, BE MOVED (INCLUDING PACKING AND UNPACKING OF HOUSEHOLD EFFECTS) TO SUCH LOCATIONS IN CONTINENTAL UNITED STATES AS MAY BE SELECTED BY THE SECRETARY, BY THE USE OF EITHER GOVERNMENT OR COMMERCIAL MEANS OF TRANSPORTATION, AND LATER FROM SUCH LOCATIONS TO THE DUTY STATIONS TO WHICH SUCH PERSONNEL MAY BE ORDERED, AND CURRENT APPROPRIATIONS FO THE NAVAL ESTABLISHMENT AVAILABLE FOR TRAVEL AND TRANSPORTATION MAY BE USED FOR THIS PURPOSE. BUT THE AUTHORITY CONTAINED IN THAT PROVISO APPEARS TO RELATE ONLY TO EMPLOYEES WHO HAVE NOT BEEN RELEASED FROM THEIR OFFICIAL STATION LOCATED OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES. NEITHER HAVE THERE BEEN OVERLOOKED THE PROVISIONS OF SECTION 201 (B) OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1944, PUBLIC LAW 90, APPROVED JUNE 26, 1943, 57 STAT. 195, BUT SAID SECTION LIKEWISE RELATES TO EMPLOYEES "WHEN TRANSFERRED FROM ONE OFFICIAL STATION TO ANOTHER FOR PERMANENT DUTY.'

ACCORDINGLY, REFERRING TO THE CONCLUDING PARAGRAPH OF THE QUOTED LETTER, YOU ARE ADVISED THAT I KNOW OF NO AUTHORITY OF LAW, OR APPROPRIATION AVAILABLE, FOR THE PROPOSED PAYMENT TO EINAR H. MILLER, OR TO OTHER EMPLOYEES SIMILARLY INVOLVED.