B-50183, JUNE 19, 1945, 24 COMP. GEN. 895

B-50183, JUNE 19, 1945, 24 COMP. GEN. 895

TRANSPORTATION OF DEPENDENTS - RETIREMENT OR RELEASE FROM ACTIVE DUTY EVEN THOUGH ORDERS DETACHING NAVAL PERSONNEL FROM A PERMANENT STATION AND DIRECTING TEMPORARY DUTY AT A DEMOBILIZATION CENTER IN CONTEMPLATION OF RETIREMENT OR RELEASE FROM ACTIVE DUTY BE MODIFIED TO DIRECT TEMPORARY HOSPITALIZATION PRIOR TO ACTUAL RETIREMENT OR RELEASE, THE FURNISHING TO DEPENDENTS OF TRANSPORTATION FROM LAST STATION TO HOME UNDER THE ORIGINAL ORDERS WILL BE CONSIDERED AS WITHIN THE PURVIEW OF SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942 AND NO ADJUSTMENT WILL BE REQUIRED ON ACCOUNT OF SUCH MODIFYING ORDERS; HOWEVER, ADJUSTMENT WILL BE REQUIRED SHOULD MODIFYING ORDERS ASSIGN A PERMANENT STATION AND DEPENDENTS BE TRANSPORTED THERETO FROM HOME.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, JUNE 19, 1945:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 1, 1945 (FILE JAG:II:WJG: L L20- 4/P7 (, WITH ENCLOSURE FROM THE CHIEF OF NAVAL PERSONNEL, REQUESTING DECISION WHETHER TRANSPORTATION TO THE HOME OF AN OFFICER OR ENLISTED MAN, OTHERWISE ENTITLED TO TRANSPORTATION OF DEPENDENTS UPON RETIREMENT OR RELEASE FROM ACTIVE DUTY, MAY BE ISSUED THE DEPENDENTS OF SUCH OFFICER OR MAN AT THE TIME OF HIS TRANSFER FROM A PERMANENT DUTY STATION IN CONNECTION WITH HIS RETIREMENT OR RELEASE FROM ACTIVE DUTY, WHEN HE IS ROUTED VIA A DEMOBILIZATION CENTER, WITHOUT LIABILITY TO HIM FOR ANY PORTION OF THE COST OF SUCH TRANSPORTATION IN THE EVENT OF "A SUBSEQUENT MODIFICATION OF HIS ORDERS PREVENTING HIS TRAVEL TO HIS HOME.'

THE ENCLOSURE FROM THE CHIEF OF NAVAL PERSONNEL, DATED MAY 26, 1945, IS IN PERTINENT PART AS FOLLOWS:

1. THE ENCLOSURES INDICATE THE GENERAL TYPE OF ORDERS TO BE ISSUED TO OFFICERS IN CONNECTION WITH TRANSFER TO DEMOBILIZATION CENTERS LOCATED AT VARIOUS POINTS THROUGHOUT THE CONTINENTAL LIMITS OF THE UNITED STATES. SOMEWHAT SIMILAR ORDERS WILL BE ISSUED TO ENLISTED PERSONNEL SCHEDULED FOR DEMOBILIZATION.

2. THE NATURE OF THE TRANSFERS AND THE TYPE OF ORDERS NECESSARY TO ACCOMPLISH THE INTENDED PURPOSE WILL CREATE A PROBLEM IN CONNECTION WITH TRANSPORTATION OF DEPENDENTS, AS HEREINAFTER EXPLAINED. * * *

3. THE PROBLEM INVOLVED CONCERNS THE TIME WHEN TRANSPORTATION REQUESTS MAY BE ISSUED FOR TRAVEL OF THE DEPENDENTS FROM THE LAST DUTY STATION, OR FROM SOME OTHER PLACE TO THE HOME OF THE OFFICER OR MAN. REFERENCES (B) (2 COMP. GEN. 638) AND (C), (A-16260, DATED NOVEMBER 19, 1926) AS WELL AS NUMEROUS SUBSEQUENT DECISIONS, HELD, IN EFFECT, THAT THE RIGHT TO TRANSPORTATION OF DEPENDENTS ACCRUED ON THE EFFECTIVE DATE OF ORDERS, THAT THE EFFECTIVE DATE WAS THE DATE ON WHICH AN OFFICER WAS REQUIRED TO BEGIN TRAVEL TO THE NEW PERMANENT STATION AFTER EXPIRATION OF ANY LEAVE GRANTED, THAT IN THE EVENT OF ANY INTERVENING TEMPORARY DUTY DIRECTED BY THE ORDER, THE EFFECTIVE DATE WOULD BE THE NECESSARY DATE OF COMMENCEMENT OF TRAVEL FROM THE LAST TEMPORARY DUTY STATION EN ROUTE TO THE PERMANENT DUTY STATION, THAT THE RIGHTS OF THE DEPENDENTS IN SUCH CASES ARE FROM THE OLD TO THE NEW PERMANENT STATION OVER DIRECT ROUTE, AND THAT ANY TRANSPORTATION FURNISHED THE DEPENDENTS PRIOR TO THE SAID EFFECTIVE DATE OF THE ORDERS IS AT THE RISK OF THE OFFICER OR MAN CONCERNED IN THE EVENT OF MODIFICATION OF THE ORDERS CHANGING THE NEW PERMANENT DUTY STATION. OTHER WORDS, THE ONLY TRANSPORTATION THAT CAN BE FURNISHED DEPENDENTS WITHOUT THE RIGHT BEING AFFECTED BY MODIFICATION OF ORDERS, IS THAT FURNISHED FOR DEPENDENTS ACCOMPANYING AN OFFICER OVER DIRECT ROUTE UNDER ORDERS INVOLVING NO DELAY OR TEMPORARY DUTY EN ROUTE. THIS LATTER STATEMENT IS MADE IN VIEW OF THE FACT THAT MODIFICATION OF ORDERS MAY BE MADE WHILE THE OFFICER IS IN A LEAVE STATUS, OR WHILE AT A TEMPORARY DUTY STATION.

4. IN VIEW OF THE SITUATION EXPLAINED IN PARAGRAPH 3, IT HAS BEEN THE POLICY OF THE BUREAU TO DECLINE TO ISSUE TRANSPORTATION FOR DEPENDENTS PRIOR TO THE EFFECTIVE DATE OF AN ORDER, DUE TO THE IMPRACTICABILITY OF MAKING A SUBSEQUENT DETERMINATION THAT THE NEW PERMANENT DUTY STATION DESIGNATED IN THE ORDER WAS ACTUALLY ACQUIRED. SUCH A SITUATION IS PRESENTED IN CONNECTION WITH DEMOBILIZATION, SINCE IN A SENSE, THE DEMOBILIZATION CENTER TO WHICH THE INDIVIDUAL IS TRANSFERRED IS A "TEMPORARY DUTY" STATION.

5. IN VIEW OF THE UNDESIRABILITY OF REQUIRING THE DEPENDENTS TO REMAIN AT THE OLD DUTY STATION, OR AT SOME OTHER POINT WHERE THEY MAY BE LOCATED, UNTIL THE OFFICER OR MAN IS ACTUALLY RELEASED, IT IS REQUESTED THAT THE MATTER BE SUBMITTED TO THE COMPTROLLER GENERAL FOR DECISION AS TO WHETHER OR NOT TRANSPORTATION MAY BE ISSUED AT THE TIME OF TRANSFER OF THE OFFICER OR MAN FROM HIS PERMANENT DUTY STATION FOR TRAVEL OF HIS DEPENDENTS TO HIS HOME, IN CONNECTION WITH RETIREMENT OR RELEASE FROM ACTIVE DUTY, WHEN HE HIMSELF IS ROUTED VIA A DEMOBILIZATION CENTER, AND WITHOUT THE ATTACHMENT OF A LIABILITY TO THE OFFICER OR MAN FOR ANY PORTION OF THE COST OF SUCH TRANSPORTATION IN THE EVENT OF A SUBSEQUENT MODIFICATION OF HIS ORDERS PREVENTING HIS TRAVEL TO HIS HOME.

6. IN SUPPORT OF THE REQUEST CONTAINED IN PARAGRAPH 5, THE BUREAU WOULD LIKE TO POINT OUT THAT THE CHANCES OF MODIFICATION OF ORDERS OF THE NATURE CONCERNED HEREIN ARE REMOTE, AND THAT THE STAY OF THE OFFICER OR MAN AT THE DEMOBILIZATION CENTER WILL BE OF A VERY SHORT DURATION. THE BUREAU WOULD ALSO LIKE TO POINT OUT THAT PARAGRAPH 6 OF REFERENCE (A) AUTHORIZES TRANSPORTATION OF DEPENDENTS IN CONNECTION WITH RETIREMENT OR RELIEF FROM ACTIVE DUTY, UNDERSCORING SUPPLIED, WHICH WOULD SEEM TO INDICATE THAT IT MAY BE FURNISHED AT ANY TIME SUBSEQUENT TO ISSUE OF THE BASIC ORDERS WITHOUT AWAITING ACTUAL SEPARATION FROM ACTIVE DUTY. AN EARLY DECISION IN THE MATTER WILL BE APPRECIATED.

7. WITH RESPECT TO PARAGRAPH 4 OF THE PROPOSED TYPE OF ORDERS, LEGISLATION IS BEING REQUESTED TO PERMIT AN OFFICER TO CERTIFY TO HIS HOME ADDRESS TO WHICH MILEAGE WILL BE PAID.

THE TYPE OF ORDERS PROPOSED TO BE ISSUED OFFICERS AND ENLISTED MEN IN SUCH CASES UPON DETACHMENT FROM SEA DUTY IS AS FOLLOWS:

FROM: COMSERVPAC.

TO: ------------------------

VIA: COMMANDING OFFICER. SUBJECT.: RELEASE FROM ACTIVE DUTY.

YOU ARE HEREBY DETACHED FROM DUTY AT --------------------, PEARL HARBOR T.H., AND FROM SUCH OTHER DUTY AS MAY HAVE BEEN ASSIGNED YOU; YOU WILL PROCEED VIA SUCH TRANSPORTATION AS MAY BE FURNISHED TO A PORT IN THE UNITED STATES, AND UPON ARRIVAL FURTHER PROCEED VIA SUCH TRANSPORTATION AS MAY BE FURNISHED BY THE COMMANDING OFFICER OF THE INTAKE CENTER TO THE DEMOBILIZATION CENTER AT CHICAGO, ILLINOIS, AND REPORT TO THE COMMANDING OFFICER FOR TEMPORARY DUTY.

2. UPON THE COMPLETION OF THIS TEMPORARY DUTY YOU WILL, WHEN DIRECTED, REGARD YOURSELF DETACHED AND PROCEED TO YOUR HOME FOR RELEASE FROM ACTIVE DUTY, IN ACCORDANCE WITH INSTRUCTIONS TO BE ISSUED BY THE COMMANDING OFFICER OF THE DEMOBILIZATION CENTER.

3. YOUR SEPARATION FROM ACTIVE NAVAL SERVICE IS CONSIDERED TO BE UNDER HONORABLE CONDITIONS, AND YOU ARE ENTITLED TO A CERTIFICATE OF SATISFACTORY SERVICE.

4. YOU WERE ORDERED TO ACTIVE DUTY FROM ------------------, AND YOU HAVE CERTIFIED THAT YOUR HOME IS -------------------------.

(CITY) THE TYPE OF PROPOSED ORDERS DETACHING OFFICERS AND ENLISTED MEN FROM SHORE STATIONS IS IDENTICAL TO THAT QUOTED ABOVE, WITH THE EXCEPTION OF THAT PORTION OF PARAGRAPH 1 DEALING WITH THE FURNISHING OF TRANSPORTATION.

PARAGRAPHS 5 AND 6 OF SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 359, 364, 365 (37 U.S.C. 112), READ IN PERTINENT PART AS FOLLOWS:

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 EXCEEDS 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 * * * AND PROVIDED FURTHER, THAT IN LIEU OF TRANSPORTATION IN KIND AUTHORIZED BY THIS SECTION FOR DEPENDENTS, THE PRESIDENT MAY AUTHORIZE THE PAYMENT IN MONEY OF AMOUNTS EQUAL TO SUCH COMMERCIAL 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.

SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942, SUPRA, AUTHORIZES, INTER ALIA, THE FURNISHING OF TRANSPORTATION IN KIND, OR PAYMENT OF THE COMMERCIAL TRANSPORTATION COSTS IN LIEU THEREOF WHEN TRAVEL HAS BEEN COMPLETED, FOR DEPENDENTS OF OFFICERS AND CERTAIN GRADES OF ENLISTED MEN "ORDERED TO MAKE A PERMANENT CHANGE OF STATION," WHICH, BY SPECIFIC DEFINITION IN THE STATUTE, INCLUDES A CHANGE FROM LAST STATION TO HOME IN CONNECTION WITH RETIREMENT, RELEASE FROM ACTIVE DUTY, OR TRANSFER TO A RESERVE COMPONENT. THE TRANSPORTATION AUTHORIZED TO BE FURNISHED THE DEPENDENTS BY THE GOVERNMENT UPON A PERMANENT CHANGE OF STATION IS TRANSPORTATION "TO HIS NEW STATION," NOT TO EXCEED THE COST OF TRANSPORTATION "FROM THE OLD TO THE NEW STATION" OR "FROM LAST STATION TO HOME" IN CONNECTION WITH RETIREMENT OR RELEASE FROM ACTIVE DUTY.

AS A GENERAL RULE WHERE TRAVEL IS PERFORMED BY DEPENDENTS OF AN OFFICER OR ENLISTED MAN AFTER THE ISSUANCE OF ORDERS DIRECTING A PERMANENT CHANGE OF STATION AND IN ANTICIPATION OF THE ORDERS BECOMING EFFECTIVE, THE RIGHT TO PAYMENT THEREFOR IS NOT PREJUDICED BY THE FACT THAT THE DEPENDENTS TRAVELED PRIOR TO THE EFFECTIVE DATE OF HIS ORDERS, PROVIDED THE ORDERS ARE NOT LATER MODIFIED OR REVOKED. SEE 4 COMP. GEN. 40; 15 ID. 113 AND 22 ID. 555, 562. HOWEVER, WHERE THE ORDERS ARE MODIFIED OR REVOKED PRIOR TO THEIR EFFECTIVE DATE AND THE DEPENDENTS HAVE PERFORMED TRAVEL IN ANTICIPATION OF THE ORDERS BECOMING EFFECTIVE, IT HAS BEEN HELD CONSISTENTLY THAT THE OFFICER OR MAN IS NOT ENTITLED TO PAYMENT IN EXCESS OF THE COMMERCIAL TRANSPORTATION COSTS FROM THE OLD STATION TO THE ULTIMATE NEW STATION. SEE 15 COMP. GEN. 518; 17 COMP. GEN. 134. CF. 2 COMP. GEN. 638.

IN THE PRESENT MATTER, THE TYPE OF PROPOSED ORDERS WOULD DETACH AN OFFICER OR ENLISTED MAN FROM DUTY AT HIS PERMANENT STATION AND DIRECT HIM TO PROCEED TO A DEMOBILIZATION CENTER FOR TEMPORARY DUTY AND UPON COMPLETION OF SUCH TEMPORARY DUTY TO REGARD HIMSELF DETACHED AND TO PROCEED TO HIS HOME FOR RELEASE FROM ACTIVE DUTY, IN ACCORDANCE WITH INSTRUCTIONS TO BE ISSUED BY THE COMMANDING OFFICER OF THE DEMOBILIZATION CENTER. THE CONTEMPLATED TEMPORARY DUTY TO BE PERFORMED AT THE DEMOBILIZATION CENTER UNDER SUCH ORDERS IS STATED TO BE OF A "VERY SHORT DURATION"--- THE PRIMARY OBJECT OF ROUTING THE OFFICER OR ENLISTED MAN VIA THE DEMOBILIZATION CENTER APPARENTLY BEING FOR THE PURPOSE OF HAVING HIM UNDERGO A THOROUGH PHYSICAL EXAMINATION. SUCH ORDERS WOULD NOT SPECIFY THE DATE ON WHICH THE PERSON IS TO BE RETIRED OR RELEASED FROM ACTIVE DUTY, BUT APPARENTLY SUCH INFORMATION IS TO BE SUPPLIED AT THE DEMOBILIZATION CENTER BY WAY OF INDORSEMENT ON THE ORIGINAL ORDERS, OR OTHERWISE. WHILE NO REFERENCE IS MADE IN THE SUBMISSION TO THE ANTICIPATED CIRCUMSTANCES WHICH MIGHT REQUIRE "A SUBSEQUENT MODIFICATION OF HIS ORDERS PREVENTING HIS TRAVEL TO HIS HOME," IT IS ASSUMED THAT CASES MAY BE CONTEMPLATED WHERE IT WOULD BE NECESSARY, AFTER THE PERSON HAS BEEN GIVEN A PHYSICAL EXAMINATION AT THE DEMOBILIZATION CENTER, TO TRANSFER HIM TEMPORARILY TO A HOSPITAL FOR TREATMENT PRIOR TO HIS ACTUAL RETIREMENT OR RELEASE FROM ACTIVE DUTY AS WELL AS POSSIBLY REMOTE CASES WHERE IT MIGHT BE DETERMINED, AFTER ARRIVAL AT THE DEMOBILIZATION CENTER, THAT THE PERSON IS NOT THEN TO BE RELEASED OR RETIRED BUT IS ORDERED TO RETURN TO HIS FORMER STATION OR ASSIGNED A NEW PERMANENT DUTY STATION.

SECTION 12 OF THE ACT OF JUNE 16, 1942, SUPRA, LIKE THE PRIOR STATUTE (SECTION 3, ACT OF JUNE 24, 1935, 49 STAT. 421), AUTHORIZES TRANSPORTATION OF OFFICERS AND CERTAIN GRADES OF ENLISTED MEN, AND THE 1942 STATUTE FURTHER EXTENDED SUCH RIGHT TO INCLUDE CASES INVOLVING A "RELEASE FROM ACTIVE DUTY.' WHILE THE MERE ISSUANCE OF ORDERS CONTEMPLATING A PERSON'S RETIREMENT OR RELEASE FROM ACTIVE DUTY AT SOME FUTURE DATE OR UPON THE HAPPENING OF SOME EVENT MAY NOT BE REGARDED AS VESTING AN UNCONDITIONAL RIGHT IN SUCH PERSON TO TRANSPORTATION OF DEPENDENTS, IRRESPECTIVE OF WHETHER HIS RETIREMENT OR RELEASE FROM ACTIVE DUTY ACTUALLY BE ACCOMPLISHED, THE STATUTE DOES NOT REQUIRE THAT THE FURNISHING OF TRANSPORTATION IN KIND FOR THE PERSON'S DEPENDENTS TO HIS HOME, UNDER ORDERS DETACHING HIM FROM HIS OLD STATION AND CONTEMPLATING RETIREMENT OR RELEASE FROM ACTIVE DUTY WITHOUT FURTHER ASSIGNMENT TO A PERMANENT DUTY STATION, BE DELAYED PENDING THE PERFORMANCE OF ANY INTERVENING TEMPORARY DUTY. UNDER THE CONDITIONS INVOLVED IN THE PRESENT SUBMISSION, ARISING IN CONNECTION WITH WAR DEMOBILIZATION PROCEDURES, THE CONCLUSION APPEARS WARRANTED THAT ANY MODIFICATION OF ORDERS OF THE SAID CHARACTER WOULD HAVE THE EFFECT MERELY OF TEMPORARILY POSTPONING THE ORDERED RETIREMENT OR RELEASE. IN THAT SITUATION, ANY TRANSPORTATION IN KIND THERETOFORE FURNISHED THE DEPENDENTS OF THE OFFICER OR ENLISTED MAN TO HIS HOME UNDER THE ORIGINAL ORDERS REASONABLY MAY BE REGARDED AS HAVING BEEN FURNISHED IN CONNECTION WITH HIS RETIREMENT OR RELEASE FROM ACTIVE DUTY, WITHIN THE CONTEMPLATION OF THE STATUTE, SO THAT NO COLLECTION OR ADJUSTMENT ON THAT ACCOUNT WOULD BE REQUIRED UPON A SUBSEQUENT MODIFICATION OF THE ORDERS, EXCEPT THAT WHERE SUCH ORDERS ARE MODIFIED TO ASSIGN THE OFFICER OR ENLISTED MAN TO A PERMANENT DUTY STATION AND HE SHOULD ELECT TO HAVE HIS DEPENDENTS TRANSPORTED TO SUCH STATION OR ANY SUBSEQUENT PERMANENT DUTY STATION, PENDING HIS EVENTUAL RELEASE OR RETIREMENT, ANY EXCESS COST OF TRANSPORTATION THERETOFORE FURNISHED FOR SUCH DEPENDENTS TO HIS HOME WOULD HAVE TO BE REIMBURSED IN ADJUSTING THE MATTER ON THE BASIS OF THE MODIFIED ORDERS.