B-208861, NOV 10, 1982

B-208861, NOV 10, 1982

DIGEST: THE JOINT TRAVEL REGULATIONS MAY BE AMENDED TO AUTHORIZE IN CERTAIN SITUATIONS THE MOVEMENT OF A SERVICE MEMBER'S DEPENDENTS AND HOUSEHOLD GOODS TO HIS NEW DUTY STATION UPON THE EXTENSION OF HIS ASSIGNMENT ALTHOUGH HE HAD INITIALLY MOVED THEM TO A LOCATION NEAR HIS PREVIOUS DUTY STATION BECAUSE HIS NEW ASSIGNMENT WAS OF RELATIVELY SHORT-TERM DURATION. THE TYPE SITUATIONS CONTEMPLATED INCLUDE WHERE A MEMBER ATTENDS A SERVICE- OPERATED COLLEGE FOR 1 YEAR'S TRAINING AND HE DEMONSTRATES SUCH KNOWLEDGE AND ABILITY THAT HE IS ASKED TO JOIN THE FACULTY BECAUSE OF THE NEEDS OF THE SERVICE CONCERNED.

TRANSPORTATION ALLOWANCES INCIDENT TO EXTENSION OF ASSIGNMENT:

THE ASSISTANT SECRETARY OF THE ARMY (MANPOWER AND RESERVE AFFAIRS) ASKS US TO DECIDE WHETHER VOLUME 1, JOINT TRAVEL REGULATIONS (1 JTR) MAY BE AMENDED TO ALLOW TRANSPORTATION OF A UNIFORMED SERVICE MEMBER'S HOUSEHOLD GOODS AND DEPENDENTS FROM ONE PERMANENT RESIDENCE TO ANOTHER WHEN A MEMBER IS REASSIGNED FROM A CONTEMPLATED DUTY TOUR OF SHORT DURATION TO ONE OF EXTENDED DURATION AT THE SAME PERMANENT STATION. WITH CERTAIN LIMITATIONS THE REGULATIONS MAY BE SO AMENDED.

THE QUESTION WAS FORWARDED TO US BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE UNDER PDTATAC CONTROL NO. 82-19.

FOR ILLUSTRATIVE PURPOSES THE SUBMISSION DISCUSSES A CASE WHERE AN OFFICER RECEIVED A PERMANENT CHANGE OF STATION TO ATTEND PROFESSIONAL MILITARY EDUCATION TRAINING AT THE AIR WAR COLLEGE FOR A PERIOD OF 1 YEAR. THE MEMBER AND HIS FAMILY ARE OCCUPYING GOVERNMENT QUARTERS AT THE OLD PERMANENT DUTY STATION THAT MUST BE VACATED UPON HIS DEPARTURE. ANTICIPATION OF RELOCATING TO A NEW DUTY STATION UPON COMPLETION OF THE TRAINING THE MEMBER ELECTS TO RELOCATE HIS FAMILY NEAR THE OLD PERMANENT DUTY STATION RATHER THAN MOVE HIS FAMILY AND HOUSEHOLD GOODS ACROSS THE COUNTRY TO THE NEW PERMANENT DUTY STATION FOR THE SHORT-TERM ASSIGNMENT OF 1 YEAR.

UPON COMPLETING HIS YEAR-LONG TRAINING, THE MEMBER IS INVITED TO JOIN THE FACULTY OF THE AIR WAR COLLEGE BECAUSE OF HIS DEMONSTRATED PERFORMANCE AND UNIQUE QUALIFICATIONS. THIS RESULTS IN HIS ASSIGNMENT TO HIS PERMANENT DUTY STATION BEING EXTENDED FROM A 1-YEAR PERIOD TO A PERIOD OF INDEFINITE DURATION. HOWEVER, THE CHANGE IN THE DURATION OF THE ASSIGNMENT CREATES NO ENTITLEMENT TO TRANSPORTATION OF DEPENDENTS AND SHIPMENT OF HOUSEHOLD GOODS SINCE NO PERMANENT CHANGE OF STATION OCCURRED. THEREFORE, THE ASSISTANT SECRETARY POINTS OUT, THIS SITUATION CREATES THE POTENTIAL FOR A MILITARY MEMBER TO BE PENALIZED IN A SENSE FOR HIS OUTSTANDING PERFORMANCE AND SKILLS THAT ARE REQUIRED FOR THE SERVICE CONCERNED.

THE ASSISTANT SECRETARY STATES THAT THIS TYPE OF SITUATION, REASSIGNMENT FROM TRAINING TO PERMANENT DUTY WITHOUT A CHANGE OF STATION, OCCURS INFREQUENTLY AND GENERALLY ONLY BECAUSE OF DEMONSTRATED SPECIAL ABILITIES OR OUTSTANDING PERFORMANCE OF DUTIES BY THE MEMBER CONCERNED. THUS, HE ASKS WHETHER THIS SITUATION MAY BE CONSIDERED "UNUSUAL" UNDER 37 U.S.C. SEC. 406(E) SO AS TO AUTHORIZE PAYMENT OF THE EXPENSES OF RELOCATION OF HOUSEHOLD GOODS AND DEPENDENTS.

UNDER 37 U.S.C. SEC. 406, A MEMBER OF THE UNIFORMED SERVICES WHO IS ORDERED TO MAKE A PERMANENT CHANGE OF STATION IS ENTITLED TO TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS. AS AN EXCEPTION TO THE ORDERS REQUIREMENT, SUBSECTION (E) OF SECTION 406 AUTHORIZES THE MOVEMENT OF DEPENDENTS AND HOUSEHOLD EFFECTS WITHOUT REGARD TO THE ISSUANCE OF ORDERS DIRECTING A CHANGE OF PERMANENT STATION; HOWEVER, THE AUTHORITY WITHIN "THIS SUBSECTION MAY BE USED ONLY UNDER UNUSUAL OR EMERGENCY CIRCUMSTANCES ***." ACCORDINGLY, THE QUESTION FOR RESOLUTION IS WHETHER THE TYPE OF SITUATION DESCRIBED ABOVE QUALIFIES AS AN UNUSUAL ONE WITHIN THE MEANING OF SUBSECTION (E).

IN 59 COMP.GEN. 626 (1980), WE REAFFIRMED OUR LONG-STANDING VIEW THAT "UNUSUAL OR EMERGENCY CONDITIONS" AS USED IN 37 U.S.C. SEC. 406(E) REFERS TO CONDITIONS OF A GENERAL NATURE RELATED TO MILITARY OPERATIONS OR MILITARY NEEDS AND NOT TO CONDITIONS OF A PERSONAL NATURE. AND, WE REVIEWED SEVERAL SITUATIONS WHICH WE CONSIDERED TO BE UNUSUAL SO AS TO PERMIT A MEMBER TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD GOODS UNDER 37 U.S.C. SEC. 406(E), ALTHOUGH THE MEMBER HAD NO PERMANENT CHANGE-OF STATION ORDERS AUTHORIZING THE MOVE. WE DISCUSSED THE HOLDING IN 51 COMP.GEN. 17 (1971), WHEREIN WE APPROVED THE MOVING EXPENSES OF A MEMBER WHOSE TOUR OF DUTY AT A DUTY STATION OUTSIDE THE UNITED STATES WAS INVOLUNTARILY EXTENDED, AND HE WAS UNABLE TO OBTAIN AN EXTENSION ON HIS RENTAL HOUSING. THE APPROVAL WAS GRANTED SINCE SUCH AN INVOLUNTARY EXTENSION WAS UNUSUAL; THE USUAL PRACTICE WAS TO ROTATE MEMBERS BACK TO THE UNITED STATES. ALSO DISCUSSED OUR HOLDING IN 52 COMP.GEN. 769 (1973) THAT EXTENDED THE RATIONALE OF 51 COMP.GEN. 17 TO SITUATIONS OF UNUSUAL CIRCUMSTANCES ARISING WITHIN THE UNITED STATES.

IN THESE CIRCUMSTANCES WE MUST ASCERTAIN IF A SERVICE MEMBER WHO WAS GIVEN AN INVOLUNTARY EXTENSION OF ASSIGNMENT AT A PERMANENT DUTY STATION IN THE UNITED STATES UPON COMPLETING A TRAINING PROGRAM WAS INVOLVED IN AN "UNUSUAL CIRCUMSTANCE" SO AS TO PERMIT NECESSARY TRANSPORTATION AND STORAGE OF HOUSEHOLD GOODS. IN 59 COMP.GEN. AT 629 630, WE RULED THAT THIS CIRCUMSTANCE WAS UNUSUAL AND THEREFORE WITHIN THE PURVIEW OF 37 U.S.C. SEC. 406(E).

OUR REVIEW OF THE DECISION IN 59 COMP.GEN. 626 AND THE CASES CITED THEREIN INDICATES THAT THE CONCEPT OF "UNUSUAL CIRCUMSTANCES" IS BROAD ENOUGH TO INCLUDE THE SITUATION DESCRIBED IN THIS CASE. THAT IS, THE ASSISTANT SECRETARY STATES THAT IT IS AN UNUSUAL CIRCUMSTANCE WHEN A SERVICE MEMBER ON LONG-TERM TRAINING DEMONSTRATES SUCH KNOWLEDGE AND ABILITY THAT HE IS ASKED TO JOIN THE FACULTY. WHILE HIS JOINING IS NOT MANDATORY, WE DO NOT VIEW THIS AS A REASON TO DENY TO HIM TRAVEL AND TRANSPORTATION ENTITLEMENTS PREVIOUSLY GIVEN TO MEMBERS WHO RECEIVED INVOLUNTARY EXTENSIONS SINCE THE ASSIGNMENT CLEARLY RESULTS FROM MILITARY NEEDS OR OPERATIONS.

THUS, VOLUME 1 OF THE JTR MAY BE AMENDED TO TAKE INTO ACCOUNT THE SITUATION DESCRIBED BY THE ASSISTANT SECRETARY INVOLVING EXTENSIONS OF DUTY UNDER THE UNUSUAL AND INFREQUENT CIRCUMSTANCES DESCRIBED.