B-126158, APRIL 26, 1967, 46 COMP. GEN. 764

B-126158, APRIL 26, 1967, 46 COMP. GEN. 764

MILITARY PERSONNEL - RETIREMENT - TRAVEL AND TRANSPORTATION ENTITLEMENT TIME LIMITATIONS THE JOINT TRAVEL REGULATIONS IMPLEMENTING PUBLIC LAW 89-680, AND EXTENDING EFFECTIVE OCTOBER 15, 1966, THE 1-YEAR TIME LIMITATION FOR THE TRAVEL OF MEMBERS OF THE UNIFORMED SERVICES UNDERGOING HOSPITALIZATION, MEDICAL TREATMENT, SCHOOLING, OR TRAINING TO A HOME OF SELECTION, AND FOR THE TRANSPORTATION OF THEIR DEPENDENTS AND HOUSEHOLD GOODS, MAY BE AMENDED TO INCLUDE MEMBERS IN A RETIRED STATUS PRIOR TO OCTOBER 15, 1966, WHO, WHETHER OR NOT THE 1-YEAR LIMITATION IN EFFECT AT THE TIME OF THEIR RETIREMENT HAS EXPIRED, HAVE NOT EXERCISED RIGHTS THAT WERE NOT FIXED AT THE TIME OF THE STATUTORY ENACTMENT. THEREFORE, THE LEGISLATIVE HISTORY EVIDENCING THE INTENT TO INCLUDE MEMBERS IN A RETIRED STATUS PRIOR TO OCTOBER 15, 1966, THE REGULATIONS WHICH INITIALLY COULD HAVE RETROACTIVELY INCLUDED THE MEMBERS MAY BE AMENDED TO PROVIDE THE AUTHORIZED BENEFIT.

TO THE SECRETARY OF THE NAVY, APRIL 26, 1967:

FURTHER REFERENCE IS MADE TO LETTER OF FEBRUARY 21, 1967, FROM THE UNDER SECRETARY OF THE NAVY, FORWARDED HERE BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE, REQUESTING DECISION WHETHER THE JOINT TRAVEL REGULATIONS MAY BE AMENDED TO AUTHORIZE THE APPLICATION OF PUBLIC LAW 89-680, OCTOBER 15, 1966, 80 STAT. 957 TO CERTAIN MEMBERS OF THE UNIFORMED SERVICES WHO RETIRED PRIOR TO THE DATE OF ITS ENACTMENT. THE REQUEST WAS ASSIGNED CONTROL NO. 67-6 BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

IN THE LETTER IT IS STATED THAT THE SECRETARIES OF THE UNIFORMED SERVICES HAVE BEEN AUTHORIZED BY RECENT AMENDMENTS OF SECTIONS 404 AND 406, TITLE 37, U.S.C. (PUBLIC LAW 89-680, OCTOBER 15, 1966) TO PRESCRIBE REGULATIONS WHICH AUTHORIZE EXTENSION OF PREVIOUS TIME LIMITS FOR TRAVEL OF MEMBERS TO THEIR HOMES OF SELECTION FOLLOWING RETIREMENT AND FOR TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD GOODS TO SUCH SELECTED HOMES.

FURTHER, IT IS STATED THAT BECAUSE OF SOME QUESTION AS TO THE APPLICABILITY OF PUBLIC LAW 89-680 TO MEMBERS RETIRED PRIOR TO OCTOBER 15, 1966, THE DATE OF THE NEW LAW, CURRENT SERVICE REGULATIONS HAVE BEEN MADE APPLICABLE ONLY TO MEMBERS WHOSE RETIREMENT ORDERS ARE EFFECTIVE ON OR AFTER OCTOBER 15, 1966.

IT IS EXPLAINED THAT UNDER PREVIOUS REGULATIONS, MEMBERS WHO RETIRED PRIOR TO OCTOBER 15, 1966, WERE AUTHORIZED TO SELECT A HOME AND TRAVEL THERETO FROM THE LAST DUTY STATION, PROVIDED SUCH TRAVEL WAS COMPLETED WITHIN 1 YEAR AFTER TERMINATION OF ACTIVE DUTY. IF A MEMBER WAS UNDERGOING TREATMENT ON THE DATE OF SEPARATION, AT A GOVERNMENT HOSPITAL, SUCH TRAVEL HAD TO BE COMPLETED WITHIN 1 YEAR AFTER DISCHARGE FROM THE HOSPITAL OR 2 YEARS AFTER TERMINATION FROM ACTIVE SERVICE, WHICHEVER WAS EARLIER.

THE UNDER SECRETARY SAYS THAT THERE ARE MANY MEMBERS, WHO RETIRED PRIOR TO OCTOBER 15, 1966, WHO HAVE NOT AS YET EXERCISED THEIR RIGHTS UNDER THE PREVIOUS REGULATIONS SINCE THE TIME LIMITATION OF 1 YEAR HAS NOT EXPIRED. HE STATES THAT THE SECRETARIES BELIEVE THAT THESE MEMBERS SHOULD BE ENTITLED TO THE BENEFITS OF THE NEW SERVICE REGULATIONS BASED ON PUBLIC LAW 89-680 BECAUSE THE RIGHT TO SELECT A HOME STILL EXISTS AND, IF EXERCISED, SHOULD BE GOVERNED BY CURRENT TIME LIMITATIONS. FURTHER, HE SAYS THE SECRETARIES BELIEVE THAT IT WOULD BE EXTREMELY UNFAIR AND INEQUITABLE TO DENY THE APPLICATION OF THE CURRENT TIME LIMITATIONS TO SUCH MEMBERS WHO ARE ENGAGED IN EDUCATIONAL PURSUITS LEADING TO CIVILIAN EMPLOYMENT SINCE THIS WAS ONE OF THE PRIMARY OBJECTIVES OF THE NEW LEGISLATION.

THE UNDER SECRETARY REQUESTS OUR DECISION WHETHER THE JOINT TRAVEL REGULATIONS MAY BE AMENDED TO AUTHORIZE THE APPLICATION OF PUBLIC LAW 89- 680, OCTOBER 15, 1966, TO MEMBERS WHOSE ORDERS WERE EFFECTIVE PRIOR TO OCTOBER 15, 1966, BUT WHO HAVE NOT EXERCISED THEIR RIGHTS TO SELECTION OF HOMES AND TRAVEL THERETO FROM THEIR LAST DUTY STATIONS, WITHIN THE PREVIOUS TIME LIMITATIONS. WE UNDERSTAND THAT QUESTION AS RELATING ONLY TO MEMBERS WHOSE TIME LIMITATION UNDER THE REGULATIONS IN EFFECT PRIOR TO OCTOBER 15, 1966, HAS NOT YET EXPIRED.

ALSO, HE ASKS THAT WE ANSWER THE FOLLOWING QUESTIONS:

A. MAY THE JOINT TRAVEL REGULATIONS BE AMENDED TO AUTHORIZE THE APPLICATION OF PUBLIC LAW 89-680 TO MEMBERS WHOSE ORDERS WERE EFFECTIVE PRIOR TO 15 OCTOBER 1966, AND THEIR ONE YEAR LIMITATION HAD EXPIRED BETWEEN 15 OCTOBER 1966 AND THE PRESENT, WHO HAD SELECTED A HOME AND MOVED AT THEIR OWN EXPENSE OR WHO DID NOT SELECT A HOME AND REMAINED AT THE SAME LOCATION AS THE PLACE OF RETIREMENT PENDING COMPLETION OF EDUCATION OR TRAINING AT WHICH TIME HE WILL RELOCATE HIS HOUSEHOLD?

B. WOULD THE SECRETARIES OF THE RESPECTIVE SERVICES BE AUTHORIZED TO ISSUE APPROVALS IN THE LATTER TYPES OF CASES ON A RETROACTIVE BASIS?

FROM INFORMAL INFORMATION RECEIVED FROM THE PER DIEM TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE, WE UNDERSTAND QUESTIONS (A) AND (B) CONCERN THE SITUATIONS OF MEMBERS WHO RETIRED PRIOR TO OCTOBER 15, 1966, AND WHOSE YEAR OF ELIGIBILITY EXPIRED BETWEEN THE EFFECTIVE DATE OF THE ACT AND THE PRESENT TIME. THE MEMBERS COMPLETED EDUCATION OR TRAINING AFTER OCTOBER 15, 1966, AND TRAVELED TO A HOME OF SELECTION AND EITHER DID NOT CLAIM FOR TRAVEL TO HOME OF SELECTION OR THE CLAIM WAS DENIED BECAUSE IT WAS BELIEVED THAT THE MEMBER DID NOT COME WITHIN THE PURVIEW OF PUBLIC LAW 89-680.

PRIOR TO PUBLIC LAW 89-680, SECTIONS 404 (C), 406 (D) AND 406 (G) OF TITLE 37, U.S. CODE, PRESCRIBED NO TIME LIMIT WITHIN WHICH A MEMBER WHO IS RETIRED, PLACED ON THE TEMPORARY DISABILITY RETIRED LIST, DISCHARGED, OR RELEASED FROM ACTIVE DUTY, MAY SELECT HIS HOME FOR PURPOSES OF PERFORMING HIS TRAVEL, DEPENDENT TRAVEL AND SHIPMENT OF HOUSEHOLD EFFECTS. HOWEVER, IN OUR DECISION OF DECEMBER 19, 1960, TO THE SECRETARY OF THE AIR FORCE, 40 COMP. GEN. 375, WE HELD THAT IN VIEW OF THE LONGSTANDING RULE THAT 1 YEAR IS A REASONABLE TIME FOR TRAVEL OF MEMBERS TO THEIR HOMES IN COMPLIANCE WITH RETIREMENT ORDERS AND THE APPARENT CONGRESSIONAL RECOGNITION OF SUCH RULE, THE 1-YEAR PERIOD COULD NOT BE EXTENDED BY THE MILITARY SERVICES WITHOUT SPECIFIC STATUTORY AUTHORITY.

PUBLIC LAW 89-680 AMENDS SECTIONS 404 (C), 406 (D) AND 406 (G) TO INCLUDE A 1-YEAR TIME LIMIT FROM THE DATE THE MEMBER IS RETIRED, PLACED ON THE TEMPORARY DISABILITY RETIRED LIST, DISCHARGED, OR RELEASED FROM ACTIVE DUTY, WITHIN WHICH HE MAY SELECT HIS HOME FOR PURPOSES OF PERFORMING HIS TRAVEL, DEPENDENT TRAVEL AND SHIPMENT OF HOUSEHOLD EFFECTS, EXCEPT THAT THE SECRETARIES CONCERNED MAY PRESCRIBE REGULATIONS WHICH WOULD HAVE THE EFFECT OF EXTENDING THE 1-YEAR LIMITATION UNDER CERTAIN CIRCUMSTANCES.

THE CURRENT POVISIONS OF THE JOINT TRAVEL REGULATIONS PROMULGATED PURSUANT TO PUBLIC LAW 89-680 NOW PROVIDE A 1-YEAR LIMITATION IN SUCH CIRCUMSTANCES EXCEPT THAT THE PERIOD MAY BE EXTENDED IF THE MEMBER, AT THE TERMINATION OF ACTIVE SERVICE OR DURING THE 1-YEAR PERIOD SUBSEQUENT THERETO, IS HOSPITALIZED OR UNDERGOING TREATMENT AT A HOSPITAL AT GOVERNMENT EXPENSE. ALSO, THE REGULATIONS PROVIDE THAT A MEMBER WHO, ON THE DATE OF TERMINATION OF ACTIVE SERVICE, IS UNDERGOING EDUCATION OR TRAINING FOR CIVILIAN EMPLOYMENT, OR WHO COMMENCES SUCH EDUCATION OR TRAINING WITHIN 1 YEAR FOLLOWING SUCH DATE, MAY TRAVEL TO A SELECTED HOME PROVIDED TRAVEL IS COMPLETED WITHIN 1 YEAR AFTER COMPLETION OF EDUCATION OR TRAINING, OR 2 YEARS FROM TERMINATION OF ACTIVE SERVICE, WHICHEVER IS EARLIER, AND THE TRAVEL IS AUTHORIZED OR APPROVED BY THE SECRETARY CONCERNED OR HIS DESIGNATED REPRESENTATIVE. THE REGULATIONS PROVIDE THAT AN EXTENSION OF THIS TIME LIMIT MAY BE AUTHORIZED OR APPROVED. SIMILAR PROVISIONS ARE CONTAINED IN THE REGULATIONS WITH RESPECT TO TRANSPORTATION OF DEPENDENTS AND SHIPMENT OF HOUSEHOLD GOODS.

THE LEGISLATIVE HISTORY OF PUBLIC LAW 89-680 SHOWS THAT IT WAS INTENDED TO AUTHORIZE THE SECRETARIES TO ISSUE REGULATIONS TO EXTEND THE 1-YEAR LIMITATION TO PERSONS IN A RETIRED STATUS WHO ARE UNDERGOING HOSPITALIZATION OR MEDICAL TREATMENT OR SCHOOLING OR TRAINING BEFORE SELECTING THEIR RETIREMENT HOME. SEE HEARINGS BEFORE THE HOUSE OF REPRESENTATIVES, COMMITTEE ON ARMED SERVICES, SUBCOMMITTEE NO. 4, SEPTEMBER 2, 1965, H.R. 266, 89TH CONG., 1ST SESS. 3335.

THE GENERAL RULE IS THAT STATUTES TAKE EFFECT AT THE TIME OF THEIR PASSAGE AND ARE TO BE APPLIED PROSPECTIVELY, AND ARE NOT TO BE GIVEN AN APPLICATION WHICH WOULD DISTURB RIGHTS THAT HAVE ALREADY BECOME VESTED.

IT APPEARS FROM THE LEGISLATIVE HISTORY OF PUBLIC LAW 89-680 THAT ITS ORIGINAL SPONSOR (CONGRESSMAN CHARLES E. BENNETT) INTENDED IT TO BE FOR APPLICATION TO RETIRED MEMBERS WHO HAD NOT AS YET EXERCISED THEIR RIGHTS UNDER THE PREVIOUS REGULATIONS SINCE THE TIME LIMITATION OF 1 YEAR HAD NOT EXPIRED. SEE PAGES 3336 AND 3337 OF THE 1965 HOUSE HEARINGS.

IN THE CASES OF THE MEMBERS INVOLVED IN THE QUESTIONS PRESENTED, THE PERIOD IN WHICH TO SELECT A HOME AND TRAVEL THERETO HAD NOT ELAPSED UNDER THE REGULATIONS IN EFFECT AT THE TIME OF ENACTMENT OF PUBLIC LAW 89-680 AND SINCE THE SELECTION OF A HOME HAD NOT BEEN MADE BY THESE MEMBERS, NEITHER THE RIGHTS OF THE MEMBER NOR OF THE GOVERNMENT HAD BECOME FIXED WHEN THE LAW WAS ENACTED. IT SEEMS CLEAR THAT IT WAS THE LEGISLATIVE INTENT THAT SUCH MEMBERS WOULD BE AFFORDED THE BENEFITS AUTHORIZED UNDER THE ACT AND IT LONG HAS BEEN OUR VIEW THAT REGULATIONS REQUIRED BY A STATUTE, WHEN FIRST ISSUED, MAY BE MADE RETROACTIVE IN PROPER CASES TO THE DATE CONTEMPLATED BY THE STATUTE. 32 COMP. GEN. 315.

THE MEMBERS INVOLVED IN YOUR SUBMISSION APPARENTLY WERE NOT INCLUDED IN THE INITIAL REGULATIONS BECAUSE OF DOUBT AS TO THE PROPRIETY OF SUCH ACTION, AND THEY DID NOT TRAVEL TO A SELECTED HOME WITHIN THE PERIOD PRESCRIBED UNDER THE REGULATIONS IN EFFECT AT THE TIME OF TERMINATION OF ACTIVE DUTY. IN THESE CIRCUMSTANCES, WE WOULD NOT BE REQUIRED TO OBJECT TO AN AMENDMENT OF THE JOINT TRAVEL REGULATIONS RETROACTIVE TO OCTOBER 15, 1966, SO AS TO EXTEND THE BENEFITS PRESENTLY PRESCRIBED UNDER PUBLIC LAW 89-680 TO MEMBERS IN THE CIRCUMSTANCES SET FORTH IN THE FIRST QUESTION PRESENTED. LIKEWISE, THE REGULATIONS MAY BE AMENDED TO EXTEND SUCH BENEFITS TO THOSE MEMBERS IN THE CIRCUMSTANCES PRESENTED IN QUESTION A. AS TO QUESTION B, APPROVAL AS PROVIDED IN THE REGULATIONS WOULD BE AUTHORIZED RETROACTIVELY EFFECTIVE TO OCTOBER 15, 1966, THE DATE OF PUBLIC LAW 89- 680, SO AS TO GIVE EFFECT TO THE REGULATIONS AND AFFORD THE BENEFITS OTHERWISE AUTHORIZED THEREIN.