B-163352, JUNE 5, 1968, 47 COMP. GEN. 710

B-163352, JUNE 5, 1968, 47 COMP. GEN. 710

ORDERS - EFFECTIVE DATE - LEAVE, DELAY EN ROUTE TO NEW STATION NO LEGAL BASIS EXISTING FOR DISTINGUISHING BETWEEN THE ASSIGNMENT OF A MEMBER OF THE UNIFORMED SERVICES TO NONRESTRICTED AND RESTRICTED AREAS FOR THE PURPOSE OF EXTENDING THE EFFECTIVE DATE OF PERMANENT CHANGE-OF-STATION ORDERS UNTIL THE COMPLETION OF TEMPORARY DUTY OR LEAVE EN ROUTE, PARAGRAPH M3003-1B (1) OF THE JOINT TRAVEL REGULATIONS MAY BE AMENDED UNDER 37 U.S.C. 404 (B) TO ELIMINATE THE DISTINCTION, THE REVISION TO CONFORM TO THE RULE IN 33 COMP. GEN. 458 THAT THE EFFECTIVE DATE OF PERMANENT CHANGE- OF-STATION ORDERS IS THE DATE UPON WHICH TRAVEL MUST COMMENCE TO ACCOMMPLISH AN ORDERED CHANGE, AND THAT THE TRAVEL IS NOT REQUIRED TO START PRIOR TO THE PERFORMANCE OF TEMPORARY DUTY, USE OF AUTHORIZED LEAVE, PROCEED TIME, AND PERSONAL CONVENIENCE DELAYS. THEREFORE, A MEMBER'S ENTITLEMENT TO TRANSPORTATION ALLOWANCES ONLY FOR DEPENDENTS IN EXISTENCE ON THE EFFECTIVE DATE OF ORDERS REMAINS UNALTERED UNDER THE REVISED REGULATION.

TO THE SECRETARY OF THE ARMY, JUNE 5, 1968:

FURTHER REFERENCE IS MADE TO LETTER OF DECEMBER 29, 1967, FROM THE UNDER SECRETARY OF THE ARMY, REQUESTING A DECISION WHETHER PARAGRAPH M3003-1B (1) OF THE JOINT TRAVEL REGULATIONS MAY BE REVISED TO AUTHORIZE THE DETERMINATION OF THE EFFECTIVE DATE OF PERMANENT CHANGE OF-STATION ORDERS TO A NONRESTRICTED OR A RESTRICTED AREA ON THE SAME BASIS. THIS REQUEST WAS ASSIGNED CONTROL NO. 68-1 BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

IN HIS LETTER THE UNDER SECRETARY STATES IN SUBSTANCE THAT UNDER ITEM 2 OF PARAGRAPH M3003-1B (1) OF THE JOINT TRAVEL REGULATIONS THE EFFECTIVE DATE OF ORDERS INVOLVING TEMPORARY DUTY EN ROUTE TO A PERMANENT DUTY STATION IN A NONRESTRICTED AREA IS EXTENDED UNTIL AFTER THE COMPLETION OF TEMPORARY DUTY OR LEAVE (IF AUTHORIZED AND UTILIZED), AND THAT UNDER ITEM 3 OF THAT PARAGRAPH THE EFFECTIVE DATE OF ORDERS INVOLVING TEMPORARY DUTY EN ROUTE TO A PERMANENT DUTY STATION IN A RESTRICTED AREA IS NOT POSTPONED BY SUCH TEMPORARY DUTY EN ROUTE.

THE UNDER SECRETARY SAYS THAT THE DIFFERENCE IN THE METHOD OF DETERMINING THE EFFECTIVE DATE INVOLVING TWO MEMBERS UNDER PERMANENT CHANGE-OF-STATION ORDERS, AT THE SAME TEMPORARY DUTY STATION EN ROUTE, APPEARS TO CREATE AN INEQUITY IN ENTITLEMENT. AS AN EXAMPLE OF THIS, HE DESCRIBES A SITUATION WHERE TWO MEMBERS ARE TRANSFERRED AT THE SAME TIME, WITH TEMPORARY DUTY EN ROUTE AT THE SAME STATION--- THE NEW PERMANENT STATION OF ONE MEMBER BEING IN A NONRESTRICTED AREA AND THE OTHER IN A RESTRICTED AREA--- AND THEY MARRY WHILE AT THAT TEMPORARY DUTY STATION. IN THOSE CIRCUMSTANCES, HE SAYS THAT ONLY THE ONE WHO IS ASSIGNED TO THE NEW PERMANENT STATION IN THE NONRESTRICTED AREA IS ENTITLED TO REIMBURSEMENT FOR TRAVEL OF HIS DEPENDENT WIFE.

THE UNDER SECRETARY EXPLAINS THAT THE ABOVE-MENTIONED ITEMS 2 AND 3, WERE BASED ON OUR DECISIONS, 33 COMP. GEN. 160 AND 33 COMP. GEN. 332, AND WERE INTENDED PRIMARILY TO COVER CIRCUMSTANCES INVOLVING MODIFICATION, REVOCATION OR CANCELLATION OF ORDERS. HE SUGGESTS THAT SINCE PARAGRAPH M7051 OF THE JOINT TRAVEL REGULATIONS NOW PROVIDES A FIRM ENTITLEMENT IN CASES WHERE ORDERS ARE MODIFIED, REVOKED, OR CANCELED, IT IS NO LONGER NECESSARY TO CONSTRUCT THE EFFECTIVE DATE OF ORDERS AS PRESENTLY PROVIDED BY THE REGULATIONS. ACCORDINGLY, HE RECOMMENDS THE REVISION OF PARAGRAPH M3003-1B (1) TO DELETE ITEM 3 SO THAT IT WILL READ AS FOLLOWS:

B. EFFECTIVE DATE

(1) DEFINITION. THE TERM "EFFECTIVE DATE OF ORDERS," UNLESS OTHERWISE QUALIFIED, MEANS THE DATE OF THE MEMBER'S RELIEF (DETACHMENT)FROM THE OLD STATION; EXCEPT:

1. WHEN LEAVE OR DELAY PRIOR TO REPORTING TO THE NEW STATION IS AUTHORIZED OR THE MEMBER IS GRANTED ADDITIONAL TRAVEL TIME TO PERMIT TRAVEL BY A SPECIFIC MODE OF TRANSPORTATION, THE AMOUNT OF SUCH LEAVE, DELAY, OR ADDITIONAL TRAVEL TIME WILL BE ADDED TO DATE OF RELIEF (DETACHMENT) TO DETERMINE THE EFFECTIVE DATE; OR

2. WHEN THE ORDERS INVOLVE TEMPORARY DUTY AT ONE OR MORE PLACES EN ROUTE TO A PERMANENT DUTY STATION, THE EFFECTIVE DATE, FOR THE PURPOSE OF DEPENDENT TRAVEL AND SHIPMENT OF HOUSEHOLD GOODS, IS THE DATE OF RELIEF (DETACHMENT) FROM THE LAST TEMPORARY DUTY STATION PLUS LEAVE, DELAY, OR ADDITIONAL TRAVEL TIME ALLOWED FOR TRAVEL BY A SPECIFIC MODE OF TRANSPORTATION, AUTHORIZED TO BE TAKEN AFTER SUCH DETACHMENT.

THE UNDER SECRETARY REQUESTS DECISION WHETHER PARAGRAPH M7051 OF THE JOINT TRAVEL REGULATIONS OBVIATES THE NECESSITY OF RETAINING ITEM 3 OF PARAGRAPH M3003-1B (1) AND WHETHER WE WOULD BE REQUIRED TO OBJECT TO THE PROPOSED REVISION.

THE GOVERNING STATUTORY AUTHORITY, 37 U.S.C. 406, PROVIDES GENERALLY THAT UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED MEMBERS OF THE UNIFORMED SERVICES WHO ARE ORDERED TO MAKE A PERMANENT CHANGE OF STATION SHALL BE ENTITLED TO TRANSPORTATION ALLOWANCES FOR THEIR DEPENDENTS.

PARAGRAPH M7051, JOINT TRAVEL REGULATIONS, PROVIDES, UNDER AUTHORITY OF 37 U.S.C. 406A, THAT WHEN ORDERS DIRECTING A PERMANENT CHANGE OF STATION ARE MODIFIED AFTER THE DATE TRAVEL OF DEPENDENTS UNDER THE ORDERS IS COMMENCED AND A NEW PERMANENT STATION IS DESIGNATED, OR THE NEW PERMANENT CHANGE-OF-STATION ORDERS ARE CANCELED OR REVOKED, TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE IS AUTHORIZED FOR TRAVEL PERFORMED FOR THE DISTANCE FROM THE PLACE DEPENDENTS COMMENCED TRAVEL, TO THE PLACE AT WHICH THEY RECEIVED NOTIFICATION OF THE MODIFICATION, CANCELLATION, OR REVOCATION OF ORDERS, AND THENCE TO THE NEW STATION OR RETURN TO THE OLD STATION, NOT TO EXCEED THE DISTANCE FROM THE OLD STATION TO THE FIRST- NAMED STATION AND THENCE TO THE LAST NAMED STATION OR RETURN TO THE OLD STATION.

PARAGRAPH M7060 OF THE REGULATIONS, FIRST APPEARING IN CHANGE 140, SEPTEMBER 1, 1964, PROVIDES THAT WHEN A MEMBER ACQUIRES A DEPENDENT SUBSEQUENT TO THE DATE OF HIS DEPARTURE (DETACHMENT) FROM HIS OLD PERMANENT DUTY STATION INCIDENT TO PERMANENT CHANGE-OF-STATION ORDERS BUT ON OR BEFORE THE EFFECTIVE DATE OF THOSE ORDERS HE WILL BE ENTITLED TO TRANSPORTATION OF SUCH DEPENDENT FROM THE PLACE WHERE THE DEPENDENT IS ACQUIRED TO THE NEW PERMANENT STATION NOT TO EXCEED THE ENTITLEMENT FROM THE OLD TO THE NEW PERMANENT DUTY STATION AND THAT ENTITLEMENT IS WITHOUT REGARD TO WHETHER TEMPORARY DUTY IS DIRECTED OR PERFORMED EN ROUTE OR WHETHER EITHER THE OLD OR NEW STATION IS WITHIN OR OUTSIDE THE UNITED STATES.

THIS OFFICE CONSISTENTLY HAS HELD THAT THE EFFECTIVE DATE OF ORDERS DIRECTING A PERMANENT CHANGE OF STATION IS THE DATE ON WHICH TRAVEL IS REQUIRED TO BE COMMENCED IN ORDER TO COMPLY WITH SUCH ORDERS. 33 COMP. GEN. 458. MEMBERS ARE ENTITLED TO PERMANENT CHANGE-OF-STATION TRANSPORTATION ALLOWANCES AUTHORIZED FOR DEPENDENTS ONLY AS TO DEPENDENTS IN EXISTENCE ON SUCH EFFECTIVE DATE.

MEMBERS WHO ACQUIRE DEPENDENTS AFTER THE EFFECTIVE DATE OF THEIR PERMANENT CHANGE-OF-STATION ORDERS HAVE NOT BEEN CONSIDERED TO BE MEMBERS WITH DEPENDENTS FOR THE PURPOSE OF PERMANENT CHANGE-OF-STATION TRANSPORTATION ALLOWANCES. NOTHING IN THE PROVISIONS OF 37 U.S.C. 406A PURPORTS TO ALTER THE BASIC STATUTORY PREMISE THAT ONLY MEMBERS WITH DEPENDENTS ARE AUTHORIZED THESE TRANSPORTATION ALLOWANCES, AND CONSEQUENTLY THE REGULATIONS ISSUED PURSUANT TO THOSE PROVISIONS MAY NOT BE VIEWED AS HAVING THAT EFFECT. HENCE, TO THE EXTENT THAT THE EFFECTIVE DATE OF ORDERS IS MATERIAL TO THE DETERMINATION OF WHETHER A MEMBER ORDERED TO MAKE A PERMANENT CHANGE OF STATION HAS A DEPENDENT FOR PURPOSES OF THE PROVISIONS OF 37 U.S.C. 406 (A), WE FIND NO BASIS FOR A CONCLUSION THAT PARAGRAPH M7051 OF THE JOINT TRAVEL REGULATIONS OBVIATES THE REQUIREMENT FOR ANY OF THE PROVISIONS CONTAINED IN PARAGRAPH M3003-1B OF THE REGULATIONS.

WE HAVE NOT QUESTIONED REGULATIONS BY THE SECRETARIES CONCERNED SPECIFYING THE ITEMS OF DELAY FOR CONSIDERATION IN DETERMINING THE EFFECTIVE DATE OF PERMANENT CHANGE-OF-STATION ORDERS WHICH DO NOT CONFLICT WITH THE LEGAL CONCEPT OF THAT DATE AS STATED IN 33 COMP. GEN. 458--- THE DATE UPON WHICH TRAVEL MUST COMMENCE IN ORDER TO ACCOMPLISH THE ORDERED PERMANENT CHANGE OF STATION. IT LONG HAS BEEN RECOGNIZED THAT SUCH TRAVEL IS NOT REQUIRED PRIOR TO THE USE OF AUTHORIZED LEAVE, PROCEED TIME, AND OTHER DELAYS PROVIDED FOR THE MEMBER'S PERSONAL CONVENIENCE. IN ADDITION, WE HAVE NOT OBJECTED TO REGULATIONS DELAYING THE EFFECTIVE DATE OF THE ORDERS UNTIL THE TERMINATION OF ANY PERIOD OR PERIODS NECESSARY TO PERFORM TEMPORARY DUTY ASSIGNMENTS REQUIRED BY THE ORDERS PRIOR TO PROCEEDING TO THE LOCATION OF THE NEW PERMANENT DUTY STATION IN AN UNRESTRICTED AREA AND WE SEE NO LEGAL BASIS FOR AN OBJECTION TO SUCH REGULATIONS SOLELY BECAUSE THE NEW PERMANENT DUTY STATION IS IN A RESTRICTED AREA.

IN OUR VIEW THE PROPOSED REVISION OF PARAGRAPH M3003-1B (1) OF THE JOINT TRAVEL REGULATIONS COMES WITHIN THE AUTHORITY VESTED IN THE SECRETARIES BY 37 U.S.C. 404 (B) TO PRESCRIBE THE CONDITIONS UNDER WHICH TRAVEL AND TRANSPORTATION ARE AUTHORIZED AND, ACCORDINGLY, WE HAVE NO OBJECTION TO THE PROPOSED REVISION.