B-157814, OCT. 28, 1965, 45 COMP. GEN. 208

B-157814, OCT. 28, 1965, 45 COMP. GEN. 208

TRANSPORTATION - DEPENDENTS - MILITARY PERSONNEL - ADVANCE TRAVEL OF DEPENDENTS - EMERGENCY, ETC., CONDITIONS AN ALERT PUTTING DESIGNATED UNITS ON NOTICE THAT A CHANGE OF STATION TO AN OVERSEAS AREA IS PENDING AND THAT ALL PREPARATIONS SHOULD BE TAKEN FOR THE OPERATIONAL MOVEMENT OF THE UNIT DOES NOT CONFORM TO THE REQUIREMENTS OF A COMPETENT TRAVEL ORDER AND MAY NOT BE TREATED AS A CHANGE-OF-STATION ORDER TO RELOCATE DEPENDENTS, BAGGAGE, AND HOUSEHOLD EFFECTS; HOWEVER, RELOCATION MAY BE ACCOMPLISHED PURSUANT TO 37 U.S.C. 406 (E) PROVIDING AUTHORITY FOR RELOCATION IN UNUSUAL OR EMERGENCY CIRCUMSTANCES, THE WORD "INCLUDING" USED IN THE SECTION NOT LIMITING THE SECRETARIES TO THE ENUMERATED UNUSUAL OR EMERGENCY SITUATIONS, AND THE JOINT TRAVEL REGULATIONS MAY BE AMENDED TO PROVIDE FOR THE TRANSPORTATION OF DEPENDENTS, BAGGAGE, AND HOUSEHOLD EFFECTS OF THOSE MEMBERS WHO ARE NOT ON DUTY AT THE PLACES MENTIONED IN THE STATUTE, PROVIDED THE ACTUAL MOVEMENT OVERSEAS COMMENCES WITHIN 90 DAYS OR LESS AFTER AN ALERT NOTICE AND TIME DOES NOT PERMIT THE ISSUANCE OF ORDERS FOR THE RELOCATION OF HOUSEHOLDS BEFORE OVERSEAS DEPLOYMENT.

TO THE SECRETARY OF THE NAVY, OCTOBER 28, 1965:

REFERENCE IS MADE TO LETTER DATED OCTOBER 5, 1965, FROM THE UNDER SECRETARY OF THE NAVY, FORWARDED HERE BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE BY LETTER OF THE SAME DATE, REQUESTING DECISION WHETHER THE JOINT TRAVEL REGULATIONS MAY BE AMENDED UNDER THE ,UNUSUAL OR EMERGENCY CIRCUMSTANCES" PROVISION OF 37 U.S.C. 406 (E), OR UNDER ANY OTHER EXISTING PROVISION OF THE LAW, TO PERMIT THE MOVEMENT OF DEPENDENTS, BAGGAGE, AND HOUSEHOLD EFFECTS OF MEMBERS OF THE UNIFORMED SERVICES IN THE MANNER CONTEMPLATED BY 37 U.S.C. 406 (A) AND (B) FOR MEMBERS WHO ARE ASSIGNED TO UNITS LOCATED WITHIN OR OUTSIDE THE UNITED STATES WHICH HAVE BEEN ALERTED FOR POSSIBLE DEPLOYMENT OVERSEAS IN THE SAME MANNER AND TO THE SAME EXTENT THAT IS NOW PROVIDED IN PARAGRAPHS M7005 AND M8253-2, JOINT TRAVEL REGULATIONS, FOR MEMBERS ASSIGNED TO RESTRICTED STATIONS. IT IS STATED THAT THE PROPOSAL WOULD PREMISE ENTITLEMENT UPON THE ALERT NOTICE, WHICH IS BELIEVED TO BE TANTAMOUNT TO A STATEMENT OF INTENT TO ISSUE ORDERS, AND A SPECIFIC DETERMINATION BY THE SECRETARY OF THE SERVICE CONCERNED THAT THE MOVEMENT OF DEPENDENTS, BAGGAGE, AND HOUSEHOLD EFFECTS OF MEMBERS ENTITLED TO SUCH MOVEMENT IS IN THE BEST INTERESTS OF THE GOVERNMENT. FURTHER, IT IS SAID THAT THE PROPOSAL WOULD ALSO PERMIT RETURN MOVEMENT OF DEPENDENTS TO THE MEMBER'S DUTY STATION IN THE EVENT THAT THE ALERT NOTICE IS SUBSEQUENTLY CANCELED WITHOUT ACTUAL DEPLOYMENT OVERSEAS.

THE REQUEST WAS ASSIGNED CONTROL NO. 65-31 BY THE DEPARTMENT OF DEFENSE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

IN JUSTIFICATION OF THE PROPOSAL IT IS STATED THAT THE PROBLEMS BEING ENCOUNTERED BY THE DEPARTMENT OF THE ARMY ARE GENERATED BY THE CURRENT BUILD-UP IN VIETNAM. IT IS EXPLAINED THAT MOVEMENT DIRECTIVES ARE ISSUED AND MOVEMENTS COMMENCED ON THE SAME DAY THAT APPROVAL OF THE SECRETARY OF DEFENSE IS GIVEN TO DEPLOYMENTS; THAT THE TIME INTERVAL, HOWEVER, BETWEEN THE ALERT NOTICE AND OSD APPROVAL TO DEPLOY IS APPROXIMATELY 2 MONTHS; AND THAT ORDERLY DISPOSITION OF FAMILIES AND HOUSEHOLD COULD BE ACCOMPLISHED DURING THIS PERIOD IF A RIGHT TO MOVEMENT WERE BASED ON THE ALERT NOTICE. IN ADDITION, IT IS SAID THAT NUMEROUS INDIVIDUAL FILLERS TO ALERTED UNITS COULD SETTLE DEPENDENTS AND HOUSEHOLDS BEFORE JOINING THE ALERTED UNIT THEREBY PRECLUDING THE COSTLY AND SENSELESS DOUBLE MOVEMENT OTHERWISE REQUIRED IN MOST CASES, AND THAT MANY FINANCIAL, MORALE, SCHOOLING AND WELFARE PROBLEMS ARE GENERATED BY PRECLUDING RELOCATION OF FAMILIES UNTIL THE UNIT IS ACTUALLY ORDERED TO DEPART AT WHICH TIME THE MEMBER MAY NO LONGER ASSIST HIS FAMILY IN RELOCATING.

FURTHER, IT IS POINTED OUT THAT WHEREAS ACTUAL MOVEMENT OF UNITS MUST AWAIT APPROVAL OF THE SECRETARY OF DEFENSE, THE ALERT NOTICE IS AN ORDER TO PREPARE TO MOVE ON NOTICE; THAT WHILE THE DESTINATION AND/OR THE DATE OF COMPLIANCE IS NOT DIVULGED AT TIME OF ISSUANCE OF THE ALERT NOTICE, IT HAS ALL OF THE OTHER CHARACTERISTICS OF PERMANENT CHANGE-OF-STATION ORDERS WITH A PROSPECTIVE EFFECTIVE DATE. THE UNDER SECRETARY STATES THAT IF PERMANENT CHANGE-OF-STATION ORDERS COULD BE ISSUED IN SUCH CASES, INSTEAD OF THE ALERT NOTICE, THE POSITION OF THE GOVERNMENT WOULD BE THE SAME; THAT DEPENDENTS AND HOUSEHOLD EFFECTS COULD BE RELOCATED UPON RECEIPT OF THE ORDERS, AND IF THE ORDERS SHOULD BE CANCELED BEFORE THE EFFECTIVE DATE, THE RIGHTS OF THE MEMBER TO THE EXPENSES OF RELOCATION OF HIS DEPENDENTS WOULD REMAIN FIRM AND RETURN TO THE DUTY STATION OF DEPENDENTS AND HOUSEHOLD GOODS WOULD ALSO BE AUTHORIZED AFTER SUCH CANCELLATION. SAYS, HOWEVER, THAT THE INSTANCES IN WHICH ALERT NOTICES WOULD BE CANCELED IN THE CASES HERE UNDER DISCUSSION ARE CONSIDERED TO BE REMOTE OR NONEXISTENT.

THE PROVISIONS OF 37 U.S.C. 404 AND 406 AUTHORIZE TRAVEL AND TRANSPORTATION ALLOWANCES, IN ACCORDANCE WITH REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, FOR MEMBERS OF THE UNIFORMED SERVICES, THEIR DEPENDENTS AND THEIR HOUSEHOLD EFFECTS, UPON CHANGE OF PERMANENT STATION PERFORMED UNDER ORDERS. PARAGRAPH M3000 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT "NO REIMBURSEMENT FOR TRAVEL IS AUTHORIZED UNLESS ORDERS BY COMPETENT AUTHORITY HAVE BEEN ISSUED THEREFOR," AND PARAGRAPH M3001 PROVIDES THAT A COMPETENT TRAVEL ORDER IS A WRITTEN INSTRUMENT ISSUED OR APPROVED BY THE SECRETARY OF THE DEPARTMENT CONCERNED, OR SUCH PERSON OR PERSONS TO WHOM AUTHORITY HAS BEEN DELEGATED OR REDELEGATED TO ISSUE TRAVEL ORDERS, DIRECTING AN INDIVIDUAL OR GROUP OF INDIVIDUALS TO TRAVEL BETWEEN DESIGNATED POINTS. BASICALLY, THE STATUTE AND THE REGULATIONS CONTEMPLATE THE ISSUANCE OF A WRITTEN ORDER DIRECTING THE MEMBER TO PROCEED ON PERMANENT CHANGE OF STATION BETWEEN DESIGNATED POINTS WHICH MUST BE ISSUED IN ADVANCE OF THE TRAVEL. THE DECISIONS OF THIS OFFICE UNIFORMLY HAVE HELD THAT, EXCEPT UNDER THE UNUSUAL EMERGENCY CIRCUMSTANCES PROVISION, A MEMBER'S RIGHT TO TRANSPORTATION ALLOWANCES FOR HIS DEPENDENTS CANNOT ARISE UNDER THE STATUTE UNTIL A PERMANENT CHANGE OF STATION HAS BEEN ORDERED AND THE DEPENDENTS MOVE IN CONNECTION WITH SUCH TRAVEL. 37 COMP. GEN. 715; 38 ID. 28.

AS WE UNDERSTAND IT, THE PURPOSE OF THE ALERT NOTICE IS TO PUT DESIGNATED UNITS ON NOTICE THAT A CHANGE OF STATION TO AN OVERSEAS AREA IS IMPENDING AND THAT ALL PREPARATIONS SHOULD BE TAKEN FOR THE OPERATIONAL MOVEMENT OF THE UNIT. THUS, THE ALERT NOTICE IS NOT A MOVEMENT ORDER BUT IS A NOTICE TO PREPARE TO MOVE ON RECEIPT OF ORDERS; IT DOES NOT EXPRESSLY NAME THE MEMBERS INVOLVED AND DIRECT THEM TO PROCEED ON PERMANENT CHANGE OF STATION BETWEEN DESIGNATED POINTS AND, HENCE, IT DOES NOT CONFORM TO THE REQUIREMENTS OF A COMPETENT TRAVEL ORDER AND IT MAY NOT BE TREATED AS A COMPETENT CHANGE OF-STATION ORDER. THEREFORE IT IS OUR VIEW THAT DEPENDENTS AND HOUSEHOLD EFFECTS MAY NOT BE RELOCATED UPON RECEIPT OF AN ALERT ORDER AS THOUGH IT WERE A PERMANENT CHANGE-OF-STATION ORDER.

HOWEVER, AND AS STATED IN THE UNDER SECRETARY'S LETTER, SECTION 406 (E) OF TITLE 37 OF THE U.S.C. PROVIDES THAT WHEN ORDERS DIRECTING A PERMANENT CHANGE OF STATION FOR THE MEMBER CONCERNED HAVE NOT BEEN ISSUED, OR WHEN THEY HAVE BEEN ISSUED BUT CANNOT BE USED AS AUTHORITY FOR THE TRANSPORTATION OF HIS DEPENDENTS, BAGGAGE AND HOUSEHOLD EFFECTS, THE SECRETARIES CONCERNED MAY AUTHORIZE THE MOVEMENT OF THE DEPENDENTS, BAGGAGE, AND HOUSEHOLD EFFECTS AND PRESCRIBE TRANSPORTATION IN KIND, REIMBURSEMENT THEREFOR, OR A MONETARY ALLOWANCE IN PLACE THEREOF, IN CASES INVOLVING UNUSUAL OR EMERGENCY CIRCUMSTANCES, INCLUDING THOSE IN WHICH THE MEMBER IS SERVING ON PERMANENT DUTY STATIONS OUTSIDE THE UNITED STATES, IN HAWAII OR ALASKA, OR ON SEA DUTY.

IN OUR DECISION OF SEPTEMBER 23, 1965, TO YOU, B-157450, 45 COMP. GEN. - , WE CONSIDERED THE PROVISIONS OF SECTION 406 (E) IN CONNECTION WITH THE QUESTION WHETHER THE JOINT TRAVEL REGULATIONS MAY BE AMENDED TO AUTHORIZE THE TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS OF MEMBERS ON PERMANENT DUTY ON BOARD A VESSEL TO DESIGNATED PLACES UPON DEPLOYMENT OF THE VESSEL TO AN OVERSEAS AREA FOR MORE THAN A YEAR WITHOUT CHANGE OF HOME PORT OR HOME YARD. WE CONCLUDED THAT THE CIRCUMSTANCES OF THAT CASE, INVOLVING OPERATIONAL COMMITMENTS IN THE WESTERN PACIFIC WHICH REQUIRED THAT CERTAIN SHIPS AND STAFFS BE DEPLOYED AWAY FROM THEIR HOME PORTS AND HOME YARDS FOR AT LEAST A YEAR TO AREAS WHERE DEPENDENTS ARE NOT PERMITTED, MAY BE REGARDED AS UNUSUAL CIRCUMSTANCES CONTEMPLATED BY SECTION 406 (E).

OUR CONCLUSION IN THAT DECISION WAS BASED ON THE LEGISLATIVE HISTORY OF SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, CH. 681, 63 STAT. 814, FROM WHICH SECTION 406 (E) OF TITLE 37 OF THE CODE WAS DERIVED. (S.REPT. NO. 733, ON H.R. 5007, 81ST 1949, WHICH BECAME THE CAREER COMPENSATION ACT OF 1949). WE RECOGNIZED THAT WHILE THE EMPHASIS OF THE STATUTORY PROVISIONS IS UPON THE ADVANCE RETURN OF DEPENDENTS FROM OVERSEAS, THE LEGISLATIVE HISTORY OF THE LAW INDICATES AN INTENT TO ALSO PROVIDE AUTHORITY FOR MOVEMENT OF DEPENDENTS AND HOUSEHOLD EFFECTS BETWEEN POINTS IN THE UNITED STATES INCIDENT TO UNUSUAL OR EMERGENCY SITUATIONS WHEN THE MEMBER IS ON SEA DUTY AND THE STATUTE EXPRESSLY REFERRED TO MEMBERS SERVING ON SEA DUTY. THE PRESENT SUBMISSION, HOWEVER, RELATES TO MEMBERS WHO ARE NOT ON DUTY AT ANY PLACE MENTIONED IN THE STATUTE AND PRESENTS THE QUESTION WHETHER THE SECRETARIES' AUTHORITY TO MOVE DEPENDENTS AND HOUSEHOLD EFFECTS UNDER 406 (E) IS LIMITED TO THE SPECIFIC CIRCUMSTANCES AND PLACES MENTIONED IN THE THREE CLAUSES INTRODUCED BY THE WORD "INCLUDING" OR WHETHER IT ALSO EXTENDS TO EMERGENCY SITUATIONS ARISING WHEN THE MEMBERS ARE IN THE UNITED STATES. COMPARE FEDERAL LAND BANK V. BISMARCK CO., 314 U.S. 95, 100.

IT HAS BEEN HELD THAT WHILE THE WORD "INCLUDING" IS SUSCEPTIBLE OF DIFFERENT SHADES OF MEANING, IT IS GENERALLY EMPLOYED AS A TERM OF ENLARGEMENT AND NOT A TERM OF LIMITATION, OR OF ENUMERATION. KOENIG V. JOHNSON, 163 P.2D 746; PEERLESS CARBON BLACK CO. V. SHEPPARD, 113 S.W.2D 996, 997. ALSO IT HAS BEEN HELD THAT "INCLUDING" IS NOT ONE OF ALL- EMBRACING DEFINITION, BUT CONNOTES SIMPLY AN ILLUSTRATIVE APPLICATION OF THE GENERAL PRINCIPLE. UNITED STATES V. GERTZ, 249 F.2D 662, 666. SEE ALSO SCHLUCKEBIER V. ARLINGTON MUTUAL FIRE INSURANCE CO., 99 N.W.2D 705, 707 AND SEE GENERALLY, WORDS AND PHRASES "INCLUDES" AND "INCLUDING.' UNDER SUCH CONSTRUCTION OF THOSE TERMS AND AS IT SEEMS APPARENT THAT THE NEED FOR THE MOVEMENT OF DEPENDENTS AND HOUSEHOLD EFFECTS MAY BE JUST AS IMPERATIVE IN OTHER UNUSUAL OR EMERGENCY CIRCUMSTANCES, IT WOULD APPEAR UNREASONABLE TO VIEW THE WORD "INCLUDING" IN SECTION 406 (E) AS LIMITING THE AUTHORITY OF THE SECRETARIES TO ISSUE REGULATIONS UNDER UNUSUAL OR EMERGENCY CIRCUMSTANCES TO THE SPECIFIC SITUATIONS ENUMERATED IN CLAUSES 1, 2 AND 3 OF THAT SECTION. TO DO SO WOULD RESULT IN APPLYING THE SECTION AS THOUGH THE WORDS "INCLUDING THOSE" WERE NOT CONTAINED IN THE SECTION.

IN THAT VIEW AND IN THE ABSENCE OF ANY EVIDENCE OF A LEGISLATIVE INTENT TO LIMIT THE SECRETARIES' AUTHORITY TO ISSUE REGULATIONS UNDER SECTION 406 (E) TO CASES INVOLVING THE SPECIFIC CIRCUMSTANCES AND PLACES MENTIONED IN THE 3 CLAUSES OF THAT SECTION, WE BELIEVE A RIGHT TO TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS MAY BE CONFERRED BY REGULATION IN THE UNUSUAL OR EMERGENCY CIRCUMSTANCES AND SUBJECT TO THE CONDITIONS SET FORTH IN THE UNDER SECRETARY'S LETTER. SINCE, HOWEVER, THE REGULATIONS MUST BE PREDICATED UPON THE EXISTENCE OF SOME UNUSUAL OR EMERGENCY CIRCUMSTANCES, IT IS OUR VIEW THAT THE REGULATIONS MAY NOT AUTHORIZE MOVEMENT OF DEPENDENTS AND HOUSEHOLD EFFECTS UPON ISSUANCE OF AN ALERT NOTICE FOR MOVEMENT OVERSEAS UNLESS IT IS CONTEMPLATED THAT THE ACTUAL MOVEMENT WILL COMMENCE WITHIN A PERIOD OF 90 DAYS (OR SUCH SHORTER PERIOD AS MAY BE SPECIFIED IN THE REGULATIONS) AFTER THE ALERT NOTICE HAS ISSUED AND THE CIRCUMSTANCES ARE SUCH THAT THE MOVEMENT ORDERS CANNOT BE ISSUED SUFFICIENTLY IN ADVANCE OF THE ACTUAL MOVEMENT DATE TO PERMIT THE MEMBERS CONCERNED A REASONABLE TIME TO RELOCATE THEIR HOUSEHOLDS BEFORE THE MOVEMENT TO THE OVERSEAS STATION COMMENCES.