(B-66166)

FAMILY ALLOWANCE BENEFITS-DURATION OF ENTITLEMENTNAVY ENLISTED MEN EXTENDING ENLISTMENTS

The family allowance authorized by section 9 (a) of the Armed Forces Voluntary Recruitment Act of 1945 for enlisted men's dependents during the present war and six months thereafter or the term of enlistments entered into prior to July 1, 1946, whichever period is longer, is not payable in the case of a Navy enlisted man beyond the original term of such an enlistment, or the wartime period, by reason of an extension of enlistment under the act of August 22, 1912, as amended-the extension having no effect to bestow greater benefits than if the man were discharged and reenlisted at expiration of enlistment. Compare 26 Comp. Gen. 83.

Assistant Comptroller General Yates to the Secretary of the Navy, July 21, 1947: There has been considered your letter of May 6, 1947, as follows:

Numerous inquiries are being received by the Bureau of Naval Personnel relative to the entitlement by enlisted personnel of the Navy to benefits under the Servicemen's Dependents Allowance Act of 1942 (56 Stat. 381), as amended. These questions arise, more particularly, under the amendment effected by the Armed Forces Voluntary Recruitment Act of 1945, approved October 6, 1945 (59 Stat. 538).

I have noted your decision of August 5, 1946, B-57734 (26 Comp. Gen. 83), particularly as it might have application to the questions herein presented. The Navy, however, as indicated in that decision, has the benefit of legislation authorizing the extension of enlistments. (Act approved August 22, 1912 (37 Stat. 331), as amended.) In addition, naval enlistments may be for a term of up to six years as provided in the Act approved August 18, 1941 (55 Stat. 629). Because of these factors your decision mentioned above, on questions raised_by the War Department, is somewhat limited in its application to the Navy. For these reasons the present inquiry is made.

Notwithstanding present entitlement for the duration of the present war plus six months or the enactment of legislation proposed to extend the family allowance benefits to all personnel in active service to 1 July 1949, a decision is requested on the following question:

Is an enlisted man in the active naval service entitled to the benefits of Section 9 of the Armed Forces Voluntary Recruitment Act of 1945 approved 6 October 1945 (59 Stat. 541), during the combined period of his current enlistment and any extension thereof if,

(a) his enlistement contracted prior to 1 July 1946 is extended after 1 July 1946 for a period of one, two, three or four years and the total contract including the extension, does not exceed six years;

(b) his enlistment contracted prior to 1 July 1946 is extended after 1 July 1946 for a period of one, two, three or four years and the total contract including the extension, does exceed six years?

Section 9 (a) of the Armed Forces Voluntary Recruitment Act of 1945, 59 Stat. 541, is as follows:

Section 101 of the Servicemen's Dependents Allowance Act of 1942, as amended, is amended to read as follows:

"Sec. 101. The dependent or dependents of any enlisted man in the Army of the United States, the United States Navy, the Marine Corps, or the Coast Guard, including any and all retired and reserve components of such services, shall be entitled to receive a monthly family allowance for any period during which such enlisted man is in the active military or naval service of the United States on or after June 1, 1942, (1) during the existence of any war declared by Congress and the six months immediately following the termination of any such war or (2) during a period of enlistment or reenlistment contracted by such enlisted man prior to July 1, 1946."

The act approved August 22, 1912, 37 Stat. 331, as amended, 34 U. S. C. 184, is as follows:

Extension of term. The term of enlistment of any enlisted man in the Navy and Marine Corps, including enlistment for minority, may, by his voluntary written agreement, under such regulations as may be prescribed by the Secretary of the Navy with the approval of the President, be extended for a period of either one, two, three, or four full years from the date of expiration of the then existing term of enlistment, and subsequent to said date such enlisted men as extend the term of enlistment as authorized in this section shall be entitled to and shall receive the same pay and allowances in all respects as though regularly discharged and reenlisted immediately upon expiration of their term of enlistment, and such extension shall not operate to deprive them upon discharge at the termination thereof of any right, privilege, or benefit to which they would be entitled at the expiration of the former term of enlistment.

In decision of August 5, 1946, 26 Comp. Gen. 83, referred to in your letter, it was held that Army personnel enlisting or reenlisting under the Armed Forces Voluntary Recruitment Act of 1945 were saved the benefits of the Servicemen's Dependents Allowance Act of 1942, 56 Stat. 381, at least for the period of any such enlistment or reenlistment entered into prior to July 1, 1946; that in those cases where an enlistinent or reenlistment entered into prior to July 1, 1946, was for a shorter period than the maximum period of 3 years authorized for enlistments and reenlistments in the Regular Army by the said recruitment act, the enlistment contract could be amended to the maximum period of 3 years, the time served in the original enlistment to be credited on the amended enlistment period; but that any procedure which would have the effect of further extending the effective period of the Servicemen's Dependents Allowance Act of 1942 would be unauthorized.

The act of August 18, 1941, 55 Stat. 629, authorizes enlistments in the Navy for a term of up to 6 years. Therefore, Navy personnel who enlisted or reenlisted prior to July 1, 1946, are saved by section 9 (a) of the Armed Forces Voluntary Recruitment Act of 1945, supra, the benefits of the Servicemen's Dependents Allowance Act of 1942 at least for the period of such enlistments or reenlistments. Under the provisions of the act of August 22, 1912, supra, the term of Naval enlistments may be extended for a period up to 4 years, and Naval personnel who extend the term of their enlistment under said act are entitled to receive the same pay and allowances in all respects as though regularly discharged and reenlisted immediately upon the expiration of their term of enlistment. Naval personnel who, on or after July 1, 1946, are regularly discharged from an enlistment or reenlistment entered into prior to July 1, 1946, and immediately reenlist are not entitled to the benefits of the Servicemen's Dependents Allowance Act of 1942 unless, of course, the period of the duration of the war and 6 months thereafter has not then expired, and, therefore, since Naval

personnel who extend their enlistment are entitled to the same benefits in all respects as though regularly discharged and reenlisted immediately upon the expiration of their term of enlistment, there is no basis for granting such personnel greater benefits than those who are regularly discharged and immediately reenlist.

Accordingly, answering your questions specifically, Naval personnel serving under the circumstances there set forth are entitled under the Armed Forces Voluntary Recruitment Act of 1945 to the benefits of the Servicemen's Dependents Allowance Act of 1942 only for the period of such enlistments or reenlistments as were entered into prior to July 1, 1946, or for the period of the duration of the war and 6 months thereafter, whichever is the longer.

(B-66737)

APPROPRIATIONS-FISCAL YEAR-EXPENSES OF TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS

The expenses of transportation of an employee's immediate family and household effects in connection with a transfer of official station, as authorized by the administrative expense statute of August 2, 1946, are chargeable to the appropriation current at the time such expenses are incurred, and not to the appropriation current at the time of issuance of the transfer order, in the absence of a specific statutory provision to the contrary. Comptroller General Warren to the Secretary of Agriculture, July 28, 1947: There has been considered your letter of May 28, 1947, as follows: Public Law 600, 79th Congress, provides, among other things, that under prescribed regulations any civilian officer or employee of the Government who, in the interest of the Government, is transferred from one official station to another, shall, when authorized in the order directing the travel, be allowed and paid from Government funds the expenses of travel for himself and the expenses of transportation of his immediate family and household goods. Prior rulings of your office have held that the appropriation current at the time the travel expenses of the employee were actually incurred is to be charged with such expenses.

Under the provisions of Public Law 600, the question arises as to whether the time element of these rulings is required to be applied with equal force to the transportation expenses of the employee's immediate family and household goods which are also authorized at the time the employee is directed to change his official station, but over which the administrative agency is without control as to the time when such transportation costs will actually be incurred by the employee. If it is held that the transportation expenses of the employee's immediate family and household goods, generally, a major portion of the obligation, are not chargeable to the appropriation current at the time the employee actually changes official station, without regard to the time such transportation actually occurs, budgetary and accounting problems are created in that two or more annual appropriations are encumbered by the authorization to pay these transportation costs if the employee is unable, or does not wish to move his family and household goods at the same time he changes official station. Unless the obligation created by the authorization can be definitely tled to the appropriation provided therefor, current at the time the authorization was issued and reserved for payment of the expenses authorized, the funds so reserved, but not used by the end of the fiscal year, will require that a corresponding amount of the new fiscal year funds not provided for payment

therefor, be reserved for this prior obligation, contrary to the rule that an administrative agency is without authority to obligate funds prior to their being appropriated by Congress. In other words, if such an authorization is not a valid, continuing obligation against the funds current at the time the employee changes his official station, the prohibition in the above rule would prevent an actual obligation being created. In addition, funds reserved in this manner and reported in the official accounts as unliquidated obligations of the appropriation, may not represent a true statement of the account because of the fact that it cannot be determined when the transportation will actually be consummated. Regulations allow the payment of such expenses, with certain exceptions, provided the movement begins within two years of the effective date of the transfer and, accordingly, two, or even three, annual appropriations may be so involved. Whereas the law is silent regarding the funds to be used for paying the transportation costs authorized, there is no indicated intent of the law or regulations to condition this obligation on the availability of future appropriations.

Public Law 731, creating the Farmers Home Administration, required the abolition, not later than June 30, 1947, of the former Farm Security Administration and the Emergency Crop and Feed Loan regional offices. Since this provision of law necessitates the transfer of the selected regional office employees to the state, area, or national offices, the above question has become of considerable magnitude to that Administration, particularly, as under the housing shortages still prevailing in such headquarters cities, it has been extremely difficult for the majority of the employees so transferred readily to secure suitable living accommodations. The authorizations covering the transfer of these employees to their new official stations reserved current FHA funds to pay the transportation costs of the employees' immediate families and household belongings; yet, because of the emergency housing conditions, it does not appear that these employees will find suitable living accommodations prior to the close of this fiscal year, and there appears to be little likelihood that any appreciable portion of these transportation expenses can be paid from such funds unless such transportation costs can be paid therefrom without regard to the time the transportation actually takes place.

The travel authorization directing an employee to transfer his official station, with provisions for the transportation of his immediate family and household goods at Government expense as provided by law, appears to be not only a travelauthorization for his own travel, but also for all intent and purposes, a contract between the Government and the employee to pay the cost of transportation for his immediate family and household goods. Considered thusly, such an authorization or contract would become an obligation of the Government effective as of the date of the transfer order and all expenses incident thereto appear to be properly payable from the funds available at the time the contract comes into being. The indeterminate date of actual movement seems to be without effect.

Favorable consideration of this immediate and continuing problem to permit the department to have administrative control over such transportation costs the same as over other obligations incurred against appropriations provided therefor by authorizing the appropriation current at the time the employee is transferred as properly chargeable with the total expense incident to the transfer, will be very much appreciated.

As stated in the first paragraph of your letter, supra, it consistently has been held that the travel expenses of a civilian employee of the United States properly are chargeable to the appropriation current at the time such expenses are incurred. A similar conclusion has been reached with respect to the expenses of transportation of the employee's dependents and household effects when authorized in appropriate cases. That is to say, such expenses properly are chargeable to the appropriation current at the time they are incurred or at the time a valid agreement for such transportation is entered into with the carrier-notwithstanding the fact that the travel expenses of the em

ployee may have been charged to a prior appropriation. See 1 Comp Gen. 655; 5 id. 1; 16 id. 843; 20 id. 436. The basis for the holdings in those decisions is that the issuance of a travel or transportation order, in itself, does not constitute a contractual obligation. Rather, such orders merely constitute authorizations for the persons specified therein to incur the obligations. Hence, to permit the charging of travel and transportation expenses to the appropriations current at the time such orders are issued, rather than to the appropriation current at the time such expenses are incurred, would contravene section 3690, Revised Statutes, 31 U. S. Code 712, which provides:

Except as otherwise provided by law, all balances of appropriations contained in the annual appropriation bills and made specifically for the service of any fiscal year and remaining unexpended at the expiration of such fiscal year, shall only be applied to the payment of expenses properly incurred during that year, or to the fulfillment of contracts properly made within that year; and balances not needed for such purposes shall be carried to the surplus fund. [Italics supplied.]

See, also, decision of June 27, 1947, B–66834, 26 Comp. Gen. 961, to the Secretary of State, involving a closely related problem.

So far as concerns the fiscal year properly chargeable with the expenses of transportation of an employee's immediate family and household effects, I find nothing in the provisions of Public Law 600, 60 Stat. 806, referred to in your letter which warrants any different conclusion than that heretofore reached in such matters. Accordingly, I have to advise that, in the absence of a specific statutory provision to the contrary, no departure from the settled rule governing such matters appears authorized.

(B-66833)

COMPENSATION-INITIAL SALARY RATES-TRANSFER, PROMOTION, DEMOTION, REINSTATEMENT, OR REEMPLOYMENT

The qualification in decision of November 27, 1946, 26 Comp. Gen. 368, to the effect that the rule stated therein with respect to fixing the initial salary rates of employees in classified positions to which transferred, promoted, demoted, reinstated, or reemployed, on the basis of the highest salary received in prior Government positions, could not be applied to cases theretofore processed is applicable to preclude the reopening of previously processed cases for the purpose of granting nonretroactive increases in compensation, as well as retroactive increases.

Acting Comptroller General Yates to the Secretary of War, July 28, 1947:

There has been considered your letter of June 3, 1947, as follows: Reference is made to your decision B-61181 of 27 November 1946 wherein you announced the following rule:

"When an employee is transferred, promoted, demoted or separated it is within the discretion of the administrative office to pay-within available appropriations-such employee in any classified position to which transferred, promoted, demoted, reinstated, or reemployed the minimum salary rate of the grade or