administrative discretion as to whether or not to procure the work or service from another Government agency or instrumentality when determined that its prices are lower than all bids received in response to a formal advertisement.

Accordingly, you are advised that no further action on your protest appears to be required by our Office.

Military

[B-131674]

Personnel-Retirement

Orders-Cancellation

After Effective Date-New Evidence Basis

Orders which revoke nondisability retirement orders after their effective date to entitle members of the uniformed services to consideration for disability retirement are not legally effective, and, in the absence of evidence that entitlement to nondisability retirement did not exist or that the officer issuing the first retirement order lacked authority, the retirement may not be reopened on the basis of substantial new evidence.

To the Secretary of the Army, July 15, 1957:

Further reference is made to your letter of April 26, 1957, requesting a decision whether, in view of the facts and circumstances set forth in an attached discussion, orders revoking retirement orders (respecting a member of the Army) that have become effective would be legally acceptable to cancel the member's retirement.

It is stated that the Department of the Army is recurrently faced with the situation where a determination has been made to retire a member and, prior to the effective date of such retirement, a message is received from the field agencies stating that retirement should be suspended because of a medical re-evaluation of the health status of the individual. Based on such information the retirement orders are normally revoked prior to their effective date. However, due to the limitations of the communication system and, in addition, sometimes because a holiday period intervenes, the agency within the Department of the Army responsible for revoking the orders at times does not receive the message until a day or two later, even though the message is transmitted to the Department of the Army before the effective date of the retirement orders. Orders then are issued "confirming the revocation of the previous order, and the non-retirement of the member." It has been held that, under a statute vesting in the President the power to retire officers of the military services, such power of the President is not a continuing power, but is performed to the extent of its existence by the one act of the President and he cannot thereafter review his action or correct an error of judgment. McBlair v. United States, 19 C. Cls. 528, 538. Cf. United States v. Burchard, 125 U. S. 176, 179-180; 81 Comp. Gen. 296; 28 Comp. Gen. 357; 19 Op. Atty. Gen. 202, 208–210. The same rule, of course, is for application under

a statute which vests in a subordinate officer of the Government the power to effect the retirement of a member of the uniformed services. It follows that, once the retirement has become effective, any action taken to cancel the retirement or to revoke the order retiring the member in order to permit retirement under another provision of law would be legally ineffective. See Digest of Opinions of the Judge Advocate General of the Army, 1912-1940, pp. 134–135; 2 Digest of Opinions of the Judge Advocates General of the Armed Forces, 685, 699-700.

The fact that a member retired for reasons other than disability may also be qualified for disability retirement does not in any way affect the validity of the nondisability retirement. Hence, such a retirement could not be set aside on the basis of "substantial new evidence," indicated in decision of January 16, 1952, 31 Comp. Gen. 296, as a possible ground for reopening a retirement case. The existence of a disability that qualifies a member for disability retirement cannot change the fact that the member has performed the requisite service or attained the eligible age qualifying the member for nondisability retirement and, if application by the member is required, that he has made such application. Eligibility for nondisability retirement is not conditioned on absence of eligibility for disability retirement. In many cases the principal material difference in effect between the two types of retirement is the income tax advantage attached to the disability retirement.

Only "substantial new evidence" relating directly to the conditions of entitlement to the nondisability retirement or the invalidity of the retirement order due to want of authority in the officer issuing it could constitute a basis for revoking the retirement order if entitlement to such retirement did not in fact exist or the retirement order was not issued by one having authority to do so. Nothing in the present request for decision suggests that entitlement to nondisability retirement did not exist or that there was lack of authority in the officer issuing the retirement order in the cases involved. Hence, we know of no basis for revoking retirement orders in the situation here involved after the orders become effective.

Your question is answered in the negative.

[B-131929]

Maritime Matters-Tankers-Trade-in Eligibility-Obsolete Vessels More Than Twelve Years Old

The tanker trade-in provision in subsection 510 (h) of the Merchant Marine Act, 1936, 46 U. S. C. 1160 (h), which permits, until July 1, 1958, the acquisition of tankers not less than ten years old, does not preclude tankers which are twelve or more years old from eligibility for trade-in under subsections 510 (a)–(g) of the 1956 act, 46 U. S. C. 1160 (a)–(g), relating to obsolete vessels not less than twelve years old.

To the Administrator, Maritime Administration, July 15, 1957:

Reference is made to your letter of May 20, 1957, inquiring as to whether we concur in your interpretation of section 510 of the Merchant Marine Act, 1936, as amended, 46 U. S. C. 1160, as it relates to tanker trade-ins.

Section 510, as added by the act of August 4, 1939, 53 Stat. 1182, consisted of subsections (a)-(g), 46 U. S. C. 1160 (a)-(g), and prescribed the conditions under which "any obsolete vessel" (as defined therein, including the requirement that the vessel be not less than 17 years old) could be traded in. Public law 586, 82d Congress, 66 Stat. 762, added a proviso to subsection (a), 46 U. S. C. 1160 (a), to permit, until June 30, 1958, the trade-in of any "obsolete" vessels not less than 12 years old.

Subsection 510 (h), added by Public Law 574, 83d Congress, 46 U. S. C. 1160 (h), authorizes (until July 1, 1958) the acquisition of tankers not less than 10 years old, providing they meet the other conditions set forth therein, and that a determination is made by the Secretary of Commerce that the tankers are "desirable for inclusion in the national defense reserve."

As stated in your letter, the legislative record of subsection (h) establishes that one of its primary objectives is to provide a needed reserve of usable tankers. We perceive nothing in the language of subsection (h) or its legislative history to preclude the trade-in under its provisions of tankers which, by virtue of having become 12 years of age, would be eligible for trade-in under subsections (a)-(g). In other words, we perceive no basis for construing subsection (h) as being limited in its application to tankers not less than 10 years old nor more than 12 years old.

Accordingly, we concur in your conclusion that, until July 1, 1958, a tanker meeting all of the requirements both under subsections (a)(g) and under subsection (h) may be traded in under either of those authorizations.

[B-131632]

Military Personnel-Transportation of Dependents and Household Effects-Dishonorable Discharge

Transportation of dependents and household effects of members of the Armed Forces discharged from the service under other than honorable circumstances may not be authorized at Government expense in the absence of express statutory authority therefor.

To the Secretary of the Army, July 16, 1957:

Further reference is made to letter of April 16, 1957, from the Assistant Secretary of the Army, requesting a decision as to whether the Secretaries concerned may prescribe regulations authorizing travel

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portation (including packing, crating, drayage, temporary storage, and unpacking) of baggage and household effects, or reimbursement therefor, to and from such locations and within such weight allowances as may be prescribed by the Secretaries.

The purpose of the statutes authorizing transportation of dependents and household effects at Government expense is to relieve a member of the Armed Forces of the burden of personally defraying the expenses of moving his household when such move is made necessary by an ordered change of station. Paragraph 5 of section 12 of the Pay Readjustment Act of 1942, effective June 1, 1942, 56 Stat. 365, 37 U. S. C. 112 (1946 Ed.), provided that:

When any officer, warrant officer, or enlisted man above the fourth grade, having dependents as defined in section 4 hereof, is ordered to make a permanent change of station, the United States shall furnish transportation in kind to his new station for such dependents. *** That the personnel of all the services mentioned in the title of this Act shall have the benefit of all existing laws applying to the Army and the Marine Corps for the transportation of household effects: ** That in lieu of transportation in kind authorized by this section for dependents, the President may authorize the payment in money equal to such commercial transportation ・・・ when such travel shall have been completed.

Prior to the enactment of the Pay Readjustment Act of 1942, similar provisions for the transportation of dependents and household effects of officers, and enlisted men in the higher grades, in the several armed services, when ordered to make a permanent change of station, were contained in section 12 of the Act of May 18, 1920, 41 Stat. 604, and section 12 of the Act of June 10, 1922, 42 Stat. 631.

Regulations issued by the several armed services under the provisions of these statutes uniformly have barred transportation of dependents and household effects at Government expense of members incident to their separation from the service under conditions other than honorable.

Unlike the earlier statutes, section 303 (c) of the Career Compensation Act of 1949 confers upon the Secretaries concerned the authority to designate by regulations the conditions and limitations governing the transportation at Government expense of dependents and household effects of members of the uniformed services. While the language of such provisions of law is somewhat different from that used in the prior statutes cited, the changes made do not evidence any intent to change or increase the rights members were granted under the prior legislation as far as the questions here involved are concerned. See 35 Comp. Gen. 673.

The provisions of sections 303 (a) and 303 (e) of the Career Compensation Act of 1949, 37 U. S. C. 253 (a) and 253 (e), relate to travel and transportation allowances of members (not dependents) in the several circumstances there enumerated. Hence, such provisions of law may not be considered as authority for transportation of depend