To H. L. Farmer, United States Marine Corps, March 10, 1958:

Reference is made to your letter of December 4, 1957, with enclosures, transmitted here by third endorsement dated December 19, 1957, of the Commandant of the Marine Corps, requesting decision as to whether Private Wallace Grzegorczyk, United States Marine Corps, is entitled to pay and allowances from and after May 20, 1957, and, if so, whether a general court-martial sentence of forfeiture of all pay and allowances applies to pay and allowances on and after that date.

It appears that the member enlisted on April 22, 1953, for a period of three years, and that his enlistment expired on April 21, 1956. He was retained beyond his normal date of expiration of enlistment for purposes of a general court-martial. On October 4, 1956, the enlisted man was tried by a general court-martial and sentenced to a dishonorable discharge, confinement at hard labor for one year, forfeiture of all pay and allowances, and reduction to private. On December 3, 1956, the convening authority approved only so much of the sentence as provided for a bad conduct discharge, confinement at hard labor for ten months, forfeiture of all pay and allowances, and reduction to private. While not stated in your letter, it is assumed that the convening authority then ordered into execution all portions of the sentence except the bad conduct discharge. The Board of Review on March 8, 1957, approved only so much of the sentence as provided for a bad conduct discharge, confinement at hard labor for nine months, forfeiture of all pay and allowances, and reduction to private.

On April 16, 1957, the enlisted man appealed to the United States Court of Military Appeals. On June 17, 1957, the Naval Clemency Board denied clemency. However, the enlisted man completed his confinement and was released on May 20, 1957, and restored to duty awaiting appellate review. It further appears that the United States Court of Military Appeals on January 3, 1958, set aside the findings of guilty and the sentence and directed that "A rehearing may be

ordered."

It has been held that where an enlisted man of the Navy, sentenced by a court-martial to confinement and dishonorable or bad conduct discharge, is restored to duty on probation, he is entitled to pay while on probation and performing duty. B-75057, June 17, 1948. We also have held that where there is a restoration to regular duty, notwithstanding the sentence by a court-martial to a bad conduct discharge, the enlisted man is entitled to pay while performing duty, pending disposition of the appellate review, even though, upon appellate review, the sentence of bad conduct discharge is ordered executed. 36 Comp. Gen. 564. See also 33 Comp. Gen. 281. In our decision 37

Comp. Gen. 228, it was held that a Navy enlisted man who, after expiration of his enlistment and while restricted to his station awaiting appellate review of a court-martial sentence of a bad conduct discharge, was assigned to a port control office to "perform duties of his rate" was entitled to pay and allowances.

The court-martial sentences in those cases, however, either did not include a sentence of forfeiture of pay and allowances, or where there was a sentence of forfeiture, it was remitted at the time of restoration to duty. Nevertheless, under the principles enunciated in the above cases, the restoration of the enlisted man to a duty status entitled him to the credit of pay and allowances from the date of restoration to duty.

While it does not appear that the sentence to total forfeitures was expressly remitted or suspended when the member was restored to duty, the Judge Advocate General of the Army consistently has viewed a restoration to duty as operating by implication to suspend that portion of the sentence adjudging total forfeitures which remains unexecuted at the time of the member's restoration to duty. 2 Bull. JAG 426; 6 Bull. JAG 11; 8 Bull. JAG 189. See also 1 Dig. Ops. JAGAF 561; 2 Dig. Ops. JAGAF 839; 6 Dig. Ops. JAGAF 486. Our decision of July 29, 1943, B-35120, is in accord with that view. It follows that the member is entitled to pay beginning May 20, 1957, while restored to duty.

Since the sentence to total forfeitures was inoperative after the member was restored to duty, the rule established in decision of October 13, 1955, 35 Comp. Gen. 204, concerning the withholding of pay and allowances forfeited under a sentence set aside pending outcome of a rehearing is not for application. Accordingly, payment of pay and allowances may be made to Private Grzegorczyk for the period beginning May 20, 1957.

[B-134956]

Military Personnel-Trailer Allowance-Overseas Assignments-Transportation of Effects Outside United States

An election by members of the uniformed services, incident to assignment to and from permanent overseas stations, to receive a trailer allowance for that portion of the transportation in the United States pursuant to section 303 (c) of the Career Compensation Act of 1949, 37 U. S. C. 253 (c), does not preclude shipment outside the United States at Government expense of that portion of the household effects which is susceptible of being transported independently of the trailer and for which no trailer allowance is payable.

To the Secretary of the Navy, March 10, 1958:

Reference is made to letter of January 16, 1958, from the Assistant Secretary of the Navy (Personnel and Reserve Forces), requesting

468020 O-58-40

a decision as to whether an election by members of the uniformed services on assignment to or from permanent overseas stations to receive the trailer allowance in lieu of transportation of household effects under authority of the Career Compensation Act of 1949, as amended, 37 U. S. C. 253, for the portion of the travel within the United States bars shipment of household effects at Government expense for the portion of the travel outside the United States in circumstances illustrated as follows:

Case A. Member transferred from Station A within the United States to Station B outside the United States. The member elects the trailer allowance and actually transports his home trailer to his new duty station. In addition, member ships household goods to his new duty station. Since no trailer allowance accrues for any distance beyond continental United States, may the member's household goods be shipped at Government expense from the port of embarkation (to which the member transported his trailer) to the overseas duty station? Upon return of the member in this case to the United States on a permanent change of station may he ship household goods from his overseas duty station to the port of entry into the United States and receive the trailer allowance from the port of entry into the United States to his new duty station in the United States?

Case B. Member transferred from Station A within the United States to Station B outside the United States. Concurrent travel of dependents was not authorized. The member transported his trailer to a designated place and received the trailer allowance in accordance with paragraph 10006-2a, Joint Travel Regulations. When travel of dependents was authorized, he elected to ship household goods from the designated place in accordance with 10006–2b (1), Joint Travel Regulations. He is subsequently returned to a duty station within the United States on a permanent change of station. May the member have his household goods shipped at Government expense from his overseas duty station to the port of entry into the United States and receive the trailer allowance for transporting a trailer to the new duty station in the United States at not to exceed the distance from the port of entry into the United States?

Section 303 (c) of the Career Compensation Act of 1949, as amended, 37 U. S. C. 253 (c), provides that members of the uniformed services when ordered to make a permanent change of station shall be entitled to certain allowances in addition to their own travel allowances. The additional allowances, subject to regulation by the Secretaries, include transportation of dependents, transportation, including packing and crating, of baggage and household effects, and a dislocation allowance. It further provides that in lieu of transportation of baggage and household effects, a member who transports a house trailer or mobile dwelling within the continental United States for use as a residence and who would otherwise be entitled to transportation of baggage and household effects, shall, under regulations prescribed by the Secretary concerned, be entitled to a reasonable allowance, not to exceed 20 cents per mile, or to the dislocation allowance, whichever he elects. The legislative history of the latter provision shows that it was intended to make it possible for a man who has all his furniture in a trailer to receive compensation for moving his furniture in the trailer instead of moving it in a separate van. See 101 Congressional Record 3430, (March 30, 1955).

The language in the cited statute, "who transports a house trailer or mobile dwelling within the continental United States for use as a residence," has been construed as sufficiently broad to entitle a member-limited by regulations to a member with dependents-who transports a house trailer to a port of embarkation incident to a permanent overseas assignment, to the trailer allowance as authorized in cases of permanent changes of station in the United States. Under the terms of the statute, where a house trailer is transported incident to an ordered change from one permanent station to another within the continental United States, the member's election to forego payment to him of a dislocation allowance and shipment of household effects to which he otherwise would be entitled clearly constitutes a full consideration for payment to him of the trailer allowance. It would appear that this also would be true where the movement of the trailer in lieu of a dislocation allowance and transportation of household effects is to or from a port. On that basis, no reason is perceived why a member having household effects susceptible of being shipped independently of his house trailer should not have such effects transported outside the continental limits of the United States, to which no right to trailer allowance extends, at Government expense within the limits set out in cases A and B quoted above, provided the regulations are amended to so provide.

Your questions are answered accordingly.

[B-135271]

Contracts-Bids-Late-Telegraphic

A telegraphic bid clause in an invitation which permits submission of telegraphic bids but provides that they must be received prior to bid opening imposes on bidders who chose to use telegraphic facilities the risk of nondelivery on time and precludes consideration of any late telegraphic bids.

To the Secretary of the Army, March 10, 1958:

Reference is made to letter dated February 14, 1958, from the Assistant Secretary (Logistics), requesting a decision as to the propriety of considering late telegraphic bids received from the J. H. Rutter-Rex Manufacturing Company and the Bay Garment Corporation in response to Invitation for Bids No. QM (CTM)-36-24358-381.

The invitation for bids issued on December 20, 1957, by the Military Clothing and Textile Supply Agency, Philadelphia Quartermaster Depot, Philadelphia, Pennsylvania, requested bids for 1,083,060 man's, cotton, uniform twill, khaki, short sleeve shirts, and provided that bids were to be opened on January 9, 1958, at 2:00 o'clock P. M. EST. Paragraphs 2 and 4 of the Terms and Condi

tions of the Invitation for Bids (Standard Form 30, June 1955 Revision) provides as follows:

2. SUBMISSION OF BIDS.—(a) Bids and modifications thereof shall be enclosed in sealed envelopes addressed to the issuing office, with the name and address of the bidder, the date and hour of opening, and the invitation number on the face of the envelope. Telegraphic bids will not be considered unless authorized by the Invitation; however, bids may be modified by telepgraphic notice provided such notice is received prior to the time set for the opening of the bids.

4. LATE BIDS.-Bids and modifications or withdrawals thereof received after the time set for opening will not be considered, unless they are received before the award is made, and it is determined by the Government that failure to arrive on time was due solely to delay in the mails for which the bidder was not responsible.

On page 10 of the invitation it is provided as follows:

TELEGRAPHic bid clauSE: Telegraphic bids may be submitted in response to this Invitation for Bids. Telegraphic bids must be received in this Office prior to the time specified for the opening of bids. Such bids must specifically refer to this Invitation for Bids, and must contain all the representation and information required by this Invitation for Bids. Failure to furnish, in the telegraphic bid, the representations and information required by this Invitation for Bids may require rejection of the bid. Signed copies of the Invitation for Bids must be furnished in confirmation of the telegraphic bids.

The record shows that at 2:00 o'clock P. M. EST on January 9, 1958, a total of 15 bids had been received. It is reported that during the course of the opening of the bids a telephone call was received from the Mail and Records Branch of the Quartermaster Depot advising the Contracting Officer that telegraphic bids had been received under the invitation then being opened. Apparently the Mail and Records Branch was advised to hold the bids. At the conclusion of the bid opening three late bids were opened and the following facts established:

a. Telegraphic bid of Linwood Outerwear, Inc., St. Louis, Missouri, filed with Western Union in that city at 12:25 o'clock P. M. CST, was received by Teletype Section, Communications Branch, this Agency at 2:05 o'clock P. M. EST.

b. Telegraphic bid of J. H. Rutter-Rex Mfg. Co., Inc., New Orleans, Louisiana, filed with Western Union in that city at 12:28 o'clock P. M. CST, was received by Teletype Section, Communications Branch, this Agency at 2:09 o'clock P. M. EST. It is noted that this telegram was marked "Rush must be delivered before 1:45 PM EST today."

c. Telegraphic bid cf Bay Garment Corporation, New Orleans, Louisiana, filed with Western Union in that city at 12:37 o'clock P. M. CST, was received by Teletype Section, Communications Branch, this Agency at 2:23 o'clock P. M. EST. It is noted that this telegram was marked "Must be delivered by 1:45 PM East today.”

Inquiry was made of the Customer Service Office of Western Union in Philadelphia regarding the transmission of the above telegrams and the Contracting Officer was advised that there had been a delay in the transmission of the telegrams from the office of Western Union in Philadelphia to the Quartermaster Depot over the tie-line facilities. The delay was stated to have been apparently due to the quantity of messages held for transmission during the period involved. The Contracting Officer reports that he had personal knowledge of a tele