amount of readjustment payment, any prior period for which severance pay has been received under any other provision of law shall be excluded. Subsection (b), 50 U. S. C. 1016 (b), provides in pertinent part:

(b) The following persons are not entitled to any payments under this section:

(5) A person who upon release from active duty is immediately eligible for severance pay based on his military service under any other provision of law. However, such a person may elect to receive either readjustment pay under this section or severance pay, but not both.

You request advance decision on the following questions:

(a) Is CDR Smith entitled to the aviation bonus upon release to inactive duty 28 February 1958?

(b) For what period of time is CDR smith entitled to readjustment pay?

It appears that Commander Smith entered upon active duty on October 1, 1941, and we understand that he was commissioned on August 28, 1942. Under orders dated December 3, 1957, as modified by orders of January 29, 1958, he was released from active duty on February 28, 1958. We have been informally advised that Commander Smith has received a readjustment payment based on the entire period of his service from October 1, 1941, to February 28, 1958, computed as 16 years at one-half a month's pay for each year, his total active service having been 16 years and 5 months. Presumably that payment was made to him on the basis of his application, or has been accepted by him.

In decision of August 17, 1956, to the Secretary of Defense, 36 Comp. Gen. 129, we held that the aviation lump-sum payments authorized by section 2 of the act of June 16, 1936, as amended, 10 U. S. C. 300a, and section 12 of the act of August 4, 1942, 34 U. S. C. 850k, constitute severance pay within the meaning of section 265 of the Armed Forces Reserve Act of 1952. The provisions of subsection (a) (2) of section 265, 50 U. S. C. 1016 (a) (2), relate to eligibility for severance pay that existed incident to a prior release from active duty and require the exclusion of any prior period for which severance pay has been received in computing the amount of the readjustment payment, whereas subsection (b) (5), 50 U. S. C. 1016 (b) (5), relates to the situation where the member is simultaneously eligible, upon a release from active duty, for a readjustment payment and for severance pay. In that situation subsection (b) (5) requires that the member make an election between the readjustment payment and the severance pay--he cannot take all of one and part of the other.

The only situation where both may be paid is where there are two releases from active duty and the member previously was eligible for severance pay, but the period for which such severance pay has been received must be excluded in computing the amount of the readjust

ment payment upon the later release from active duty giving rise to eligibility to receive readjustment payment. Here the only release from active duty that could give rise to eligibility to receive the aviation lump-sum payment also makes the member eligible to immediately receive the readjustment payment. Hence he is not eligible to receive both the aviation lump-sum payment for the period 1942-48 and the readjustment payment in connection with his active duty for the period 1941-58, even though the period 1942-48 should be excluded in computing the readjustment payment.

Accordingly, in view of the provisions of subsection 265 (b) (5) requiring a reserve officer to make an election between the aviation lump-sum payment and the readjustment payment, if the officer applied for, or has accepted (even though he may not have applied for), the readjustment payment, he is not entitled to receive the aviation lump-sum payment authorized by section 12 of the act of August 4, 1942. If he has elected to receive the readjustment payment, it follows that he became entitled to that payment computed on the basis of his active service for the period from October 1, 1941, to February 28, 1958. If he has not elected to receive the readjustment payment, however, he is entitled to receive the aviation lump-sum payment incident to his release from active duty on February 28, 1958, but he first must return the check representing the readjustment payment.

The papers forwarded with your letter are retained here.

Military Personnel —

[B-134844]

Transportation -Dependents and Household Effects-Travel in Excess of Distance From Old to New Station

Under the law, transportation of dependents and household effects of members of the uniformed services incident to an ordered change of station is limited to the distance from the old to the new permanent station, and, in the absence of specific statutory provision, there is no authority for the promulgation of regulations which would authorize excess transportation of household effects or of dependents of personnel formerly in ineligible grades or newly acquired dependents of eligible personnel based on an ordered permanent change of station alone, whether the stations involved are overseas or in the United States. To the Secretary of the Navy, April 30, 1958:

Further reference is made to letter of January 7, 1958, from the Assistant Secretary of the Navy (Personnel and Reserve Forces), requesting a decision as to whether the Secretaries concerned may prescribe regulations authorizing travel of dependents and transporta

tion of household effects at Government expense of members of the uniformed services, in the circumstances described in the letter as follows:

Ordinarily the regulations have limited transportation of dependents and household goods to the distance between permanent stations. In cases where a member may have several military stations prior to acquiring the necessary grade or service for transportation of dependents and household goods, question arises as to whether a greater entitlement than that accruing on the current permanent change of station involved may lawfully be prescribed under the seemingly broad authority underscored in the above quoted statute.

The situations now involved and the entitlement required in each such situation are as follows:

(a) A member not accompanied by his dependents acquires the necessary grade or service for transportation of dependents and household goods while serving at an overseas duty station. He is subsequently transferred on a permanent change of station to another overseas duty station.

Quaere: Would existing statutes permit the issuance of regulations authorizing transportation of dependents and household goods from the place dependents and household goods were located upon receipt of such permanent change of station orders to the member's new permanent duty station?

(b) A member not accompanied by his dependents acquires the necessary grade or service for transportation of dependents and household goods while serving at a duty station within the United States. He is subsequently transferred on a permanent change of station to another station within or outside the United States.

Quaere: Would existing statutes permit the issuance of regulations authoriz ing transportation of dependents and household goods from the place dependents and household goods were located upon receipt of such permanent change of station orders to the member's new permanent duty station?

(c) Quaere: Would the replies to (a) and (b) differ if the member involved were of an appropriate grade but acquired dependents prior to such a transfer?

Subsection 303 (c) of the Career Compensation Act of 1949, 63 Stat. 814, 37 U. S. C. 253 (c), provides in part that under such conditions and limitations and for such ranks, grades, or ratings and to and from such locations as may be prescribed by the Secretaries concerned, members of the uniformed services when ordered to make a change of permanent station shall be entitled to transportation in kind for dependents, or to reimbursement therefor, or to a monetary allowance in lieu of such transportation in kind. It is further provided that in connection with a change of station (whether temporary or permanent) members shall be entitled to transportation (including packing, crating, drayage, temporary storage, and unpacking) of baggage and household effects, or reimbursement therefor, to and from such loca tions 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 between stations 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 16, 1942, 56 Stat. 365, 37 U. S. C. 112 (1946 Ed.), which incorporates the

language previously appearing in section 12 of the act of May 18, 1920, 41 Stat. 604, 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.

Under the provisions of these prior statutes it consistently was held not only that the transportation authorized was limited to such persons as were dependent upon the member on the effective date of the orders to make a permanent change of station, and to the distance between the old and the new permanent station, but that the travel performed must have been incident to the ordered change of station. 27 Comp. Dec. 510; 2 Comp. Gen. 567; id. 712; 4 id. 438; 24 id. 927, and 26 id. 339. While the language used in the earlier statutes was somewhat different from that used in subsection 303 (c) of the Career Compensation Act of 1949, the changes made do not evidence an intent to change or increase the rights members were granted under the prior legislation, and no evidence of such intent has been found in the legislative history of the 1949 act. As to the proposed provisions which became subsection 303 (c) it was stated, page 1712 of the House Hearings on H. R. 2553, 81st Congress, that "That is substantially what we have in the present law," and on page 281 of the Senate hearings on H. R. 5007, 81st Congress, these same provisions were passed over with an indication that they would effect no change in existing law. Hence, we have held that the provisions of subsection 303 (c) of the Career Compensation Act here involved, while not expressly so restricted, may not be considered as granting transportation for dependents at Government expense for visits or mere personal travel, 33 Comp. Gen. 431; that they afford no legal basis for reimbursing a member of the uniformed services for transportation of dependents acquired subsequent to the effective date of orders assigning the member to a new permanent station, 35 Comp. Gen. 673; and that, as to members ineligible for transportation of dependents and household effects when ordered to make a permanent change of station, they afford no legal basis for authorizing the transportation of dependents and household effects to a current overseas station where a member meets the eligibility conditions by attaining the necessary grade or completing the required service. 35 Comp. Gen. 670.

Similarly, since it would not appear, in the absence of some specific statutory provision, that travel of dependents, or shipment of house

hold effects, in excess of the distance from the old to the new permanent station properly may be regarded as incident to the ordered change of station within the meaning the applicable statute, it must be concluded that there is no authority for the promulgation of regulations authorizing such excess transportation of household effects, or of dependents of theretofore ineligible personnel, or newly acquired dependents of eligible personnel, based upon an ordered permanent change of station alone, whether the stations involved are overseas or in the United States.

Accordingly, your questions are answered in the negative.

[B-134909]

Civilian Personnel-Downgrading-Saved Compensation— 2-Year Time Limitation-Details-Official Position Evidence

The condition in the salary retention benefit act of June 18, 1956, 5 U. S. C. 1107, that the position which is downgraded by reclassification be held by the employee for a period of 2 years, requires that the employee actually hold the official position for 2 years, and, although a period of detail preceding formal reassignment to the position which is subsequently downgraded may not be included in the 2-year period, a period of detail to another position within the 2-year period and without a change in the employee's official position may be included for eligibility for the salary retention benefits, provided that the duties and responsibilities of the official position have not changed. Although generally an employee may not acquire an official position within the purview of the salary retention benefit act of June 18, 1956, 5 U. S. C. 1107, other than by proper assignment or appointment supported by adequate evidence, there may be cases such as the occupancy of a position over a long period of years which might warrant a conclusion that the position is an official position in the absence of evidence, and, therefore, no general rule can be established and each case is for consideration on the facts.

To the Chairman, United States Civil Service Commission, April 30, 1958:

Your letter of January 15, 1958, advises that a question has been raised within the Commission, incident to its function of assisting agencies in salary retention problems, as to how a "detail" prior to the reclassification of a position may affect entitlement to salary retention under the act of June 18, 1956, 70 Stat. 291, 5 U. S. C. 1107 (Public Law 594, 84th Congress). In that regard you submit for decision the three following questions which are answered in the sequence presented:

1. When, upon downgrading of an employee's position, it is found that he had actually been performing the same duties without material change for 2 years, but that during a part of that time immediately preceding formal reassignment to the position he had been "detailed" to it from another position, should he be regarded for salary retention purposes as having held the downgraded position for 2 years?