A-23954, JANUARY 4, 1929, 8 COMP. GEN. 327

A-23954: Jan 4, 1929

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MILEAGE - NAVY OFFICERS - TRAVEL HOME ON RETIREMENT OR AFTER RELIEF FROM ACTIVE DUTY WHERE TRAVEL IS PERFORMED WITHIN ONE YEAR OF RETIREMENT. AN OFFICER OF THE NAVY IS ENTITLED TO MILEAGE UNDER THE ORDER DIRECTING HIM TO PROCEED TO HIS HOME UPON RETIREMENT OR UPON RELIEF FROM ACTIVE DUTY. 2 COMP. REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO PAY VOUCHER THEREWITH INCLOSED IN FAVOR OF CAPT. IT IS PRESUMED. WAS PLACED ON THE RETIRED LIST AND CONTINUED ON ACTIVE DUTY. HE WAS RELIEVED FROM THAT DUTY. THIS ORDER WAS RECEIVED BY CAPTAIN POLLOCK SEPTEMBER 9. WHEN HE NOTED THEREON THAT HIS HOME WAS JAMESTOWN. HE WAS DETACHED OCTOBER 1. IT WAS SAID: MILITARY ORDERS ARE TO BE OBEYED AT ONCE OR WITHIN A REASONABLE TIME ACCORDING TO THEIR CHARACTER.

A-23954, JANUARY 4, 1929, 8 COMP. GEN. 327

MILEAGE - NAVY OFFICERS - TRAVEL HOME ON RETIREMENT OR AFTER RELIEF FROM ACTIVE DUTY WHERE TRAVEL IS PERFORMED WITHIN ONE YEAR OF RETIREMENT, OR AFTER RELIEF FROM ACTIVE DUTY, AN OFFICER OF THE NAVY IS ENTITLED TO MILEAGE UNDER THE ORDER DIRECTING HIM TO PROCEED TO HIS HOME UPON RETIREMENT OR UPON RELIEF FROM ACTIVE DUTY. 2 COMP. GEN. 456 AND 4 ID. 954 AMPLIFIED.

ACTING COMPTROLLER GENERAL GINN TO LIEUT. W. C. COLBERT, UNITED STATES NAVY, JANUARY 4, 1929:

THERE HAS BEEN RECEIVED YOUR LETTER OF JULY 9, 1928, REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO PAY VOUCHER THEREWITH INCLOSED IN FAVOR OF CAPT. E. T. POLLOCK, UNITED STATES NAVY, RETIRED, FOR MILEAGE FROM WASHINGTON, D.C., TO JAMESTOWN, R.I. (NEWPORT, R.I. (, FOR TRAVEL TO HIS HOME ON RETIREMENT. IT IS PRESUMED, ALTHOUGH NOT STATED IN YOUR SUBMISSION, THAT CAPTAIN POLLOCK WHILE SERVING AS SUPERINTENDENT OF THE NAVY OBSERVATORY, WASHINGTON, D.C., WAS PLACED ON THE RETIRED LIST AND CONTINUED ON ACTIVE DUTY. BY ORDERS OF SEPTEMBER 8, 1927, HE WAS RELIEVED FROM THAT DUTY, DIRECTED TO REPORT TO HIS SUCCESSOR FOR DUTY, TO REGARD HIMSELF DETACHED FROM ALL DUTY ON OCTOBER 1, 1927, AND TO PROCEED TO HIS HOME. THIS ORDER WAS RECEIVED BY CAPTAIN POLLOCK SEPTEMBER 9, 1927, WHEN HE NOTED THEREON THAT HIS HOME WAS JAMESTOWN, R.I. HE WAS DETACHED OCTOBER 1, 1927, AND IT APPEARS FROM THE VOUCHER SUBMITTED THAT HE PERFORMED THE TRAVEL FROM WASHINGTON TO JAMESTOWN JUNE 8-9, 1928, NO REASON BEING STATED FOR THE DELAY IN CARRYING OUT HIS ORDER TO PROCEED TO HIS HOME UPON RELIEF FROM DUTY. IN DECISION OF MAY 15, 1925, 4 COMP. GEN. 954, IT WAS SAID:

MILITARY ORDERS ARE TO BE OBEYED AT ONCE OR WITHIN A REASONABLE TIME ACCORDING TO THEIR CHARACTER, AND PUBLIC BUSINESS IS THE FOUNDATION ON WHICH MILEAGE IS BASED. IF AN ORDER TO AN OFFICER ON RETIREMENT TO PROCEED TO HIS HOME IS NOT OBEYED WITHIN A REASONABLE TIME IT LOSES ITS CHARACTER AS AN ORDER TO TRAVEL ON PUBLIC BUSINESS, AND IF THE TRAVEL IS SUBSEQUENTLY PERFORMED IT IS AT THE OFFICER'S PLEASURE OR CONVENIENCE AND NOT UNDER ORDERS WITHIN THE MEANING OF THE STATUTE. WHAT IS A REASONABLE TIME IN ONE CASE MIGHT NOT BE SO IN ANOTHER AS NO FIXED RULE CAN BE LAID DOWN THAT WILL GOVERN IN ALL CASES, BUT AN ORDER THAT IS USUALLY GIVEN AN OFFICER ON RETIREMENT TO PROCEED TO HIS HOME CAN NOT BE REGARDED AS AN OPEN ORDER FOR TRAVEL TO BE COMPLIED WITH AT ANY FUTURE TIME SUITING THE PLEASURE OR CONVENIENCE OF THE OFFICER TO WHOM ISSUED. 2 COMP. GEN. 456; 9 COMP. DEC. 819.

* * * THERE IS NO IMPLIED AUTHORITY OF LAW TO DELAY THE TRAVEL FOR ANY DEFINITE PERIOD, AND THEREFORE THE SUBSEQUENT ACTION OF THE SECRETARY OF WAR ONE YEAR AFTER DATE OF ORDERS, APPROVING CLAIMANT'S REQUEST FOR AN EXTENSION OF DELAY, COULD NOT HAVE THE EFFECT OF BRINGING THE TRAVEL WITHIN A REASONABLE TIME. * * *.

IN VIEW THEREOF YOU STATE THAT YOU ARE UNABLE TO DETERMINE WHETHER THE TRAVEL IN THIS CASE WAS PERFORMED WITHIN A REASONABLE TIME. THE DECIDED CASES HAVE BEEN TO THE EFFECT THAT IF THE TRAVEL WAS NOT PERFORMED WITHIN A YEAR AFTER RETIREMENT (OR IN THE CASE OF RETIRED OFFICERS RELIEVED FROM ACTIVE DUTY, WITHIN A YEAR FROM DATE OF RELIEF), IT WAS NOT WITHIN A REASONABLE TIME IN VIEW OF THE NATURE OF THE ORDER UNDER WHICH THE TRAVEL WAS AUTHORIZED TO BE PERFORMED. 2 COMP. GEN. 456. IT WAS THERE SUGGESTED AS A QUALIFICATION, THAT SUCH IS THE RULE "WHERE THE ORDERS HAVE NOT BEEN EXTENDED BY SOME APPROPRIATE ACTION OF THE DEPARTMENT ISSUING THEM.' THE PRESENT SUBMISSION INDICATES A NEED FOR FURTHER STATEMENT TO ASSIST DISBURSING OFFICERS WHERE VOUCHERS ARE SUBMITTED FOR PAYMENT OF AN ALLOWANCE FOR TRAVEL TO THE HOME OF AN OFFICER ON RETIREMENT.

THERE IS NO SPECIFIC STATUTORY AUTHORITY FOR THE PAYMENT OF MILEAGE TO AN OFFICER FOR TRAVEL FROM HIS LAST PLACE OF DUTY TO HIS HOME ON RETIREMENT. THE MILEAGE LAW, SECTION 12 OF THE ACT OF JUNE 10, 1922, 42 STAT. 631, RELATES TO TRAVEL OF OFFICERS ON PUBLIC BUSINESS, NORMALLY ON THE ACTIVE LIST OR WHILE ON ACTIVE DUTY. UNDER LAWS SIMILARLY WORDED IT WAS HELD AN OFFICER IS ENTITLED TO MILEAGE FOR TRAVEL TO HIS HOME TO AWAIT ORDERS. UNITED STATES V. PHISTERER, 94 U.S. 219. AN OFFICER PLACED ON THE RETIRED LIST CONTINUES TO BE AN OFFICER AND AN ORDER ISSUED TO HIM BEFORE, OR COINCIDENT WITH, HIS RETIREMENT AND WHILE ON THE ACTIVE LIST, FOR MANY YEARS HAS BEEN CONSIDERED A COMPETENT ORDER ENTITLING HIM TO MILEAGE FOR THE TRAVEL FROM THE PLACE AT WHICH HE WAS ON DUTY WHEN RETIRED TO THE HOME SELECTED BY HIM. 2 COMP. DEC. 139 (BUT SEE 5 COMP. DEC. 227, WHERE SOME OF THE STATEMENTS THEREIN IN ANOTHER CONNECTION ARE LIMITED) AND 4 COMP. DEC. 175, BOTTOM OF PAGE 181. A RETIRED OFFICER HAS THE SAME RIGHT TO SELECT A HOME DIFFERENT FROM THAT WHEN APPOINTED, AND TO CHANGE IT AFTER RETIREMENT AS ANY OTHER CITIZEN. THE MATTER IS DISCUSSED IN THE PHISTERER CASE, ALTHOUGH THE PROPOSITION REQUIRES NO STATEMENT OF AUTHORITY TO SUPPORT ITS CORRECTNESS. SEE 13 COMP. DEC. 793; 18 ID. 634.

IN THE CASE REPORTED IN 4 COMP. DEC. 175 THERE WAS NO ORDER TO PROCEED TO HIS HOME, THE OFFICER WHEN RETIRED BEING AT THE PLACE RECORDED IN THE WAR DEPARTMENT AS HIS HOME; THAT IS, WASHINGTON, D.C. OVER A YEAR AFTER HIS RETIREMENT HE MADE A JOURNEY TO DENVER, COLO., AND RETURNED TO WASHINGTON, D.C., AND ADVANCED THE CLAIM THAT THE JOURNEY TO DENVER WAS TRAVEL TO HIS HOME AND WAS IN CONNECTION WITH HIS RETIREMENT. THAT CLAIM WAS REJECTED.

IN 6 COMP. DEC. 24 IS REPORTED THE CASE OF A NAVAL OFFICER,LIEUT. J. C. BURNETT, WHO WAS RETIRED AT WASHINGTON, D.C., MAY 8, 1896, AND DIRECTED TO PROCEED TO HIS HOME. BECAUSE OF HIS HEALTH AND ON THE ADVICE OF PHYSICIANS, HE TRAVELED TO EUROPE AND DID NOT PROCEED TO HIS HOME IN SAN FRANCISCO UNTIL NOVEMBER 1, 1897, MORE THAN A YEAR AFTER HIS RETIREMENT. IN THAT CASE IT WAS SAID:

THE RULE IN REGARD TO ALLOWING MILEAGE FOR TRAVEL UNDER ORDERS IS THAT THE TRAVEL MUST BE PERFORMED WITHIN A REASONABLE TIME AFTER THE RECEIPT OF THE ORDER. IT IS TRUE, WHAT IS A REASONABLE TIME IN ONE CASE MIGHT NOT BE SO IN ANOTHER, AND THAT NO FIXED RULE CAN WELL BE LAID DOWN THAT WILL GOVERN IN ALL CASES; BUT THE ORDER THAT IS USUALLY GIVEN TO A NAVAL OFFICER ON HIS RETIREMENT, DIRECTING HIM TO PROCEED TO HIS HOME, CAN NOT BE REGARDED AS AN OPEN ORDER FOR TRAVEL TO BE COMPLIED WITH AT ANY FUTURE TIME SUITING THE PLEASURE OR CONVENIENCE OF THE OFFICER TO WHOM IT IS ISSUED. AN OFFICER ORDERED TO PROCEED TO HIS HOME WITH A VIEW TO HIS RETIREMENT MUST OBEY THE ORDER WITHIN A REASONABLE TIME IN ORDER TO ENTITLE HIM TO MILEAGE. (4 COMP. DEC. 182, ART. 214, NAVY REGULATIONS OF 1896.)

THAT CASE WAS PASSED UPON BY THE COURT OF CLAIMS, 38 CT.CLS. 752, AND WITHOUT AN OPINION JUDGMENT WAS GIVEN CLAIMANT FOR MILEAGE, WASHINGTON TO SAN FRANCISCO. THE FACTS AS FOUND BY THE COURT OF CLAIMS ARE QUOTED, 9 COMP. DEC. 820, WHERE WAS CONSIDERED THE CASE OF AN OFFICER WHO DELAYED PROCEEDING TO HIS HOME FROM JANUARY 1, 1901, UNTIL MARCH 12, 1903, NO REASON BEING SHOWN FOR THE DELAY. THE BURNETT CASE WAS DISTINGUISHED FROM THE FACTS OF THAT CASE ON THE ADDITIONAL EVIDENCE PRESENTED TO THE COURT OF CLAIMS AND NOT PRESENTED TO THE ACCOUNTING OFFICERS, WHICH, IN ADDITION TO THE FACTS HERETOFORE STATED, INCLUDED EVIDENCE THAT THE OFFICER HAD APPLIED FOR LEAVE OF ABSENCE TO LEAVE THE UNITED STATES FOR SIX MONTHS, AND THAT LEAVE WAS EXTENDED FROM TIME TO TIME. THERE IS AN IMPLICATION THAT HAD SUCH FACTS BEEN PRESENTED A DIFFERENT CONCLUSION MIGHT HAVE BEEN REACHED IN THE BURNETT CASE IN THE ACCOUNTING OFFICES, BUT THE RULE ANNOUNCED IN 6 COMP. DEC. 24 WAS ADHERED TO ON THE FACTS OF THE CASE PRESENTED IN FREEMAN'S CASE, 9 COMP. DEC. 819, AND REAFFIRMED IN THE CASE OF BRIGADIER GENERAL GIRARD, 13 COMP. DEC. 112, WHERE THE REASON FOR THE DELAY IS DESCRIBED AS FOR OFFICER'S OWN CONVENIENCE. THE STATEMENT MADE IN THE FREEMAN CASE, RESPECTING THE BURNETT CASE, SEEMS TO BE INCONSISTENT WITH THE ACTION ACTUALLY TAKEN IN THE CASES BEFORE THE COMPTROLLER OF THE TREASURY, 22 MS. COMP. DEC. 169, AND 28 ID. 690. SEE 2 COMP. GEN. 457, WHERE THE FACTS OF THE CASES AND THE ACTION TAKEN ARE STATED. IN THE GIRARD CASE, THE DELAY WAS IN PART DUE TO THE SAN FRANCISCO EARTHQUAKE AND THE SERVICES OF THE OFFICER WITH THE AMERICAN RED CROSS ACTIVITIES. THAT CASE ALSO REACHED THE COURT OF CLAIMS, 49 CT.CLS. 703, WHERE THE PETITION WAS DISMISSED WITHOUT OPINION. ON THE BASIS OF THESE CASES THE WAR DEPARTMENT IN THE MANUAL FOR THE QUARTERMASTER CORPS, 1916, PARAGRAPH 1802, FORMULATED THE FOLLOWING RULE:

HAVING FAILED TO PERFORM THE JOURNEY WITHIN ONE YEAR AFTER RETIREMENT, HE IS NOT CONSIDERED TO HAVE PERFORMED THE JOURNEY WITHIN A REASONABLE TIME AND IS THEREFORE NOT ENTITLED TO MILEAGE. (AUDITOR, JULY 10, 1906, AFFIRMED BY COMPTROLLER, 13 COMP. 112, AUGUST 15, 1906- - CASE GEN. GIRARD; CT.CLS; MAY 14, 1914.)

THIS IS THE GENESIS OF THE ONE-YEAR RULE. NO CASE HAS BEEN FOUND WHERE MILEAGE HAS DISALLOWED WHERE THE JOURNEY WAS PERFORMED WITHIN ONE YEAR AFTER RETIREMENT, AND IN THE ACCOUNTING OFFICES ALL CASES HAVE BEEN DISALLOWED WHERE TRAVEL WAS OVER ONE YEAR AFTER RETIREMENT.

AS THE ORDER TO TRAVEL TO HIS HOME IS A MILITARY ORDER, ISSUED WHEN ON THE ACTIVE LIST, OR ON ACTIVE DUTY AFTER RETIREMENT, IT IS TO BE TREATED AND OBEYED AS SUCH IN THE CIRCUMSTANCES IN WHICH IT IS ISSUED; THAT IS, THE OFFICER IS BEING RELIEVED FROM ACTIVE DUTY, USUALLY AFTER A LONG PERIOD OF SERVICE; THEREFORE, IT IS NOT SUCH AN ORDER AS IS REQUIRED TO BE OBEYED WITHIN THE TIME LIMITS FIXED FOR OBEDIENCE BY OFFICERS ON THE ACTIVE LIST IN ARTICLE 132 OF THE NAVAL REGULATIONS, 1920. BUT THE "REASONABLE TIME" IS WITH RESPECT TO OBEDIENCE TO THE ORDER, NOT THE CIRCUMSTANCES OF THE OFFICER. IT HAS BEEN SAID THAT IF THE ORDER IS NOT OBEYED WITHIN A REASONABLE TIME, IT CEASES TO BE A MILITARY ORDER; THAT IT IS NOT AN AUTHORITY FOR THE OFFICER TO TRAVEL AT ANY TIME THAT IT SUITS HIS CONVENIENCE OR PLEASURE. IT IS DOUBTFUL THAT THAT REASONING IS LOGICAL. IF THE FACTS OF EACH INDIVIDUAL CASE MAY VARY THE MEANING AND REQUIREMENT OF AN ORDER, IT LACKS ONE OF THE IMPRESSIVE AND DISTINCTIVE CHARACTERISTICS OF A MILITARY ORDER, WHICH IS REQUIRED TO BE OBEYED STRICTLY AND EXECUTED PROMPTLY. THE OFFICER IS REQUIRED TO PROCEED TO HIS HOME AND UNDER REGULATIONS TO ADVISE THE DEPARTMENT OF HIS ADDRESS. WHERE AN OFFICER REMAINS AT THE PLACE AT WHICH RETIRED FOR A YEAR AFTER RETIREMENT, THAT PLACE, FOR THE PURPOSE OF MILEAGE FOR TRAVEL TO HIS HOME ON RETIREMENT, IS TO BE TREATED AS HIS HOME, BY THE FACT OF HIS REMAINING THERE, NO MATTER WHAT THE CAUSE, AND THE OFFICER'S STATEMENTS TO THE CONTRARY EITHER AT THE TIME OF RETIREMENT OR AFTERWARDS, DO NOT CHANGE THE FACT THAT IT WAS HIS PLACE OF RESIDENCE FOR A YEAR, A PLACE OF RESIDENCE WHICH HE MAY CHANGE IF HE SO DESIRES, BUT IF SO CHANGED OVER A YEAR AFTERWARDS, GIVES NO MORE RIGHT TO MILEAGE UNDER HIS RETIREMENT ORDER THAN SUBSEQUENT CHANGES IN HIS PLACE OF RESIDENCE.

IN CONSIDERATION OF THE PRECEDENTS REFERRED TO ABOVE AND THE REASONING HEREIN, IT WAS SAID IN DECISION OF APRIL 9, 1928, A-16340:

WHILE MILEAGE IS PAYABLE TO AN OFFICER FOR TRAVEL TO HIS HOME UPON RETIREMENT, IT HAS BEEN THE CONSISTENT HOLDING THAT THE TRAVEL MUST BE PURSUANT TO THE ORDER AND WITHIN A REASONABLE TIME; THAT THE PERIOD DURING WHICH THE TRAVEL MUST BE PERFORMED MAY NOT BE EXTENDED BY WAR DEPARTMENT ORDERS, AND THAT IN ALL CASES WHERE TRAVEL HAS BEEN MORE THAN A YEAR AFTER RETIREMENT, THE TRAVEL IS NOT WITHIN A REASONABLE TIME NOR PURSUANT TO THE ORDER PLACING THE OFFICER ON THE RETIRED LIST AND DIRECTING HIM TO PROCEED TO HIS HOME. THE FACT THAT THE DELAY IN TRAVEL WAS BECAUSE OF ILLNESS HAS NOT BEEN RECOGNIZED AS PERMITTING UNREASONABLE EXTENSIONS OF TIME. * *

IN THIS CASE, THE TRAVEL HAVING BEEN WITHIN ONE YEAR OF RETIREMENT, OR OF RELIEF FROM ACTIVE DUTY, THE VOUCHER, IF OTHERWISE CORRECT, MAY BE PAID.