A-25986, MAY 28, 1929, 8 COMP. GEN. 620

A-25986: May 28, 1929

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IS NOT AUTHORIZED FOR TRAVEL OF DEPENDENTS OF AN OFFICER OF THE ARMY PRIOR TO THE ISSUANCE OF ORDERS ASSIGNING HIM TO A NEW STATION. AS FOLL0WS: FURTHER CONSIDERATION IS REQUESTED UPON A QUESTION INVOLVED IN YOUR DECISION OF FEBRUARY 19. WHILE THE SECOND MAKES PROVISION FOR THE PAYMENT IN MONEY OF AMOUNTS EQUAL TO COMMERCIAL TRANSPORTATION COSTS IN LIEUOF THE TRANSPORTATION AUTHORIZED TO BE FURNISHED BY THE PRIOR ACT WHEN THE TRAVEL SHALL HAVE BEEN COMPLETED. ARE SET FORTH IN PARAGRAPHS 2 AND 3 OF YOUR DECISION. AT THE TIME TRANSPORTATION WAS REQUESTED AND FURNISHED HIM. HIS PROSPECTIVE STATION WAS FORT SILL. THERE WAS AT THAT TIME NO RIGHT TO TRANSPORTATION AT GOVERNMENT EXPENSE TO PHILLIPS FIELD.

A-25986, MAY 28, 1929, 8 COMP. GEN. 620

TRANSPORTATION - DEPENDENTS - ARMY OFFICER PAYMENT OF THE COMMERCIAL COST OF TRANSPORTATION OF DEPENDENTS UNDER THE ACT OF JUNE 10, 1922, 42 STAT. 631, IS NOT AUTHORIZED FOR TRAVEL OF DEPENDENTS OF AN OFFICER OF THE ARMY PRIOR TO THE ISSUANCE OF ORDERS ASSIGNING HIM TO A NEW STATION.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF WAR, MAY 28, 1929:

THERE HAS BEEN RECEIVED YOUR LETTER OF APRIL 15, 1929, AS FOLL0WS:

FURTHER CONSIDERATION IS REQUESTED UPON A QUESTION INVOLVED IN YOUR DECISION OF FEBRUARY 19, 1929 A-25986, RELATIVE TO THE APPLICATION OF THE ACTS OF MAY 18, 1920 (41 STAT. 604), AND JUNE 10, 1922 (42 STAT. 631), THE FIRST OF WHICH AUTHORIZES FURNISHING OF TRANSPORTATION TO DEPENDENTS OF CERTAIN PERSONNEL WHEN ORDERED TO MAKE A PERMANENT CHANGE OF STATION, WHILE THE SECOND MAKES PROVISION FOR THE PAYMENT IN MONEY OF AMOUNTS EQUAL TO COMMERCIAL TRANSPORTATION COSTS IN LIEUOF THE TRANSPORTATION AUTHORIZED TO BE FURNISHED BY THE PRIOR ACT WHEN THE TRAVEL SHALL HAVE BEEN COMPLETED.

THE ORDERS DIRECTING THE TRAVEL AND THE ESSENTIAL FACTS AND CIRCUMSTANCES INVOLVED IN THE CASE OF FIRST LIEUT. CHAS. B. DESHIELDS, A.C., ARE SET FORTH IN PARAGRAPHS 2 AND 3 OF YOUR DECISION. AT THE TIME TRANSPORTATION WAS REQUESTED AND FURNISHED HIM, HIS PROSPECTIVE STATION WAS FORT SILL, OKLA. THERE WAS AT THAT TIME NO RIGHT TO TRANSPORTATION AT GOVERNMENT EXPENSE TO PHILLIPS FIELD, MD. HE DID NOT ACQUIRE SUCH RIGHT UNTIL RECEIPT OF AMENDED ORDERS WHILE IN WASHINGTON, D.C. IT WAS NOT THEN PRACTICABLE, NOR WAS THERE ANY PROPER REASON WHY HIS DEPENDENTS SHOULD HAVE RETURNED TO KANSAS CITY FOR THE PURPOSE OF OBTAINING TRANSPORTATION IN KIND FROM THAT POINT TO THE NEW STATION MERELY TO ENABLE HIM TO RECEIVE AT GOVERNMENT EXPENSE NECESSARY TRANSPORTATION FOR HIS DEPENDENTS FOR THE ENTIRE TRAVEL FROM HIS OLD STATION IN THE PHILIPPINES TO HIS NEW STATION AT PHILLIPS FIELD, MD.

ON PAGES 640 AND 641, 2D COMPTROLLER GENERAL, YOU SAID:

"THE PURPOSE OF SECTION 12 OF THE ACT OF MAY 18, 1920, AND ITS INTENT, AS THE UNAMBIGUOUS LANGUAGE INDICATES, WAS TO RELIEVE OFFICERS OF THE COST OF TRANSPORTATION OF THEIR DEPENDENTS, ACTUALLY NECESSARY, FROM ONE PERMANENT STATION TO ANOTHER.'

WITH THAT STATEMENT I AM IN FULL ACCORD. WHAT IS NOW NEEDED IS AN APPLICATION THEREOF TO THE CASE NOW BEING CONSIDERED SO THAT THE GOVERNMENT WILL IN FACT BEAR THE COST OF DEPENDENT TRANSPORTATION FOR THE ENTIRE TRAVEL TO HIS NEW PERMANENT STATION AT PHILLIPS FIELD, MD., INSTEAD OF ONLY TO KANSAS CITY, MO.

WHEN THE CONGRESS ENACTED THE LAW OF JUNE 10, 1922, IT MADE IT PLAIN IN UNAMBIGUOUS LANGUAGE THAT IT INTENDED THAT THE GOVERNMENT SHOULD BEAR THE NECESSARY COST OF TRANSPORTATION OF DEPENDENTS OF CERTAIN PERSONNEL WHICH IS THE RESULT OF PERMANENT CHANGE OF STATION. UNDER THE TWO ACTS THE GOVERNMENT MAY BEAR SUCH COST BY FURNISHING TRANSPORTATION IN KIND, AND IT MAY BEAR IT BY THE PAYMENT OF A MONEY EQUIVALENT OF TRANSPORTATION IN KIND. WHILE I PERCEIVE OF NO OBJECTION, IN THE ORDINARY CASE, TO A REQUIREMENT DESIGNED TO PRECLUDE ANY UNNECESSARY COMMINGLING OF THE RIGHTS TO TRANSPORTATION AND MONETARY ALLOWANCE UNDER THE TWO ACTS FOR WHICH PROVISION IN ARMY REGULATIONS HAS BEEN MADE, MY DUTIES REQUIRE THAT PROTEST BE MADE AGAINST ANY DECISION WHICH WILL REQUIRE IN SUCH A CASE AS IS NOW FOR CONSIDERATION THAT THE OFFICER INVOLVED BEAR ANY PART OF THE NECESSARY COST OF DEPENDENT TRANSPORTATION OVER THE DIRECT ROUTE FROM SAN FRANCISCO, CALIF., TO PHILLIPS FIELD, MD., AS THE RESULT OF ADMINISTRATIVE ORDERS REQUIRING SUCH TRAVEL ON PERMANENT CHANGE OF STATION.

THE DEPARTMENT, IN PARAGRAPH 3B OF AR 35-5320, HAS MADE PROVISION FOR SPECIAL OR UNUSUAL CASES OF WHICH THE PRESENT CASE IS ONE; AND I THEREFORE REQUEST THAT YOU RECONSIDER THE RESTRICTIVE PROVISIONS OF YOUR DECISION OF FEBRUARY 19, 1929, TO THE END THAT LIEUTENANT DESHIELDS MAY BE RELIEVED OF THE NECESSARY COST OF TRANSPORTATION FROM ONE PERMANENT STATION TO THE OTHER TO THE EXTENT THAT IT HAS THUS FAR BEEN BORNE BY HIM, AND THAT YOU AUTHORIZE THE PAYMENT TO BE MADE TO HIM OF THE COST OF AUTHORIZED TRANSPORTATION FROM SAN FRANCISCO, CALIF., TO PHILLIPS FIELD, MD., WITH DEDUCTION THEREFROM OF THE VALUE OF TRANSPORTATION FURNISHED IN KIND OF KANSAS CITY, MO.

THE DECISION TO WHICH REFERENCE IS MADE WAS RENDERED TO A DISBURSING OFFICER ON THE SUBMISSION BY HIM OF A VOUCHER PRESENTED TO HIM FOR PAYMENT PURSUANT TO SECTION 8 OF THE ACT OF JULY 31, 1894, 28 STAT. 208, THAT HE WAS NOT AUTHORIZED TO PAY THE VOUCHER, THUS AFFORDING HIM THE PROTECTION DESIGNED BY THAT STATUTE. ORDINARILY SUCH A DECISION IS NOT A MATTER FOR RECONSIDERATION EITHER ON THE APPLICATION OF THE DISBURSING OFFICER OR OTHERS, THE CLAIMANT HAVING A RIGHT TO FILE HIS CLAIM IN THIS OFFICE WITH SUCH ARGUMENT OR THE SUBMISSION OF SUCH ADDITIONAL EVIDENCE AS HE MAY BE ADVISED WILL TEND TO ESTABLISH THE LEGALITY OF HIS CLAIM. HOWEVER, AS YOUR LETTER IMPLIES THAT A SUBSTANTIAL ERROR WAS MADE IN THE APPLICATION OF THE LAW TO THE FACTS OF THE CASE PRESENTED, IT WILL BE FURTHER CONSIDERED AT YOUR REQUEST.

THE DECISION ACCEPTED THE CONCLUSION OF THE FINANCE OFFICER IN LETTER OF JANUARY 16, 1929, ADDRESSED TO LIEUTENANT DESHIELDS, THAT THE RIGHTS OF THE OFFICER WERE FOR DETERMINATION AS FOR TRANSPORTATION OF DEPENDENTS FROM SAN FRANCISCO TO ABERDEEN PROVING GROUND, MD. THE FACTS, HOWEVER, ARE THAT THE OFFICER, UNDER HIS ORDERS TO FORT SILL, OKLA., WAS FURNISHED ALL THE TRANSPORTATION FOR HIS DEPENDENTS THOSE ORDERS AUTHORIZED AND THAT TRANSPORTATION WAS UTILIZED NOT IN TRAVELING TO FORT SILL BUT TO WASHINGTON, D.C., IN CONNECTION WITH THE LEAVE OF ABSENCE GRANTED THE OFFICER. WHILE THE ACCOUNTING OFFICERS HAVE PERMITTED THE ISSUANCE OF TRANSPORTATION TO POINTS OTHER THAN THE NEW STATION, IF ISSUED AS AN INCIDENT TO SUCH CHANGE OF STATION, ON CONDITION THE OFFICER AGREES TO BEAR THE COST OF TRANSPORTATION OF HIS DEPENDENTS TO HIS NEW STATION, 27 COMP. DEC. 510, THE LEGALITY OF SUCH ISSUANCE HAS BEEN QUESTIONED BY THE COURT OF CLAIMS. FORTSON V. THE UNITED STATES, 63 CT.CLS. 333.

WHILE AT WASHINGTON, D.C., WITH HIS DEPENDENTS ON LEAVE OF ABSENCE, THE OFFICER WAS RELIEVED FROM ASSIGNMENT AT FORT SILL AND ASSIGNED TO DUTY AT ABERDEEN PROVING GROUND. HIS RIGHT, UNDER THE ACT OF JUNE 10, 1922, 42 STAT. 631, WHEN THE TRAVEL OF HIS DEPENDENTS SHALL HAVE BEEN COMPLETED, IS TO COMMERCIAL COST OF TRANSPORTATION THAT MIGHT HAVE BEEN ISSUED UNDER THE AUTHORITY OF THE ACT OF MAY 18, 1920, 41 STAT. 604. THE EXACT LANGUAGE OF THE ACT OF JUNE 10, 1922, CITED, IS AS FOLLOWS:

IN LIEU OF THE TRANSPORTATION IN KIND AUTHORIZED BY SECTION 12 OF AN ACT ENTITLED "AN ACT TO INCREASE THE EFFICIENCY OF THE COMMISSIONED AND ENLISTED PERSONNEL OF THE ARMY, NAVY, MARINE CORPS, COAST GUARD, COAST AND GEODETIC SURVEY, AND PUBLIC HEALTH SERVICE," APPROVED MAY 18, 1920, TO BE FURNISHED BY THE UNITED STATES FOR DEPENDENTS, THE PRESIDENT MAY AUTHORIZE THE PAYMENT IN MONEY OF AMOUNTS EQUAL TO SUCH COMMERCIAL TRANSPORTATION COSTS WHEN SUCH TRAVEL SHALL HAVE BEEN COMPLETED. * * *

BEFORE THERE IS A RIGHT TO COMMERCIAL COST OF TRANSPORTATION THERE MUST BE A RIGHT TO TRANSPORTATION IN KIND, OTHERWISE IT WOULD NOT BE IN LIEU OF TRANSPORTATION IN KIND; AND THE UNIFORM HOLDING HAS BEEN THAT TRANSPORTATION IN KIND, UNDER THE ACT OF 1920, IS AUTHORIZED ONLY AFTER THE ISSUANCE OF ORDERS DIRECTING A PERMANENT CHANGE OF STATION (AND IF ISSUED BEFORE THE ORDERS BECOME EFFECTIVE, SUBJECT TO SUCH MODIFICATIONS IN THE OFFICER'S ORDERS AS SUBSEQUENTLY MAY BE MADE IN HIS PERMANENT STATION), AND THEN ONLY FROM THE PLACE THE DEPENDENTS ARE TO THE NEW STATION NOT EXCEEDING THE COST FROM THE OLD TO THE NEW PERMANENT STATION. THIS VIEW OF THE STATUTE HAS HAD THE CONCURRENCE OF THE COURT OF CLAIMS IN THE CASE OF ELMORE V. THE UNITED STATES, 61 CT.CLS. 173, WHERE THE COURT SAID, WITH RESPECT TO TRAVEL BY AN OFFICER AND HIS DEPENDENTS WHILE THE OFFICER WAS ON LEAVE OF ABSENCE--

THIS ORDER RELIEVED HIM FROM DUTY AND ENTITLED HIM TO TRAVEL WHERE HE PLEASED FOR A PERIOD OF 90 DAYS, THE TRAVELING EXPENSES OF HIMSELF AND HIS FAMILY SHOULD THEY GO WITH HIM, BEING BORNE BY HIM. HE WOULD HAVE BEEN ENTITLED TO NO MILEAGE WHILE TRAVELING AND NO REIMBURSEMENT FOR THE TRANSPORTATION OF HIS FAMILY. * * *

WITH RESPECT TO THE OFFICER'S RIGHT TO TRANSPORTATION FOR HIS DEPENDENTS UNDER AN ORDER ISSUED AFTER TRAVEL HAD BEEN PERFORMED BY THE DEPENDENTS WHILE THE OFFICER WAS ON LEAVE AND BEFORE THE ISSUANCE OF THE ORDER, THE COURT SAID:

THIS ORDER ENTITLED HIM TO MILEAGE FOR HIMSELF AND TRAVELING EXPENSES FOR HIS FAMILY INCURRED AFTER THE ORDER BECAME EFFECTIVE. HAD HE REMAINED AT HONOLULU HE WOULD HAVE BEEN ENTITLED TO MILEAGE AND TRANSPORTATION FOR HIS FAMILY TO HIS HOME IN MONTGOMERY, ON THE STRENGTH OF THIS LAST ORDER. OFFICER CAN ONLY RECOVER MILEAGE AND BE REIMBURSED FOR TRAVELING EXPENSES OF HIS FAMILY UNDER THE CONDITIONS REQUIRED BY THE STATUTE, AND THE PREREQUISITE OF THE STATUTE IS AN ORDER ISSUED BY COMPETENT AUTHORITY DIRECTING OR AUTHORIZING HIM TO TRAVEL. UNTIL ORDERED TO MOVE HE IS EXPECTED TO REMAIN AT HIS POST, UNLESS GRANTED LEAVE OF ABSENCE, DURING WHICH TIME HE TRAVELS, WITHOUT ORDERS AT HIS OWN EXPENSE. * * *

THE DEPENDENTS OF THE OFFICER IN THIS CASE TRAVELED TO WASHINGTON, D.C., BETWEEN NOVEMBER 24 AND NOVEMBER 29, 1928, WHILE THE OFFICER WAS ON LEAVE OF ABSENCE. THE ORDERS RELIEVING HIM FROM ASSIGNMENT TO STATION AT FORT SILL, OKLA., AND ASSIGNING HIM TO DUTY AT ABERDEEN PROVING GROUND, MD., WERE DATED JANUARY 7, 1929. THE ELMORE CASE IS ON ALL FOURS WITH THE FACTS OF THIS CASE. THE TRAVEL OF HIS DEPENDENTS WITH THE OFFICER WHILE ON LEAVE OF ABSENCE WAS NOT INCIDENT TO A CHANGE OF STATION DIRECTED IN ORDERS SUBSEQUENTLY ISSUED ASSIGNING HIM TO STATION IN THE VICINITY OF WASHINGTON. THE TRAVEL TO WASHINGTON HAVING BEEN BEFORE ANY ORDERS WERE ISSUED REQUIRING THE OFFICER TO TRAVEL TO ABERDEEN PROVING GROUND, HE IS NOT ENTITLED TO TRANSPORTATION IN KIND NOR TO PAYMENT OF THE COMMERCIAL COST THEREOF FOR TRAVEL PERFORMED BY HIS DEPENDENTS WHILE ON LEAVE OF ABSENCE. THERE IS THUS NO QUESTION OF THE COMMINGLING OF RIGHTS UNDER THE ACT OF 1920 AND THE ACT OF 1922 FOR THE APPLICATION OF THE REGULATIONS TO WHICH YOU REFER, AND THE LEGALITY OF THE EXCEPTION SUGGESTED IN THE REGULATIONS DOES NOT REQUIRE CONSIDERATION IN THIS CONNECTION.