A-2624, JULY 8, 1924, 4 COMP. GEN. 28

A-2624: Jul 8, 1924

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NOR IS HE ENTITLED TO MILEAGE UNDER THE ACT OF MARCH 3. THE DISCHARGE OF AN OFFICER OF THE MARINE CORPS RESERVE PRIOR TO THE EXPIRATION OF HIS ENROLLMENT AND PURSUANT TO HIS REQUEST OR RESIGNATION IS A SEVERANCE "WITHOUT COMPULSION ON PART OF THE GOVERNMENT" AND REQUIRES THE REFUND OF THE UNIFORM GRATUITY CREDITED TO HIS ACCOUNT AT DATE OF ENROLLMENT. WHEREIN WAS DISALLOWED HIS CLAIM FOR TRAVEL PAY FROM MARINE BARRACKS. WAS DISENROLLED AT HIS OWN REQUEST ON JANUARY 13. MY REASONS ARE AS FOLLOWS: PRIOR TO MY ENLISTMENT IN THE UNITED STATES MARINE CORPS I WAS ATTENDING THE KENT COLLEGE OF LAW. I WILL RETURN AT ONCE TO COMPLETE MY COURSE. 3. THIS COURSE WILL COMMENCE FEBRUARY 4TH. 1919) YOU ARE HEREBY DISCHARGED FROM THE MARINE CORPS RESERVE. 2.

A-2624, JULY 8, 1924, 4 COMP. GEN. 28

MILEAGE - TRAVEL ALLOWANCE - UNIFORM GRATUITY - MARINE CORPS RESERVE THE DISCHARGE OF AN OFFICER OF THE MARINE CORPS RESERVE GRANTED AT THE REQUEST OF THE OFFICER AND FOR HIS OWN CONVENIENCE BEFORE THE EXPIRATION OF HIS TERM OF ENROLLMENT DOES NOT ENTITLE HIM TO TRAVEL ALLOWANCE UNDER THE ACT OF MARCH 2, 1901, 31 STAT. 902, NOR IS HE ENTITLED TO MILEAGE UNDER THE ACT OF MARCH 3, 1901, 31 STAT. 1029, FOR TRAVEL PERFORMED AFTER DISCHARGE. THE DISCHARGE OF AN OFFICER OF THE MARINE CORPS RESERVE PRIOR TO THE EXPIRATION OF HIS ENROLLMENT AND PURSUANT TO HIS REQUEST OR RESIGNATION IS A SEVERANCE "WITHOUT COMPULSION ON PART OF THE GOVERNMENT" AND REQUIRES THE REFUND OF THE UNIFORM GRATUITY CREDITED TO HIS ACCOUNT AT DATE OF ENROLLMENT.

DECISION BY COMPTROLLER GENERAL MCCARL, JULY 8, 1924:

THEOPHILUS P. MCCLORY, FORMER SECOND LIEUTENANT, UNITED STATES MARINE CORPS RESERVE, APPLIED APRIL 17, 1924, FOR REVIEW OF SETTLEMENT NO. 014315 -N, DATED MARCH 6, 1924, WHEREIN WAS DISALLOWED HIS CLAIM FOR TRAVEL PAY FROM MARINE BARRACKS, PARRIS ISLAND, S.C., TO CHICAGO, ILL., UPON HIS DISCHARGE JANUARY 13, 1919.

THE ADJUTANT AND INSPECTOR, UNITED STATES MARINE CORPS, REPORTS TO THIS OFFICE THAT CLAIMANT ENROLLED FOR FOUR YEARS IN THE UNITED STATES MARINE CORPS RESERVE, CLASS 4, ON DECEMBER 16, 1918, AS A SECOND LIEUTENANT; REPORTED FOR ACTIVE DUTY THE SAME DAY; AND WAS DISENROLLED AT HIS OWN REQUEST ON JANUARY 13, 1919.

CLAIMANT'S LETTER OF JANUARY 3, 1919, ADDRESSED TO THE MAJOR GENERAL COMMANDANT, RECITED:

1. I HEREBY TENDER MY RESIGNATION AS A SECOND LIEUTENANT, PROVISIONAL, CLASS 4, IN THE UNITED STATES MARINE CORPS RESERVE.

2. MY REASONS ARE AS FOLLOWS:

PRIOR TO MY ENLISTMENT IN THE UNITED STATES MARINE CORPS I WAS ATTENDING THE KENT COLLEGE OF LAW, OF CHICAGO, ILL. IF RELEASED, I WILL RETURN AT ONCE TO COMPLETE MY COURSE.

3. IF APPROVED, I WISH MY RESIGNATION TO TAKE EFFECT ON OR BEFORE JANUARY 31ST, 1919, IN ORDER THAT I MAY ENROLL IN THE SPECIAL COURSE IN LAW OFFERED TO MEN RELEASED FROM THE SERVICE. THIS COURSE WILL COMMENCE FEBRUARY 4TH, 1919.

UNDER DATE OF JANUARY 9, 1919, THE MAJOR GENERAL COMMANDANT ADDRESSED THE FOLLOWING TO LAIMANT:

1. IN COMPLIANCE WITH THE REQUEST CONTAINED IN REFERENCE * * * (YOUR LETTER DATED JANUARY 3, 1919) YOU ARE HEREBY DISCHARGED FROM THE MARINE CORPS RESERVE.

2. YOUR HOME ADDRESS IS ON RECORD AT THESE HEADQUARTERS AS RIVERSIDE, ILLINOIS.

INDORSEMENT UPON THIS LETTER SHOWS ITS RECEIPT BY CLAIMANT JANUARY 13, 1919.

THE ACT OF MARCH 3, 1901, 31 STAT. 1029, PROVIDED:

* * * THAT IN LIEU OF TRAVELING EXPENSES AND ALL ALLOWANCES WHATSOEVER CONNECTED THEREWITH, INCLUDING TRANSPORTATION OF BAGGAGE, OFFICERS OF THE NAVY TRAVELING FROM POINT TO POINT WITHIN THE UNITED STATES UNDER ORDERS SHALL HEREAFTER RECEIVE MILEAGE AT THE RATE OF EIGHT CENTS PER MILE, DISTANCE TO BE COMPUTED BY THE SHORTEST USUALLY TRAVELED ROUTE.

UNDER SECTION 1612, REVISED STATUTES, OFFICERS OF THE MARINE CORPS RECEIVED ALL PAY AND ALLOWANCES AT THE SAME RATES AND UNDER THE SAME CONDITIONS AS OFFICERS OF THE ARMY. BY THE ACT OF JUNE 10. 1896, 29 STAT. 376, THEY WERE PLACED ON THE SAME FOOTING AS OFFICERS OF THE NAVY WITH RESPECT TO MILEAGE, WHEN "TRAVELING UNDER ORDERS WITHOUT TROOPS," AND SECTION 1612 WAS, BY IMPLICATION, REPEALED SO FAR AS IT RELATED TO MILEAGE COMPUTED UPON THE ARMY LAW. 8 COMP. DEC. 123.

THE PROVISIONS OF THE ACT OF MARCH 3, 1901, COULD NOT, HOWEVER, APPLY TO CLAIMANT, PRIMARILY BECAUSE HE WAS NOT AN OFFICER OF THE MARINE CORPS RESERVE AT THE TIME HE MADE THE TRAVEL, AND SECONDARILY NO ORDERS WERE ISSUED FOR TRAVEL.

AS THE ACT OF MARCH 3, 1901, REFERRED, HOWEVER, ONLY TO MILEAGE WHEN OFFICERS WERE TRAVELING ,UNDER ORDERS," THE ACT OF JUNE 10, 1896, REPEALED SECTION 1612 OF THE REVISED STATUTES ONLY IN SO FAR AS IT AFFECTED OFFICERS OF THE MARINE CORPS WHEN TRAVELING "UNDER ORDERS," BUT DID NOT DEPRIVE OFFICERS OF THE MARINE CORPS OF "THE SAME PAY AND ALLOWANCES * * * AS ARE OR MAY BE PROVIDED BY OR IN PURSUANCE OF LAW FOR THE OFFICERS * * * OF THE ARMY" WHEN THE MATTER OF ORDERS IS NOT CONTROLLING. 25 COMP. DEC. 630.

THE ACT OF MARCH 2, 1901, 31 STAT. 902, PROVIDES FOR THE ARMY:

* * * THAT HEREAFTER WHEN AN OFFICER SHALL BE DISCHARGED FROM THE SERVICE, EXCEPT BY WAY OF PUNISHMENT FOR AN OFFENSE, HE SHALL RECEIVE FOR TRAVEL ALLOWANCES FROM THE PLACE OF HIS DISCHARGE TO THE PLACE OF HIS RESIDENCE AT THE TIME OF HIS APPOINTMENT OR TO THE PLACE OF HIS ORIGINAL MUSTER INTO THE SERVICE FOUR CENTS PER MILE; * * *.

IT HAS LONG BEEN HOLDING UNDER LAWS AUTHORIZING TRAVEL ALLOWANCE UPON DISCHARGE "EXCEPT BY WAY OF PUNISHMENT FOR AN OFFENSE," THAT THE ALLOWANCE IS NOT PAYABLE WHERE THE DISCHARGE IS GRANTED AT THE REQUEST OF AND SOLELY FOR THE CONVENIENCE OF THE PERSON CONCERNED. 7 COMP. DEC. 740; UNITED STATES V. SWEET, 189 U.S. 471.

THERE IS ACCORDINGLY NO LAW UNDER WHICH CLAIMANT CAN BE PAID MILEAGE OR TRAVEL ALLOWANCE UPON HIS DISCHARGE AS AN OFFICER OF THE U.S. MARINE CORPS RESERVE, AND THAT PART OF SETTLEMENT NO. 014315-N, DISALLOWING CLAIM THEREFOR IS AFFIRMED.

BY SETTLEMENT NO. 014315-N, CLAIMANT WAS ALLOWED $150 AS UNIFORM GRATUITY DUE AT DATE OF REPORTING FOR ACTIVE DUTY AS AN OFFICER IN THE UNITED STATES MARINE CORPS RESERVE. CLAIMANT WAS NOT PAID THIS GRATUITY AT THE TIME OF HIS REPORTING FOR ACTIVE DUTY BY REASON OF THE FACT THAT HE HAD EXECUTED A WAIVER THEREOF. THE WAIVER IN QUESTION HAS BEEN HELD TO BE NONENFORCEABLE, IN CONSEQUENCE OF WHICH THE ALLOWANCE WAS MADE. 3 COMP. GEN. 544.

THE ACT OF AUGUST 29, 1916, 39 STAT. 589, WHICH AUTHORIZED A UNIFORM GRATUITY OF $150 FOR OFFICERS OF THE NAVAL RESERVE FORCE UPON REPORTING FOR ACTIVE SERVICE IN TIME OF WAR AND MADE APPLICABLE TO THE MARINE CORPS RESERVE BY THE PROVISIONS CREATING THE MARINE CORPS RESERVE (P.593 OF THE SAME ACT) CONTAINED THIS PROVISO:

* * * THAT SHOULD ANY MEMBER OF THE NAVAL RESERVE FORCE SEVER HIS CONNECTION WITH THE SERVICE WITHOUT COMPULSION ON PART OF THE GOVERNMENT BEFORE THE EXPIRATION OF HIS TERM OF ENROLLMENT, THE AMOUNT SO CREDITED SHALL BE DEDUCTED FROM ANY MONEY THAT MAY BE OR MAY BECOME DUE HIM.

CLAIMANT'S CONNECTION WITH THE MARINE CORPS RESERVE WAS SEVERED BY THE ACCEPTANCE OF A RESIGNATION TENDERED BY HIM AND WAS "WITHOUT COMPULSION ON PART OF THE GOVERNMENT.' THE AMOUNT DUE AT DATE OF REPORTING WAS ACCORDINGLY SUBJECT TO REFUND TO THE GOVERNMENT AT DATE OF DISCHARGE, AND AS CLAIM NO. 014315-N WAS SETTLED AFTER DISCHARGE HAD OCCURRED NOTHING WAS DUE CLAIMANT AT THAT TIME, THE AMOUNT REQUIRED AS A REFUND OFFSETTING THE AMOUNT WHICH WAS DUE AT DATE OF REPORTING FOR ACTIVE DUTY. ACCORDINGLY, THE SETTLEMENT IS REVISED AND $150 IS CERTIFIED DUE THE UNITED STATES.

CLAIMANT IS REQUESTED TO MAKE REFUND TO THIS OFFICE OF THE $150 ERRONEOUSLY ALLOWED, THROUGH CHECK, DRAFT, OR POSTAL MONEY ORDER PAYABLE TO THE TREASURER OF THE UNITED STATES.