A-39742, MAY 20, 1932, 11 COMP. GEN. 437

A-39742: May 20, 1932

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THE TRAVEL CONTEMPLATED IS TRAVEL ON A CONTINUOUS JOURNEY BY AIR. IT IS COMPETENT FOR THE SECRETARY OF THE NAVY TO MAKE REGULATIONS. TO THE EFFECT THAT THE CONTINUITY OF THE JOURNEY IS BROKEN BY A STOP IN EXCESS OF 72 HOURS IN ANY ONE LOCALITY. THE SAME IS HEREBY. ALL OTHER LAWS AND PARTS OF LAWS IN SO FAR AS THE SAME ARE IN CONFLICT WITH THIS ACT. ARE HEREBY REPEALED. WERE ENTITLED TO "ACTUAL AND NECESSARY EXPENSES ONLY. THE SAME ALLOWANCE FOR TRAVEL BY AIR WAS EXTENDED TO ALL OFFICERS. WERE REQUIRED TO BE UNIFORM FOR ALL SERVICES CONCERNED. MARINE CORPS ARE ENTITLED TO PER DIEM OF $7 IN LIEU OF OTHER TRAVEL ALLOWANCES FOR ACTUAL TIME CONSUMED IN TRAVEL BY AIR UNDER COMPETENT ORDERS IN CONNECTION WITH AERIAL SURVEYS OF RIVERS AND HARBORS AND OTHER GOVERNMENT PROJECTS.

A-39742, MAY 20, 1932, 11 COMP. GEN. 437

TRAVELING EXPENSES - AIR TRAVEL - NAVY PERSONNEL UNDER THE ACT OF MARCH 2, 1931, 46 STAT. 1461, AUTHORIZING TRAVEL EXPENSES NOT TO EXCEED $8 PER DAY, OR IN LIEU THEREOF A PER DIEM ALLOWANCE AT RATES NOT TO EXCEED $6 PER DAY, FOR TRAVEL BY AIR UNDER COMPETENT ORDERS ON DUTY WITHOUT TROOPS, THE TRAVEL CONTEMPLATED IS TRAVEL ON A CONTINUOUS JOURNEY BY AIR; AND IN VIEW OF PRIOR LEGISLATION AND THE PRACTICE AND INTERPRETATION THEREUNDER, IT IS COMPETENT FOR THE SECRETARY OF THE NAVY TO MAKE REGULATIONS, APPLICABLE TO NAVY PERSONNEL, TO THE EFFECT THAT THE CONTINUITY OF THE JOURNEY IS BROKEN BY A STOP IN EXCESS OF 72 HOURS IN ANY ONE LOCALITY, EXCEPT WHEN DUE TO UNFAVORABLE WEATHER CONDITIONS OR NECESSARY REPAIRS TO AERIAL EQUIPMENT; OR WHEN THE TRAVEL ORDERS EXPRESSLY AUTHORIZE A LONGER STOP NOT TO EXCEED 10 DAYS.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE NAVY, MAY 20, 1932:

THERE HAS BEEN RECEIVED YOUR LETTER OF NOVEMBER 27, 1931, SUBMITTING PROPOSED CHANGES IN UNITED STATES NAVY TRAVEL INSTRUCTIONS PURSUANT TO THE ACT OF MARCH 2, 1931, 46 STAT. 1461, AND REQUESTING AN EXPRESSION OF MY VIEWS AS TO THE LEGALITY OF PAYMENTS MADE PURSUANT TO THE PROPOSED CHANGES.

THE ACT OF MARCH 2, 1931, 46 STAT. 1461, PROVIDES:

THAT THE FIRST PARAGRAPH OF SECTION 12 OF THE ACT ENTITLED "AN ACT TO READJUST THE PAY AND ALLOWANCES OF THE COMMISSIONED AND ENLISTED PERSONNEL OF THE ARMY, NAVY, MARINE CORPS, COAST GUARD, COAST AND GEODETIC SURVEY, AND PUBLIC HEALTH SERVICE," APPROVED JUNE 10, 1922, AS AMENDED BY THE ACT OF JUNE 1, 1926 (FORTY-FOURTH STATUTES AT LARGE, PAGE 680; TITLE 37, UNITED STATES CODE, PAGE 2069, SECTION 20), BE, AND THE SAME IS HEREBY, FURTHER AMENDED BY ADDING THERETO THE FOLLOWING PROVISO, TO WIT: "PROVIDED, THAT FOR TRAVEL BY AIR UNDER COMPETENT ORDERS ON DUTY WITHOUT TROOPS, UNDER REGULATIONS TO BE PRESCRIBED RESPECTIVELY BY THE HEADS OF THE DEPARTMENTS CONCERNED, MEMBERS (INCLUDING OFFICERS, WARRANT OFFICERS, CONTRACT SURGEONS, ENLISTED MEN, FLYING CADETS, AND MEMBERS OF THE NURSE CORPS) OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT, AND OF THE LEGALLY CONSTITUTED RESERVES OF SAID SERVICES WHILE ON ACTIVE DUTY, AND OF THE NATIONAL GUARD WHILE IN FEDERAL SERVICE, OR WHILE PARTICIPATING IN EXERCISES, OR PERFORMING DUTIES UNDER SECTION 92, 94, 97, OR 99 OF THE NATIONAL DEFENSE ACT, SHALL, IN LIEU OF MILEAGE OR OTHER TRAVEL ALLOWANCES, BE ALLOWED AND PAID THEIR ACTUAL AND NECESSARY TRAVELING EXPENSES NOT TO EXCEED $8 PER DAY, OR , IN LIEU THEREOF, PER DIEM ALLOWANCES AT RATES NOT TO EXCEED $6 PER DAY.'

SEC. 2. THAT THE PROVISO IN THE ACT ENTITLED "AN ACT MAKING APPROPRIATIONS FOR THE SUPPORT OF THE ARMY FOR THE FISCAL YEAR ENDING JUNE 30, 1920, AND FOR OTHER PURPOSES," APPROVED JULY 11, 1919, AUTHORIZING PAYMENT OF ACTUAL AND NECESSARY EXPENSES ONLY TO OFFICERS OF THE ARMY AND CONTRACT SURGEONS WHEN TRAVELING BY AIR ON DUTY WITHOUT TROOPS (FORTY- FIRST STATUTES AT LARGE, PAGE 109; TITLE 10, UNITED STATES CODE, PAGE 197, SECTION 750), AND ALL OTHER LAWS AND PARTS OF LAWS IN SO FAR AS THE SAME ARE IN CONFLICT WITH THIS ACT, ARE HEREBY REPEALED; BUT NOTHING HEREIN SHALL BE CONSTRUED TO REPEAL OR MODIFY THE PROVISIONS OF SECTION 5 OF THE ACT ENTITLED "AN ACT AUTHORIZING THE CONSTRUCTION, REPAIR, AND PRESERVATION OF CERTAIN PUBLIC WORKS ON RIVERS AND HARBORS, AND FOR OTHER PURPOSES," APPROVED MARCH 3, 1925 (FORTY-THIRD STATUTES AT LARGE, PAGE 1190; TITLE 34, U.S.C. PAGE 1141, SECTION 893).

BY THE ACT OF JULY 11, 1919, 41 STAT. 109, ARMY OFFICERS AND CONTRACT SURGEONS, WHEN AUTHORIZED BY COMPETENT ORDERS TO TRAVEL BY AIR ON DUTY WITHOUT TROOPS, WERE ENTITLED TO "ACTUAL AND NECESSARY EXPENSES ONLY, NOT TO EXCEED $8 PER DAY.' BY SECTION 20 OF THE ACT OF JUNE 10, 1922, 42 STAT. 632, 633, THE SAME ALLOWANCE FOR TRAVEL BY AIR WAS EXTENDED TO ALL OFFICERS, WARRANT OFFICERS, AND ENLISTED MEN OF ALL BRANCHES OF THE ARMY, NAVY, MARINE CORPS, AND COAST GUARD TO BE APPLIED UNDER REGULATIONS MADE BY THE PRESIDENT WHICH, WHENEVER PRACTICABLE, WERE REQUIRED TO BE UNIFORM FOR ALL SERVICES CONCERNED. BY SECTION 5 OF THE ACT OF MARCH 3, 1925, 43 STAT. 1190, OFFICERS, WARRANT OFFICERS, AND ENLISTED MEN OF THE ARMY, NAVY, AND MARINE CORPS ARE ENTITLED TO PER DIEM OF $7 IN LIEU OF OTHER TRAVEL ALLOWANCES FOR ACTUAL TIME CONSUMED IN TRAVEL BY AIR UNDER COMPETENT ORDERS IN CONNECTION WITH AERIAL SURVEYS OF RIVERS AND HARBORS AND OTHER GOVERNMENT PROJECTS; AND A PER DIEM OF $6 FOR ACTUAL TIME CONSUMED IN MAKING SUCH AERIAL SURVEYS. THE ACT OF MARCH 2, 1931, REPEALS THESE PRIOR ACTS, EXCEPT SECTION 5 OF THE ACT OF MARCH 3, 1925, IN SO FAR AS THEY ARE IN CONFLICT THEREWITH. ITS PROVISIONS DIFFER FROM THE FORMER ACTS IN THE FACT THAT INSTEAD OF BEING APPLIED UNDER REGULATIONS MADE BY THE PRESIDENT THE EXPENSE ALLOWANCES ARE TO BE PAID "UNDER REGULATIONS TO BE PRESCRIBED BY THE HEADS OF THE DEPARTMENTS CONCERNED"; AND INSTEAD OF BEING LIMITED TO ACTUAL EXPENSES NOT TO EXCEED $8 PER DAY, AS PROVIDED IN THE ACT OF JULY 11, 1919, A PER DIEM TO EXCEED $6, IF AUTHORIZED IN THE ORDERS, MAY BE ALLOWED IN LIEU THEREOF.

PURSUANT TO THE PROVISIONS OF THE ACT OF MARCH 2, 1931, QUOTED ABOVE, YOU PROPOSE TO PUBLISH NECESSARY REGULATIONS TO THE NAVAL SERVICE IN THE FORM OF CHANGES IN THE UNITED STATES NAVY TRAVEL INSTRUCTIONS, AS FOLLOWS:

PARAGRAPH 2-17. STRIKE OUT SUBPARAGRAPHS (1), (2), (3), AND (4) AND INSERT NEW SUBPARAGRAPH (1) AS FOLLOWS:

(1) SECTION 12 OF THE ACT OF 10 JUNE, 1922, AS AMENDED BY THE ACT OF 2 MARCH, 1931, PROVIDES:

" * * * FOR TRAVEL BY AIR UNDER COMPETENT ORDERS ON DUTY WITHOUT TROOPS, UNDER REGULATIONS TO BE PRESCRIBED RESPECTIVELY BY THE HEADS OF THE DEPARTMENTS CONCERNED, MEMBERS (INCLUDING OFFICERS, WARRANT OFFICERS, CONTRACT SURGEON, ENLISTED MEN, FLYING CADETS, AND MEMBERS OF THE NURSE CORPS) OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT, AND OF THE LEGALLY CONSTITUTED RESERVES OF SAID SERVICES WHILE ON ACTIVE DUTY * * * SHALL, IN LIEU OF MILEAGE OR OTHER TRAVEL ALLOWANCES, BE ALLOWED AND PAID THEIR ACTUAL AND NECESSARY TRAVELING EXPENSES NOT TO EXCEED $8 PER DAY, OR, IN LIEU THEREOF, PER DIEM ALLOWANCES AT RATES NOT TO EXCEED $6 PER DAY.'

PARAGRAPH 2-18. STRIKE OUT AND SUBSTITUTE THE FOLLOWING:

2-18. TRAVEL BY AIR--- GOVERNING CONDITIONS.--- IN ACCORDANCE WITH THE LAW QUOTED ABOVE, OFFICERS, WARRANT OFFICERS, AND NURSES OF THE NAVY WHO MAY BE ORDERED TO PERFORM TRAVEL BY AIR, OTHER THAN UPON AERIAL SURVEY DUTY, WILL BE REIMBURSED FOR ALL ACTUAL AND NECESSARY EXPENSES, NOT TO EXCEED $8 PER DAY, INCURRED ON A CONTINUOUS JOURNEY BY AIR AND DURING A NECESSARY DELAY THEREIN, OR A PER DIEM NOT TO EXCEED $6 WHEN SPECIFIED IN THEIR ORDERS, PROVIDED THE GOVERNING CONDITIONS AS SPECIFIED BELOW ARE MET. MILEAGE IS NOT PAYABLE FOR TRAVEL BY GOVERNMENT AIRCRAFT.

(1) TRAVEL MUST BE UNDER COMPETENT ORDERS.--- A COMPETENT ORDER IS AN ORDER ISSUED BY OR UNDER THE AUTHORITY OF THE BUREAU OF NAVIGATION AND APPROVED BY THAT BUREAU. THE DUTY INVOLVED MUST BE CLEARLY SHOWN IN THE ORDER SO AS TO PERMIT A DETERMINATION WHETHER THE TRAVEL INVOLVED WAS IN CONNECTION WITH THE FUNCTIONS OF THE NAVY DEPARTMENT AND ON PUBLIC BUSINESS, AND ALSO WHETHER THE TRAVEL WAS WITH OR WITHOUT TROOPS. (SEE PAR. 2-30 (7).) THE ORDER MUST STATE THAT TRAVEL IS TO BE BY AIR AND THAT REIMBURSEMENT OF ACTUAL AND NECESSARY EXPENSES NOT TO EXCEED $8 PER DAY, OR PER DIEM AT NOT TO EXCEED $6, IS AUTHORIZED. STOPS TO BE MADE EN ROUTE SHOULD BE STATED IN THE ORDERS. ORDERS ISSUED BY OTHER THAN THE BUREAU OF NAVIGATION MUST BE APPROVED BY THAT BUREAU BEFORE PAYMENT OF THE EXPENSE CLAIMS.

(2) TRAVEL MUST BE A CONTINUOUS JOURNEY BY AIR.--- A CONTINUOUS JOURNEY BY AIR IS DEFINED AS ANY JOURNEY MADE IN AN AIRCRAFT BY ORDERS OF COMPETENT AUTHORITY, FROM AND RETURN TO THE PLACE OF INITIAL DEPARTURE OR TO OTHER FINAL DESTINATION SPECIFIED IN THE ORDERS, WHICH REQUIRES ONE OR MORE LANDINGS; PROVIDED THAT ANY STOP, EXCEPT THAT DUE TO NECESSARY DELAY (SEE PAR. 2-19) IN ANY ONE LOCALITY DOES NOT EXCEED TEN DAYS. COMMENCEMENT OF AIR TRAVEL BY A CONTINUOUS AIR JOURNEY SHALL BE THE ACTUAL TIME OF EMBARKATION IN AIRCRAFT AND ITS TERMINATION THE ACTUAL TIME OF DISEMBARKATION AT A FINAL DESTINATION.

(3) TERMINATION OF TRAVEL STATUS.--- TRAVEL STATUS ENDS UPON THE EXPIRATION OF TEN DAYS AT A TEMPORARY DUTY STATION IF THE DELAY FOR THE PERFORMANCE OF DUTY EXCEEDS 10 DAYS, UNLESS A GREATER DELAY IS WARRANTED BY ONE OR MORE OF THE CONDITIONS SPECIFIED IN PARAGRAPH 2 19, AND TRAVEL STATUS DOES NOT AGAIN REVIVE UNTIL THE ACTUAL COMMENCEMENT OF AIR TRAVEL THEREAFTER.

PARAGRAPH 2-20. STRIKE OUT THE FIRST SENTENCE AND SUBSTITUTE THE FOLLOWING:

FOR TRAVEL BY AIR, REIMBURSEMENT WILL BE MADE FOR THE FOLLOWING EXPENSES INCURRED DURING AUTHORIZED STOPS NOT TO EXCEED 10 DAYS AND DURING NECESSARY DELAYS THEREIN, NOT TO EXCEED A TOTAL EXPENSE OF $8 PER DAY, EXCEPT WHERE A PER DIEM AT A RATE NOT TO EXCEED $6 IS AUTHORIZED:

PARAGRAPH 3-35. ADD THE FOLLOWING SENTENCE:

ENLISTED MEN MAY BE PAID A PER DIEM NOT TO EXCEED $6 IN LIEU OF ACTUAL EXPENSES WHENEVER SUCH PER DIEM IS SPECIFICALLY AUTHORIZED.

UNDER PARAGRAPH 2-18 (2) OF THE PROPOSED CHANGE STOPS, OTHER THAN STOPS DUE TO "NECESSARY AY," WHICH DO NOT EXCEED 10 DAYS, WILL NOT TERMINATE THE CONTINUITY OF THE JOURNEY.

THE ACT OF JULY 11, 1919, 41 STAT. 109, PROVIDED:

* * * THAT HEREAFTER ACTUAL AND NECESSARY EXPENSES ONLY, NOT TO EXCEED $8 PER DAY, SHALL BE PAID TO OFFICERS OF THE ARMY AND CONTRACT SURGEONS WHEN TRAVELING BY AIR ON DUTY WITHOUT TROOPS, UNDER COMPETENT ORDERS: * * *

THIS ACT, WHICH IS SPECIFICALLY REPEALED BY THE PRESENT LAW, IS NOT GREATLY DIFFERENT FROM THE PRESENT LAW EXCEPT AS TO THE PROVISION FOR REGULATIONS BY THE HEADS OF DEPARTMENTS AND THE PROVISION FOR A PER DIEM ALLOWANCE OF $6 IN LIEU OF ACTUAL EXPENSES NOT EXCEEDING $8 PER DAY. THE FORMER ACT WAS CONSTRUED FROM ITS ENACTMENT AS BEING APPLICABLE ONLY TO A "CONTINUOUS" JOURNEY BY AIR. IT WAS HELD THEREUNDER THAT A DELAY IN EXCESS OF 72 HOURS, EXCEPT FOR CAUSES DUE TO THE MODE OF TRAVEL, TERMINATED THE JOURNEY, AND TRAVEL THEREAFTER BY AIR WAS NOT CONTINUOUS WITH THE TRAVEL PRIOR TO THE DELAY. 2 COMP. GEN. 287, AND EXECUTIVE ORDER OF MARCH 10, 1927, ISSUED UNDER THE PROVISIONS OF SECTION 20 OF THE ACT OF JUNE 10, 1922, 42 STAT. 632, AS AMENDED BY THE ACT OF JULY 2, 1926, 44 STAT. 782. WHILE, THEREFORE, THE PRESENT ACT GIVES AUTHORITY TO THE HEADS OF THE DEPARTMENTS IN THE MATTER OF PRESCRIBING REGULATIONS AND IS IN THIS RESPECT DIFFERENT FROM SECTION 20 OF THE ACT OF JUNE 10, 1922, UNDER WHICH THE ACT OF JULY 11, 1919, WAS EXTENDED TO SERVICES OTHER THAN THE ARMY, BASICALLY THE TRAVEL CONTEMPLATED IS THE SAME AS THAT PROVIDED FOR BY THE FORMER LAW AND MUST BE HELD TO PROVIDE ONLY FOR EXPENSES AS THEREIN AUTHORIZED FOR TRAVEL ON A CONTINUOUS JOURNEY BY AIR. WHAT IS A CONTINUOUS JOURNEY BY AIR CAN NOT BE FIXED ARBITRARILY FOR ALL CASES AND EXPERIENCE UNDER THE FORMER LAW WITH THE LIMIT SUGGESTED BY THE WAR DEPARTMENT, 2 COMP. GEN. 287, 289, HAS SHOWN THAT ALTHOUGH SUCH A LIMIT IS A PROPER INTERPRETATION OF THE LAW WITH RESPECT PERHAPS TO 95 PERCENT OF AIR TRAVEL, EXCEPTIONAL CASES HAVE ARISEN WHERE THE TRAVEL BY AIR IS FROM THE CHARACTER OF THE DUTIES ENJOINED EN ROUTE CONTINUOUS, NOTWITHSTANDING SOME DELAY EN ROUTE IN EXCESS OF 72 HOURS MAY BE NECESSARY. IN VIEW OF THE PRIOR LEGISLATION AND THE CONTINUOUS PRACTICE AND INTERPRETATION THEREUNDER, THIS LIMITATION OF 72 HOURS MUST BE ACCEPTED AS THE NORMAL SITUATION, BUT IT MAY BE DETERMINED IN ADVANCE THAT A CONTINUOUS JOURNEY MAY REQUIRE DELAY (OTHER THAN DUE TO THE MODE OF TRAVEL) IN EXCESS OF SUCH A LIMITATION, AND WHERE ORDERS FOR THE TRAVEL ANTICIPATE AND PROVIDE FOR SUCH ADDITIONAL DELAY, NOT EXCEEDING TEN DAYS AT ONE PLACE, THERE IS PERCEIVED NO OBJECTION TO SO PROVIDING IN THE REGULATIONS.

YOU ARE ACCORDINGLY ADVISED THAT NO OBJECTION IS PERCEIVED TO THE PUBLICATION OF THE REVISED REGULATIONS IF THAT PART OF PARAGRAPH 2-18 (2), READING "PROVIDED THAT ANY STOP EXCEPT THAT DUE TO NECESSARY DELAYS (SEE PAR. 2-19) IN ANY ONE LOCALITY DOES NOT EXCEED 10 DAYS" IS CHANGED TO READ ,PROVIDED THAT ANY STOP EXCEPT THAT DUE TO NECESSARY DELAYS (SEE PAR, 2- 19) IN ANY ONE LOCALITY DOES NOT EXCEED 72 HOURS: PROVIDED FURTHER, THAT WHERE IT HAS BEEN DETERMINED IN ADVANCE BY THE OFFICER ISSUING THE ORDER AND HE HAS SO STATED IN THE ORDER, THAT THE DUTIES ASSIGNED EN ROUTE ARE EXCEPTIONAL AND WILL PROBABLY REQUIRE MORE THAN 72 HOURS FOR THEIR PERFORMANCE, A DELAY OF 10 DAYS IN A CONTINUOUS JOURNEY BY AIR MAY BE AUTHORIZED.' THE PROPOSED PARAGRAPH 2-18 (3) CHANGES EXISTING DECISIONS. IT SHOULD BE CHANGED TO READ AS FOLLOWS:

(3) TERMINATION OF TRAVEL STATUS.--- TRAVEL STATUS ENDS UPON ARRIVAL AT A TEMPORARY DUTY STATION IF THE DELAY FOR THE PERFORMANCE OF DUTY EXCEEDS 72 HOURS OR EXCEEDS A GREATER DELAY FOR THE PERFORMANCE OF DUTY WHEN AUTHORIZED IN THE ORDERS AS PROVIDED IN PARAGRAPH 2-18 (2) ABOVE; A TRAVEL STATUS SO TERMINATED DOES NOT AGAIN REVIVE UNTIL THE ACTUAL COMMENCEMENT OF TRAVEL THEREAFTER.