A-55465, MAY 8, 1934, 13 COMP. GEN. 334

A-55465: May 8, 1934

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TRANSPORTATION - LAND-GRANT DEDUCTION - ENLISTED MEN ABSENT WITHOUT LEAVE WHERE AN ENLISTED MAN OF THE ARMY ABSENT WITHOUT LEAVE FROM HIS PROPER STATION IS FURNISHED TRANSPORTATION REQUESTS FOR TRANSPORTATION TO RETURN THERETO. THE ENLISTED MAN IS TRAVELING FOR HIS OWN PURPOSES AND UNDER THE OPINION OF THE SUPREME COURT IN UNITED STATES V. THE CARRIER IS ENTITLED TO PAYMENT FOR THE TRANSPORTATION WITHOUT LAND-GRANT DEDUCTION. WHERE AN ENLISTED MAN OF THE ARMY ABSENT WITHOUT LEAVE FROM HIS PROPER STATION REPORTS AT AN ARMY POST OTHER THAN HIS STATION OR IS APPREHENDED AND DELIVERED TO SUCH POST. IS THERE TRIED FOR HIS OFFENSE. THE MILITARY AUTHORITIES HAVE RESUMED CONTROL AND DIRECTION OF THE ENLISTED MAN AND HIS TRAVEL THEREAFTER IN OBEDIENCE TO ORDERS DIRECTING HIM TO PROCEED TO HIS FORMER STATION IS NOT FOR HIS OWN PURPOSES BUT FOR MILITARY PURPOSES AND THE GOVERNMENT IS ENTITLED TO LAND-GRANT DEDUCTION FOR TRANSPORTATION FURNISHED FOR SUCH ORDERED TRAVEL.

A-55465, MAY 8, 1934, 13 COMP. GEN. 334

TRANSPORTATION - LAND-GRANT DEDUCTION - ENLISTED MEN ABSENT WITHOUT LEAVE WHERE AN ENLISTED MAN OF THE ARMY ABSENT WITHOUT LEAVE FROM HIS PROPER STATION IS FURNISHED TRANSPORTATION REQUESTS FOR TRANSPORTATION TO RETURN THERETO, THE ENLISTED MAN IS TRAVELING FOR HIS OWN PURPOSES AND UNDER THE OPINION OF THE SUPREME COURT IN UNITED STATES V. UNION PACIFIC CO., 249 U.S. 354, THE CARRIER IS ENTITLED TO PAYMENT FOR THE TRANSPORTATION WITHOUT LAND-GRANT DEDUCTION. WHERE AN ENLISTED MAN OF THE ARMY ABSENT WITHOUT LEAVE FROM HIS PROPER STATION REPORTS AT AN ARMY POST OTHER THAN HIS STATION OR IS APPREHENDED AND DELIVERED TO SUCH POST, AND IS THERE TRIED FOR HIS OFFENSE, THE MILITARY AUTHORITIES HAVE RESUMED CONTROL AND DIRECTION OF THE ENLISTED MAN AND HIS TRAVEL THEREAFTER IN OBEDIENCE TO ORDERS DIRECTING HIM TO PROCEED TO HIS FORMER STATION IS NOT FOR HIS OWN PURPOSES BUT FOR MILITARY PURPOSES AND THE GOVERNMENT IS ENTITLED TO LAND-GRANT DEDUCTION FOR TRANSPORTATION FURNISHED FOR SUCH ORDERED TRAVEL. THE FACT THAT THE MAN MAY BE REQUIRED TO REIMBURSE THE GOVERNMENT FOR THE COST OF TRANSPORTATION HIS MISCONDUCT HAS CAUSED IT IS NOT A BASIS FOR RELIEVING THE RAILROAD COMPANY FROM FURNISHING TRANSPORTATION AT THE REDUCED RATE APPLICABLE FOR THE TRAVEL OF TROOPS OF THE UNITED STATES.

DECISION BY COMPTROLLER GENERAL MCCARL, MAY 8, 1934:

THERE IS FOR CONSIDERATION THE APPLICATION OF THE MISSOURI PACIFIC RAILROAD CO. FOR REVIEW OF SETTLEMENT CERTIFICATE NO. T-90053 (CLAIM 577129), COVERING ITS BILL NO. 6073 FOR TRANSPORTATION FURNISHED TWO ENLISTED MEN OF THE ARMY WHO WERE ABSENT FROM THEIR DUTY STATION WITHOUT LEAVE AND REPORTED AT JEFFERSON BARRACKS, MO. TRANSPORTATION WAS ISSUED ON TRANSPORTATION REQUESTS FROM JEFFERSON BARRACKS, MO., TO SAN ANTONIO, TEX.; THE COMPANY RENDERED ITS BILL IN THE AMOUNT OF $65.70, AND THE SETTLEMENT ALLOWED ITS CLAIM IN THE AMOUNT OF $54.02; THE DIFFERENCE REPRESENTING THE LAND-GRANT REDUCTION.

ON T/R WQ-877243, DATED NOVEMBER 9, 1932, SAMUEL W. SNYDER, PRIVATE, COMPANY L. TWENTY-THIRD INFANTRY, WAS FURNISHED FIRST-CLASS TICKET FROM JEFFERSON BARRACKS, MO., TO SAN ANTONIO, TEX., AND ON T/R WQ 877244, DATED NOVEMBER 15, 1932, PERCY L. BOGGS, PRIVATE, FORTY SEVENTH SCHOOL SQUADRON, A.C., WAS FURNISHED A FIRST-CLASS TICKET, JEFFERSON BARRACKS, MO., TO SAN ANTONIO, TEX. BOTH TRANSPORTATION REQUESTS BEAR THE FOLLOWING NOTATION:

AWOL NOT UNDER GUARD (NONMIL) AND

COMMANDING OFFICER NOTIFIED BY FINANCE OFFICER, WASHINGTON, D.C., OF AMOUNT TO BE CHARGED AGAINST SOLDIER.

THESE NOTATIONS WERE THE BASIS FOR THE RENDITION OF BILL AT FULL FIRST- CLASS FARE. IN CONNECTION WITH THE ISSUANCE OF THE TRANSPORTATION REQUESTS, IN EACH CASE, SPECIAL ORDERS DIRECTING THE TRAVEL OF THE ENLISTED MEN WERE ISSUED, THAT FOR SNYDER BEING IN THE FOLLOWING ERMS: SPECIAL ORDERS ( HEADQUARTERS, JEFFERSON BARRACKS, MISSOURI,

NUMBER 175 ( NOVEMBER 9, 1932.

EXTRACT

1. UNDER THE PROVISIONS OF PARAGRAPH 2A, AR 615-290, PRIVATE SAMUEL W. SNYDER, 6801077, COMPANY L, 23RD INFANTRY (AWOL FROM HIS PROPER STATION), WILL PROCEED WITHOUT DELAY TO FORT SAM HOUSTON, TEXAS, REPORTING UPON ARRIVAL TO HIS COMMANDING OFFICER FOR DUTY.

THE QUARTERMASTER CORPS WILL FURNISH THE NECESSARY TRANSPORTATION.

IT BEING IMPRACTICABLE FOR THE GOVERNMENT TO FURNISH COOKING FACILITIES FOR RATIONS, THE FINANCE DEPARTMENT WILL PAY IN ADVANCE THE MONETARY TRAVEL ALLOWANCES PRESCRIBED IN TABLE II, PARAGRAPH 2A, AR 35 4520, AT THE RATE OF $2.25 PER DAY FOR RATIONS FOR ONE MAN FOR ONE AND ONE-THIRD (1 1/3) DAYS.

THE TRAVEL DIRECTED IS NECESSARY IN THE MILITARY SERVICE AND PAYMENT WHEN MADE IS CHARGEABLE TO PROCUREMENT AUTHORITIES: QM 1606 P 54-0623 A 211-3 AND QM 6 P 3-0340 A 237-3.

THE ENTIRE COST OF TRANSPORTATION AND INCREASED COST OF SUBSISTENCE WILL BE CHARGED AGAINST THE ABOVE-NAMED SOLDIER ON THE NEXT PAY ROLL OF HIS ORGANIZATION IN ACCORDANCE WITH PARAGRAPH 20B, AR 30-290 AND 14C (1) AR 35 -4520.

BY ORDER OF LIEUTENANT COLONEL COTTON:

E. T. WHEATLEY,

CAPTAIN, 6TH INFANTRY, ADJUTANT.

THE ORDER ISSUED IN THE CASE OF BOGGS WAS IDENTICAL IN ITS TERMS. THESE ORDERS WERE NECESSARY TO AUTHORIZE THE ISSUANCE OF TRANSPORTATION REQUESTS AND TO AUTHORIZE THE FINANCE DEPARTMENT TO ADVANCE THE MONETARY TRAVEL ALLOWANCE TO THE ENLISTED MEN. BY FIRST INDORSEMENT DATED JANUARY 31, 1934, THE COMMANDING OFFICER, JEFFERSON BARRACKS, MO., REPORTED TO THIS OFFICE IN CONNECTION WITH THE ISSUANCE OF TRANSPORTATION IN THESE CASES AS FOLLOWS:

1. IN ACCORDANCE WITH REQUEST CONTAINED IN THE BASIC LETTER, THE FOLLOWING INFORMATION IS FURNISHED:

A. PRIVATE SAMUEL W. SNYDER, 6801077, COMPANY L, 23RD INFANTRY. THIS MAN MERELY REPORTED AT THIS STATION, ABSENT WITHOUT LEAVE FROM HIS PROPER STATION, AND REQUESTED RETURN TRANSPORTATION, WHICH WAS FURNISHED ON RECOMMENDATION OF HIS ORGANIZATION COMMANDER.

B. PRIVATE PERCY L. BOGGS, 6371272, 47TH SCHOOL SQUADRON, AIR CORPS. THIS MAN WAS TRIED AT THIS STATION CHARGED WITH DESERTION, FOUND GUILTY OF AWOL ONLY, AND WAS FURNISHED TRANSPORTATION TO HIS PROPER STATION UPON EXPIRATION OF THE SENTENCE IMPOSED. A COPY OF THE GENERAL COURT-MARTIAL ORDER IN THIS CASE IS INCLOSED.

THE GENERAL COURT-MARTIAL ORDER SHOWS THAT ON OCTOBER 3, 1932, BOGGS WAS FOUND GUILTY OF ABSENCE WITHOUT LEAVE, SENTENCED TO BE CONFINED AT HARD LABOR FOR 1 MONTH AND 12 DAYS AND TO FORFEIT $14 PER MONTH FOR A LIKE PERIOD. THE REVIEWING AUTHORITY, OCTOBER 24, 1932, PROMULGATED GENERAL COURT-MARTIAL ORDERS NOS. 263, APPROVING SO MUCH OF THE SENTENCE AS PROVIDED FOR CONFINEMENT AT HARD LABOR FOR 39 DAYS AND FORFEITURE OF $14 PER MONTH FOR A LIKE PERIOD AND DESIGNATED JEFFERSON BARRACKS, MO., AS THE PLACE FOR CONFINEMENT.

THE CASE OF BOGGS IS, THEREFORE, IDENTICAL WITH THE CASE OF MAYES, CONSIDERED IN DECISION TO MAJ. J. B. HARPER, F.D., UNITED STATES ARMY, MARCH 19, 1932, A-41152, IN WHICH IT WAS HELD THAT THE STATUS OF THE SOLDIER WAS SUCH AS TO ENTITLE THE GOVERNMENT TO REDUCTION FOR LAND GRANT FROM THE CHARGES FOR HIS TRANSPORTATION FROM PLACE OF RELEASE FROM CONFINEMENT TO HIS ASSIGNED DUTY POST. IT IS NOT CLEAR WHETHER THE REQUEST OF THE RAILROAD COMPANY FOR REVIEW OF THE SETTLEMENT IN THIS CASE IS INTENDED TO SECURE A RECONSIDERATION OF THAT DECISION, BUT AS THERE IS A DISTINCTION BETWEEN THE CASE OF SNYDER AND THAT OF BOGGS, THE MATTER WILL BE CONSIDERED DE NOVO.

BOTH SOLDIERS WERE ABSENT WITHOUT LEAVE, BUT THEY REMAINED SOLDIERS IN THE ARMY OF THE UNITED STATES NOTWITHSTANDING THE COMMISSION OF THE CRIME OF ABSENCE WITHOUT LEAVE DENOUNCED BY THE SIXTY-FIRST ARTICLE OF WAR. IN RE GRIMLEY, 137 U.S. 147, 152, THE COURT USED THE FOLLOWING LANGUAGE:

BY ENLISTMENT THE CITIZEN BECOMES A SOLDIER. HIS RELATIONS TO THE STATE AND THE PUBLIC ARE CHANGED. HE ACQUIRES A NEW STATUS, WITH CORRELATIVE RIGHTS AND DUTIES; AND ALTHOUGH HE MAY VIOLATE HIS CONTRACT OBLIGATIONS, HIS STATUS AS A SOLDIER IS UNCHANGED. * * *

BUT BEING IN THE ARMY ALONE IS NOT THE TEST WHETHER IN HIS TRAVELS THE SOLDIER IS WITHIN THE TERM "TROOPS" OF THE UNITED STATES. IN UNITED STATES V. UNION PACIFIC CO., 249 U.S. 354, THE COURT DETERMINED THAT DISCHARGED SOLDIERS, DISCHARGED MILITARY PRISONERS, REJECTED APPLICANTS FOR ENLISTMENT, AND ACCEPTED APPLICANTS FOR ENLISTMENT WERE NOT IN THE MILITARY SERVICE AND THEREFORE NOT TROOPS; THAT RETIRED ENLISTED MEN TRAVELING TO THEIR HOMES ON RETIRMENT ARE NOT TROOPS--- ,THEY TRAVEL FOR THEIR OWN PURPOSES"--- ALTHOUGH THE LAW CONSTITUTES THEM A PART OF THE REGULAR ARMY AND SUBJECTS THEM TO CALL FOR SERVICE, AND LASTLY---

THE FURLOUGHED SOLDIER IS, OF COURSE, A PART OF THE ARMY OR TROOPS OF THE UNITED STATES; BUT HIS TRANSPORTATION BACK TO THE PROPER STATION, IS NOT "TRANSPORTATION OF TROOPS" WITHIN THE MEANING OF THE LAND-GRANT ACTS. THE FURLOUGHED SOLDIER TRAVELS FOR HIS OWN PURPOSES. THE GOVERNMENT MERELY ADVANCES TO HIM THE COST OF TRANSPORTATION AND SUBSISTENCE WHILE ON FURLOUGH; AND DOES THIS, ONLY IF THE SOLDIER LACKS FUNDS TO BEAR THE EXPENSE HIMSELF. THE ADVANCE MUST BE REPAID. ARMY REGULATIONS, 1913, SEC. 110.

SO, ALTHOUGH SNYDER WAS IN THE ARMY, HE HAD TRAVELED FROM HIS POST OF DUTY AT HIS OWN EXPENSE AND IN VIOLATION OF THE TERMS OF HIS CONTRACT OF ENLISTMENT, HAD ABSENTED HIMSELF WITHOUT AUTHORITY OR HAD OVERSTAYED HIS FURLOUGH, AND IT WAS HIS DUTY TO RETURN TO HIS POST OF DUTY AT HIS OWN EXPENSE, AS MUCH SO AS IF HE HAD BEEN GRANTED A FURLOUGH AND TRANSPORTATION REQUEST HAD BEEN FURNISHED TO HIM FOR THE RETURN JOURNEY TO HIS POST OF DUTY. IN EITHER THE CASE OF FURLOUGH OR OF RETURN FROM ABSENCE WITHOUT LEAVE, THE ENLISTED MAN TRAVELS FOR HIS OWN PURPOSE AND EACH MUST PAY THE RATE OF TRANSPORTATION APPLICABLE TO THE PUBLIC GENERALLY IN THE ABSENCE OF A CONCESSION BY THE TRANSPORTATION COMPANIES BECAUSE OF THEIR STATUS.

IN THE CASE OF BOGGS, IT DOES NOT APPEAR WHETHER HE REPORTED AT JEFFERSON BARRACKS FOR TRANSPORTATION TO HIS POST OF DUTY OR WHETHER HE WAS APPREHENDED AND DELIVERED TO THAT STATION, BUT IN EITHER EVENT, UPON DETERMINATION BY THE MILITARY AUTHORITIES TO HOLD HIM FOR TRIAL AT THAT STATION, HIS SITUATION CHANGED. HE WAS NO LONGER AT LIBERTY TO TRAVEL OR MOVE EXCEPT AS THE ARMY AUTHORITIES DIRECTED HIM SO TO DO. HAVING ASSERTED CONTROL OVER HIM AND HAVING SUBJECTED HIM TO TRIAL FOR HIS OFFENSE, IF THEREAFTER HE WAS DIRECTED, REQUIRED, OR ORDERED TO TRAVEL, HE CLEARLY CAME WITHIN THE TERM "TROOPS" OF THE UNITED STATES THE SAME AS THOUGH HE HAD REPORTED TO JEFFERSON BARRACKS PURSUANT TO AN ORDER AND THEREAFTER HAD BEEN DIRECTED TO PROCEED ELSEWHERE. HOW, BY WHAT MEANS, OR FOR WHAT PURPOSE HE REACHED JEFFERSON BARRACKS IS UNIMPORTANT AND IMMATERIAL IN CONNECTION WITH HIS SUBSEQUENT TRANSPORTATION WHEN THE MILITARY AUTHORITIES TAKE CUSTODY OF HIM. IN SOUTHERN PACIFIC COMPANY V. THE UNITED STATES, 72 CT.CLS. 273, THE COURT OF CLAIMS DESCRIBED THE SITUATION OF THE SOLDIER IN SUCH A CASE AS FOLLOWS:

* * * OF COURSE, IN A STRICT SENSE IT MAY NOT BE SAID THAT A CONVICTED PRISONER OF THE ARMY EN ROUTE TO PRISON IS TRAVELING FOR HIS OWN PURPOSE. HE HAS NO CHOICE, AND THE ARMY AUTHORITIES ARE BUT DISCHARGING A DUTY IN RELATION TO HIS TRANSPORTATION. BEYOND DOUBT SUCH A SOLDIER IS A SOLDIER IN THE ARMY UNTIL BY PROPER MILITARY PROCEDURE HE IS SEPARATED THEREFROM. THE STATUTES FIX THE RIGHT TO LAND-GRANT DEDUCTIONS, AND IF WE ARE CORRECT IN OUR CONSTRUCTION OF THEM AS BETWEEN THE RAILROAD AND THE GOVERNMENT THE LATTER IS ENTITLED TO THEM WHEN THE TRANSPORTATION FALLS WITHIN THE LAND- GRANT ACTS, IRRESPECTIVE OF WHAT MAY TAKE PLACE BETWEEN THE SOLDIER AND THE GOVERNMENT. IF THE GOVERNMENT IMPOSES UPON THE SOLDIER AN ILLEGAL DEDUCTION FROM HIS PAY, THE RIGHT TO RECOVER IT IS OPEN TO THE SOLDIER. THE LAND-GRANT ACTS CONFERRED MUTUAL BENEFITS, AND IF THE TRANSPORTATION IS FURNISHED TO TROOPS OF THE UNITED STATES THE RIGHT TO THE DEDUCTION OBTAINS. THE EXCEPTIONS WHICH THE COURTS HAVE RECOGNIZED, THE CASES IN WHICH COMMERCIAL RATES HAVE BEEN ALLOWED, HAVE UNIFORMLY TURNED UPON WHETHER THE SOLDIER OR SOLDIERS WERE PART OF THE ARMY OF THE UNITED STATES AT THE TIME THE TRANSPORTATION WAS ACCOMPLISHED AND AT THE TIME TRAVELING UNDER PROPER ORDERS IN PURSUIT OF MILITARY AFFAIRS AND DUTIES. FINDING VI SHOWS THAT THE SOLDIERS TRANSPORTED WERE ADMITTEDLY IN THE ARMY, NAVY, OR MARINE CORPS; THAT THE GUARDS IN CUSTODY OF THEM WERE ENLISTED MEN OF THE ARMY, NAVY OR MARINE CORPS, TRAVELING TO DISCHARGE AN IMPERATIVE MILITARY DUTY, AND HENCE UNDER OUR FORMER DECISIONS TROOPS OF THE UNITED STATES. AS THIS COURT SAID IN THE CHICAGO, ROCK ISLAND AND PACIFIC RAILWAY COMPANY CASE, 58 C.CLS. 33, 36---

"WHETHER EXPENSE OF TRAVEL PERFORMED BY A GUARD AND HIS PRISONER IS OR IS NOT CHARGED AGAINST THE PRISONER AS A PART OF THE PENALTY INFLICTED UPON HIM OR OTHERWISE CANNOT OF ITSELF AFFECT THE STATUS OF THE GUARD OR IMPAIR THE RIGHTS OF THE GOVERNMENT AS BETWEEN IT AND THE CARRIER.'

IF ADMINISTRATIVELY IT IS DETERMINED THAT AN ENLISTED MAN IS INDEBTED TO THE UNITED STATES FOR THE COST OF THE TRANSPORTATION HIS OFFENSE HAS CAUSED, THAT IS NOT A MATTER OF CONCERN OR INTEREST TO THE TRANSPORTATION COMPANY; HE HAS TRAVELED PURSUANT TO ORDERS FROM ONE ARMY POST TO ANOTHER. WHETHER HE WAS TRAVELING WITH OR WITHOUT GUARDS OR AFTER SERVING A SENTENCE OF A FEW DAYS OR ONE OF OVER A YEAR, AND WHETHER AT HIS TRIAL HE WAS CONVICTED OR ACQUITTED DOES NOT ALTER THE FACT THAT HE IS TRAVELING IN OBEDIENCE TO ORDERS, FROM ONE ARMY POST TO ANOTHER, AND SUCH TRAVEL IS WITHIN THE TERM "TROOPS" OF THE UNITED STATES. IN SUCH CASES ISSUING OFFICERS SHOULD NOT, AS IN THIS CASE, ENDORSE ON THE TRANSPORTATION REQUEST THAT THE TRAVEL IS "NONMILITARY.'

ON REVIEW THE SETTLEMENT IS REVISED AND $5.84, THE DIFFERENCE BETWEEN THE FULL FIRST-CLASS FARE AND THE NET MILITARY FARE IN THE CASE OF SNYDER, IS CERTIFIED DUE THE CLAIMANT. THE SETTLEMENT AS TO BOGGS IS AFFIRMED.