A-5766, MARCH 31, 1925, 4 COMP. GEN. 821

A-5766: Mar 31, 1925

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IS NOT TRAVEL ON PUBLIC BUSINESS ENTITLING HIM TO PAYMENT OF MILEAGE. 1925: THERE IS BEFORE THIS OFFICE FOR CONSIDERATION THE QUESTION AS TO WHETHER H. IS ENTITLED TO CREDIT FOR $69.90. THE SAID PAYMENT WAS MADE UNDER THE PROVISIONS OF SECTION 12 OF THE ACT OF JUNE 10. FOR DEDUCTION TO BE MADE FROM MILEAGE ACCOUNTS WHEN TRANSPORTATION IS FURNISHED BY THE UNITED STATES. ARE HEREBY MADE APPLICABLE TO ALL THE SERVICES MENTIONED IN THE TITLE OF THIS ACT * * *. IT WAS PROVIDED THAT SO MUCH OF THE ACT OF JUNE 16. AS IS APPLICABLE TO OFFICERS OF THE NAVY SO ENGAGED. IS HEREBY REPEALED. 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 * * IT IS WELL ESTABLISHED THAT THE RIGHT OF AN OFFICER TO MILEAGE FOR TRAVEL PERFORMED UNDER ORDERS DEPENDS UPON HIS HAVING TRAVELED ON PUBLIC BUSINESS.

A-5766, MARCH 31, 1925, 4 COMP. GEN. 821

MILEAGE - MIDSHIPMEN OF THE NAVAL ACADEMY TRAVEL PERFORMED BY A MIDSHIPMAN OF THE NAVY UNDER ORDERS DIRECTING HIM TO PROCEED TO INDIANAPOLIS, IND., "FOR TEMPORARY DUTY IN CONNECTION WITH FINAL OLYMPIC TRYOUTS," ON COMPLETION OF WHICH TO RETURN TO THE NAVAL ACADEMY, IS NOT TRAVEL ON PUBLIC BUSINESS ENTITLING HIM TO PAYMENT OF MILEAGE.

DECISION BY COMPTROLLER GENERAL MCCARL, MARCH 31, 1925:

THERE IS BEFORE THIS OFFICE FOR CONSIDERATION THE QUESTION AS TO WHETHER H. B. RANSDELL, LIEUTENANT COMMANDER (S.C.), UNITED STATES NAVY, IS ENTITLED TO CREDIT FOR $69.90, THE AMOUNT OF VOUCHER NO. 3, FOURTH QUARTER, 1924, COVERING PAYMENT TO R. H. HOLLENBECK, MIDSHIPMAN, UNITED STATES NAVY, OF MILEAGE AT THE RATE OF 8 CENTS LESS 3 CENTS PER MILE FOR TRANSPORTATION FURNISHED FOR TRAVEL PERFORMED FROM ANNAPOLIS, MD., TO INDIANAPOLIS, IND., AND RETURN, UNDER ORDER DATED MAY 26, 1924, AS FOLLOWS:

FROM: BUREAU OF NAVIGATION

TO: MIDSHIPMAN R. H. HOLLENBECK, 3D CLASS.

VIA: SUPERINTENDENT, U.S. NAVAL ACADEMY, ANNAPOLIS, MD.

SUBJECT: TEMPORARY DUTY.

1. PROCEED TO INDIANAPOLIS, IND., ON 2 JUNE, 1924, FOR TEMPORARY DUTY IN CONNECTION WITH FINAL OLYMPIC TRYOUTS, ON COMPLETION OF WHICH RETURN TO NAVAL ACADEMY, ANNAPOLIS, MD.

(S) A. G. LONG.

THE INDORSEMENTS THEREON SHOW THAT MIDSHIPMAN HOLLENBECK LEFT ANNAPOLIS JUNE 2, 1924, ARRIVED INDIANAPOLIS JUNE 3, 1924; LEFT INDIANAPOLIS JUNE 8, 1924, AND ARRIVED ANNAPOLIS JUNE 9, 1924.

THE SAID PAYMENT WAS MADE UNDER THE PROVISIONS OF SECTION 12 OF THE ACT OF JUNE 10, 1922, 42 STAT. 631, PROVIDING:

THAT OFFICERS OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT, WHEN TRAVELING UNDER COMPETENT ORDERS WITHOUT TROOPS, SHALL RECEIVE A MILEAGE ALLOWANCE AT THE RATE OF 8 CENTS PER MILE, DISTANCE TO BE COMPUTED BY THE SHORTEST USUALLY TRAVELED ROUTE AND EXISTING LAWS PROVIDING FOR THE ISSUE OF TRANSPORTATION REQUESTS TO OFFICERS OF THE ARMY TRAVELING UNDER COMPETENT ORDERS, AND FOR DEDUCTION TO BE MADE FROM MILEAGE ACCOUNTS WHEN TRANSPORTATION IS FURNISHED BY THE UNITED STATES, ARE HEREBY MADE APPLICABLE TO ALL THE SERVICES MENTIONED IN THE TITLE OF THIS ACT * * *.

BY THE ACT OF JUNE 30, 1876, 19 STAT. 65, IT WAS PROVIDED THAT SO MUCH OF THE ACT OF JUNE 16, 1874, 18 STAT. 72,"AS PROVIDES THAT ONLY ACTUAL TRAVELING EXPENSES SHALL BE ALLOWED TO ANY PERSON HOLDING EMPLOYMENT OR APPOINTMENT UNDER THE UNITED STATES WHILE ENGAGED ON PUBLIC BUSINESS, AS IS APPLICABLE TO OFFICERS OF THE NAVY SO ENGAGED, IS HEREBY REPEALED; AND THE SUM OF 8 CENTS PER MILE SHALL BE ALLOWED SUCH OFFICERS WHILE SO ENGAGED, IN LIEU OF THEIR ACTUAL EXPENSES.'

THE ACT OF MARCH 3, 1901, 31 STAT. 1029, WHICH PRIOR TO THE ACT OF JUNE 10, 1922, GOVERNED THE RIGHT OF NAVAL OFFICERS TO MILEAGE, 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 * *

IT IS WELL ESTABLISHED THAT THE RIGHT OF AN OFFICER TO MILEAGE FOR TRAVEL PERFORMED UNDER ORDERS DEPENDS UPON HIS HAVING TRAVELED ON PUBLIC BUSINESS. BARKER V. UNITED STATES, 19 CT.CLS. 288; PERRIMOND V. UNITED STATES, ID. 509; MCCAULEY V. UNITED STATES, 50 ID. 105; 16 COMP. DEC. 611; 17 ID. 252. HENCE THE QUESTION FOR DECISION IN THIS CASE IS WHETHER THE TRAVEL IN QUESTION WAS TRAVEL ON PUBLIC BUSINESS.

THE ACT OF MARCH 3, 1883, 22 STAT. 481, AS AMENDED BY THE ACT OF JULY 19, 1892, 27 STAT. 245, PROVIDES:

THAT HEREAFTER NO OFFICER OF THE NAVY SHALL BE EMPLOYED ON ANY SHORE DUTY, EXCEPT IN CASES SPECIALLY PROVIDED BY LAW, UNLESS THE SECRETARY OF THE NAVY SHALL DETERMINE THAT THE EMPLOYMENT OF AN OFFICER ON SUCH DUTY IS REQUIRED BY THE PUBLIC INTERESTS, AND HE SHALL SO STATE IN THE ORDER OF EMPLOYMENT.

THE SAID ORDER DOES NOT CONTAIN THE STATEMENT REQUIRED BY THE ABOVE ACT AS AMENDED. APPARENTLY THE DUTY ASSIGNED THEREIN WAS EITHER NOT DETERMINED BY THE SECRETARY OF THE NAVY AS BEING REQUIRED BY THE PUBLIC INTEREST OR A MIDSHIPMAN WAS NOT CONSIDERED AN OFFICER WITHIN THE MEANING OF THE ACT.

IT IS UNDERSTOOD THAT "DUTY IN CONNECTION WITH OLYMPIC TRYOUTS" HAS REFERENCE TO TESTS BEING MADE TO DETERMINE THE QUALIFICATIONS OR ELIGIBILITY OF CANDIDATES TO ENTER AS CONTESTANTS IN THE OLYMPIC GAMES HELD IN PARIS IN JUNE OR JULY, 1924.

THE AUTHORITIES OF THE NAVAL ACADEMY AND THE MILITARY ACADEMY AS WELL AS CIVILIAN INSTITUTIONS OF LEARNING ENCOURAGE THEIR STUDENTS TO PARTICIPATE IN ATHLETIC GAMES AND CONTESTS AS AN AID TO PHYSICAL DEVELOPMENT AND MAINTENANCE OF HEALTH, AND ALSO, IN ORDER TO CREATE AND MAINTAIN A GREATER INTEREST IN ATHLETICS, PERMIT AND ENCOURAGE SUCH CONTESTS WITH INDIVIDUALS AND TEAMS FROM OTHER EDUCATIONAL INSTITUTIONS. IT IS UNDERSTOOD THAT THE OLYMPIC GAMES ARE CONDUCTED POSSIBLY ON A LARGER SCALE AND ARE INTERNATIONAL IN CHARACTER, HAVING CONTESTANTS ENTERED IN THE DIFFERENT ATHLETIC CONTESTS FROM SEVERAL COUNTRIES.

NO SPECIFIC APPROPRIATION HAS BEEN MADE FOR THE PAYMENT OF THE TRAVELING EXPENSES, EITHER IN THE FORM OF MILEAGE OR ACTUAL EXPENSES, FOR TRAVEL OF THE TEAMS OF THE SERVICE SCHOOLS TO ENGAGE IN ATHLETIC GAMES WITH EACH OTHER OR WITH TEAMS OF OTHER COLLEGES OR UNIVERSITIES, OR FOR TRAVEL OF THE STUDENTS OF THE SERVICE SCHOOLS IN CONNECTION WITH THE OLYMPIC TRYOUTS OR GAMES.

IT HAS NEVER BEEN CONSIDERED THAT THE TRAVEL OF THE TEAMS OF THE NAVAL AND MILITARY ACADEMIES IN CONNECTION WITH THE GAMES AND CONTESTS HELD WITH EACH OTHER OR WITH OTHER COLLEGES AND UNIVERSITIES WAS REQUIRED BY THE PUBLIC INTERESTS AND IT HAS NOT BEEN THE PRACTICE OF THE NAVY OR WAR DEPARTMENT TO ISSUE ORDERS DIRECTING SUCH TRAVEL. I SEE NO REASON WHY TRAVEL IN CONNECTION WITH THE "OLYMPIC TRYOUTS" HAS A DIFFERENT STATUS IN THIS RESPECT. THE FACT THAT THE OLYMPIC GAMES ARE INTERNATIONAL IN CHARACTER AND THAT A CANDIDATE FOR CONTESTANT IN SUCH GAMES IS A MIDSHIPMAN DOES NOT MAKE HIS TRAVEL IN CONNECTION WITH THE "OLYMPIC TRYOUTS" AS ON PUBLIC BUSINESS.

AS IT DOES NOT APPEAR THAT THE TRAVEL IN QUESTION WAS ON PUBLIC BUSINESS IT IS CONCLUDED THAT LIEUTENANT COMMANDER RANSDELL IS NOT ENTITLED TO CREDIT FOR THE PAYMENT IN QUESTION OR FOR OTHER SIMILAR PAYMENTS.

IT HAS BEEN THE PRACTICE TO ALLOW NAVAL CADETS AND MIDSHIPMEN MILEAGE FOR TRAVEL UNDER THE SAME CONDITIONS AS OTHER OFFICERS OF THE NAVY.

DIGEST

FITZPATRICK WAS A NAVAL CADET AND HAD BEEN ORDERED TO TRAVEL FROM NEW ORLEANS, LA., TO PHILADELPHIA, PA. THE ACCOUNTING OFFICERS ALLOWED MILEAGE ONLY FROM ANNAPOLIS, MD., TO PHILADELPHIA, PA. THE COURT ALLOWED MILEAGE FOR THE ENTIRE DISTANCE LESS THE AMOUNT ALREADY RECEIVED. THE QUESTION, HOWEVER, AS TO WHETHER A NAVAL CADET WAS AN OFFICER OF THE NAVY WITHIN THE MEANING OF THE MILEAGE LAWS WAS NOT RAISED OR DISCUSSED, THE COURT APPARENTLY ASSUMING THAT HE WAS SUCH AN OFFICER.

IN WELLER V. UNITED STATES, 41 CT.CLS. 324, IT WAS HELD THAT A MIDSHIPMAN WAS NOT AN OFFICER WITHIN THE MEANING OF SECTIONS 1229 AND 1624, REVISED STATUTES, PROHIBITING THE DISMISSAL IN TIME OF PEACE OF AN OFFICER IN THE MILITARY OR NAVAL SERVICE EXCEPT IN PURSUANCE OF THE SENTENCE OF A GENERAL COURT-MARTIAL OR IN MITIGATION THEREOF. AFTER REVIEWING THE STATUTORY HISTORY OF MIDSHIPMEN AND NAVAL CADETS AND OF THE NAVAL ACADEMY AND THE SIMILARITY AND DIFFERENCE OF NAVAL CADETS, MIDSHIPMEN, AND CADETS IN THE MILITARY ACADEMY, AND DECISIONS CONSTRUING THE TERM ,OFFICER," THE COURT STATED:

IT WILL THUS BE SEEN THAT OUR NAVAL ACADEMY IS A GROWTH AND AN EVOLUTION, AND IN THAT RESPECT SOMEWHAT DIFFERENT FROM THE MILITARY ACADEMY.

ITS FIRST PUPILS WERE OFFICERS ALREADY IN THE NAVAL SERVICE, HOLDING THEIR WARRANTS FROM THE PRESIDENT. THEY HAVE GRADUALLY CEASED TO BE MIDSHIPMEN IN THE ACTIVE SERVICE BELONGING TO THE LINE, AND ARE NOW NAVAL STUDENTS, THE SAME AS CADETS AT THE MILITARY ACADEMY ARE MILITARY STUDENTS.

WE KNOW OF NO REASON WHAT A MIDSHIPMAN AT THE NAVAL ACADEMY AT THE PRESENT TIME SHOULD HAVE PRIVILEGES AND RIGHTS DENIED TO A CADET AT THE MILITARY ACADEMY, AND WE DO NOT BELIEVE THE LAW, PROPERLY CONSTRUED, MAKES ANY SUCH DISTINCTION. NEITHER OF THEM HOLDS EITHER A COMMISSION OR A WARRANT. BOTH ARE APPOINTED BY THE PRESIDENT; THOSE APPOINTED AT THE MILITARY ACADEMY ARE CALLED CADETS AND THOSE AT THE NAVAL ACADEMY ARE NOW CALLED MIDSHIPMEN.

THERE MAY HAVE BEEN A TIME IN THE HISTORY OF THE GOVERNMENT AND THE NAVAL ACADEMY WHEN A MIDSHIPMAN SHOULD HAVE BEEN REGARDED AS AN OFFICER IN THE NAVY WITHIN THE MEANING OF SECTION 1229, AND WHEN THE STUDENTS AT THE NAVAL ACADEMY WERE ON A DIFFERENT FOOTING IN THAT REGARD THAN THE STUDENTS AT THE MILITARY ACADEMY, BUT THE REASON FOR SO HOLDING NO LONGER EXISTS. THE ACT OF MARCH 3, 1883 (SUPRA), CHANGED THE TITLE OF MIDSHIPMEN IN THE NAVY TO ENSIGN, AND THE ACT OF MARCH 3, 1899, LEAVES MIDSHIPMEN OUT OF THE LIST OF LINE OFFICERS OF THE NAVY, SO THAT NOW THERE ARE NO MIDSHIPMEN EXCEPT THOSE APPOINTED TO THE NAVAL ACADEMY AND UNDERGOING INSTRUCTION THEREIN OR IN CONNECTION THEREWITH.

CADETS AT THE MILITARY ACADEMY HAVE NEVER BEEN CONSIDERED ENTITLED TO MILEAGE UNDER LAWS PROVIDING MILEAGE FOR OFFICERS OF THE ARMY.

THERE HAS BEEN NO AUTHORITATIVE DECISION HOLDING THAT A MIDSHIPMAN WAS AN OFFICER WITHIN THE MEANING OF THE ACT OF MARCH 3, 1901, SUPRA, PROVIDING MILEAGE FOR OFFICERS IN THE NAVY, AND THE QUESTION IS A DOUBTFUL ONE. THERE IS NOTHING IN THE LANGUAGE OF SECTION 12 OF THE ACT OF JUNE 10, 1922, THAT INDICATES THAT THE WORD "OFFICERS" AS APPLYING TO NAVAL OFFICERS WAS USED IN ANY DIFFERENT SENSE THAN IN THE SAID ACT OF MARCH 3, 1901.

IT IS NOT NECESSARY IN THIS CASE, HOWEVER, TO DECIDE WHETHER A MIDSHIPMAN IS AN OFFICER IN THE NAVY WITHIN THE MEANING OF THE SAID ACT OF JUNE 10, 1922.