A-59340, JANUARY 14, 1935, 14 COMP. GEN. 536

A-59340: Jan 14, 1935

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TRAVELING EXPENSES - USE OF AN AIRPLANE AS A MEANS OF TRANSPORTATION AN ARMY OFFICER ORDERED TO USE AN AIRPLANE AS A MEANS OF TRANSPORTATION TO AND FROM THE PLACE WHERE HE WAS ASSIGNED TO TEMPORARY DUTY AS INSTRUCTOR AT A RESERVE OFFICERS' TRAINING CAMP FOR A PERIOD OF APPROXIMATELY FIFTEEN DAYS IS ENTITLED TO THE AUTHORIZED PER DIEM OF $2 FOR SUCH PERIOD OF TEMPORARY DUTY. THE PRINCIPLE OF WHICH DECISION IS INVOLVED IN CERTAIN PAYMENTS PROPOSED TO BE MADE UNDER MY AUTHORITY. THE FACTS UPON WHICH THIS REQUEST IS BASED MAY BE STATED AS FOLLOWS: BY OPERATIONS ORDERS NO. 146. WAS ORDERED FROM THE FIELD ABOVE INDICATED TO PEARSON FIELD. HE WAS DIRECTED TO MAKE THE JOURNEY. - WHICH I CONSIDER TO HAVE BEEN ERRONEOUS.

A-59340, JANUARY 14, 1935, 14 COMP. GEN. 536

TRAVELING EXPENSES - USE OF AN AIRPLANE AS A MEANS OF TRANSPORTATION AN ARMY OFFICER ORDERED TO USE AN AIRPLANE AS A MEANS OF TRANSPORTATION TO AND FROM THE PLACE WHERE HE WAS ASSIGNED TO TEMPORARY DUTY AS INSTRUCTOR AT A RESERVE OFFICERS' TRAINING CAMP FOR A PERIOD OF APPROXIMATELY FIFTEEN DAYS IS ENTITLED TO THE AUTHORIZED PER DIEM OF $2 FOR SUCH PERIOD OF TEMPORARY DUTY.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF WAR, JANUARY 14, 1935:

THERE HAS BEEN RECEIVED YOUR LETTER OF DECEMBER 17, 1934, AS FOLLOWS:

UNDER AUTHORITY OF THE ACT OF JULY 31, 1894 (28 STAT. 208), AND FOR REASONS HEREINAFTER STATED, I REQUEST THAT YOU RECONSIDER YOUR DECISION, A -16049, OCTOBER 19, 1926, IN A CERTAIN PARTICULAR, THE PRINCIPLE OF WHICH DECISION IS INVOLVED IN CERTAIN PAYMENTS PROPOSED TO BE MADE UNDER MY AUTHORITY. THE FACTS UPON WHICH THIS REQUEST IS BASED MAY BE STATED AS FOLLOWS:

BY OPERATIONS ORDERS NO. 146, HEADQUARTERS, CRISSY FIELD, 1ST LIEUTENANT GEORGE E. HENRY, A.C., U.S.A., WAS ORDERED FROM THE FIELD ABOVE INDICATED TO PEARSON FIELD, VANCOUVER BARRACKS, WASHINGTON, FOR TEMPORARY DUTY AS AN INSTRUCTOR AT A RESERVE OFFICER'S TRAINING CAMP TO BE HELD AT THE STATION LAST MENTIONED. HE WAS DIRECTED TO MAKE THE JOURNEY, BOTH WAYS, BY AIR; BUT, APPARENTLY IN THE BELIEF--- WHICH I CONSIDER TO HAVE BEEN ERRONEOUS-- - THAT THE DECISION OF YOUR OFFICE, A 32204 OF OCTOBER 29, 1931, WAS APPLICABLE IN THE CASE OF LIEUTENANT HENRY AND PROHIBITED THE PAYMENT TO HIM OF A PER DIEM WHILE SERVING AS AN INSTRUCTOR AT THE TRAINING CAMP, NO PROVISION WAS MADE IN HIS TRAVEL ORDERS FOR A PER DIEM, AS AUTHORIZED BY PARAGRAPH 13A, A.R. 35 4820, AND WAR DEPARTMENT CIRCULAR NO. 24 OF JUNE 26, 1934. OTHER OFFICERS WERE ORDERED TO PEARSON FIELD AS INSTRUCTORS IN THE SAME RESERVE OFFICERS' TRAINING CAMP, THEIR ORDERS DIRECTING TRAVEL BY RAIL AND AUTHORIZING A PER DIEM OF $2.00 WHILE ON DUTY AS INSTRUCTORS AT THE CAMP. AS THE TRAVEL PERFORMED BY LIEUTENANT HENRY AND HIS PERIOD OF TEMPORARY DUTY AT PEARSON FIELD PERTAINED SOLELY TO THE ORGANIZED RESERVES THERE WOULD APPEAR TO BE NO ROOM FOR DOUBT THAT THE ALLOWANCES PROVIDED BY LAW FOR TRAVEL IN CONNECTION WITH SUCH DUTY SHOULD GOVERN IN THIS CASE, RATHER THAN THE ALLOWANCES FOR AIR TRAVEL GENERALLY, THE TRAVEL BY AIR IN THIS CASE BEING MERELY INCIDENTAL AND SUBORDINATE TO THE PARAMOUNT DUTY OF INSTRUCTOR IN THE RESERVE OFFICERS' TRAINING CAMP, A DUTY WITH THE ORGANIZED RESERVES. SINCE LIEUTENANT HENRY WAS IN NO WAY AT FAULT IN THIS CASE AND HAD NO CHOICE BUT TO PROCEED BY THE MEANS OF TRAVEL DIRECTED IN HIS ORDERS, IT WOULD APPEAR TO BE JUST TO AMEND OR CORRECT OPERATIONS ORDERS NO. 146 UNDER WHICH HE PERFORMED THE TRAVEL SO AS TO INCLUDE AN AUTHORIZATION FOR A PER DIEM OF $2.00 FOR THE PERIOD OF HIS DUTY AT THE TRAINING CAMP INDICATED. HOWEVER, AMENDED ORDERS HAVE NOT BEEN ISSUED BECAUSE OF YOUR DECISION, A-16049, OF OCTOBER 19, 1926, ABOVE MENTIONED, WHICH ANNOUNCES THE PRINCIPLE THAT AMENDING ORDERS PURPORTING TO AUTHORIZE, RETROACTIVELY, THE PAYMENT OF A PER DIEM IN LIEU OF SUBSISTENCE ARE WITHOUT FORCE AND EFFECT TO ACCOMPLISH THE RESULT DESIRED.

IN VIEW OF THE FACTS AS I HAVE STATED THEM PERTAINING TO LIEUTENANT HENRY'S TRAVEL, I HAVE THEREFORE TO REQUEST THAT YOU RECONSIDER THE DECISION INDICATED WITH THE VIEW TO RESTRICTING THE OPERATION OF THE PRINCIPLE THEREIN ANNOUNCED SO AS TO EXCLUDE ITS APPLICATION TO THE CASE OF LIEUTENANT HENRY, TO THE END THAT THE PROPER AMENDATORY ORDERS MAY NOW BE ISSUED AUTHORIZING THE PAYMENT OF A PER DIEM OF $2.00 IN LIEU OF SUBSISTENCE IN HIS CASE FOR THE PERIOD DURING WHICH HE WAS SERVING AS AN INSTRUCTOR AT A RESERVE OFFICERS' TRAINING CAMP AT PEARSON FIELD.

YOU HAVE NOT TRANSMITTED A COPY OF THE ORDERS DIRECTING FIRST LIEUTENANT HENRY TO PROCEED BY AIR FROM CRISSY FIELD, PRESIDIO OF SAN FRANCISCO, CALIF., TO PEARSON FIELD, VANCOUVER BARRACKS, WASH., FOR TEMPORARY DUTY AS INSTRUCTOR IN CONNECTION WITH THE RESERVE OFFICERS' TRAINING CAMP, AND UPON COMPLETION TO RETURN BY AIR TO HIS PROPER STATION, NOR HAS THERE BEEN INDICATED "THE PERIOD DURING WHICH HE WAS SERVING AS AN INSTRUCTOR AT THE RESERVE OFFICERS' TRAINING CAMP AT PEARSON FIELD.' IT WOULD APPEAR FROM YOUR SUBMISSION, HOWEVER, THAT THE USE OF THE AIRPLANE WAS AUTHORIZED MERELY AS THE MODE OF TRANSPORTATION TO AND FROM THE TRAINING CAMP, AND THAT HIS TEMPORARY DUTY AS INSTRUCTOR AT THE CAMP WAS NOT DIFFERENT FROM THE DUTIES ASSIGNED OTHER OFFICERS ORDERED TO TRAVEL BY RAIL TO PEARSON FIELD AS INSTRUCTORS IN THE SAME RESERVE OFFICERS' TRAINING CAMP, AND WHOSE ORDERS, UNDER INSTRUCTIONS FROM THE WAR DEPARTMENT, AUTHORIZED THE PAYMENT OF A PER DIEM OF $2 FOR THE PERIOD OF THEIR TEMPORARY DUTY AT THE CAMP. YOU REQUEST DECISION WHETHER UNDER THESE CIRCUMSTANCES YOU ARE AUTHORIZED AT THIS TIME TO DIRECT PAYMENT OF A PER DIEM OF $2 TO LIEUTENANT HENRY FOR THE PERIOD HE SERVED AS INSTRUCTOR AT THE RESERVE OFFICERS' TRAINING CAMP AT PEARSON FIELD.

THE ACT OF MARCH 2, 1931, 46 STAT. 1461, AUTHORIZING PAYMENT OF ACTUAL AND NECESSARY TRAVEL EXPENSES IN LIEU OF MILEAGE OR OTHER TRAVEL ALLOWANCES, UNDER REGULATIONS TO BE PRESCRIBED BY THE HEADS OF THE DEPARTMENTS CONCERNED, IS CONTROLLING IN THE CASE OF TRAVEL BY AIR, A- 39204, OCTOBER 29, 1931, AND AUTHORIZED REIMBURSEMENT ONLY FOR TRAVEL ON A CONTINUOUS JOURNEY BY AIR. 11 COMP. GEN. 437. THE PERIOD OF TEMPORARY DUTY AS INSTRUCTOR TO WHICH LIEUTENANT HENRY WAS ASSIGNED AT PEARSON FIELD IS NOT SHOWN, BUT IT IS ASSUMED TO HAVE BEEN FOR THE USUAL TRAINING PERIOD OF APPROXIMATELY 15 DAYS, AND UNDER ARMY REGULATIONS IN EFFECT AT THAT TIME THE AIR TRAVEL STATUS TERMINATED UPON ARRIVAL AT THE CAMP, AND DID NOT AGAIN BECOME EFFECTIVE UNTIL HIS ACTUAL DEPARTURE FROM THE CAMP. BUT YOU STATE THAT THE PURPOSE OF THE TRAVEL WAS TO ASSIGN HIM TO TEMPORARY DUTY AS AN INSTRUCTOR AT THE RESERVE OFFICERS' TRAINING CAMP.

THE ACT OF APRIL 26, 1934, 48 STAT. 634, MAKING APPROPRIATIONS FOR THE WAR DEPARTMENT, UNDER THE HEADING "ORGANIZED RESERVES" PROVIDES:

* * * FOR THE ACTUAL AND NECESSARY EXPENSES, OR PER DIEM IN LIEU THEREOF, AT RATES AUTHORIZED BY LAW INCURRED BY OFFICERS AND ENLISTED MEN OF THE REGULAR ARMY TRAVELING ON DUTY IN CONNECTION WITH THE ORGANIZED RESERVES;

AND SECTION III, CIRCULAR NO. 23, WAR DEPARTMENT, DATED JUNE 15, 1934, AUTHORIZED A PER DIEM OF $2 TO OFFICERS OF THE REGULAR ARMY ON DUTY IN CONNECTION WITH ENCAMPMENTS OF THE ORGANIZED RESERVES EFFECTIVE JULY 1, 1934.

THE USE OF AN AIRPLANE AS A MEANS OF TRANSPORTATION OF AN OFFICER ASSIGNED TO TEMPORARY DUTY AWAY FROM HIS PERMANENT STATION DOES NOT NECESSARILY CONTROL HIS RIGHT TO REIMBURSEMENT OF EXPENSES DURING THE ENTIRE PERIOD OF HIS ABSENCE FROM PERMANENT STATION IF THE TRAVEL OTHERWISE (AS, FOR EXAMPLE TRAVEL IN CONNECTION WITH THE ORGANIZED RESERVES) PERMITS REIMBURSEMENT OF EXPENSES OR THE PAYMENT OF APER DIEM IN LIEU OF SUBSISTENCE, WHILE IN THE PERFORMANCE OF ACTUAL TEMPORARY DUTY WHERE THE ORDERS CLEARLY SHOW THAT THE AIRPLANE WAS USED MERELY AS A MEANS OF TRANSPORTATION TO ACCOMPLISH THE PRIMARY DUTY CLEARLY ASSIGNED BY THE ORDER. SEE A-45678 NOVEMBER 26, 1932, TO MAJ. E. C. MORTON, CASE OF LIEUTENANT HORN.

WHILE LIEUTENANT HENRY WAS NOT IN AN AIR-TRAVEL STATUS AFTER HIS ARRIVAL AT THE ENCAMPMENT OF THE ORGANIZED RESERVES, IT WOULD APPEAR THAT UNDER THE INSTRUCTIONS OF THE WAR DEPARTMENT, HE WAS IN A CONTINUOUS STATUS OF TRAVEL ON DUTY AS AN INSTRUCTOR AT THE TRAINING CAMP. WHILE THE RECORD HAS BEEN MADE AND MAY NOT BE ALTERED BY ANY ADMINISTRATIVE ORDER NOW ISSUED, INASMUCH AS YOU NOW ADVISE A PER DIEM OF $2, AS PERMITTED BY REGULATION, WAS NOT PROVIDED FOR IN THE TRAVEL ORDER BECAUSE OF MISUNDERSTANDING OF THE APPLICABILITY OF THE DECISION OF THIS OFFICE DATED OCTOBER 29, 1931 (A-39204), ASSUMING MONEYS ARE AVAILABLE FOR SUCH USE, THIS DECISION MAY BE REGARDED AS AUTHORITY FOR PAYMENT TO LIEUTENANT HENRY OF A PER DIEM OF $2 WHILE HE WAS ON TEMPORARY DUTY AS AN INSTRUCTOR AT PEARSON FIELD.