A-626, OCTOBER 16, 1925, 5 COMP. GEN. 265

A-626: Oct 16, 1925

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TRAVEL ALLOWANCE - ENLISTED MAN OF NAVY DISCHARGED FOR PERSONAL CONVENIENCE AN ENLISTED MAN OF THE NAVY DISCHARGED AT HIS OWN REQUEST IS DISCHARGED BY WAY OF FAVOR AND FOR HIS PERSONAL CONVENIENCE AND IS NOT ENTITLED TO THE TRAVEL ALLOWANCE PROVIDED BY THE ACT OF FEBRUARY 28. " AND THAT THE ENLISTED MAN WILL BE ENTITLED TO TRAVEL ALLOWANCE. THE ALLOWANCE BEING PAYABLE ONLY WHEN THE CASE IS OTHERWISE WITHIN THE PROVISIONS OF THE ACT OF FEBRUARY 28. THE MAN IS NOT DISCHARGED BY WAY OF FAVOR AND FOR HIS PERSONAL CONVENIENCE. IN WHICH YOU HAVE SUSTAINED THE PREVIOUS DECISIONS. YOUR LATEST REVIEW WAS OF DATE MAY 5. LIEUTENANT NEY (SUPPLY CORPS) NOW ASKS THE DEPARTMENT FOR ADVICE AS TO WHAT FURTHER ACTION IS NECESSARY TO CAUSE THE REMOVAL OF THIS ITEM OF DISALLOWANCE FROM HIS STATEMENT.

A-626, OCTOBER 16, 1925, 5 COMP. GEN. 265

TRAVEL ALLOWANCE - ENLISTED MAN OF NAVY DISCHARGED FOR PERSONAL CONVENIENCE AN ENLISTED MAN OF THE NAVY DISCHARGED AT HIS OWN REQUEST IS DISCHARGED BY WAY OF FAVOR AND FOR HIS PERSONAL CONVENIENCE AND IS NOT ENTITLED TO THE TRAVEL ALLOWANCE PROVIDED BY THE ACT OF FEBRUARY 28, 1919, 40 STAT. 1203. A STATEMENT IN AN ORDER AUTHORIZING A COMMANDING OFFICER OF THE NAVY TO DISCHARGE AN ENLISTED MAN "FOR THE CONVENIENCE OF THE GOVERNMENT," AND THAT THE ENLISTED MAN WILL BE ENTITLED TO TRAVEL ALLOWANCE, DOES NOT CHANGE THE LEGAL RIGHTS OF THE MAN, THE ALLOWANCE BEING PAYABLE ONLY WHEN THE CASE IS OTHERWISE WITHIN THE PROVISIONS OF THE ACT OF FEBRUARY 28, 1919, 40 STAT. 1203, AND THE MAN IS NOT DISCHARGED BY WAY OF FAVOR AND FOR HIS PERSONAL CONVENIENCE.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE NAVY, OCTOBER 16, 1925:

THERE HAS BEEN RECEIVED YOUR LETTER OF AUGUST 27, 1925, AS FOLLOWS:

LIEUTENANT E. F. NEY (SUPPLY CORPS), U.S.N., IN LETTER DATED 7 MAY, 1925, WITH ENCLOSURES, REVIEWS THE HISTORY OF THE PAYMENT TO E. F. BROOKS, SEAMAN SECOND CLASS, OF TRAVEL ALLOWANCE UPON DISCHARGE BY SPECIAL ORDER OF BUREAU OF NAVIGATION, THE DISALLOWANCE OF THIS PAYMENT BY THE GENERAL ACCOUNTING OFFICE, AND SUBSEQUENT REVIEWS BY YOUR OFFICE OF THIS DISALLOWANCE, IN WHICH YOU HAVE SUSTAINED THE PREVIOUS DECISIONS. YOUR LATEST REVIEW WAS OF DATE MAY 5, 1925.

LIEUTENANT NEY (SUPPLY CORPS) NOW ASKS THE DEPARTMENT FOR ADVICE AS TO WHAT FURTHER ACTION IS NECESSARY TO CAUSE THE REMOVAL OF THIS ITEM OF DISALLOWANCE FROM HIS STATEMENT, AND TO RELIEVE HIM OF THE FINANCIAL RESPONSIBILITY THEREFOR.

THE PAYMENT IN DISPUTE WAS MADE BY DIRECTION OF THE NAVY DEPARTMENT ON THE GROUNDS THAT BROOKS WAS DISCHARGED FOR THE CONVENIENCE OF THE GOVERNMENT. YOUR LETTER OF FEBRUARY 23, 1924, REVIEW NO. 6038, STATES "THE AMOUNT WAS DISALLOWED AS HAVING ERRONEOUSLY BEEN PAID TO A MAN DISCHARGED FOR HIS OWN CONVENIENCE.'

THE DISALLOWANCE IN THIS CASE APPEARS TO HINGE ON WHETHER BROOKS WAS DISCHARGED FOR THE CONVENIENCE OF THE GOVERNMENT OR FOR HIS OWN CONVENIENCE. IT IS NOT A QUESTION OF LAW, BUT ONE OF FACT. THIS DECISION SHOULD IN MY JUDGMENT VEST IN THE SECRETARY OF THE NAVY AND HIS AUTHORIZED AGENTS. HE IS THE OFFICIAL CHARGED WITH THE ENLISTMENT AND DISCHARGE OF NAVAL PERSONNEL AND IS IN BETTER POSITION THAN ANY OTHER GOVERNMENT OFFICIAL TO JUDGE WHETHER DISCHARGES OF ENLISTED PERSONNEL ARE OR ARE NOT FOR THE CONVENIENCE OF THE GOVERNMENT.

THE BUREAU OF NAVIGATION IN LETTER DATED 19 APRIL, 1922 (COPY ENCLOSED), TO THE COMMANDING OFFICER, RECEIVING SHIP, AT BOSTON, MASS., TO WHICH SHIP BROOKS WAS ATTACHED AT THE TIME, STATED IN PART: "IT IS THE OPINION OF THE JUDGE ADVOCATE GENERAL THAT THE BUREAU'S INSTRUCTIONS ISSUED TO YOUR COMMAND UNDER DATES OF MARCH 20, 1922, AND MARCH 30, 1922, AUTHORIZING THE COMMANDING OFFICER TO DISCHARGE BROOKS BY SPECIAL ORDER OF THE BUREAU OF NAVIGATION FOR THE CONVENIENCE OF THE GOVERNMENT, WHICH WILL ENTITLE HIM TO TRANSPORTATION TO HIS HOME, ETC.'

THE ACTING SECRETARY OF THE NAVY ON 12 MAY, 1922, TO SUPPLY OFFICER, RECEIVING SHIP AT BOSTON, REL BROOKS DISCHARGE, STATED: "IF DISCHARGED FROM THE NAVAL SERVICE UNDER HONORABLE CONDITIONS HE WILL BE ENTITLED TO TRAVEL ALLOWANCE FROM PLACE OF DISCHARGE TO HIS BONA FIDE HOME OR RESIDENCE, OR TO THE PLACE OF HIS ORIGINAL MUSTER INTO THE SERVICE.'

ON NOVEMBER 26, 1924, THE BUREAU OF NAVIGATION IN REPLY TO SPECIFIC INQUIRY BY THE COMPTROLLER GENERAL STATED "THE COMMANDING OFFICER OF THE RECEIVING SHIP, BOSTON, WAS AUTHORIZED TO DISCHARGE HIM (BROOKS) BY SPECIAL ORDER OF THE BUREAU OF NAVIGATION FOR THE CONVENIENCE OF THE GOVERNMENT AFTER HIS PAY ACCOUNTS HAD BEEN ADJUSTED.' THIS REPORT FROM THE BUREAU OF NAVIGATION IS QUOTED IN YOUR RECONSIDERATION OF REVIEW NO. 6038, DATED DECEMBER 13, 1924, BUT IN SPITE OF THE POSITIVE STATEMENT MADE BY THE BUREAU OF NAVIGATION THAT BROOKS WAS DISCHARGED FOR THE CONVENIENCE OF THE GOVERNMENT, YOU FOLLOW THIS IN YOUR NEXT PARAGRAPH BY YOUR OWN ESTIMATE THAT "THE FACTS PRESENTED IN THE PAPERS IN HIS (BROOKS) CASE INDICATE THAT THE SPECIAL ORDER DISCHARGE WAS GRANTED NOT FOR THE CONVENIENCE OF THE GOVERNMENT AS STATED, BUT BECAUSE THE MAN DID NOT DESIRE TO REMAIN IN THE NAVY, AND THE DEPARTMENT ACQUIESCED IN HIS DESIRE TO BE DISCHARGED.'

IN YOUR RECONSIDERATION OF THIS CASE, DATED MAY 5, 1925, YOU STATE THAT "IT CLEARLY APPEARED THAT HIS (BROOKS) DISCHARGE WAS NOT FOR THE PURPOSE OF REDUCING THE ENLISTED PERSONNEL OF THE NAVY TO A STRENGTH WITHIN THE AMOUNT OF THE APPROPRIATIONS. IT ALSO APPEARS THAT THE NAVY DEPARTMENT LEFT IT OPTIONAL WITH BROOKS WHETHER HE REMAIN OR LEAVE THE NAVY, AND HE CHOSE THE LATTER.'

THE ABOVE IS APPARENTLY BASED UPON THE WORDING OF BUREAU OF NAVIGATION LETTER OF 20 MARCH, 1922, TO COMMANDING OFFICER, RECEIVING SHIP, AT BOSTON, REL CANCELLATION OF BAD-CONDUCT DISCHARGE AWARDED BROOKS BY SENTENCE OF SUMMARY COURT-MARTIAL, IN VIEW OF CERTAIN TECHNICAL IRREGULARITIES CONTAINED THEREIN, AND AUTHORIZING HIS DISCHARGE IN THE FOLLOWING WORDING,"AFTER THE READJUSTMENT OF HIS RECORD AND ACCOUNTS SHOULD HE NOT DESIRE TO REMAIN IN THE NAVAL SERVICE UNTIL THE EXPIRATION OF HIS ENLISTMENT, YOU ARE AUTHORIZED TO DISCHARGE HIM BY SPECIAL ORDER OF THE BUREAU OF NAVIGATION.'

IT IS NOT IMPROBABLE THAT THE FACT THAT BROOKS HAD BEEN SENTENCED TO BAD- CONDUCT DISCHARGE, WHICH WAS CANCELED DUE TO TECHNICAL IRREGULARITIES, MAY HAVE HAD SOME BEARING ON THE DECISION TO AUTHORIZE HIS DISCHARGE FOR THE CONVENIENCE OF THE GOVERNMENT. OTHER REASONS MAY HAVE EXISTED WHICH DO NOT APPEAR AS OF RECORD. THE FACT REMAINS THAT HE WAS SO DISCHARGED AND THAT BEING SO DISCHARGED HE WAS ENTITLED TO TRAVEL ALLOWANCE, AND THAT THE SUPPLY OFFICER CARRYING HIS ACCOUNTS WAS DIRECTED BY THE DEPARTMENT TO PAY HIM TRAVEL ALLOWANCE, AND THAT THIS PAYMENT HAS BEEN DISALLOWED.

THE SUPPLY OFFICER IN THIS CASE COULD NOT PROPERLY HAVE DONE OTHERWISE THAN HE DID DO. I THEREFORE REQUEST THAT LIEUTENANT NEY (SUPPLY CORPS) BE RELIEVED OF THE ITEM OF $94.50 SUSPENDED IN HIS ACCOUNTS.

BEFORE DISCUSSING THE MERITS IT IS APPROPRIATE TO SUGGEST THAT THE PAYMENT INVOLVED IS NOT "IN DISPUTE" AS SUGGESTED IN THE THIRD PARAGRAPH OF YOUR LETTER. THE ITEM WAS DISALLOWED (NOT SUSPENDED, AS SUGGESTED IN THE CLOSING PARAGRAPH OF YOUR LETTER) IN SETTLEMENT NO. M 2760-N, DATED NOVEMBER 16, 1923, AND THE AMOUNT THEREOF WAS INCLUDED IN A BALANCE CERTIFIED TO BE DUE FROM LIEUT. E. F. NEY, SUPPLY CORPS, UNITED STATES NAVY, UNDER HIS BOND DATED OCTOBER 1, 1921, AND THAT BALANCE IS "FINAL AND CONCLUSIVE UPON THE EXECUTIVE BRANCH OF THE GOVERNMENT" UNDER SECTION 304 OF THE BUDGET AND ACCOUNTING ACT OF JUNE 10, 1921, 42 STAT. 24.

THE BASIS OF YOUR REQUEST IS THAT THE LEGALITY OF THE PAYMENT IS TO BE DETERMINED BY WHETHER THE DISCHARGE OF BROOKS WAS FOR THE CONVENIENCE OF THE GOVERNMENT OR FOR HIS OWN CONVENIENCE; THAT THIS IS NOT A QUESTION OF LAW BUT OF FACT; AND THAT THE DECISION OF SUCH A QUESTION SHOULD IN YOUR JUDGMENT BEST IN THE SECRETARY OF THE NAVY AND HIS AUTHORIZED AGENTS. YOU SUGGEST THAT IN THIS CASE THE MATTER WAS DETERMINED BY THE DIRECTION TO DISCHARGE BROOKS APRIL 19, 1922,"FOR THE CONVENIENCE OF THE GOVERNMENT, WHICH WILL ENTITLE HIM TO TRANSPORTATION TO HIS HOME," ETC.; AGAIN, IN LETTER OF THE ACTING SECRETARY OF THE NAVY MAY 12, 1922, WHERE IT WAS SAID: "IF DISCHARGED FROM THE NAVAL SERVICE UNDER HONORABLE CONDITIONS HE WILL BE ENTITLED TO TRAVEL ALLOWANCE; " AND FURTHER, THAT THE BUREAU OF NAVIGATION ON NOVEMBER 26, 1924, IN REPLY TO INQUIRY OF THIS OFFICE STATED THAT BROOKS'S DISCHARGE WAS AUTHORIZED TO BE "BY SPECIAL ORDER OF THE BUREAU OF NAVIGATION FOR THE CONVENIENCE OF THE GOVERNMENT.' IN OTHER WORDS, IT SEEMS TO BE SUGGESTED THAT THE MERE ADMINISTRATIVE STATEMENT THAT A DISCHARGE IS "FOR THE CONVENIENCE OF THE GOVERNMENT" OR THAT A MAN ON DISCHARGE "WILL BE ENTITLED TO TRAVEL ALLOWANCE" DETERMINES THE MATTER. IT NEED NOT BE QUESTIONED THAT THE SECRETARY OF THE NAVY MAY DETERMINE WHETHER A MAN SHALL BE DISCHARGED FOR THE CONVENIENCE OF THE GOVERNMENT BUT WHAT WAS THE ACTUAL FACT OF A CERTAIN DISCHARGE IS NOT THIS QUESTION. THE STATEMENTS QUOTED ARE AT THE MOST CONCLUSIONS AND AT THE LEAST MUST ACCORD WITH AND NOT BE CONTRARY TO OR INCONSISTENT WITH THE TRUE FACTS. THE ACT, HEREAFTER QUOTED, UNDER WHICH THE PAYMENT IS BELIEVED TO BE AUTHORIZED IS OF RECENT APPLICATION TO THE NAVY; BUT STATUTES OF SIMILAR IMPORT HAVE BEEN APPLICABLE TO THE ARMY ALMOST FROM THE BEGINNING OF THE GOVERNMENT, HAVE HAD A PRACTICAL CONSTRUCTION BY THE WAR DEPARTMENT, HAVE BEEN CONSTRUED BY THE ACCOUNTING OFFICERS IN THE SETTLEMENT OF ACCOUNTS; HAVE BEEN CONSTRUED BY THE SUPREME COURT; AND HAVE, IN A MEASURE, RECEIVED LEGISLATIVE CONSTRUCTION; AND THE LANGUAGE USED IN THESE STATUTES HAS THEREFORE A SETTLED MEANING. THE BASIS OF THE PAYMENT IS SECTION 3 OF THE ACT OF FEBRUARY 28, 1919, 40 STAT. 1203, WHICH PROVIDES:

THAT SECTION ONE HUNDRED AND TWENTY-SIX OF THE ACT ENTITLED "AN ACT FOR MAKING FURTHER AND MORE EFFECTUAL PROVISION FOR THE NATIONAL DEFENSE, AND FOR OTHER PURPOSES," APPROVED JUNE THIRD, NINETEEN HUNDRED AND SIXTEEN, BE AMENDED TO READ AS FOLLOWS:

"SEC. 126. THAT AN ENLISTED MAN HONORABLY DISCHARGED FROM THE ARMY, NAVY, OR MARINE CORPS SINCE NOVEMBER ELEVENTH, NINETEEN HUNDRED AND EIGHTEEN, OR WHO MAY HEREAFTER BE HONORABLY DISCHARGED, SHALL RECEIVE FIVE CENTS PER MILE FROM THE PLACE OF HIS DISCHARGE TO HIS ACTUAL BONA FIDE HOME OR RESIDENCE, OR ORIGINAL MUSTER INTO THE SERVICE, AT HIS OPTION: PROVIDED, THAT FOR SEA TRAVEL ON DISCHARGE, TRANSPORTATION AND SUBSISTENCE ONLY SHALL BE FURNISHED TO ENLISTED MEN: PROVIDED, THAT NAVAL RESERVISTS DULY ENROLLED WHO HAVE BEEN HONORABLY RELEASED FROM ACTIVE SERVICE SINCE NOVEMBER ELEVENTH, NINETEEN HUNDRED AND EIGHTEEN, OR WHO MAY HEREAFTER BE HONORABLY RELEASED FROM ACTIVE SERVICE, SHALL BE ENTITLED LIKEWISE TO RECEIVE MILEAGE AS AFORESAID.'

THE SECTION AMENDED, CONTAINED IN THE ACT OF JUNE 3, 1916, 39 STAT. 217, AND APPLICABLE IN TERMS ONLY TO ENLISTED MEN OF THE ARMY, PROVIDED THAT:

ON AND AFTER JULY FIRST, NINETEEN HUNDRED AND SIXTEEN, AN ENLISTED MAN WHEN DISCHARGED FROM THE SERVICE, EXCEPT BY WAY OF PUNISHMENT FOR AN OFFENSE, SHALL RECEIVE 3 1/2 CENTS PER MILE FROM THE PLACE OF HIS DISCHARGE TO THE PLACE OF HIS ACCEPTANCE FOR ENLISTMENT, ENROLLMENT, OR ORIGINAL MUSTER INTO THE SERVICE, AT HIS OPTION: * * *.

THE FURTHER AMENDMENT OF SECTION 126 OF THE NATIONAL DEFENSE ACT IN THE ACT OF SEPTEMBER 22, 1922, 42 STAT. 1021, REVERTS TO THE FORM USED IN THE LAW OF 1916. TRAVEL ALLOWANCE FOR ENLISTED MEN OF THE ARMY TO BE PAYABLE WHEN "HONORABLY DISCHARGED" WAS PROVIDED IN SECTION 1290, REVISED STATUTES, BUT WAS "AMENDED BACK TO THE ANCIENT FORM IN THREE YEARS.' UNITED STATES V. SWEET, 189 U.S. 471. STATUTES PROVIDING FOR TRAVEL ALLOWANCE TO ENLISTED MEN OF THE ARMY "WHEN DISCHARGED FROM THE SERVICE EXCEPT BY WAY OF PUNISHMENT FOR AN OFFENSE" AND WHEN "HONORABLY DISCHARGED" HAVE HAD AN IDENTICAL CONSTRUCTION AND THAT CONSTRUCTION HAS DENIED TRAVEL ALLOWANCE WHEN THE DISCHARGE WAS BY WAY OF FAVOR AND FOR THE PERSONAL CONVENIENCE OF THE MAN. IN UNITED STATES V. SWEET THE COURT SAID:

IT IS ADMITTED THAT THE SETTLED PRACTICE OF THE WAR DEPARTMENT AND OF THE TREASURY HAS BEEN TO DENY THE ALLOWANCES CLAIMED WHEN AN OFFICER OR SOLDIER IS DISCHARGED AT HIS OWN REQUEST, FOR HIS OWN PLEASURE OR CONVENIENCE. (THEN FOLLOW NUMEROUS CITATIONS OF DECISIONS OF THE COMPTROLLER OF THE TREASURY.) * * *.

IT FOLLOWS THAT THE ONLY QUESTION IS WHETHER THE MEANING OF THE LONG-USED PHRASE IS TOO CLEAR FOR ALMOST EQUALLY LONG-ESTABLISHED PRACTICE TO CONTROL. IT SEEMS TO US NOT TO BE SO. IT IS QUITE TRUE THAT IN THE MILITARY SERVICE THE WORD "DISCHARGE" IS THE WORD APPLIED TO AN ORDER ENDING THE SERVICE OF AN OFFICER AT HIS OWN REQUEST. BUT IN OTHER CONNECTIONS IT CONVEYS THE NOTION OF A MOVEMENT BEGINNING WITH THE SUPERIOR AND MORE OR LESS ADVERSE TO THE OBJECT, AS, FOR INSTANCE, WHEN WE SPEAK OF DISCHARGING A SERVANT USUALLY IT IS A SLIGHTLY DISCREDITING VERB. IF IT IS TAKEN IN ITS ORDINARY MEANING HERE, THE EXCEPTION IN CASE OF A DISCHARGE BY WAY OF PUNISHMENT RAISES NO DIFFICULTY, BECAUSE A DISCHARGE ON RESIGNATION IS NOT WITHIN THE MEANING OF THE PRINCIPAL CLAUSE. THE COURSE OF THE DEPARTMENTS HAS AMOUNTED TO NO MORE THAN INTERPRETING THE WORD IN THIS EXACT SENSE.

* * * BUT TAKING EVERYTHING INTO ACCOUNT WE ARE NOT PREPARED TO OVERTURN THE LONG-ESTABLISHED UNDERSTANDING OF THE DEPARTMENTS CHARGED WITH THE EXECUTION OF THE LAW.

THE CONSTRUCTION BY THE ACCOUNTING OFFICERS OF THE STATUTES PROVIDING FOR PAYMENT OF TRAVEL ALLOWANCE UPON DISCHARGE (WHETHER "HONORABLY DISCHARGED" OR WHETHER "DISCHARGED EXCEPT BY WAY OF PUNISHMENT FOR AN OFFENCE) " THEREFORE HAS THE FOLLOWING OF THE SUPREME COURT. THIS CONSTRUCTION IS KNOWN TO THE CONGRESS, AND THE FREQUENT REENACTMENT IN IDENTICAL PHRASEOLOGY REQUIRES THAT THE CONSTRUCTION OF THE LANGUAGE BE NOT CHANGED.

THE PHRASEOLOGY IN ORDERS AND CORRESPONDENCE "DISCHARGED FOR THE CONVENIENCE OF THE GOVERNMENT" IS OF RELATIVELY RECENT ORIGIN AND SEEMS TO HAVE BEEN ADOPTED TO REBUT A PRESUMPTION THAT A DISCHARGE BEFORE EXPIRATION OF ENLISTMENT WAS BY WAY OF FAVOR AND FOR THE PERSONAL CONVENIENCE OF THE MAN. THE USE OF THE PHRASEOLOGY ADDS NOTHING TO THE RIGHTS OF THE MAN UNDER THE STATUTE.

IT IS TRUE YOUR SUGGESTION IS THAT WHETHER THE DISCHARGE IS BY WAY OF FAVOR AND FOR THE PERSONAL CONVENIENCE OF THE MAN IS A QUESTION OF FACT AND THAT ADMINISTRATIVE OFFICERS' DETERMINATIONS OF SUCH FACTS SHOULD BE CONCLUSIVE UPON THE GENERAL ACCOUNTING OFFICE IN THE SETTLEMENT OF ACCOUNTS. THIS IS NOT TRUE IN OTHER MATTERS UNLESS IT IS MADE SO BY STATUTE. THE LEGALITY OF THE PAYMENT IS TO BE DETERMINED BY THE LAW AND THE FACTS. IF ADMINISTRATIVE OFFICERS' DETERMINATIONS WHETHER ON THE FACTS PRESENTED A DISCHARGE IS OR IS NOT BY WAY OF FAVOR AND FOR THE PERSONAL CONVENIENCE OF THE MAN IS TO CONTROL DISBURSEMENTS, THERE IS NO REASON WHY A DETERMINATION OF FACT BY ADMINISTRATIVE OFFICERS COULD NOT BE EQUALLY CONTROLLING IN ALL QUESTIONS OF MIXED LAW AND FACT. IT IS SUFFICIENT TO SAY THAT THERE COULD BE NO INDEPENDENT AUDIT WERE YOUR SUGGESTION SOUND, AND THE ACCOUNTING OFFICERS FROM THE FOUNDATION OF THE GOVERNMENT HAVE NOT BEEN BOUND BY THE DETERMINATION OF FACTS BY ADMINISTRATIVE OFFICERS EXCEPT WHERE STATUTES IN SPECIFIC INSTANCES HAVE MADE SUCH DETERMINATION FINAL. THAT THERE HAS BEEN NO SUCH ACCEPTANCE OF ADMINISTRATIVE OFFICERS' DETERMINATIONS IN THE MATTER OF TRAVEL ALLOWANCE FOR ENLISTED MEN ON DISCHARGE MAY BE ILLUSTRATED BY CITATIONS. SECTION 2193, VOLUME 1, DIGEST SECOND COMPTROLLER'S DECISIONS, IS AS FOLLOWS:

IT HAS ALWAYS BEEN HELD THAT WHEN A SOLDIER IS TRANSFERRED FROM ONE BRANCH OF THE SERVICE TO ANOTHER, OR FROM THE MILITARY TO THE NAVAL SERVICE HE IS NOT ENTITLED TO TRAVEL PAY. (VOL. 25, P. 264-65.)

THE SYLLABUS OF THE DECISION OF THE COMPTROLLER OF THE TREASURY, 5 COMP. DEC. 939, IS AS FOLLOWS:

AN ENLISTED MAN WHO IS DISCHARGED AT HIS OWN REQUEST, BY REASON OF THE ILLNESS OF HIS WIFE, IS DISCHARGED FOR HIS OWN CONVENIENCE, AND HE IS NOT ENTITLED TO TRAVEL PAY.

THE STATEMENT IN THE ORDER OF THE WAR DEPARTMENT DISCHARGING AN ENLISTED MAN THAT HE IS OR IS NOT ENTITLED TO TRAVEL PAY DOES NOT DETERMINE HIS RIGHT THERETO.

IN THE DECISION, PAGE 940, IT IS SAID:

* * * WHETHER A SOLDIER IS ENTITLED TO TRAVEL PAY DEPENDS UPON THE LAW AND THE FACTS IN THE CASE.

IN 6 COMP. DEC. 9 IT WAS HELD, QUOTING THE SYLLABUS:

A SOLDIER WHO WAS DISCHARGED AT HIS PLACE OF ENROLLMENT WHILE ON FURLOUGH IS NOT ENTITLED TO TRAVEL PAY FROM THE PLACE WHERE HIS COMPANY WAS DISCHARGED, AND AN ORDER OF THE SECRETARY OF WAR PURPORTING TO AUTHORIZE PAYMENT THEREOF DOES NOT WARRANT PAYMENT.

ON DISCHARGES DURING THE SPANISH-AMERICAN WAR THE WAR DEPARTMENT SOUGHT TO FIX RIGHTS TO TRAVEL PAY IN THE ORDER OR DIRECTION TO DISCHARGE ENLISTED MEN. CLAIMS FOR TRAVEL PAY BASED ON THE RECITATIONS IN THE ORDER THAT THE MAN WAS ENTITLED TO TRAVEL PAY, AND PAYMENTS BY DISBURSING OFFICERS BASED ON SUCH ORDERS, WERE DISALLOWED 5 COMP. DEC. 939; 6 COMP. DEC. 9, CITED ABOVE.

BY THE ACT OF JUNE 7, 1900, 31 STAT. 708, CONGRESS VALIDATED SUCH PAYMENTS BY DISBURSING OFFICERS AND AUTHORIZED THE ALLOWANCE OF CLAIMS OF ENLISTED MEN; BUT THE ACT CONTAINED THE FOLLOWING PROVISO:

* * * THAT THE PROVISIONS OF THIS ACT SHALL APPLY ONLY TO CASES THAT HAVE ARISEN OR SHALL ARISE UNDER ORDERS OR INSTRUCTIONS FOR DISCHARGE WITH TRAVEL PAY ISSUED BETWEEN APRIL TWENTY-FIRST, EIGHTEEN HUNDRED AND NINETY- EIGHT, AND THE DATE OF THE PASSAGE OF THIS ACT: * * *.

IN OTHER WORDS, CONGRESS RECOGNIZED THAT THE ADMINISTRATIVE OFFICERS HAD EXCEEDED THEIR AUTHORITY. IT PROVIDED FOR THE PAYMENT OF TRAVEL PAY AS ORDERED BY THE WAR DEPARTMENT FROM THE DATE SUCH ORDERS WERE FIRST ISSUED, APRIL 21, 1898, DATE OF BEGINNING OF WAR WITH SPAIN, TO THE DATE OF THE ACT; RECOGNIZED THE CORRECTNESS OF THE ACTION OF THE ACCOUNTING OFFICERS, AND IN EFFECT AFFIRMED THEIR JURISDICTION TO DETERMINE QUESTIONS OF FACTS INVOLVED IN DISCHARGES TO ASCERTAIN THE LEGAL RIGHT UNDER THE STATUTE TO TRAVEL ALLOWANCE.

ON THE STATEMENT OF FACTS PRESENTED BROOKS WAS DISCHARGED AT HIS OWN REQUEST; HE WAS DISCHARGED BY WAY OF FAVOR FOR HIS PERSONAL CONVENIENCE. TO CONCLUDE OTHERWISE WOULD BE IN CONTRADICTION OF THE RECORD. UNDER NEITHER OF THE LAWS PROVIDING FOR TRAVEL PAY OR TRAVEL ALLOWANCE AS CONSTRUED BY THE WAR DEPARTMENT, THE ACCOUNTING OFFICERS, THE SUPREME COURT, AND THE CONGRESS, AND NOW MADE APPLICABLE TO THE NAVY, WAS HE ENTITLED TO BE PAID TRAVEL ALLOWANCE WHEN SO DISCHARGED, AS STATED IN THE NEXT TO THE LAST PARAGRAPH OF YOUR LETTER.

YOU STATE THAT THE PAYMENT WAS MADE BY DIRECTION OF THE NAVY DEPARTMENT AND THAT THE SUPPLY OFFICER COULD NOT HAVE DONE OTHERWISE THAN HE DID. SUCH ADMINISTRATIVE DIRECTION AS MAY HAVE BEEN GIVEN THE SUPPLY OFFICER WAS NECESSARILY SUBJECT TO THE ACT OF JULY 31, 1894, 28 STAT. 208, WHICH PROVIDES THAT DISBURSING OFFICERS MAY APPLY TO THIS OFFICE FOR DECISION OF ANY QUESTION INVOLVING A PAYMENT TO BE MADE BY THEM, AND NECESSARILY SUBJECT ALSO TO OTHER STATUTORY PROVISIONS UNDER WHICH THE ACCOUNTS OF THE DISBURSING OFFICER ARE SETTLED AND ADJUSTED BY THIS OFFICE.

THE DECISIONS OF FEBRUARY 23, AND DECEMBER 13, 1924, AND MAY 5, 1925, SUSTAINING THE SETTLEMENT DISALLOWING CREDIT FOR THE PAYMENT, ARE ADHERED TO. ..END :