A-7102, MAY 15, 1925, 4 COMP. GEN. 954

A-7102: May 15, 1925

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MILEAGE - DELAYED TRAVEL BY RETIRED ARMY OFFICER ON RELIEF FROM ACTIVE DUTY ORDERS RELIEVING A RETIRED ARMY OFFICER FROM ACTIVE DUTY AND DIRECTING HIM TO PROCEED TO HIS HOME CONTEMPLATE THAT THE TRAVEL WILL BE PERFORMED AT ONCE OR WITHIN A REASONABLE TIME AND THERE IS NO AUTHORITY OF LAW TO DELAY THE TRAVEL FOR ANY DEFINITE PERIOD OF TIME. THE ASSIGNMENT OF RETIRED ARMY OFFICERS TO ACTIVE DUTY IS AUTHORIZED BY THE ACT OF JUNE 3. NO AUTHORITY IS KNOWN FOR THE CONTINUANCE ON ACTIVE DUTY WITH TROOPS OF OFFICERS ASSIGNED TO ACTIVE DUTY UNDER SAID ACT AFTER MARCH 3. THE TRAVEL WAS PERFORMED MARCH 7 TO 18. IS IN PART AS FOLLOWS: BY DIRECTION OF THE PRESIDENT. IS RELIEVED FROM HIS PRESENT DUTIES AT FORT JAY.

A-7102, MAY 15, 1925, 4 COMP. GEN. 954

MILEAGE - DELAYED TRAVEL BY RETIRED ARMY OFFICER ON RELIEF FROM ACTIVE DUTY ORDERS RELIEVING A RETIRED ARMY OFFICER FROM ACTIVE DUTY AND DIRECTING HIM TO PROCEED TO HIS HOME CONTEMPLATE THAT THE TRAVEL WILL BE PERFORMED AT ONCE OR WITHIN A REASONABLE TIME AND THERE IS NO AUTHORITY OF LAW TO DELAY THE TRAVEL FOR ANY DEFINITE PERIOD OF TIME. AN EXTENSION OF TIME GRANTED UPON REQUEST MADE ALMOST ONE YEAR AFTER THE DATE OF RELEASE FROM ACTIVE DUTY DOES NOT BRING THE TRAVEL WITHIN A REASONABLE TIME ENTITLING THE OFFICER TO MILEAGE THEREFOR. THE ASSIGNMENT OF RETIRED ARMY OFFICERS TO ACTIVE DUTY IS AUTHORIZED BY THE ACT OF JUNE 3, 1916, 39 STAT. 183, IN TIME OF WAR ONLY, AND NO AUTHORITY IS KNOWN FOR THE CONTINUANCE ON ACTIVE DUTY WITH TROOPS OF OFFICERS ASSIGNED TO ACTIVE DUTY UNDER SAID ACT AFTER MARCH 3, 1921, THE OFFICIAL TERMINATION OF THE WORLD WAR.

DECISION BY COMPTROLLER GENERAL MCCARL, MAY 15, 1925:

MAJOR LEO I. SAMUELSON, UNITED STATES ARMY, RETIRED, REQUESTED REVIEW OF SETTLEMENT M-93686, DATED NOVEMBER 20, 1923, DISALLOWING HIS CLAIM FOR MILEAGE FROM FORT JAY, N.Y., TO LOS ANGELES, CALIF., BY REASON OF TRAVEL TO HIS HOME UNDER ORDERS RELIEVING HIM FROM ACTIVE DUTY FEBRUARY 20, 1922.

THE TRAVEL WAS PERFORMED MARCH 7 TO 18, 1923, ON GOVERNMENT TRANSPORTATION FURNISHED FROM NEW YORK, N.Y., TO MARSHALL, TEX., AND FROM MARSHALL, TEX., TO LOS ANGELES, CALIF.

PARAGRAPH 24 OF SPECIAL ORDERS, NO. 26-O, DATED FEBRUARY 1, 1922, IS IN PART AS FOLLOWS:

BY DIRECTION OF THE PRESIDENT, MAJOR LEO I. SAMUELSON, UNITED STATES ARMY, RETIRED, IS RELIEVED FROM HIS PRESENT DUTIES AT FORT JAY, NEW YORK, AND FROM FURTHER ACTIVE DUTY, EFFECTIVE FEBRUARY 20, 1922. HE WILL THEN PROCEED TO HIS HOME. THE TRAVEL DIRECTED IS NECESSARY IN THE MILITARY SERVICE AND IS CHARGEABLE TO PROCUREMENT AUTHORITY FD 26 P 2451 A 2.

UNDER DATE OF JANUARY 31, 1923, THE ADJUTANT GENERAL ADVISED CLAIMANT AS FOLLOWS:

1. THE SECRETARY OF WAR DIRECTS THAT YOU BE INFORMED THAT THE REQUEST CONTAINED IN YOUR LETTER OF THE 16TH INSTANT THAT THE ONE YEAR'S TIME ALLOWED YOU IN RETURNING TO YOUR HOME UPON RELIEF FROM ACTIVE DUTY BE EXTENDED THIRTY (30) DAYS IS APPROVED.

MILITARY ORDERS ARE TO BE OBEYED AT ONCE OR WITHIN A REASONABLE TIME, ACCORDING TO THEIR CHARACTER, AND PUBLIC BUSINESS IS THE FOUNDATION ON WHICH MILEAGE IS BASED. IF AN ORDER TO AN OFFICER ON RETIREMENT TO PROCEED TO HIS HOME IS NOT OBEYED WITHIN A REASONABLE TIME IT LOSES ITS CHARACTER AS AN ORDER TO TRAVEL ON PUBLIC BUSINESS, AND IF THE TRAVEL IS SUBSEQUENTLY PERFORMED IT IS AT THE OFFICER'S PLEASURE OR CONVENIENCE AND NOT UNDER ORDERS WITHIN THE MEANING OF THE STATUTE. WHAT IS A REASONABLE TIME IN ONE CASE MIGHT NOT BE SO IN ANOTHER, AS NO FIXED RULE CAN BE LAID DOWN THAT WILL GOVERN IN ALL CASES, BUT AN ORDER THAT IS USUALLY GIVEN AN OFFICER ON RETIREMENT TO PROCEED TO HIS HOME CAN NOT BE REGARDED AS AN OPEN ORDER FOR TRAVEL TO BE COMPLIED WITH AT ANY FUTURE TIME SUITING THE PLEASURE OR CONVENIENCE OF THE OFFICER TO WHOM ISSUED. 2 COMP. GEN. 456; 9 COMP. DEC. 819.

BY REASON OF CIRCUMSTANCES PECULIAR TO THE MILITARY SERVICE AN OFFICER AT TIME OF RETIREMENT DOES NOT USUALLY HAVE AN ESTABLISHED RESIDENCE WHERE HE DESIRES TO LOCATE HIS HOME OR DWELLING PLACE IN CIVIL LIFE, AND OCCASIONALLY SOME TIME IS REQUIRED FOR SELECTING A HOME AND ADJUSTING HIS PERSONAL AFFAIRS PREPARATORY TO MOVING THERETO. FOR THIS REASON AND OTHER CIRCUMSTANCES PECULIAR TO THE PARTICULAR CASE SOME LATITUDE HAS BEEN ALLOWED OFFICERS IN CARRYING OUT ORDERS TO TRAVEL UPON RETIREMENT OR UPON RELEASE FROM ACTIVE DUTY. 13 COMP. DEC. 793; 18 ID. 634. IN NO CASE, HOWEVER, HAS ANY DEFINITE PERIOD BEEN RECOGNIZED AS WITHIN A REASONABLE TIME. 13 COMP. DEC. 112; 23 MS. COMP. DEC. 169; 28 ID. 690.

ORDERS, SUCH AS IN THIS CASE, CONTEMPLATE COMPLIANCE AT ONCE OR WITHIN A REASONABLE TIME. IN CASE OF A RETIRED OFFICER CALLED TO ACTIVE DUTY WHO HAS AN ESTABLISHED HOME TO WHICH TO RETURN WHEN RELEASED FROM ACTIVE DUTY, AS DID CLAIMANT, LESS TIME SHOULD BE REQUIRED IN WHICH TO ADJUST HIS AFFAIRS PREPARATORY TO PROCEEDING TO HIS HOME THAN IS USUALLY REQUIRED WHEN AN OFFICER IS ORDERED HOME ON RETIREMENT. THERE IS NO IMPLIED AUTHORITY OF LAW TO DELAY THE TRAVEL FOR ANY DEFINITE PERIOD, AND THEREFORE THE SUBSEQUENT ACTION OF THE SECRETARY OF WAR ONE YEAR AFTER DATE OF ORDERS, APPROVING CLAIMANT'S REQUEST FOR AN EXTENSION OF DELAY, COULD NOT HAVE THE EFFECT OF BRINGING THE TRAVEL WITHIN A REASONABLE TIME. UNDER HIS ORDERS CLAIMANT WAS ENTITLED TO A REASONABLE DELAY; A REASONABLE TIME IS NOT A FIXED TIME, BUT DEPENDENT ON THE CIRCUMSTANCES WHICH NECESSITATE DELAY. CLAIMANT'S ORDERS DID NOT AUTHORIZE HIM TO PERFORM THE TRAVEL AT ANY TIME WITHIN A YEAR FROM DATE OF RELEASE AT HIS CONVENIENCE, AND ONLY CIRCUMSTANCES EXISTING AT TIME OF RELEASE OR SOON THEREAFTER COULD BE CONSIDERED AS AFFECTING THE REASONABLENESS OF THE TIME OF PERFORMANCE OF TRAVEL. THE CIRCUMSTANCES ADVANCED BY CLAIMANT, WHICH APPARENTLY AROSE LONG AFTER TRAVEL SHOULD HAVE BEEN PERFORMED, ARE TOO REMOTELY CONNECTED WITH CONDITIONS AT TIME OF HIS RELEASE TO BE CONSIDERED IN DETERMINING WHETHER THE TRAVEL IN QUESTION WAS PERFORMED WITHIN A REASONABLE TIME.

IT APPEARS THERE IS SOME CONFUSION IN THE MINDS OF OFFICERS ON THE MATTER, AND THE DEPARTMENT HAS CONTRIBUTED TO THAT CONFUSION BY COMMUNICATING TO OFFICERS THAT THIS OFFICE HAS FIXED A DEFINITE PERIOD AFTER RETIREMENT OR AFTER RELIEF FROM ACTIVE DUTY DURING WHICH TRAVEL TO THE OFFICER'S HOME MUST BE MADE. IN VIEW OF THESE CIRCUMSTANCES THIS CLAIM WILL BE ALLOWED, BUT THAT ACTION IS NOT A PRECEDENT FOR SIMILAR ACTION IN THE FUTURE.

THE ADJUTANT GENERAL REPORTED TO THIS OFFICE IN COMMUNICATION DATED MARCH 26, 1925, THAT CLAIMANT WAS PLACED ON ACTIVE DUTY UNDER SECTION 24 OF THE ACT OF JUNE 3, 1916, 39 STAT. 183. THAT SECTION PROVIDES:

* * * THAT IN TIME OF WAR RETIRED OFFICERS OF THE ARMY MAY BE EMPLOYED ON ACTIVE DUTY, IN THE DISCRETION OF THE PRESIDENT, AND WHEN SO EMPLOYED THEY SHALL RECEIVE THE FULL PAY AND ALLOWANCES OF THEIR GRADE * * *.

THE SAME PROVISION WAS REENACTED IN THE THIRD PARAGRAPH OF SECTION 127A OF THE ACT OF JUNE 4, 1920, 41 STAT. 785. THE WAR WITH GERMANY, SO FAR AS A "TIME OF WAR" EXISTED, TERMINATED MARCH 3, 1921. SEE ACT OF MARCH 3, 1921, 41 STAT. 1359.

SECTION 1259, REVISED STATUTES, PROHIBITS ASSIGNMENT OF RETIRED ARMY OFFICERS TO ACTIVE DUTY AND, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED BY STATUTE, THERE IS NO AUTHORITY FOR ASSIGNMENT OF A RETIRED OFFICER TO ACTIVE DUTY IN TIME OF PEACE. THIS OFFICE KNOWS OF NO PROVISION OF LAW WHICH AUTHORIZED THE EMPLOYMENT OF CLAIMANT ON THE DUTY IN QUESTION AFTER MARCH 3, 1921. HOWEVER, SINCE CLAIMANT HAS BEEN RELIEVED FROM SUCH DUTY, PAYMENTS TO HIM OF FULL PAY AND ALLOWANCES WILL NOT NOW BE DISTURBED.

UPON REVIEW THE SETTLEMENT IS MODIFIED AND $155.65 CERTIFIED DUE CLAIMANT.