A-99071, JANUARY 17, 1939, 18 COMP. GEN. 612

A-99071: Jan 17, 1939

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- WHICH POLICY IS KNOWN BY SUCH ENLISTED MEN. WHERE A FILIPINO MAKES REQUEST FOR TRANSFER TO THE FLEET NAVAL RESERVE AT THE PORT IN THE UNITED STATES AT WHICH LAST ACCEPTED FOR ENLISTMENT AND AT WHICH PLACE NO RIGHT TO TRAVEL ALLOWANCE COULD HAVE ACCRUED HAD HE BEEN TRANSFERRED AND RELEASED FROM ACTIVE DUTY THERE. HE IS FURNISHED TRANSPORTATION IN KIND TO THE PHILIPPINES. HE IS NOT ENTITLED TO TRAVEL ALLOWANCE FOR THE LAND TRAVEL BACK TO THE PLACE OF ACCEPTANCE FOR ENLISTMENT IN THE UNITED STATES. 1939: THERE IS FOR CONSIDERATION THE CLAIM OF FAUSTINA VIACRUSES. THERE IS THEREFORE A RIGHT TO TRAVEL ALLOWANCE WITHIN THE LITERAL PURVIEW OF THE ACT OF SEPTEMBER 22. IS ONLY BECAUSE THE TRANSFER TERMINATES THE CONTRACT OF ENLISTMENT AND THUS IS EQUIVALENT TO A DISCHARGE THAT BRINGS A TRANSFER AND IMMEDIATE RELEASE FROM ACTIVE DUTY WITHIN THE STATUTE AUTHORIZING PAYMENT OF TRAVEL ALLOWANCE.

A-99071, JANUARY 17, 1939, 18 COMP. GEN. 612

TRAVEL ALLOWANCE - PHILIPPINE ISLANDS TO PLACE OF ACCEPTANCE FOR ENLISTMENT IN THE UNITED STATES - NAVY ENLISTED NON-UNITED STATES CITIZEN FILIPINOS RETURNED TO PHILIPPINE ISLANDS ON TRANSFER TO FLEET NAVAL RESERVE THE POLICY OF THE NAVY DEPARTMENT TO RETURN NATIVE NON-UNITED STATES CITIZEN FILIPINOS TO THE PHILIPPINE ISLANDS--- WHICH POLICY IS KNOWN BY SUCH ENLISTED MEN--- DOES NOT INCREASE THE OBLIGATION OF THE UNITED STATES UNDER THE TRAVEL ALLOWANCE STATUTE, AND WHERE A FILIPINO MAKES REQUEST FOR TRANSFER TO THE FLEET NAVAL RESERVE AT THE PORT IN THE UNITED STATES AT WHICH LAST ACCEPTED FOR ENLISTMENT AND AT WHICH PLACE NO RIGHT TO TRAVEL ALLOWANCE COULD HAVE ACCRUED HAD HE BEEN TRANSFERRED AND RELEASED FROM ACTIVE DUTY THERE, AND HE IS FURNISHED TRANSPORTATION IN KIND TO THE PHILIPPINES, HE IS NOT ENTITLED TO TRAVEL ALLOWANCE FOR THE LAND TRAVEL BACK TO THE PLACE OF ACCEPTANCE FOR ENLISTMENT IN THE UNITED STATES.

DECISION BY ACTING COMPTROLLER GENERAL ELLIOTT, JANUARY 17, 1939:

THERE IS FOR CONSIDERATION THE CLAIM OF FAUSTINA VIACRUSES, OFFICER'S STEWARD, THIRD CLASS, U.S.N.R., FOR TRAVEL ALLOWANCE AT 5 CENTS PER MILE FOR THE LAND TRAVEL INVOLVED FROM CAVITE, P.I., TO BOSTON, MASS., INCIDENT TO HIS TRANSFER FROM THE UNITED STATES NAVY TO THE FLEET NAVAL RESERVE, APRIL 29, 1938.

IT APPEARS THAT THE CLAIMANT FIRST ENLISTED IN THE NAVY JANUARY 14, 1918, AT OLONGAPO, P.I.; DISCHARGED NOVEMBER 18, 1922, AT THE RECEIVING SHIP, CAVITE, P.I.; AGAIN ENLISTED SEPTEMBER 6, 1923, REMAINING IN CONTINUOUS SERVICE UNTIL HIS TRANSFER TO THE FLEET NAVAL RESERVE, HIS LAST ENLISTMENT HAVING BEGUN DECEMBER 7, 1935. ON OCTOBER 20, 1937, WHILE SERVING ON THE U.S.S. VINCENNES, NAVY YARD, BOSTON, MASS., AND THE PLACE OF ACCEPTANCE FOR LAST ENLISTMENT, THE ENLISTED MAN MADE APPLICATION TO THE BUREAU OF NAVIGATION, NAVY DEPARTMENT, FOR TRANSFER, AFTER 16 YEARS' SERVICE, TO THE FLEET NAVAL RESERVE, HAVING SERVED 18 YEARS AND 9 MONTHS IN THE UNITED STATES NAVY, SUCH TRANSFER TO BE EFFECTIVE ON OR ABOUT JANUARY 1938. THE APPLICANT STATED THAT HIS ADDRESS AFTER TRANSFER WOULD BE 715 HARRIS STREET, OLONGAPO, ZAMBALES, P.I., AND ON NOVEMBER 4, 1937, THE CHIEF OF THE BUREAU OF NAVIGATION DIRECTED THAT THE ENLISTED MAN BE TRANSFERRED TO THE UNITED STATES RECEIVING SHIP, CAVITE, P.I., VIA FIRST AVAILABLE GOVERNMENT CONVEYANCE FOR TRANSFER TO THE FLEET NAVAL RESERVE AND THAT THE EFFECTIVE DATE OF TRANSFER TO THE RESERVE BE DEFERRED, IF NECESSARY, TO ANY TIME WITHIN 10 DAYS AFTER ARRIVAL.

THE CLAIM THUS APPEARS TO BE PREDICATED UPON THE FACT THAT THE ENLISTED MAN HAVING BEEN ACCEPTED FOR ENLISTMENT AT BOSTON, MASS., AND TRANSFERRED TO THE FLEET NAVAL RESERVE AT CAVITE, P.I., THERE IS THEREFORE A RIGHT TO TRAVEL ALLOWANCE WITHIN THE LITERAL PURVIEW OF THE ACT OF SEPTEMBER 22, 1922, 42 STAT. 1021. THIS ACT DOES NOT SPECIFICALLY AUTHORIZE PAYMENT OF TRAVEL ALLOWANCE BY REASON OF A TRANSFER TO THE FLEET NAVAL RESERVE. IS ONLY BECAUSE THE TRANSFER TERMINATES THE CONTRACT OF ENLISTMENT AND THUS IS EQUIVALENT TO A DISCHARGE THAT BRINGS A TRANSFER AND IMMEDIATE RELEASE FROM ACTIVE DUTY WITHIN THE STATUTE AUTHORIZING PAYMENT OF TRAVEL ALLOWANCE. A 8659 DATED APRIL 6, 1925, 44 MS. COMP. GEN. 219.

IT IS SHOWN THAT ON OCTOBER 20, 1937, THE DATE THAT APPLICATION WAS MADE FOR TRANSFER TO THE FLEET NAVAL RESERVE, THE ENLISTED MAN WAS STATIONED AT THE PLACE OF ACCEPTANCE FOR ENLISTMENT IN THE UNITED STATES NAVY. HAD HE BEEN TRANSFERRED AND RELEASED FROM ACTIVE DUTY AT THE PLACE OF APPLICATION NOT EVEN A COLOR OF RIGHT TO TRAVEL ALLOWANCE UNDER THE LAW WOULD HAVE ACCRUED.

PRESUMABLY THE BASIS OF THE CLAIM IS A LETTER FROM THE CHIEF OF THE BUREAU OF NAVIGATION, NAVY DEPARTMENT, ADDRESSED TO THE COMMANDING OFFICER, RECEIVING SHIP, SAN FRANCISCO, CALIF., DATED JUNE 18, 1935, ANNOUNCING A POLICY TO RETURN ALL FILIPINOS WHO ARE NOT UNITED STATES CITIZENS TO THE PHILIPPINE ISLANDS FOR TRANSFER TO THE FLEET NAVAL RESERVE. WHILE IT IS REPORTED THAT NO REQUEST WAS MADE BY THE CLAIMANT FOR TRANSFER TO THE PHILIPPINE ISLANDS, HIS APPLICATION SHOWING THAT HIS HOME AFTER TRANSFER WOULD BE THE PHILIPPINE ISLANDS RAISES A STRONG IMPLICATION THAT THE PLACE OF HIS BIRTH WAS WHERE HE DESIRED TO BE SENT. IT APPEARS OBVIOUS THAT THE AFORESAID POLICY ANNOUNCED BY THE NAVY DEPARTMENT TO RETURN NATIVE FILIPINOS WAS NOT INTENDED TO AND COULD NOT INCREASE THE OBLIGATION OF THE UNITED STATES UNDER THE TRAVEL ALLOWANCE STATUTE. IN THE VIEW THAT THE TRAVEL ALLOWANCE WHICH ACCRUES TO ENLISTED MEN UPON DISCHARGE IS IN THE NATURE OF AN INDEMNITY AGAINST THE CONTINGENCY OF A DISCHARGE AT ANOTHER PLACE THAN THAT OF ENLISTMENT, IT SEEMS CLEAR THAT THE PURPOSE OF THE ORDER WHICH DIRECTED THE TRANSFER OF THE CLAIMANT FROM BOSTON, MASS., TO THE PHILIPPINE ISLANDS, WAS A SUBSTANTIAL EFFORT TO FURNISH IN KIND TRANSPORTATION TO HIS HOME, THUS SAVING TO THE ENLISTED MAN ALL EXPENSES WHICH WOULD HAVE BEEN INVOLVED FOR HIS TRAVEL TO THE PHILIPPINE ISLANDS HAD HE BEEN TRANSFERRED TO THE RESERVE AND RELEASED FROM ACTIVE DUTY AT BOSTON, MASS., IN PURSUANCE OF HIS REQUEST OF OCTOBER 20, 1937. THE DIRECTION TO SEND THE ENLISTED MAN BACK TO HIS HOME IN THE PHILIPPINE ISLANDS WAS A GRANT OF TRANSPORTATION IN KIND BY WAY OF FAVOR FOR HIS OWN CONVENIENCE, NO PART OF WHICH WOULD HAVE ACCRUED TO HIM HAD HE BEEN RELEASED AT BOSTON, MASS.

THAT IS, THE GENERAL POLICY OF RETURNING FILIPINOS NOT CITIZENS OF THE UNITED STATES TO THE PHILIPPINE ISLANDS FOR TRANSFER TO THE FLEET NAVAL RESERVE--- KNOWN TO SUCH ENLISTED MEN--- IS IN EFFECT A SEPARATION FROM THE ACTIVE LIST AT THE PLACE SELECTED BY THE MAN FOR HIS CONVENIENCE, AND DOES NOT ENTITLE TO TRAVEL ALLOWANCE BACK TO THE PLACE OF ACCEPTANCE FOR ENLISTMENT, THE PLACE FROM WHICH HE WAS TRANSPORTED TO HIS HOME. THERE IS NO MERIT IN THE CLAIM AND IT WILL ACCORDINGLY BE DISALLOWED.