B-120297, SEP 8, 1954

B-120297: Sep 8, 1954

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SECRETARY: REFERENCE IS MADE TO LETTER OF MAY 28. ARE ENTITLED TO PAY AND ALLOWANCES FOR THE TIME REQUIRED TO PERFORM TRAVEL BY THE MODE OF TRANSPORTATION AUTHORIZED IN THEIR ORDERS. IN THE EVENT IT IS HELD THAT EXISTING REGULATIONS OF THE MILITARY DEPARTMENTS ARE NOT IN ACCORDANCE WITH LAW. INQUIRY IS MADE AS TO WHETHER THIS OFFICE WILL INSIST UPON RECOVERY OF PAYMENTS WHICH MAY HAVE BEEN MADE ON THE BASIS OF SUCH REGULATIONS PRIOR TO THE ISSUANCE OF NEW INSTRUCTIONS OR REGULATIONS. THE "PLACE TO WHICH ACTIVE DUTY ORDERS ARE ADDRESSED" (NAVY). NOTHING IS FOUND IN THE CAREER COMPENSATION ACT OR THE HEARINGS WHICH PRECEDED ITS ENACTMENT TO SUGGEST THAT THE CONGRESS IN USING THE TERM "HOME" IN THE SAID SECTION 201 INTENDED IT TO BE MORE THAN ONE PLACE.

B-120297, SEP 8, 1954

PRECIS-UNAVAILABLE

MR. SECRETARY:

REFERENCE IS MADE TO LETTER OF MAY 28, 1954, FROM THE ACTING ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER), WITH ENCLOSURE (COMMITTEE ACTION NUMBER 91 OF THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE), REQUESTING DECISION AS TO WHETHER MEMBERS OF A RESERVE COMPONENT OF THE UNIFORMED SERVICES, ORDERED TO EXTENDED ACTIVE DUTY IN EXCESS OF THIRTY DAYS, ARE ENTITLED TO PAY AND ALLOWANCES FOR THE TIME REQUIRED TO PERFORM TRAVEL BY THE MODE OF TRANSPORTATION AUTHORIZED IN THEIR ORDERS, FROM THEIR HOME TO FIRST DUTY STATION AND FROM LAST DUTY STATION TO HOME, OR THE PLACE FROM WHICH ORDERED TO ACTIVE DUTY TO FIRST DUTY STATION AND FROM LAST DUTY STATION TO THE PLACE FROM WHICH ORDERED TO ACTIVE DUTY, AS THEY MAY ELECT. ALSO, IN THE EVENT IT IS HELD THAT EXISTING REGULATIONS OF THE MILITARY DEPARTMENTS ARE NOT IN ACCORDANCE WITH LAW, INQUIRY IS MADE AS TO WHETHER THIS OFFICE WILL INSIST UPON RECOVERY OF PAYMENTS WHICH MAY HAVE BEEN MADE ON THE BASIS OF SUCH REGULATIONS PRIOR TO THE ISSUANCE OF NEW INSTRUCTIONS OR REGULATIONS.

SECTION 201(E) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 807, PROVIDES THAT IN ACCORDANCE WITH REGULATIONS PRESCRIBED BY THE PRESIDENT, IN THE CASE OF MEMBERS OF THE UNIFORMED SERVICES CALLED OR ORDERED TO EXTENDED ACTIVE DUTY IN EXCESS OF THIRTY DAYS, ACTIVE DUTY SHALL INCLUDE THE TIME REQUIRED TO PERFORM TRAVEL FROM "HOME" TO FIRST DUTY STATION AND FROM LAST DUTY STATION TO "HOME" BY THE MODE OF TRANSPORTATION AUTHORIZED IN ORDERS FOR SUCH MEMBER. EXECUTIVE ORDER 10153, DATED AUGUST 17, 1950, PRESCRIBING REGULATIONS PURSUANT TO THAT SECTION, PROVIDES FOR THE INCLUSION AS ACTIVE DUTY OF TIME REQUIRED FOR TRAVEL FROM "HOME" TO FIRST DUTY STATION AND FROM LAST DUTY STATION TO "HOME." IT FURTHER PROVIDES THAT THE SECRETARIES CONCERNED MAY PRESCRIBE, WITH RESPECT TO PERSONNEL OF THE UNIFORMED SERVICES WITHIN THEIR RESPECTIVE DEPARTMENTS, SUCH SUPPLEMENTARY REGULATIONS "NOT INCONSISTENT" THEREWITH AS THEY MAY DEEM NECESSARY OR DESIRABLE FOR CARRYING OUT SUCH REGULATIONS, AND THAT SUCH SUPPLEMENTARY REGULATIONS SHALL BE UNIFORM FOR ALL THE SERVICES TO THE FULLEST EXTENT PRACTICABLE. THE SECRETARIES IN PRESCRIBING SUCH SUPPLEMENTARY REGULATIONS PROVIDED THAT ACTIVE DUTY PAY AND ALLOWANCES SHALL BE PAYABLE FOR TRAVEL TIME TO THE HOME OR TO THE "PLACE FROM WHICH SERVICE MEMBER ENTERED THE MILITARY SERVICE" (ARMY), THE "PLACE FROM WHICH HE ENTERED ON ACTIVE DUTY" (AIR FORCE), AND THE "PLACE TO WHICH ACTIVE DUTY ORDERS ARE ADDRESSED" (NAVY).

NOTHING IS FOUND IN THE CAREER COMPENSATION ACT OR THE HEARINGS WHICH PRECEDED ITS ENACTMENT TO SUGGEST THAT THE CONGRESS IN USING THE TERM "HOME" IN THE SAID SECTION 201 INTENDED IT TO BE MORE THAN ONE PLACE, OR TO HAVE ANY MEANING OTHER THAN THAT GENERALLY AND USUALLY ASCRIBED TO IT FOR RESERVE MEMBERS OF THE UNIFORMED SERVICES, THAT IS, THE PLACE RECORDED AS HOME WHEN ORDERED TO ACTIVE DUTY. 19 COMP. GEN. 731; 22 ID. 555; 23 ID. 967; 24 ID. 291. HENCE, THERE APPEARS NO LEGAL BASIS FOR REGULATIONS AUTHORIZING PAY AND ALLOWANCES FOR THE TIME REQUIRED TO PERFORM TRAVEL, BY THE MODE OF TRANSPORTATION AUTHORIZED IN THE ORDERS, IN EXCESS OF THAT REQUIRED FOR TRAVEL FROM AND TO THE HOME, AND EXISTING REGULATIONS SHOULD BE REVISED ACCORDINGLY.

AS TO PAYMENTS COMPUTED CONTRARY TO SUCH INTERPRETATION OF THE STATUTE WHICH HAVE BEEN MADE TO RESERVISTS NO LONGER ON ACTIVE DUTY, IT APPEARS THAT THEY WERE MADE AND ACCEPTED UNDER A BELIEF THAT SECTION 201(E) OF THE CAREER COMPENSATION ACT AUTHORIZED ACTIVE DUTY PAY AND ALLOWANCES FOR TIME REQUIRED TO TRAVEL TO AND FROM ACTIVE DUTY STATIONS UPON ENTERING AND LEAVING THE SERVICE ON THE SAME BASIS THAT PAYMENT OF MILEAGE IS AUTHORIZED IN SECTION 303(A) 63 STAT. 813 OF SUCH ACT, THAT IS, ON THE BASIS OF EITHER THE HOME OF RECORD OR THE PLACE FROM WHICH CALLED TO ACTIVE DUTY. THIS BEING THE CASE, AND IN VIEW OF THE FURTHER FACT THAT IN GENERAL INDIVIDUAL PAYMENTS IN EXCESS OF THE AMOUNTS PROPERLY PAYABLE WERE IN RELATIVELY SMALL AMOUNTS, PAYMENTS HERETOFORE MADE (OR WHICH MAY BE MADE PRIOR TO THE ISSUANCE OF NEW INSTRUCTIONS, BUT NOT LATER THAN 30 DAYS FROM THIS DATE) COMPUTED ON THE BASIS OF TIME REQUIRED TO PERFORM TRAVEL FROM THE PLACE OF ENTRY INTO THE SERVICE TO FIRST DUTY STATION AND FROM LAST DUTY STATION TO PLACE OF ENTRY INTO THE SERVICE, RATHER THAN FROM AND TO HOME OF RECORD, NEED NOT BE DISTURBED. IN AUDITING DISBURSING OFFICERS' ACCOUNTS, HOWEVER, INSTANCES HAVE BEEN FOUND WHERE BOTH MILEAGE AND PAY ALLOWANCES FOR REQUIRED TRAVEL TIME HAVE BEEN COMPUTED ON THE BASIS OF THE DISTANCE FROM THE LAST DUTY STATION TO A PLACE TREATED AS THE PLACE FROM WHICH CALLED TO ACTIVE SERVICE WHEN SUCH PLACE WAS IN FACT THE PLACE WHERE THE MEMBER, HAVING PREVIOUSLY ENTERED ACTIVE SERVICE AS AN ENLISTED MAN, WAS COMMISSIONED IN THE RESERVE AND CONTINUED ON ACTIVE DUTY. THE OBVIOUS PURPOSE OF THE STATUTORY PROVISIONS FOR PAYMENT OF MILEAGE UPON SEPARATION FROM THE SERVICE OR RELEASE FROM ACTIVE DUTY IS TO RETURN THE MEMBER TO HIS HOME OR TO THE PLACE AT WHICH HE ENTERED THE SERVICE FROM CIVILIAN LIFE. CLEARLY THE MILITARY INSTALLATION AT WHICH A MEMBER'S STATUS WAS CHANGED FROM THAT OF AN ENLISTED MAN TO A COMMISSIONED RESERVIST HAS NO SIGNIFICANCE IN DETERMINING THE PLACE TO WHICH HE IS ENTITLED TO A MONETARY ALLOWANCE IN LIEU OF TRANSPORTATION UPON RELEASE FROM ACTIVE DUTY. SEE DECISION OF JULY 12, 1944, B-41281, TO THE SECRETARY OF WAR, AND 24 COMP. GEN. 291, 295 AND 296. THAT THIS IS TRUE APPARENTLY IS RECOGNIZED IN PARAGRAPH 4156, CASE 19, JOINT TRAVEL REGULATIONS, WHICH PROVIDES THAT A MEMBER WHO IS SEPARATED FROM THE SERVICE FOR THE EXPRESS PURPOSE OF CONTINUING IN THE SERVICE (OTHER THAN EXPIRATION OF ENLISTMENT) IN THE SAME OR ANOTHER STATUS IS NOT ENTITLED TO MILEAGE ON SUCH DISCHARGE, AND SAVES TO HIM A RIGHT TO MILEAGE UPON ULTIMATE SEPARATION FROM THE SERVICE OR RELEASE FROM ACTIVE DUTY FROM THE PLACE OF SUCH SEPARATION OR RELEASE FROM ACTIVE DUTY TO THE PLACE OF ENTRY INTO THE SERVICE OR TO THE HOME OF RECORD AS HE MAY ELECT. IT WOULD SEEM TO FOLLOW THAT A SEPARATION FROM THE SERVICE FOR THE SOLE PURPOSE OF CONTINUING IN ANOTHER STATUS IS INEFFECTIVE TO INCREASE THE MILEAGE ACCRUING TO A MEMBER UPON FINAL SEPARATION OR RELEASE FROM ACTIVE DUTY. HENCE, ANY OVERPAYMENTS WHICH HAVE BEEN MADE AS A RESULT OF THE COMPUTATION OF MILEAGE ON THE BASIS OF THE DISTANCE FROM PLACE OF RELEASE FROM ACTIVE DUTY TO THE MILITARY INSTALLATION AT WHICH A MEMBER WAS COMMISSIONED IN THE RESERVE INSTEAD OF TO HOME OF RECORD OR TO THE PLACE FROM WHICH HE INITIALLY ENTERED ACTIVE MILITARY SERVICE, AND ANY OVERPAYMENTS MADE AS A RESULT OF THE COMPUTATION OF PAY AND ALLOWANCES UPON RELEASE FROM ACTIVE DUTY BASED ON TIME REQUIRED TO TRAVEL TO THE INSTALLATION AT WHICH COMMISSIONED IN THE RESERVE INSTEAD OF TO THE MEMBER'S HOME OF RECORD, SHOULD BE RECOVERED.