B-121597, DEC 9, 1954

B-121597: Dec 9, 1954

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

IT IS SHOWN THAT THE CLAIMANT WAS RELEASED FROM ACTIVE DUTY ON MAY 15. THAT THE RELEASE WAS ACCOMPLISHED 15 DAYS BEFORE COMPLETION OF THE MAXIMUM PERIOD OF ACTIVE DUTY. FOR WHICH HE WAS INDUCTED. THAT HIS HOME OF RECORD IS NEW YORK. THAT THE TRAVEL ALLOWANCE NOW CLAIMED (MILEAGE FROM PORT OF DEBARKATION TO HOME OF RECORD) WAS "WAIVED" AT TIME OF DISCHARGE. WHICH YOU INDICATE RELATE TO THE PROBLEM HERE INVOLVED AND YOU APPEAR TO BE IN DOUBT AS TO THE APPLICABILITY OF SUCH DECISIONS SINCE THEY WERE BASED ON THE SUPERSEDED PROVISIONS OF SECTION 126 OF THE NATIONAL DEFENSE ACT. WHICH AUTHORIZED PAYMENT OF TRAVEL ALLOWANCE TO AN ENLISTED MAN WHO IS "DISCHARGED" FROM THE SERVICE. WHEREAS THE STATUTORY AUTHORITY ON WHICH THE CLAIM IS BASED (SECTION 303(A) OF THE CAREER COMPENSATION ACT OF 1949.

B-121597, DEC 9, 1954

PRECIS-UNAVAILABLE

FIRST LIEUTENANT V.E. OERTURF, FC, DEPARTMENT OF THE ARMY:

THERE HAS BEEN RECEIVED FROM THE CHIEF OF FINANCE BY FIRST INDORSEMENT DATED SEPTEMBER 27, 1954, YOUR LETTER OF JULY 22, 1954, TRANSMITTING FOR ADVANCE DECISION A VOUCHER IN FAVOR OF LEOPOLD E. KLOPFER, US 51 111 015, IN THE SUM OF $185.76, REPRESENTING MILEAGE FROM SEATTLE, WASHINGTON, TO NEW YORK, NEW YORK, INCIDENT TO HIS RELEASE FROM ACTIVE DUTY AS CORPORAL.

IT IS SHOWN THAT THE CLAIMANT WAS RELEASED FROM ACTIVE DUTY ON MAY 15, 1953, AT CAMP YOKOHAMA, JAPAN, FOR THE PURPOSE OF ACCEPTING CIVILIAN EMPLOYMENT IN JAPAN WITH THE DEPARTMENT OF THE ARMY; THAT THE RELEASE WAS ACCOMPLISHED 15 DAYS BEFORE COMPLETION OF THE MAXIMUM PERIOD OF ACTIVE DUTY, 24 MONTHS, FOR WHICH HE WAS INDUCTED; THAT HIS HOME OF RECORD IS NEW YORK, NEW YORK; AND THAT THE TRAVEL ALLOWANCE NOW CLAIMED (MILEAGE FROM PORT OF DEBARKATION TO HOME OF RECORD) WAS "WAIVED" AT TIME OF DISCHARGE.

YOU REFER TO THE DECISIONS OF THIS OFFICE (20 COMP. GEN. 562, AND 24 ID. 901), WHICH YOU INDICATE RELATE TO THE PROBLEM HERE INVOLVED AND YOU APPEAR TO BE IN DOUBT AS TO THE APPLICABILITY OF SUCH DECISIONS SINCE THEY WERE BASED ON THE SUPERSEDED PROVISIONS OF SECTION 126 OF THE NATIONAL DEFENSE ACT, AS AMENDED, 10 U.S.C. 752, WHICH AUTHORIZED PAYMENT OF TRAVEL ALLOWANCE TO AN ENLISTED MAN WHO IS "DISCHARGED" FROM THE SERVICE, WHEREAS THE STATUTORY AUTHORITY ON WHICH THE CLAIM IS BASED (SECTION 303(A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 613) AUTHORIZES THE PAYMENT OF A MILEAGE ALLOWANCE UPON "SEPARATION" FROM THE SERVICE.

IN 20 COMP. GEN. 562, IT WAS HELD THAT TRAVEL ALLOWANCE WAS NOT PAYABLE TO AN ENLISTED MAN ON HIS DISCHARGE OBTAINED AT HIS OWN REQUEST AND FOR HIS OWN CONVENIENCE TO ACCEPT CIVILIAN EMPLOYMENT WITH THE GOVERNMENT. WAS RECOGNIZED IN 24 COMP. GEN. 901 THAT THE BASIS FOR DENIAL OF TRAVEL ALLOWANCE UNDER SUCH CIRCUMSTANCES WAS THAT THE ENLISTED MAN HAD ENTERED INTO A CONTRACT OF ENLISTMENT FOR A SPECIFIED PERIOD, THE FULFILLMENT OF WHICH WOULD ENTITLE HIM TO TRAVEL ALLOWANCE, AND THAT IF HE REQUESTED THAT HE BE RELIEVED FROM COMPLETING HIS AGREEMENT, THE GRANTING OF SUCH REQUEST TERMINATED THE CONTRACT AND RELEASED THE GOVERNMENT FROM ITS OBLIGATION TO PAY TRAVEL ALLOWANCE. HOWEVER, WHERE THE ENLISTED MAN WAS AN INDUCTEE, HIS SERVICE WAS INVOLUNTARY AS DISTINGUISHED FROM CONTRACTUAL. SUCH SERVICE BEING BASED ON REQUIREMENTS OF LAW RATHER THAN ON AGREEMENT, ITS TERMINATION BY OFFICIALS OF THE GOVERNMENT CHARGED WITH THE DUTY OF ADMINISTERING THE LAW AND OF UTILIZING SUCH SERVICE JUSTIFIED THE CONCLUSION THAT THE ENLISTED MAN WAS "DISCHARGED" FROM THE SERVICE WITHIN THE MEANING OF THE STATUTE WHEN APPROPRIATE ADMINISTRATIVE ACTION WAS TAKEN TO ACCOMPLISH HIS SEPARATION FROM THE SERVICE UNDER HONORABLE CONDITIONS.

THE USE OF THE WORD "SEPARATION" INSTEAD OF "DISCHARGED" FROM THE SERVICE IN THE PROVISIONS OF LAW NOW IN EFFECT WOULD NOT APPEAR TO MAKE THE CITED DECISIONS INAPPLICABLE TO OTHERWISE PROPER CASES. BOTH WORDS DENOTE A TERMINATION OF DUTY WITH THE UNIFORMED SERVICES.

HOWEVER, SINCE THE CITED DECISIONS RELATE TO ENLISTED MEN WHO ACTUALLY WERE SEPARATED FROM THE SERVICE BY DISCHARGE, THEY ARE NOT CONTROLLING IN THE PRESENT CASE WHERE THE ENLISTED MAN WAS NOT SEPARATED FROM THE SERVICE BUT WAS RELEASED FROM ACTIVE DUTY AND TRANSFERRED TO THE ARMY RESERVE. SUCH ACTION WAS AUTHORIZED UNDER THE PROVISIONS OF SPECIAL REGULATIONS 615 -363-5, MAY 11, 1953, PARAGRAPH 5C OF WHICH STATES THAT TRAVEL ALLOWANCE WILL BE PAID TO PERSONS SO RELEASED FROM ACTIVE DUTY, IN ACCORDANCE WITH THE JOINT TRAVEL REGULATIONS. CASE 7, PARAGRAPH 4153, CHANGE 2, AUGUST 1, 1952, IN EFFECT WHEN MR. KLOPFER WAS RELEASED FROM ACTIVE DUTY, AUTHORIZED PAYMENT OF MILEAGE ALLOWANCE UPON RELIEF FROM ACTIVE DUTY UNDER CONDITIONS PERMITTING SUCH PAYMENT "WHETHER OR NOT SUCH TRAVEL IS ACTUALLY PERFORMED." SEE ALSO PARAGRAPH 4154-5B OF SUCH REGULATIONS, FOR THE POINTS BETWEEN WHICH DISTANCE IS COMPUTED IN THE UNITED STATES WHEN RELEASE FROM ACTIVE DUTY IS ACCOMPLISHED OVERSEAS AND NO TRAVEL IS PERFORMED.

PARAGRAPH 11B(1), CIRCULAR NO. 87, HEADQUARTERS, UNITED STATES ARMY FORCES, FAR EAST, APO 343, APRIL 3, 1953, PROVIDES FOR THE RECRUITMENT OF DEPARTMENT OF THE ARMY CIVILIAN EMPLOYEES FROM LOCAL SOURCES, INCLUDING MILITARY PERSONNEL ELIGIBLE FOR SEPARATION OR RELEASE FROM ACTIVE DUTY. PARAGRAPH 11B(1), CIRCULAR NO. 10, SAME HEADQUARTERS, DATED FEBRUARY 5, 1953, CITED IN ORDERS OF MAY 15, 1953, WHICH EFFECTED MR. KLOPFER'S RELEASE FROM ACTIVE DUTY, CONTAINS SIMILAR PROVISIONS. APPARENTLY, THE DEPARTMENT OF THE ARMY DESIRED TO USE THE CLAIMANT'S SERVICES IN JAPAN AS A CIVILIAN AND HE WAS RELEASED FROM ACTIVE DUTY TO ACCEPT EMPLOYMENT UNDER THE FOREGOING REGULATIONS. THE FACT THAT SUCH RELEASE WAS ACCOMPLISHED 15 DAYS BEFORE COMPLETION OF THE MAXIMUM 24 MONTHS' TERM OF SERVICE CONTEMPLATED BY LAW FURNISHES NO BASIS FOR QUESTIONING HIS RIGHT TO THE MILEAGE ALLOWANCE OTHERWISE PAYABLE. BOTH SECTION 4(B) OF THE UNIVERSAL MILITARY TRAINING AND SERVICE ACT, AS AMENDED, 50 U.S.C. WAR AND NATIONAL DEFENSE, APPENDIX, 454(B) AND PARAGRAPH 4, SPECIAL REGULATIONS 615-363-5, RECOGNIZE THAT RELEASE FROM ACTIVE DUTY MAY BE ACCOMPLISHED AT AN EARLIER TIME. COMPARE 24 COMP. GEN. 901.

ACCORDINGLY, PAYMENT ON THE VOUCHER, RETURNED HEREWITH, IS AUTHORIZED, IF OTHERWISE CORRECT.