B-124477, OCTOBER 1, 1956, 36 COMP. GEN. 257

B-124477, OCTOBER 1, 1956, 36 COMP. GEN. 257

MILITARY PERSONNEL - PERMANENT CHANGE OF STATION ORDERS - LEAVE OR DELAY - MODIFICATION REIMBURSEMENT TO MEMBERS OF THE UNIFORMED SERVICES FOR TRAVEL INCIDENT TO PERMANENT CHANGE OF STATION ORDERS WHICH ARE MODIFIED DURING A PERIOD OF LEAVE OR DELAY AUTHORIZED IN THE ORDERS IS LIMITED TO THE DISTANCE FROM THE OLD PERMANENT STATION TO THE ULTIMATE NEW STATION, AND A PROPOSED REGULATION WHICH WOULD PERMIT TRAVEL IN A LEAVE STATUS AFTER DETACHMENT FROM THE OLD STATION TO BE REGARDED AS OFFICIAL TRAVEL GOES BEYOND THE SCOPE OF THE TRAVEL REIMBURSEMENT AUTHORITY IN THE CAREER COMPENSATION ACT OF 1949.

TO THE SECRETARY OF THE NAVY, OCTOBER 1, 1956:

REFERENCE IS MADE TO LETTER OF JULY 27, 1956, FROM THE ASSISTANT SECRETARY OF THE NAVY, PERSONNEL AND RESERVE FORCES, SUBMITTING FOR OUR CONSIDERATION A PROPOSED CHANGE IN PARAGRAPH 3003-1B OF THE JOINT TRAVEL REGULATIONS TO READ AS FOLLOWS:

B. EFFECTIVE DATE. THE EFFECTIVE DATE OF ORDERS ISSUED TO A MEMBER IS THE DATE THE MEMBER DEPARTS FROM THE OLD PERMANENT DUTY STATION, REGARDLESS OF ANY LEAVE, DELAY, OR TEMPORARY DUTY AUTHORIZED OR DIRECTED EN ROUTE.

PARAGRAPH 3003-1B AS PRESENTLY PUBLISHED IN THE JOINT TRAVEL REGULATIONS, PROVIDES THAT THE EFFECTIVE DATE OF PERMANENT CHANGE OF STATION ORDERS WHICH DO NOT INVOLVE LEAVE OR DELAY EN ROUTE IS THE DATE OF THE MEMBER'S DETACHMENT FROM THE OLD STATION, BUT THAT WHEN LEAVE OR DELAY PRIOR TO REPORTING TO THE NEW STATION IS AUTHORIZED IN THE BASIC ORDERS, THE AMOUNT OF SUCH LEAVE OR DELAY IS TO BE ADDED TO THE DATE OF DETACHMENT TO DETERMINE THE EFFECTIVE DATE OF ORDERS. THE EFFECT OF THE PRESENT REGULATION IS TO LIMIT A MEMBER'S REIMBURSEMENT FOR TRAVEL TO THE DISTANCE FROM THE OLD PERMANENT STATION TO THE ULTIMATE NEW STATION IN A CASE WHERE HIS ORDERS ARE MODIFIED PRIOR TO THE EFFECTIVE DATE AS SO DETERMINED, LEAVING HIM TO BEAR THE EXPENSE OF TRAVEL IN EXCESS OF SUCH DISTANCE PERFORMED DURING THE PERIOD OF LEAVE OR DELAY GRANTED IN THE BASIC ORDERS. IT IS REPRESENTED THAT A MODIFICATION OF ORDERS THUS GIVES RISE TO AN INEQUITY WHICH THE PROPOSED CHANGE IN THE REGULATIONS IS DESIGNED TO ELIMINATE. UNDER THE SUGGESTED CHANGE, NO TRAVEL PERFORMED AFTER DETACHMENT AT THE OLD STATION, TO THE EXTENT THAT SUCH TRAVEL MAY BE IN THE DIRECTION OF THE FIRST NEW STATION, WOULD BE REGARDED AS TRAVEL IN A LEAVE STATUS NOTWITHSTANDING THE FACT THAT THE DATE OF DETACHMENT WAS NOT THE DAY ON WHICH THE MEMBER NECESSARILY HAD TO LEAVE THE OLD STATION TO REPORT AT THE NEW STATION AT THE APPOINTED TIME BUT HAD BEEN ADVANCED IN ORDER TO AFFORD THE MEMBER AN OPPORTUNITY TO AVAIL HIMSELF OF THE LEAVE AUTHORIZED IN THE ORDERS.

IN JUSTIFICATION OF THE PROPOSED CHANGE IT IS STATED THAT THE PROVISIONS OF THE CURRENT REGULATION ARE IN CONSONANCE WITH OUR DECISIONS WHICH WERE ISSUED MAINLY ON THE BASIS THAT A LEAVE OR A DAY EN ROUTE IS FOR THE BENEFIT OF THE MEMBER AND NOT THE GOVERNMENT. IN SUPPORT OF THE APPARENT CONTENTION THAT TRAVEL PERFORMED FOLLOWING EARLY DETACHMENT UNDER PERMANENT CHANGE OF STATION ORDERS ON ACCOUNT OF THE LEAVE OR DELAY EN ROUTE AUTHORIZED, BUT PRIOR TO THE MODIFICATION OF SUCH ORDERS DESIGNATING A NEW PERMANENT STATION OR REASSIGNING THE MEMBER TO HIS OLD PERMANENT STATION, IS FOR THE BENEFIT OF THE GOVERNMENT, TWO HYPOTHETICAL CASES ARE PRESENTED TENDING TO SHOW THAT LEAVE GRANTED MEMBERS IN CONJUNCTION WITH PERMANENT CHANGE OF STATION ORDERS IS DEVOTED LARGELY TO UPROOTING DEPENDENTS AT THE OLD STATION AND RESETTLING THEM AT THE NEW STATION. THE EXCESS TRAVEL RESULTING FROM MODIFICATION OF THE ORDERS PRIOR TO THE DATE ON WHICH THE MEMBERS WOULD HAVE DEPARTED THEIR OLD STATIONS BUT FOR THE LEAVE INVOLVED IS 3,425 MILES IN THE FIRST EXAMPLE AND 750 MILES IN THE SECOND.

THE COURTS HAVE DEFINED LEAVE AS A PERIOD OF RESPITE FROM MILITARY DUTIES GRANTED FOR THE MEMBER'S SOLE ACCOMMODATION, DURING WHICH TIME HE IS FREE TO TRAVEL WHERE HE CHOOSES, EMPLOY HIS TIME AS HE PLEASES, OR SURRENDER HIS LEAVE IF HE SO DESIRES, THE ONLY REQUIREMENT BEING THAT HE REPORT AT HIS PROPER STATION AT THE EXPIRATION OF HIS LEAVE. FOSTER V. UNITED STATES, 43 C.1CLS. 170, 174; MCCAULY V. UNITED STATES, 50 ID. 105, 109. FURTHER, THE COURTS HAVE HELD THAT A MEMBER TAKES HIS LEAVE AT HIS OWN RISK; THAT TRAVEL PERFORMED WHILE ON LEAVE MUST BE AT THE MEMBER'S OWN EXPENSE; AND THAT THE EXPIRATION OF LEAVE FINDS AN OFFICER, IN LEGAL CONTEMPLATION, AT HIS POST. FITZPATRICK V. UNITED STATES, 37 C.1CLS. 332, 336; ELMORE V. UNITED STATES. 61 ID. 173, 179, MILEAGE IS A FORM OF REIMBURSEMENT FOR MONEY EXPENDED BY AN OFFICER IN THE GOVERNMENT SERVICE, AND PUBLIC BUSINESS IS THE FOUNDATION ON WHICH MILEAGE RESTS. PERRIMOND V. UNITED STATES, 19 C.1CLS. 509; DAY V. UNITED STATES, 123 ID. 10, 18. SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813, 37 U.S.C. 253 (A), PROVIDES, AS IN THE CASE OF THE EARLIER STATUTES, THAT MEMBERS SHALL BE ENTITLED TO RECEIVE TRAVEL AND TRANSPORTATION ALLOWANCES, OR MILEAGE, FOR TRAVEL PERFORMED UNDER COMPETENT ORDERS, WHICH PRESUPPOSES TRAVEL ON PUBLIC BUSINESS. THUS IT IS EVIDENT THAT TO AUTHORIZE REIMBURSEMENT FOR TRAVEL PERFORMED DURING A PERIOD OF LEAVE REQUIRES A CONCLUSION THAT SUCH TRAVEL IS TRAVEL ON PUBLIC BUSINESS.

REFERRING FIRST TO THE SECOND TYPICAL CASE SUBMITTED, IF THE LEAVE GRANTED IN CONJUNCTION WITH THE PERMANENT CHANGE OF STATION WAS REQUESTED WITH THE INTENTION, AS INDICATED, OF PROCEEDING PROMPTLY TO THE VICINITY OF THE DESIGNATED NEW PERMANENT STATION, IT WOULD APPEAR THAT THE REPORTING DATE IN THE ORDERS MIGHT WELL HAVE BEEN ADVANCED SO AS TO ALLOW TIME FOR TAKING LEAVE AT THE NEW STATION. AS TO THE SECOND TYPICAL CASE, THE CIRCUMSTANCES CONCERNING THE LEAVE AT THE NEW STATION ARE THE SAME AS THOSE IN THE FIRST AND NEITHER THE CURRENT REGULATION RELATING TO THE EFFECTIVE DATE OF ORDERS, NOR THE PROPOSED CHANGE, IN ANY WAY AFFECTS SUCH LEAVE TAKEN PRIOR TO DEPARTURE FROM THE OLD STATION IRRESPECTIVE OF THE USE TO WHICH THE LEAVE WAS PUT. OF COURSE, EVEN IF OTHER REMEDIES FOR THE SITUATIONS COMPLAINED OF MIGHT BE FOUND, THERE WOULD REMAIN THAT LARGE CLASS OF CASES WHERE TRAVEL DURING PERIODS OF LEAVE OR DELAY PRIOR TO MODIFICATION OF ORDERS IS TO POINTS OTHER THAN THE STATION DESIGNATED IN THE BASIC ORDERS.

UNQUESTIONABLY, FREE TIME, THAT IS, TIME NOT CHARGED AGAINST LEAVE, AVAILABLE TO A MEMBER FREQUENTLY IS LESS THAN THAT REQUIRED FOR MOVING HIS DEPENDENTS UPON PERMANENT CHANGE OF STATION, BUT EVEN IF LEAVE GRANTED IN HIS ORDERS SHOULD BE USED SOLELY FOR THAT PURPOSE, WE DEEM IT EXTREMELY DOUBTFUL THAT SUCH USE WOULD BE SUFFICIENT TO CONSTITUTE THE EARLY TRAVEL INVOLVED AS TRAVEL ON PUBLIC BUSINESS. BE THAT AS IT MAY, HOWEVER, TRAVEL TO POINTS OF THE MEMBER'S OWN SELECTION HAVING NO RELATION TO A NEW STATION, PERFORMED DURING A PERIOD OF LEAVE GRANTED IN CONJUNCTION WITH PERMANENT CHANGE OF STATION ORDERS, OBVIOUSLY WOULD NO MORE BE TRAVEL ON PUBLIC BUSINESS THAN TRAVEL PERFORMED DURING LEAVE GRANTED IN ANY OTHER CIRCUMSTANCES.

IN VIEW OF THE FOREGOING, AND THE CITED COURT DECISIONS, IT APPEARS CLEAR THAT THE REASONS ADVANCED IN THE LETTER OF JULY 27, 1956, AFFORD NO LEGAL BASIS FOR CHANGING THE LONG ESTABLISHED RULE THAT REIMBURSEMENT FOR TRAVEL PERFORMED INCIDENT TO PERMANENT CHANGE OF STATION ORDERS WHICH ARE MODIFIED DURING A PERIOD OF LEAVE OR DELAY GRANTED IN SUCH ORDERS IS LIMITED TO THE DISTANCE FROM THE OLD PERMANENT STATION TO THE ULTIMATE NEW PERMANENT STATION. HENCE, WE MUST CONCLUDE THAT THE PROPOSED CHANGE IN THE REGULATIONS GOES BEYOND THE SCOPE OF THE APPLICABLE STATUTE AND, IF PROMULGATED WOULD BE INVALID. YOUR QUESTIONS IS ANSWERED ACCORDINGLY.