B-130609, MAY 1, 1957

B-130609, MAY 1, 1957

TO THE SECRETARY OF THE ARMY:

FURTHER REFERENCE IS MADE TO LETTER OF FEBRUARY 4, 1957, FROM THE ASSISTANT SECRETARY OF THE ARMY, REQUESTING A DECISION WHETHER MEMBERS OF RESERVE COMPONENTS, UNDER THE CONDITIONS OUTLINED THEREIN, ARE ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES UNDER SECTION 303/A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813. THAT SECTION AUTHORIZES THE PAYMENT OF TRAVEL AND TRANSPORTATION ALLOWANCES TO "MEMBERS OF THE UNIFORMED SERVICES * * * FOR TRAVEL PERFORMED OR TO BE PERFORMED UNDER COMPETENT ORDERS (1) UPON A PERMANENT CHANGE OF STATION, OR OTHERWISE, OR WHEN AWAY FROM THEIR DESIGNATED POSTS OF DUTY * * *.'

SECTION 501/A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 825, PROVIDES, IN PERTINENT PART, THAT UNDER SUCH REGULATIONS AS THE SECRETARY CONCERNED MAY PRESCRIBE, RESERVE AND NATIONAL GUARD PERSONNEL "SHALL BE ENTITLED TO RECEIVE COMPENSATION AT THE RATE OF ONE-THIRTIETH OF THE BASIC PAY AUTHORIZED FOR SUCH MEMBERS OF THE UNIFORMED SERVICES WHEN ENTITLED TO RECEIVE BASIC PAY, FOR EACH REGULAR PERIOD OF INSTRUCTION, OR PERIOD OF APPROPRIATE DUTY, AT WHICH THEY SHALL HAVE BEEN ENGAGED FOR NOT LESS THAN TWO HOURS, INCLUDING THOSE PERFORMED ON SUNDAYS AND HOLIDAYS, OR FOR THE PERFORMANCE OF SUCH OTHER EQUIVALENT TRAINING, INSTRUCTION, OR DUTY OR APPROPRIATE DUTIES AS MAY BE PRESCRIBED BY THE SECRETARY CONCERNED * *

IN OUR DECISION OF MAY 23, 1956, B-127442, TO THE SECRETARY OF THE AIR FORCE, IT WAS HELD THAT RESERVE OFFICERS ENTITLED TO INACTIVE-DUTY PAY UNDER SECTION 510/A) OF THE CAREER COMPENSATION ACT OF 1949 ARE MEMBERS OF THE UNIFORMED SERVICES WITHIN THE MEANING OF SECTION 303/A) OF THAT CT; AND, HENCE, THAT SUCH OFFICERS, TRAVELING UNDER COMPETENT ORDERS IN CONNECTION WITH THE EXERCISE OF COMMAND OR STAFF FUNCTIONS OVER SUBORDINATE UNITS LOCATED AT PLACES OTHER THAN THE LOCATION OF THE RESERVE UNIT HEADQUARTERS, ARE ENTITLED TO ALLOWANCES UNDER SECTION 303/A), SHOULD THE REGULATIONS BE AMENDED TO SO PROVIDE.

THE LETTER OF FEBRUARY 4, 1957, REFERS TO THE ABOVE DECISION OF MAY 23, 1956, AND PRESENTS THREE QUESTIONS WHICH, IT IS STATED, HAVE ARISEN IN CONNECTION WITH THE MODIFICATION OF THE REGULATIONS TO ACCORD WITH THAT DECISION.

THE FIRST QUESTION IS STATED AS FOLLOWS:

"RESERVE PERSONNEL ARE AUTHORIZED INACTIVE-DUTY FOR A MAXIMUM OF 48 DRILLS IN ANY CALENDAR YEAR. MEMBERS OF THE RESERVE COMPONENTS WHO ARE REQUIRED TO PERFORM TRAVEL TO SUBORDINATE UNITS IN CONNECTION WITH THEIR DUTIES IN THEIR UNITS ARE NOT ENTITLED TO INACTIVE-DUTY PAY FOR ALL DAYS UPON WHICH TRAVEL AND TEMPORARY DUTY IS PERFORMED. TO ILLUSTRATE; A RESERVE UNIT WITH HEADQUARTERS IN TEXAS HAS SUBORDINATE UNITS IN SOUTH CAROLINA. IN ORDER TO INSPECT TRAINING IN ONE OF THOSE UNITS BETWEEN 2000 AND 2200 ON A THURSDAY, THE UNIT COMMANDER WOULD BE REQUIRED TO DEPART FROM HIS TEXAS HEADQUARTERS ON WEDNESDAY AND RETURN THERETO ON FRIDAY EVENING OR SATURDAY FOLLOWING. INACTIVE-DUTY PAY WOULD BE AUTHORIZED IN SUCH CASE ONLY FOR THURSDAY. QUAERE: MAY THE RESERVIST IN THIS CASE BE ENTITLED TO THE ALLOWANCES PRESCRIBED IN SECTION 303/A) OF THE CAREER COMPENSATION ACT OF 1949, IF THE REGULATIONS WERE AMENDED ACCORDINGLY, FOR THE ENTIRE PERIOD OF TRAVEL AND TEMPORARY DUTY INVOLVED OR WOULD HE BE ENTITLED TO SUCH ALLOWANCES ONLY ON SUCH DAYS AS HE WERE ALSO ENTITLED TO INACTIVE-DUTY PAY?

IN THE ABOVE QUESTION THE OFFICER IS, FROM WEDNESDAY TO FRIDAY OR SATURDAY, IN THE SUCCESSIVE SITUATIONS OF TRAVEL TO INACTIVE DUTY WITH PAY, PERFORMING SUCH DUTY, AND RETURNING FROM SUCH DUTY. IT INVOLVES A ROUND TRIP OF THREE OR FOUR DAYS IN DURATION IN ORDER TO BE PRESENT AT A TWO-HOUR DRILL. IT SHOULD BE NOTED THAT TRAVEL AND TRANSPORTATION ALLOWANCES ARE AUTHORIZED ONLY IN CONNECTION WITH TRAVEL WHICH IS NECESSARY IN THE MILITARY SERVICE. IN THE FIRST INSTANCE, IT IS THE DUTY OF ADMINISTRATIVE OFFICERS RESPONSIBLE FOR DIRECTING TRAVEL TO DETERMINE THAT THE TRAVEL REQUIRED BY ORDERS IS NECESSARY. THE NATURE OF THE DUTY AND THE TRAVEL INVOLVED IN THIS QUESTION SUGGEST THAT DUE CONSIDERATION MAY NOT HAVE BEEN GIVEN TO THAT FEATURE OF THE MATTER, BUT YOUR REQUEST FOR DECISION CONTAINS NO FACTUAL INFORMATION AS TO THAT PHASE OF THE QUESTION. HENCE, OUR DECISION IS NOT TO BE UNDERSTOOD AS A CONCLUSION THAT TRAVEL AND TRANSPORTATION ALLOWANCES ARE AUTHORIZED FOR SUCH EXTENDED TRAVEL.

HOWEVER, THE FIRST QUESTION MAY BE ANSWERED BY SAYING THAT, UPON APPROPRIATE AMENDMENT OF THE REGULATIONS, AN OFFICER MAY BECOME ENTITLED TO THE ALLOWANCES AUTHORIZED IN SECTION 303/A) OF THE CAREER COMPENSATION ACT OF 1949 FOR NECESSARY TRAVEL TIME, IN CONNECTION WITH INACTIVE-DUTY TRAINING WITH PAY EVEN THOUGH NO RIGHT TO INACTIVE-DUTY PAY ACCRUES FOR ALL THE DAYS OF TRAVEL.

THE SECOND QUESTION IS STATED AS FOLLOWS:

"THERE IS ALSO THE CASE OF THE RESERVIST PERFORMING INACTIVE DUTY TRAINING FOR WEEKENDS AT PLACES OTHER THAN HIS RESERVE UNIT HEADQUARTERS. MEMBERS OF NAVAL RESERVE UNITS, FOR EXAMPLE, WITH HEADQUARTERS IN WASHINGTON, D.C., MAY PERFORM INACTIVE-DUTY TRAINING ON A WEEKEND ABOARD SHIP AT NORFOLK. THE RESERVISTS TRAVEL TO NORFOLK, VIRGINIA, ON SATURDAY AND RETURN TO THEIR UNIT HEADQUARTERS ON SUNDAY; TRAVEL IN SUCH CASES BEING PERFORMED BEFORE TRAINING-DUTY HOURS ON ARRIVAL AND AFTER TRAINING- DUTY HOURS ON DEPARTURE. INACTIVE DUTY PAY IS ALLOWED FOR BOTH DAYS IN SUCH INSTANCES. QUAERE: MAY THE RESERVISTS IN THESE CASES BE AUTHORIZED ALLOWANCES FOR TRAVEL AND TEMPORARY DUTY IN THE MANNER DISCUSSED IN YOUR DECISION B-127442, CITED IN PARAGRAPH 1?

IT WAS SAID IN B-127442 THAT IF AN OFFICER PERFORMING INACTIVE-DUTY TRAINING "IS ASSIGNED THE DUTY OF EXERCISING STAFF OR COMMAND FUNCTIONS OVER A RESERVE UNIT AT THE HEADQUARTERS OF THAT UNIT, IT WOULD SEEM THAT SUCH HEADQUARTERS WOULD BE HIS DESIGNATED POST OF DUTY AND THAT, IF ORDERS WERE ISSUED BY COMPETENT AUTHORITY DIRECTING HIM TO PROCEED TO SUBORDINATE UNITS LOCATED IN OTHER CITIES, HE COULD BE REGARDED AS BEING IN A STATUS OF TRAVELING AWAY FROM HIS DESIGNATED POST OF DUTY WITHIN THE MEANING OF SECTION 303/A) * * *.' QUESTION 2 IS ANSWERED BY SAYING THAT REGULATIONS UNDER WHICH THE RESERVISTS WOULD BE ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES FOR NECESSARY TRAVEL TO AND FROM NORFOLK WOULD BE WITHIN THE SCOPE OF THE LAW.

THE THIRD QUESTION IS AS FOLLOWS:

"DOES THE TERM "OTHER DUTY" EMPLOYED IN SECTION 501/B) OF THE CAREER COMPENSATION ACT OF 1949 REFER EXCLUSIVELY TO INACTIVE DUTY TRAINING?

SECTION 501/B) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 826, PROVIDES THAT:

"MEMBERS OF THE NATIONAL GUARD, AIR NATIONAL GUARD, NATIONAL GUARD OF THE UNITED STATES, THE AIR NATIONAL GUARD OF THE UNITED STATES, ORGANIZED RESERVE CORPS, NAVAL RESERVE, MARINE CORPS RESERVE, COAST GUARD RESERVE, AND THE RESERVE CORPS OF THE PUBLIC HEALTH SERVICE, MAY BE GIVEN ADDITIONAL TRAINING OR OTHER DUTY AS PROVIDED FOR BY LAW, WITHOUT PAY, AS MAY BE AUTHORIZED BY THE SECRETARY CONCERNED, WITH THEIR CONSENT, AND WHEN SUCH AUTHORIZED TRAINING OR OTHER DUTY WITHOUT PAY IS PERFORMED THEY MAY, IN THE DISCRETION OF THE SECRETARY CONCERNED, BE FURNISHED WITH TRANSPORTATION TO AND FROM SUCH DUTY, WITH SUBSISTENCE EN ROUTE, AND, DURING THE PERFORMANCE OF SUCH DUTY, BE FURNISHED WITH SUBSISTENCE AND QUARTERS IN KIND OR COMMUTATION THEREOF AT A RATE TO BE FIXED FROM TIME TO TIME BY THE SECRETARY CONCERNED.'

SECTION 102 OF THE ABOVE ACT, 63 STAT. 804, 805, PROVIDES, IN PERTINENT PART, THAT:

"FOR THE PURPOSES OF THIS ACT---

"/I) THE TERM "INACTIVE DUTY TRAINING" SHALL BE INTERPRETED TO MEAN ANY OF THE TRAINING, INSTRUCTION, DUTY, APPROPRIATE DUTIES, OR EQUIVALENT TRAINING, INSTRUCTION, DUTY, APPROPRIATE DUTIES, OR HAZARDOUS DUTY PERFORMED WITH OR WITHOUT COMPENSATION BY MEMBERS OF THE RESERVE COMPONENTS OF THE UNIFORMED SERVICES AS MAY BE PRESCRIBED BY THE SECRETARY CONCERNED PURSUANT TO SECTION 501 OF THIS ACT OR ANY OTHER PROVISION OF LAW, AND IN ADDITION THERETO SHALL INCLUDE THE PERFORMANCE OF SPECIAL ADDITIONAL DUTIES, AS MAY BE AUTHORIZED BY COMPETENT AUTHORITY, BY SUCH MEMBERS ON A VOLUNTEER BASIS IN CONNECTION WITH THE PRESCRIBED TRAINING OR MAINTENANCE ACTIVITIES OF THE UNIT TO WHICH THE MEMBERS ARE ASSIGNED: PROVIDED, THAT THE TERM "INACTIVE DUTY TRAINING" SHALL NOT INCLUDE WORK OR STUDY PERFORMED BY SUCH MEMBERS IN CONNECTION WITH CORRESPONDENCE COURSES OF THE UNIFORMED SERVICES * * *.'

WHILE IT APPEARS REASONABLE TO ASSUME A LEGISLATIVE INTENT THAT THE DUTIES WHICH MAY BE PERFORMED UNDER AUTHORITY OF SECTION 501/B) OF THE CAREER COMPENSATION ACT OF 1949 SHALL BE COEXTENSIVE WITH DUTIES ATTENDANT UPON AN ACTIVE DUTY STATUS IN THE ABSENCE OF AN EXPRESS STATUTORY PROVISION TO THE CONTRARY (SEE, FOR EXAMPLE, SECTION 102/6//A) OF THE SERVICEMEN'S AND VETERANS' SURVIVOR BENEFITS ACT, 70 STAT. 859, AND THE ABOVE-QUOTED PROVISO IN SECTION 102 OF THE CAREER COMPENSATION ACT EXCLUDING FROM THE TERM "INACTIVE DUTY TRAINING" WORK OR STUDY IN CONNECTION WITH CORRESPONDENCE COURSES OF THE UNIFORMED SERVICES AND ATTENDANCE AT AN EDUCATIONAL INSTITUTION IN AN INACTIVE STATUS UNDER SPONSORSHIP OF ONE OF THE SERVICES) YOUR THIRD QUESTION, AS PRESENTLY STATED, IS TOO GENERAL TO ADMIT OF AN ANSWER.