B-131304, MAY 17, 1957, 36 COMP. GEN. 777

B-131304, MAY 17, 1957, 36 COMP. GEN. 777

WITNESSES BEFORE MILITARY COURTS - MILEAGE COMPUTATIONS - UNIFORM TABLE OF DISTANCES DESIGNATED BY THE ATTORNEY GENERAL WITNESSES (OTHER THAN GOVERNMENT EMPLOYEES AND MEMBERS OF THE UNIFORMED SERVICES) WHO ARE REQUIRED TO APPEAR BEFORE MILITARY COURTS ARE ENTITLED TO THE SAME MILEAGE PAYMENTS AS WITNESSES IN UNITED STATES COURTS (28 U.S.C. 1821), AND THE UNIFORM TABLE OF DISTANCES DESIGNATED BY THE ATTORNEY GENERAL, WHICH AT PRESENT IS THE RANK MCNALLY STANDARD HIGHWAY MILEAGE GUIDE, SHOULD BE USED IN THE COMPUTATION OF MILEAGE PAYMENTS. WHEN THE IMPORT OF A DECISION OF THE COMPTROLLER GENERAL OF THE UNITED STATES IS CHANGED BY SUBSEQUENT STATUTE, THE STATUTE CONTROLS.

TO THE SECRETARY OF THE ARMY, MAY 17, 1957:

ON MARCH 26, 1957, THE ASSISTANT SECRETARY REQUESTED OUR ADVICE AS TO (1) WHETHER PAYMENT OF MILEAGE FOR ATTENDANCE OF WITNESSES AT MILITARY COURTS MUST BE COMPUTED ON THE BASIS OF THE UNIFORM TABLE OF DISTANCES ADOPTED BY THE ATTORNEY GENERAL, OR (2) WHETHER PAYMENT OF SUCH MILEAGE BY YOUR DEPARTMENT MAY BE COMPUTED ON THE BASIS OF THE DISTANCES ESTABLISHED BY THE CHIEF OF FINANCE, AND (3) WHETHER OUR DECISION, 11 COMP. GEN. 60, IS STILL IN EFFECT.

THE AUTHORITY FOR THE PAYMENT OF MILEAGE GENERALLY TO WITNESSES (OTHER THAN GOVERNMENT CIVILIAN OFFICERS AND EMPLOYEES AND MEMBERS OF THE UNIFORMED SERVICES AS WITNESSES ON BEHALF OF THE UNITED STATES) ATTENDING IN ANY COURT OF THE UNITED STATES, OR BEFORE A UNITED STATES COMMISSIONER, OR BEFORE ANY PERSON AUTHORIZED TO TAKE HIS DEPOSITION PURSUANT TO ANY RULE OR ORDER OF A COURT OF THE UNITED STATES, IS CONTAINED IN 28 U.S.C. 1821, AS AMENDED BY THE ACT OF AUGUST 1, 1956, 70 STAT. 798. THAT ACT PROVIDES:

* * * REGARDLESS OF THE MODE OF TRAVEL EMPLOYED BY THE WITNESS, COMPUTATION OF MILEAGE UNDER THIS SECTION SHALL BE MADE ON THE BASIS OF A UNIFORM TABLE OF DISTANCES ADOPTED BY THE ATTORNEY GENERAL. * * *

DEPARTMENT OF JUSTICE ORDER NO. 126-56 DATED AUGUST 13, 1956, 21 FED. REG. 6172, 28 C.F.R. 21.4, PROVIDES AS FOLLOWS:

REGARDLESS OF THE MODE OF TRAVEL ACTUALLY EMPLOYED, MILEAGE PAYABLE TO WITNESSES UNDER SECTION 1821 OF TITLE 28 OF THE UNITED STATES CODE, AS AMENDED BY THE ACT OF AUGUST 1, 1956, 70 STAT. 798, SHALL BE COMPUTED ON THE BASIS OF HIGHWAY DISTANCES AS STATED IN ANY GENERALLY ACCEPTED HIGHWAY MILEAGE GUIDE WHICH CONTAINS A SHORT-LINE NATION-WIDE TABLE OF DISTANCES AND WHICH IS DESIGNATED BY THE ADMINISTRATIVE ASSISTANT ATTORNEY GENERAL FOR SUCH PURPOSE: PROVIDED, THAT WITH RESPECT TO TRAVEL IN AREAS FOR WHICH NO SUCH HIGHWAY MILEAGE GUIDE EXISTS MILEAGE PAYABLE UNDER THE SAID SECTION 1821 SHALL BE COMPUTED ON THE BASIS (A) OF THE MODE OF TRAVEL ACTUALLY EMPLOYED, (B) OF A USUALLY-TRAVELED ROUTE, AND (C) OF DISTANCES AS GENERALLY ACCEPTED IN THE LOCALITY.

WE HAVE BEEN INFORMALLY ADVISED THAT THE DEPARTMENT OF JUSTICE, BY CIRCULAR NO. 203 DATED AUGUST 13, 1956, HAS DESIGNATED THE RAND MCNALLY STANDARD HIGHWAY MILEAGE GUIDE AS THE HIGHWAY MILEAGE GUIDE TO BE USED FOR COMPUTATION OF MILEAGE UNDER THE 1956 ACT FOR WITNESSES. ALSO, THAT FOR TRAVEL IN AREAS NOT COVERED BY THE GUIDE, THE MILEAGE WILL BE COMPUTED ON THE BASIS OF THE PROVISO IN THE ABOVE-QUOTED ORDER NO. 126 56.

WHILE THE UNIFORM CODE OF MILITARY JUSTICE DOES NOT HAVE A SPECIFIC ARTICLE OR SECTION WHICH SHOWS THE METHOD OF COMPUTING THE MILEAGE OF WITNESSES GENERALLY, ARTICLE 47, 10 U.S.C. 847, PROVIDES THAT PERSONS NOT SUBJECT TO THE CODE WHO REFUSE TO APPEAR OR TESTIFY BEFORE MILITARY TRIBUNALS UNDER CERTAIN CONDITIONS ARE DEEMED GUILTY OF AN OFFENSE AGAINST THE UNITED STATES, AND PRESCRIBES AS ONE OF THE CONDITIONS THAT THE PERSON SHALL HAVE BEEN "DULY PAID OR TENDERED THE FEES AND MILEAGE OF A WITNESS AT THE RATES ALLOWED TO WITNESSES ATTENDING THE COURTS OF THE UNITED STATES.' IT THUS APPEARS THAT THE CONGRESS INTENDED WITNESSES NOT SUBJECT TO THE CODE WHO APPEAR BEFORE MILITARY COURTS SHOULD BE PAID MILEAGE AT THE RATE PAID WITNESSES APPEARING BEFORE THE COURTS OF THE UNITED STATES.

THE MILEAGE TABLES FOR MEMBERS OF THE UNIFORMED SERVICES PREPARED BY THE CHIEF OF FINANCE PURSUANT TO SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813, 37 U.S.C. 253 (A), ARE REQUIRED TO BE "BASED ON DISTANCES ESTABLISHED OR TO BE ESTABLISHED OVER THE SHORTEST USUALLY TRAVELED ROUTES.' THE MILEAGE TABLES PREPARED PURSUANT TO SECTION 303 (A) ARE CONTAINED IN AR-55-60, AFW-173-35, PARAGRAPH 5 OF WHICH SAYS THAT THE "DISTANCES ESTABLISHED BY THESE TABLES HAVE BEEN COMPUTED ON THE BASIS OF THE SHORTEST USUALLY TRAVELED ROUTE AFTER COMPARISON OF AVAILABLE ROUTES AND MODES OF TRAVEL" AND CONSIDERATION OF SUCH FACTORS AS THE AVAILABILITY OF FIRST CLASS TRANSPORTATION, THROUGH SERVICE, NECESSARY CHARGES OR DELAYS EN ROUTE, COMPARATIVE DISTANCES, AND RELATED FACTORS. IT IS THEREFORE CLEAR THAT THESE TABLES WOULD NOT RESULT, IN MANY INSTANCES, IN THE SAME PAYMENT AS WOULD BE MADE UNDER THE REQUIREMENT OF THE DEPARTMENT OF JUSTICE ORDER THAT MILEAGE PAYABLE TO WITNESSES UNDER THE 1956 ACT SHALL BE COMPUTED ON THE BASIS OF HIGHWAY DISTANCES AS STATED IN THE RAND MC1NALLY STANDARD HIGHWAY MILEAGE GUIDE. ACCORDINGLY, IN ANSWER TO YOUR QUESTIONS ONE AND TWO, OUR VIEW IS THAT THE PAYMENT OF MILEAGE FOR ATTENDANCE OF WITNESSES (OTHER THAN GOVERNMENT CIVILIAN OFFICERS AND EMPLOYEES AND MEMBERS OF THE UNIFORMED SERVICES AS WITNESSES ON BEHALF OF THE UNITED STATES) AT MILITARY COURTS MUST BE COMPUTED ON THE BASIS OF THE UNIFORM TABLE OF DISTANCES ADOPTED BY THE ATTORNEY GENERAL.

THE ASSISTANT SECRETARY REFERS TO OUR DECISION 11 COMP. GEN. 60, WHICH HELD THAT THE MILEAGE PAYABLE UNDER THE STATUTE CONSIDERED IN THAT DECISION WAS TO BE COMPUTED ON THE SHORTEST USUALLY-TRAVELED ROUTE BETWEEN THE TWO POINTS, WHICH IS USUALLY THE DISTANCE BY RAIL WHERE RAIL TRANSPORTATION IS AVAILABLE, AND ASKS WHETHER THAT DECISION IS STILL IN EFFECT. CONCERNING THAT DECISION IT SUFFICES TO SAY THAT WHERE, AS HERE, A SUBSEQUENT STATUTE PROVIDES FOR THE COMPUTATION OF MILEAGE ON A SPECIFIC BASIS THE STATUTE CONTROLS. ALSO, SEE 34 COMP. GEN. 307.