B-132812, OCTOBER 18, 1957, 37 COMP. GEN. 262

B-132812: Oct 18, 1957

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IS DETACHED FROM ACTIVE DUTY NOT MORE THAN 10 DAYS LATER IS A RESERVE OFFICER AND HE MAY NOT HAVE ANY REGULAR TIME USED TO AUGMENT THE RESERVE TIME SO AS TO BE REGARDED AS A RESERVIST CALLED TO ACTIVE DUTY IN EXCESS OF THIRTY DAYS FOR PAYMENT OF ADDITIONAL TRAVEL BENEFITS. ONLY ACTIVE DUTY PAY FOR TRAVEL TIME TO THE PLACE FROM WHICH HE WAS ORDERED TO RESERVE ACTIVE DUTY MAY BE ALLOWED. IS TRANSFERRED TO THE NAVAL RESERVE UPON THE EXPIRATION OF HIS ENLISTMENT AND THEN ISSUED A RELEASE FROM ACTIVE DUTY IS REGARDED AS HAVING BEEN RELEASED AS A RESERVE MEMBER RATHER THAN A REGULAR AND IS NOT ENTITLED TO ANY TRAVEL TIME INCIDENT TO RELEASE FROM ACTIVE DUTY IN THE NAVAL RESERVE. 1957: FURTHER REFERENCE IS MADE TO LETTER OF AUGUST 1.

B-132812, OCTOBER 18, 1957, 37 COMP. GEN. 262

MILITARY PERSONNEL - REGULAR MEMBERS ACCEPTING RESERVE COMMISSIONS - RELEASE FROM ACTIVE DUTY - TRAVEL TIME A MARINE CORPS OFFICER WHO, ON ACCEPTANCE OF A RESERVE COMMISSION AND TERMINATION OF HIS REGULAR COMMISSION PURSUANT TO 10 U.S.C. 6907, IS DETACHED FROM ACTIVE DUTY NOT MORE THAN 10 DAYS LATER IS A RESERVE OFFICER AND HE MAY NOT HAVE ANY REGULAR TIME USED TO AUGMENT THE RESERVE TIME SO AS TO BE REGARDED AS A RESERVIST CALLED TO ACTIVE DUTY IN EXCESS OF THIRTY DAYS FOR PAYMENT OF ADDITIONAL TRAVEL BENEFITS, AND ONLY ACTIVE DUTY PAY FOR TRAVEL TIME TO THE PLACE FROM WHICH HE WAS ORDERED TO RESERVE ACTIVE DUTY MAY BE ALLOWED. AN INDIVIDUAL WHO ENLISTS IN THE REGULAR NAVY BEFORE HIS TWENTY SIXTH BIRTHDAY AND WHO, PURSUANT TO 10 U.S.C. 651, IS TRANSFERRED TO THE NAVAL RESERVE UPON THE EXPIRATION OF HIS ENLISTMENT AND THEN ISSUED A RELEASE FROM ACTIVE DUTY IS REGARDED AS HAVING BEEN RELEASED AS A RESERVE MEMBER RATHER THAN A REGULAR AND IS NOT ENTITLED TO ANY TRAVEL TIME INCIDENT TO RELEASE FROM ACTIVE DUTY IN THE NAVAL RESERVE.

TO THE SECRETARY OF DEFENSE, OCTOBER 18, 1957:

FURTHER REFERENCE IS MADE TO LETTER OF AUGUST 1, 1957, FROM THE ASSISTANT SECRETARY OF DEFENSE, FORWARDING A COPY OF COMMITTEE ACTION NO. 191, MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE, AND REQUESTING A DECISION ON THE QUESTIONS THERE PRESENTED RELATIVE TO PAYMENT OF ACTIVE DUTY PAY AND ALLOWANCES TO MEMBERS OF THE UNIFORMED SERVICES FOR TRAVEL TIME INCIDENT TO THEIR RELEASE FROM ACTIVE DUTY, IN THE CIRCUMSTANCES DESCRIBED AS FOLLOWS:

1. AN OFFICER WHO HAS BEEN COMMISSIONED IN THE REGULAR MARINE CORPS UNDER THE PROVISIONS OF 10 U.S.C. 6904 REQUESTS THAT HIS COMMISSION BE TERMINATED PRIOR TO THE THIRD ANNIVERSARY OF HIS ACCEPTANCE OF THE APPOINTMENT. HIS REQUEST IS APPROVED CONTINGENT AND EFFECTIVE UPON HIS ACCEPTANCE OF A COMMISSION IN THE MARINE CORPS RESERVE, THIS ACTION BEING TAKEN PURSUANT TO THE PROVISIONS OF 10 U.S.C. 6907. UPON ACCEPTANCE OF THE RESERVE COMMISSION, THE OFFICER IS ASSIGNED TO ACTIVE DUTY BY A COMPETENT DIRECTIVE WHICH SPECIFIES THAT HE WILL BE DETACHED FROM HIS PRESENT DUTY STATION UNDER RELEASE FROM ACTIVE DUTY ORDERS WHEN DIRECTED BY HIS COMMANDING OFFICER, THE DATE OF DETACHMENT TO BE NOT LATER THAN 10 DAYS AFTER THE DATE OF HIS ASSIGNMENT TO ACTIVE DUTY. HE IS DETACHED FROM HIS DUTY STATION ON THE FIFTH DAY FOLLOWING HIS ASSIGNMENT TO ACTIVE DUTY, AND IS DIRECTED TO PROCEED TO HIS HOME AND STAND RELEASED FROM ACTIVE DUTY. HIS RELEASE ORDERS AUTHORIZE HIM TO PERFORM TRAVEL BY PRIVATELY OWNED CONVEYANCE. (ENCLOSURES (1) THROUGH (4) REFLECT THE PROCEDURES INVOLVED IN THIS TYPE OF CASE.)

A. MAY THIS OFFICER BE CONSIDERED AS HAVING BEEN ORDERED TO ACTIVE DUTY FOR A PERIOD IN EXCESS OF 30 DAYS SO AS TO PERMIT HIS TRAVEL TIME INCIDENT TO RELEASE FROM ACTIVE DUTY TO BE COMPUTED ON THE BASIS OF THAT INVOLVED FROM HIS LAST DUTY STATION TO HIS HOME AS RECORDED AT THE TIME OF ACCEPTANCE OF HIS COMMISSION IN THE REGULAR MARINE CORPS?

B. MAY THIS OFFICER BE CONSIDERED AS HAVING BEEN ORDERED TO ACTIVE DUTY IN EXCESS OF 89 DAYS SO AS TO PERMIT HIS TRAVEL TIME TO BE COMPUTED ON THE BASIS OF THAT PRESCRIBED FOR TRAVEL BY PRIVATE CONVEYANCE?

C. IF THIS OFFICER HAD BEEN DETACHED FROM HIS DUTY STATION ON THE DATE OF HIS ASSIGNMENT TO ACTIVE DUTY, WOULD HE BE ENTITLED TO ANY TRAVEL TIME INCIDENT TO HIS RELEASE FROM ACTIVE DUTY?

2. AN INDIVIDUAL ENLISTS IN THE REGULAR NAVY BEFORE HIS TWENTY SIXTH BIRTHDAY, AND THE PROVISIONS OF 10 U.S.C. 651 ARE APPLICABLE. UPON THE EXPIRATION OF HIS ENLISTMENT, HE IS TRANSFERRED TO THE NAVAL RESERVE IN ACCORDANCE WITH BUPERS INSTRUCTION 1910.5C OF 20 APRIL 1956, BUT IS NOT CONCURRENTLY RELEASED FROM ACTIVE DUTY AS THAT INSTRUCTION REQUIRES. INSTEAD, HE IS ISSUED RELEASE FROM ACTIVE DUTY ORDERS WHICH PURPORT TO AUTHORIZE HIM A SPECIFIC NUMBER OF DAYS OF TRAVEL TIME COMPUTED ON THE BASIS OF THAT PRESCRIBED FOR TRAVEL BY PRIVATE CONVEYANCE. THESE ORDERS ARE ATTACHED AS ENCLOSURE (5). IS THIS MEMBER ENTITLED TO TRAVEL TIME FROM TRAVEL TO HIS HOME AS RECORDED AT THE TIME OF HIS ENLISTMENT IN THE REGULAR NAVY, AND IF SO, MAY THE TRAVEL TIME BE COMPUTED ON THE BASIS OF THAT AUTHORIZED FOR TRAVEL BY PRIVATE CONVEYANCE?

WE UNDERSTAND THAT THE QUESTIONS HERE INVOLVED ARISE ONLY IN CASES, SUCH AS HERE PRESENTED, WHERE IT IS PROPOSED TO ADD THE TIME SERVED AS A REGULAR MEMBER OF THE UNIFORMED SERVICES TO THE TIME SUBSEQUENTLY SERVED AS A RESERVIST TO DETERMINE WHETHER A MEMBER IS CALLED OR ORDERED TO ACTIVE DUTY IN EXCESS OF 30 DAYS WITHIN THE CONTEMPLATION OF THE FIRST PROVISO IN SECTION 201 (D) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 231 (D) (AS REDESIGNATED BY SECTION 2 (2) OF THE ACT OF MARCH 31, 1955, 69 STAT. 19, 37 U.S.C. 232). THE CITED PROVISIONS OF LAW RELATE TO MEMBERS OF THE UNIFORMED SERVICES "CALLED OR ORDERED TO EXTENDED ACTIVE DUTY IN EXCESS OF THIRTY DAYS.' IT SEEMS CLEAR THAT THE MEMBERS REFERRED TO ARE MEMBERS OF A RESERVE COMPONENT AND WE SEE NO BASIS ON WHICH THE PERIOD OF TIME SERVED AS A REGULAR MAY BE USED TO AUGMENT THE TIME SUBSEQUENTLY SERVED AS A RESERVIST IN DETERMINING WHETHER A MEMBER WAS CALLED OR ORDERED TO ACTIVE DUTY AS A RESERVIST IN EXCESS OF 30 DAYS. NEITHER THE STATUTE NOR THE REGULATIONS ISSUED UNDER IT SEEM TO CONTEMPLATE SUCH A COMBINATION OF REGULAR AND RESERVE SERVICE. SEE PAGES 1545 AND 1546 OF THE HEARINGS BEFORE A SUBCOMMITTEE OF THE COMMITTEE ON ARMED SERVICES, HOUSE OF REPRESENTATIVES, EIGHTY FIRST CONGRESS, FIRST SESSION, ON H.R. 2553, WHICH WAS ENACTED AS THE CAREER COMPENSATION ACT OF 1949.

SINCE THE OFFICER REFERRED TO IN CONNECTION WITH QUESTION 1 OF COMMITTEE ACTION NO. 191 WAS NOT CALLED OR ORDERED TO ACTIVE DUTY AS A RESERVIST IN EXCESS OF 30 DAYS, THE CITED PROVISIONS OF THE STATUTE AND REGULATIONS HAVE NO APPLICATION IN HIS CASE. HIS RIGHT TO ACTIVE DUTY PAY BENEFITS FOR TRAVEL TIME INCIDENT TO HIS RELEASE FROM ACTIVE DUTY AS A RESERVIST IS GOVERNED BY PARAGRAPH 1044230-3B, NAVY COMPTROLLER MANUAL. THAT PARAGRAPH PROVIDES THAT WHERE A RESERVE OFFICER OF THE MARINE CORPS IS RELEASED FROM A PERIOD OF ACTIVE DUTY TO WHICH HE HAD BEEN ORDERED FOR 30 DAYS OR LESS HE IS ENTITLED TO ACTIVE DUTY PAY FOR TRAVEL TIME TO THE PLACE FROM WHICH HE WAS ORDERED TO ACTIVE DUTY COMPUTED ON THE BASIS OF THE ACTUAL AND NECESSARY PUBLIC SURFACE CARRIER SCHEDULES OVER THE SHORTEST USUALLY TRAVELED ROUTE. SINCE THIS OFFICER WAS ORDERED TO ACTIVE DUTY AS A RESERVIST AT THE STATION FROM WHICH HE WAS DETACHED UNDER RELEASE FROM ACTIVE DUTY ORDERS, HE WOULD NOT BE ENTITLED TO PAY AND ALLOWANCE FOR ANY TRAVEL TIME INCIDENT TO HIS RELEASE FROM ACTIVE DUTY. HENCE, QUESTIONS A, B, AND C ARE ANSWERED IN THE NEGATIVE. ON THE SAME BASIS, THE ENLISTED MEMBER REFERRED TO IN QUESTION 2 IS NOT ENTITLED TO ANY TRAVEL TIME INCIDENT TO HIS RELEASE FROM ACTIVE DUTY IN THE NAVAL RESERVE, AND THAT QUESTION IS ANSWERED IN THE NEGATIVE.

OUR DECISION OF SEPTEMBER 8, 1954, B-120297, TO THE SECRETARY OF DEFENSE, WAS BASED ON THE SAME PROVISION OF LAW CITED IN CONNECTION WITH THE QUESTIONS HERE INVOLVED. SINCE, AS ABOVE STATED, SUCH PROVISION OF THE STATUTE HAS NO APPLICATION IN THIS CASE, WE DO NOT THINK THAT THE RULING IN THAT DECISION HAS ANY APPLICATION IN THE PRESENT CASE.