B-139244, JUL. 29, 1959

B-139244: Jul 29, 1959

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DECISION IS REQUESTED AS TO WHETHER THE JOINT TRAVEL REGULATIONS MAY BE AMENDED TO AUTHORIZE TRAVEL AND TRANSPORTATION ALLOWANCES FOR CERTAIN OFFICER AND ENLISTED PERSONNEL OF THE NAVAL SERVICE SENTENCED TO A PUNITIVE DISCHARGE OR DISMISSAL BUT PRIOR TO THE COMPLETION OF APPELLATE REVIEW. THE REQUEST WAS ASSIGNED PDTATAC CONTROL NO. 59-9. IT WAS HELD THAT SINCE PRISONERS RELEASED FROM CONFINEMENT IN DISCIPLINARY BARRACKS ON "COMMANDANT'S PAROLE" CONTINUE TO BE MEMBERS OF THE UNIFORMED SERVICES PENDING APPELLATE REVIEW ACTION. ARE TECHNICALLY IN LEGAL CUSTODY AND CONTROL OF THE COMMANDANT. REFERENCE IS MADE TO A SECNAV INSTRUCTION PREPARED BY THE BUREAU OF NAVAL PERSONNEL WHICH WOULD AUTHORIZE LEAVE PENDING COMPLETION OF APPELLATE REVIEW FOR MEMBERS OF THE NAVAL SERVICE WHO ARE SENTENCED TO A PUNITIVE DISCHARGE OR DISMISSAL AND ARE NOT IN CONFINEMENT (BECAUSE THE SENTENCE DID NOT INCLUDE CONFINEMENT OR THE PERIOD OF CONFINEMENT ENDED WHILE THE APPELLATE REVIEW WAS STILL IN PROGRESS).

B-139244, JUL. 29, 1959

TO THE SECRETARY OF THE NAVY:

IN LETTER OF APRIL 3, 1959, FROM THE ASSISTANT SECRETARY OF THE NAVY (PERSONNEL AND RESERVE FORCES), DECISION IS REQUESTED AS TO WHETHER THE JOINT TRAVEL REGULATIONS MAY BE AMENDED TO AUTHORIZE TRAVEL AND TRANSPORTATION ALLOWANCES FOR CERTAIN OFFICER AND ENLISTED PERSONNEL OF THE NAVAL SERVICE SENTENCED TO A PUNITIVE DISCHARGE OR DISMISSAL BUT PRIOR TO THE COMPLETION OF APPELLATE REVIEW, IN THE CIRCUMSTANCES SET FORTH BELOW. THE REQUEST WAS ASSIGNED PDTATAC CONTROL NO. 59-9.

IN OUR DECISION OF DECEMBER 29, 1958, B-137883, IT WAS HELD THAT SINCE PRISONERS RELEASED FROM CONFINEMENT IN DISCIPLINARY BARRACKS ON "COMMANDANT'S PAROLE" CONTINUE TO BE MEMBERS OF THE UNIFORMED SERVICES PENDING APPELLATE REVIEW ACTION, AND ARE TECHNICALLY IN LEGAL CUSTODY AND CONTROL OF THE COMMANDANT, THEY MAY BE REGARDED AS "GENERAL PRISONERS" WITHIN THE CONTEMPLATION OF SECTION 303 (E) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 253 (E), AND SO ENTITLED TO RECEIVE THE TRAVEL AND TRANSPORTATION ALLOWANCES PRESCRIBED BY THE SECRETARIES CONCERNED UNDER THAT STATUTORY AUTHORITY. IN THE ASSISTANT SECRETARY'S LETTER, REFERENCE IS MADE TO A SECNAV INSTRUCTION PREPARED BY THE BUREAU OF NAVAL PERSONNEL WHICH WOULD AUTHORIZE LEAVE PENDING COMPLETION OF APPELLATE REVIEW FOR MEMBERS OF THE NAVAL SERVICE WHO ARE SENTENCED TO A PUNITIVE DISCHARGE OR DISMISSAL AND ARE NOT IN CONFINEMENT (BECAUSE THE SENTENCE DID NOT INCLUDE CONFINEMENT OR THE PERIOD OF CONFINEMENT ENDED WHILE THE APPELLATE REVIEW WAS STILL IN PROGRESS). IT IS STATED THAT UNLESS A REHEARING TAKES PLACE, IT IS COMTEMPLATED THAT SUCH MEMBERS WILL BE SEPARATED UNDER THE SENTENCE BY ADMINISTRATIVE ACTION WHEN THE APPELLATE REVIEW IS COMPLETED WITHOUT REQUIRING THEIR PRESENCE. THE PROPOSED INSTRUCTION, IT IS STATED, COVERS PERMISSIBLE PROCEDURES FOR GRANTING LEAVE FOR BOTH OFFICERS AND ENLISTED MEMBERS WITH AND WITHOUT LEAVE TO THEIR CREDIT, AND THE MEMBERS CONCERNED INCLUDE THOSE WHO ARE NOT IN A PAY STATUS BECAUSE THEIR PERIOD OF ENLISTMENT HAS EXPIRED. THE SUGGESTED AMENDMENT TO THE JOINT TRAVEL REGULATIONS, IN THE FORM OF A NEW PARAGRAPH, IS AS FOLLOWS:

"5500 CONVICTED PERSONNEL, AWAITING COMPLETION OF APPELLATE REVIEW

"1. A MEMBER WHO IS AWAITING COMPLETION OF APPELLATE REVIEW OF HIS OR HER COURT-MARTIAL SENTENCE TO A PUNITIVE DISCHARGE OR DISMISSAL AND WHO IS GRANTED LEAVE IS ENTITLED TO TRANSPORTATION IN KIND AND MEAL TICKETS TO HIS OR HER HOME OF RECORD OR PLACE AUTHORIZED FOR RESIDENCE WHILE ON LEAVE.

"2. IN THE EVENT A REHEARING IS ORDERED FOLLOWING COMPLETION OF SUCH TRAVEL, OR OFFICIAL TRAVEL IS REQUIRED TO BE PERFORMED FOR HOSPITALIZATION, PHYSICAL EXAMINATION, DISCHARGE, OR OTHER PURPOSES, THE MEMBER WILL BE FURNISHED TRANSPORTATION IN KIND AND MEAL TICKETS, IF PRACTICABLE, FROM HIS OR HER HOME OF RECORD OR PLACE OF RESIDENCE TO THE FACILITY CONCERNED AND FOR RETURN TRAVEL, IF APPROPRIATE. IN THE EVENT IT IS IMPRACTICAL TO FURNISH TRANSPORTATION IN KIND AND MEAL TICKETS FOR ANY OF THE LATER TRAVEL, REIMBURSEMENT WILL BE EFFECTED ON THE BASIS OF $0.05 PER MILE FOR THE OFFICIAL DISTANCE AND $1.50 PER MEAL FOR THE REQUIRED TRAVEL TIME ONLY. NO ALLOWANCES ARE AUTHORIZED OTHER THAN FOR THE ACTUAL AND NECESSARY PERIODS OF TRAVEL.'

SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949 AUTHORIZES THE PAYMENT UNDER REGULATIONS TO BE PROMULGATED BY THE SECRETARIES CONCERNED OF TRAVEL AND TRANSPORTATION ALLOWANCES, WITHIN SPECIFIED LIMITATIONS, GENERALLY ON THE BASIS OF TRAVEL BY MEMBERS OF THE UNIFORMED SERVICES PERFORMED WHILE IN AN ACTIVE DUTY STATUS ON PERMANENT CHANGE OF STATION, OR WHEN OTHERWISE AWAY FROM THEIR DESIGNATED POSTS OF DUTY ON PUBLIC BUSINESS, OR WHILE PROCEEDING TO THE FIRST DUTY STATION OR AWAY FROM THE LAST DUTY STATION INCIDENT TO ENTRANCE UPON OR DEPARTURE FROM ACTIVE MILITARY DUTY. SECTION 303 (E) OF THE ACT GRANTS TO THE SECRETARIES CONCERNED THE FURTHER AUTHORITY TO PROMULGATE REGULATIONS PRESCRIBING THE ALLOWANCES AUTHORIZED IN SECTION 303 (A), BUT FOR PAYMENT TO PERSONNEL IN CERTAIN DESIGNATED CIRCUMSTANCES OR CATEGORIES NOT OTHERWISE FALLING WITHIN THE LIMITATIONS AND CIRCUMSTANCES OF ENTITLEMENT CONTEMPLATED IN SECTION 303 (A). UNDER THAT AUTHORITY THE SECRETARIES, WITH "DUE CONSIDERATION BEING GIVEN TO THE RIGHTS OF THE GOVERNMENT AS WELL AS THOSE OF THE INDIVIDUAL," MAY BY REGULATIONS PRESCRIBE THE TRAVEL AND TRANSPORTATION ALLOWANCES OTHERWISE PROVIDED UNDER SECTION 303 (A) FOR PAYMENT TO PERSONS FALLING FAIRLY WITHIN THE CATEGORY AND UNDER THE CIRCUMSTANCES SET FORTH IN SECTION 303 (E).

SINCE THE MEMBERS CONSIDERED IN THE DECISION OF DECEMBER 29, 1958, ACTUALLY WERE PRISONERS WHO, ALTHOUGH ON COMMANDANT'S PAROLE, REMAINED SUBJECT TO CONFINEMENT, IT WAS CONSIDERED THAT THEY WERE GENERAL PRISONERS UNDER SECTION 303 (E). IT APPEARS, HOWEVER, THAT THOSE NOW UNDER CONSIDERATION, INCLUDING THOSE WHOSE CONFINEMENT HAS ENDED, ARE NOT HELD IN CUSTODY, AND ARE NOT SUBJECT TO INCARCERATION IN ANY WAY. THERE WOULD APPEAR TO BE NO SOUND BASIS UPON WHICH IT COULD BE CONCLUDED THAT UNDER THOSE CIRCUMSTANCES THEY ARE GENERAL PRISONERS WITHIN THE CONTEMPLATION OF THAT SECTION. CONSEQUENTLY, SECTION 303 (E) FURNISHES NO AUTHORITY FOR THE PROPOSED REGULATIONS, AND AUTHORITY, IF ANY, FOR TRAVEL AND TRANSPORTATION ALLOWANCES IN THE CIRCUMSTANCES MUST BE FOUND IN SECTION 303 (A).

ENTITLEMENT TO BENEFITS UNDER SECTION 303 (A) IS DEPENDENT UPON THE EXISTENCE OF A TRAVEL STATUS INCIDENT TO TRAVEL ON PUBLIC BUSINESS OR IN THE PUBLIC INTEREST AWAY FROM THE DESIGNATED POST OF DUTY. THE GOVERNMENT HAS FOR MANY YEARS RECOGNIZED ITS OBLIGATION TO RETURN MILITARY PERSONNEL TO THEIR HOME OR PLACE OF ENTERING THE SERVICE INCIDENT TO A TERMINATION OF MILITARY SERVICE AND SECTION 303 (A) MAKES SPECIFIC PROVISION IN RECOGNITION OF THAT OBLIGATION EVEN THOUGH MILITARY STATUS MAY NOT EXIST AT THE TIME THE TRAVEL ACTUALLY IS PERFORMED. THE CHANGE PROPOSED TO BE MADE IN THE REGULATIONS, HOWEVER, DOES NOT APPEAR TO BE FOR THE PURPOSE OF PROVIDING TRANSPORTATION AT GOVERNMENT EXPENSE INCIDENT TO THE TERMINATION OF AN ACTIVE MILITARY STATUS, THE MAXIMUM WHICH COULD BE ALLOWED ON THAT BASIS BEING FOR THE ONE TRIP FROM LAST STATION TO HOME OR TO THE PLACE FROM WHICH ORDERED TO ACTIVE DUTY. RATHER, THE ASSISTANT SECRETARY'S LETTER INDICATES QUITE CLEARLY THAT THE PERSONS INVOLVED WOULD BE IN A VOLUNTARY LEAVE STATUS--- THOSE WHO HAVE UNUSED LEAVE TO THEIR CREDIT BEING IN A PAY STATUS AND THOSE WITH NO LEAVE TO THEIR CREDIT BEING IN A LEAVE WITHOUT-PAY STATUS. CAREFUL CONSIDERATION HAS BEEN GIVEN TO THE MATTERS STATED IN THE ASSISTANT SECRETARY'S LETTER BUT WE KNOW OF NO STATUTORY AUTHORITY FOR TRANSPORTATION AT GOVERNMENT EXPENSE FOR TRAVEL INCIDENT TO SUCH A LEAVE STATUS. ACCORDINGLY, IN THE ABSENCE OF SOME APPROPRIATE CHANGE IN THE LAW, WE ARE OF THE OPINION THAT NO AUTHORITY EXISTS FOR THE PROPOSED CHANGE IN THE REGULATIONS.