B-139850, JUL. 1, 1959

B-139850, JUL. 1, 1959

TO BARNEY S. BOGAN, JR. CAPT., JAGC, USAR:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 8, 1959, REQUESTING REVIEW OF OUR SETTLEMENT OF JUNE 4, 1959, WHICH DISALLOWED YOUR CLAIM FOR REFUND OF CHECK AGE IN THE AMOUNT OF $10.45 REPRESENTING ACTIVE DUTY PAY AND ALLOWANCES FOR ONE DAY, JANUARY 10, 1955, INCIDENT TO YOUR BEING ORDERED TO ACTIVE DUTY AS A COMMISSIONED OFFICER OF THE UNITED STATES ARMY RESERVE.

THE RECORDS SHOW THAT BY SPECIAL ORDERS NO. 246, DATED DECEMBER 15, 1054, YOU WERE ORDERED TO ACTIVE DUTY AND DIRECTED TO PROCEED ON JANUARY 10, 1955, FROM YOUR HOME, SHREVEPORT, LOUISIANA, TO FORT BENNING, GEORGIA, WHERE YOU WERE TO REPORT NOT LATER THAN JANUARY 12, 1955, FOR TEMPORARY DUTY TO ATTEND A COURSE OF INSTRUCTION. YOU WERE AUTHORIZED TO TRAVEL BY PRIVATELY OWNED CONVEYANCE. IN YOUR LETTER OF JULY 25, 1957, TO THE FINANCE OFFICER, SOUTHERN AREA COMMAND, USAG SAG, A COPY OF WHICH WAS FORWARDED TO THIS OFFICE IN CONNECTION WITH YOUR CLAIM, YOU STATED THAT YOU TRAVELED BY PRIVATELY OWNED VEHICLE AND SPEND THE NIGHT OF JANUARY 10 IN MERIDIAN, ISSISSIPPI; THAT ON THE MORNING OF JANUARY 11 YOU DEPARTED MERIDIAN AND ARRIVED IN COLUMBUS, GEORGIA THAT AFTERNOON; THAT PRIOR TO 1700 HOURS ON JANUARY 11 YOUR REPORTED TO FORT BENNING IN ORDER TO LEARN WHERE YOU SHOULD REPORT THE NEXT MORNING; AND THAT ON JANUARY 12 YOU REPORTED TO YOUR STUDENT COMPANY AT APPROXIMATELY 0800 HOURS.

IN OUR SETTLEMENT OF JUNE 4, 1959, IT WAS POINTED OUT THAT THE OFFICIAL MILEAGE FROM SHREVEPORT, LOUISIANA, TO FORT BENNING, GEORGIA, IS SHOWN AS 627 MILES AND THAT UNDER EXECUTIVE ORDER 10153 YOU WERE ENTITLED TO COUNT ONLY TWO DAYS OF TRAVEL TIME AS ACTIVE DUTY. IT WAS ALSO STATED THAT THERE APPEARED TO HAVE BEEN NO REQUIREMENT THAT YOU PERFORM ANY DUTY ON JANUARY 12, 1955, OTHER THAN THAT OF REPORTING IN AT FORT BENNING, WHICH APPARENTLY COULD HAVE BEEN DONE AT ANY HOUR OF THAT DAY AND, THEREFORE, THERE WAS NO REASON WHY TRAVEL COULD NOT HAVE BEEN PERFORMED ON JANUARY 12. HENCE, THE DATE THAT YOU WERE REQUIRED TO "BEGIN TO COMPLY WITH YOUR ORDERS," ALLOWING TWO DAYS TRAVEL TIME, WAS JANUARY 11, 1955. IN YOUR LETTER OF JUNE 8, 1959, YOU CONTEND THAT IN DEPARTING ON JANUARY 10, 1955, YOUR WERE MERELY COMPLYING WITH YOUR ORDERS AND THAT IF YOU SHOULD HAVE DEPARTED ON JANUARY 11, 1955, THEN THE ORDERS BRANCH OF THE DEPARTMENT OF DEFENSE MADE AN ERROR AND YOU SHOULD NOT BE PENALIZED.

SECTION 201 (E) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 807 PROVIDES AS FOLLOWS:

"* * * THAT IN ACCORDANCE WITH REGULATIONS PRESCRIBED BY THE PRESIDENT, IN THE CASE OF MEMBERS OF THE UNIFORMED SERVICES CALLED OR ORDERED TO EXTENDED ACTIVE DUTY IN EXCESS OF 30 DAYS, ACTIVE DUTY SHALL INCLUDE THE TIME REQUIRED TO PERFORM TRAVEL FROM HOME TO FIRST DUTY STATION AND FROM LAST DUTY STATION TO HOME BY THE MODE OF TRANSPORTATION AUTHORIZED IN ORDERS FOR SUCH MEMBERS. * * *"

EXECUTIVE ORDER NO. 10153, AUGUST 17, 1950, PRESCRIBING REGULATIONS PURSUANT TO THAT SECTION PROVIDES THAT:

"SEC. 2. IN CASE TRAVEL BY PRIVATE CONVEYANCE IS SPECIFICALLY AUTHORIZED AND THE TRAVEL IS SO PERFORMED, THE TRAVEL TIME INCLUDED AS ACTIVE DUTY SHALL BE COMPUTED ON THE BASIS OF ONE DAY FOR EACH THREE HUNDRED MILES TRAVELLED, AND ONE DAY OF TRAVEL TIME SHALL ALSO BE ALLOWED FOR EACH FRACTION OF THREE HUNDRED MILES IN EXCESS OF ONE HUNDRED AND FIFTY MILES.

THE EXECUTIVE ORDER FURTHER PROVIDES THAT THE SECRETARIES CONCERNED MAY PRESCRIBE, WITH RESPECT TO PERSONNEL WITHIN THEIR RESPECTIVE DEPARTMENTS, SUCH SUPPLEMENTARY REGULATIONS AS THEY MAY DEEM NECESSARY OR DESIRABLE FOR CARRYING OUT SUCH REGULATIONS. PARAGRAPH 9B (1), CHANGE NO. 2, ARMY REGULATIONS 35-1320, DATED FEBRUARY 25, 1954, PROVIDES THAT THE PAY AND ALLOWANCES OF COMMISSIONED OFFICERS OF THE ARMY RESERVE "COMMENCE ON THE DAY THEY OFFICIALLY AND NECESSARILY BEGIN TO COMPLY WITH THE ORDERS CALLING THEM TO ACTIVE DUTY.' PARAGRAPH 9G OF THESE REGULATIONS PROVIDES THAT THE "TERM "NECESSARILY COMPLYING WITH ORDERS" MEANS THAT FOR PAY PURPOSES, COMPLIANCE MAY NOT BEGIN EARLIER THAN THE TIME NECESSARY FOR TRAVEL BY NORMAL SURFACE CARRIER IN ORDER TO REACH THE STATION ON THE DAY HE IS TO REPORT, UNLESS TRAVEL BY PRIVATELY OWNED CONVEYANCE IS SPECIFICALLY AUTHORIZED IN THE ORDERS.'

THUS, WHERE TRAVEL IS PERFORMED BY COMMON CARRIER THE DAY OF REPORTING, WHICH CLEARLY MAY BE AT ANY TIME DURING THE DAY SPECIFIED, IS A TRAVEL DAY. TRAVEL BY PRIVATELY OWNED AUTOMOBILE, WHICH IS AUTHORIZED FOR THE CONVENIENCE OF THE MEMBER CONCERNED WHEN THE ORDERED ACTIVE DUTY IS DEEMED TO BE OF SUCH DURATION AS TO WARRANT THE AUTHORIZATION OF THE ADDITIONAL TRAVEL TIME USUALLY RESULTING, IS IN LIEU OF TRAVEL BY COMMON CARRIER. FOLLOWS THAT IN SUCH CASE THE DAY OF REPORTING LIKEWISE IS TO BE TREATED AS A TRAVEL DAY. HENCE, WHERE IT IS FOUND THAT, ON THE BASIS OF REQUIRED TRAVEL TIME BY THE MODE OF TRANSPORTATION AUTHORIZED, COMPUTED IN ACCORDANCE WITH THE APPLICABLE STATUTE AND REGULATIONS, THE EFFECTIVE DATE STATED IN ORDERS TO ACTIVE DUTY IS INCORRECT, SUCH DATE IS WITHOUT EFFECT FOR PAY PURPOSES. THEREFORE, SINCE YOUR REPORTING DATE WAS JANUARY 12 AND SINCE YOU WERE ENTITLED TO COUNT ONLY TWO DAYS TRAVEL TIME AS ACTIVE DUTY UNDER EXECUTIVE ORDER 10153 WHICH TRAVEL COULD HAVE BEEN ACCOMPLISHED ON JANUARY 11 AND 12, 1955, THERE IS NO AUTHORITY FOR REFUND OF THE AMOUNT CHECKED AS PAY AND ALLOWANCES FOR JANUARY 10, 1955. ACCORDINGLY, THE SETTLEMENT OF JUNE 4, 1959, IS CORRECT AND IS SUSTAINED.