B-148366, MAY 16, 1962, 41 COMP. GEN. 767

B-148366: May 16, 1962

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IS WITHIN THE AUTHORITY OF THE DIRECTOR OF THE COAST AND GEODETIC SURVEY AND SHOULD BE GIVEN EFFECT IN DENYING AN OFFICER WHO RESIGNED AFTER 24 MONTHS OF A 3-YEAR TOUR OF DUTY REIMBURSEMENT FOR THE COST OF TRAVEL TO HIS HOME. 1962: REFERENCE IS MADE TO LETTER OF MARCH 7. WARD IS ENTITLED TO TRAVEL ALLOWANCES INCIDENT TO HIS RELEASE FROM ACTIVE DUTY AS A COMMISSIONED OFFICER WITH THE RANK OF LIEUTENANT (JG) WITH THE UNITED STATES COAST AND GEODETIC SURVEY UNDER THE CIRCUMSTANCES STATED BY THE DIRECTOR AS RELATED BELOW. THE MATTER WILL BE TREATED AS A REQUEST FOR DECISION BY YOU. IT IS STATED THAT ON OCTOBER 15. WAS HONORABLY DISCHARGED FROM THE U.S. HE WAS NOTIFIED BY LETTER DATED DECEMBER 6.

B-148366, MAY 16, 1962, 41 COMP. GEN. 767

MILEAGE - MILITARY PERSONNEL - RESIGNATION OF OFFICERS PRIOR TO COMPLETION OF REQUIRED SERVICE ALTHOUGH A COAST AND GEODETIC SURVEY REGULATION DESIGNED TO KEEP COMMISSIONED PERSONNEL ON DUTY FOR MORE THAN 2 YEARS BY PRECLUDING PAYMENT OF TRAVEL ALLOWANCES TO PERSONNEL WHO RESIGN PRIOR TO COMPLETION OF 3 YEARS OF SERVICE WOULD APPEAR TO BE IN CONFLICT WITH SECTION 4157 OF THE JOINT TRAVEL REGULATIONS WHICH ENTITLES MEMBERS OF THE UNIFORMED SERVICES TO MILEAGE UPON SEPARATION FROM THE SERVICE, SECTION 4157 DOES NOT CONTEMPLATE PAYMENT OF MILEAGE TO OFFICERS ON RESIGNATION WITHOUT THE CONSENT OF THE SERVICE; THEREFORE, THE ISSUANCE OF THE COAST AND GEODETIC SURVEY REGULATION RESTRICTING TRAVEL ALLOWANCES IN CASE OF EARLY RESIGNATIONS, EVEN THOUGH THE MEMBERS COULD NOT BE HELD IN SERVICE AFTER RESIGNATION, IS WITHIN THE AUTHORITY OF THE DIRECTOR OF THE COAST AND GEODETIC SURVEY AND SHOULD BE GIVEN EFFECT IN DENYING AN OFFICER WHO RESIGNED AFTER 24 MONTHS OF A 3-YEAR TOUR OF DUTY REIMBURSEMENT FOR THE COST OF TRAVEL TO HIS HOME.

TO THE SECRETARY OF COMMERCE, MAY 16, 1962:

REFERENCE IS MADE TO LETTER OF MARCH 7, 1962, FROM THE DIRECTOR, UNITED STATES COAST AND GEODETIC SURVEY, REQUESTING AN ADVANCE DECISION AS TO WHETHER PHILLIP A. WARD IS ENTITLED TO TRAVEL ALLOWANCES INCIDENT TO HIS RELEASE FROM ACTIVE DUTY AS A COMMISSIONED OFFICER WITH THE RANK OF LIEUTENANT (JG) WITH THE UNITED STATES COAST AND GEODETIC SURVEY UNDER THE CIRCUMSTANCES STATED BY THE DIRECTOR AS RELATED BELOW. REQUESTS FOR DECISIONS IN A MATTER LIKE THIS SHOULD BE APPLIED FOR BY THE HEAD OF A DEPARTMENT OR ESTABLISHMENT OF THE GOVERNMENT OR BY THE AUTHORIZED CERTIFYING OFFICER OR DISBURSING OFFICER CONCERNED WITH THE PAYMENT. SEE 26 COMP. GEN. 993. HOWEVER, IN THIS PARTICULAR INSTANCE, THE MATTER WILL BE TREATED AS A REQUEST FOR DECISION BY YOU.

IT IS STATED THAT ON OCTOBER 15, 1960, PHILLIP A. WARD, A COMMISSIONED OFFICER, WITH A RANK IF LIEUTENANT (JG), WAS HONORABLY DISCHARGED FROM THE U.S. COAST AND GEODETIC SURVEY AFTER COMPLETING 24 MONTH TOUR OF DUTY. OCTOBER 22, 1960, MR. WARD SUBMITTED A VOUCHER FOR REIMBURSEMENT OF TRAVEL FROM HIS LAST OFFICIAL DUTY STATION, SEATTLE, WASHINGTON, TO HIS HOME OF RECORD, EL PASO, TEXAS. HE WAS NOTIFIED BY LETTER DATED DECEMBER 6, 1960, THAT HIS TRAVEL VOUCHER WOULD NOT BE ALLOWED FOR PAYMENT BECAUSE OF THE PROVISIONS OF PARAGRAPH 16801B OF THE COAST AND GEODETIC SURVEY REGULATIONS WHICH STATES:

WHEN A COMMISSIONED OFFICER RESIGNS AT HIS OWN REQUEST, PRIOR TO THE EXPIRATION OF THREE YEARS OF SERVICE FOLLOWING THE DATE OF ACCEPTANCE OF A COMMISSION IN THE COAST AND GEODETIC SURVEY, HE WILL NOT BE GIVEN TRAVEL ORDERS NOR GRANTED TRAVEL AND TRANSPORTATION ALLOWANCES TO WHICH HE WOULD OTHERWISE BE ENTITLED.

PARAGRAPH 106801B OF THE COAST AND GEODETIC SURVEY REGULATIONS IS SAID TO BE BASED ON THE REPEATED EXPERIENCE OF THE SURVEY IN RECRUITING AND RETAINING COMMISSIONED OFFICERS. MOST OF THE COMMISSIONED OFFICERS JOIN THE COAST AND GEODETIC SURVEY UPON GRADUATION FROM A COLLEGE OR UNIVERSITY. A TOUR OF DUTY OF 2 YEARS SATISFIES THE REQUIREMENTS OF SELECTIVE SERVICE (50 U.S.C. APP. 456). IN MANY INSTANCES, THE TOUR IS STATED TO BEGIN IN JUNE OR JULY AND, NORMALLY, THE INITIAL ASSIGNMENTS OF OFFICERS AFTER ORIENTATION TRAINING ARE TO THE COAST AND GEODETIC SURVEY VESSELS WHICH HAVE AN OPERATING SEASON WHICH GENERALLY RUNS FROM MARCH TO OCTOBER. AS A RESULT, THE 2-YEAR TOUR WOULD NORMALLY TERMINATE IN JUNE OR JULY, OR THE MIDDLE OF THE OPERATING SEASON. IT IS STATED THAT AT THIS TIME OF YEAR SOME OF THE SHIPS AND SHORE PARTIES OPERATE IN REMOTE AREAS; FOR EXAMPLE, THE ARCTIC, THE ALEUTIAN ISLANDS, ISLANDS IN THE PACIFIC, ETC., WHERE REPLACEMENT IS EXTREMELY DIFFICULT. SINCE SEPARATION OF COMMISSIONED OFFICERS UNDER THESE CIRCUMSTANCES IS HIGHLY DETRIMENTAL TO THE SUCCESSFUL ACCOMPLISHMENT OF THE VESSEL'S MISSION, AND NOT IN THE BEST INTEREST OF THE GOVERNMENT, THE COAST AND GEODETIC SURVEY IS SAID TO HAVE DECIDED THAT SOME EFFORT SHOULD BE MADE TO PERSUADE THE OFFICERS TO REMAIN ON DUTY AT LEAST THROUGH THE COMPLETION OF THE OPERATING SEASON. AS A RESULT, THE COAST AND GEODETIC SURVEY REGULATIONS WERE AMENDED TO INCLUDE PARAGRAPH 106801B, CITED ABOVE.

MR. WARD CONTENDS, HOWEVER, THAT PARAGRAPH 4157 OF THE JOINT TRAVEL REGULATIONS PROVIDES FOR HIS REIMBURSEMENT. SINCE PARAGRAPH 4157 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT A MEMBER ON ACTIVE DUTY WHO IS SEPARATED FROM THE SERVICE OR RELIEVED FROM ACTIVE DUTY WILL BE ENTITLED TO MILEAGE FROM HIS LAST DUTY STATION TO HIS HOME OF RECORD OR THE PLACE FROM WHICH HE WAS ORDERED TO ACTIVE DUTY, AND APPEARS TO BE IN CONFLICT WITH PARAGRAPH 106801B OF THE COAST AND GEODETIC SURVEY REGULATIONS, THE QUESTION IS WHETHER IT TAKES PRECEDENCE OVER THE LATTER REGULATION AND WHETHER MR. WARD IS ENTITLED TO PAYMENT AS CLAIMED.

THE LAWS RELATING TO THE COAST AND GEODETIC SURVEY COMMISSIONED OFFICERS (33 U.S.C. 851-888) PROVIDE GENERALLY FOR THE DISTRIBUTION, PROMOTION, SEPARATION AND RETIREMENT OF SUCH OFFICERS ON THE SAME BASIS AS IS AUTHORIZED FOR COMMISSIONED OFFICERS OF THE OTHER UNIFORMED SERVICES. GENERAL PROVISIONS FOR THE PAY AND ALLOWANCES OF THE UNIFORMED SERVICES, INCLUDING THE COMMISSIONED CORPS OF THE COAST AND GEODETIC SURVEY, ARE MADE BY THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 231, ET SEQ. HOWEVER, SOME DISPARITY EXISTS IN THE OBLIGATIONS, RIGHTS AND BENEFITS BETWEEN COMMISSIONED OFFICERS OF THE COAST AND GEODETIC SURVEY AND COMMISSIONED OFFICERS OF THE OTHER UNIFORMED SERVICES. THE SITUATION OF COMMISSIONED PERSONNEL OF THE COAST AND GEODETIC SURVEY IS SIMILAR TO THAT OF THE PUBLIC HEALTH SERVICE IN THAT COMMISSIONED PERSONNEL OF THOSE SERVICES ARE ,CIVILIAN EMPLOYEES" AS DISTINGUISHED FROM THE MILITARY PERSONNEL OF THE ARMED FORCES (EXCEPT WHEN SERVING WITH THE ARMED FORCES) AND SINCE THEY ARE CIVILIAN EMPLOYEES THEY MAY RESIGN THEIR COMMISSIONS AT ANY TIME.

PARAGRAPH 4157 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT A MEMBER ON ACTIVE DUTY WHO IS SEPARATED FROM THE SERVICE OR RELIEVED FROM ACTIVE DUTY WILL BE ENTITLED TO MILEAGE FROM HIS LAST DUTY STATION TO HIS HOME OF RECORD OR THE PLACE FROM WHICH HE WAS ORDERED TO ACTIVE DUTY. BASICALLY, THE REGULATION CONTEMPLATES THAT THE MILEAGE ALLOWANCES WILL BE PAID TO MEMBERS SEPARATED FROM THE SERVICE UNDER HONORABLE CONDITIONS WHO HAVE COMPLETED SERVICE REQUIREMENTS, OR WHO, WITH THE CONSENT OF THE SERVICE CONCERNED, ARE RELEASED BEFORE MEETING SUCH REQUIREMENTS, BUT WHO OTHERWISE COULD BE RETAINED IN THE SERVICE, A SITUATION WHICH HAS A CLEAR CONNOTATION OF OFFICIAL TRAVEL. RESIGNATIONS IN OTHER CASES CLEARLY ARE FOR THE MEMBER'S OWN CONVENIENCE AND TRAVEL INCIDENT TO SUCH RESIGNATION MUST BE VIEWED AS BEING FOR THE MEMBER'S OWN CONVENIENCE AND AS HAVING NO RELATION TO TRAVEL PERFORMED ON OR INCIDENT TO PUBLIC BUSINESS FOR PURPOSES OF THE JOINT TRAVEL REGULATIONS. WHILE UNDER THE PROVISIONS OF SECTION 106801 OF THE COAST AND GEODETIC SURVEY REGULATIONS A RESIGNATION IS NOT REQUIRED TO BE ACCEPTED IMMEDIATELY, THERE APPARENTLY IS NO AUTHORITY TO REQUIRE THAT THE OFFICER CONTINUE TO SERVE UNTIL THE RESIGNATION IS ACCEPTED AS WOULD BE THE CASE IN THE ARMED FORCES.

SECTION 303 (H) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813, 37 U.S.C. 253 (H), PROVIDES THAT REGULATIONS SHALL BE PROMULGATED BY THE SECRETARIES OF THE UNIFORMED SERVICES, AS PROVIDED BY THAT SECTION,"AND SUCH REGULATIONS SHALL BE UNIFORM FOR ALL SERVICES INSOFAR AS PRACTICABLE.' SUCH PROVISION RECOGNIZES THAT WHEN UNIFORMITY FOR ALL OF THE SERVICES IS NOT PRACTICABLE BECAUSE OF CIRCUMSTANCES RELATING ONLY TO A PARTICULAR SERVICE, REGULATIONS MAY BE ISSUED WHICH WILL BE APPLICABLE ONLY TO THAT SERVICE AND THIS IS CLEARLY SO WHEN THE SITUATION IS PECULIAR TO A PARTICULAR SERVICE. IN ORDER TO PROVIDE FOR THE SPECIAL SITUATION INVOLVING THE COMMISSIONED PERSONNEL OF THE PUBLIC HEALTH SERVICE, PARAGRAPH 6457 WAS PROMULGATED IN THE JOINT TRAVEL REGULATIONS. THIS REGULATION PROVIDES THAT WHEN A MEMBER OF THE PUBLIC HEALTH SERVICE OR PUBLIC HEALTH SERVICE RESERVE ON ACTIVE DUTY RESIGNS OR IS RELEASED FROM ACTIVE DUTY AT HIS OWN REQUEST, PRIOR TO THE COMPLETION OF A SPECIFIED PERIOD OF SERVICE FOR WHICH HE HAS VOLUNTARILY AGREED IN WRITING TO SERVE, THE SECRETARY OF HEALTH, EDUCATION AND WELFARE MAY AT HIS DISCRETION DIVEST ENTITLEMENT TO ANY OR ALL TRAVEL AND TRANSPORTATION ALLOWANCES TO WHICH SUCH MEMBER WOULD OTHERWISE BE ENTITLED UNDER THESE REGULATIONS. SINCE THE SAME PROBLEM EXISTS IN THE COAST AND GEODETIC SURVEY, IT WOULD APPEAR THAT THIS REGULATION OR A SIMILAR ONE MIGHT ALSO HAVE BEEN PROMULGATED WITH RESPECT TO COMMISSIONED PERSONNEL OF THE COAST AND GEODETIC SURVEY. HOWEVER, THIS APPARENTLY WAS CONSIDERED UNNECESSARY IN VIEW OF THE PROVISIONS IN PARAGRAPH 106801B OF THE COAST AND GEODETIC SURVEY REGULATIONS. IF THE PROVISIONS OF THAT REGULATION WERE INCORPORATED IN THE JOINT TRAVEL REGULATIONS IT WOULD APPEAR TO BE A VALID EXERCISE OF ADMINISTRATIVE AUTHORITY AND REMOVE ANY DOUBTS IN THE MATTER. HOWEVER, SINCE PARAGRAPH 4157 OF THE JOINT TRAVEL REGULATIONS WOULD NOT SEEM TO CONTEMPLATE THE PAYMENT OF MILEAGE TO OFFICERS ON RESIGNATION FROM THE SERVICE WITHOUT THE CONSENT OF THE SERVICE CONCERNED--- POSSIBLY DESERTION IN THE MILITARY SERVICES--- IT IS NOT CLEAR THAT THE DIRECTOR EXCEEDED HIS AUTHORITY IN ISSUING THE ADMINISTRATIVE REGULATION IN QUESTION RESTRICTING TRAVEL ALLOWANCES IN CASE AN OFFICER RESIGNS UNDER THE CIRCUMSTANCES PRESCRIBED AND WHO COULD NOT BE HELD IN THE SERVICE. THEREFORE, IT IS OUR VIEW THAT EFFECT SHOULD BE GIVEN TO PARAGRAPH 106801B AND THAT PAYMENT TO MR. WARD IS NOT AUTHORIZED.