B-152864, FEBRUARY 13, 1964, 43 COMP. GEN. 561

B-152864: Feb 13, 1964

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

1964: REFERENCE IS MADE TO LETTER OF OCTOBER 24. UPON DISCHARGE FROM HOSPITALIZATION WHEN SUCH MEMBERS ARE OTHERWISE ENTITLED TO THE DISABILITY BENEFITS UNDER THE CITED PROVISIONS OF LAW. THAT A MEMBER OF A RESERVE COMPONENT IS ENTITLED TO "PAY AND ALLOWANCES. WHENEVER (1) HE IS CALLED OR ORDERED TO ACTIVE DUTY FOR A PERIOD OF MORE THAN 30 DAYS AND IS DISABLED IN LINE OF DUTY FROM DISEASE WHILE SO EMPLOYED. OR (2) HE IS CALLED OR ORDERED TO ACTIVE DUTY. IS DISABLED IN LINE OF DUTY FROM INJURY WHILE SO EMPLOYED. SIMILAR STATUTORY PROVISIONS PERTAINING TO MEMBERS OF THE NATIONAL GUARD ARE CONTAINED IN 32 U.S.C. 318. PRESCRIBES ADDITIONAL HOSPITAL BENEFITS FOR CERTAIN MEMBERS OF THE ARMY AND AIR FORCE RESERVE AND MEMBERS OF THE NATIONAL GUARD WHO ARE OTHERWISE QUALIFIED UNDER THOSE PROVISIONS OF LAW AND THOSE SECTIONS SPECIFICALLY AUTHORIZE "NECESSARY TRANSPORTATION INCIDENT TO HIS HOSPITALIZATION.

B-152864, FEBRUARY 13, 1964, 43 COMP. GEN. 561

TRAVEL EXPENSES - MILITARY PERSONNEL - RESERVISTS - TRAVEL INCIDENT TO HOSPITALIZATION. TRAVEL EXPENSES - MILITARY PERSONNEL - RESERVISTS - TRAVEL INCIDENT TO HOSPITALIZATION MILEAGE, OR TRANSPORTATION REQUESTS AND MEAL TICKETS, OR PER DIEM FOR THE TRAVEL OF MEMBERS OF RESERVE COMPONENTS OF THE UNIFORMED SERVICES INCIDENT TO HOSPITALIZATION, REHOSPITALIZATION, AND RETURN HOME NOT HAVING BEEN AUTHORIZED UNDER 10 U.S.C. 3687, 3721 (ARMY), 6148 (A) AND (B) (NAVY), 8687, 8721 (AIR FORCE), AND 32 U.S.C. 318 (NATIONAL GUARD), PROVIDING DISABILITY BENEFITS FOR THE MEMBERS, THE JOINT TRAVEL REGULATIONS MAY NOT BE AMENDED TO PROVIDE TRAVEL ALLOWANCES AT GOVERNMENT EXPENSE, THE TRANSPORTATION AND SUBSISTENCE COSTS NOT BEING CONSIDERED "PAY AND ALLOWANCES" UNDER THE ACTS OF JUNE 20, 1949, AND SEPTEMBER 7, 1962, PRESCRIBING THE DISABILITY BENEFITS. MEMBERS OF THE ARMY AND AIR FORCE, AND NATIONAL GUARD QUALIFYING FOR THE DISABILITY BENEFITS PRESCRIBED BY 10 U.S.C. 3722 AND 8722, AND 32 U.S.C. 319, HAVING BEEN AUTHORIZED NECESSARY TRANSPORTATION INCIDENT TO HOSPITALIZATION, REHOSPITALIZATION AND RETURN HOME WHEN DISCHARGED FROM THE HOSPITAL, THE JOINT TRAVEL REGULATIONS MAY BE AMENDED TO AUTHORIZE TRAVEL ALLOWANCES CONSISTENT WITH THE GENERAL AUTHORITY FOR TRAVEL AND TRANSPORTATION ALLOWANCES PROVIDED IN 37 U.S.C. 404.

TO THE SECRETARY OF THE AIR FORCE, FEBRUARY 13, 1964:

REFERENCE IS MADE TO LETTER OF OCTOBER 24, 1963, FROM THE ASSISTANT SECRETARY OF THE AIR FORCE FORWARDED HERE BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE, ASSIGNED PDTATAC CONTROL NO. 63-21, REQUESTING DECISION WHETHER THE JOINT TRAVEL REGULATIONS MAY BE AMENDED TO PROVIDE FOR MILEAGE OR TRANSPORTATION REQUESTS AND MEAL TICKETS, OR PER DIEM, AS APPROPRIATE, FOR THE TRAVEL OF ALL OR ANY OF THE MEMBERS OF THE RESERVE COMPONENTS OF THE UNIFORMED SERVICES INCIDENT TO HOSPITALIZATION, REHOSPITALIZATION, AND RETURN TO THEIR HOMES, UPON DISCHARGE FROM HOSPITALIZATION WHEN SUCH MEMBERS ARE OTHERWISE ENTITLED TO THE DISABILITY BENEFITS UNDER THE CITED PROVISIONS OF LAW.

SECTIONS 2687, 3721 (ARMY), 6148 (A) AND (B) (NAVY), 8687 AND 8721 (AIR FORCE) OF TITLE 10, U.S. CODE, PROVIDE, IN SUBSTANCE, THAT A MEMBER OF A RESERVE COMPONENT IS ENTITLED TO "PAY AND ALLOWANCES, PENSIONS, AND OTHER COMPENSATION" PROVIDED BY LAW OR REGULATION FOR A MEMBER OF A REGULAR COMPONENT, INCLUDING HOSPITAL BENEFITS, WHENEVER (1) HE IS CALLED OR ORDERED TO ACTIVE DUTY FOR A PERIOD OF MORE THAN 30 DAYS AND IS DISABLED IN LINE OF DUTY FROM DISEASE WHILE SO EMPLOYED, OR (2) HE IS CALLED OR ORDERED TO ACTIVE DUTY, OR TO PERFORM INACTIVE DUTY TRAINING, FOR ANY PERIOD OF TIME, AND IS DISABLED IN LINE OF DUTY FROM INJURY WHILE SO EMPLOYED. SIMILAR STATUTORY PROVISIONS PERTAINING TO MEMBERS OF THE NATIONAL GUARD ARE CONTAINED IN 32 U.S.C. 318.

IN ADDITION TO THE BENEFITS MENTIONED ABOVE, SECTIONS 3722 AND 8722 OF TITLE 10, U.S. CODE, AND SECTION 319 OF TITLE 32, U.S. CODE, PRESCRIBES ADDITIONAL HOSPITAL BENEFITS FOR CERTAIN MEMBERS OF THE ARMY AND AIR FORCE RESERVE AND MEMBERS OF THE NATIONAL GUARD WHO ARE OTHERWISE QUALIFIED UNDER THOSE PROVISIONS OF LAW AND THOSE SECTIONS SPECIFICALLY AUTHORIZE "NECESSARY TRANSPORTATION INCIDENT TO HIS HOSPITALIZATION, REHOSPITALIZATION AND RETURN TO HIS HOME WHEN HE IS DISCHARGED FROM THE HOSPITAL.' THE SOURCE STATUTE FOR THIS AUTHORITY IS THE ACT OF JUNE 15, 1936, 49 STAT. 1507, 32 U.S.C. 164A (1952 ED.). A MEMBER OF THE NAVAL RESERVE OR MARINE CORPS RESERVE WHO IS OTHERWISE ENTITLED TO THE DISABILITY BENEFITS OF SECTION 6148 (D) OF TITLE 10, U.S. CODE, IS ENTITLED UNDER EXPRESS PROVISIONS OF THAT SECTION TO "NECESSARY TRANSPORTATION AND SUBSISTENCE INCIDENT TO TREATMENT AND RETURN TO HIS HOME UPON DISCHARGE FROM TREATMENT.' THIS AUTHORITY IS DERIVED FROM SECTION 304 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1175, 1181, 34 U.S.C. 855C (1952 ED.).

THE ASSISTANT SECRETARY STATES THAT THE VARYING LANGUAGE USED IN THE STATUTORY PROVISIONS, AS WELL AS THE ABSENCE OF LANGUAGE, WITH RESPECT TO TRAVEL AND TRANSPORTATION ALLOWANCES RAISES MANY QUESTIONS WHETHER VARYING ENTITLEMENTS FOR PERSONAL TRAVEL WERE IN FACT INTENDED. A LITERAL INTERPRETATION OF THE STATUTES, AS IS STATED, WOULD REQUIRE WIDELY DIVERGENT ENTITLEMENTS WITH ALL OF THE ATTENDANT ADMINISTRATIVE PROBLEMS OF SELECTING THE PROPER ENTITLEMENTS IN EACH CASE. THE ASSISTANT SECRETARY EXPRESSES THE VIEW THAT IT WOULD APPEAR REASONABLE TO AFFORD THE SAME ENTITLEMENTS FOR TRANSPORTATION AND SUBSISTENCE TO ALL OF THE MEMBERS HERE INVOLVED INCIDENT TO HOSPITALIZATION, REHOSPITALIZATION AND RETURN HOME. REGULATIONS GOVERNING THE PAYMENT OF DISABILITY BENEFITS TO MEMBERS OF THE RESERVE COMPONENTS GENERALLY ARE CONTAINED IN PARAGRAPHS 50156- 50157, AIR FORCE MANUAL 177-105; PARAGRAPH 044750, NAVY COMPTROLLER MANUAL, AND PARAGRAPHS 20-44, ARMY REGULATIONS 37-104.

THE DISABILITY BENEFITS AUTHORIZED IN SECTIONS 3687, 3721, 6148 (A) AND (B), 8687 AND 8721 OF TITLE 10, U.S. CODE, AND SECTION 318 OF TITLE 32, U.S. CODE, ARE DERIVED FROM THE ACT OF JUNE 20, 1949 (PUBLIC LAW 108), 63 STAT. 201, 34 U.S.C. 855C-1 (1952 ED.). IN CONSIDERING A CASE INVOLVING A CLAIM FOR REIMBURSEMENT FOR TRAVEL OF A MEMBER OF THE U.S. MARINE CORPS RESERVE FROM HIS HOME TO THE HOSPITAL AND RETURN INCIDENT TO AN INJURY RECEIVED BY HIM WHILE ON INACTIVE DUTY TRAINING, WE HELD IN DECISION OF OCTOBER 9, 1961, B-147155, COPY ENCLOSED, THAT THE COSTS OF TRANSPORTATION AND SUBSISTENCE ARE NOT "PAY AND ALLOWANCES" FOR THE PURPOSES OF 10 U.S.C. 6148 (A) MENTIONED ABOVE, FOR THE REASON THAT:

SINCE YOU WERE INJURED WHILE ON INACTIVE DUTY TRAINING YOU WERE ENTITLED UNDER THE PROVISIONS OF 10 U.S.C. 6148 (A) TO THE SAME HOSPITAL BENEFITS AND "PAY AND ALLOWANCES" AS IF SERVING ON ACTIVE DUTY. THE TERM "PAY AND ALLOWANCES" AS USED IN THAT LAW, HOWEVER, HAS BEEN APPLIED AS HAVING REFERENCE ONLY TO THE DIRECT AND FIXED AMOUNTS OF MONEY PROVIDED BY LAW IN CONSIDERATION OF AND AS COMPENSATION FOR PERSONAL SERVICES. THE COSTS OF TRANSPORTATION AND SUBSISTENCE INCIDENT TO TRAVEL ARE EXPENSES AND PAYMENTS MADE ON ACCOUNT OF SUCH EXPENSES REPRESENT REIMBURSEMENT OF THE COSTS SO INCURRED AND, THEREFORE, ARE NOT PAY AND ALLOWANCES FOR THE PURPOSES OF 10 U.S.C. 6148 (A).

THERE IS FOR NOTING, HOWEVER, THAT SECTION 6 (D) (10 U.S.C. 3687 AND 8687), SECTION (E) (10 U.S.C. 6148) AND SECTION 8 (A) (32 U.S.C. 318) OF THE ACT OF SEPTEMBER 7, 1962, PUBLIC LAW 87-649, 76 STAT. 451, WHICH CODIFIED AND ENACTED TITLE 37 OF THE U.S. CODE, AMENDED SECTIONS 3687, 6148 (A) AND (B) AND 8687 OF TITLE 10, AND SECTION 318 OF TITLE 32, BY STRIKING OUT THE WORDS "PAY AND ALLOWANCES.' THE DISABILITY BENEFITS OF THOSE SECTIONS (PUBLIC LAW 108) AS APPLICABLE TO PAY AND ALLOWANCES, ARE NOW CONTAINED IN 37 U.S.C. 204 (G), (H) AND (I). WE FIND NOTHING IN THE LEGISLATIVE HISTORY OF THE LATTER ACT, HOWEVER, WHICH WOULD WARRANT A CONCLUSION THAT THE TERM ,PAY AND ALLOWANCES" AS USED IN 37 U.S.C. 204 (G), (H) AND (I) REPRESENTS A SUBSTANTIVE CHANGE FROM THAT TERM AS USED IN THE PROVISIONS OF THE 1949 LAW. SEE SECTION 12 (A) OF THE ACT OF SEPTEMBER 7, 1962, 76 STAT. 497, 37 U.S.C.PREC. 101 NOTE.

IN THE ABSENCE OF EXPRESS STATUTORY AUTHORITY TRAVEL AND TRANSPORTATION ALLOWANCES FOR NECESSARY TRAVEL INCIDENT TO HOSPITALIZATION, REHOSPITALIZATION, AND RETURN HOME, FOR MEMBERS OTHERWISE ENTITLED TO THE BENEFITS OF 10 U.S.C. 3687, 3721, 6148 (A) AND (B), 8687, 8721, OR32 U.S.C. 318, THERE APPEARS TO BE NO AUTHORITY TO AMEND THE JOINT TRAVEL REGULATIONS TO PROVIDE FOR TRAVEL ALLOWANCES AT GOVERNMENT EXPENSE TO MEMBERS IN THIS CATEGORY.

WITH RESPECT TO MEMBERS COVERED BY 10 U.S.C. 3722, 6148 (D), 8722 AND 32 U.S.C. 319, THE JOINT TRAVEL REGULATIONS MAY BE AMENDED TO AUTHORIZE TRAVEL ALLOWANCES CONSISTENT WITH THE GENERAL AUTHORITY UNDER 37 U.S.C. 404 SO LONG AS THOSE PROVISIONS ARE NOT IN CONFLICT WITH THE SPECIFIC STATUTORY PROVISIONS GOVERNING TRAVEL AND TRANSPORTATION ALLOWANCES FOR MEMBERS IN THIS CATEGORY. IN THIS CONNECTION, SEE DECISION OF JULY 18, 1958, B-136059, COPY ENCLOSED, WHEREIN IT WAS POINTED OUT THAT, UNDER THE PROVISIONS OF 10 U.S.C. 3722 (B) (4), MENTIONED ABOVE, COMMUTED MILEAGE IS NOT PAYABLE TO A MEMBER WHO IS OTHERWISE QUALIFIED FOR THE DISABILITY BENEFITS UNDER THAT PROVISION.