B-154901, SEPTEMBER 25, 1964, 44 COMP. GEN. 172

B-154901, SEPTEMBER 25, 1964, 44 COMP. GEN. 172

TRAVEL EXPENSES - MILITARY PERSONNEL - RESERVE OFFICERS' TRAINING CORPS SUMMER TRAINING ALTHOUGH NAVAL RESERVE OFFICERS' TRAINING CORPS MIDSHIPMEN APPOINTED UNDER 10 U.S.C. 6904 AND ASSIGNED TO THE NROTC UNIT AT THE COLLEGE OR UNIVERSITY IN WHICH THEY ARE ENROLLED ARE NOT SUBJECT PURSUANT TO PARAGRAPH 6005 OF THE JOINT TRAVEL REGULATIONS WHILE ATTENDING SUMMER TRAINING, WHEN, HOWEVER, THEY PARTICIPATE IN SUMMER TRAINING IN THE FOREIGN MIDSHIPMAN EXCHANGE PROGRAMS UNDER CIRCUMSTANCES SIMILAR TO THE PARTICIPATION BY MIDSHIPMEN OF THE UNITED STATES NAVAL ACADEMY, THEY ARE ENTITLED IN ACCORDANCE WITH 37 U.S.C. 422 (C) TO THE SAME TRAVEL AND TEMPORARY DUTY ALLOWANCES PROVIDED UNDER 37 U.S.C. 404, AND PRESCRIBED BY 37 U.S.C. 410, FOR NAVAL ACADEMY MIDSHIPMEN TRAVELING UNDER ORDERS, THE COLLEGE OR UNIVERSITY BEING ANALOGOUS TO A PERMANENT DUTY STATION IN DETERMINING ENTITLEMENT TO ALLOWANCES FOR "TRAVEL WHILE UNDER ORDERS," AND NOTWITHSTANDING THE PROHIBITION IN PARAGRAPH 6005 THE NROTC MIDSHIPMEN ARE SUBJECT TO THE JOINT TRAVEL REGULATIONS WHEN THEY ARE MADE APPLICABLE BY OTHER STATUTORY PROVISIONS.

TO THE SECRETARY OF THE NAVY, SEPTEMBER 25, 1964:

FURTHER REFERENCE IS MADE TO LETTER DATED JULY 21, 1964, FROM THE UNDER SECRETARY OF THE NAVY, REQUESTING DECISION CONCERNING THE ENTITLEMENT OF NAVAL RESERVE OFFICERS' TRAINING CORPS MIDSHIPMEN APPOINTED UNDER 10 U.S.C. 6904 TO TRAVEL AND TEMPORARY DUTY ALLOWANCES UNDER THE CIRCUMSTANCES DISCLOSED. THE REQUEST FOR DECISION WAS ASSIGNED CONTROL NO. 64-29 OF THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

IT IS STATED THAT THE CHIEF OF NAVAL PERSONNEL PRESENTLY INTENDS TO ASSIGN A NUMBER OF REGULAR NROTC MIDSHIPMEN IN THE FOREIGN MIDSHIPMAN EXCHANGE PROGRAM FOR THE 1964 SUMMER TRAINING PROGRAM; THAT THE MIDSHIPMEN OF THE U.S. NAVAL ACADEMY ARE ALSO ORDERED TO ASSIGNMENTS INVOLVING THE FOREIGN MIDSHIPMAN EXCHANGE PROGRAM UNDER ALMOST IDENTICAL CIRCUMSTANCES AND ARE REIMBURSED APPLICABLE PER DIEM FOR PERIODS OF TEMPORARY DUTY UNDER AUTHORITY OF PARAGRAPH 5001, JOINT TRAVEL REGULATIONS, BUT THAT MIDSHIPMEN APPOINTED UNDER 10 U.S.C. 6904 ARE NOT SUBJECT TO THE JOINT TRAVEL REGULATIONS AS STATED IN PARAGRAPH 6005 THEREOF. IT IS POINTED OUT THAT THE APPLICABLE STATUTE GOVERNING MIDSHIPMEN APPOINTED UNDER 10 U.S.C. 6904 IS 37 U.S.C. 422 (C) WHICH PROVIDES THAT SUCH MEMBERS ARE ENTITLED TO THE ALLOWANCES PROVIDED FOR MIDSHIPMEN AT THE U.S. NAVAL ACADEMY FOR TRAVEL UNDER ORDERS; THAT THE PERTINENT ADMINISTRATIVE REGULATIONS IMPLEMENTING 37 U.S.C. 422 (C) ARE CONTAINED IN PARAGRAPH 5001, NAVY TRAVEL INSTRUCTIONS; THAT SUBPARAGRAPH 5001-1, WHICH IS A GENERAL PARAGRAPH, PROVIDES IN PERTINENT PART THAT "REGULAR MIDSHIPMEN OF THE NAVAL RESERVE OFFICERS' TRAINING CORPS WILL BE ENTITLED TO ALLOWANCES FOR INITIAL TRAVEL TO THE COLLEGE OR UNIVERSITY IN WHICH MATRICULATED, TRAVEL UNDER ORDERS, AND TRAVEL UPON DISCHARGE, IN THE MANNER AND TO THE SAME EXTENT AS PROVIDED FOR MIDSHIPMEN OF THE UNITED STATES NAVAL ACADEMY * * *; " AND THAT SUBPARAGRAPH 2 OF THE INSTRUCTIONS, HEADED "SUMMER TRAINING," AUTHORIZES REIMBURSEMENT OF TRAVEL ALLOWANCES ONLY FOR ROUND-TRIP TRAVEL FROM THE NROTC UNIT TO THE PLACE OF REPORTING FOR TRAINING AND RETURN WITH CERTAIN EXCEPTIONS NOT PERTINENT HERETO.

THE UNDER SECRETARY SAYS THAT SOME DISBURSING OFFICERS ARE INTERPRETING THE NAVY TRAVEL INSTRUCTIONS TO MEAN THAT THE ONLY TRAVEL ALLOWANCES PAYABLE IN CONNECTION WITH SUMMER TRAINING ARE THOSE PRESCRIBED IN PARAGRAPH 5001-2, AND THAT PARAGRAPH 5001-1 PERTAINS TO TRAVEL OTHER THAN IN CONNECTION WITH SUMMER TRAINING. THE UNDER SECRETARY SAYS, HOWEVER, THAT THE INTENT OF THE INSTRUCTIONS WAS TO PRESCRIBE GENERAL CONDITIONS FOR TRAVEL FROM THE NROTC UNIT TO THE PLACE OF REPORTING AND RETURN, BUT NOT TO RESTRICT REIMBURSEMENT FOR OTHER PROPER TRAVEL EXPENSES, INCLUDING PER DIEM, INCURRED IN CONNECTION WITH SUMMER TRAINING. IN VIEW OF THESE CONSIDERATIONS AND THE DOUBT EXPRESSED THEREIN AND OUR DECISION IN 39 COMP. GEN. 511, HOLDING THAT A TRAVEL STATUS CANNOT EXIST IN THE ABSENCE OF A DESIGNATED POST OF DUTY FOR THE MEMBER AWAY FROM WHICH TRAVEL IS BEING PERFORMED, HE ASKS THE FOLLOWING QUESTIONS:

1. MAY 37 U.S.C. 422 (C) BE INTERPRETED TO MEAN THAT THE COLLEGE OR UNIVERSITY IN WHICH A MIDSHIPMAN APPOINTED UNDER SECTION 6904 TITLE 10IS MATRICULATED IS ANALOGOUS TO A PERMANENT DUTY STATION FOR PURPOSES OF REIMBURSEMENT OF OTHERWISE PROPER TRAVEL ALLOWANCES WHILE THE MIDSHIPMAN IS UNDER ORDERS, THUS ENTITLING SAID MIDSHIPMAN TO TRAVEL ALLOWANCES FOR SUMMER TRAINING IN THE MANNER AND TO THE SAME EXTENT AS MIDSHIPMEN OF THE UNITED STATES ACADEMY?

2. IF THE ANSWER TO QUESTION 1 IS IN THE NEGATIVE, MAY IT BE CONSIDERED THEN THAT TRAVEL BETWEEN POINTS TO WHICH A MIDSHIPMAN APPOINTED UNDER SECTION 6904 TITLE 10 IS REQUIRED TO TRAVEL UNDER ORDERS IS TRAVEL BETWEEN DESIGNATED POSTS OF DUTY FOR REIMBURSEMENT PURPOSES?

ADDITIONAL INFORMATION CONCERNING THE REGULAR NAVAL RESERVE OFFICERS' TRAINING PROGRAM HAS BEEN FURNISHED THIS OFFICE BY THE PER DIEM TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE. IT APPEARS FROM SUCH INFORMATION THAT THE MIDSHIPMEN APPOINTED UNDER 10 U.S.C. 6904 ARE ASSIGNED TO THE NROTC UNIT AT THE COLLEGE OR UNIVERSITY IN WHICH THEY ENROLL AND ARE ORDERED TO REPORT TO THE COMMANDING OFFICER OF THE UNIT FOR TRAINING UNDER THE PROGRAM (NORMALLY FOR 4 YEARS) AT SUCH SCHOOL. HENCE, IT SEEMS CLEAR THAT SUCH COLLEGE OR UNIVERSITY PROPERLY IS TO BE REGARDED AS THEIR PERMANENT DUTY STATION IN DETERMINING THEIR ENTITLEMENT TO ALLOWANCES FOR "TRAVEL WHILE UNDER ORDERS.' WHILE THE VIEW IS INDICATED IN THE LETTER OF JULY 21, 1964, THAT MIDSHIPMEN APPOINTED UNDER 10 U.S.C. 6904 ARE NOT SUBJECT TO THE JOINT TRAVEL REGULATIONS BY REASON OF PARAGRAPH 6005, IT IS NOTED THAT THE SECTION PROVIDES THAT:

STUDENTS OF RESERVE OFFICERS TRAINING CORPS, NAVAL RESERVE OFFICERS TRAINING CORPS, AND AIR FORCE RESERVE OFFICERS TRAINING CORPS ATTENDING TRAINING ENCAMPMENTS DO NOT COME WITHIN THE PURVIEW OF * * *

THE JOINT TRAVEL REGULATIONS. THE SECTION APPARENTLY RELATES ONLY TO SUCH STUDENTS WHILE THEY ARE AT THE ACTUAL LOCATION OF THE SUMMER ENCAMPMENTS OR SIMILAR SUMMER GROUP TRAINING ASSIGNMENTS. HENCE, THE SECTION WOULD NOT SEEM TO PRECLUDE NROTC MIDSHIPMEN FROM BEING SUBJECT TO THE JOINT TRAVEL REGULATIONS IN OTHER SITUATIONS TO THE EXTENT THAT SUCH REGULATIONS ARE MADE APPLICABLE BY OTHER STATUTORY PROVISIONS.

SECTION 422 (C) OF TITLE 37 OF THE U.S.C. PROVIDES THAT THE PERSONNEL HERE CONCERNED--- MIDSHIPMEN APPOINTED UNDER SECTION 6904--- ARE ENTITLED TO THE ALLOWANCES PROVIDED FOR MIDSHIPMEN OF THE NAVAL ACADEMY FOR---

(1) INITIAL TRAVEL TO THE COLLEGE OR UNIVERSITY IN WHICH MATRICULATED;

(2) TRAVEL WHILE UNDER ORDERS; AND

(3) TRAVEL ON DISCHARGE.

UNDER THE PROVISIONS OF 37 U.S.C. 422 (A) MIDSHIPMEN OF THE NAVAL ACADEMY ARE ENTITLED TO THE TRAVEL AND TRANSPORTATION ALLOWANCES PRESCRIBED FOR THEM UNDER 37 U.S.C. 410 AND UNDER THE PROVISIONS OF SECTION 410 THEY MAY RECEIVE SUCH OF THE TRAVEL AND TRANSPORTATION ALLOWANCES PROVIDED BY 37 U.S.C. 404 AS THE SECRETARY MAY PRESCRIBE.

PARAGRAPH 5001, JOINT TRAVEL REGULATIONS, AUTHORIZES PAYMENTS OF TRAVEL AND TRANSPORTATION ALLOWANCES TO CADETS OR MIDSHIPMEN ON TEMPORARY DUTY AS PRESCRIBED FOR OFFICERS OF THE UNIFORMED SERVICES. PARAGRAPH 3050 OF THE REGULATIONS PROVIDES THAT MEMBERS ARE ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES, AS AUTHORIZED IN ACCORDANCE WITH EXISTING REGULATIONS, ONLY WHILE ACTUALLY IN A TRAVEL STATUS AND THEY SHALL BE DEEMED TO BE IN A TRAVEL STATUS WHILE PERFORMING TRAVEL AWAY FROM THEIR PERMANENT DUTY STATION, UPON PUBLIC BUSINESS, PURSUANT TO COMPETENT TRAVEL ORDERS, INCLUDING NECESSARY DELAYS EN ROUTE INCIDENT TO MODE OF TRAVEL AND PERIODS OF NECESSARY TEMPORARY OR TEMPORARY ADDITIONAL DUTY. THE PARAGRAPH FURTHER PROVIDES THAT A TRAVEL STATUS WILL COMMENCE WITH DEPARTURE FROM THE PERMANENT DUTY STATION. AS THE TERM IS DEFINED IN PARAGRAPH 1150-10, A MEMBER'S PERMANENT DUTY STATION IS THE POST OF DUTY OR OFFICIAL STATION WHERE ASSIGNED OR ATTACHED FOR OTHER THAN TEMPORARY OR TEMPORARY ADDITIONAL DUTY.

UNDER THE COPY OF ORDERS DATED JUNE 15, 1963, ACCOMPANYING THE UNDER SECRETARY'S LETTER, THE MIDSHIPMAN INVOLVED WAS ORDERED TO ACTIVE DUTY FOR TRAINING IN THE NROTC SUMMER TRAINING PROGRAM. HE WAS DIRECTED TO REPORT TO THE U.S. NAVAL ATTACHE, OSLO, NORWAY, NOT LATER THAN JULY 8, 1963, FOR TEMPORARY ADDITIONAL DUTY UNDER INSTRUCTION IN THE MIDSHIPMAN FOREIGN EXCHANGE PROGRAM FOR A PERIOD OF ABOUT 8 WEEKS WITH THE NORWEGIAN NAVY. IT SEEMS CLEAR THAT SUCH ASSIGNMENTS IN THE MIDSHIPMAN FOREIGN EXCHANGE PROGRAM DO NOT COME WITHIN THE CONTEMPLATION OF PARAGRAPH 6005 OF THE JOINT TRAVEL REGULATIONS.

IN THESE CIRCUMSTANCES AND IN VIEW OF THE CITED PROVISIONS OF 37 U.S.C. 422 (C) MAKING APPLICABLE TO SUCH PERSONNEL THE RIGHT OF MIDSHIPMEN AT THE NAVAL ACADEMY TO TRAVEL AND TRANSPORTATION ALLOWANCES PROVIDED UNDER 37 U.S.C. 404, AS PRESCRIBED BY THE SECRETARIES CONCERNED, UNDER AUTHORITY OF THE PROVISIONS OF 37 U.S.C. 410, FOR "TRAVEL WHILE UNDER ORDERS" IT APPEARS THAT NROTC MEMBERS WHO PERFORM TRAVEL AND TEMPORARY DUTY PURSUANT TO ORDERS DIRECTING THEIR PARTICIPATION IN SUMMER TRAINING IN THE MIDSHIPMAN FOREIGN EXCHANGE PROGRAMS ARE ENTITLED TO THE SAME TRAVEL ALLOWANCES AUTHORIZED FOR MIDSHIPMEN OF THE NAVAL ACADEMY UNDER SIMILAR CIRCUMSTANCES. COMPARE 42 COMP. GEN. 312.

ACCORDINGLY QUESTION (1) IS ANSWERED IN THE AFFIRMATIVE ON SUCH BASIS AND NO ANSWER IS REQUIRED TO THE SECOND QUESTION.