B-158115, MAY 2, 1966, 45 COMP. GEN. 661

B-158115, MAY 2, 1966, 45 COMP. GEN. 661

MILEAGE - MILITARY PERSONNEL - RELEASE FROM ACTIVE DUTY - TO PLACE FROM WHICH ORDERED TO ACTIVE DUTY - ENLISTED V. OFFICER STATUS A NAVY ENLISTED MEMBER REPORTING AS AN OFFICER CANDIDATE SEAMAN APPRENTICE FROM DENVER, COLORADO, TO NEWPORT, RHODE ISLAND, WHERE HE REMAINED UPON BEING COMMISSIONED AN ENSIGN, NAVAL RESERVE, UNTIL RELEASED UNDER ORDERS EVIDENCING HE WAS ORDERED TO ACTIVE DUTY AS AN OFFICER FROM MERIDEN, CONNECTICUT, HIS HOME OF RECORD AT THAT TIME, IS ENTITLED TO A MILEAGE ALLOWANCE TO DENVER, THE PLACE HE ENTERED ON ACTIVE DUTY AS AN ENLISTED MAN, PURSUANT TO PARAGRAPH M4157 OF THE JOINT TRAVEL REGULATIONS PROVIDING A TRAVEL ALLOWANCE FROM A LAST DUTY STATION TO HOME OF RECORD OR PLACE FROM WHICH ORDERED TO ACTIVE DUTY AND PARAGRAPH M4157 AUTHORIZING TRAVEL OF DEPENDENTS, AND THE MILITARY INSTALLATION AT WHICH THE STATUS OF THE MEMBER CHANGED FROM AN ENLISTED MAN TO A COMMISSIONED OFFICER HAVING NO RELATIONSHIP TO HIS HOME OR PLACE FROM WHICH HE ENTERED THE SERVICE FROM CIVILIAN LIFE, THE OFFICER DENIED AN OPPORTUNITY TO ELECT MILEAGE FROM THE PLACE ORDERED TO ACTIVE DUTY IN AN ENLISTED CAPACITY MAY HAVE HIS TRAVEL ALLOWANCE ADJUSTED ON THE BASIS OF AN ELECTION TO BE PAID MILEAGE TO DENVER.

TO R. G. PISTNER, DEPARTMENT OF THE NAVY, MAY 2, 1966:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED OCTOBER 20, 1965, REQUESTING A DECISION AS TO WHETHER ADDITIONAL MILEAGE ALLOWANCE IS PAYABLE TO LIEUTENANT (JG) JOHN S. REBSTOCK, JR., 645987, USNR-R, FROM NEWPORT, RHODE ISLAND, TO DENVER, COLORADO, UPON RELEASE FROM ACTIVE DUTY. THE REQUEST FOR DECISION WAS ASSIGNED CONTROL NO. 65-36 BY THE PER DIEM TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

BY ORDERS DATED JUNE 10, 1960, ADDRESSED TO THE MEMBER AS OFFICER CANDIDATE SEAMAN APPRENTICE AND MAILED TO HIM AT 2543 SOUTH LINCOLN, DENVER, COLORADO, HE WAS DIRECTED TO REPORT TO NAVAL SCHOOLS COMMAND, NEWPORT, RHODE ISLAND, ON AUGUST 22, 1960, FOR INDOCTRINATION. THE ORDERS PROVIDED FURTHER THAT UPON SATISFACTORY COMPLETION OF THE PRESCRIBED PERIOD OF INDOCTRINATION, THE MEMBER WOULD BE APPOINTED ENSIGN, NAVAL RESERVE. IT IS REPORTED THAT ON MARCH 3, 1961,HE WAS COMMISSIONED AN ENSIGN AND ORDERED TO ACTIVE DUTY AT NEWPORT, RHODE ISLAND. BY 1ST INDORSEMENT DATED DECEMBER 21, 1964, ON ORDERS OF NOVEMBER 4, 1964, HE WAS RELEASED FROM ACTIVE DUTY, DECEMBER 21, 1964, PARAGRAPH 4 OF THOSE ORDERS STATING THAT ACCORDING TO HIS SERVICE RECORD, HE WAS ORDERED TO ACTIVE DUTY (AS AN OFFICER) FROM MERIDEN, CONNECTICUT, HIS HOME OF RECORD AT THE TIME WAS MERIDEN, CONNECTICUT, AND THAT HE WAS ELECTED MILEAGE TO HIS HOME RECORD, MERIDEN. HE WAS PAID MILEAGE ALLOWANCE FROM NEWPORT TO MERIDEN. IN LETTER DATED DECEMBER 24, 1964, FROM THE CHIEF OF NAVAL PERSONNEL TO COMMANDING OFFICER, U.S.S. MITSCHER (DL 2), FPO, NEW YORK, NEW YORK, IT IS STATED, HOWEVER, THAT NAVY RECORDS SHOW THAT PLACE FROM WHICH THE MEMBER WAS ORDERED TO ACTIVE DUTY IS DENVER, COLORADO, RATHER THAN MERIDEN AND THAT HIS SERVICE RECORD SHOULD BE CORRECTED ACCORDINGLY. BY LETTER DATED DECEMBER 28, 1964, THE CHIEF OF NAVAL PERSONNEL ADVISED THE MEMBER THAT HIS HOME OF RECORD WAS MERIDEN BUT THAT HE WAS ENTITLED TO ELECT TRAVEL AND TRANSPORTATION ALLOWANCES TO EITHER HIS HOME OF RECORD, MERIDEN, CONNECTICUT, OR THE PLACE FROM WHICH HE WAS ORDERED TO ACTIVE DUTY, DENVER, COLORADO.

YOUR QUESTION IS WHETHER TRAVEL ALLOWANCE FOR SUCH MEMBER WILL BE DETERMINED ON THE BASIS OF PLACE HE ENTERED ON ACTIVE DUTY AS AN ENLISTED MAN (DENVER, COLORADO) OR THE PLACE WHERE HE WAS COMMISSIONED AND ORDERED TO ACTIVE DUTY AS AN OFFICER (NEWPORT, RHODE ISLAND). YOU SAY YOUR DOUBT IN THE MATTER IS BASED ON WHAT YOU BELIEVE TO BE A DISPARITY BETWEEN OUR DECISION OF JULY 9, 1957, B-130765, AND OUR DECISIONS OF SEPTEMBER 8, 1954, B-120297, AND NOVEMBER 26, 1962, B 150203.

THE TRANSPORTATION AND TRAVEL ALLOWANCES OF MEMBERS OF THE ARMED SERVICES AND THEIR DEPENDENTS UPON PERMANENT CHANGE OF STATION INCLUDING THE CHANGE FROM LAST STATION TO HOME ARE GOVERNED BY THE JOINT TRAVEL REGULATIONS PROMULGATED BY THE SECRETARIES PURSUANT TO 37 U.S.C. 404 AND 406. PARAGRAPH M4157 OF THE REGULATIONS PROVIDES FOR TRAVEL ALLOWANCES FOR THE MEMBER FROM LAST STATION TO HOME OF RECORD OR PLACE FROM WHICH HE WAS ORDERED TO ACTIVE DUTY. THIS PROVISION SIMPLY REPEATS THE PROVISIONS OF 37 U.S.C. 404 (A) (3). PARAGRAPH M7009 OF THE REGULATIONS PROVIDES THAT UPON THE MEMBER'S RELEASE FROM ACTIVE DUTY HE IS ENTITLED TO TRANSPORTATION OR REIMBURSEMENT FOR TRAVEL PERFORMED BY QUALIFIED DEPENDENTS FROM LAST STATION TO PLACE OF RESIDENCE NOT TO EXCEED THE PLACE SELECTED BY THE MEMBER FOR HIS TRAVEL ALLOWANCE UNDER PARAGRAPH M4157 OF THE REGULATIONS.

THE OBVIOUS PURPOSE OF THE PROVISIONS IN THE STATUTE AND REGULATIONS FOR PAYMENT OF TRAVEL ALLOWANCES UPON SEPARATION FROM THE SERVICE OR RELEASE FROM ACTIVE DUTY IS TO PROVIDE THE MEANS FOR THE RETURN OF THE MEMBER AND HIS DEPENDENTS TO HIS HOME OR TO THE PLACE AT WHICH HE ENTERED THE SERVICE FROM CIVILIAN LIFE. ENLISTED MEMBERS OF THE ARMED SERVICES GENERALLY WHO QUALIFY FOR APPOINTMENT AS COMMISSIONED OFFICERS UPON SUCCESSFULLY COMPLETING OFFICER CANDIDATE SCHOOL OR SIMILAR TRAINING ARE DISCHARGED FROM THE ENLISTED STATUS HELD WHILE UNDER INSTRUCTION AND ARE APPOINTED AND ORDERED TO ACTIVE DUTY AS OFFICERS. THE MILITARY INSTALLATION AT WHICH A MEMBER'S STATUS IS CHANGED FROM THAT OF AN ENLISTED MAN TO A COMMISSIONED OFFICER NORMALLY WOULD BEAR NO RELATIONSHIP TO HIS HOME OR TO THE PLACE AT WHICH HE ENTERED THE SERVICE FROM CIVILIAN LIFE. CONSEQUENTLY, A RETURN TO SUCH INSTALLATION UPON SUBSEQUENT SEPARATION FROM ACTIVE SERVICE WOULD NOT ACCOMPLISH THE STATUTORY PURPOSE, AND PARAGRAPH M4157-4 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT THE SERVICE PERFORMED SUBSEQUENT TO SUCH A SEPARATION FROM THE SERVICE FOR THE PURPOSE OF CONTINUING ON ACTIVE DUTY IN ANOTHER STATUS IS, SO FAR AS TRAVEL RIGHTS ARE CONCERNED, MERELY A CONTINUATION OF THE PRIOR PERIOD OF SERVICE, AND THAT THE MEMBER'S HOME OF RECORD AND PLACE FROM WHICH ORDERED TO ACTIVE DUTY AT THE TIME OF ENTRY INTO SUCH PRIOR SERVICE PERIOD WILL BE USED TO DETERMINE ENTITLEMENT TO TRAVEL ALLOWANCES FOR TRAVEL UPON HIS NEXT SEPARATION FROM ACTIVE SERVICE. THESE PROVISIONS ARE IN CONSONANCE WITH PRACTICES APPROVED BY DECISIONS OF THIS OFFICE AS INDICATED IN OUR DECISION OF SEPTEMBER 8, 1954, B-120297, WHICH YOU CITE. BASED ON THE FOREGOING, SINCE THE PLACE FROM WHICH LIEUTENANT REBSTOCK WAS ORDERED TO ACTIVE DUTY IN HIS ENLISTED CAPACITY WAS DENVER AND HIS SERVICE WAS CONTINUOUS UNTIL HIS RELEASE FROM ACTIVE DUTY, HE WAS ENTITLED TO MILEAGE TO THAT PLACE OR TO HIS HOME OF RECORD, MERIDEN, CONNECTICUT, WHICHEVER HE MIGHT ELECT.

ON THE INDORSEMENT OF DECEMBER 21, 1964, TO LIEUTENANT REBSTOCK'S ORDERS IT IS STATED "I HEREBY ELECT MILEAGE ALLOWANCE TO MERIDEN, CONNECTICUT, VIA PRIVATELY OWNED AUTOMOBILE.' NEITHER THE LAW NOR THE REGULATIONS REQUIRE THAT THE MEMBER BE PAID A TRAVEL ALLOWANCE UPON RELEASE FROM ACTIVE DUTY IN EXCESS OF THAT BASED UPON HIS ELECTION, OR THAT ADJUSTMENTS BE MADE TO ASSURE THAT A GREATER DISTANCE WHICH COULD HAVE BEEN ELECTED BE USED AS A BASIS FOR COMPUTING THE ALLOWANCE IN ALL CASES. HOWEVER, SINCE IT APPEARS FROM THE RECORD THAT LIEUTENANT REBSTOCK MAY NOT HAVE BEEN AFFORDED AN OPPORTUNITY TO MAKE AN ELECTION TO BE PAID MILEAGE TO DENVER, AT THE TIME OF HIS RELEASE FROM ACTIVE DUTY BECAUSE OF AN ASSUMPTION THAT FOR SUCH PURPOSE THE PLACE FROM WHICH HE WAS ORDERED TO ACTIVE DUTY AND THE HOME OF RECORD WERE BOTH MERIDEN, THE TRAVEL ALLOWANCE MAY BE ADJUSTED ON THE BASIS OF AN ELECTION TO BE PAID MILEAGE TO DENVER.

ACCORDINGLY, PAYMENT OF THE VOUCHER (RETURNED HEREWITH TOGETHER WITH SUPPORTING PAPERS) IS AUTHORIZED.

THE DECISIONS REFERRED TO IN YOUR LETTER AS GIVING RISE TO SOME QUESTION OF ENTITLEMENT IN THIS TYPE OF CASE INVOLVED QUESTIONS OF ENTITLEMENT TO TRANSPORTATION OF DEPENDENTS UPON ENTRY INTO SERVICE AND NOT UPON RELEASE FROM ACTIVE DUTY. WE DO NOT, HOWEVER, VIEW THEM AS IN CONFLICT WITH THE RULE STATED IN THE DECISION OF SEPTEMBER 8, 1954. UNDER THE FACTS IN EACH OF THOSE DECISIONS AS WE UNDERSTOOD THEM, THE DEPENDENTS WERE NOT AUTHORIZED TO TRAVEL ON THE BASIS OF THE ENLISTED STATUS AND DID NOT DEPART FROM HOME UNTIL AFTER THE MEMBERS HAD BEEN COMMISSIONED AND ORDERED TO ACTIVE DUTY AS OFFICERS. IN EACH CASE WE HELD THAT REIMBURSEMENT WAS AUTHORIZED FOR THE TRAVEL ACTUALLY REQUIRED PURSUANT TO THE ORDERS; THAT IS, FROM HOME TO PERMANENT DUTY STATION. IF, IN EITHER CASE, OUR UNDERSTANDING OF THE FACTS WAS INCORRECT AND THE DEPENDENTS WERE LOCATED AT SOME PLACE OTHER THAN THE HOME WHEN THE OFFICERS WERE COMMISSIONED AND ORDERED TO ACTIVE DUTY, REIMBURSEMENT FOR TRAVEL OF THE DEPENDENTS WOULD BE AUTHORIZED FROM THE PLACE WHERE THEY WERE LOCATED TO PERMANENT DUTY STATION, NOT TO EXCEED THE GREATER OF THE DISTANCES FROM HOME, OR FROM THE PLACE FROM WHICH THE MEMBER WAS ORDERED TO ACTIVE DUTY AS AN OFFICER, TO PERMANENT DUTY STATION.

IN TRANSMITTING YOUR LETTER THE COMPTROLLER OF THE NAVY, BY SECOND INDORSEMENT OF NOVEMBER 1, 1965, ASKED, IN THE EVENT IT IS DECIDED THAT NEWPORT, RHODE ISLAND, IS THE "PLACE FROM WHICH ORDERED TO ACTIVE DUTY," WHETHER NEWLY COMMISSIONED OFFICERS MAY ESTABLISH FOR TRAVEL ALLOWANCE PURPOSES, IF OTHERWISE PROPER, A DIFFERENT HOME OF RECORD UPON COMMISSIONING FROM THAT ESTABLISHED AT TIME OF ENTERING THE CURRENT TOUR OF ACTIVE DUTY AS ENLISTED MEMBERS. SINCE WE HAVE CONCLUDED THAT DENVER AND NOT NEWPORT IS REGARDED AS THE PLACE FROM WHICH LIEUTENANT REBSTOCK WAS ORDERED TO ACTIVE DUTY FOR THE PURPOSE OF COMPUTING HIS MILEAGE ALLOWANCE UPON RELEASE FROM ACTIVE DUTY NO ANSWER TO THAT QUESTION WOULD APPEAR TO BE REQUIRED.