B-199809.OM, JUN 9, 1981

B-199809.OM: Jun 9, 1981

Additional Materials:

Contact:

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

 

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

MEMBER WAS ENTITLED TO 5 DAYS' RETURN HOME TRAVEL. SINCE MEMBER WAS STILL IN EXTENDED ACTIVE DUTY STATUS FOR PAY PURPOSES. DIGEST NO. 2: A SERVICE MEMBER'S EXTENDED ACTIVE DUTY ORDERS WERE PROSPECTIVELY AMENDED TO PERMIT EARLY RELEASE TO PERMIT HIM TO ACCEPT A NATIONAL GUARD AIR TECHNICIAN POSITION. THERE WAS AN OVERLAP OF SERVICE AS AN AIR TECHNICIAN FOR WHICH PAY IS CLAIMED. ARE NOT FOR APPLICATION. AMENDMENT TO BASIC ORDERS WERE COMPLETE ON FACE AND NOTHING CONTAINED THEREIN PURPORTED TO RELATE TO OR REMOTELY CONTEMPLATED HIS PERFORMANCE OF ACTIVE DUTY FOR TRAINING IN HIS AFTER ACQUIRED AIR TECHNICIAN STATUS IMMEDIATELY FOLLOWING EARLY RELEASE. THE COMPTROLLER GENERAL: HEREWITH IS THE FILE OF LARRY C.

B-199809.OM, JUN 9, 1981

DIGEST NO. 1: A SERVICE MEMBER ON EXTENDED ACTIVE DUTY HAD BASIC ORDERS AMENDED TO AUTHORIZE RELEASE ON MARCH 4, 1976, IN ORDER TO ACCEPT NATIONAL GUARD AIR TECHNICIAN POSITION THEREAFTER. NOT STATED IN THOSE ORDERS, BUT INCLUDED AS PART OF EXTENDED ACTIVE DUTY PERIOD FOR PAY PURPOSES AS AUTHORIZED BY 37 U.S.C. 204(B), MEMBER WAS ENTITLED TO 5 DAYS' RETURN HOME TRAVEL, THEREBY EXTENDING ACTIVE DUTY PERIOD UNTIL MARCH 9, 1976. ON MARCH 5, 1976, MEMBER PERFORMED EQUIVALENT TRAINING IN AIR TECHNICIAN STATUS AND ON MARCH 6, 1976, BEGAN A 2-WEEK PERIOD OF ORDERED ACTIVE DUTY FOR TRAINING IN THE SAME STATUS. SINCE MEMBER WAS STILL IN EXTENDED ACTIVE DUTY STATUS FOR PAY PURPOSES, HE MAY NOT RECEIVE PAY IN AN AIR TECHNICIAN STATUS FOR TRAINING PERFORMED PRIOR TO MARCH 10, 1976. SEE 48 COMP.GEN. 78 (1968). DIGEST NO. 2: A SERVICE MEMBER'S EXTENDED ACTIVE DUTY ORDERS WERE PROSPECTIVELY AMENDED TO PERMIT EARLY RELEASE TO PERMIT HIM TO ACCEPT A NATIONAL GUARD AIR TECHNICIAN POSITION, HOWEVER, BECAUSE OF A STATUTORY PAY STATUS FOR TRAVEL PURPOSE AFTER RELEASE DATE, THERE WAS AN OVERLAP OF SERVICE AS AN AIR TECHNICIAN FOR WHICH PAY IS CLAIMED. EXCEPTIONS TO RULE THAT ORDERS MAY NOT BE REVOKED OR MODIFIED TO RETROACTIVELY CHANGE ACCRUED RIGHTS AND LIABILITIES AFTER PERFORMANCE, BASED ON ERROR OR OMISSION OF A CLEARLY INTENDED PROVISION, ARE NOT FOR APPLICATION. AMENDMENT TO BASIC ORDERS WERE COMPLETE ON FACE AND NOTHING CONTAINED THEREIN PURPORTED TO RELATE TO OR REMOTELY CONTEMPLATED HIS PERFORMANCE OF ACTIVE DUTY FOR TRAINING IN HIS AFTER ACQUIRED AIR TECHNICIAN STATUS IMMEDIATELY FOLLOWING EARLY RELEASE.

THE COMPTROLLER GENERAL:

HEREWITH IS THE FILE OF LARRY C. ERWINE, A MEMBER OF THE KANSAS AIR NATIONAL GUARD, WHO HAS REQUESTED A DETERMINATION AS TO HIS ENTITLEMENT TO BASIC PAY AND ALLOWANCES FOR CONSTRUCTIVE TRAVEL TIME AFTER HIS RELEASE FROM EXTENDED ACTIVE DUTY AND TO INACTIVE DUTY PAY FOR EQUIVALENT TRAINING AND ADDITIONAL FLYING TRAINING PERIODS.

THE RECORD SHOWS THAT EFFECTIVE AUGUST 1, 1974, CAPTAIN ERWINE WAS CALLED FROM HIS HOME UNIT IN NEW JERSEY TO EXTENDED ACTIVE DUTY WITH THE KANSAS AIR NATIONAL GUARD FOR A PERIOD OF 2 YEARS. SUBSEQUENTLY, THE MEMBER APPLIED FOR AND RECEIVED A POSITION AS A TECHNICIAN WITH THE KANSAS AIR NATIONAL GUARD TO BEGIN ON MARCH 22, 1976. DUE TO THIS, CAPTAIN ERWINE WAS ORDERED TO TERMINATE HIS EXTENDED ACTIVE DUTY COMMITTMENT ON MARCH 4, 1976, AND TO REPORT FOR HIS ANNUAL ACTIVE DUTY FOR TRAINING ON MARCH 6, 1976, FOR THE PERIOD MARCH 6 THROUGH MARCH 20, 1976.

THE RECORD FURTHER SHOWS THAT BECAUSE HE HAD A 1-DAY BREAK IN SERVICE BETWEEN HIS RELEASE FROM EXTENDED ACTIVE DUTY AND HIS REPORTING TIME FOR HIS ACTIVE DUTY FOR TRAINING, THE MEMBER PERFORMED EQUIVALENT TRAINING AND AN ADDITIONAL FLYING TRAINING PERIOD ON THE INTERVENING DAY, MARCH 5, 1976. FOR THIS INACTIVE DUTY TRAINING, CAPTAIN ERWINE WAS PAID $81.28. ON MARCH 6, THE MEMBER REPORTED FOR ACTIVE DUTY FOR TRAINING AND SERVED IN THIS DUTY CONTINUOUSLY THROUGH MARCH 20, 1976. HE WAS THEN PAID $758.62 IN INACTIVE DUTY PAY FOR THIS PERIOD.

IN THE MEANTIME, THE AIR FORCE DETERMINED THAT CAPTAIN ERWINE, WHEN HE WAS RELEASED FROM EXTENDED ACTIVE DUTY ON MARCH 4, 1976, BECAME ENTITLED TO PAY FOR ALLOWABLE TRAVEL TIME BETWEEN HIS LAST ACTIVE DUTY STATION IN KANSAS AND HIS HOME OF RECORD IN NEW JERSEY. UNDER APPROPRIATE REGULATIONS THE MEMBER WAS ENTITLED TO 5 DAYS OF CONSTRUCTIVE TRAVEL TIME. THEREFORE, THE AIR FORCE ESTABLISHED MARCH 5 THROUGH MARCH 9, 1976, AS THE MEMBER'S CONSTRUCTIVE TRAVEL TIME AND DETERMINED THAT CAPTAIN ERWINE WAS IN AN ACTIVE DUTY STATUS FOR THIS PERIOD.

SINCE PARAGRAPHS 80203 AND 80302 OF THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL (DODPM) STIPULATE THAT A RESERVIST MAY NOT BE PAID INACTIVE DUTY PAY ON ANY DAY THAT HE IS ENTITLED TO ACTIVE DUTY PAY, THE AIR FORCE DETERMINED THAT THE ESTABLISHMENT OF MARCH 5, 1976, AS A CONSTRUCTIVE TRAVEL DAY PRECLUDED THE MEMBER FROM ENTITLEMENT TO THE INACTIVE DUTY PAY HE HAD RECEIVED FOR MARCH 5, 1976. FURTHERMORE, ON THE BASIS OF THE SAME REGULATIONS, THEY DETERMINED THAT CAPTAIN ERWINE'S ENTITLEMENT TO INACTIVE DUTY PAY FOR HIS ACTIVE DUTY FOR TRAINING PRECLUDED HIM FROM RETAINING ENTITLEMENT TO ACTIVE DUTY PAY FOR THE CONSTRUCTIVE TRAVEL DATES OF MARCH 6 THROUGH MARCH 9, 1976. THEREFORE, THE AIR FORCE RECOUPED THE $81.28 THEY HAD PAID THE MEMBER IN INACTIVE DUTY PAY FOR MARCH 5, AND THEN PAID HIM $56.43 IN ACTIVE DUTY PAY FOR THAT DAY. THEY HAVE NOT PAID THE MEMBER ANY ACTIVE DUTY PAY FOR MARCH 6 THROUGH MARCH 9. CAPTAIN ERWINE HAS NOW APPEALED THESE DETERMINATIONS AND ACTIONS.

SECTION 204(B) OF TITLE 37, U.S.C. PROVIDES THAT A RESERVIST WHO SERVES ON ACTIVE DUTY IN EXCESS OF 30 DAYS IS ENTITLED TO TRAVEL TIME FROM HIS LAST DUTY STATION TO HIS HOME OF RECORD AND THAT THIS TIME IS CONSIDERED ACTIVE DUTY. HOWEVER, 37 U.S.C. 204(E) PROVIDES THAT ENTITLEMENT TO THIS ACTIVE DUTY PAY ACCRUES TO THE MEMBER UPON HIS RELEASE FROM ACTIVE DUTY AND THEREFORE, PAYMENT IS AUTHORIZED AT TIME OF RELEASE REGARDLESS OF WHETHER TRAVEL IS ACTUALLY PERFORMED. PARAGRAPH 10243(C)(2) OF THE DODPM STIPULATES THAT THE DAY FOLLOWING A RESERVIST'S RELEASE FROM ACTIVE DUTY SHOULD BE CONSIDERED THE FIRST DAY OF TRAVEL FOR THE PURPOSES OF CONSTRUCTIVE TRAVEL TIME; HOWEVER, NOTE 4 TO TABLE 1-2-4, DODPM IMPLIES THAT THE FIRST DAY OF CONSTRUCTIVE TRAVEL TIME MAY BE A DIFFERENT DATE IF AN INACTIVE DUTY PERIOD FOLLOWS AN ACTIVE DUTY PERIOD.

IN VIEW OF THE ABOVE REGULATIONS, WE ASK THE FOLLOWING QUESTIONS:

QUESTION 1

IS A RESERVIST PRECLUDED FROM RECEIVING INACTIVE DUTY PAY AND ACTIVE DUTY PAY FOR THE SAME DAYS WHEN THE ACTIVE DUTY PAY IS SIMPLY PAY FOR CONSTRUCTIVE TRAVEL TIME?

QUESTION 2

WHICH TYPE OF PAY - ACTIVE DUTY OR INACTIVE DUTY PAY - SHOULD TAKE PRECEDENCE? THAT IS, IS A RESERVIST PRECLUDED FROM RECEIVING INACTIVE DUTY PAY WHEN HE PERFORMS INACTIVE DUTY, EITHER VOLUNTARILY OR INVOLUNTARILY, IMMEDIATELY AFTER HIS RELEASE FROM ACTIVE DUTY, WHEN HIS RELEASE FROM ACTIVE DUTY INCLUDES ENTITLEMENT TO ACTIVE DUTY PAY FOR CONSTRUCTIVE TRAVEL TIME? ALTERNATIVELY, IS A RESERVIST PRECLUDED FROM RECEIVING ACTIVE DUTY PAY FOR CONSTRUCTIVE TRAVEL TIME, IF HE PERFORMS INACTIVE DUTY DURING THE PERIOD THE SERVICE CONCERNED HAS ESTABLISHED AS CONSTRUCTIVE TRAVEL TIME? IN THIS REGARD, WE SPECIFICALLY POINT OUT THAT IN THE PRESENT CASE, THE AIR FORCE DETERMINED THAT CAPTAIN ERWINE WAS ENTITLED TO ACTIVE DUTY PAY FOR MARCH 5, BUT NOT INACTIVE DUTY PAY FOR MARCH 5; HOWEVER, FOR MARCH 6 THROUGH MARCH 9, HE WAS DUE INACTIVE DUTY PAY BUT NOT ACTIVE DUTY PAY. WE FURTHER NOTE THAT PARAGRAPHS 80203 AND 80302 OF DODPM STATE THAT A MEMBER IS NOT ENTITLED TO INACTIVE DUTY PAY FOR ANY DAY HE IS ENTITLED TO ACTIVE DUTY PAY.

QUESTION 3

IF THE ANSWER TO QUESTION 1 IS NEGATIVE, COULD A RESERVIST'S CONSTRUCTIVE TRAVEL TIME BE RETROACTIVELY CHANGED TO THE PERIOD FOLLOWING THE INACTIVE DUTY TRAINING? IN THIS REGARD, WE ARE AWARE THAT IN 54 COMP.GEN. 638 AND THE CASES CITED THEREIN, WE HELD THAT TRAVEL ORDERS MAY NOT BE RETROACTIVELY CHANGED IN ORDER TO INCREASE OR DECREASE THE RIGHTS OR BENEFITS WHICH HAVE BEEN FIXED UNDER THE APPLICABLE STATUTES AND REGULATIONS, UNLESS AN ERROR IS APPARENT ON THE FACE OF THE ORDERS OR UNLESS A CLEARLY INTENDED PROVISION HAS BEEN OMITTED. IN THE CASE OF CAPTAIN ERWINE, WE NOTE THAT THE AIR FORCE ORDERED THE MEMBER TO BE RELEASED FROM ACTIVE DUTY ON MARCH 4, 1976, AND ORDERED HIM TO REPORT FOR INACTIVE DUTY TRAINING ON MARCH 6, 1976. SINCE SUCH ORDERS WOULD HAVE PRECLUDED THE MEMBER FROM TRAVELING TO HIS HOME OF RECORD IMMEDIATELY AFTER HIS RELEASE FROM ACTIVE DUTY AND THE AIR FORCE HAS STATED THAT HAD THEY NOTICED THE CIRCUMSTANCES THEY WOULD HAVE WRITTEN THE TRAVEL ORDERS DIFFERENTLY, WOULD THE OVERSIGHT OF THE INACTIVE DUTY ORDERS ON THE PART OF THE AIR FORCE AT THE TIME THE TRAVEL ORDERS WERE PREPARED CONSTITUTE THE OMISSION OF A CLEARLY INTENDED PROVISION?

IN VIEW OF THESE QUESTIONS, WE SUBMIT THE MATTER TO YOU FOR CONSIDERATION.

INDORSEMENT

RETURNED. SECTION 204 OF TITLE 37, U.S.C. WHICH AUTHORIZES ENTITLEMENT TO BASIC PAY TO MEMBERS ON ACTIVE DUTY, PROVIDES IN SUBSECTION (B):

"(B) *** THE TIME NECESSARY FOR A MEMBER OF A UNIFORMED SERVICE WHO IS CALLED OR ORDERED TO ACTIVE DUTY FOR A PERIOD OF MORE THAN 30 DAYS TO TRAVEL *** FROM HIS LAST DUTY STATION TO HIS HOME *** IS CONSIDERED ACTIVE DUTY."

"ACTIVE DUTY" IS DEFINED IN 37 U.S.C. 101(18) TO MEAN FULL TIME DUTY IN THE ACTIVE SERVICE OF A UNIFORMED SERVICE, INCLUDING DUTY ON THE ACTIVE LIST.

IN CONTRAST TO THE FOREGOING, SUBSECTION 206(A) OF THE SAME TITLE, WHICH AUTHORIZES PAYMENT FOR INACTIVE DUTY TRAINING PROVIDES IN PART:

"(A) UNDER REGULATIONS PRESCRIBED *** A MEMBER OF THE NATIONAL GUARD OR A MEMBER OF A RESERVE COMPONENT OF A UNIFORMED SERVICE WHO IS NOT ENTITLED TO BASIC PAY UNDER SECTION 204 OF THIS TITLE, IS ENTITLED TO COMPENSATION *** FOR EACH REGULAR PERIOD OF INSTRUCTION *** OR FOR THE PERFORMANCE OF SUCH OTHER EQUIVALENT TRAINING ***."

THUS, IT IS EVIDENT THAT A MEMBER OF THE UNIFORMED SERVICES MAY NOT RECEIVE PAY FOR BOTH ACTIVE DUTY AND INACTIVE DUTY PERFORMED AT THE SAME TIME. SINCE THE MEMBER HAD BEEN IN AN ACTIVE DUTY STATUS HE REMAINED IN SUCH STATUS UNTIL THE DATE IT WAS PROPERLY TERMINATED, TO INCLUDE THE DAYS OF CONSTRUCTIVE TRAVEL TIME. SEE 48 COMP.GEN. 78, 80 (1968).

THEREFORE, IN RESPONSE TO YOUR QUESTIONS 1 AND 2, IT IS OUR VIEW THAT CAPTAIN ERWINE IS TO BE CONSIDERED AS IN AN ACTIVE DUTY STATUS THROUGH MARCH 9, 1976, AND ENTITLED TO ACTIVE DUTY PAY (NOT INACTIVE DUTY PAY) FOR THE ADDITIONAL PERIOD REGARDLESS OF HIS OTHER ACTIVITIES, PLUS PAYMENT FOR THE CONSTRUCTIVE TRAVEL MILEAGE FROM HIS LAST DUTY STATION TO THE PLACE WHERE HE WAS CALLED OR ORDERED TO ACTIVE DUTY. THE FACT THAT HE WAS ORDERED TO REPORT FOR ACTIVE DUTY FOR TRAINING EFFECTIVE MARCH 6, 1976, AND ALSO PERFORMED A PERIOD OF EQUIVALENT TRAINING ON MARCH 5, 1976, WOULD NOT OPERATE TO ALTER HIS ACTIVE DUTY STATUS AND STATUTORY ENTITLEMENT TO BASIC PAY DURING THAT PERIOD. IN THIS CONNECTION, IT IS TO BE OBSERVED THAT A MEMBER MAY, WITH HIS CONSENT, BE ORDERED TO ACTIVE DUTY, OTHER THAN EXTENDED ACTIVE DUTY OR INACTIVE DUTY TRAINING, WITHOUT PAY. SEE PARAGRAPHS 80201 AND 80301 OF THE DODPM, AND 10 U.S.C. 683 (1976).

REGARDING QUESTION 3, WE DO NOT BELIEVE THAT THE RULE THAT TRAVEL ORDERS MAY NOT BE RETROACTIVELY REVOKED OR MODIFIED IS APPLICABLE HERE.

THE ORDERS IN QUESTION, SPECIAL ORDER NO. AC-195-KS, DATED JUNE 19, 1975, WERE BASICALLY ORDERS PLACING CAPTAIN ERWINE IN AN ACTIVE DUTY STATUS FOR 1 YEAR UNTIL JUNE 30, 1976. THE AMENDMENT TO THOSE ORDERS, DATED MARCH 3, 1976, IS PROSPECTIVE SHOWING THAT CAPTAIN ERWINE WAS TO BE RELEASED ON MARCH 4, 1976, IN ORDER TO ACCEPT THE AIR TECHNICIAN POSITION. TRAVEL ENTITLEMENTS UNDER THOSE ORDERS WERE INCIDENT TO THE CHANGES IN ACTIVE DUTY STATUS. UPON RELEASE FROM ACTIVE DUTY CONTINUATION OF PAY DURING TRAVEL TIME AND THE TRAVEL PAYMENT ITSELF ARE CONSTRUCTIVE PAYMENTS, I.E., THEY ARE NOT PREDICATED ON ACTUAL TRAVEL PERFORMANCE. IN THE CIRCUMSTANCES THERE IS NO BASIS TO DELAY THE TIME PERIOD FOR TRAVEL UPON SEPARATION.