B-26959, JULY 13, 1942, 22 COMP. GEN. 30

B-26959: Jul 13, 1942

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PROVIDING FUNDS FOR THE TRANSPORTATION OF DEPENDENTS OF ENLISTED MEN OF CERTAIN GRADES "WHEN ORDERED TO ACTIVE DUTY * * * AND UPON RELEASE THEREFROM * * " PAYMENT IS AUTHORIZED FOR THE TRANSPORTATION OF DEPENDENTS OF A NAVAL RESERVE ENLISTED MAN INCIDENT TO HIS DISCHARGE FROM THE NAVAL RESERVE BECAUSE OF PHYSICAL DISABILITY NOT DUE TO HIS OWN MISCONDUCT. EVEN THOUGH THE DISCHARGE WAS NOT PRECEDED BY A RELEASE FROM ACTIVE DUTY. AS FOLLOWS: THERE IS FORWARDED HEREWITH FOR YOUR CONSIDERATION THE CLAIM OF JOSEPH F. WHEN ORDERED TO ACTIVE DUTY (OTHER THAN TRAINING) AND UPON RELEASE THEREFROM * IN THE PRESENT CASE THE TRAVEL BY CLAIMANT'S WIFE WAS PERFORMED AFTER HIS RELEASE FROM ACTIVE DUTY AND HIS DISCHARGE FROM THE NAVAL RESERVE DUE TO PHYSICAL DISABILITY ON APRIL 30.

B-26959, JULY 13, 1942, 22 COMP. GEN. 30

TRANSPORTATION - DEPENDENTS OF DISCHARGED NAVAL RESERVE ENLISTED MEN UNDER THE NAVAL APPROPRIATION ACT, 1942, PROVIDING FUNDS FOR THE TRANSPORTATION OF DEPENDENTS OF ENLISTED MEN OF CERTAIN GRADES "WHEN ORDERED TO ACTIVE DUTY * * * AND UPON RELEASE THEREFROM * * " PAYMENT IS AUTHORIZED FOR THE TRANSPORTATION OF DEPENDENTS OF A NAVAL RESERVE ENLISTED MAN INCIDENT TO HIS DISCHARGE FROM THE NAVAL RESERVE BECAUSE OF PHYSICAL DISABILITY NOT DUE TO HIS OWN MISCONDUCT, EVEN THOUGH THE DISCHARGE WAS NOT PRECEDED BY A RELEASE FROM ACTIVE DUTY.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY, JULY 13, 1942:

THERE HAS BEEN CONSIDERED YOUR LETTER OF JUNE 22, 1942, AS FOLLOWS:

THERE IS FORWARDED HEREWITH FOR YOUR CONSIDERATION THE CLAIM OF JOSEPH F. WALTON, YEOMAN SECOND-CLASS, USNR, FOR REIMBURSEMENT IN THE AMOUNT OF $44.55, REPRESENTING THE COST OF TRANSPORTATION FOR HIS DEPENDENT WIFE FROM JACKSONVILLE, FLORIDA, TO ELMHURST, ILLINOIS, INCIDENT TO WALTON'S RELEASE FROM ACTIVE DUTY AND HIS DISCHARGE FROM THE U.S. NAVAL RESERVE UNDER THE CONDITIONS STATED IN THE ENCLOSED CORRESPONDENCE.

THE CURRENT NAVAL APPROPRIATION ACT APPROVED MAY 6, 1941 ( PUBLIC LAW 48- -- 77TH CONGRESS), PROVIDES, UNDER THE APPROPRIATION " PAY, SUBSISTENCE, AND TRANSPORTATION OF NAVAL PERSONNEL" FOR ,* * * TRANSPORTATION OF DEPENDENTS OF OFFICERS AND ENLISTED MEN, INCLUDING THOSE OF RETIRED AND RESERVE OFFICERS, AND OF RETIRED AND RESERVE ENLISTED MEN OF GRADES ENTITLED TO TRANSPORTATION FOR DEPENDENTS IN THE REGULAR NAVY, WHEN ORDERED TO ACTIVE DUTY (OTHER THAN TRAINING) AND UPON RELEASE THEREFROM *

IN THE PRESENT CASE THE TRAVEL BY CLAIMANT'S WIFE WAS PERFORMED AFTER HIS RELEASE FROM ACTIVE DUTY AND HIS DISCHARGE FROM THE NAVAL RESERVE DUE TO PHYSICAL DISABILITY ON APRIL 30, 1942. IT WILL BE NOTED THAT THE ABOVE QUOTED PROVISION FROM THE CURRENT NAVAL APPROPRIATION ACT DOES NOT IN TERMS PROVIDE FOR TRANSPORTATION OF DEPENDENTS OF NAVAL RESERVE PERSONNEL WHO ARE RELEASED FROM ACTIVE DUTY AND DISCHARGED FROM THE NAVAL RESERVE.

YOUR DECISION IS REQUESTED AS TO WHETHER OR NOT AN ENLISTED MAN OF THE NAVAL RESERVE IS ENTITLED TO TRANSPORTATION FOR HIS DEPENDENTS FROM HIS LAST PERMANENT DUTY STATION TO HIS HOME WHEN THE SEPARATION FROM THE SERVICE IS BY REASON OF HIS RELEASE FROM ACTIVE DUTY AND HIS DISCHARGE FROM THE NAVAL RESERVE BECAUSE OF PHYSICAL DISABILITY, AND NOT AS A RESULT OF TERMINATION OF THE REQUIREMENT OF HIS SERVICES.

THE ORDER OF APRIL 30, 1942, FROM THE COMMANDING OFFICER, U.S. NAVAL HOSPITAL, NATIONAL NAVAL MEDICAL CENTER, BETHESDA, MARYLAND, TO WALTON IS AS FOLLOWS:

1. YOU ARE HEREBY DETACHED FROM ALL DUTIES TO WHICH YOU HAVE BEEN ASSIGNED AND DISCHARGED FROM THE NAVAL RESERVE THIS DATE AND RETAINED FOR FURTHER TREATMENT AT ST. ELIZABETH'S HOSPITAL.

2. UPON DISCHARGE FROM THE HOSPITAL AFTER COMPLETION OF TREATMENT YOU ARE DIRECTED TO APPLY TO THE DISBURSING OFFICER, U.S. NAVAL HOSPITAL, BETHESDA, MD., FOR TRANSPORTATION AND SUBSISTENCE TO THE PLACE FROM WHICH YOU WERE RECALLED TO ACTIVE DUTY.

3. YOUR SERVICE RECORD SHOWS THAT YOU WERE ORDERED TO ACTIVE DUTY FROM:

136 WEST PARK AVE., ELMHURST, ILL.

(HOME ADDRESS, OR PLACE TO WHICH ORDERS WERE ADDRESSED)

4. YOU ARE DIRECTED TO REGISTER AT THE LOCAL SELECTIVE SERVICE BOARD IMMEDIATELY.

A DISCHARGE FROM THE NAVAL RESERVE IS, OF COURSE, A RELEASE FROM ACTIVE DUTY, BUT THE STATUTE, 55 STAT. 151, LIMITS THE RIGHT TO TRANSPORTATION OF DEPENDENTS TO MEMBERS OF THE NAVAL RESERVE ,UPON RELEASE" FROM ACTIVE DUTY AND WOULD NOT INCLUDE ALL "DISCHARGES" FROM THE NAVAL RESERVE WHILE THE MEMBER WAS ON ACTIVE DUTY. THE LANGUAGE, FAIRLY CONSTRUED, CONTEMPLATES ONE RELEASED FROM ACTIVE DUTY BUT WHO CONTINUES A MEMBER OF THE NAVAL RESERVE. DISCHARGES MAY BE FOR DISCIPLINARY OR OTHER REASONS WHERE THE PRIME PURPOSE IS TO TERMINATE THE STATUS, AND IT IS DOUBTFUL THAT THE STATUTE CONTEMPLATES TRANSPORTATION OF DEPENDENTS IN SUCH A SITUATION. HOWEVER, WHERE THE DISCHARGE IS BECAUSE OF PHYSICAL DISABILITY NOT DUE TO THE MAN'S OWN MISCONDUCT, THE FACT THAT SUCH DISCHARGE WAS NOT PRECEDED BY A RELEASE FROM ACTIVE DUTY SHOULD NOT DEPRIVE A MEMBER OF THE NAVAL RESERVE OTHERWISE WITHIN THE STATUTE FROM THE BENEFIT INTENDED TO BE GIVEN. IF, THEREFORE, THE TRAVEL OF THE DEPENDENT IS WITHIN A REASONABLE TIME AFTER THE SEPARATION FROM THE NAVAL RESERVE IN THE CIRCUMSTANCES INDICATED IN THIS CASE, AND THUS IS INCIDENT TO THE DISCHARGE OR RELEASE, PAYMENT IS AUTHORIZED UNDER THE STATUTE.