B-29751, NOVEMBER 4, 1942, 22 COMP. GEN. 435

B-29751, NOVEMBER 4, 1942, 22 COMP. GEN. 435

MILEAGE - COAST GUARD OFFICER - TRAVEL PERFORMED AS ENLISTED MAN AFTER TEMPORARY APPOINTMENT AS OFFICER WHERE A MEMBER OF THE COAST GUARD WAS FURNISHED TRANSPORTATION IN KIND AS AN ENLISTED MAN UPON PERMANENT CHANGE OF STATION UNDER ORDERS DIRECTED TO HIM IN SUCH ENLISTED STATUS, AND HE REPORTED FOR DUTY IN THAT STATUS AT HIS NEW STATION, THE FACT THAT HIS TEMPORARY APPOINTMENT AS PAY CLERK HAD BEEN MADE BEFORE HE PERFORMED THE TRAVEL DOES NOT OPERATE TO ENTITLE THE OFFICER TO MILEAGE, RETROACTIVELY, BY VIRTUE OF SECTION 5 OF THE ACT OF JUNE 30, 1942, PROVIDING THAT PERSONNEL TEMPORARILY APPOINTED PURSUANT TO THE ACT OF JULY 24, 1941, SHALL BE ENTITLED TO THE PAY AND ALLOWANCES OF THE RANK TO WHICH SO APPOINTED FROM THE DATE SUCH APPOINTMENTS ARE MADE.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY, NOVEMBER 4, 1942:

THERE HAS BEEN RECEIVED YOUR LETTER OF OCTOBER 20, 1942, FORWARDING A LETTER FROM LIEUTENANT O. F. MCCLOW, U.S. COAST GUARD, SPECIAL DISBURSING AGENT ( NAVY), DISBURSING OFFICER, HEADQUARTERS, U.S. COAST GUARD, DATED SEPTEMBER 4, 1942, REQUESTING DECISION WHETHER HE IS AUTHORIZED TO PAY CLERK ALVA O-D. WISE, U.S. COAST GUARD, MILEAGE AT 8 CENTS PER MILE, FOR TRAVEL PERFORMED MAY 16, 1942, ON TRANSPORTATION REQUEST FURNISHED HIM AS AN ENLISTED MAN, FROM FORT LAUDERDALE, FLORIDA, TO KEY WEST, FLORIDA.

ORDERS DATED MAY 16, 1942, DIRECTED AS FOLLOWS:

FROM: COMMANDING OFFICER, FORT LAUDERDALE BASE. WISE, ALVA O. (111 170) CY, USCG.

SUBJECT:ORDERS; TRANSFER; TRAVEL.

REFERENCE: DCGO/L 11 MAY, 1942, (701-531).

1. PROCEED TO KEY WEST, FLORIDA AND UPON ARRIVAL THEREAT REPORT TO OFFICE, CAPTAIN OF THE FORT FOR ASSIGNMENT TO DUTY.

2. HANDED YOU HEREWITH IS TRANSPORTATION REQUEST NO. NEG-379 COVERING YOUR TRAVEL FROM FORT LAUDERDALE, FLA., TO KEY WEST, FLORIDA VIA FLORIDA MOTOR LINES, INC.

3. THIS ORDER CONSTITUTES A PERMANENT CHANGE OF STATION FROM FORT LAUDERDALE, FLA. TO KEY WEST FLORIDA.

4. TRAVEL NECESSARY TO THE EXECUTION OF THIS ORDER IS REQUIRED BY THE PUBLIC INTERESTS AND IS CHARGEABLE AGAINST THE KEY WEST DISTRICT TRAVEL ALLOTMENT, SYMBOL 106-20.

5. ALLOWANCES FOR SUBSISTENCE AND QUARTERS AS PRESCRIBED IN PAY AND SUPPLY INSTRUCTIONS, IS APPLICABLE IN THIS CASE.

6. DEPARTED THIS UNIT AT 2:00 P.M. THIS DATE.

IT APPEARS TRAVEL WAS PERFORMED AS DIRECTED ON MAY 16, 1942. IT IS STATED THAT ON MAY 11, 1942, THE PRESIDENT APPOINTED MR. WISE TO THE RANK OF PAY CLERK WITH RANK AS SUCH FROM MAY 1, 1942, AND THAT ON MAY 18, 1942, MR. WISE EXECUTED THE OATH AS PAY CLERK. BY SECOND ENDORSEMENT OF JULY 17, 1942, THE DISTRICT COAST GUARD OFFICER, 7TH NAVAL DISTRICT, MIAMI, FLORIDA, AMENDED THE ORIGINAL ORDERS, AS FOLLOWS:

1. INASMUCH AS THE PRESIDENT OF THE UNITED STATES APPOINTED YOU A PAY CLERK IN THE COAST GUARD FOR TEMPORARY SERVICE TO RANK FROM THE ST DAY OF MAY, 1942, AND IN ACCORDANCE WITH ACT APPROVED JUNE 30, 1942 ( PUBLIC NO. 639 - 77TH CONGRESS), THE TRAVEL PERFORMED UNDER BASIC COMMUNICATION IS AMENDED AS FOLLOWS:

"4. ........... MILEAGE IS ALLOWED.'

2. ANY ALLOWANCES THAT HAVE BEEN PAID YOU IN ACCORDANCE WITH PARAGRAPH 5, BASIC COMMUNICATION WILL BE ADJUSTED IN THE MANNER DESCRIBED IN FINANCE CIRCULAR NO. 86-42.

SECTION 5 OF THE ACT OF JUNE 30, 1942, 56 STAT. 465, PUBLIC LAW 639, PROVIDES THAT:

PERSONNEL HERETOFORE AND HEREAFTER TEMPORARILY APPOINTED PURSUANT TO AND AS DEFINED IN THE ACT OF JULY 24, 1941 ( PUBLIC LAW 188, SEVENTY- SEVENTH CONGRESS), SHALL BE ENTITLED TO THE PAY AND ALLOWANCES OF THE GRADE OR RANK TO WHICH SO APPOINTED FROM THE DATES ON WHICH SUCH APPOINTMENTS ARE MADE BY THE PRESIDENT, AND THEIR APPOINTMENTS, UNLESS EXPRESSLY DECLINED, SHALL BE REGARDED FOR ALL PURPOSES AS HAVING BEEN ACCEPTED ON THE DATE MADE, WITHOUT FORMAL ACCEPTANCE OR OATH OF OFFICE.

THE ORDERS OF MAY 16, 1942, DIRECTED MR. WISE TO MAKE A PERMANENT CHANGE OF STATION FROM FORT LAUDERDALE TO KEY WEST AS A CHIEF YEOMAN. AS AN ENLISTED MAN HE WAS ENTITLED TO TRANSPORTATION IN KIND. HE WAS FURNISHED THE TRANSPORTATION TO WHICH ENTITLED ON A GOVERNMENT TRANSPORTATION REQUEST, AND HE ACTUALLY PERFORMED THE TRAVEL AND REPORTED FOR DUTY AT HIS NEW STATION IN THE STATUS OF AN ENLISTED MAN. THE CHANGE MADE BY THE AMENDED ORDERS AFTER THE TRAVEL HAD BEEN PERFORMED WAS WITHOUT EFFECT TO MODIFY THE ACCRUED RIGHT TO TRANSPORTATION IN KIND, UNLESS IT WAS THE INTENTION OF THE CONGRESS BY THE CITED LEGISLATION TO SO INCREASE SUCH RIGHTS. THE STATUTE PROVIDES THAT THE PERSONNEL WITHIN ITS SCOPE "SHALL BE ENTITLED TO THE PAY AND ALLOWANCES OF THE GRADE OR RANK TO WHICH SO APPOINTED FROM THE DATES ON WHICH SUCH APPOINTMENTS ARE MADE BY THE PRESIDENT.' WHILE THIS ACT PROVIDES FOR THE PAYMENT OF BACK PAY AND ALLOWANCES IT HAS NEVER BEEN THE PRACTICE TO APPLY SUCH PROVISIONS SO AS TO CHANGE ALLOWANCES WHICH ARE FURNISHED IN KIND, 19 COMP. DEC. 414; A- 51525, NOVEMBER 14, 1933. THAT IT WAS NOT THE INTENTION OF THE NAVY DEPARTMENT IN REQUESTING THE CITED LEGISLATION IS INDICATED BY THE STATEMENTS MADE BY REAR ADMIRAL JACOBS BEFORE THE HOUSE OF REPRESENTATIVES, COMMITTEE ON NAVAL AFFAIRS, DOCUMENT NO. 249, HEARINGS ON H.R. 7160, PAGE 3291, AS FOLLOWS:

ADMIRAL JACOBS. BY PRESENT LAW, PERSONNEL TEMPORARILY APPOINTED OR PROMOTED IN GRADE ARE NOT ENTITLED TO THE PAY OF THE OFFICE TO WHICH APPOINTED OR PROMOTED PRIOR TO THE DATE OF EXECUTION OF AN OATH OF OFFICE. IN NUMEROUS INSTANCES, OFFICERS SO APPOINTED OR PROMOTED HAVE BEEN LOST IN ACTION, PRESUMABLY AFTER HAVING EXECUTED THE OATH OF OFFICE FORM, AND THE FORM LOST WITH THE SHIP. THUS, THE DEPARTMENT IS WITHOUT POSITIVE KNOWLEDGE THAT THESE OFFICERS WERE, IN FACT, SERVING IN THE HIGHER GRADE WHEN LOST; THEIR DEPENDENTS ACCORDINGLY ARE DENIED THE DEATH BENEFITS BASED ON THE HIGHER GRADE. THIS SECTION WILL CORRECT THAT CONDITION BY GRANTING THE HIGHER PAY FROM THE DATE THE APPOINTMENT IS MADE.

THE CHAIRMAN. THAT DOES NOT APPLY TO THE OFFICER ON SHORE, BECAUSE HE PROMPTLY ACCEPTS HIS COMMISSION AND TAKES THE OATH?

ADMIRAL JACOBS. THAT IS RIGHT.

IT IS APPARENT FROM THE FOREGOING STATEMENTS, WHICH ARE ALSO REFLECTED IN THE HOUSE OF REPRESENTATIVES REPORT NO. 2238, 77TH CONGRESS, AT PAGE 5, THAT THERE WAS NO INTENTION TO RETROACTIVELY CHANGE RIGHTS WHICH HAVE ACCRUED TO ALLOWANCES FURNISHED NAVY PERSONNEL IN KIND.

THE BASIS OF THIS CLAIM IS THAT THE CLAIMANT WAS AN OFFICER WHEN THIS CHANGE OF STATION WAS MADE. THE FACTS ARE THAT HE WAS ACTUALLY SERVING AS AN ENLISTED MAN, THAT HE WAS ORDERED TO TRAVEL AS AN ENLISTED MAN, THAT HE WAS ACTUALLY FURNISHED TRANSPORTATION IN KIND AUTHORIZED FOR ENLISTED MAN DIRECTED TO TRAVEL, AND THAT THE TRAVEL WAS ACCOMPLISHED IN SUCH STATUS. UNDER THESE CIRCUMSTANCES THE STATUTE DOES NOT AUTHORIZE THE PAYMENT OF MILEAGE TO THIS OFFICER. ACCORDINGLY YOU ARE ADVISED THAT PAYMENT IS NOT AUTHORIZED ON THE VOUCHER SUBMITTED WHICH WILL BE RETAINED IN THIS OFFICE.