B-31922, FEBRUARY 13, 1943, 22 COMP. GEN. 799

B-31922: Feb 13, 1943

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ARE ORDERED TO TRAVEL TO THEIR HOMES IN AN ACTIVE STATUS WITHOUT PAY AND. ASSUME AN INACTIVE DUTY STATUS PENDING FURTHER ORDERS FOR DEFINITE ASSIGNMENT TO DUTY OR TRAINING ARE. 1943: REFERENCE IS MADE TO HOUR LETTER DATED JANUARY 21. AS OLLOWS: THERE IS FORWARDED HEREWITH A LETTER. ARE IMMEDIATELY ORDERED TO THEIR HOMES TO AWAIT ASSIGNMENT TO DUTY. IT WILL BE OBSERVED FROM THE ENCLOSURE THAT THE BUREAU OF NAVAL PERSONNEL CONSIDERS THAT TRAVEL OF ENLISTED MEMBERS OF THE NAVAL RESERVE UNDER THE CONDITIONS MENTIONED ABOVE IS SUBJECT TO LAND-GRANT DEDUCTIONS AND HAS ISSUED INSTRUCTIONS REQUIRING THAT THE TRANSPORTATION BE DESIGNATED AS "MILITARY. " BUT THAT THE RAIL CARRIERS DISAGREE WITH THE BUREAU'S VIEW AND INSIST THAT SUCH TRAVEL IS NOT TRAVEL OF TROOPS OF THE UNITED STATES AND.

B-31922, FEBRUARY 13, 1943, 22 COMP. GEN. 799

TRANSPORTATION - LAND-GRANT - ENLISTED NAVAL RESERVISTS ORDERED HOME PENDING ASSIGNMENT TO DUTY OR TRAINING ENLISTED MEMBERS OF THE NAVAL RESERVE WHO, UPON ENLISTMENT, ARE ORDERED TO TRAVEL TO THEIR HOMES IN AN ACTIVE STATUS WITHOUT PAY AND, UPON ARRIVAL THEREAT, ASSUME AN INACTIVE DUTY STATUS PENDING FURTHER ORDERS FOR DEFINITE ASSIGNMENT TO DUTY OR TRAINING ARE, WHILE SO TRAVELING,"TROOPS OF THE UNITED STATES" WITHIN THE MEANING OF THE LAND GRANT STATUTES, AND, ACCORDINGLY, DEDUCTIONS FOR LAND GRANT SHOULD BE MADE FROM CHARGES OTHERWISE NORMALLY APPLICABLE FOR SUCH TRANSPORTATION.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY FEBRUARY 13, 1943:

REFERENCE IS MADE TO HOUR LETTER DATED JANUARY 21, 1943 FILE JAG:K:WJG:GBSO 1 19 152, AS OLLOWS:

THERE IS FORWARDED HEREWITH A LETTER, WITH ENCLOSURE, FROM THE CHIEF OF NAVAL PERSONNEL, NAVY DEPARTMENT, DATED JANUARY 11, 1943, RELATIVE TO THE QUESTION OF APPLICATION OF LAND-GRANT TO TRAVEL BY ENLISTED MEMBERS OF THE NAVAL RESERVE WHO, UPON ENLISTMENT, ARE IMMEDIATELY ORDERED TO THEIR HOMES TO AWAIT ASSIGNMENT TO DUTY.

IT WILL BE OBSERVED FROM THE ENCLOSURE THAT THE BUREAU OF NAVAL PERSONNEL CONSIDERS THAT TRAVEL OF ENLISTED MEMBERS OF THE NAVAL RESERVE UNDER THE CONDITIONS MENTIONED ABOVE IS SUBJECT TO LAND-GRANT DEDUCTIONS AND HAS ISSUED INSTRUCTIONS REQUIRING THAT THE TRANSPORTATION BE DESIGNATED AS "MILITARY," BUT THAT THE RAIL CARRIERS DISAGREE WITH THE BUREAU'S VIEW AND INSIST THAT SUCH TRAVEL IS NOT TRAVEL OF TROOPS OF THE UNITED STATES AND, THEREFORE, IS NOT SUBJECT TO LAND-GRANT DEDUCTIONS.

YOUR DECISION IS REQUESTED AS TO WHETHER OR NOT TRAVEL BY MEMBERS OF THE NAVAL RESERVE WHO ARE ORDERED TO THEIR HOMES IN AN ACTIVE DUTY STATUS WITHOUT PAY AFTER ENLISTMENT IS TRAVEL OF TROOPS OF THE UNITED STATES AND SUBJECT TO LAND-GRANT DEDUCTIONS UNDER EXISTING LAND-GRANT LAWS.

MOST OF THE ACTS OF CONGRESS WHICH GRANTED LANDS IN AID OF RAILROADS PROVIDED THAT SAID RAILROADS SHOULD BE "FREE FROM TOLL OR OTHER CHARGE UPON THE TRANSPORTATION OF * * * TROOPS OF THE UNITED STATES.' THE WORD "TROOPS" HAS BEEN HELD TO HAVE AN ESTABLISHED MEANING, NAMELY,"SOLDIERS COLLECTIVELY,--- A BODY OF SOLDIERS," UNITED STATES UNION PACIFIC RAILROAD COMPANY, 249 U.S. 354. THE REDUCED (OR LAND GRANT) RATE IS APPLICABLE TO ONE OF SUCH A COLLECTIVE BODY OF SOLDIERS ALTHOUGH HE MAY NOT BE TRAVELING AS PART OF A DETACHMENT OR MOVING BODY OF MEN. ILLINOIS CENTRAL RAILROAD COMPANY V. THE UNITED STATES, 62 C.1CLS. 61; ALSO IN LOUISVILLE AND NASHVILLE RAILROAD COMPANY V. UNITED STATES, 258 U.S. 374, THE COURT SAID:

* * * WE ARE OF OPINION THAT THE TERM "TROOPS" IS NOT CONFINED TO LAND FORCES, AND THAT IT INCLUDES MEN AND OFFICERS IN EVERY BRANCH. SINCE THOSE IN THE NAVY AND MARINE CORPS ARE TO BE DEEMED TROOPS WITHIN THE MEANING OF THOSE (LAND-GRANT) ACTS, MEMBERS OF THE COAST GUARD SHOULD ALSO BE DEEMED SUCH WHEN SERVING AS PART OF THE NAVY * * *.

HOWEVER, IT HAS BEEN HELD THAT ALTHOUGH CERTAIN PERSONS PROPERLY MAY BE CHARACTERIZED AS MEMBERS OF THE ARMY THEY COULD NOT BE CLASSIFIED AT THE TIME OF THEIR TRANSPORTATION, IN VIEW OF THE PURPOSE OF THE TRANSPORTATION, AS A PART OF THE "TROOPS OF THE UNITED STATES, WITHIN THE MEANING OF THE PROVISION HERE INVOLVED. SEE, IN THIS CONNECTION, THE UNION PACIFIC CASE, SUPRA, AS TO THE TRANSPORTATION OF A FURLOUGHED SOLDIER RETURNING TO HIS STATION, THE TRAVEL BEING FOR HIS OWN PURPOSES. ALSO, IN SOUTHERN PACIFIC CO. V. UNITED STATES, 285 U.S. 240, IT WAS HELD THAT THE WORK OF ENGINEER OFFICERS OF THE ARMY IN CONNECTION WITH RIVER AND HARBOR IMPROVEMENT AND THE CALIFORNIA DEBRIS COMMISSION WAS OF A NONMILITARY NATURE, IN THE INTEREST OF COMMERCE AND NAVIGATION, AND THAT THE ACTIVITY OF SUCH OFFICERS IN CONNECTION THEREWITH WAS NONMILITARY IN CHARACTER, EXCLUDING THEM FROM CLASSIFICATION AS A PART OF THE "TROOPS OF THE UNITED STATES.'

IN THE PRESENT MATTER IT APPEARS THAT UNDER THE PROVISIONS OF THE " NAVAL RESERVE ACT OF 1938," 52 STAT. 1175, CHAPTER 690, THERE WAS---

* * * CREATED AND ESTABLISHED, AS A COMPONENT PART OF THE UNITED STATES NAVY, A NAVAL RESERVE WHICH SHALL CONSIST OF THE FLEET RESERVE, THE ORGANIZED RESERVE, THE MERCHANT MARINE RESERVE, AND THE VOLUNTEER RESERVE: * * * IT WAS FURTHER PROVIDED IN SAID ACT, SECTION 4, 52 STAT. 1176, THAT-

THE NAVAL RESERVE SHALL BE COMPOSED OF MALE CITIZENS * * * WHO, BY APPOINTMENT OR ENLISTMENT THEREIN UNDER REGULATIONS PRESCRIBED BY THE SECRETARY OF THE NAVY OR BY TRANSFER THERETO AS IN THIS ACT PROVIDED, OBLIGATE THEMSELVES TO SERVE IN THE NAVY IN TIME OF WAR OR WHEN IN THE OPINION OF THE PRESIDENT A NATIONAL EMERGENCY EXISTS * * *. ( ITALICS SUPPLIED.) AND IN SECTION 5 THAT---

ANY MEMBER OF THE NAVAL RESERVE * * * MAY BE ORDERED TO ACTIVE DUTY BY THE SECRETARY OF THE NAVY IN TIME OF WAR OR WHEN IN THE OPINION OF THE PRESIDENT A NATIONAL EMERGENCY EXISTS AND MAY BE REQUIRED TO PERFORM ACTIVE DUTY THROUGHOUT THE WAR OR UNTIL THE NATIONAL EMERGENCY CEASES TO EXIST * * * PROVIDED FURTHER, THAT THE SECRETARY OF THE NAVY MAY RELEASE ANY MEMBER FROM ACTIVE DUTY EITHER IN TIME OF WAR OR IN TIME OF PEACE.

SECTION 9 OF THE CITED ACT, 52 STAT. 1177, PROVIDES:

THE SECRETARY OF THE NAVY SHALL PRESCRIBE ALL NECESSARY AND PROPER REGULATIONS, NOT INCONSISTENT WITH THE PROVISIONS OF THIS ACT, FOR THE RECRUITING, ORGANIZATION, GOVERNMENT, ADMINISTRATION, TRAINING, INSPECTION AND MOBILIZATION OF THE NAVAL RESERVE * * *.

CONCERNING MEMBERS OF THE ORGANIZED RESERVE, MERCHANT MARINE RESERVE, AND VOLUNTEER RESERVE, SECTION 301 OF THE CITED ACT, 52 STAT. 1180, PROVIDES:

ALL MEMBERS OF THE NAVAL RESERVE, WHEN EMPLOYED ON ACTIVE DUTY, AUTHORIZED TRAINING DUTY, WITH OR WITHOUT PAY, DRILL, OR OTHER EQUIVALENT INSTRUCTION OR DUTY, OR WHEN EMPLOYED IN AUTHORIZED TRAVEL TO OR FROM SUCH DUTY, OR APPROPRIATE DUTY, DRILL, OR INSTRUCTION, OR DURING SUCH TIME AS THEY MAY BY LAW BE REQUIRED TO PERFORM ACTIVE DUTY, * * * SHALL BE SUBJECT TO THE LAWS, REGULATIONS, AND ORDERS FOR THE GOVERNMENT OF THE NAVY.

CONSIDERING YOUR PRESENT QUESTION IN THE LIGHT OF THE STATUTORY REQUIREMENTS APPLICABLE AND TO BE OBSERVED IN THE MATTER OF DEDUCTIONS FOR LAND GRANT FROM CHARGES FOR TRANSPORTATION OF TROOPS OF THE UNITED STATES IT APPEARS THAT IN THE PRESENT MATTER THERE IS INVOLVED TRANSPORTATION OF ,ENLISTED MEMBERS" OF THE NAVAL RESERVE IN AN "ACTIVE DUTY" STATUS AND TRAVELING IN OBEDIENCE TO ORDERS OF THE NAVY DEPARTMENT WHICH REQUIRE THE MEN TO PROCEED FROM ONE GIVEN PLACE TO ANOTHER GIVEN PLACE AND, UPON ARRIVAL AT THE LATTER PLACE, ASSUME AN "INACTIVE DUTY STATUS" PENDING FURTHER ORDERS FOR "DEFINITE ASSIGNMENT TO DUTY OR TRAINING.' IT APPEARS, THEREFORE, THAT SUCH TRAVEL DOES NOT INVOLVE TRAVEL OF THESE MEN FOR THEIR OWN PURPOSES, BUT IS TRAVEL ON OFFICIAL DUTY IN OBEDIENCE TO ORDERS OF THE NAVY DEPARTMENT IN THE INTEREST AND FOR THE PURPOSES OF THE NAVY AND PRIMARILY IN CONNECTION WITH THE NATIONAL DEFENSE. DURING THE PERIOD OF SUCH TRAVEL THE MEN, PRESUMABLY, WOULD BE SUBJECT TO SUCH FURTHER ORDERS AS THE INTERESTS OF THE NAVY MIGHT REQUIRE, BEING THEN "SUBJECT TO THE LAWS, REGULATIONS, AND ORDERS FOR THE GOVERNMENT OF THE NAVY.' IN OTHER WORDS, THE NAVY HAVING ASSERTED CONTROL OVER THESE MEN BY PUTTING THEM IN AN ACTIVE DUTY STATUS, THEY, WHILE IN THAT STATUS, WERE NOT AT LIBERTY TO TRAVEL OR MOVE EXCEPT AS THE NAVAL AUTHORITIES DIRECTED THEM SO TO DO. THEREFORE, IN VIEW OF THE AUTHORITIES HEREINBEFORE CITED, IT IS NOT APPARENT WHY THESE MEN, WHILE SO TRAVELING, SHOULD NOT BE CONSIDERED "TROOPS OF THE UNITED STATES" WITHIN THE MEANING OF THE LAND-GRANT STATUTES, AND, ACCORDINGLY, IN CONFORMITY WITH THE REQUIREMENTS OF THE GOVERNING STATUTES, IT FOLLOWS THAT DEDUCTIONS FOR LAND GRANT SHOULD BE MADE FROM CHARGES OTHERWISE NORMALLY APPLICABLE FOR SUCH TRANSPORTATION.