B-32028, MARCH 17, 1943, 22 COMP. GEN. 905

B-32028, MARCH 17, 1943, 22 COMP. GEN. 905

MILEAGE - CADETS ENTERING MILITARY ACADEMY UNDER THE STATUTORY AUTHORITY FOR PAYMENT OF MILEAGE AT 5 CENTS PER MILE TO CADETS ENTERING THE UNITED STATES MILITARY ACADEMY FOR THE TRAVEL FROM THEIR HOMES TO THE ACADEMY FOR EXAMINATION AND APPOINTMENT, A CADET IS ENTITLED TO PAYMENT OF MILEAGE FOR TRAVEL ACTUALLY PERFORMED FROM HIS HOME TO WEST POINT, NEW YORK, UPON ENTERING THE ACADEMY, REGARDLESS OF THE PLACE OF RECEIPT OF ORDERS TO REPORT, PROVIDED HIS HOME IS NOT MORE DISTANT FROM THE ACADEMY THAN THE PLACE CERTIFIED AS HIS ACTUAL RESIDENCE AS SHOWN IN HIS NOMINATION FOR APPOINTMENT.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF WAR, MARCH 17, 1943:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 25, 1943, AS FOLLOWS:

IT HAS BEEN BROUGHT TO MY ATTENTION THAT A CONSIDERABLE NUMBER OF SUSPENSIONS HAVE BEEN RAISED IN THE ACCOUNTS OF COLONEL E. J. BEAN, F.D., COVERING PAYMENTS OF MILEAGE TO CADETS JOINING THE MILITARY ACADEMY FOLLOWING THEIR APPOINTMENT THERETO. SEVERAL OF THESE SUSPENSIONS MAY BE NOTED IN CONNECTION WITH VOUCHERS NOS. 409, 410, AND 412 IN THE DISBURSING OFFICER'S ACCOUNTS FOR SEPTEMBER, 1940.

IT APPEARS THAT THESE EXCEPTIONS ARE BASED UPON THE THEORY THAT CADETS, UPON THEIR APPOINTMENT, ARE ENTITLED TO MILEAGE TO WEST POINT ONLY FROM PLACES OF RECEIPT OF ORDERS WHEN SUCH PLACES ARE AT A LESS DISTANCE FROM WEST POINT THAN THE HOMES FROM WHICH THEY ACTUALLY PERFORMED THE TRAVEL.

THERE IS CITED, FOR YOUR CONSIDERATION IN THIS CONNECTION, A DECISION BY THE COURT OF CLAIMS DATED JUNE 10, 1935 (81 CT.1CLS. 966), ALLOWING A CLAIM OF A CADET FROM HIS HOME TO WEST POINT, NEW YORK, RATHER THAN FROM THE PLACE OF RECEIPT OF ORDERS IN THAT CASE.

YOUR DECISION IS ACCORDINGLY REQUESTED AS TO WHETHER CREDIT WILL BE ALLOWED FOR PAYMENTS COVERING MILEAGE OF CADETS FOR TRAVEL ACTUALLY PERFORMED FROM THEIR HOMES TO THE MILITARY ACADEMY WITHOUT REFERENCE TO THE PLACES WHERE SUCH ORDERS ARE RECEIVED; AND, IF SO, WHETHER THE SUSPENSIONS ALREADY MADE WILL BE REMOVED.

SECTION 19 OF THE ACT OF JUNE 10, 1922, 42 STAT. 632, PROVIDES:

THAT CADETS AT THE MILITARY ACADEMY AND CADETS AND CADET ENGINEERS OF THE COAST GUARD SHALL RECEIVE THE SAME PAY AND ALLOWANCES AS ARE NOW OR MAY HEREAFTER BE PROVIDED BY LAW FOR MIDSHIPMEN IN THE NAVY.

THE NAVAL APPROPRIATIONS EACH YEAR HAVE PROVIDED FUNDS FOR MILEAGE AT 5 CENTS PER MILE TO CANDIDATES ENTERING THE NAVAL ACADEMY WHILE PROCEEDING FROM THEIR HOMES TO THE ACADEMY FOR EXAMINATION AND APPOINTMENT AS MIDSHIPMEN.

IT HAS BEEN HELD THAT BY AUTHORITY OF THE ABOVE-CITED SECTION 19 OF THE ACT OF JUNE 10, 1922, CADETS WHO HAVE PROCEEDED FROM THEIR HOMES TO WEST POINT, NEW YORK, FOR EXAMINATION AND APPOINTMENT TO THE MILITARY ACADEMY ARE ENTITLED TO 5 CENTS PER MILE FOR THE ENTIRE DISTANCE FROM THEIR HOMES TO THE ACADEMY BY THE SHORTEST USUALLY TRAVELED ROUTE. 2 COMP. GEN. 654. HOWEVER, THE ALLOWANCE AUTHORIZED IS NOT CONSIDERED AN EMOLUMENT OR A GRATUITY, BUT IS INTENDED AS A FORM OF REIMBURSEMENT TO THE CADETS FOR MONEY EXPENDED FOR TRANSPORTATION IN REPORTING FROM THEIR HOMES TO THE ACADEMY. 4 COMP. GEN. 437.

IN THE CASE OF CRAIG SMYSER V. THE UNITED STATES, 81 C.1CLS. 966, CITED IN YOUR LETTER, THE FACTS APPEAR TO BE THAT SMYSER, AN APPOINTEE AT LARGE, WHILE ATTENDING SCHOOL AT CORNWALL-ON-1HUDSON, NEW YORK, RECEIVED ORDERS TO REPORT TO THE SUPERINTENDENT OF THE UNITED STATES MILITARY ACADEMY, WEST POINT, NEW YORK; THAT UPON COMPLETION OF HIS SCHOOLING HE RETURNED TO HIS HOME AT FORT BLISS, TEXAS; AND THAT HE SUBSEQUENTLY TRAVELED FROM FORT BLISS TO THE MILITARY ACADEMY FOR THE PURPOSE OF COMPLYING WITH THE ORDERS. THE COURT, WITHOUT A WRITTEN OPINION, HELD THAT UNDER AUTHORITY OF THE APPLICABLE STATUTES SMYSER WAS ENTITLED TO MILEAGE FOR TRAVEL ACTUALLY PERFORMED FROM HIS HOME TO THE ACADEMY.

UNDER THE CITED STATUTES, PAYMENT OF MILEAGE FOR TRAVEL ACTUALLY PERFORMED BY CADETS FROM THEIR HOMES TO WEST POINT, NEW YORK, UPON ENTERING THE MILITARY ACADEMY, WILL BE ALLOWED AS WITHIN THE RULE OF THE SMYSER CASE, SUPRA, REGARDLESS OF THE PLACE OF RECEIPT OF ORDERS, PROVIDED SUCH PAYMENTS ARE SUPPORTED BY EVIDENCE THAT THE HOME OF SUCH CADET IS NOT MORE DISTANT FROM THE ACADEMY THAN THAT CERTIFIED AS HIS ACTUAL RESIDENCE AS SHOWN IN THE CADET'S NOMINATION FOR APPOINTMENT TO THE MILITARY ACADEMY. IN THIS CONNECTION SEE DECISION OF THIS OFFICE DATED MARCH 6, 1942, B-23922, TO LIEUTENANT COLONEL E. J. BEAN, F.D., U.S. ARMY.

INSTRUCTIONS ARE BEING ISSUED FOR THE CREDITING OF PAYMENTS OF THE NATURE HEREIN DISCUSSED TO THE EXTENT THAT THEY COME WITHIN THE RULE ABOVE STATED.