B-32721, MARCH 12, 1943, 22 COMP. GEN. 885

B-32721: Mar 12, 1943

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REGULAR ARMY OFFICERS APPOINTED FROM CIVIL LIFE - PERSONAL TRANSPORTATION AND TRANSPORTATION FOR DEPENDENTS FROM HOME TO FIRST DUTY STATION WARRANT OFFICERS APPOINTED IN THE REGULAR ARMY FROM CIVIL LIFE ARE NOT ENTITLED. FROM HOME TO FIRST DUTY STATION FOR DEPENDENTS OF OFFICERS OF THE REGULAR ARMY APPOINTED FROM CIVIL LIFE IS NOT AUTHORIZED BY SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942. ATTENTION IS INVITED TO THE FACT THAT SUCH WARRANT OFFICERS ARE NOW BEING REIMBURSED UNDER PROPER ORDERS FOR THE EXPENSES OF TRAVEL PERFORMED BY THEIR DEPENDENTS FROM THE HOMES OF SUCH PERSONNEL TO THEIR FIRST DUTY STATIONS UNDER THE AUTHORITY OF THAT PART OF SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942 APPROVED JUNE 16.

B-32721, MARCH 12, 1943, 22 COMP. GEN. 885

REGULAR ARMY OFFICERS APPOINTED FROM CIVIL LIFE - PERSONAL TRANSPORTATION AND TRANSPORTATION FOR DEPENDENTS FROM HOME TO FIRST DUTY STATION WARRANT OFFICERS APPOINTED IN THE REGULAR ARMY FROM CIVIL LIFE ARE NOT ENTITLED, UNDER SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942, TO REIMBURSEMENT ON A MILEAGE OR OTHER BASIS FOR EXPENSES OF TRAVEL FROM HOME TO FIRST DUTY STATION. TRANSPORTATION, AT GOVERNMENT EXPENSE, FROM HOME TO FIRST DUTY STATION FOR DEPENDENTS OF OFFICERS OF THE REGULAR ARMY APPOINTED FROM CIVIL LIFE IS NOT AUTHORIZED BY SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF WAR, MARCH 12, 1943:

THERE HAS BEEN RECEIVED YOUR LETTER OF FEBRUARY 23, 1943, AS FOLLOWS:

THE WAR DEPARTMENT HAS BEFORE IT FOR CONSIDERATION THE QUESTION WHETHER IT MAY PROPERLY ISSUE TRAVEL ORDERS UNDER WHICH PAYMENT OF MILEAGE OR OTHER FORM OF TRAVEL REIMBURSEMENT MAY BE LEGALLY MADE TO WARRANT OFFICERS APPOINTED IN THE REGULAR ARMY FROM CIVILIAN LIFE COVERING TRAVEL FROM THEIR HOMES TO THEIR FIRST DUTY STATIONS.

IN THIS CONNECTION, ATTENTION IS INVITED TO THE FACT THAT SUCH WARRANT OFFICERS ARE NOW BEING REIMBURSED UNDER PROPER ORDERS FOR THE EXPENSES OF TRAVEL PERFORMED BY THEIR DEPENDENTS FROM THE HOMES OF SUCH PERSONNEL TO THEIR FIRST DUTY STATIONS UNDER THE AUTHORITY OF THAT PART OF SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942 APPROVED JUNE 16, 1942 ( PUBLIC LAW 607--- 77TH CONGRESS), READING AS FOLLOWS:

"THE WORDS "PERMANENT CHANGE OF STATION" AS USED IN THIS SECTION SHALL INCLUDE THE CHANGE FROM HOME TO FIRST STATION AND FROM LAST STATION TO HOME WHEN ORDERED TO ACTIVE DUTY OTHER THAN TRAINING DUTY, OF ANY OFFICER, WARRANT OFFICER, NURSE, OR ENLISTED MAN OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT, INCLUDING RETIRED PERSONNEL AND MEMBERS OF THE RESERVE COMPONENTS THEREOF, IN A GRADE FOR WHICH THE TRANSPORTATION OF DEPENDENTS IS AUTHORIZED AT GOVERNMENT EXPENSE, AND THE CHANGE FROM LAST STATION TO HOME IN CONNECTION WITH RETIREMENT, RELIEF FROM ACTIVE DUTY, OR TRANSFER TO A RESERVE COMPONENT.' ( ITALICS SUPPLIED.)

WHILE THE INCONSISTENCY IS APPARENT OF REIMBURSING SUCH PERSONNEL FOR EXPENSES OF TRAVEL FOR THEIR DEPENDENTS FROM THEIR HOMES TO THEIR FIRST DUTY STATIONS, AND DENYING REIMBURSEMENT TO SUCH PERSONNEL FOR SIMILAR TRAVEL PERFORMED BY THEMSELVES PURSUANT TO ORDERS, THE WAR DEPARTMENT HAS REFRAINED FROM INCLUDING AUTHORITY FOR REIMBURSEMENT OF SUCH TRAVEL IN ORDERS COVERING THIS CLASS OF MILITARY PERSONNEL AND NO PAYMENT FOR SUCH TRAVEL HAS BEEN MADE, BECAUSE IT WAS FELT THAT LEGISLATIVE AUTHORITY FOR THE REIMBURSEMENT FOR SUCH TRAVEL WAS DOUBTFUL.

IN AN ATTEMPT TO ELIMINATE THE OBVIOUS DISCRIMINATION AGAINST SUCH PERSONNEL IN THE MATTER OF REIMBURSEMENT FOR THE TRAVEL HEREIN DISCUSSED, YOUR DECISION IS DESIRED AS TO WHETHER SUCH TRAVEL COSTS MAY LEGALLY BE REIMBURSED UNDER THE AUTHORITY OF THE GENERAL LANGUAGE OF SECTION 12 OF THE PAY READJUSTMENT ACT CITED ABOVE READING AS FOLLOWS:

"OFFICERS OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT, INCLUDING RESERVE COMPONENTS THEREOF AND THE NATIONAL GUARD, WHILE ON ACTIVE DUTY IN THE FEDERAL SERVICE, WHEN TRAVELING UNDER COMPETENT ORDERS WITHOUT TROOPS SHALL RECEIVE A MILEAGE ALLOWANCE AT THE RATE OF 8 CENTS PER MILE, DISTANCE TO BE COMPUTED BY THE SHORTEST USUALLY TRAVELED ROUTE AND EXISTING LAWS PROVIDING FOR THE ISSUE OF TRANSPORTATION REQUESTS TO OFFICERS OF THE ARMY TRAVELING UNDER COMPETENT ORDERS, AND FOR DEDUCTION TO BE MADE FROM MILEAGE ACCOUNTS WHEN TRANSPORTATION IS FURNISHED BY THE UNITED STATES, ARE HEREBY MADE APPLICABLE TO ALL THE SERVICES MENTIONED IN THE TITLE OF THIS ACT, * * *.'

WITH A VIEW THEREFORE TO THE ISSUANCE OF PROPER ORDERS TO SUCH PERSONNEL IN THE FUTURE, YOUR DECISION IS REQUESTED AS TO WHETHER UNDER THE AUTHORITY OF THE LAW CITED HEREIN, OR OTHER LAWS APPLICABLE THERETO, WARRANT OFFICERS APPOINTED IN THE REGULAR ARMY FROM CIVIL LIFE MAY BE REIMBURSED ON A MILEAGE OR OTHER BASIS FOR EXPENSES OF TRAVEL FROM THEIR HOMES TO THEIR FIRST DUTY STATION, PROVIDED THE ORDERS DIRECTING SUCH TRAVEL SO STATE.

THE GENERAL RULE APPLICABLE TO ALL PUBLIC OFFICERS, CIVILIAN AS WELL AS MILITARY, IS THAT UNLESS OTHERWISE PROVIDED BY STATUTE, OR REGULATIONS HAVING THE FORCE OF STATUTES, SUCH OFFICERS MUST PLACE THEMSELVES AT THE PLACE WHERE THEY ARE FIRST TO PERFORM DUTY, WITHOUT EXPENSE TO THE GOVERNMENT. THIS RULE HAS BEEN RECOGNIZED AND FOLLOWED, SINCE AT LEAST 1857, AND PROBABLY PRIOR THERETO, WITH RESPECT TO OFFICERS OF THE REGULAR ARMY WHO WERE APPOINTED FROM CIVIL LIFE, SUCH OFFICERS HAVING BEEN DENIED TRANSPORTATION TO THEIR FIRST DUTY STATION AT GOVERNMENT EXPENSE. SEE 24 COMP. DEC. 434; 7 COMP. GEN. 203, AND CASES CITED THEREIN.

PARAGRAPHS 1115 AND 1116, ARMY REGULATIONS, 1863, AS QUOTED IN 24 COMP. DEC. 434, SUPRA, PROVIDED:

CITIZENS RECEIVING MILITARY APPOINTMENTS JOIN THEIR STATIONS WITHOUT EXPENSE TO THE PUBLIC.

BUT ASSISTANT SURGEONS, APPROVED BY AN EXAMINING BOARD AND COMMISSIONED, RECEIVE TRANSPORTATION IN THE EXECUTION OF THEIR FIRST ORDER TO DUTY, AND GRADUATES OF THE MILITARY ACADEMY RECEIVE TRANSPORTATION FROM THE ACADEMY TO THEIR STATIONS.

SEE, ALSO, PARAGRAPH 1334, ARMY REGULATIONS OF 1895; PARAGRAPHS 1324, 1325, ARMY REGULATIONS, 1904; PARAGRAPHS 1319, 1320, ARMY REGULATIONS, 1910; AND PARAGRAPHS 1296, 1297, ARMY REGULATIONS, 1913, CORRECTED TO APRIL 15, 1917.

PARAGRAPH 2, AR 35-4830, ISSUED DECEMBER 15, 1924, PROVIDED:

2. NOT ENTITLED.--- IN THE FOLLOWING CASES MILEAGE IS NOT ALLOWED:

A. IN JOINING FOR DUTY UPON FIRST APPOINTMENT TO THE MILITARY SERVICE FROM CIVIL LIFE EXCEPT IN CASES OF OFFICERS APPOINTED IN MEDICAL DEPARTMENT OR THE OFFICERS' RESERVE CORPS.

PARAGRAPH 2 (A), AR 35-4830, ISSUED JANUARY 25, 1938, IS TO THE SAME EFFECT ALTHOUGH THE REGULATIONS ISSUED SUBSEQUENT TO THE ENACTMENT OF THE PAY READJUSTMENT ACT OF 1942 ( AR 35-4830, ISSUED AUGUST 13, 1942), ARE SILENT IN THIS RESPECT.

IT WILL BE NOTED THAT PRIOR TO THE ACT OF AUGUST 9, 1912, 37 STAT. 252, THE ARMY REGULATIONS PROVIDED FOR THE PAYMENT OF MILEAGE FOR GRADUATES OF THE UNITED STATES MILITARY ACADEMY ONLY FROM WEST POINT, NEW YORK, TO THEIR FIRST STATION. IT WAS NOT UNTIL ENACTMENT OF THE ACT OF AUGUST 9, 1912, THAT THE REGULATIONS INCLUDED A PROVISION FOR THE PAYMENT OF MILEAGE TO SUCH GRADUATES FROM THEIR HOMES. SEE PARAGRAPH 1319, ARMY REGULATIONS, 1910, AS CHANGED OCTOBER 3, 1912, PARAGRAPH C (3), AR 35-3070 OF DECEMBER 14, 1942. IT IS TO BE OBSERVED, ALSO, THAT PROVISION FOR THE PAYMENT OF MILEAGE TO MEMBERS OF THE OFFICERS' RESERVE CORPS WHEN ORDERED TO ACTIVE DUTY, FROM HOME TO FIRST DUTY STATION APPARENTLY WAS NOT INCLUDED IN THE ARMY REGULATIONS UNTIL SPECIFIC AUTHORITY THEREFOR HAD BEEN PROVIDED BY STATUTE. SECTION 37 (A) OF THE NATIONAL DEFENSE ACT, AS AMENDED BY THE ACT OF JUNE 4, 1920, 41 STAT. 776.

INSOFAR AS THESE STATUTORY REQUISITES FOR THE PAYMENT OF MILEAGE TO OFFICERS OF THE ARMY ARE CONCERNED, THE EXISTING PROVISIONS DO NOT DIFFER MATERIALLY FROM THOSE CONTAINED IN THE ACT OF JUNE 12, 1906, 34 STAT. 246. THEREFORE, SINCE SPECIFIC LEGISLATION WAS NECESSARY TO CONFER UPON GRADUATES OF THE MILITARY ACADEMY MILEAGE FROM THEIR HOME TO FIRST STATION "AS AUTHORIZED BY LAW FOR OFFICERS OF THE ARMY" AND TO MEMBERS OF THE OFFICERS' RESERVE CORPS "FROM HOME TO HIS FIRST DUTY STATION," AND SINCE THE MILEAGE PROVISION IN SECTION 12 OF THE ACT OF JUNE 16, 1942, 56 STAT. 364, WAS ENACTED, FOLLOWING IN SUBSTANTIAL FORM PRIOR LEGISLATION ON THE SAME SUBJECT, IT MUST BE PRESUMED THE CONGRESS INTENDED THAT PAYMENTS THEREUNDER TO OFFICERS OF THE ARMY WERE LIMITED TO THE SAME EXTENT AS UNDER LAWS IN EFFECT PRIOR THERETO.

ALSO, IT IS A WELL ESTABLISHED RULE OF STATUTORY CONSTRUCTION THAT WHEN A LONG-STANDING AND UNIFORM CONSTRUCTION HAS BEEN GIVEN A STATUTE BY THE GOVERNMENT AGENCY CONCERNED, SIMILAR LANGUAGE IN A SUBSEQUENT STATUTE ON THE SAME SUBJECT MATTER WILL, IF POSSIBLE, RECEIVE THE SAME CONSTRUCTION. SEE HAHN V. UNITED STATES, 107 U.S. 402; PENNOYER V. MCCONNAUGHY, 140 U.S. 1. PRIOR TO THE ENACTMENT OF THE PAY READJUSTMENT ACT OF 1942, PROVISIONS FOR MILEAGE FOR OFFICERS WERE CONTAINED IN SECTION 12 OF THE PAY READJUSTMENT ACT OF 1922, 42 STAT. 631, AND SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 364, IS, IN SUBSTANCE, A REENACTMENT OF THOSE PROVISIONS. SECTION 12 OF THE 1942 ACT PROVIDES, IN PERTINENT PART, AS FOLLOWS:

OFFICERS OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT, INCLUDING RESERVE COMPONENTS THEREOF AND THE NATIONAL GUARD, WHILE ON ACTIVE DUTY IN THE FEDERAL SERVICE, WHEN TRAVELING UNDER COMPETENT ORDERS WITHOUT TROOPS SHALL RECEIVE A MILEAGE ALLOWANCE AT THE RATE OF 8 CENTS PER MILE, DISTANCE TO BE COMPUTED BY THE SHORTEST USUALLY TRAVELED ROUTE AND EXISTING LAWS PROVIDING FOR THE ISSUE OF TRANSPORTATION REQUESTS TO OFFICERS OF THE ARMY TRAVELING UNDER COMPETENT ORDERS, AND FOR DEDUCTION TO BE MADE FROM MILEAGE ACCOUNTS WHEN TRANSPORTATION IS FURNISHED BY THE UNITED STATES, ARE HEREBY MADE APPLICABLE TO ALL THE SERVICES MENTIONED IN THE TITLE OF THIS ACT * * *. ( ITALICS SUPPLIED.)

EXCEPT FOR THE ITALICIZED PORTION, THE ABOVE-QUOTED PROVISION OF SECTION 12 OF THE SAID PAY READJUSTMENT ACT OF 1942, IS IDENTICAL WITH THE CORRESPONDING PART OF SECTION 12 OF THE PAY READJUSTMENT ACT OF 1922, SUPRA. PROVISIONS FOR THE PAYMENT OF TRAVEL ALLOWANCES OF RESERVE OFFICERS PRIOR TO THE SAID ACT OF JUNE 16, 1942, WERE CONTAINED ELSEWHERE THAN IN SECTION 12 OF THE ACT OF JUNE 10, 1922. SUCH CHANGE DID NOT AFFECT THE STATUS OF OFFICERS APPOINTED IN THE REGULAR ARMY FROM CIVIL LIFE WITH RESPECT TO THEIR RIGHT TO MILEAGE FOR TRAVEL TO THEIR FIRST DUTY STATION. IN VIEW OF THE LONG PERIOD OF TIME DURING WHICH THE ABOVE STATED RULE HAS BEEN IN EFFECT THAT OFFICERS APPOINTED IN THE REGULAR ARMY FROM CIVIL LIFE ARE NOT ENTITLED TO MILEAGE FOR TRAVEL FROM THEIR HOME TO THEIR FIRST DUTY STATION, IT MUST BE CONSIDERED THAT CONGRESS WAS COGNIZANT THEREOF AND IN ENACTING THE PROVISIONS OF SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942, SUPRA, WITHOUT EXPRESSLY AUTHORIZING THE PAYMENT OF MILEAGE IN SUCH CASES, INTENDED THAT THE ESTABLISHED RULE IN THAT RESPECT WOULD STILL APPLY, UNLESS A CONTRARY INTENTION ON THE PART OF CONGRESS BE CLEARLY SHOWN WHEN SECTION 12 OF THE ACT IS CONSIDERED IN CONNECTION WITH THE ACT IN ITS ENTIRETY.

WITH REFERENCE TO THE STATEMENT IN YOUR LETTER TO THE EFFECT THAT IF TRANSPORTATION IN KIND, OR PAYMENT OF THE COMMERCIAL COST OF SUCH TRANSPORTATION IN LIEU OF TRANSPORTATION IN KIND, TO THE FIRST DUTY STATION FOR DEPENDENTS OF OFFICERS OF THE REGULAR ARMY IS AUTHORIZED BY THE SIXTH PARAGRAPH OF THE SAID SECTION 12 OF THE 1942 ACT, IT MIGHT WELL BE THAT CONGRESS INTENDED TO CHANGE THE RULE WITH RESPECT TO MILEAGE FOR SUCH OFFICERS ON REPORTING TO THEIR FIRST DUTY STATION, IT IS NOTED THAT THE SAID SIXTH PARAGRAPH OF SECTION 12 READS AS FOLLOWS:

THE WORDS "PERMANENT CHANGE OF STATION" AS USED IN THIS SECTION SHALL INCLUDE THE CHANGE FROM HOME TO FIRST STATION AND FROM LAST STATION TO HOME WHEN ORDERED TO ACTIVE DUTY OTHER THAN TRAINING DUTY, OF ANY OFFICER, WARRANT OFFICER, NURSE, OR ENLISTED MAN OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT, INCLUDING RETIRED PERSONNEL AND MEMBERS OF THE RESERVE COMPONENTS THEREOF, IN A GRADE FOR WHICH THE TRANSPORTATION OF DEPENDENTS IS AUTHORIZED AT GOVERNMENT EXPENSE, AND THE CHANGE FROM LAST STATION TO HOME IN CONNECTION WITH RETIREMENT, RELIEF FROM ACTIVE DUTY, OR TRANSFER TO A RESERVE COMPONENT. THE EFFECT OF THAT PROVISION OF SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942 WAS THOROUGHLY CONSIDERED IN DECISION OF JANUARY 12, 1943, B-29267 (22 COMP. GEN. 645), WHEREIN IT WAS HELD THAT SUCH PROVISION MERELY DEFINED THE WORDS ,PERMANENT CHANGE OF STATION" AS THAT TERM IS USED IN PARAGRAPH 5 OF SAID SECTION 12, REENACTING, IN SUBSTANCE, THE PRIOR LAWS AUTHORIZING TRANSPORTATION AT GOVERNMENT EXPENSE FOR DEPENDENTS OF CERTAIN CLASSES OF MILITARY AND NAVAL PERSONNEL, AND THAT IT DID NOT EXTEND SUCH BENEFITS TO OTHER THAN THOSE PERSONS ENTITLED TO TRANSPORTATION FOR DEPENDENTS UNDER THE PRIOR LAWS. THAT PROVISION DOES NOT AUTHORIZE TRANSPORTATION, AT GOVERNMENT EXPENSE, FROM HOME TO THE FIRST DUTY STATION FOR DEPENDENTS OF OFFICERS OF THE REGULAR ARMY APPOINTED FROM CIVIL LIFE.

THE SIXTH PARAGRAPH OF THE SAID SECTION 12 DOES NOT EVINCE ANY INTENTION ON THE PART OF CONGRESS TO DISCARD THE RULE, IN EFFECT FOR OVER EIGHTY YEARS, THAT OFFICERS APPOINTED IN THE REGULAR ARMY FROM CIVIL LIFE ARE NOT ENTITLED TO TRANSPORTATION TO THEIR FIRST DUTY STATION AT GOVERNMENT EXPENSE, NOR DOES ANY OTHER PROVISION OF THE ACT APPEAR TO INDICATE SUCH AN INTENTION. THEREFORE, I HAVE TO ADVISE THAT THE QUESTION PRESENTED IN YOUR LETTER MUST BE ANSWERED IN THE NEGATIVE.