B-36908, NOV 26, 1943

B-36908, NOV 26, 1943

PRECIS-UNAVAILABLE

THE HONORABLE, THE SECRETARY OF THE NAVY:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 7, 1943, JAG:WJR:HR L16- 7/00, REQUESTING DECISION ON A QUESTION PRESENTED BY THE COMMANDANT, U.S. COAST GUARD, IN HIS LETTER OF AUGUST 31, 1943. THE COMMANDANT'S LETTER IS IN PART AS FOLLOWS:

"PRESENT CIRCUMSTANCES HAVE MADE IT ADVISABLE TO ORDER OFFICERS ATTACHED TO COAST GUARD AIR STATIONS TO PERFORM ROUTINE AIR PATROLS AND MANEUVERS IN AREAS AT SUCH DISTANCES AS TO REQUIRE THE OFFICERS ASSIGNED TO REMAIN AWAY FROM THEIR PERMANENT STATIONS FOR PERIODS OF SEVERAL WEEKS OR LONGER. TO COMPENSATE THOSE OFFICERS THIS OFFICE PROPOSES TO AUTHORIZE A PER DIEM WHILE SUCH OFFICERS ARE ON THIS TEMPORARY DUTY.

"AN OFFICER OF THE COAST GUARD, ATTACHED TO THE COAST GUARD AIR STATION, ST. PETERSBURG, FLORIDA, WAS DIRECTED BY COMPETENT ORDERS TO PROCEED BY GOVERNMENT AIRCRAFT TO KEY WEST, FLORIDA, FOR TEMPORARY DUTY AND UPON COMPLETION THEREOF TO RETURN TO HIS REGULAR STATION. A PER DIEM OF SEVEN DOLLARS PER DAY WAS PRESCRIBED IN LIEU OF SUBSISTENCE. THIS OFFICER WHILE ON TEMPORARY DUTY AT KEY WEST WAS ASSIGNED ROUTINE AIR PATROL DUTIES AND UPON COMPLETION OF TEMPORARY DUTY OF APPROXIMATELY THREE WEEKS RETURNED TO HIS REGULAR DUTY STATION. INASMUCH AS THE OFFICER INCURRED EXPENSES FOR QUARTERS AND SUBSISTENCE WHILE ON TEMPORARY DUTY, IS PAYMENT OF PER DIEM AS PRESCRIBED IN HIS ORDERS AUTHORIZED?"

THE COMMANDANT CITES DECISION OF JUNE 4, 1941, 20 COMP.GEN. 856, WHICH HELD, QUOTING THE SYLLABUS:

"AN OFFICER ORDERED TO THE SCENE OF ARMY MANEUVERS FOR TEMPORARY DUTY INVOLVING THE MAKING OF OBSERVATIONS IS PARTICIPATING IN THE MANEUVERS SO FAR AS TRAVEL ALLOWANCE IS CONCERNED AND MAY NOT BE PAID MILEAGE FOR MOVEMENTS FROM PLACE TO PLACE, WHILE ON SUCH DUTY, REQUIRED IN THE PERFORMANCE OF HIS ASSIGNED DUTIES, NOR MAY HE BE PAID PER DIEM IN LIEU OF SUBSISTENCE EXCEPT WHILE TRAVELING BETWEEN HIS REGULAR POST OF DUTY AND THE TEMPORARY POST FROM WHICH HIS MOVEMENTS IN OBSERVING THE MANEUVERS BEGAN AND ENDED."

THE PROVISO IN THE NAVAL APPROPRIATION ACT, 1944, APPROVED JUNE 26, 1943, 57 STAT. 204, IS AS FOLLOWS:

"*** THAT THE SECRETARY, IN PRESCRIBING PER DIEM RATES OF ALLOWANCE IN ACCORDANCE WITH LAW, IS HEREBY AUTHORIZED TO PRESCRIBE SUCH PER DIEM, WHETHER OR NOT ORDERS ARE GIVEN TO OFFICERS FOR TRAVEL TO BE PERFORMED REPEATEDLY BETWEEN TWO OR MORE PLACES IN THE SAME VICINITY AND WITHOUT REGARD TO THE LENGTH OF TIME AWAY FROM THEIR DESIGNATED POSTS OF DUTY UNDER SUCH ORDERS ***."

SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 364, PROVIDES, IN 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, BUT IN CASES WHEN ORDERS ARE GIVEN FOR TRAVEL TO BE PERFORMED REPEATEDLY BETWEEN TWO OR MORE PLACES IN THE SAME VICINITY, AS DETERMINED BY THE HEAD OF THE EXECUTIVE DEPARTMENT CONCERNED, HE MAY, IN HIS DISCRETION, DIRECT THAT ACTUAL AND NECESSARY EXPENSES ONLY BE ALLOWED. ACTUAL EXPENSES ONLY SHALL BE PAID FOR TRAVEL UNDER ORDERS IN ALASKA AND OUTSIDE THE LIMITS OF THE UNITED STATES IN NORTH AMERICA.

"UNLESS OTHERWISE EXPRESSLY PROVIDED BY LAW, NO OFFICER OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT SHALL BE ALLOWED OR PAID ANY SUM IN EXCESS OF EXPENSES ACTUALLY INCURRED FOR SUBSISTENCE WHILE TRAVELING ON DUTY AWAY FROM HIS DESIGNATED POST OF DUTY, NOR ANY SUM FOR SUCH EXPENSES ACTUALLY INCURRED IN EXCESS OF $7 PER DAY. THE HEADS OF THE EXECUTIVE DEPARTMENTS CONCERNED ARE AUTHORIZED TO PRESCRIBE PER DIEM RATES OF ALLOWANCE, NOT EXCEEDING $6, IN LIEU OF SUBSISTENCE TO OFFICERS TRAVELING ON OFFICIAL BUSINESS AND AWAY FROM THEIR DESIGNATED POSTS OF DUTY: PROVIDED, THAT FOR TRAVEL BY AIR UNDER COMPETENT ORDERS ON DUTY WITHOUT TROOPS, UNDER REGULATIONS TO BE PRESCRIBED RESPECTIVELY BY THE HEADS OF THE DEPARTMENTS CONCERNED, MEMBERS (INCLUDING OFFICERS, WARRANT OFFICERS, CONTRACT SURGEONS, ENLISTED MEN, AVIATION CADETS, AND MEMBERS OF THE NURSE CORPS) OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT, AND OF THE LEGALLY CONSTITUTED RESERVES OF SAID SERVICES WHILE ON ACTIVE DUTY, AND OF THE NATIONAL GUARD WHILE IN FEDERAL SERVICE, OR WHILE PARTICIPATING IN EXERCISES, OR PERFORMING DUTIES UNDER SECTIONS 92, 94, OR 99 OF THE NATIONAL DEFENSE ACT, SHALL, IN LIEU OF MILEAGE OR OTHER TRAVEL ALLOWANCES, BE ALLOWED AND PAID THEIR ACTUAL AND NECESSARY TRAVELING EXPENSES NOT TO EXCEED $8 PER DAY, OR, IN LIEU THEREOF, PER DIEM ALLOWANCES AT RATES NOT TO EXCEED $6 PER DAY."

IT WILL BE NOTED THAT UNDER THAT ABOVE-QUOTED STATUTORY PROVISIONS, EXCEPT FOR TRAVEL BY AIR, A PER DIEM WAS AUTHORIZED TO BE PRESCRIBED FOR OFFICERS ONLY FOR REPEATED TRAVEL IN THE UNITED STATES AND FOR TRAVEL OUTSIDE THE LIMITS OF THE UNITED STATES. THE PRIMARY PURPOSE OF THE LANGUAGE CONTAINED IN THE NAVAL APPROPRIATION ACT, 1944, QUOTED ABOVE, WAS TO PERMIT THE PRESCRIBING OF A PER DIEM FOR OFFICIAL TRAVEL INCLUDING THAT FOR WHICH ONLY MILEAGE OTHERWISE WOULD HAVE BEEN PAYABLE.

IN ORDER TO BE ENTITLED TO A PER DIEM ALLOWANCE FOR TRAVEL UNDER COMPETENT ORDERS IT IS NECESSARY THAT THE OFFICER BE IN A TRAVEL STATUS AS REQUIRED BY THE LAWS GOVERNING THE REIMBURSEMENT OF TRAVEL EXPENSES; AND THERE IS NOTHING IN THE QUOTED PROVISION OF THE SAID NAVAL APPROPRIATION ACT, 1944, WHICH WOULD CHANGE THAT REQUIREMENT. IN DECISION OF JULY 11, 1936, A-75945, IT WAS SAID:

"*** ORDERS TO FLYING OFFICERS TO PARTICIPATE IN WARLIKE OPERATIONS WHETHER ACTUAL OR SIMULATED, ARE NOT ORDERS TO TRAVEL. OF COURSE, THERE MAY BE TRAVEL IN CONNECTION WITH ACTUAL OR SIMULATED OPERATIONS, BUT ORDERS TO OFFICERS, WHETHER ORAL OR WRITTEN, TO TAKE POSITION AND FUNCTION IN THEIR CAPACITY AS ARMY OR NAVY OFFICERS IN CONNECTION WITH OPERATIONS ARE NOT ORDERS TO TRAVEL, ALTHOUGH THE ORDERS MAY REQUIRE MOVEMENT: THE ORDERS ARE FOR PERFORMANCE OF THE DUTY FOR WHICH THE OFFICER IS COMMISSIONED AND THE OFFICER IS NOT IN A TRAVEL STATUS WHEN SO FUNCTIONING. FLYING OFFICERS ARE PAID AN INCUREASE OF 50 PERCENT OF THEIR PAY FOR THE RISKS INVOLVED IN FLYING. IF, IN ADDITION, TO THE FLYING PAY AUTHORIZED BY LAW, DURING ACTUAL OR SIMULATED WARFARE THEY ARE TO BE PAID PER DIEM IN LIEU OF EXPENSES, WHICH INCLUDES THE EXPENSES OF SUBSISTENCE, ON EVERY OCCASION THEY ARE REQUIRED TO FLY IN THE PERFORMANCE OF THEIR FLYING DUTY AND LAND AT SOME POINT AWAY FROM THEIR ORIGINAL POSITION, WHETHER THE DISTANCE BE GREAT OR SMALL AND WHETHER THE LANDING BE PURSUANT TO ORDERS OR FROM THE NECESSITIES OF THE SITUATION, THEY WILL FOR PRACTICAL PURPOSES BE SUBSISTED BY THE GOVERNMENT WHEN ALL OTHER OFFICERS ARE REQUIRED TO SUBSIST THEMSELVES DURING SUCH OPERATIONS. IT HAS BEEN REPEATEDLY HELD THAT MERE MOVEMENT IN THE PERFORMANCE OF AN ASSIGNED DUTY DOES NOT CONSTITUTE TRAVEL FOR THE PURPOSE OF THE MILEAGE LAWS. COMP.DEC. 19; 26 ID. 81 AND 225; 1 COMP.GEN. 461. THE ACTS OF 1931 AND 1906 AND THE REGULATIONS MADE UNDER THIS LATTER ACT RELATE TO TRAVEL ORDERED AS SUCH AND NOT TO MERE MOVEMENT IN THE PERFORMANCE OF DUTY BY AN OFFICER FUNCTIONING WITH TROOPS APPROPRIATE TO HIS RANK, BRANCH, AND ASSIGNMENT."

SEE, ALSO, DECISIONS OF MAY 18, 1940, B-9617; 20 COMP.GEN. 856, SUPRA; 21 COMP.GEN. 761.

IT IS STATED THAT THE OFFICER HERE CONCERNED WAS ASSIGNED ROUTINE AIR PATROL DUTIES, WHICH, IT WOULD APPEAR, ARE DUTIES OF A COMBAT NATURE-- THE EXPRESS DUTIES FOR WHICH THE OFFICER WAS COMMISSIONED. THE LAWS GOVERNING REIMBURSEMENT OF TRAVEL EXPENSES OF MILITARY AND NAVAL PERSONNEL GENERALLY HAVE BEEN CONSTRUED AS CONTEMPLATING THE PERFORMANCE OF SOME DUTY BY THE TRAVELER SEPARATE AND APART FROM THE DUTIES OF THE ORGANIZATION TO WHICH HE IS ATTACHED. AN AVIATION OFFICER ASSIGNED TO A BOMBING GROUP ORDINARILY IS NOT CONSIDERED TO BE IN A TRAVEL STATUS WHEN CARRYING OUT A BOMBING MISSION. THE "TRAVEL" INVOLVED IS MERELY MOVEMENT INCIDENT TO PERFORMANCE OF THEIR NORMAL DUTIES. UNDER SUCH CIRCUMSTANCES, AND IN ACCORDANCE WITH THE PRIOR DECISIONS OF THIS OFFICE ON THE MATTER, IT MUST BE HELD THAT THE OFFICER WHILE ASSIGNED ROUTINE AIR PATROL DUTIES WAS NOT IN A TRAVEL STATUS WITHIN THE MEANING OF THE LAWS GOVERNING REIMBURSEMENT OF TRAVEL EXPENSES AND, THEREFORE, THE QUESTION PRESENTED IS ANSWERED IN THE NEGATIVE.