B-38713, JANUARY 18, 1944, 23 COMP. GEN. 512

B-38713, JANUARY 18, 1944, 23 COMP. GEN. 512

MILEAGE - FIRST DUTY STATION - FEMALE DIETITIANS, ETC., APPOINTED UNDER ACT OF DECEMBER 22, 1942 FEMALE DIETETIC AND PHYSICAL THERAPY PERSONNEL APPOINTED IN THE MEDICAL DEPARTMENT OF THE ARMY UNDER SECTION 2 OF THE ACT OF DECEMBER 22, 1942, WHICH AUTHORIZES PAYMENT TO SUCH PERSONNEL OF ,MILEAGE AND OTHER TRAVEL ALLOWANCES, AS NOW OR HEREAFTER PROVIDED BY LAW, FOR COMMISSIONED OFFICERS, WITHOUT DEPENDENTS, OF THE REGULAR ARMY," ARE NOT ENTITLED TO PAYMENT OF MILEAGE IN CONNECTION WITH TRAVEL INCIDENT TO REPORTING AT THEIR FIRST DUTY STATION.

ASSISTANT COMPTROLLER GENERAL YATES TO LT. S. J. NESBITT, U.S. ARMY, JANUARY 18, 1944:

THERE HAS BEEN CONSIDERED YOUR LETTER OF NOVEMBER 29, 1943, WITH RESPECT TO THE PLACE FROM WHICH SECOND LIEUTENANT CLARA B. TAVIS, R 1035, DIETITIAN, MAY BE PAID MILEAGE IN CONNECTION WITH HER FIRST REPORTING FOR DUTY UNDER AN APPOINTMENT PURSUANT TO SECTION 2 OF THE ACT OF DECEMBER 22, 1942, 56 STAT. 1072. THE SAID SECTION 2 PROVIDES:

SEC. 2. HEREAFTER, DURING THE PRESENT WAR AND FOR SIX MONTHS THEREAFTER THERE SHALL BE INCLUDED IN THE MEDICAL DEPARTMENT OF THE ARMY SUCH FEMALE DIETETIC AND PHYSICAL THERAPY PERSONNEL (EXCLUSIVE OF STUDENTS AND APPRENTICES) AS THE SECRETARY OF WAR MAY CONSIDER NECESSARY, WHOSE QUALIFICATION, DUTIES AND ASSIGNMENTS SHALL BE IN ACCORDANCE WITH REGULATIONS TO BE PRESCRIBED BY THE SECRETARY, AND WHO SHALL BE APPOINTED AND, AT HIS DISCRETION BE REMOVED, BY THE SURGEON GENERAL, SUBJECT TO THE APPROVAL OF THE SECRETARY. SUCH PERSONNEL SHALL HAVE RELATIVE RANK AND RECEIVE PAY AND MONEY ALLOWANCES, FOR SUBSISTENCE AND RENTAL OF QUARTERS, AND MILEAGE AND OTHER TRAVEL ALLOWANCES, AS NOW OR HEREAFTER PROVIDED BY LAW, FOR COMMISSIONED OFFICERS, WITHOUT DEPENDENTS, OF THE REGULAR ARMY IN THE THIRD TO THE FIRST PAY PERIODS, RESPECTIVELY. PERSONS APPOINTED UNDER THE PROVISIONS OF THIS SECTION AND THEIR DEPENDENTS SHALL BE ENTITLED TO THE SAME ALLOWANCES AND THE SAME RIGHTS, PRIVILEGES, BENEFITS, AND GRATUITIES AS MEMBERS OF THE ARMY NURSE CORPS AND THEIR DEPENDENTS.

THE DATE ON WHICH LIEUTENANT TAVIS WAS APPOINTED PURSUANT TO THE ABOVE STATUTORY AUTHORITY IS NOT STATED; BUT, FROM YOUR LETTER, SUCH APPOINTMENT APPEARS TO HAVE BEEN MADE ON OR PRIOR TO OCTOBER 1, 1943.

PARAGRAPH 20, SPECIAL ORDERS NO. 274, WAR DEPARTMENT, DATED OCTOBER 1, 1943, PROVIDES:

PARAGRAPH 20 DP FOLLOWING OFFICER ORDERED TO AD WP FRO HOME TO STA ON DATE INDICATED. TDN. ALLOTMENT SERIAL NUMBER IN COLUMN AFTER EACH NAME. P 431-01 102, 103, 107, 108, A 10425-24. ALL PERSONNEL OF AUS UNLESS OTHERWISE INDICATED:

CHART:

GRADE, NAME, SECTION AND ALMT. BRANCH AND DATE

HOME ADDRESS SER. EFF./DATE OF DUTY STATION OF

NO.1- TO WHICH RANK

ASSIGNED DIETITIAN (2D LT) CLARA 5406 11/1/43 STA HOSP, CP 11/1/43 BELL TAVIS R1035 GORDON JOHNSTON, BOULDER, COLO. (NOW CARRABELLE, FLA. AT FORT WORTH, TEX.).

YOU STATE THAT THE ABOVE ORDERS WERE RECEIVED BY LIEUTENANT TAVIS AT FORT WORTH, TEXAS, WHERE SHE WAS EMPLOYED AS AN EMPLOYEE OF THE UNITED STATES PUBLIC HEALTH SERVICE BUT THAT IN MAKING APPLICATION FOR APPOINTMENT SHE HAD GIVEN HER PERMANENT ADDRESS AS BOULDER, COLORADO. UPON RECEIPT OF HER ORDERS SHE TRAVELED TO BOULDER AND ON THE DATE STIPULATED IN HERE ORDERS COMMENCED TRAVEL FROM THERE TO THE STATION DESIGNATED. THE VOUCHER SUBMITTED COVERS MILEAGE CLAIMED FROM BOULDER TO HER STATION. THE QUESTION YOU PRESENT IS WHETHER, UNDER THE CIRCUMSTANCES, LIEUTENANT TAVIS IS ENTITLED TO MILEAGE COMPUTED ON THE DISTANCE FROM BOULDER TO HER STATION OR WHETHER MILEAGE IS LIMITED TO AN AMOUNT COMPUTED ON THE DISTANCE FROM FORT WORTH TO HER STATION. A DETERMINATION OF THAT QUESTION NECESSARILY INVOLVES A CONSIDERATION OF HER BASIC LEGAL RIGHT TO MILEAGE.

SECTION 2 OF THE ACT OF DECEMBER 22, 1942, SUPRA, PROVIDES THAT DIETETIC AND PHYSICAL THERAPY PERSONNEL APPOINTED THEREUNDER SHALL RECEIVE "MILEAGE AND OTHER TRAVEL ALLOWANCES, AS NOW OR HEREAFTER PROVIDED BY LAW, FOR COMMISSIONED OFFICERS, WITHOUT DEPENDENTS, OF THE REGULAR ARMY.' PARAGRAPH 15, ARMY REGULATIONS 40-25, PROVIDES THAT DIETITIANS AND PHYSICAL THERAPY AIDES TRAVELING UNDER COMPETENT ORDERS ARE ENTITLED TO TRANSPORTATION AT PUBLIC EXPENSE AND PARAGRAPH 9, ARMY REGULATIONS 35- 2020, CONTAINS A PROVISION THAT, UNDER THE ACT OF DECEMBER 22, 1942,"MEMBERS OF THE ARMY NURSE CORPS AND OTHER FEMALE PERSONNEL OF THE MEDICAL DEPARTMENT ARE ENTITLED TO MILEAGE AND OTHER TRAVEL ALLOWANCES AS NOW OR HEREAFTER PROVIDED FOR BY LAW, FOR MILITARY PERSONNEL OF COMPARABLE GRADE, WITHOUT DEPENDENTS.' SAID REGULATIONS DO NOT PURPORT TO PROVIDE THAT MILEAGE ACCRUES TO A DIETITIAN APPOINTED UNDER THE SAID SECTION OF THE ACT OF DECEMBER 22, 1942, FOR TRAVEL INCIDENT TO REPORTING AT HER FIRST POST OF DUTY. IN A DECISION DATED MARCH 12, 1943, 22 COMP. GEN. 885, IT WAS HELD THAT WARRANT OFFICERS APPOINTED IN THE REGULAR ARMY FROM CIVILIAN LIFE WERE NOT ENTITLED TO REIMBURSEMENT ON A MILEAGE OR OTHER BASIS FOR EXPENSES OF TRAVEL FROM THEIR HOME TO THEIR FIRST DUTY STATION. WITH THE EXCEPTION OF OFFICERS COMMISSIONED IN THE MEDICAL DEPARTMENT (SEE 24 COMP. DEC. 434, PAR. 1, L, ARMY REGULATIONS 35-4830) THE SAME RULE IS APPLICABLE TO ALL COMMISSIONED OFFICERS OF THE REGULAR ARMY SO APPOINTED. THE RULE STATED IN THE DECISION OF MARCH 12, 1943, IS MERELY A RESTATEMENT OF THE PRACTICE FOLLOWED FOR ALMOST ONE HUNDRED YEARS WITH RESPECT TO APPOINTMENTS IN BOTH THE CIVIL AND MILITARY BRANCHES OF THE GOVERNMENT UNLESS EXPRESS STATUTORY PROVISION AUTHORIZED SOME OTHER PRACTICE.

WHILE IT COULD BE ARGUED THAT SINCE THE APPOINTMENT OF LIEUTENANT TAVIS PLACED HER IN THE MEDICAL DEPARTMENT OF THE ARMY, SHE SHOULD BE ENTITLED TO MILEAGE TO HER FIRST POST OF DUTY AS IN THE CASE OF OFFICERS COMMISSIONED IN THAT COMPONENT OF THE REGULAR ARMY, IT DOES NOT APPEAR THAT APPOINTMENT OF PERSONS UNDER SECTION 2 OF THE ACT OF DECEMBER 22, 1942, GIVES SUCH PERSONS THE STATUS OF COMMISSIONED OFFICERS. THEY ARE GIVEN A MILITARY STATUS AND HAVE RELATIVE RANK WITH OFFICERS BUT THEY ARE NOT COMMISSIONED. THE SAID SECTION 2 OF THE ACT OF DECEMBER 22, 1942, PROVIDES THAT THEIR PAY, MONEY ALLOWANCE FOR QUARTERS AND SUBSISTENCE, MILEAGE AND OTHER TRAVEL ALLOWANCES SHALL BE THE SAME AS THOSE AUTHORIZED FOR COMMISSIONED OFFICERS OF THE REGULAR ARMY, GENERALLY. THERE IS NO INDICATION IN SAID SECTION THAT THE CONGRESS INTENDED THAT PERSONS APPOINTED THEREUNDER SHOULD HAVE THE ADVANTAGE OF THE EXCEPTION, WITH RESPECT TO MILEAGE, MADE IN THE CASE OF OFFICERS COMMISSIONED IN THE MEDICAL DEPARTMENT. AS WILL BE SEEN FROM THE DECISION OF MARCH 12, 1943, SUPRA, THE DISTINCTION BETWEEN OFFICERS COMMISSIONED IN THE MEDICAL DEPARTMENT OF THE ARMY AND OFFICERS OF THE REGULAR ARMY, GENERALLY, WITH RESPECT TO MILEAGE TO THEIR FIRST POST OF DUTY HAS BEEN RECOGNIZED FOR MANY YEARS AND IT IS REASONABLE TO ASSUME THAT IF IT HAD BEEN INTENDED TO AUTHORIZE PAYMENT TO DIETITIANS OF MILEAGE RECEIVED BY ONLY A PARTICULAR GROUP OF OFFICERS OF THE REGULAR ARMY, THAT PARTICULAR GROUP WOULD HAVE BEEN DESIGNATED BY CLEARER LANGUAGE THAN "COMMISSIONED OFFICERS * * * OF THE REGULAR ARMY.' WHILE, IN THAT CONNECTION, ADMINISTRATIVE REGULATIONS COULD NOT INCREASE THE BENEFITS AUTHORIZED BY THE STATUTE, THE FACT THAT REGULATIONS ISSUED PURSUANT TO THE STATUTE DO NOT PURPORT TO PROVIDE THAT MILEAGE IS AUTHORIZED TO BE PAID UNDER THE CIRCUMSTANCES HERE INVOLVED, INDICATES AN ADMINISTRATIVE INTERPRETATION OF THE LAW NOT INCONSISTENT WITH THE VIEW HEREIN EXPRESSED.

ACCORDINGLY, YOU ARE ADVISED THAT SINCE THE TRAVEL HERE INVOLVED WAS INCIDENT TO REPORTING FOR DUTY AT HER FIRST STATION, LIEUTENANT TAVIS IS NOT LEGALLY ENTITLED TO MILEAGE IN CONNECTION THEREWITH AND, THEREFORE, PAYMENT ON THE SUBMITTED VOUCHER, WHICH WILL BE RETAINED IN THIS OFFICE, IS NOT AUTHORIZED.