B-3884, AUGUST 17, 1939, 19 COMP. GEN. 217

B-3884, AUGUST 17, 1939, 19 COMP. GEN. 217

MILEAGE AND TRANSPORTATION FOR DEPENDENTS - NAVAL OFFICER'S CHANGE OF STATION ORDERS MODIFIED WHILE ON LEAVE OF ABSENCE DECISION INVOLVES MILEAGE AND TRANSPORTATION OF DEPENDENTS OF NAVY OFFICER ON PERMANENT CHANGE OF STATION WHERE ORDERS ARE RECEIVED WHILE ON AUTHORIZED LEAVE OF ABSENCE DESIGNATING ANOTHER PERMANENT STATION, AND PERMITS PAYMENT OF MILEAGE TO THE OFFICER FROM THE PLACE OF DETACHMENT TO THE FINAL PERMANENT STATION VIA THE INTERMEDIATE STATION NOTWITHSTANDING THE OFFICER WAS DETACHED FROM SAID INTERMEDIATE STATION ON THE DATE OF ARRIVAL, BUT HOLDS THAT THE INTERMEDIATE STATION MUST BE CONSIDERED ONLY A TEMPORARY DUTY STATION FOR TRANSPORTATION OF DEPENDENTS REIMBURSEMENT PURPOSES AND REIMBURSEMENT OF SAID COST RESTRICTED TO THE COST FROM PLACE OF ORIGINAL DETACHMENT TO PLACE OF ULTIMATE STATION DIRECT AND NOT VIA THE INTERMEDIATE STATION. 8 COMP. GEN. 524; 9 ID 315; A-25049, AUGUST 20, 1929, A-61287, APRIL 26, 1935, DISTINGUISHED.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO CAPTAIN W. L. AINSWORTH, UNITED STATES NAVY, AUGUST 17, 1939:

THERE HAS BEEN CONSIDERED YOUR REQUEST OF FEBRUARY 16, 1939--- FORWARDED THROUGH THE OFFICE OF THE CHIEF OF THE BUREAU OF NAVIGATION AND TRANSMITTED HERE BY DIRECTION OF THE SECRETARY OF THE NAVY--- FOR REVIEW OF SETTLEMENT DATED FEBRUARY 10, 1939, CLAIM NO. 10153796, WHICH DISALLOWED YOUR CLAIM FOR THE COMMERCIAL COST OF TRANSPORTATION OF DEPENDENTS FROM BREMERTON, WASH., TO CHARLESTON, S.C., THENCE TO NEW ORLEANS, LA., LESS THE COST OF THEIR TRANSPORTATION PAID FROM BREMERTON, WASH., TO NEW ORLEANS, LA., AND FINDING YOU INDEBTED TO THE UNITED STATES IN THE AMOUNT OF $50.56 AS EXCESS MILEAGE PAID YOU FOR TRAVEL UNDER ORDERS OF FEBRUARY 7, 1938, AND JUNE 10, 1938.

BUREAU OF NAVIGATION ORDERS DATED FEBRUARY 7, 1938, PROVIDED AS FOLLOWS:

1. WHEN RELIEVED ON OR ABOUT MAY 31, 1938, YOU WILL REGARD YOURSELF DETACHED FROM DUTY ON BOARD U.S.S. MISSISSIPPI AND FROM SUCH OTHER DUTY AS MAY HAVE BEEN ASSIGNED YOU; WILL PROCEED AND REPORT TO THE COMMANDANT, SIXTH NAVAL DISTRICT, CHARLESTON, S.C., FOR DUTY AS CAPTAIN OF THE YARD, NAVY YARD, CHARLESTON, S.C.

2. REPORT ALSO TO THE COMMANDANT, SIXTH, SEVENTH, AND EIGHTH NAVAL DISTRICTS FOR ADDITIONAL DUTY AS CHIEF OF STAFF AND AIDE.

3. THE SECRETARY OF THE NAVY HAS DETERMINED THAT THIS EMPLOYMENT ON SHORE DUTY IS REQUIRED BY THE PUBLIC INTERESTS.

4. YOU ARE HEREBY AUTHORIZED TO DELAY UNTIL JUNE 28, 1938, IN REPORTING IN OBEDIENCE TO THESE ORDERS.

5. KEEP THE BUREAU OF NAVIGATION AND YOUR NEW STATION ADVISED OF YOUR ADDRESS.

6. THIS DELAY WILL COUNT AS LEAVE. UPON THE COMMENCEMENT OF THE LEAVE YOU WILL IMMEDIATELY INFORM THIS BUREAU OF THE EXACT DATE AND UPON THE EXPIRATION THEREOF YOU WILL RETURN THE ATTACHED FORM, GIVING THE DATES OF COMMENCEMENT AND EXPIRATION.

IT APPEARS THAT YOU WERE DETACHED FROM THE U.S.S. MISSISSIPPI MAY 31, 1938, AND THAT TAKING ADVANTAGE OF THE LEAVE GRANTED UNDER THE ORDERS YOU PROCEEDED WITH YOUR DEPENDENTS BY PRIVATELY OWNED AUTOMOBILE TO NEW YORK AND THENCE TO WASHINGTON, D.C., WHERE YOU ARRIVED ON JUNE 20, 1938.

BUREAU OF NAVIGATION ORDERS OF JUNE 10, 1938, ADDRESSED TO YOU AS CAPTAIN OF THE YARD, NAVY YARD, CHARLESTON, S.C., WERE WORDED AS FOLLOWS:

1. WHEN DIRECTED BY THE COMMANDANT, SIXTH NAVAL DISTRICT, IN JUNE 1938, YOU WILL REGARD YOURSELF DETACHED FROM DUTY AS CAPTAIN OF THE YARD, NAVY YARD, CHARLESTON, S.C., AND FROM SUCH OTHER DUTY AS MAY HAVE BEEN ASSIGNED YOU; WILL PROCEED TO ATLANTA, GA., AND REPORT TO THE PROFESSOR OF NAVAL SCIENCE AND TACTICS, GEORGIA SCHOOL OF TECHNOLOGY, FOR TEMPORARY DUTY.

2.REPORT ALSO BY LETTER TO THE COMMANDANT, SIXTH NAVAL DISTRICT, FOR THIS DUTY.

3. UPON THE COMPLETION OF THIS TEMPORARY DUTY, YOU WILL REGARD YOURSELF DETACHED; WILL PROCEED TO NEW ORLEANS, LA., AND REPORT TO THE PRESIDENT OF TULANE UNIVERSITY FOR DUTY AS PROFESSOR OF NAVAL SCIENCE AND TACTICS IN CONNECTION WITH THE NAVAL RESERVE OFFICERS' TRAINING CORPS UNIT AT THAT UNIVERSITY.

4. REPORT ALSO BY LETTER TO THE COMMANDANT, EIGHTH NAVAL DISTRICT, FOR THIS DUTY.

5. THE SECRETARY OF THE NAVY HAS DETERMINED THAT THIS EMPLOYMENT ON SHORE DUTY IS REQUIRED BY THE PUBLIC INTERESTS.

6. YOU ARE HEREBY AUTHORIZED TO DELAY UNTIL JULY 11, 1938, IN REPORTING AT NEW ORLEANS, LA., IN OBEDIENCE TO THESE ORDERS.

IT IS REPORTED THAT A COPY OF THE ORDERS OF JUNE 10, 1938, WAS RECEIVED BY YOU AS A MATTER OF INFORMATION OR OR ABOUT JUNE 19, 1938, WHILE IN NEW YORK WITH YOUR DEPENDENTS, AND THAT, BECAUSE OF THE DIRECTIONS CONTAINED IN SUCH ORDERS, YOUR DEPENDENTS DID NOT ACCOMPANY YOU TO CHARLESTON, S.C. IT FURTHER APPEARS THAT YOU REPORTED AT CHARLESTON, S.C., JUNE 28, 1938; WERE DETACHED THE SAME AY; REPORTED FOR TEMPORARY DUTY AT THE GEORGIA SCHOOL OF TECHNOLOGY, ATLANTA, GA., JULY 5; DETACHED THEREFROM JULY 8, AND ARRIVED AT THE TULANE UNIVERSITY, NEW ORLEANS, LA., JULY 11, 1938, IN ACCORDANCE WITH PARAGRAPH 3 OF THE ORDERS OF JUNE 10, 1938, FOR DUTY AS PROFESSOR OF NAVAL SCIENCE AND TACTICS, NAVAL RESERVE OFFICERS' TRAINING CORPS, AT THAT INSTITUTION. IT IS NOTED THAT YOUR DEPENDENTS ARE REPORTED TO HAVE ARRIVED AT CHARLESTON, S.C., AUGUST 4, 1938--- OVER A MONTH AFTER YOU HAD BEEN DETACHED FROM THAT STATION--- IN CONNECTION WITH WHICH IT IS STATED THAT "THIS ADDITIONAL TRAVEL WAS PERFORMED BY MY DEPENDENTS FOR THE PURPOSE OF MAKING MY CLAIM FOR REIMBURSEMENT LEGALLY CORRECT AND JUST.'

YOU WERE PAID MILEAGE FROM BREMERTON, WASH., TO THE NAVY YARD, CHARLESTON, S.C., THENCE TO ATLANTA, GA., THENCE TO NEW ORLEANS, LA., IN THE AMOUNT OF $286.56, AND, IN ADDITION, YOU WERE PAID COMMERCIAL COST OF TRANSPORTATION FOR YOUR DEPENDENTS FROM BREMERTON, WASH., TO NEW ORLEANS, LA., IN THE AMOUNT OF $199.66.

WITH REFERENCE TO MILEAGE, THE ESTABLISHED RULE IS THAT WHERE AN OFFICER IS DIRECTED TO MAKE A CHANGE OF STATION AND IS GRANTED LEAVE EN ROUTE AND WHILE ON SUCH LEAVE HE RECEIVES ORDERS CHANGING HIS ULTIMATE NEW STATION, HE IS LIMITED TO MILEAGE FROM THE OLD STATION TO THE NEW STATION DESIGNATED IN THE MODIFIED ORDERS AS IF THE ORIGINAL ORDERS HAD DIRECTED SUCH TRAVEL. 8 COMP. GEN. 524; 9 ID. 315. IT WAS UNDER THIS RULE THAT, IN THE SETTLEMENT OF FEBRUARY 10, 1939, YOUR AUTHORIZED ALLOWANCE OF MILEAGE UNDER THE SERIES OF ORDERS WAS FOUND TO BE $236 COMPUTED OVER THE OFFICIAL ROUTE, BREMERTON, WASH., TO ATLANTA, GA., TO NEW ORLEANS, LA.

IT IS CONTENDED THAT THE ORDERS OF JUNE 10, 1938, DID NOT IN ANY MANNER LESSEN THE OFFICIAL NECESSITY OF COMPLIANCE WITH THE ORDERS OF FEBRUARY 7, 1938, INSOFAR AS REQUIRING YOUR REPORTING AT CHARLESTON, S.C.; THAT THE FURNISHING YOU WITH A COPY OF THE ORDER OF JUNE 10, 1938, WHILE ON LEAVE IN NEW YORK ON OR ABOUT JUNE 19, WAS MERELY INFORMATORY AND DID NOT AFFECT YOUR DUTY TO REPORT AT CHARLESTON AS ENJOINED AND DIRECTED IN THE EARLIER ORDER; THAT UPON REPORTING AT CHARLESTON A PERMANENT CHANGE OF STATION WAS EFFECTED ENTITLING YOU NOT ONLY TO THE MILEAGE AS PAID BUT, ALSO, TO THE COMMERCIAL COST OF TRANSPORTATION FOR YOUR DEPENDENTS FROM BREMERTON, WASH., TO CHARLESTON, S.C., THENCE TO NEW ORLEANS, LA.

WITH REFERENCE TO THE PURPOSE OF THE ORDERS AS HEREINABOVE QUOTED, THE CHIEF OF THE BUREAU OF NAVIGATION, NAVY DEPARTMENT, IN FIRST INDORSEMENT DATED MARCH 13, 1939, TO THE JUDGE ADVOCATE GENERAL OF THE NAVY, REPORTED AS FOLLOWS:

1. FORWARDED. ON FEBRUARY 7, 1938, THIS BUREAU ISSUED ORDERS TO COMMANDER AINSWORTH DETACHING HIM FROM DUTY ON BOARD THE U.S.S. MISSISSIPPI WHEN RELIEVED ON OR ABOUT MAY 31, 1938, AND DIRECTING HIM TO PROCEED AND REPORT FOR DUTY AT THE NAVY YARD, CHARLESTON, S.C., WITH PERMISSION TO DELAY UNTIL JUNE 2, 1938, IN REPORTING. COMMANDER AINSWORTH WAS DETACHED AT THE PUGET SOUND NAVY YARD ON MAY 31, 1938, AND REPORTED AT CHARLESTON, S.C., IN OBEDIENCE TO THESE ORDERS ON JUNE 28, 1938. THE TRAVEL THUS PERFORMED WAS STRICTLY IN OBEDIENCE TO ORDERS, AND AT NO TIME WERE THE ORDERS OF FEBRUARY 7, 1938, MODIFIED BY THIS BUREAU OR BY ANY OTHER COMPETENT AUTHORITY.

2. IN JUNE IT APPEARED TO THIS BUREAU THAT THE NAVY PERSONNEL BILL THEN UNDER CONSIDERATION IN CONGRESS MIGHT BE PASSED. THERE WAS AT CHARLESTON, S.C., AN OFFICER WHO UNDER PRIOR LEGISLATION WOULD HAVE BEEN INVOLUNTARILY RETIRED, BUT WHO WOULD BE RETAINED ON ACTIVE DUTY IF THE CONTEMPLATED LEGISLATION WERE PASSED. SHOULD THIS OFFICER REMAIN ON DUTY, THE BUREAU INTENDED TO KEEP HIM AT CHARLESTON. SHOULD THE LEGISLATION NOT BE PASSED THE OFFICER WOULD HAVE BEEN RELIEVED BY COMMANDER AINSWORTH UPON HIS ARRIVAL AT CHARLESTON.

3. SINCE DEFINITE ACTION COULD NOT BE TAKEN UNTIL AFTER THE APPROVAL OF THE PERSONNEL BILL, AND SINCE IT APPEARED THAT THE TIME FOR SUCH ACTION MIGHT BE VERY SHORT, THE BUREAU ATTEMPTED TO ANTICIPATE EITHER SITUATION BY ORDERING COMMANDER AINSWORTH TO CHARLESTON AND ISSUING A SECOND SET OF ORDERS FOR HIM WHICH WOULD BECOME EFFECTIVE ONLY AFTER COMMANDER AINSWORTH HAD ARRIVED AT CHARLESTON. ACCORDINGLY ON JUNE 10, 1938,ORDERS WERE ISSUED ADDRESSED TO COMMANDER AINSWORTH AT THE NAVY YARD, CHARLESTON, PROVIDING FOR HIS DETACHMENT FROM THAT YARD WHEN DIRECTED BY THE COMMANDANT, TO PROCEED TO ATLANTA, GA., FOR TEMPORARY DUTY, THENCE TO NEW ORLEANS, LA., FOR PERMANENT DUTY. HAD THE PERSONNEL BILL APPROVED JUNE 23, 1938, NOT BECOME LAW, THE COMMANDANT WOULD HAVE BEEN REQUESTED TO RETURN THESE ORDERS FOR CANCELLATION, AND COMMANDER AINSWORTH WOULD HAVE REMAINED AT CHARLESTON FOR DUTY. THE FACT THAT COMMANDER AINSWORTH WHILE AT NEW YORK RECEIVED A COPY OF THE ORDERS OF JUNE 10, 1938, DID NOT RELIEVE HIM OF THE OBLIGATION REPORTING AT CHARLESTON, AS DIRECTED IN ORDERS OF FEBRUARY 7, 1938, AND THE ORDERS OF JUNE 10 DID NOT CANCEL THE ORDERS OF FEBRUARY 7, 1938, AS STATED BY THE GENERAL ACCOUNTING OFFICE IN REFERENCE (C).

4. WHEN COMMANDER AINSWORTH REPORTED AT CHARLESTON ON JUNE 28, 1938, AS DIRECTED IN HIS ORDERS, THE PERSONNEL BILL HAD BEEN APPROVED. THE COMMANDANT, THEREFORE, DETACHED HIM ON JUNE 28, 1938, AND DIRECTED HIM TO CARRY OUT THE BUREAU'S ORDERS OF JUNE 10, 1938. IN OBEDIENCE TO THESE ORDERS COMMANDER AINSWORTH PROCEEDED TO ATLANTA, GA., ON TEMPORARY DUTY, THENCE TO NEW ORLEANS FOR PERMANENT DUTY.

THE LEGISLATIVE HISTORY, BRIEFLY, OF H.R. 9997, 75TH CONGRESS, 3D SESSION, IS AS FOLLOWS:

INTRODUCED IN THE HOUSE OF REPRESENTATIVES, MARCH 28, 1938; REPORTED APRIL 12; PASSED THE HOUSE OF REPRESENTATIVES APRIL 25; REFERRED TO COMMITTEE IN THE SENATE APRIL 26; REPORTED JUNE 10; PASSED THE SENATE JUNE 13; CONFERENCE REQUESTED JUNE 14., CONFERENCE REPORT AGREED TO JUNE 15; SIGNED BY THE SPEAKER OF THE HOUSE OF REPRESENTATIVES AND THE VICE PRESIDENT AND PRESENTED TO THE PRESIDENT OF THE UNITED STATES JUNE 16., APPROVED BY THE PRESIDENT JUNE 23, 1938, BECOMING PUBLIC, NO. 703; 52 STAT. 944. YOU STATE YOU CAME TO WASHINGTON JUNE 21, 1938, AND REPORTED TO THE BUREAU OF NAVIGATION WITH REFERENCE TO YOUR ORDERS.

IT THUS APPEARS THAT ON MAY 31, 1938, THE DATE OF YOUR DETACHMENT FROM THE U.S.S. MISSISSIPPI, THE BILL HAD PASSED ONE OF THE HOUSES OF CONGRESS AND ON JUNE 16, THE BILL, AFTER CONFERENCE AGREEMENT HAD BEEN SENT TO THE PRESIDENT FOR HIS APPROVAL, FROM WHICH IT APPEARS MORE OR LESS APPARENT THAT YOU WERE ACQUAINTED WITH THE FACT THAT THE BILL HAD BECOME LAW BEFORE YOU REPORTED AT THE NAVY YARD, CHARLESTON, S.C., JUNE 28, 1938.

IT HAS BEEN HELD THAT THE FACTS AND NOT MERE RECITATIONS IN ORDERS DETERMINE AN OFFICER'S RIGHT TO MILEAGE, MACCAULEY V. UNITED STATES, 50 CT.1CLS. 105, AND THAT WHERE ORDERS FORMALLY DIRECT AN OFFICER TO REPORT AT A STATION FOR DUTY, BUT THE FACTS SHOW THAT ASSIGNMENT OF THE OFFICER TO DUTY THEREAT WAS NOT CONTEMPLATED OR INTENDED, SUCH REPORTING BEING FOR THE PURPOSE OF RECEIVING FURTHER ORDERS ASSIGNING THE OFFICER TO DUTY ELSEWHERE, HE IS NOT ENTITLED TO MILEAGE FOR SO REPORTING. A-25049, DATED AUGUST 20, 1929; A-61287, DATED APRIL 26, 1935. HOWEVER, IN THE INSTANT CASE, WHEN THE ORDERS OF JUNE 10, 1938, WERE ISSUED, H.R. 9997, ALTHOUGH HAVING PASSED THE HOUSE OF REPRESENTATIVES, HAD NOT PASSED THE SENATE AND THE ORDERS OF THAT DATE WERE, THEREFORE, STILL CONTINGENT UPON THE ENACTMENT OF LEGISLATION WHICH WOULD ELIMINATE THE POTENTIAL OR CONTEMPLATED VACANCY AT CHARLESTON NAVY YARD WHICH YOU WERE TO FILL. HENCE, SAID ORDER DID NOT CHANGE YOUR PREVIOUS ORDERS DIRECTING YOU TO TRAVEL TO CHARLESTON. ON JUNE 20, WHEN YOU WERE IN WASHINGTON, D.C., THE BILL HAD BEEN SENT TO THE PRESIDENT 4 DAYS PREVIOUSLY AND THERE WAS REASONABLE LIKELIHOOD OF A KNOWLEDGE OF ITS THEN PRESENT STATUS BY THE NAVY DEPARTMENT OFFICIALS INTERESTED IN THE OUTCOME OF THE LEGISLATION, BUT YOUR SPECIFIC ORDERS TO REPORT TO CHARLESTON JUNE 28 WERE NOT CHANGED OR CANCELED. THE RECORD DOES NOT DEFINITELY SHOW WHEN YOU COMMENCED TRAVEL FROM WASHINGTON, D.C., TOWARDS CHARLESTON, S.C., BUT ACCORDING TO THE REPORTED FACTS, YOU DID NOT ARRIVE AT CHARLESTON, S.C., UNTIL JUNE 28, 1938. WHILE IT APPEARS CLEAR THAT AT THE TIME YOU PROCEEDED FROM WASHINGTON NOTHING MORE THAN A TEMPORARY DUTY ASSIGNMENT AT CHARLESTON, S.C., WAS CONTEMPLATED, IN VIEW OF THE ADMINISTRATIVE DETERMINATION THAT THE ORDERS OF JUNE 10, 1938, WERE TO BECOME EFFECTIVE ONLY AFTER YOU HAD ARRIVED AT CHARLESTON, S.C., THE NECESSITY FOR THE TRAVEL TO CHARLESTON WILL NOT BE FURTHER QUESTIONED IN THIS OFFICE. HOWEVER, IN CONTEMPLATION OF LAWS RELATING TO MILEAGE AND TRANSPORTATION OF DEPENDENTS, AND THE FACT THAT THE ACT OF JUNE 23, 1938, HAD BEEN SIGNED 5 DAYS PRIOR TO YOUR REPORTING AT CHARLESTON, S.C., SUCH REPORTING MUST BE CONSIDERED AS ENJOINING ONLY A TEMPORARY DUTY THEREAT.

ACCORDINGLY, THE CHARGE OF $50.56 RAISED IN SETTLEMENT OF FEBRUARY 10, 1939, WILL BE REMOVED. OTHERWISE THE SETTLEMENT IS SUSTAINED. YOUR ORIGINAL ORDERS ARE RETURNED HEREWITH.