B-40794, APRIL 21, 1944, 23 COMP. GEN. 808

B-40794, APRIL 21, 1944, 23 COMP. GEN. 808

TRAVEL ALLOWANCE - ARMY ENLISTED MEN DISCHARGED FOR PURPOSE OF ENLISTING IN NAVY ENLISTED PERSONNEL DISCHARGED PRIOR TO THE DATE OF NORMAL TERMINATION OF THEIR ENLISTMENT CONTRACTS FOR THE PURPOSE OF ENABLING THEM TO REENLIST, OR FOR THE PURPOSE OF RELEASING THEM FROM THEIR CONTRACTS OF ENLISTMENT TO ALLOW THEM TO CONTINUE IN THE MILITARY SERVICE IN A DIFFERENT STATUS, MAY NOT BE CONSIDERED AS HAVING BEEN DISCHARGED UNDER CONDITIONS ENTITLING THEM TO THE TRAVEL ALLOWANCE PROVIDED BY SECTION 126 OF THE NATIONAL DEFENSE ACT OF 1916, AS AMENDED, BUT, UPON THEIR EVENTUAL DISCHARGE AND COMPLETE SEPARATION FROM THE SERVICE, THEY ARE ENTITLED TO TRAVEL ALLOWANCE TO THE PLACE OF ENTRY INTO THE SERVICE UNDER THE ORIGINAL ENLISTMENT, IF THE DISCHARGE IS OF A NATURE OTHERWISE ENTITLING THEM TO SUCH ALLOWANCE. WHERE, DUE TO THE TRANSFER OF AN ARMY ACTIVITY TO THE JURISDICTION OF THE NAVY, AN ARMY ENLISTED MAN WAS DISCHARGED DURING HIS TERM OF ENLISTMENT FOR THE PURPOSE OF IMMEDIATELY ENLISTING IN THE NAVY, HIS SERVICE AS A NAVY ENLISTED MAN IS TO BE REGARDED, SO FAR AS TRAVEL RIGHTS ARE CONCERNED, AS A CONTINUATION OF HIS ENLISTED SERVICE UNDER THE ORIGINAL TERM OF ENLISTMENT, SO THAT, UPON ULTIMATE DISCHARGE OR RELEASE FROM ACTIVE DUTY WITH THE NAVY, HE IS ENTITLED UNDER SECTION 126 OF THE NATIONAL DEFENSE ACT OF 1916, AS AMENDED, TO TRAVEL ALLOWANCE FROM THE PLACE OF DISCHARGE OR RELEASE TO THE PLACE TO WHICH HE WOULD HAVE BEEN ENTITLED HAD HE CONTINUED TO SERVE IN THE ARMY UNTIL FINALLY DISCHARGED OR RELEASED FROM ACTIVE DUTY. WHERE, DUE TO TRANSFER OF AN ARMY ACTIVITY TO THE JURISDICTION OF THE NAVY, AN ARMY ENLISTED MAN WAS DISCHARGED DURING HIS TERM OF ENLISTMENT WITH THE EXPRESS UNDERSTANDING THAT HE WOULD ENLIST IMMEDIATELY IN THE NAVY, THE TRAVEL ALLOWANCE PAYABLE WHEN HE IS FINALLY DISCHARGED OR RELEASED FROM ACTIVE DUTY IS CHARGEABLE TO THE NAVY APPROPRIATION THEN AVAILABLE FOR PAYMENT OF TRAVEL ALLOWANCE TO OTHER ENLISTED MEN OF THE NAVY UPON DISCHARGE OR RELEASE FROM ACTIVE DUTY.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, APRIL 21, 1944:

I HAVE YOUR LETTER OF MARCH 15, 1944, (JAG:II:WG:HR L20-3/MM) AS FOLLOWS:

THERE IS TRANSMITTED HEREWITH A LETTER FROM THE COMMANDING OFFICER, HARBOR ENTRANCE CONTROL POST, FORT WORDEN, WASHINGTON, DATED DECEMBER 23, 1943, WITH ENCLOSURES AND ACCOMPANYING ENDORSEMENTS, RELATIVE TO PAYMENT OF TRAVEL ALLOWANCE TO CERTAIN ENLISTED MEN ON DISCHARGE OR RELEASE FROM ACTIVE DUTY IN THE NAVY.

IT WILL BE OBSERVED FROM THE ENCLOSURE THAT THE MEN CONCERNED WERE ORIGINALLY INDUCTED INTO THE ARMY; THAT THEY WERE SERVING WITH THE ARMY AT THE HYDRACOUSTIC STATION, FORT FLAGLER, WASHINGTON, AT THE TIME WHEN ALL UNDERWATER DETECTION, INCLUDING EQUIPMENT USED IN CONNECTION THEREWITH, WAS TRANSFERRED FROM THE CONTROL OF THE ARMY TO THE TACTICAL COMMAND OF THE NAVY, AND FURTHER, THAT THESE MEN WERE HONORABLY DISCHARGED FROM THE ARMY AT FORT WORDEN, WASHINGTON, ON JUNE 30, 1942 AND WERE ENLISTED IN THE NAVY ON JULY 1, 1942 AT SEATTLE, WASHINGTON, IN ACCORDANCE WITH A PRECONCEIVED PLAN FOR THE PURPOSE OF OPERATING THE EQUIPMENT USED IN UNDERWATER DETECTION.

IT APPEARS THAT EACH DISCHARGE CERTIFICATE ISSUED BY THE ARMY IN THE AFORESAID CASES RECITES, INTER ALIA, THAT THE INDIVIDUAL CONCERNED "IS HONORABLY DISCHARGED FROM THE MILITARY SERVICE OF THE UNITED STATES BY REASON OF CONVENIENCE OF THE GOVT.' FOR THE PURPOSE OF ENLISTING IN THE U.S. NAVY AND THAT HE IS "NOT ENTITLED TO TRAVEL PAY.' IT FURTHER APPEARS THAT ONE OF THE MEN CONCERNED, NAMELY, JAMES P. PASQUINI, SOUNDMAN THIRD CLASS, USNR, FORMERLY PRIVATE, U.S. ARMY, WHO WAS DISCHARGED THEREFROM TO ENLIST IN THE NAVY, HAS SUBMITTED A CLAIM TO THE GENERAL ACCOUNTING OFFICE FOR PAYMENT OF TRAVEL ALLOWANCE FROM FORT WORDEN, WASHINGTON, TO CHICAGO, ILLINOIS, AT WHICH PLACE HE WAS INDUCTED INTO THE ARMY ON JANUARY 23, 1941.

ARTICLE 2503-10 (C) AND (F) (3), U.S. NAVY TRAVEL INSTRUCTIONS, PROVIDES AS FOLLOWS:

"/C)ENLISTED PERSONNEL INDUCTED INTO THE NAVAL SERVICE UNDER THE SELECTIVE TRAINING AND SERVICE ACT OF 1940 ARE ENTITLED ON DISCHARGE OR RELEASE FROM ACTIVE DUTY TO TRAVEL ALLOWANCE AT 5 CENTS PER MILE FOR ALL LAND TRAVEL FROM THE PLACE OF DISCHARGE OR RELEASE FROM ACTIVE DUTY TO THE LOCATION OF THE LOCAL BOARD TO WHICH THE PERSONNEL FIRST REPORTED FOR DELIVERY TO THE INDUCTION STATION.

"/F) (3) A MAN DISCHARGED FOR THE CONVENIENCE OF THE GOVERNMENT EVEN THOUGH AT HIS REQUEST, IS ENTITLED TO TRAVEL ALLOWANCE. (COMP. GEN. 5080, SEPT. 19, 1923).'

IT WOULD APPEAR FROM THE FACTS DISCLOSED IN THIS CASE THAT THE MEN LISTED IN THE ENCLOSURE SHOULD PROPERLY COME WITHIN THE PROVISIONS OF THE ABOVE QUOTED INSTRUCTIONS AND THAT, ON DISCHARGE OR RELEASE FROM ACTIVE DUTY IN THE NAVY, THEY SHOULD, IF OTHERWISE ENTITLED THERETO, BE PAID TRAVEL ALLOWANCE FOR TRAVEL FROM PLACE OF DISCHARGE OR RELEASE FROM ACTIVE DUTY TO THE LOCATION OF THE LOCAL BOARD TO WHICH THEY FIRST REPORTED FOR DELIVERY TO THE INDUCTION STATION.

THE NAVY DEPARTMENT REQUESTS AN EXPRESSION OF YOUR VIEWS AS TO WHETHER THE ENLISTED MEN NAMED IN THE ENCLOSURE WILL BE ENTITLED, ON DISCHARGE OR RELEASE FROM ACTIVE DUTY IN THE NAVY, TO TRAVEL ALLOWANCE FOR TRAVEL FROM PLACE OF DISCHARGE OR RELEASE FROM ACTIVE DUTY TO THE LOCATION OF THE LOCAL BOARD TO WHICH THEY REPORTED FOR INDUCTION INTO THE ARMY, AND, IF SO, WHETHER THE COST OF SUCH TRAVEL ALLOWANCE IS PROPERLY CHARGEABLE TO THE NAVAL APPROPRIATION " PAY, SUBSISTENCE AND TRANSPORTATION OF NAVAL PERSONNEL.'

PAYMENT OF TRAVEL ALLOWANCE TO ENLISTED PERSONNEL OF THE VARIOUS SERVICES UPON DISCHARGE IS AUTHORIZED IN SECTION 126 OF THE NATIONAL DEFENSE ACT OF JUNE 3, 1916, 39 STAT. 217, WHICH, AS AMENDED BY SECTION 3 OF THE ACT OF FEBRUARY 28, 1919, 40 STAT. 1203, THE ACT OF SEPTEMBER 22, 1922, 42 STAT. 1021, AND THE ACT OF DECEMBER 14, 1942, 56 STAT. 1049, PROVIDES:

HEREAFTER AN ENLISTED MAN DISCHARGED FROM THE ARMY, NAVY, OR MARINE CORPS, EXCEPT BY WAY OF PUNISHMENT FOR AN OFFENSE, SHALL RECEIVE 5 CENTS PER MILE FOR THE DISTANCE FROM THE PLACE OF HIS DISCHARGE TO THE PLACE OF HIS ACCEPTANCE FOR ENLISTMENT, ENROLLMENT, OR MUSTER INTO THE SERVICE: PROVIDED, THAT FOR SEA TRAVEL INVOLVED IN TRAVEL BETWEEN PLACE OF DISCHARGE AND PLACE OF ACCEPTANCE FOR ENROLLMENT, ENLISTMENT, OR MUSTER INTO THE SERVICE ONLY TRANSPORTATION IN KIND AND SUBSISTENCE EN ROUTE SHALL BE ALLOWED: * * * PROVIDED FURTHER, THAT FROM AND AFTER AUGUST 27, 1940, UPON DISCHARGE OR RELIEF OR RELEASE FROM ACTIVE DUTY, AN ENLISTED MAN INDUCTED INTO THE MILITARY OR NAVAL SERVICE UNDER THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, AS AMENDED, OR PUBLIC RESOLUTION NUMBERED 96, APPROVED AUGUST 27, 1940, SHALL, UNDER SUCH REGULATIONS AS THE SECRETARY OF WAR OR THE SECRETARY OF THE NAVY, RESPECTIVELY, SHALL PRESCRIBE, RECEIVE THE SAID 5 CENTS PER MILE FOR THE DISTANCE FROM THE PLACE OF DISCHARGE OR RELIEF OR RELEASE FROM ACTIVE DUTY TO THE LOCATION OF THE LOCAL BOARD WHERE HE FIRST REPORTED FOR DELIVERY TO AN INDUCTION STATION IN THE CASE OF A SELECTEE, OR TO THE HOME STATION OF THE NATIONAL GUARD UNIT IN THE CASE OF A NATIONAL GUARD ENLISTED MAN, OR TO THE PLACE WHERE HE WAS SELECTED FOR ENROLLMENT IN THE CIVILIAN CONSERVATION CORPS IN THE CASE OF A CIVILIAN CONSERVATION CORPS ENROLLEE SO INDUCTED: AND PROVIDED FURTHER, THAT THE ENLISTED MEN OF THE NAVAL RESERVE, THE MARINE CORPS RESERVE, THE ENLISTED RESERVE CORPS, AND THE REGULAR ARMY RESERVE SHALL RECEIVE, UPON DISCHARGE OR RELIEF OR RELEASE FROM ACTIVE DUTY, THE SAME MILEAGE ALLOWANCE AS HEREIN PRESCRIBED, AND UNDER THE SAME CONDITIONS AS HEREIN PRESCRIBED FOR ENLISTED MEN INDUCTED INTO THE MILITARY OR NAVAL SERVICE UNDER THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, AS AMENDED, EXCEPT THAT THE DISTANCE FOR WHICH MILEAGE IS COMPUTED SHALL BE FROM THE PLACE OF DISCHARGE OR RELIEF OR RELEASE FROM ACTIVE DUTY TO THE PLACE FROM WHICH ORDERED TO ACTIVE DUTY.

WHILE THE STATUTE EXCEPTS FROM THE AUTHORIZATION FOR PAYMENT OF THE TRAVEL ALLOWANCE, ONLY CASES OF DISCHARGE BY WAY OF PUNISHMENT FOR AN OFFENSE, IT UNIFORMLY HAS BEEN HELD THAT ENLISTED PERSONNEL DISCHARGED PRIOR TO THE DATE OF NORMAL TERMINATION OF THEIR ENLISTMENT CONTRACTS FOR THE PURPOSE OF ENABLING THEM TO REENLIST, OR FOR THE PURPOSE OF RELEASING THEM FROM THEIR CONTRACTS OF ENLISTMENT TO ALLOW THEM TO CONTINUE IN THE MILITARY SERVICE IN A DIFFERENT STATUS, MAY NOT BE CONSIDERED AS HAVING BEEN DISCHARGED UNDER CONDITIONS ENTITLING THEM TO THE TRAVEL ALLOWANCE PROVIDED BY THE QUOTED PROVISIONS OF THE NATIONAL DEFENSE ACT, AS AMENDED, BUT THAT, UPON THEIR EVENTUAL DISCHARGE AND COMPLETE SEPARATION FROM THE SERVICE, THEY ARE ENTITLED TO THE TRAVEL ALLOWANCE SO PROVIDED TO THE PLACE OF ENTRY INTO THE SERVICE UNDER THE ORIGINAL ENLISTMENT, IF THE DISCHARGE IS OF A NATURE OTHERWISE ENTITLING THEM TO TRAVEL ALLOWANCE. COMP. DEC. 513; 26 ID. 359; 6 COMP. GEN. 842.

THE DISCHARGES ISSUED BY THE ARMY TO THE ENLISTED MEN HERE CONCERNED WERE NOT GIVEN FOR THE PURPOSE OF TERMINATING THEIR SERVICES IN THE ARMED FORCES OF THE UNITED STATES. THE MEN WERE DISCHARGED DURING THEIR TERM OF ENLISTMENT WITH THE EXPRESS UNDERSTANDING THAT THEY WOULD BE ENLISTED IN THE NAVY IMMEDIATELY, THEIR ENLISTMENT IN THE NAVY HAVING BEEN MADE NECESSARY BY TRANSFER OF THE ARMY ACTIVITY TO WHICH THEY HAD BEEN ATTACHED TO THE JURISDICTION OF THE NAVY DEPARTMENT. IN OTHER WORDS, THE TRANSACTION WAS IN THE NATURE OF A TRANSFER FROM ONE SERVICE TO ANOTHER RATHER THAN A DISCHARGE FROM THE SERVICE. HAD THESE ENLISTED MEN CONTINUED THEIR SERVICE IN THE ARMY UNTIL THE NORMAL TERMINATION OF THEIR ENLISTMENTS, AND HAD THEY THEN BEEN DISCHARGED UNDER HONORABLE CONDITIONS THEY WOULD, OF COURSE, HAVE BEEN ENTITLED TO THE TRAVEL ALLOWANCE PROVIDED BY LAW. BUT SINCE THEIR ENLISTMENTS IN THE ARMY WERE TERMINATED BY DISCHARGE ONLY FOR THE PURPOSE OF IMMEDIATELY ENLISTING THEM IN THE NAVY, THEIR SERVICE AS ENLISTED MEN IN THE NAVY, IS, SO FAR AS TRAVEL RIGHTS ARE CONCERNED, MERELY A CONTINUATION OF THEIR ENLISTED SERVICE UNDER THE ORIGINAL TERM OF ENLISTMENT. ACCORDINGLY, UPON THEIR ULTIMATE DISCHARGE OR RELEASE FROM ACTIVE DUTY WITH THE NAVY THEY WILL, ON THE BASIS OF EXISTING PROVISIONS OF LAW, BE ENTITLED TO TRAVEL ALLOWANCE FROM THE PLACE OF SUCH DISCHARGE OR RELEASE TO THE PLACE TO WHICH THEY WOULD HAVE BEEN ENTITLED HAD THEY CONTINUED TO SERVE IN THE ARMY UNTIL FINALLY DISCHARGED OR RELEASED FROM ACTIVE DUTY.

INASMUCH AS THE MEN INVOLVED NOW ARE SERVING UNDER ENLISTMENT IN THE NAVY AND, PRESUMABLY, WILL BE DISCHARGED OR RELEASED FROM ACTIVE DUTY UNDER THE SAME CONDITIONS AS OTHER ENLISTED MEN INDUCTED INTO THE NAVAL SERVICE, THE TRAVEL ALLOWANCE PAYABLE WHEN THEY ARE FINALLY DISCHARGED OR RELEASED FROM ACTIVE DUTY WOULD APPEAR TO BE CHARGEABLE AGAINST NAVY APPROPRIATIONS THEN AVAILABLE FOR PAYMENT OF TRAVEL ALLOWANCE TO OTHER INDUCTED ENLISTED MEN UPON DISCHARGE OR RELEASE FROM ACTIVE DUTY.