B-44030, OCTOBER 10, 1944, 24 COMP. GEN. 291

B-44030: Oct 10, 1944

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A RETIRED NAVY OFFICER WHO WAS RECALLED TO ACTIVE DUTY SINCE THE DECLARATION OF THE PRESENT EMERGENCY IS ENTITLED. THE FACT THAT A NAVAL RESERVE OFFICER WAS RELEASED FROM ACTIVE DUTY BY BEING PLACED ON THE RETIRED LIST DUE TO PHYSICAL DISABILITY. MAY NOT BE CONSIDERED AS CHANGING HIS RIGHTS UNDER THE TRAVEL ALLOWANCE STATUTES TO ENTITLE HIM TO MILEAGE AND TRANSPORTATION OF DEPENDENTS TO A PLACE SELECTED BY HIM RATHER THAN TO HIS HOME AS DESIGNATED BY HIM AT THE TIME HE WAS ORDERED TO ACTIVE DUTY. IF MILEAGE IS SO CLAIMED AND TRAVEL IS PERFORMED TO THAT PLACE. EVEN THOUGH WHEN CALLED TO ACTIVE DUTY THE ORDERS WERE ADDRESSED TO THE OFFICIAL RESIDENCE BUT WERE FORWARDED TO AND RECEIVED AT THE PLACE OF EMPLOYMENT.

B-44030, OCTOBER 10, 1944, 24 COMP. GEN. 291

MILEAGE; TRANSPORTATION OF DEPENDENTS; LEAVE - RETIREMENT, RELEASE FROM ACTIVE DUTY, ETC., OF NAVY AND NAVAL RESERVE OFFICERS UNDER THE TRAVEL ALLOWANCE PROVISIONS OF SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942, A RETIRED NAVY OFFICER WHO WAS RECALLED TO ACTIVE DUTY SINCE THE DECLARATION OF THE PRESENT EMERGENCY IS ENTITLED, UPON RELIEF FROM ACTIVE DUTY, TO MILEAGE AND TRANSPORTATION OF DEPENDENTS TO HIS HOME OF RECORD AT THE TIME OF BEING CALLED TO ACTIVE DUTY, AND NOT TO THE HOME SELECTED BY HIM. CF. 8 COMP. GEN. 327. A NAVY OFFICER PLACED ON THE RETIRED LIST BUT RETAINED ON ACTIVE DUTY MAY NOT TAKE OR BE GRANTED THE LEAVE WHICH ACCUMULATED TO HIS CREDIT PRIOR TO THE EFFECTIVE DATE OF HIS RETIREMENT. THE FACT THAT A NAVAL RESERVE OFFICER WAS RELEASED FROM ACTIVE DUTY BY BEING PLACED ON THE RETIRED LIST DUE TO PHYSICAL DISABILITY, INSTEAD OF BY A RELEASE IN THE USUAL MANNER, MAY NOT BE CONSIDERED AS CHANGING HIS RIGHTS UNDER THE TRAVEL ALLOWANCE STATUTES TO ENTITLE HIM TO MILEAGE AND TRANSPORTATION OF DEPENDENTS TO A PLACE SELECTED BY HIM RATHER THAN TO HIS HOME AS DESIGNATED BY HIM AT THE TIME HE WAS ORDERED TO ACTIVE DUTY. CF. 8 COMP. GEN. 327. NAVAL RESERVE OFFICERS RELEASED FROM ACTIVE DUTY MAY BE ALLOWED MILEAGE FROM THE LAST DUTY STATION TO THE OFFICIAL RESIDENCE OF RECORD IN THE BUREAU OF NAVAL PERSONNEL AT THE TIME OF CALL TO ACTIVE DUTY, IF MILEAGE IS SO CLAIMED AND TRAVEL IS PERFORMED TO THAT PLACE, EVEN THOUGH WHEN CALLED TO ACTIVE DUTY THE ORDERS WERE ADDRESSED TO THE OFFICIAL RESIDENCE BUT WERE FORWARDED TO AND RECEIVED AT THE PLACE OF EMPLOYMENT, OR, WHERE ADDRESSED TO THE PLACE OF EMPLOYMENT, WERE FORWARDED TO AND RECEIVED AT THE OFFICIAL RESIDENCE. WHERE A NAVAL RESERVE OFFICER UPON BEING COMMISSIONED FROM AN ENLISTED GRADE DESIGNATED AS HIS HOME THE PLACE WHERE HE WAS THEN SERVING RATHER THEN THE PLACE OF HIS HOME OF RECORD, HE MAY BE CONSIDERED AS ENTITLED, UPON RELEASE FROM ACTIVE DUTY, TO MILEAGE AND TRANSPORTATION OF DEPENDENTS TO HIS HOME OF RECORD, PROVIDED HE CERTIFIES THAT HE ERRONEOUSLY DESIGNATED HIS DUTY STATION, OR A NEARBY PLACE, BUT THAT HIS HOME IN FACT WAS AT THE PLACE STATED IN THE CERTIFICATE, AND PROVIDED THE PLACE SO STATED AGREES WITH HIS RESIDENCE OF RECORD IN THE NAVY DEPARTMENT AS SHOWN BY HIS ENLISTMENT PAPERS. NAVAL RESERVE OFFICERS RELEASED FROM ACTIVE DUTY ON OR AFTER OCTOBER 1, 1944--- THE EFFECTIVE DATE OF SECTION 7 OF THE ACT OF SEPTEMBER 7, 1944, AUTHORIZING THE PAYMENT OF MILEAGE IN ADVANCE TO RESERVE OFFICERS FROM THE PLACE OF RELEASE FROM ACTIVE DUTY TO THE PLACE FROM WHICH ORDERED TO ACTIVE DUTY--- MAY BE PAID MILEAGE PRIOR TO PERFORMANCE OF TRAVEL ONLY WHEN CLAIMED TO THE PLACE FROM WHICH ORDERED TO ACTIVE DUTY INSTEAD OF TO THE HOME OF RECORD, AND THEN ONLY IN AN AMOUNT NOT EXCEEDING THAT WHICH WOULD BE PAYABLE, UNDER SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED, FROM THE LAST STATION TO THE HOME OF RECORD. WHERE A NAVAL RESERVE OFFICER ESTABLISHES A HOME AT A PLACE OTHER THAN HIS HOME OF RECORD AT THE TIME OF ASSIGNMENT TO ACTIVE DUTY, AND TRAVELS TO THE NEW HOME FOLLOWING HIS RELEASE FROM ACTIVE DUTY, HE MAY BE PAID MILEAGE FOR TRAVEL ACTUALLY PERFORMED TO SUCH PLACE, NOT IN EXCESS OF MILEAGE COMPUTED ON THE DISTANCE TO HOME OF RECORD AT TIME OF ASSIGNMENT TO ACTIVE DUTY. UNLESS A NAVAL RESERVE OFFICER PERFORMS TRAVEL TO HIS HOME WITHIN ONE YEAR FROM DATE OF RELEASE FROM ACTIVE DUTY, HE MAY NOT BE PAID MILEAGE FOR THE TRAVEL PERFORMED. 8 COMP. GEN. 327, AMPLIFIED. THE REQUIREMENT THAT A NAVY OFFICER RETIRED AND RELIEVED FROM ACTIVE DUTY PERFORM TRAVEL TO HIS HOME WITHIN ONE YEAR IN ORDER TO BE ENTITLED TO MILEAGE AND TRANSPORTATION OF DEPENDENTS MAY NOT BE RELAXED SO AS TO PERMIT AN OFFICER, BECAUSE OF HIS RETIREMENT AND RELIEF FROM ACTIVE DUTY DURING THE PRESENT WAR, TO DELAY TRAVEL FOR A PERIOD NOW INDETERMINATE, AND RECEIVE REIMBURSEMENT WHEN THE TRAVEL IS PERFORMED, IF WITHIN SIX MONTHS FROM THE TERMINATION OF THE WAR.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, OCTOBER 10, 1944:

THERE HAS BEEN RECEIVED YOUR LETTER OF AUGUST 18, 1944, FORWARDING A LETTER FROM THE CHIEF OF NAVAL PERSONNEL, DATED JULY 1, 1944, WITH AN ACCOMPANYING ENDORSEMENT OF THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS, AND REQUESTING DECISION ON VARIOUS QUESTIONS WITH RESPECT TO THE RIGHTS OF RETIRED OFFICERS AND NAVAL RESERVE OFFICERS ON ACTIVE DUTY DURING THE PRESENT WAR UNDER THE CONDITIONS THEREIN STATED.

YOUR QUESTIONS WILL BE STATED AND ANSWERED SERIATIM:

(1) IN 8 COMP. GEN. 327, DATED JANUARY 4, 1929, IT IS HELD THAT AN OFFICER OF THE REGULAR NAVY PLACED ON THE RETIRED LIST AND ORDERED TO HIS HOME IS ENTITLED TO MILEAGE TO THE HOME SELECTED BY HIM, PROVIDED THE TRAVEL IS COMPLETED WITHIN ONE YEAR FROM THE EFFECTIVE DATE OF RETIREMENT. THE NAVY DEPARTMENT IS NOW CONFRONTED WITH THE QUESTION AS TO WHAT TRANSPORTATION MAY BE FURNISHED A RETIRED NAVAL OFFICER WHO WAS RECALLED TO ACTIVE DUTY SINCE THE DECLARATION OF THE EMERGENCY AND IS TO BE DETACHED AND DIRECTED TO PROCEED TO HIS HOME AND TO REGARD HIMSELF RELIEVED FROM ALL ACTIVE DUTY. YOUR DECISION IS REQUESTED AS TO WHETHER THE RULE PRESCRIBED IN 8 COMP. GEN. 327 MAY BE APPLIED TO THE TRAVEL OF SUCH OFFICER AND TO THE TRANSPORTATION OF HIS DEPENDENTS.

THE ACT OF JULY 1, 1918, 40 STAT. 717, PROVIDES THAT DURING THE EXISTENCE OF WAR OR OF A NATIONAL EMERGENCY DECLARED BY THE PRESIDENT TO EXIST, ANY COMMISSIONED OFFICER OF THE NAVY ON THE RETIRED LIST MAY, IN THE DISCRETION OF THE SECRETARY OF THE NAVY, BE ORDERED TO ACTIVE DUTY AT SEA OR ON SHORE. RETIRED OFFICERS, AS ARE RESERVE OFFICERS, ARE REQUIRED TO REPORT THEIR ADDRESS TO WHICH ORDER OR OTHER COMMUNICATIONS MAY BE SENT TO REACH THE OFFICER PROMPTLY. SUCH ADDRESS HAS BEEN RECOGNIZED AS THE PLACE FROM WHICH TRAVEL ALLOWANCES OF RETIRED OFFICERS ARE AUTHORIZED TO BE PAID UPON BEING ORDERED TO ACTIVE DUTY. SEE DECISION OF JULY 28, 1941, B- 17411.

PARAGRAPH 6 OF SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 364, 366, PROVIDES:

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 THE 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 THIS PROVISION OF THE STATUTE IS TO PLACE RETIRED OFFICERS ON A PARITY WITH RESERVE OFFICERS WITH RESPECT TO TRAVEL ALLOWANCES FOR THEMSELVES AND DEPENDENTS WHEN ORDERED TO ACTIVE DUTY AND WHEN RELIEVED FROM ACTIVE DUTY. THEREFORE, A RETIRED NAVAL OFFICER WHO WAS RECALLED TO ACTIVE DUTY SINCE THE DECLARATION OF THE PRESENT EMERGENCY IS ENTITLED TO MILEAGE AND TO TRANSPORTATION OF HIS DEPENDENTS UPON RELIEF FROM ACTIVE DUTY, AND NOT TO THE HOME SELECTED BY HIM. ACCORDINGLY, YOUR SPECIFIC QUESTION IS ANSWERED IN THE NEGATIVE.

(2) IN THE CASE OF AN OFFICER PLACED ON THE RETIRED LIST, DUE TO PHYSICAL DISABILITY WHICH DISQUALIFIED HIM FOR THE PERFORMANCE OF ALL THE DUTIES OF HIS GRADE, BUT WHICH DID NOT DISQUALIFY HIM FOR THE PERFORMANCE OF CERTAIN OTHER DUTIES AND WHO CONSEQUENTLY WAS RETAINED ON ACTIVE DUTY, MAY THE LEAVE WHICH ACCUMULATED TO THE CREDIT OF SUCH OFFICER WHILE ON THE ACTIVE LIST BE GRANTED TO HIM AFTER BEING PLACED ON THE RETIRED LIST, EITHER WHILE ON ACTIVE DUTY OR WHEN HE IS DETACHED AND ORDERED HOME TO BE RELIEVED FROM ACTIVE DUTY?

SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 367, PROVIDES THAT:

* * * RETIRED OFFICERS * * * WHEN ON ACTIVE DUTY STATUS, SHALL HAVE THE SAME PAY AND ALLOWANCE RIGHTS WHILE ON LEAVE OF ABSENCE OR SICK AS OFFICERS ON THE ACTIVE LIST * * *.

SIMILAR AUTHORITY FOR GRANTING LEAVE OF ABSENCE TO RETIRED OFFICERS ORDERED TO ACTIVE DUTY WAS CONTAINED IN THE ACT OF MAY 26, 1928, 45 STAT. 774. PRIOR TO THE 1928 ACT IT HAD BEEN HELD THAT THE GRANTING OF LEAVE OF ABSENCE TO A RETIRED OFFICER ON ACTIVE DUTY STATUS WAS NOT AUTHORIZED. COMP. GEN. 777. WHILE THESE STATUTORY PROVISIONS CONFER ON RETIRED OFFICERS ON ACTIVE DUTY STATUS THE SAME PAY AND ALLOWANCE RIGHTS WHILE ON LEAVE OF ABSENCE OR SICK AS OFFICERS ON THE ACTIVE LIST, SUCH PROVISIONS MAY NOT BE REGARDED AS AUTHORITY TO GRANT TO A RETIRED OFFICER LEAVE WHICH ACCUMULATED TO THE OFFICER PRIOR TO THE EFFECTIVE DATE OF HIS RETIREMENT, AND DO NOT APPEAR TO REQUIRE ANY CHANGE IN THE RULE STATED IN 23 COMP. DEC. 307, WHICH HELD, QUOTING FROM THE SYLLABUS, THAT:

A RETIRED NAVAL OFFICER ASSIGNED TO ACTIVE DUTY IS NOT ENTITLED TO CUMULATIVE LEAVE OF ABSENCE THAT HAD ACCRUED PRIOR TO HIS RETIREMENT, NOTWITHSTANDING THE FACT THAT HIS ASSIGNMENT TO ACTIVE DUTY OCCURRED IMMEDIATELY AFTER HIS RETIREMENT.

THE RETIREMENT OF AN OFFICER EFFECTS A COMPLETE SEVERANCE FROM ACTIVE SERVICE, AND ASSIGNMENT TO ACTIVE DUTY THEREAFTER MUST BE BY COMPETENT ORDERS ASSIGNING HIM TO ACTIVE DUTY AS A RETIRED OFFICER. HIS RIGHTS, BENEFITS AND PRIVILEGES AS AN OFFICER ON THE ACTIVE LIST TERMINATE UPON THE EFFECTIVE DATE OF HIS RETIREMENT, AND WHEN THEREAFTER ASSIGNED TO ACTIVE DUTY HIS RIGHTS ARE GOVERNED BY THE LAWS APPLICABLE TO RETIRED OFFICERS. AS INDICATED BY THE DECISION QUOTED IN PART ABOVE, THE STATUTES HAVE BEEN VIEWED AS CONTEMPLATING THAT THE LEAVE ACCRUING TO AN OFFICER ON THE ACTIVE LIST MAY BE GRANTED AND TAKEN ONLY WHILE THE OFFICER REMAINS IN SUCH STATUS, AND MAY NOT BE GRANTED OR TAKEN AFTER THE EFFECTIVE DATE OF HIS RETIREMENT. FOR THE REASONS STATED, YOUR SECOND QUESTION IS ANSWERED IN THE NEGATIVE.

(3) DOES THE RULE PRESCRIBED IN 8 COMP. GEN. 327, AS MENTIONED IN (1) ABOVE, APPLY TO RESERVE OFFICERS WHO ARE PLACED ON THE RETIRED LIST DUE TO PHYSICAL DISABILITY?

IT WAS HELD IN DECISION OF NOVEMBER 22, 1943, 23 COMP. GEN. 376, 382, WITH RESPECT TO THE QUESTIONS CONSIDERED THEREIN, THAT THE EFFECT OF TRANSFERRING A RESERVE OFFICER TO THE RETIRED LIST IS TO BE REGARDED AS A RELEASE FROM ACTIVE DUTY. ALSO, SEE DECISION OF AUGUST 4, 1943, 23 COMP. GEN. 73. THE PRINCIPLES STATED IN THOSE DECISIONS WOULD APPEAR TO BE APPLICABLE TO THE QUESTION OF A RESERVE OFFICER'S RIGHT TO MILEAGE AND TRANSPORTATION OF DEPENDENTS UPON BEING PLACED ON THE RETIRED LIST AND ORDERED TO HIS HOME. THE STATUTES HAVE PROVIDED FOR MILEAGE AND TRANSPORTATION OF RESERVE OFFICER'S DEPENDENTS WHEN ORDERED TO ACTIVE DUTY AND WHEN RELIEVED FROM ACTIVE DUTY ON THE BASIS THAT HIS HOME IS AN ESTABLISHED PLACE--- THE PLACE DESIGNATED BY HIM AT THE TIME HE WAS ORDERED TO ACTIVE DUTY--- AND THE FACT THAT HIS ACTIVE DUTY STATUS IS TERMINATED BY RETIREMENT, INSTEAD OF A RELEASE FROM ACTIVE DUTY IN THE USUAL MANNER, MAY NOT BE CONSIDERED AS CHANGING HIS RIGHTS TO MILEAGE AND TRANSPORTATION OF DEPENDENTS SO AS TO PERMIT HIM TO ELECT THE PLACE TO WHICH HE MAY BE PAID MILEAGE AND ALLOWED TRANSPORTATION FOR DEPENDENTS UPON BEING PLACED ON THE RETIRED LIST DUE TO PHYSICAL DISABILITY. YOUR SPECIFIC QUESTION, THEREFORE, IS ANSWERED IN THE NEGATIVE.

(4) TO WHICH OF THE FOLLOWING PLACES WILL RESERVE OFFICERS WHEN RELEASED FROM ACTIVE DUTY, IN SOME OF WHOSE CASES THE ORDERS TO ACTIVE DUTY WERE ADDRESSED TO THE OFFICIAL ADDRESS GIVEN IN THE APPLICATION FOR COMMISSION, WHILE OTHERS WERE ADDRESSED TO THE PLACE OF CIVILIAN EMPLOYMENT EVEN THOUGH IT WAS NOT THE OFFICIAL ADDRESS, BUT THE NAVY DEPARTMENT CONSIDERED THAT IT WAS THE MOST DIRECT METHOD OF GETTING THE ORDERS TO SUCH OFFICERS, BE ENTITLED TO TRANSPORTATION:

(A) OFFICIAL RESIDENCE AT TIME OF CALL TO ACTIVE DUTY?

(B) PLACE TO WHICH INITIAL DUTY ORDERS WERE ADDRESSED AND RECEIVED, WHETHER OR NOT IT WAS THE OFFICER'S OFFICIAL ADDRESS OF RECORD?

(C) PLACE AT WHICH INITIAL ACTIVE DUTY ORDERS WERE RECEIVED? (IN THIS CONNECTION PARTICULAR ATTENTION IS INVITED TO THE REMARKS UNDERPARAGRAPH 5 (C) OF THE ENCLOSED LETTER FROM THE CHIEF OF NAVAL PERSONNEL.)

THE REMARKS OF THE CHIEF OF NAVAL PERSONNEL REFERRED TO ARE AS FOLLOWS:

* * * IN SOME CASES ORDERS WERE RECEIVED AT A PLACE OTHER THAN THAT TO WHICH ADDRESSED--- ORDERS ADDRESSED TO OFFICIAL RESIDENCE WERE SOMETIMES FORWARDED AND RECEIVED AT PLACE OF EMPLOYMENT. SOMETIMES ORDERS WERE ADDRESSED TO PLACE OF EMPLOYMENT BUT IN THE MEANTIME WHEN OFFICER LEARNED HE WAS GOING TO RECEIVE A COMMISSION HE RESIGNED AND WENT TO HIS OFFICIAL RESIDENCE, AND ORDERS WERE EVENTUALLY FORWARDED AND RECEIVED THERE.

ARTICLE H-7106 (2) BUREAU OF NAVAL PERSONNEL MANUAL, PROVIDES:

AN OFFICER OF THE NAVAL RESERVE, UPON RELEASE FROM ACTIVE DUTY OR TRAINING DUTY, WITH PAY, IS NOT ENTITLED TO MILEAGE GREATER THAN FROM HIS LAST DUTY STATION TO THE PLACE FROM WHICH ORDERED TO ACTIVE OR TRAINING DUTY; I.E., THE PLACE TO WHICH THEIR ORDERS TO SUCH DUTY WERE ADDRESSED. AND ARTICLE 2506 (A) (2) U.S. NAVAL TRAVEL INSTRUCTIONS, PROVIDES THAT:

AN OFFICER OF THE NAVAL RESERVE UPON RELEASE FROM ACTIVE DUTY OR TRAINING DUTY, WITH PAY, IS NOT ENTITLED TO MILEAGE GREATER THAN THAT FROM HIS LAST DUTY STATION TO HIS HOME OF RECORD IN THE BUREAU OF NAVAL PERSONNEL AT THE TIME OF ENTERING ON SUCH DUTY.

THESE REGULATIONS ARE IN HARMONY WITH THE DECISIONS OF THIS OFFICE. THEY WOULD APPEAR TO COVER THE NORMAL SITUATION WHERE THE ORDERS TO ACTIVE DUTY ARE ADDRESSED TO THE OFFICER'S HOME OF RECORD IN THE BUREAU OF NAVAL PERSONNEL. THE QUESTION INVOLVES A SITUATION WHERE THE OFFICER IS NOT AT THE PLACE DESIGNATED, OR OF RECORD IN THE BUREAU OF PERSONNEL, WHEN ORDERS ARE RECEIVED PLACING HIM ON ACTIVE DUTY. TWO EXCEPTIONAL SITUATIONS ARE REFERRED TO, ONE WHERE ORDERS ADDRESSED TO THE OFFICIAL RESIDENCE WERE FORWARDED AND RECEIVED AT A PLACE WHERE HE WAS EMPLOYED, AND THE REVERSE SITUATION WHERE ORDERS WERE ADDRESSED TO A PLACE OF EMPLOYMENT, BUT WERE FORWARDED AND RECEIVED AT HIS OFFICIAL RESIDENCE. INASMUCH AS THE STATUTES CONTEMPLATE THE FURNISHING OF TRAVEL ALLOWANCES FROM THE LAST DUTY STATION TO THE HOME OF RECORD, THE FACT ORDERS WERE RECEIVED AT AND TRAVEL TO HIS FIRST ACTIVE DUTY STATION WAS FROM SOME OTHER PLACE DOES NOT DEPRIVE HIM OF HIS RIGHT TO TRAVEL ALLOWANCES TO HIS HOME OF RECORD UPON RELIEF FROM ACTIVE DUTY. ACCORDINGLY, THE PARTICULAR GROUP OF RESERVE OFFICERS REFERRED TO MAY UPON RELEASE FROM ACTIVE DUTY BE ALLOWED MILEAGE FROM THE LAST DUTY STATION TO THE OFFICIAL RESIDENCE OF RECORD IN THE BUREAU OF NAVAL PERSONNEL AT TIME OF CALL TO ACTIVE DUTY, IF MILEAGE IS SO CLAIMED AND TRAVEL IS PERFORMED TO THE HOME OF RECORD.

(5) CASES WILL ARISE WHERE APPLICANTS FOR COMMISSIONS, THROUGH INADVERTENCE, GAVE AN ADDRESS WHICH ACTUALLY WAS NOT THEIR HOME, SUCH AS OFFICERS COMMISSIONED FROM ENLISTED GRADES IN THE NAVY, AND THE OTHER SERVICES, WHO GAVE AS THEIR PERMANENT ADDRESS THE PARTICULAR POST WHERE THEY HAPPENED TO BE STATIONED AT THE TIME. YOUR DECISION IS REQUESTED AS TO WHETHER IN SUCH CASES THE OFFICER MAY BE PERMITTED TO CORRECT HIS ADDRESS OF RECORD TO REFLECT THE PLACE WHERE HE ACTUALLY MAINTAINED HIS PERMANENT HOME AT THE TIME OF BEING CALLED TO ACTIVE DUTY?

THE HOME OR PERMANENT RESIDENCE OF A RESERVE OFFICER IS A MATTER OF FACT TO BE DEDUCTED FROM THE CIRCUMSTANCES IN THE INDIVIDUAL CASE. A RESERVE OFFICER MAY NOT SELECT A HOME UPON RELEASE FROM ACTIVE DUTY, NOR MAY HE BE PERMITTED ON HIS OWN INITIATIVE TO CORRECT HIS ADDRESS OF RECORD, IF THE FACTS SHOW SUCH ADDRESS TO BE THE PLACE TO WHICH HE PROPERLY SHOULD BE RETURNED AT GOVERNMENT EXPENSE UPON RELEASE FROM ACTIVE DUTY. THE QUESTION SUGGESTS A SITUATION WHERE A RESERVE OFFICER UPON BEING COMMISSIONED FROM AN ENLISTED GRADE DESIGNATED THE PLACE WHERE HE WAS THEN SERVING AS HIS HOME. THE PLACE OF RESIDENCE OF ENLISTED NAVAL PERSONNEL GENERALLY IS OF RECORD IN THE NAVY DEPARTMENT. IF IN THE SITUATION INDICATED, OR IN A SIMILAR SITUATION, THE OFFICER SHOULD CERTIFY THAT HE ERRONEOUSLY GAVE HIS DUTY STATION, OR A PLACE IN THE VICINITY THEREOF, AS HIS HOME, BUT THAT HIS HOME IN FACT WAS AT THE PLACE STATED IN THE CERTIFICATE AND THE PLACE HE SO INDICATES AGREES WITH HIS RESIDENCE OF RECORD IN THE NAVY DEPARTMENT AS SHOWN BY HIS ENLISTMENT PAPERS, THIS OFFICE WILL NOT BE REQUIRED TO OBJECT TO THE PAYMENT OF MILEAGE AND THE FURNISHING OF TRANSPORTATION OF DEPENDENTS TO THE OFFICER'S HOME AT THE PLACE DESIGNATED BY HIM IN SUCH CERTIFICATE. SEE IN THIS CONNECTION DECISION OF JULY 12, 1944, B 41281, TO THE SECRETARY OF WAR.

(6) IS IT NECESSARY THAT A RESERVE OFFICER RELEASED FROM ACTIVE DUTY ACTUALLY PERFORM THE TRAVEL TO HIS HOME BEFORE MILEAGE MAY BE COLLECTED, OR MAY THE MILEAGE BE PAID TO THE OFFICER CONCERNED AT THE TIME OF HIS DETACHMENT? (APPROVAL OF THE PROCEDURE PERMITTING PAYMENT OF MILEAGE AT TIME OF THE OFFICER'S DETACHMENT WOULD GREATLY SIMPLIFY DEMOBILIZATION AND SAVE AN IMMENSE AMOUNT OF CORRESPONDENCE.) SECTION 7 OF THE ACT OF SEPTEMBER 7, 1944, PUBLIC LAW 421, 58 STAT. 730, PROVIDES:

THE LAST PARAGRAPH OF SECTION 3 OF SUCH ACT ( PAY READJUSTMENT ACT OF 1942) IS HEREBY AMENDED TO READ AS FOLLOWS:

"WHEN MEMBERS OF THE RESERVE FORCES OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT ARE AUTHORIZED BY LAW TO RECEIVE FEDERAL PAY, PAYMENTS MAY INCLUDE THE ENTIRE AMOUNT LAWFULLY ACCRUING TO SUCH PERSONS AS PAY, ALLOWANCES, AND MILEAGE, AND PAY, ALLOWANCES, AND MILEAGE FOR THEIR RETURN HOME MAY BE PAID TO THEM PRIOR TO THEIR DEPARTURE FROM THEIR LAST DUTY STATION INCIDENT TO RELEASE FROM ACTIVE DUTY: PROVIDED, THAT ANY SUCH MILEAGE PAYABLE SHALL BE COMPUTED FROM THE PLACE OF RELEASE TO THE PLACE FROM WHICH ORDERED TO ACTIVE DUTY WITHOUT REGARD TO ACTUAL PERFORMANCE OF TRAVEL.'

SECTION 11 OF SAID ACT, 58 STAT. 731, MAKES THIS PROVISION EFFECTIVE OCTOBER 1, 1944. THE PROVISO OF THE ABOVE-QUOTED SECTION 7 OF THE ACT SPECIFICALLY LIMITS THE PAYMENT OF MILEAGE, WHERE PAID WITHOUT REGARD TO ACTUAL PERFORMANCE OF TRAVEL, FROM THE PLACE OF RELEASE FROM ACTIVE DUTY TO THE PLACE FROM WHICH ORDERED TO ACTIVE DUTY. THIS SECTION OF THE AMENDATORY ACT CANNOT READILY BE RECONCILED WITH SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED BY SECTION 9 OF THE FIRST MENTIONED ACT. HOWEVER, THE SPECIFIC LANGUAGE OF THE PROVISO IN SECTION 7 REQUIRES THAT EFFECT BE GIVEN THERETO IN CASES WHERE MILEAGE IS PAID UNDER THE CONDITIONS STATED IN THAT SECTION. SINCE THE GENERAL PROVISIONS OF SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED, GOVERNING THE PAYMENT OF MILEAGE TO RESERVE OFFICERS ON ACTIVE DUTY, HAVE NOT BEEN CHANGED BY THE AMENDATORY ACT AND THAT SECTION PROVIDES AS HERETOFORE FOR PAYMENT OF MILEAGE TO RESERVE OFFICERS WHEN RELEASED FROM ACTIVE DUTY FROM THE LAST DUTY STATION TO THE HOME OF RECORD, SECTION 7 OF THE AMENDATORY ACT REASONABLY MAY BE VIEWED AS AUTHORIZING PAYMENT OF MILEAGE PRIOR TO PERFORMANCE OF TRAVEL ONLY WHERE THE OFFICER CLAIMS MILEAGE TO THE PLACE FROM WHICH ORDERED TO ACTIVE DUTY, INSTEAD OF TO HIS HOME OF RECORD. HOWEVER, THE OFFICER'S HOME OF RECORD BEING THE PLACE TO WHICH THE MAXIMUM MILEAGE MAY BE ALLOWED UNDER SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED, PAYMENT OF MILEAGE TO THE PLACE FROM WHICH ORDERED TO ACTIVE DUTY MAY NOT, IN ANY CASE, EXCEED THE MILEAGE THAT WOULD BE ALLOWABLE FROM THE OFFICER'S LAST DUTY STATION TO HIS HOME OF RECORD.

REPLYING TO YOUR SPECIFIC QUESTION, YOU ARE ADVISED THAT WHERE RESERVE OFFICERS RELEASED FROM ACTIVE DUTY ON OR AFTER OCTOBER 1, 1944, CLAIM MILEAGE TO THE PLACE FROM WHICH ORDERED TO ACTIVE DUTY, INSTEAD OF TO THE HOME OF RECORD, PAYMENT COMPUTED IN ACCORDANCE WITH THE FOREGOING MAY BE MADE PRIOR TO THE PERFORMANCE OF TRAVEL. WHERE MILEAGE IS CLAIMED TO THE OFFICER'S HOME, REGARDLESS OF WHETHER THE RELEASE FROM ACTIVE DUTY BE PRIOR OR SUBSEQUENT TO OCTOBER 1, 1944, PAYMENT MAY BE MADE ONLY UPON COMPLETION OF TRAVEL BY THE OFFICER TO HIS HOME OF RECORD, OR THE PLACE DESIGNATED BY HIM AS HIS HOME UNDER THE CIRCUMSTANCES DISCUSSED UNDER QUESTION 5 ABOVE, OR THE PLACE WHERE HIS HOME HAS BEEN ESTABLISHED UNDER THE CIRCUMSTANCES HEREINAFTER DISCUSSED UNDER QUESTION 7 (A).

(7) IN THE EVENT QUERY (6) IS ANSWERED IN THE NEGATIVE, YOUR FURTHER DECISION IS REQUESTED ON THE FOLLOWING:

(A) WHEN A RESERVE OFFICER RELEASED FROM ACTIVE DUTY ELECTS TO ESTABLISH A HOME AT A LOCATION OTHER THAN HIS OFFICIAL ADDRESS AT TIME OF ASSIGNMENT TO ACTIVE DUTY, OR AT THE PLACE TO WHICH HIS ORDERS WERE ADDRESSED, OR AT THE PLACE HIS ORDERS WERE RECEIVED, WILL CONSTRUCTIVE TRAVEL TO SUCH NEW HOME ESTABLISH A RIGHT TO MILEAGE?

(B) IS IT NECESSARY THAT A RESERVE OFFICER PERFORM THE TRAVEL TO HIS HOME WITHIN A REASONABLE TIME--- SAY ONE YEAR--- AS IN THE CASE OF REGULAR OFFICERS PLACED ON THE RETIRED LIST AND ORDERED HOME AND RELIEVED OF ALL ACTIVE DUTY, OR MAY HE BE REIMBURSED AT ANY LATER DATE WHEN TRAVEL HAS BEEN PERFORMED?

QUESTION (7) IS NOT SUSCEPTIBLE OF A CATEGORICAL NEGATIVE OR AFFIRMATIVE ANSWER. AS TO SUBQUESTION (A), THE RIGHT TO MILEAGE IS LIMITED UPON RELEASE OF A RESERVE OFFICER FROM ACTIVE DUTY TO A DISTANCE NOT TO EXCEED THAT FROM HIS LAST STATION TO HIS HOME OF RECORD AT THE TIME OF ASSIGNMENT TO ACTIVE DUTY. WHERE TRAVEL IS ACTUALLY PERFORMED TO A PLACE OTHER THAN THE HOME OF RECORD AS INDICATED, THE RIGHT ACCRUES TO MILEAGE FOR THE TRAVEL ACTUALLY PERFORMED, BUT LIMITED TO A DISTANCE NOT IN EXCESS OF THAT TO THE HOME OF RECORD. SEE 19 COMP. GEN. 731. ACCORDINGLY, WHERE AN OFFICER ESTABLISHES A HOME AT A PLACE OTHER THAN HIS OFFICIAL RESIDENCE AT THE TIME OF ASSIGNMENT TO ACTIVE DUTY, HE MAY BE PAID MILEAGE FOR TRAVEL TO SUCH PLACE, NOT IN EXCESS OF MILEAGE COMPUTED ON THE DISTANCE TO HIS HOME OF RECORD AT TIME OF ASSIGNMENT TO ACTIVE DUTY.

IN DECISION OF JANUARY 4, 1929, 8 COMP. GEN. 327, CONSTRUING THE MILEAGE LAW CONTAINED IN SECTION 14 OF THE ACT OF JUNE 10, 1922, 42 STAT. 631, IT WAS HELD, QUOTING FROM THE SYLLABUS, THAT:

WHERE TRAVEL IS PERFORMED WITHIN ONE YEAR OF RETIREMENT, OR AFTER RELIEF FROM ACTIVE DUTY, AN OFFICER OF THE NAVY IS ENTITLED TO MILEAGE UNDER THE ORDER DIRECTING HIM TO PROCEED TO HIS HOME UPON RETIREMENT OR UPON RELIEF FROM ACTIVE DUTY.

STATUTORY RECOGNITION OF THE ONE-YEAR RULE IN CONNECTION WITH TRAVEL OF NAVAL RESERVE OFFICERS IS CONTAINED IN THE ACT OF MARCH 4, 1929, 45 STAT. 1556, AND NO COMPELLING REASON IS PERCEIVED AS TO WHY THE RULE SHOULD BE MODIFIED OR CHANGED AT THIS TIME. ANSWERING SUBQUESTION (B) SPECIFICALLY, YOU ARE ADVISED THAT UNLESS A RESERVE OFFICER PERFORMS TRAVEL TO HIS HOME WITHIN ONE YEAR FROM DATE OF RELEASE FROM ACTIVE DUTY HE MAY NOT BE REIMBURSED FOR THE TRAVEL PERFORMED.

AN ADDITIONAL QUESTION WAS SUBMITTED, BY YOUR LETTER OF SEPTEMBER 7, 1944, AS FOLLOWS:

IN THE FILE OF CORRESPONDENCE TRANSMITTED WITH SAID LETTER OF AUGUST 18, 1944, IT IS POINTED OUT THAT ARTICLES 1871-1 (C) (1), BUREAU OF SUPPLIES AND ACCOUNTS MANUAL, PROVIDES THAT OFFICERS WHO ARE PLACED ON THE RETIRED LIST DURING THE PRESENT WAR ARE ENTITLED TO SHIPMENT OF THEIR HOUSEHOLD EFFECTS FROM THEIR LAST STATION TO THEIR HOME, IF SHIPMENT IS ACCOMPLISHED WITHIN ONE YEAR FROM DATE OF RETIREMENT OR WITHIN SIX MONTHS FOLLOWING TERMINATION OF THE WAR, WHICHEVER IS LATER. YOUR DECISION IS REQUESTED AS TO WHETHER THE SAME RULE, AS SET FORTH IN SAID ARTICLE 1871-1 (C) (1), MAY BE APPLIED TO THE TRAVEL OF AN OFFICER AND TO THE TRANSPORTATION OF HIS DEPENDENTS.

THE RULE THAT TRAVEL MUST BE PERFORMED BY A RETIRED OFFICER TO HIS HOME WITHIN ONE YEAR AFTER DATE OF RETIREMENT OR RELIEF FROM ACTIVE DUTY, IN ORDER TO ENTITLE HIM TO PAYMENT OF MILEAGE, HAS BEEN UNIFORMLY FOLLOWED. SEE 4 COMP. GEN. 954; 8 ID. 327. ALSO, IT HAS BEEN HELD THAT THE ONE-YEAR RULE IS FOR APPLICATION IN CONNECTION WITH THE TRANSPORTATION OF THE DEPENDENTS OF AN OFFICER ORDERED TO PROCEED TO HIS HOME UPON RETIREMENT. 16 COMP. GEN. 228. THE BASIS OF THE REQUIREMENT THAT TRAVEL BE PERFORMED TO THE OFFICER'S HOME WITHIN ONE YEAR FROM DATE OF RETIREMENT OR RELIEF FROM ACTIVE DUTY IS PREDICATED PRIMARILY UPON A DETERMINATION THAT TRAVEL WITHIN ONE YEAR UNDER CIRCUMSTANCES OF RETIREMENT OR RELEASE FROM ACTIVE DUTY IS A REASONABLE TIME. THE FACT THAT AN OFFICER IS RETIRED AND RELIEVED FROM ACTIVE DUTY DURING THE PRESENT WAR DOES NOT APPEAR TO WARRANT A RELAXATION OF THE REQUIREMENT SO AS TO PERMIT THE OFFICER TO DELAY TRAVEL FOR A PERIOD, NOW INDETERMINATE, AND RECEIVE MILEAGE AND TRANSPORTATION OF DEPENDENTS AT SUCH TIME AS THE TRAVEL IS PERFORMED, IF WITHIN SIX MONTHS FROM THE TERMINATION OF THE WAR. THEREFORE, IF TRAVEL TO THE HOME OF THE OFFICER IS NOT COMMENCED WITHIN ONE YEAR FROM THE DATE OF HIS RETIREMENT OR RELIEF FROM ACTIVE DUTY, THE PAYMENT OF MILEAGE AND THE FURNISHING OF TRANSPORTATION FOR DEPENDENTS OR PAYMENT OF THE COMMERCIAL COST OF THEIR TRANSPORTATION, IS NOT AUTHORIZED.