B-4519, AUGUST 17, 1939, 19 COMP. GEN. 225

B-4519: Aug 17, 1939

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THE LAW DOES NOT AUTHORIZE TRAVEL ALLOWANCE ON TRANSFER AT OTHER THAN EXPIRATION OF ENLISTMENT AS EXTENDED WHERE THE MAN WAS QUALIFIED FOR TRANSFER TO THE FLEET RESERVE WHEN THE EXTENSION OF ENLISTMENT BECAME EFFECTIVE AS TO SUGGEST THERE WAS IN FACT NO INTENTION TO SERVE A SUBSTANTIAL PORTION OF THE EXTENSION. BASED UPON THAT EXTENSION YOU WERE PAID TRAVEL ALLOWANCE IN THE AMOUNT OF $145.10. YOU APPLIED FOR TRANSFER TO THE FLEET RESERVE AND YOUR APPLICATION WAS APPROVED TO BECOME EFFECTIVE NOT EARLIER THAN OCTOBER 28. YOUR TRANSFER WAS ACCOMPLISHED ON NOVEMBER 2. THE SETTLEMENT STATED AS REASONS FOR DISALLOWING YOUR CLAIM THAT YOUR TRANSFER TO THE FLEET RESERVE WAS FOR YOUR OWN CONVENIENCE AND BY WAY OF FAVOR.

B-4519, AUGUST 17, 1939, 19 COMP. GEN. 225

TRAVEL ALLOWANCE - TRANSFER TO FLEET RESERVE SOON AFTER EXTENSION OF ENLISTMENT ALTHOUGH THE LAW ENTITLES A NAVY ENLISTED MAN TO TRANSFER TO THE FLEET RESERVE AT ANY TIME AFTER BECOMING QUALIFIED FOR TRANSFER, THE LAW DOES NOT AUTHORIZE TRAVEL ALLOWANCE ON TRANSFER AT OTHER THAN EXPIRATION OF ENLISTMENT AS EXTENDED WHERE THE MAN WAS QUALIFIED FOR TRANSFER TO THE FLEET RESERVE WHEN THE EXTENSION OF ENLISTMENT BECAME EFFECTIVE AS TO SUGGEST THERE WAS IN FACT NO INTENTION TO SERVE A SUBSTANTIAL PORTION OF THE EXTENSION.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO BLANCHARD BALDWIN, AUGUST 17, 1939:

THERE HAS BEEN RECEIVED YOUR LETTER OF MAY 25, 1939, REQUESTING REVIEW OF SETTLEMENT DISALLOWING YOUR CLAIM FOR TRAVEL ALLOWANCE BASED UPON YOUR TRANSFER TO THE FLEET RESERVE ON NOVEMBER 2, 1938.

THE RECORDS SHOW THAT YOUR EXTENSION OF ENLISTMENT BECAME EFFECTIVE ON SEPTEMBER 6, 1938, AND BASED UPON THAT EXTENSION YOU WERE PAID TRAVEL ALLOWANCE IN THE AMOUNT OF $145.10. ON OCTOBER 4, 1938, LESS THAN 1 MONTH FROM THE EFFECTIVE DATE OF YOUR EXTENSION OF ENLISTMENT, YOU APPLIED FOR TRANSFER TO THE FLEET RESERVE AND YOUR APPLICATION WAS APPROVED TO BECOME EFFECTIVE NOT EARLIER THAN OCTOBER 28, 1938. YOUR TRANSFER WAS ACCOMPLISHED ON NOVEMBER 2, 1938. THE SETTLEMENT STATED AS REASONS FOR DISALLOWING YOUR CLAIM THAT YOUR TRANSFER TO THE FLEET RESERVE WAS FOR YOUR OWN CONVENIENCE AND BY WAY OF FAVOR. YOU SEEM TO CONTEND THAT SINCE YOU HAD A LEGAL RIGHT TO TRANSFER TO THE FLEET RESERVE AT THAT TIME YOU ARE ENTITLED TO TRAVEL ALLOWANCE BY REASON THEREOF. YOUR RIGHT TO TRANSFER TO THE FLEET RESERVE AT THAT TIME IS NOT QUESTIONED, BUT THAT FACT DOES NOT DETERMINE YOUR RIGHT TO TRAVEL ALLOWANCE BASED ON THE TRANSFER.

THE ACT OF SEPTEMBER 22, 1922, 42 STAT. 1021, DOES NOT EXPRESSLY PROVIDE THAT UPON TRANSFER TO THE FLEET RESERVE AN ENLISTED MAN SHALL BE ENTITLED TO TRAVEL ALLOWANCE. HOWEVER, BY REASON OF THE FACT THAT THE TRANSFER OF AN ENLISTED MAN AT THE EXPIRATION OF HIS ENLISTMENT, IF NOT CONTINUED ON ACTIVE DUTY, IS THE EQUIVALENT OF A DISCHARGE UPON THE EXPIRATION OF AN ENLISTMENT TRAVEL ALLOWANCE HAS BEEN AUTHORIZED. ALSO, RIGHT HAS BEEN RECOGNIZED TO TRAVEL ALLOWANCE AT THE TIME OF TRANSFER TO THE FLEET RESERVE AND RELEASE FROM ACTIVE DUTY AT A TIME OTHER THAN EXPIRATION OF ENLISTMENT, PROVIDING CONDITIONS DO NOT EXIST WHICH WOULD PROHIBIT PAYMENT OF TRAVEL ALLOWANCE TO MEN DISCHARGED FROM THE NAVY AT OTHER THAN EXPIRATION OF ENLISTMENT. THE REGULATIONS, NAVY TRAVEL INSTRUCTIONS, ENUMERATE CONDITIONS IN WHICH TRAVEL ALLOWANCE IS NOT PAYABLE ON DISCHARGE, ONE OF WHICH IS A DISCHARGE "FOR THE CONVENIENCE OF THE MAN.' THE RECORDS SHOW YOU HAD COMPLETED 20 YEARS' SERVICE FOR PURPOSES OF TRANSFER TO THE FLEET RESERVE PRIOR TO THE DATE THE EXTENSION OF YOUR ENLISTMENT BECAME EFFECTIVE. YOU AGREED TO EXTEND YOUR ENLISTMENT FOR 3 YEARS FROM ITS EXPIRATION, SEPTEMBER 5, 1938. WITHIN 1 MONTH AFTER THE EXTENSION BECAME EFFECTIVE YOU REQUESTED A TRANSFER TO THE FLEET RESERVE, WHICH REQUEST WAS APPROVED AND YOU WERE TRANSFERRED ON NOVEMBER 2, 1938, AFTER ONLY 57 DAYS' SERVICE IN THE EXTENDED ENLISTMENT.

A MAN DISCHARGED PRIOR TO EXPIRATION OF HIS ENLISTMENT FOR HIS OWN CONVENIENCE IS NOT ENTITLED TO TRAVEL ALLOWANCE. THE QUESTION WHETHER A MAN IS ACTUALLY DISCHARGED FOR HIS OWN CONVENIENCE IS A MATTER TO BE DETERMINED BY THE CIRCUMSTANCES IN EACH CASE. SINCE YOU WERE QUALIFIED FOR TRANSFER TO THE FLEET RESERVE ON THE DATE YOUR ENLISTMENT EXPIRED, THE FACT THAT WITHIN 1 MONTH AFTER THE EXTENSION BECAME EFFECTIVE YOU REQUESTED TRANSFER TO THE FLEET RESERVE SUGGESTS RATHER STRONGLY THAT THE EXTENSION OF ENLISTMENT WAS NOT BONA FIDE. ALTHOUGH THE LAW ENTITLES A MAN TO TRANSFER TO THE FLEET RESERVE AT ANY TIME AFTER BECOMING QUALIFIED FOR TRANSFER, THE LAW DOES NOT AUTHORIZE TRAVEL ALLOWANCE BASED ON TRANSFER AT OTHER THAN EXPIRATION OF ENLISTMENT AS EXTENDED WHERE THE MAN WAS QUALIFIED FOR TRANSFER WHEN THE EXTENSION OF ENLISTMENT BECAME EFFECTIVE AND THE REQUEST FOR TRANSFER IS MADE SO SOON AFTER THE EXTENSION BECOMES EFFECTIVE AS TO SUGGEST THERE WAS IN FACT NO INTENTION TO SERVE A SUBSTANTIAL PORTION OF THE EXTENSION. UPON REVIEW, THE SETTLEMENT IS SUSTAINED.