B-50868, JANUARY 5, 1946, 25 COMP. GEN. 493

B-50868, JANUARY 5, 1946, 25 COMP. GEN. 493

MILEAGE; TRANSPORTATION OF DEPENDENTS; SHIPMENT OF HOUSEHOLD EFFECTS - RETIRED OFFICERS RECALLED TO ACTIVE DUTY THE RULE IN 24 COMP. GEN. 291, THAT MILEAGE AND TRANSPORTATION OF DEPENDENTS OF RETIRED OFFICERS RECALLED TO ACTIVE DUTY ARE RESTRICTED, UPON RELEASE FROM ACTIVE DUTY, TO THE HOME OF RECORD--- AS DISTINGUISHED FROM A HOME OF SELECTION - IS FOR APPLICATION OF SUCH OFFICERS WHO HAVE BEEN FURNISHED SUCH BENEFITS TO A HOME OF THEIR SELECTION UPON RETIREMENT, AND DOES NOT DEPRIVE RETIRED OFFICERS RECALLED TO ACTIVE DUTY OF THE RIGHTS TO MILEAGE, TRANSPORTATION OF DEPENDENTS, AND SHIPMENT OF HOUSEHOLD EFFECTS TO THE HOME SELECTED BY THEM, WHERE, BY REASON OF THEIR RECALL TO ACTIVE DUTY, TRAVEL THERETO HAD NOT BEEN PERFORMED WITHIN THE SPECIFIED TIME LIMIT (25 COMP. GEN. 6).

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF WAR, JANUARY 5, 1946;

THERE HAS BEEN CONSIDERED YOUR LETTER OF JULY 3, 1945, AS FOLLOWS:

IT HAS BEEN BROUGHT TO MY ATTENTION THAT THE HOLDING IN YOUR DECISION OF 10 OCTOBER 1944, 24 COMP. GEN. 291, MAY POSSIBLY BE VIEWED IN SUCH A MANNER AS TO DEPRIVE A LARGE NUMBER OF RETIRED OFFICERS OF THE ARMY OF RIGHTS TO WHICH THEY ARE EQUITABLY ENTITLED UNDER EXISTING LAW.

IN REPLY TO THE FIRST QUESTION SUBMITTED BY THE NAVY DEPARTMENT QUOTED IN THAT DECISION, IT WAS STATED THAT IN VIEW OF THE PROVISIONS OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 366, A RETIRED OFFICER RECALLED TO ACTIVE DUTY DURING THE PRESENT EMERGENCY IS ENTITLED TO MILEAGE AND TRANSPORTATION OF DEPENDENTS UPON RELIEF FROM ACTIVE DUTY TO HIS HOME OF RECORD AT THE TIME OF BEING CALLED TO ACTIVE DUTY, AND NOT TO A HOME WHICH MAY BE SELECTED BY HIM AT THE TIME OF REVERTING TO A RETIRED STATUS. THE VIEWS OF THE WAR DEPARTMENT ARE IN ACCORD WITH THAT RULING IN SO FAR AS IT PERTAINS TO RETIRED OFFICERS RECALLED TO ACTIVE DUTY AND LATER REVERTING TO A RETIRED STATUS, WHEN SUCH OFFICERS WITHIN ONE YEAR FROM THE DATE OF THEIR FIRST ENTRANCE INTO A RETIRED STATUS, HAVE TRAVELED TO A HOME SELECTED BY THEM. HOWEVER, THE BROAD LANGUAGE OF YOUR DECISION IN QUESTION IS SUSCEPTIBLE OF THE POSSIBLE VIEW, THAT IT ALSO COVERS THE SITUATION WHERE UPON RETIREMENT OFFICERS ARE IMMEDIATELY RECALLED TO ACTIVE DUTY WITHOUT INTERRUPTION OF ACTIVE SERVICE, THUS HAVING NO OPPORTUNITY OF TRAVELING OR TRANSPORTING THEIR DEPENDENTS AND HOUSEHOLD GOODS TO A SELECTED HOME, OR WHERE SUCH OFFICERS ARE RECALLED TO ACTIVE DUTY WITHIN ONE YEAR FROM THE DATE OF RETIREMENT WITHOUT HAVING EXERCISED THEIR RIGHT TO TRAVEL OR TRANSPORTATION OF THEIR DEPENDENTS AND HOUSEHOLD GOODS TO A SELECTED HOME.

UNDER DECISIONS OF YOUR OFFICE IT IS WELL ESTABLISHED THAT AN OFFICER RETIRED UNDER COMPETENT ORDERS IS ENTITLED TO MILEAGE FOR TRAVEL AND TO TRANSPORTATION OF HIS DEPENDENTS AND HOUSEHOLD EFFECTS TO A HOME SELECTED BY HIM PROVIDED SUCH TRAVEL IS PERFORMED WITHIN ONE YEAR FROM DATE OF RETIREMENT. SEE 8 COMP. GEN. 327. OBVIOUSLY, THE SUGGESTED LITERAL INTERPRETATION OF YOUR DECISION IN 24 COMP. GEN. 291, SUPRA, WOULD DENY A RETIRED OFFICER UNDER THE CIRCUMSTANCES ABOVE DISCUSSED THE RIGHT OF ALLOWANCES FOR TRAVEL FOR HIMSELF AND THE TRANSPORTATION OF HIS DEPENDENTS AND HOUSEHOLD GOODS TO A HOME SELECTED BY HIM UPON REVERTING TO THE RETIRED LIST. WHILE SUCH A CONCLUSION IS NOT BELIEVED REQUIRED, OR TO HAVE BEEN INTENDED BY YOU, THE WAR DEPARTMENT IS RELUCTANT TO PROMULGATE DEFINITE REGULATIONS IN THE PREMISES WITHOUT A FURTHER EXPRESSION OF THE VIEW OF YOUR OFFICE AS TO THE SCOPE OF THE DECISION AS APPLIED TO THE SITUATION OF RETIRED OFFICERS HEREIN DESCRIBED. AS UNDERSTOOD BY THE WAR DEPARTMENT, THE REQUIREMENT THAT TRAVEL BE PERFORMED WITHIN ONE YEAR FROM THE DATE OF RETIREMENT UNDER RULINGS OF YOUR OFFICE IS BASED UPON THE PRINCIPLE THAT A MILITARY ORDER MUST BE OBEYED WITHIN A REASONABLE TIME, AND THAT ONE YEAR IS A REASONABLE TIME WITHIN WHICH ORDERS FOR SUCH TRAVEL MUST BE COMPLIED WITH. IN THOSE INSTANCES WHERE RETIRED OFFICERS ARE IMMEDIATELY RECALLED TO ACTIVE DUTY AFTER RETIREMENT, TRAVEL TO A HOME SELECTED BY THEM CANNOT BE PERFORMED, AND THE REASON FOR THE APPLICATION OF THE "ONE YEAR RULE" WOULD NOT APPEAR TO EXIST. LIKEWISE, WHERE RETIRED OFFICERS ARE RECALLED TO ACTIVE DUTY AFTER HAVING BEEN ON THE RETIRED LIST, BUT BEFORE THEY HAVE EXERCISED THE ELECTION WITHIN ONE YEAR OF TRAVELING TO A HOME OF THEIR SELECTION, IT WOULD APPEAR THAT THE APPLICATION OF THE RULE OF ALLOWING TRAVEL OF THEMSELVES AND DEPENDENTS, AND THE SHIPMENT OF HOUSEHOLD EFFECTS ONLY TO A HOME OF RECORD WHEN THEY ENTERED THE SERVICE, WOULD WORK AN INJUSTICE NOT IN HARMONY WITH THE UNDERLYING PRINCIPLE OF DECISIONS OF YOUR OFFICE DEALING WITH THE GENERAL QUESTION AT ISSUE.

IN VIEW OF THE FOREGOING, IT IS REQUESTED THAT YOUR DECISION IN 24 COMP. GEN. 291, SUPRA, BE CLARIFIED IN SO FAR AS IT PERTAINS TO THE RIGHTS OF RETIRED OFFICERS IN CONNECTION WITH MILEAGE FOR THEMSELVES AND TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS TO HOME SELECTED BY THEM IN THE CASE OF (1) RETIRED OFFICERS WHO AFTER RETIREMENT ARE IMMEDIATELY RECALLED TO ACTIVE DUTY WITHOUT INTERRUPTION OF ACTIVE SERVICE, THUS HAVING NO OPPORTUNITY TO SELECT A HOME, AND (2) RETIRED OFFICERS WHO ARE RECALLED TO ACTIVE DUTY WITHIN ONE YEAR AFTER RETIREMENT WHO HAVE NOT EXERCISED THE RIGHT TO SELECT A HOME AFTER RETIREMENT.

IT IS SETTLED THAT PAYMENT OF MILEAGE, THE FURNISHING OF TRANSPORTATION OF DEPENDENTS, AND SHIPMENT OF HOUSEHOLD GOODS ARE AUTHORIZED TO THE HOME SELECTED BY OFFICERS UPON THEIR RETIREMENT FROM THE SERVICE PROVIDED THE TRAVEL TO SUCH HOME IS PERFORMED WITHIN ONE YEAR AFTER THE DATE OF RETIREMENT. SEE 8 COMP. GEN. 327, AND CASES CITED THEREIN. WHILE, AS POINTED OUT IN YOUR LETTER, THE LANGUAGE USED IN THE DECISION OF OCTOBER 10, 1944, 24 COMP. GEN. 291, IS SUSCEPTIBLE OF THE VIEW THAT SUCH BENEFITS ARE RESTRICTED TO THE "HOME OF RECORD" OF ALL RETIRED OFFICERS SUBSEQUENTLY RECALLED TO ACTIVE DUTY, REGARDLESS OF THE CIRCUMSTANCES SURROUNDING THEIR RECALL TO ACTIVE DUTY, SUCH WAS NOT THE CONTEMPLATED EFFECT OF THE DECISION. RATHER, THE STATEMENTS CONTAINED THEREIN WERE IN CONSONANCE WITH THE ESTABLISHED RULE RESPECTING THE RIGHTS OF RETIRED OFFICERS WHO, HAVING BEEN FURNISHED MILEAGE, TRANSPORTATION OF DEPENDENTS, ETC., TO A HOME OF THEIR SELECTION UPON RETIREMENT, SUBSEQUENTLY ARE RECALLED TO ACTIVE DUTY. IN SUCH CASES, IT LONG HAS BEEN HELD THAT THE BENEFITS MENTIONED ARE LIMITED TO THE HOME OR ADDRESS OF RECORD AT THE TIME OF RECALL TO ACTIVE DUTY, AND IT WAS INSTANCES OF THAT CHARACTER TO WHICH THE STATEMENTS WERE DIRECTED.

MANIFESTLY, THE APPLICATION OF THE RULE STATED IN THE SAID DECISION OF OCTOBER 10, 1944, TO ALL RETIRED OFFICERS RECALLED TO ACTIVE DUTY WOULD RESULT IN INEQUITIES RESPECTING THE RIGHTS OF OFFICERS RETIRED AND IMMEDIATELY RECALLED TO ACTIVE DUTY AND THOSE RETIRED OFFICERS RECALLED TO ACTIVE DUTY PRIOR TO THE EXPIRATION OF ONE YEAR FROM THE DATE OF THEIR RETIREMENT AND BEFORE THEY HAD SELECTED THEIR HOME TO WHICH THEY DESIRED TO TRAVEL UPON RETIREMENT SINCE, IN THE FIRST CLASS OF CASES, THE OFFICERS, BY ADMINISTRATIVE ACTION, WOULD HAVE BEEN DENIED THE OPPORTUNITY OF SELECTING A HOME AND, IN THE LATTER CASES, THE PERIOD WITHIN WHICH RETIRED OFFICERS ARE ENTITLED TO SELECT THEIR HOMES WOULD HAVE BEEN TERMINATED PREMATURELY. NO SUCH CHANGE IN THE SETTLED RIGHTS OF RETIRED OFFICERS WAS CONTEMPLATED AND YOU ARE ADVISED THAT NOTHING CONTAINED IN THE SAID DECISION OF OCTOBER 10, 1944, IS TO BE VIEWED AS DISTURBING IN ANY WAY THE RIGHT OF RETIRED OFFICERS RECALLED TO ACTIVE DUTY TO MILEAGE, TRANSPORTATION OF DEPENDENTS, AND SHIPMENT OF HOUSEHOLD GOODS TO THE HOME SELECTED BY THEM, WHERE, BY REASON OF THEIR RECALL TO ACTIVE DUTY, TRAVEL THERETO HAD NOT BEEN PERFORMED WITHIN THE SPECIFIED TIME LIMIT.

WITH RESPECT TO THE PERIOD DURING WHICH THE TRAVEL MUST BE PERFORMED IN ORDER TO ENTITLE A RETIRED OFFICER TO THE BENEFITS ABOVE MENTIONED, YOUR ATTENTION IS INVITED TO DECISION OF JULY 2, 1945, B-50296, 25 COMP. GEN. 6, IN WHICH IT WAS HELD THAT, IN VIEW OF THE EXISTING TRANSPORTATION, HOUSING, ETC., CONDITIONS, AND PROVIDED ARMY REGULATIONS ARE APPROPRIATELY AMENDED, OTHERWISE PROPER PAYMENTS FOR MILEAGE, TRANSPORTATION OF DEPENDENTS, AND SHIPMENT OF HOUSEHOLD GOODS ARE AUTHORIZED FOR OFFICERS OF THE ARMY RETIRED OR RELIEVED FROM ACTIVE DUTY IF TRAVEL BE PERFORMED WITHIN ONE YEAR AFTER THE TERMINATION OF THE PRESENT WAR OR WITHIN ONE YEAR AFTER THE DATE OF RETIREMENT OR RELIEF FROM ACTIVE DUTY, WHICHEVER IS LATER.