B-80774, DECEMBER 6, 1948, 28 COMP. GEN. 343

B-80774, DECEMBER 6, 1948, 28 COMP. GEN. 343

PAY - ACTIVE DUTY - ARMY RESERVE OFFICERS - TRAVEL BY PRIVATELY OWNED CONVEYANCE FROM HOME TO FIRST DUTY STATION THIS OFFICE WILL BE REQUIRED TO OBJECT TO PAYMENTS OF ACTIVE-DUTY PAY AND ALLOWANCES HERETOFORE AND HEREAFTER MADE TO RESERVE OFFICERS OF THE ARMY CALLED OR RECALLED TO EXTENDED ACTIVE DUTY FROM A CIVILIAN STATUS, PURSUANT TO SECTION 37A OF THE NATIONAL DEFENSE ACT OF 1916, AS AMENDED, UNDER ORDERS AUTHORIZING TRAVEL BY PRIVATELY OWNED AUTOMOBILE FROM HOME TO FIRST DUTY STATION TO THE EXTENT THAT SUCH PAYMENTS EXCEED THOSE FOR THE NECESSARY TRAVEL TIME BY RAIL OVER THE SHORTEST USUALLY TRAVELED ROUTE TO THE DUTY STATION REQUIRED TO COMPLY WITH THE ACTIVE DUTY ORDERS. 20 COMP. GEN. 309, AMPLIFIED.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE ARMY, DECEMBER 6, 1948:

THERE HAS BEEN CONSIDERED YOUR LETTER OF OCTOBER 7, 1948, IN WHICH REFERENCE IS MADE TO A DEPARTMENT OF THE ARMY RADIO MESSAGE DATED AUGUST 5, 1948, TO ALL MAJOR COMMANDS, GRANTING AUTHORITY TO INCLUDE AN AUTHORIZATION IN ORDERS RECALLING (OR CALLING) OFFICERS TO EXTENDED ACTIVE DUTY FROM CIVILIAN STATUS (AS DISTINGUISHED FROM ACTIVE DUTY FOR TRAINING) FOR TRAVEL BY PRIVATELY OWNED CONVEYANCE FROM HOME TO FIRST DUTY STATION. IT IS STATED THAT IT IS INTENDED THAT SUCH ORDERS PLACE THE OFFICERS CONCERNED ON ACTIVE DUTY FOR ALL PURPOSES, INCLUDING THE RIGHT TO ACTIVE DUTY PAY AND ALLOWANCES FOR THE TIME REQUIRED FOR TRAVEL BY PRIVATELY OWNED AUTOMOBILE FROM HOME TO FIRST DUTY FOR TRAVEL BY PRIVATELY OWNED AUTOMOBILE FROM HOME TO FIRST DUTY STATION, SUBJECT TO THE PROVISIONS OF ARMY REGULATIONS 605-180, DATED JANUARY 22, 1947, AND DECISION IS REQUESTED AS TO WHETHER THIS OFFICE WILL BE REQUIRED TO OBJECT TO PAYMENTS OF ACTIVE DUTY PAY AND ALLOWANCES HERETOFORE MADE, IF ANY, OR HEREAFTER MADE COVERING THE PERIOD REQUIRED TO PERFORM TRAVEL IN THE MANNER INDICATED FROM HOME TO FIRST DUTY STATION. IN THAT CONNECTION, IT IS EXPLAINED THAT THE ADOPTION OF SUCH POLICY BY THE DEPARTMENT OF THE ARMY IS CONSIDERED DESIRABLE FOR THE REASON THAT THOSE OFFICERS WHO POSSESS AUTOMOBILES WHEN ORDERED TO EXTENDED ACTIVE DUTY WILL REQUIRE THEM FOR PERSONAL TRANSPORTATION AT THEIR PERMANENT STATIONS. IT IS SUGGESTED THAT SINCE MOST OF THE OFFICERS CONCERNED FORMERLY SERVED ON EXTENDED ACTIVE DUTY AND WERE THEN PERMITTED DETACHED SERVICE UNDER THE PROVISIONS OF AR 605-180 IN CONNECTION WITH PERMANENT CHANGE OF STATION ORDERS TO ENABLE THEM TO TRAVEL BY PRIVATELY OWNED AUTOMOBILE, SUCH AUTHORITY SHOULD BE EXTENDED TO TRAVEL PERFORMED FROM HOME TO FIRST DUTY STATION ON BEING ORDERED TO ACTIVE DUTY ON THE BASIS THAT THE CHANGE FROM HOME TO FIRST DUTY STATION SIMILARLY IS A PERMANENT CHANGE OF STATION.

THE CONCLUSION THAT THE CHANGE FROM HOME TO FIRST DUTY STATION IS A PERMANENT CHANGE OF STATION IS STATED TO BE BASED UPON THE FOLLOWING PROVISIONS OF THE SIXTH PARAGRAPH OF SECTION 102 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 364, 366:

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 THIS 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 FOREGOING PROVISIONS OF THE STATUTE RELATE ONLY TO THE RIGHT TO TRANSPORTATION FOR DEPENDENTS. 22 COMP. GEN. 645. THE RULE IS WELL ESTABLISHED THAT THE HOME OF AN OFFICER OF THE ARMY IS NOT A MILITARY STATION UNLESS EXPRESSLY DESIGNATED TO BE SUCH BY STATUTE. UNITED STATES V. PHISTERER, 94 U.S. 219. ALSO SEE 26 COMP. GEN. 18; ID. 557, AND CASES THEREIN CITED. THEREFORE, TRAVEL BY AN OFFICER FROM HIS HOME TO FIRST DUTY STATION MAY NOT BE CONSIDERED A "PERMANENT CHANGE OF STATION" WITHIN THE USUALLY ACCEPTED MEANING OF THAT PHRASE.

SECTION 38 OF THE NATIONAL DEFENSE ACT OF JUNE 3, 1916, 39 STAT. 190, PROVIDED THAT MEMBERS OF THE OFFICERS' RESERVE CORPS WERE ENTITLED, WHEN ORDERED TO ACTIVE DUTY, TO PAY AND ALLOWANCES "FROM THE DATE UPON WHICH THEY SHALL BE REQUIRED BY THE TERMS OF THEIR ORDERS TO OBEY THE SAME.' UNDER THAT AUTHORITY IT WAS HELD THAT A RESERVE OFFICER'S RIGHT TO ACTIVE DUTY PAY AND ALLOWANCES COMMENCED ON THE DATE ON WHICH IT WAS NECESSARY FOR HIM TO START FROM HIS HOME IN ORDER TO REPORT AT HIS DUTY STATION AT THE REQUIRED TIME WHEN TRAVELING BY THE SHORTEST USUALLY TRAVELED ROUTE. 24 COMP. DEC. 331. UNDER THE PROVISIONS OF THE ACT OF JUNE 4, 1920, 41 STAT. 759, 775, AN ACT TO AMEND THE NATIONAL DEFENSE ACT OF JUNE 3, 1916, SECTION 38 OF THE SAID ACT OF JUNE 3, 1916, WAS DELETED, AND SECTION 37A, 40 STAT. 776, PROVIDED THAT "A RESERVE OFFICER SHALL NOT BE ENTITLED TO PAY AND ALLOWANCES EXCEPT WHEN ON ACTIVE DUTY," AND THAT HE SHALL BE ENTITLED TO "MILEAGE FROM HIS HOME TO HIS FIRST STATION AND FROM HIS LAST STATION TO HIS HOME.' ALTHOUGH NOT CONTAINING LANGUAGE EXPRESSLY INCLUDING THE PERIOD OF TRAVEL FROM HOME TO DUTY STATION IN THE AUTHORIZATION FOR ACTIVE DUTY PAY AND ALLOWANCES AS WAS CONTAINED IN SECTION 38 OF THE ACT OF JUNE 3, 1916, SUCH PROVISIONS HAVE BEEN CONSTRUED AS AUTHORIZING THE PAYMENT TO MEMBERS OF THE OFFICERS' RESERVE CORPS, AND TO OTHER OFFICERS ENTITLED TO ACTIVE DUTY PAY AND ALLOWANCES ON A BASIS SIMILAR TO THAT AUTHORIZED FOR MEMBERS OF THE OFFICERS' RESERVE CORPS, OF ACTIVE DUTY PAY AND ALLOWANCES TO INCLUDE NECESSARY TRAVEL TIME FROM HOME TO FIRST DUTY STATION VIA THE SHORTEST USUALLY TRAVELED ROUTE ON THE SAME BASIS AS THAT AUTHORIZED UNDER THE 1916 ACT. 8 COMP. GEN. 69.

SECTION 2 OF THE ACT OF MARCH 25, 1948, 62 STAT. 87, AMENDED SECTION 37A OF THE NATIONAL DEFENSE ACT OF 1916, AS AMENDED, BY DELETING THEREFROM THE SENTENCE "A RESERVE OFFICER SHALL NOT BE ENTITLED TO PAY AND ALLOWANCES EXCEPT WHEN ON ACTIVE DUTY.' HOWEVER, SUCH AMENDMENT DOES NOT CHANGE PRIOR LAW INSOFAR AS THE RIGHT OF RESERVE OFFICERS TO ACTIVE DUTY PAY AND ALLOWANCES IS CONCERNED, THEIR RIGHT TO SUCH PAY AND ALLOWANCES BEING PROVIDED FOR BY SECTION 14 OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED BY SECTION 3 OF THE ACT OF MARCH 25, 1948, SUPRA, 62 STAT. 88, WHICH PROVIDES THAT OFFICERS OF THE RESERVE COMPONENTS OF THE ARMY SHALL RECEIVE PAY AND ALLOWANCES AS ARE AUTHORIZED FOR PERSONS OF CORRESPONDING GRADE AND LENGTH OF SERVICE IN THE REGULAR ARMY ,WHEN ON ACTIVE DUTY IN THE SERVICE OF THE UNITED STATES.'

IN DECISION OF DECEMBER 12, 1940, B-13542 (20 COMP. GEN. 309), IT WAS STATED THAT AN ARMY RESERVE OFFICER IS ENTITLED TO PAY AND ALLOWANCES FOR THE NECESSARY TRAVEL TIME BY RAIL OVER THE SHORTEST USUALLY TRAVELED ROUTE TO THE DUTY STATION. IN THE PAPERS ACCOMPANYING YOUR SUBMISSION IT IS STATED THAT THE DEPARTMENT OF THE ARMY IS COGNIZANT OF THE LIMITATION STATED IN THE SAID DECISION, BUT THAT SINCE SUCH LIMITATION DOES NOT APPEAR IN OTHER DECISIONS IT IS NOT KNOWN WHETHER IT WAS INTENDED FOR GENERAL APPLICATION OR FOR APPLICATION ONLY TO THE FACTS OF THAT SPECIFIC CASE.

THE REQUIREMENT THAT TRAVEL BE PERFORMED BY THE SHORTEST USUALLY TRAVELED ROUTE CONTEMPLATES TRAVEL BY THAT MEANS OF TRANSPORTATION AVAILABLE TO THE PUBLIC WHICH MAY BE USED MOST ADVANTAGEOUSLY IN THE INTEREST OF THE GOVERNMENT. GENERALLY, THE USE OF RAIL TRANSPORTATION HAS BEEN CONSIDERED MOST ADVANTAGEOUS TO THE GOVERNMENT FOR TRAVEL PERFORMED WITHIN THE UNITED STATES AND, AS A CONSEQUENCE, DETERMINATIONS AS TO TRAVELER'S RIGHTS INVOLVING THE REQUIREMENT THAT TRAVEL BE PERFORMED BY THE "SHORTEST USUALLY TRAVELED ROUTE" HAVE, AS A GENERAL RULE, BEEN MADE ON THE BASIS OF ESTABLISHED RAIL ROUTES. FOR EXAMPLE, THE PAYMENT OF MILEAGE IS AUTHORIZED BY STATUTE TO OFFICERS OF THE ARMED FORCES, WHEN TRAVELING UNDER COMPETENT ORDERS, FOR DISTANCES TO BE COMPUTED VIA THE "SHORTEST USUALLY TRAVELED ROUTE," AND OFFICIAL DISTANCES FOR MILEAGE PAYMENTS, ESTABLISHED IN THE OFFICIAL MILEAGE TABLES, ARE COMPUTED ALMOST ENTIRELY ON THE BASIS OF RAIL TRAVEL. ALSO, UNDER TRAVEL ORDERS AUTHORIZING REIMBURSEMENT OF SUBSISTENCE EXPENSES ON A PER DIEM BASIS, AN OFFICER'S RIGHT TO SUCH ALLOWANCE ORDINARILY HAS BEEN LIMITED TO NECESSARY TRAVEL TIME BY RAIL OVER THE SHORTEST USUALLY TRAVELED ROUTE. B-55087, MARCH 7, 1946. WHILE IT MAY BE, AS SUGGESTED IN YOUR SUBMISSION, THAT THE LIMITATION OF PAY AND ALLOWANCES IN THE CITED DECISION OF DECEMBER 12, 1940, TO "NECESSARY TRAVEL TIME BY RAIL" HAS NOT BEEN SPECIFICALLY INCLUDED IN OTHER DECISIONS, SUCH LIMITATION IS IN ACCORD WITH THE ESTABLISHED PRACTICE IN THE MATTER, AND IS FOR GENERAL APPLICATION. THAT CONNECTION IT IS NOTED THAT PARAGRAPH 15 OF WAR DEPARTMENT TECHNICAL MANUAL 14-501, DATED DECEMBER 1, 1943, PROVIDES THAT PAY AND ALLOWANCES OF RESERVE OFFICERS COMMENCE ON THE DAY THEY OFFICIALLY AND NECESSARILY BEGIN TO COMPLY WITH THEIR ACTIVE DUTY ORDERS INCLUDING TRAVEL TIME BY RAIL OVER THE SHORTEST USUALLY TRAVELED ROUTE, CITING AS AUTHORITY THEREFOR THE DECISION OF DECEMBER 12, 1940, AND THAT SIMILAR PROVISION APPEARS IN PARAGRAPH 2 OF TECHNICAL MANUAL 14-501 DATED JUNE 11, 1946.

THE ADVISABILITY OF INCLUDING AUTHORITY IN ACTIVE DUTY ORDERS FOR THE PERFORMANCE BY OFFICERS OF TRAVEL BY PRIVATELY OWNED AUTOMOBILE FROM HOME TO FIRST DUTY STATION APPEARS TO BE A MATTER FOR ADMINISTRATIVE DETERMINATION. HOWEVER, IT IS CLEAR THAT SUCH AUTHORITY IS GRANTED PRIMARILY FOR THE CONVENIENCE OF THE OFFICERS TO ENABLE THEM TO HAVE THEIR AUTOMOBILES AT THEIR DUTY STATIONS FOR PERSONAL REASONS, AND IT IS NOT CONSIDERED THAT AUTHORITY EXISTS FOR THE EXTENTION OF THE ESTABLISHED RULE TO PERMIT THE PAYMENT OF ACTIVE DUTY PAY AND ALLOWANCES FOR PERIODS COMMENCING ON A DATE PRIOR TO THAT UPON WHICH IT IS NECESSARY FOR THEM TO DEPART VIA RAIL TO COMPLY WITH THEIR ORDERS.

ACCORDINGLY, YOU ARE ADVISED THAT UNDER THE PRESENT LAW THIS OFFICE WILL BE REQUIRED TO OBJECT TO PAYMENTS OF ACTIVE DUTY PAY AND ALLOWANCES HERETOFORE AND HEREAFTER MADE TO THE EXTENT THAT THEY EXCEED THOSE AUTHORIZED UNDER THE RULE STATED IN THE DECISION OF DECEMBER 12, 1940, 20 COMP. GEN. 309.