B-140916, JUN. 10, 1960

B-140916, JUN. 10, 1960

TO LIEUTENANT COLONEL M. S. LIPSKER, USAF, ACCOUNTING AND FINANCE OFFICER:

YOUR LETTER OF FEBRUARY 25, 1960, FORWARDED BY THE DIRECTORATE OF ACCOUNTING AND FINANCE, COMPTROLLER (AS AIR FORCE REQUEST NO. 489, APPROVED BY THE DEPARTMENT OF DEFENSE, MILITARY PAY AND ALLOWANCE COMMITTEE), REQUESTS FURTHER CONSIDERATION OF OFFICE DECISION B-140916, OCTOBER 27, 1959, CONCERNING THE QUESTION OF ENTITLEMENT OF FIRST LIEUTENANT MOIKA A. RYSAVY, AO 300 3510, TO TWO ADDITIONAL DAYS' PAY (OCTOBER 19-20, 1958), AS A RESERVIST IN CONNECTION WITH A PERIOD OF ACTIVE DUTY FOR TRAINING. IN THAT DECISION WE DISALLOWED THE CLAIM FOR TWO ADDITIONAL DAYS' ACTIVE DUTY PAY AND STATED THAT SINCE THE MEMBER WAS RELIEVED FROM TRAINING ON OCTOBER 17, IT MUST BE CONCLUDED THAT THE DURATION OF THE ACTIVE DUTY TOUR WAS THEREBY ALTERED PRIOR TO THE CONTEMPLATED RELEASE DATE OF OCTOBER 20, 1958, AND SINCE THE MEMBER ARRIVED AT THE PLACE FROM WHICH ORDERED TO ACTIVE DUTY ON OCTOBER 18, THERE ARE NO PROVISIONS IN THE STATUTE OR THE REGULATIONS WHEREBY HE MAY BE ALLOWED PAY AND ALLOWANCES FOR THE PERIOD OCTOBER 19 AND 20, 1958, HIS CASE BEING GOVERNED BY PARAGRAPH 10501B, AFM 173-22, CITING 19 COMP. GEN. 282. YOU ASK, IN EFFECT, WHY THE CASE IS NOT GOVERNED BY 4 COMP. GEN. 894, AND THE SIMILAR CASE FOUND IN 35 COMP. GEN. 387.

IT APPEARS THAT LIEUTENANT RYSAVY COMPLIED WITH TRAINING DUTY ORDERS OF SEPTEMBER 4, 1958, LEAVING HIS HOME BY COMMERCIAL AIRCRAFT ON OCTOBER 5, 1958, AND ARRIVING AT LACKLAND AIR FORCE BASE ON THAT DATE, AND THAT HE WAS RELIEVED FROM TRAINING ON OCTOBER 17, 1958. HE WAS PAID FOR THE PERIOD OCTOBER 5 TO 18, 1958. COMPUTATION WAS BASED UPON DATE OF COMPLIANCE WITH ORDERS (OCTOBER 5, 1958), AND DATE OF RELEASE FROM TRAINING DUTY (OCTOBER 17, 1958), PLUS ONE DAY'S TRAVEL TIME BY COMMERCIAL AIR.

SECTION 201 (D) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 232 (D) PROVIDES, IN PERTINENT PART, THAT:

"ALL MEMBERS OF THE UNIFORMED SERVICES WHEN ON THE ACTIVE LIST, WHEN ON ACTIVE DUTY, OR WHEN PARTICIPATING IN FULL-TIME TRAINING, TRAINING DUTY WITH PAY OR OTHER FULL-TIME DUTY * * * SHALL BE ENTITLED TO RECEIVE THE BASIC PAY OF THE PAY GRADE TO WHICH ASSIGNED * * *. ANY PAY AND ALLOWANCES AUTHORIZED BY THIS ACT WHICH WILL LAWFULLY ACCRUE TO MEMBERS FOR THEIR RETURN HOME INCIDENT TO RELEASE FROM ACTIVE DUTY OR TRAINING DUTY MAY BE PAID TO SUCH MEMBERS PRIOR TO THEIR DEPARTURE FROM LAST DUTY STATION INCIDENT TO SUCH RELEASE, WITHOUT REGARD TO THE ACTUAL PERFORMANCE OF SUCH TRAVEL.'

SECTION 2, EXECUTIVE ORDER NO. 10153, AS AMENDED BY EXECUTIVE ORDER NO. 10649, DECEMBER 28, 1955, PROVIDES IN PART AS FOLLOWS:

"SECTION 2. FOR TRAVEL FROM LAST DUTY STATION TO HOME, IN CASE TRAVEL BY PUBLIC TRANSPORTATION IS AUTHORIZED, THE TRAVEL TIME INCLUDED AS ACTIVE DUTY SHALL BE BASED UPON ACTUAL AND NECESSARY SCHEDULES WHICH MOST NEARLY COINCIDE WITH THE POSSIBLE TIME OF DEPARTURE AND ARRIVAL BY PUBLIC SURFACE TRANSPORTATION, WITHOUT REGARD TO THE ACTUAL PERFORMANCE OF SUCH TRAVEL.

AIR FORCE REGULATION 45-14 DATED AUGUST 21, 1957, THE REGULATION IN EFFECT WHEN THE PERTINENT ORDERS WERE WRITTEN AND THE TRAINING DUTY PERFORMED, PROVIDES AT PARAGRAPH 2B AS FOLLOWS:

"B. SCHOOL TOUR--- A PROGRAMMED AND FUNDED TOUR OF ACTIVE DUTY FOR TRAINING TO ATTEND SCHOOLS CONDUCTED BY ONE OF THE MILITARY SERVICES.'

PARAGRAPH 4B, SAME REGULATION, PROVIDES:

"B. SCHOOL TOUR--- A SCHOOL TOUR WILL INCLUDE TRAVEL TIME AND WILL BE OF SUFFICIENT DURATION FOR THE RESERVIST TO COMPLETE THE COURSE HE IS SELECTED TO ATTEND.'

IT IS APPARENT THAT LIEUTENANT RYSAVY WAS CALLED TO ACTIVE DUTY SOLELY FOR THE PURPOSE OF TAKING A STATED TRAINING COURSE AND THAT THE ORDERS CONTEMPLATED THAT THE PERIOD OF HIS ACTIVE DUTY WOULD BE TERMINATED UPON HIS RELEASE FROM SUCH TRAINING DUTY PLUS THE TIME REQUIRED FOR HIS RETURN HOME (CHEVY CHASE, MARYLAND), AND THAT HE WOULD BE PAID ACTIVE DUTY PAY AND ALLOWANCES ACCORDINGLY. PUBLISHED TRAIN SCHEDULES SHOW THAT HE COULD HAVE BOARDED A TRAIN AT SAN ANTONIO, TEXAS, ON THE DAY FOLLOWING HIS RELEASE FROM TRAINING DUTY AT HIS STATION NEAR THAT PLACE AND ARRIVED IN WASHINGTON, D.C., ON OCTOBER 20, 1958. SINCE HIS ORDERS OF SEPTEMBER 4, 1958, AUTHORIZED TRAVEL BY BOTH COMMERCIAL AIR AND SURFACE TRANSPORTATION AND IT WAS NOT KNOWN AT THAT TIME WHAT MEANS OF TRAVEL WOULD BE USED, IT APPEARS THAT OCTOBER 20, 1958, WAS DESIGNATED IN SUCH ORDERS AS THE DATE OF RELEASE FROM TRAINING DUTY IN ORDER TO PERMIT HIM TO COMPLETE THE COURSE OF TRAINING AND RETURN TO HIS HOME BY THE SLOWER MEANS OF TRAVEL.

IN THE CASE CONSIDERED IN DECISION OF APRIL 28, 1925, 4 COMP. GEN. 894, MEMBERS OF THE OFFICERS' RESERVE CORPS RECEIVED ORDERS UNDER AUTHORITY OF SECTION 37A OF THE NATIONAL DEFENSE ACT TO ACTIVE DUTY FOR TRAINING FOR THE PERIOD JULY 6 TO 20, 1924, BOTH DATES INCLUSIVE, DIRECTING THAT UPON COMPLETION OF THE TRAINING DUTY, IF NOT SOONER RELIEVED, THEY WOULD RETURN TO THEIR RESPECTIVE HOMES SO AS TO ARRIVE THERE ON JULY 20, 1924, UPON WHICH DATE THEY WOULD STAND RELIEVED FROM ACTIVE DUTY. THE TRAINING WAS COMPLETED AND THE CAMP WAS CLOSED ON JULY 19, 1924, AND ONE OF THE OFFICERS ARRIVED AT HIS HOME NEARBY ON THE SAME DAY, AND THE QUESTION CONSIDERED WAS WHETHER, UNDER SUCH CIRCUMSTANCES, HE WAS ENTITLED TO ACTIVE DUTY PAY AND ALLOWANCES FOR THE 20TH. WITH RESPECT THERETO, THE SAID DECISION STATED:

"IT APPEARS THE CLAIMANT'S DEPARTURE FROM THE CAMP ON THE 19TH OF THE MONTH OCCURRED AFTER THE COMPLETION OF THE TRAINING COURSE AND THAT HIS ARRIVAL HOME ON THAT DAY WAS DUE TO THE FACT THAT HIS HOME, DAVENPORT, IOWA, WAS ONLY 2 MILES DISTANT FROM THE CAMP. THE SITUATION PRESENTED IS NOT ONE OF ACTUAL RELIEF FROM DUTY INVOLVING CURTAILMENT OF THE OFFICER'S PERIOD OF TRAINING, NOR IS IT IN ANY SENSE A GRANT OF LEAVE. THE COURSE OF TRAINING HAVING BEEN ARRANGED TO TERMINATE AT A TIME TO PERMIT THOSE ATTENDING FROM THE GREATEST DISTANCE TO REACH HOME ON THE 20TH, THE MEMBERS RESIDING IN THE IMMEDIATE VICINITY OF THE CAMP NECESSARILY HAD TO DEPART ALSO, BUT THAT DID NOT CHANGE THE TERMS OF THE ORDER WHICH WAS AN ASSIGNMENT TO ACTIVE DUTY TO INCLUDE JULY 20, 1924, UNLESS SOONER RELIEVED BY COMPETENT AUTHORITY.'

THAT DECISION WAS FOLLOWED IN 35 COMP. GEN. 387, INVOLVING A SOMEWHAT SIMILAR SITUATION WHERE THE MEMBER ARRIVED BACK AT HIS HOME A DAY EARLIER THAN WAS CONTEMPLATED IN HIS ORDERS DUE TO HIS USE OF AIR TRANSPORTATION.

GENERALLY, ACTIVE DUTY PAY AND ALLOWANCES COMMENCE WITH THE DATE ON WHICH THE MEMBER IS REQUIRED TO LEAVE THE PLACE FROM WHICH ORDERED TO TRAINING DUTY BY THE MEANS OF TRANSPORTATION AUTHORIZED AND USED IN ORDER TO REACH THE PLACE OF TRAINING DUTY BY THE SHORTEST USUALLY TRAVELED ROUTE, AND END WITH THE DATE ON WHICH HE COULD HAVE REACHED HIS HOME BY THAT ROUTE AFTER DETACHMENT. THE TWO PUBLISHED DECISIONS CITED ABOVE APPLY TO THE SPECIAL SITUATION WHERE AT LEAST ONE DAY'S TRAVEL TIME BACK TO THE HOME IS CONTEMPLATED UNDER THE ORDERS, BUT THE MEMBER ACTUALLY RETURNS TO HIS HOME ON THE DAY HE IS DETACHED FROM TRAINING DUTY. IT APPARENTLY WAS CONCLUDED THAT ONE DAY'S TRAVEL TIME SHOULD BE ALLOWED IN SUCH CIRCUMSTANCES. SUCH DECISIONS CONSTITUTE AN EXCEPTION TO THE GENERAL RULE AND THEY SHOULD NOT BE INTERPRETED MORE BROADLY THAN HERE SHOWN. THEY WOULD BE APPLICABLE HERE TO ALLOW PAY AND ALLOWANCES FOR OCTOBER 18, 1958, IF LIEUTENANT RYSAVY HAD RETURNED TO HIS HOME ON OCTOBER 17, 1958, THE DATE OF DETACHMENT.

IN 20 COMP. GEN. 309, IT WAS HELD, QUOTING FROM THE SYLLABUS, THAT--

"AN ARMY RESERVE OFFICER IS ENTITLED TO PAY AND ALLOWANCES FOR TRAVEL TIME BY RAIL OVER THE SHORTEST USUALLY TRAVELED ROUTE NECESSARY TO COMPLY WITH ORDERS CALLING HIM TO ACTIVE DUTY, BUT CONSTRUCTIVE TRAVEL TIME MAY NOT BE COUNTED TO AUTHORIZE PAY AND ALLOWANCES FOR ANY PERIOD PRIOR TO THE DATE HE ACTUALLY COMMENCED TRAVEL BY AIRPLANE MERELY BECAUSE SUCH TRAVEL REQUIRED LESS TIME THAN IF TRAVEL HAD BEEN BY RAIL.'

WE SEE NO REASON WHY THE SAME RULE SHOULD NOT BE FOR APPLICATION TO RETURN TRAVEL OF RESERVE OFFICERS TO THEIR HOMES BY AIRPLANE FROM A PERIOD OF TRAINING DUTY. COMPARE IN THIS CONNECTION, VOLUME 4, NAVY COMPTROLLER MANUAL, PARAGRAPH 044735-2.

CONCERNING THE LAST SENTENCE OF SECTION 201 (D) OF THE CAREER COMPENSATION ACT OF 1949, QUOTED ABOVE, IT IS OBVIOUS THAT REGULATIONS MUST BE ISSUED TO IMPLEMENT SUCH PROVISIONS OF LAW, SINCE, WITHOUT IMPLEMENTING REGULATIONS, THERE WOULD BE NO WAY OF DETERMINING THE TRAVEL TIME TO BE USED IN COMPUTING PAY IF TRAVEL BACK TO THE HOME IS NOT CONTEMPLATED. THE ABOVE-QUOTED PROVISIONS OF THE CITED EXECUTIVE ORDER ARE ADDRESSED TO THE SITUATION OF RELEASE FROM EXTENDED ACTIVE DUTY IN EXCESS OF 30 DAYS. IN MANY OF SUCH CASES, TRAVEL BACK TO THE HOME ACTUALLY IS NOT PERFORMED. SUCH REGULATIONS APPARENTLY CONTEMPLATE THE COMPUTATION OF TRAVEL TIME ON THE BASIS OF CONSTRUCTIVE TRAVEL BY PUBLIC SURFACE TRANSPORTATION IN ALL CASES IF TRAVEL BY PUBLIC TRANSPORTATION IS AUTHORIZED. THE SITUATION IS NOT THE SAME WHERE A RESERVIST IS RELEASED FROM A SHORT PERIOD OF TRAINING DUTY AND IT IS DOUBTFUL THAT REGULATIONS PROPERLY COULD BE ISSUED WHICH WOULD AUTHORIZE PAYMENT OF PAY FOR CONSTRUCTIVE TRAVEL BY RAIL WHEN TRAVEL BACK TO THE HOME ACTUALLY IS PERFORMED BY AIR AFTER A SHORT PERIOD OF TRAINING DUTY. APPARENTLY, NO REGULATIONS TO THAT EFFECT HAVE BEEN PROMULGATED.