B-116568, MARCH 10, 1954, 33 COMP. GEN. 386

B-116568, MARCH 10, 1954, 33 COMP. GEN. 386

MILEAGE - RESERVISTS AND REGULARS - SELECTION OF HOME UPON RETIREMENT - HOME DETERMINATION WHILE THE RULE OF THE ACCOUNTING OFFICERS THAT REGULAR MEMBERS OF THE UNIFORMED SERVICES MAY BE PAID MILEAGE FOR TRAVEL TO A SELECTED HOME UPON RETIREMENT HAS, THROUGH LONG APPLICATION, BECOME SO ENGRAFTED IN THE LAW THAT IT REASONABLY MAY BE CONCLUDED THAT SUCH SELECTED PLACE WAS THE HOME CONTEMPLATED BY CONGRESS IN ENACTING THE CAREER COMPENSATION ACT OF 1949, IT IS EQUALLY WELL ESTABLISHED THAT A RESERVIST BY REASON OF THE TEMPORARY NATURE OF HIS ACTIVE DUTY, THOUGH SOMETIMES PROLONGED, HAS A HOME OF RECORD THROUGH PERIOD OF ACTIVE DUTY WHICH DETERMINES THE MAXIMUM MILEAGE PAYABLE FOR TRAVEL HOME UPON RELEASE FROM ACTIVE DUTY UPON RETIREMENT.

ASSISTANT COMPTROLLER GENERAL WEITZEL TO THE SECRETARY OF DEFENSE, MARCH 10, 1954:

REFERENCE IS MADE TO LETTER OF DECEMBER 4, 1953, FROM THE ASSISTANT SECRETARY OF DEFENSE REQUESTING RECONSIDERATION OF THE DECISION OF SEPTEMBER 21, 1953, B-116568, IN WHICH IT WAS HELD THAT AN OFFICER OF THE ARMY OF THE UNITED STATES IS ENTITLED UPON RETIREMENT TO BE PAID MILEAGE TO HIS HOME OF RECORD OR TO THE PLACE FROM WHICH ORDERED TO ACTIVE DUTY, BUT NOT TO A HOME SELECTED BY HIM UPON RETIREMENT.

THE DECISION POINTED OUT THAT UNDER LEGISLATION PRECEDING THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 802, IT LONG HAS BEEN HELD THAT A RESERVIST ON ACTIVE DUTY CONTINUES TO HAVE A HOME, AND THAT THERE IS NOTHING IN THE CAREER COMPENSATION ACT, NOR IN THE HEARINGS AND COMMITTEE REPORTS WHICH PRECEDED ITS ENACTMENT, TO SUGGEST THAT UNDER ITS PROVISIONS MEMBERS OF THE RESERVE COMPONENTS WOULD BE ENTITLED TO SELECT A HOME FOR TRAVEL AND TRANSPORTATION PURPOSES UPON RETIREMENT UNDER THE RULES APPLIED TO MEMBERS OF THE REGULAR SERVICES. THE STATUTORY PROVISION IN QUESTION IS IN MATERIAL PART AS FOLLOWS:

SEC. 303. (A) UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, MEMBERS OF THE UNIFORMED SERVICES SHALL BE ENTITLED TO RECEIVE TRAVEL AND TRANSPORTATION ALLOWANCES FOR TRAVEL PERFORMED OR TO BE PERFORMED UNDER COMPETENT ORDERS * * * (2) UPON APPOINTMENT, CALL TO ACTIVE DUTY, ENLISTMENT, OR INDUCTION, FROM HOME OR FROM THE PLACE FROM WHICH ORDERED TO ACTIVE DUTY TO FIRST STATION, AND (3) UPON SEPARATION FROM SERVICE, PLACEMENT UPON THE TEMPORARY DISABILITY RETIRED LIST, RELEASE FROM ACTIVE DUTY, OR RETIREMENT, FROM LAST DUTY STATION TO HOME OR TO THE PLACE FROM WHICH ORDERED TO ACTIVE DUTY * * * . ( ITALICS SUPPLIED.)

IN THE REQUEST FOR RECONSIDERATION IT IS STATED THAT THE WORD "HOME" AS USED IN THE QUOTED STATUTE IS A RELATIVE TERM WHICH REQUIRES DEFINITION AND THAT, THEREFORE, THE REGULATION DEFINING THE HOME OF A RESERVIST WHO IS RETIRED IMMEDIATELY FOLLOWING A PERIOD OF ACTIVE SERVICE AS ANY PLACE HE MAY SELECT, AND TO WHICH HE PERFORMS TRAVEL WITHIN THE PRESCRIBED TIME, WAS ISSUED IN A PROPER EXERCISE OF THE AUTHORITY VESTED IN THE SECRETARIES CONCERNED TO PRESCRIBE IMPLEMENTING REGULATIONS AND SHOULD NOT BE QUESTIONED BY THIS OFFICE UNLESS IT MAY BE CONSIDERED ARBITRARY AND CAPRICIOUS. ALSO, THERE IS CITED 1 COMP. GEN. 363 WHERE THE WORD "HOME," AS USED IN AN ORDER OF RETIREMENT, WAS DEFINED AS MEANING THE PLACE WHICH THE RETIRED OFFICER SELECTS TO RETURN TO CIVIL LIFE FROM HIS MILITARY LIFE.

LONG BEFORE THERE WAS ANY SPECIFIC STATUTORY AUTHORITY FOR TRAVEL BY AN OFFICER FROM HIS LAST PLACE OF DUTY TO HOME AT GOVERNMENT EXPENSE UPON RETIREMENT, MILEAGE FOR SUCH TRAVEL WAS PAID UNDER THE MILEAGE LAWS AS FOR ORDERED TRAVEL ON OFFICIAL BUSINESS UNDER ORDERS ISSUED TO THE OFFICER CONCERNED DIRECTING HIM TO PROCEED TO HIS HOME. AS TO THIS, THE COURTS IN EFFECT HELD THAT TRAVEL TO A PLACE SELECTED BY THE OFFICER, WHICH HE THEREUPON REPORTED TO PROPER AUTHORITY AS BEING HIS HOME, WAS SUFFICIENT COMPLIANCE WITH ORDERS DIRECTING HIM TO PROCEED HOME TO ENTITLE HIM TO MILEAGE TO SUCH SELECTED PLACE. FROM THIS, APPARENTLY, EVOLVED THE RULE CONCERNING AN OFFICER'S RIGHT TO SELECT A HOME UPON RETIREMENT STATED IN COMP. GEN. 363, CITING 13 COMP. DEC. 793 AND 18 COMP. DEC. 634, AS TO WHICH IT FURTHER WAS STATED IN 4 COMP. GEN. 954, RESPECTING MEMBERS OF THE REGULAR SERVICES, THAT BECAUSE OF CIRCUMSTANCES PECULIAR TO THE MILITARY SERVICE AN OFFICER AT TIME OF RETIREMENT USUALLY DOES NOT HAVE AN ESTABLISHED RESIDENCE WHICH HE DESIRES TO MAKE HIS HOME IN CIVIL LIFE, FOR WHICH REASON SOME LATITUDE IS ALLOWED OFFICERS IN CARRYING OUT ORDERS TO TRAVEL UPON RETIREMENT.

HOWEVER, SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813, EXPRESSLY PROVIDES FOR PAYMENT OF TRAVEL ALLOWANCES FOR TRAVEL PERFORMED UPON RETIREMENT FROM LAST DUTY STATION TO HOME BY MEMBERS OF THE UNIFORMED SERVICES WHICH, AS STATED IN THE ASSISTANT SECRETARY'S LETTER OF DECEMBER 4, 1953, INCLUDES BOTH REGULARS AND RESERVES. EARLIER STATUTES EXPRESSLY AUTHORIZED TRANSPORTATION OF RESERVE PERSONNEL FROM HOME TO THE PLACE WHERE THE FIRST MILITARY DUTY WAS TO BE PERFORMED AND FROM THE LAST PLACE OF DUTY TO HOME. SECTION 37A OF THE NATIONAL DEFENSE ACT, JUNE 4, 1920, 41 STAT. 776, PROVIDED THAT A RESERVE OFFICER WHEN ON ACTIVE DUTY WOULD RECEIVE MILEAGE FROM HIS HOME TO HIS FIRST DUTY STATION AND FROM HIS LAST STATION TO HIS HOME. AGAIN, IN PARAGRAPH 6 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 364, IT WAS PROVIDED THAT, IN THE CASE OF A RESERVE OFFICER ORDERED TO ACTIVE DUTY, THE WORDS "PERMANENT CHANGE OF STATION" AS USED IN THAT SECTION SHOULD INCLUDE THE CHANGE FROM HOME TO FIRST STATION AND FROM LAST STATION TO HOME.

DURING THE PERIOD OF MORE THAN THIRTY YEARS SINCE THE ENACTMENT OF SECTION 37A OF THE NATIONAL DEFENSE ACT OF JUNE 4, 1920, NO SERIOUS DOUBT APPEARS TO HAVE ARISEN AS TO THE MEANING OF THE WORD ,HOME" AS USED IN THAT OR SUBSEQUENT LEGISLATION. ON THE CONTRARY, THE WORD APPARENTLY WAS ACCEPTED WITHOUT QUESTION AS MEANING THE PLACE WHERE THE RESERVIST RESIDED PRIOR TO ENTERING MILITARY SERVICE AND WHERE HE PRESUMABLY WOULD HAVE CONTINUED TO RESIDE HAD SUCH RESIDENCE NOT BEEN INTERRUPTED BY ORDERS TO ACTIVE DUTY. THIS WAS EVIDENCED BY THE PROCEDURE SET UP FOR RECORDING AS THE HOME OF THE RESERVIST CONCERNED, INCLUDING RESERVISTS APPOINTED FROM AN ENLISTED STATUS IN THE REGULAR SERVICES, THE PLACE OF PERMANENT RESIDENCE OR DOMICILE WHEN ORDERED TO ACTIVE DUTY, WITH PROVISION FOR CORRECTION WHEN THE PLACE INITIALLY RECORDED WAS NOT IN FACT THE ACTUAL HOME, ON THE BASIS OF WHICH HE WAS PAID MILEAGE UPON TERMINATION OF SUCH TOUR OF ACTIVE DUTY, WHETHER BY ORDERS RELEASING HIM FROM ACTIVE DUTY OR BY RETIREMENT.

WHILE THE RULE OF THE ACCOUNT OFFICERS THAT REGULARS MAY BE PAID MILEAGE FOR TRAVEL TO A SELECTED HOME UPON RETIREMENT HAS, THROUGH LONG APPLICATION, BECOME SO ENGRAFTED IN THE LAW THAT IT REASONABLY MAY BE CONCLUDED THAT SUCH SELECTED PLACE WAS THE HOME CONTEMPLATED BY THE CONGRESS IN ENACTING THE CAREER COMPENSATION ACT OF 1949, INSOFAR AS RETIRED REGULARS ARE CONCERNED, IT IS EQUALLY WELL ESTABLISHED THAT A RESERVIST BY REASON OF THE TEMPORARY NATURE OF HIS ACTIVE DUTY, THOUGH SOMETIMES PROLONGED, HAS A HOME OF RECORD THROUGHOUT HIS PERIOD OF ACTIVE DUTY WHICH DETERMINES THE MAXIMUM MILEAGE PAYABLE FOR TRAVEL HOME UPON RELEASE FROM ACTIVE DUTY. THE SUBMISSION DOES NOT SUGGEST THAT ALL RESERVISTS ARE ENTITLED TO SELECT A NEW HOME, FOR MILEAGE, UPON RELEASE FROM ACTIVE DUTY, REGARDLESS OF LENGTH OF ACTIVE DUTY OR REASON FOR RELEASE, OR THAT SUCH A RIGHT COULD BE GRANTED BY REGULATIONS UNDER EXISTING LAW. THERE IS NOTHING TO INDICATE, HOWEVER, THAT THE CONGRESS INTENDED THE WORD "HOME" IN THE STATUTE TO MEAN ONE THING FOR RESERVE OFFICERS RELEASED FROM ACTIVE DUTY ON RETIREMENT AND SOMETHING ENTIRELY DIFFERENT FOR ALL OTHER RESERVE OFFICERS UPON RELEASE. SUCH AN INTERPRETATION OF THE STATUTE, FOR EXAMPLE, WOULD GIVE A RESERVIST RETIRED AFTER SIX MONTHS OF ACTIVE DUTY A GREAT ADVANTAGE OVER A RESERVIST RELEASED FOR OTHER REASONS AFTER TEN YEARS OF ACTIVE DUTY. I THINK IT MUST BE AGREED THAT THE CONGRESS DID NOT INTEND THAT DISCRIMINATION. THE DIFFERENT RULE APPLIED TO REGULARS, FOR MATERIAL REASONS, DOES NOT SUPPORT A RULE DISCRIMINATING BETWEEN DIFFERENT CLASSES OF RESERVISTS, FOR NO COMPARABLE REASONS.

THE SUBMISSION CITES INSTANCES OF MEMBERS WITH LONG SERVICE IN THE REGULAR ARMY WHO, BUT FOR THE FACT THAT THEY HAD BEEN COMMISSIONED AS RESERVE OFFICERS AND WERE SERVING AS SUCH WHEN RETIRED, WOULD HAVE BEEN PAID MILEAGE TO A SELECTED HOME UPON RETIREMENT. RESPECTING SUCH CASES, IT MUST BE RECOGNIZED, HOWEVER, THAT IF SUCH A RESERVIST HAD BEEN RELEASED FROM ACTIVE DUTY, OTHER THAN BY RETIREMENT, HE CLEARLY WOULD HAVE BEEN ENTITLED TO MILEAGE ONLY TO HIS HOME OF RECORD AS A RESERVIST, DESPITE HIS PRIOR SERVICE AS A REGULAR AND THE CIRCUMSTANCE THAT HE MIGHT HAVE HAD MILEAGE TO A SELECTED HOME HAD HE CONTINUED IN THE REGULAR SERVICE UNTIL RETIREMENT.

THE SUBJECT HAS BEEN GIVEN CAREFUL CONSIDERATION, BUT NO LEGAL BASIS IS FOUND TO JUSTIFY A CONCLUSION THAT THE WORD "HOME" IN THE STATUTE MEANS ONE THING WHERE A RESERVIST IS RELEASED FROM ACTIVE DUTY ON RETIREMENT AND MEANS SOMETHING DIFFERENT WHERE HE IS RELEASED FOR ANY OTHER REASON. NOR, IN THE ABSENCE OF CLEAR STATUTORY PROVISIONS, WOULD THERE APPEAR ANY JUSTIFICATION FOR A CONCLUSION THAT ALL RESERVISTS ARE ENTITLED TO MILEAGE TO A SELECTED HOME UPON RELEASE FROM ACTIVE DUTY, BY ANALOGY TO THE LONG ESTABLISHED RULE THAT MEMBERS OF THE REGULAR SERVICES MAY SELECT A HOME UPON RETIREMENT. IN SHORT, A RESERVIST LIKE A REGULAR IS ENTITLED UNDER THE STATUTE TO MILEAGE TO HIS "HOME" UPON RETIREMENT. THE DIFFERENCE IS THAT A RESERVIST GENERALLY HAS A FIXED HOME, HIS "HOME OF RECORD," BUT IT HAS LONG BEEN RECOGNIZED THAT GENERALLY A REGULAR DOES NOT HAVE SUCH A HOME AT TIME OF RETIREMENT, AND THEREFORE THAT HIS "HOME" IS THE PLACE HE MAY THEN SELECT AND TO WHICH HE TRAVELS TO MAKE A HOME. IT MAY BE THAT THE RULE OF ALLOWING REGULAR MEMBERS MILEAGE TO SUCH A SELECTED HOME WOULD BE SUBJECT TO QUESTION IF IT WERE NOT SO WELL ESTABLISHED. THE FACT THAT ITS AGE NOW SAVES THAT RULE FROM QUESTION CANNOT JUSTIFY ITS EXTENSION, HOWEVER, TO MEMBERS OF THE RESERVE FORCES, TO WHOM IT NEVER APPLIED, AND WHOSE SITUATION IS MATERIALLY DIFFERENT.

FOR SUCH REASONS, I AM CONSTRAINED TO CONCLUDE THAT THERE APPEARS NO SUFFICIENT LEGAL BASIS TO MODIFY THE PRIOR DECISION.