B-58038, JULY 12, 1946, 26 COMP. GEN. 18

B-58038, JULY 12, 1946, 26 COMP. GEN. 18

MILEAGE; PER DIEM; TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS - OFFICERS OF REGULAR CORPS OF PUBLIC HEALTH SERVICE - LAST STATION TO HOME A COMMISSIONED OFFICER OF THE REGULAR CORPS OF THE PUBLIC HEALTH SERVICE, UPON DISCHARGE NOT THE RESULT OF HIS OWN MISCONDUCT, IS ENTITLED UNDER SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED, TO MILEAGE FROM HIS LAST STATION TO HIS HOME, PROVIDED TRAVEL THERETO IS PERFORMED PRIOR TO THE EFFECTIVE DATE OF HIS DISCHARGE UNDER ORDERS DIRECTING SUCH TRAVEL; AND GOVERNMENT TRANSPORTATION REQUESTS MAY BE ISSUED FOR SUCH TRAVEL SUBJECT TO PROPER DEDUCTIONS BEING MADE THEREFOR IN THE SETTLEMENT OF THE MILEAGE CLAIM. (AMPLIFIED BY 26 COMP. GEN. 533.) COMMISSIONED OFFICERS OF THE REGULAR CORPS OF THE PUBLIC HEALTH SERVICE, UPON RESIGNATION FROM THE SERVICE, ARE NOT ENTITLED TO TRANSPORTATION AT GOVERNMENT EXPENSE FROM LAST DUTY STATION TO HOME FOR DEPENDENTS AND HOUSEHOLD EFFECTS UNDER SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942. 23 COMP. GEN. 73, AMPLIFIED.

ASSISTANT COMPTROLLER GENERAL YATES TO THE ADMINISTRATOR, FEDERAL SECURITY ADMINISTRATION, JULY 12, 1946:

THERE HAS BEEN CONSIDERED YOUR LETTER OF MAY 23, 1946, AS FOLLOWS:

IN CONNECTION WITH THE ACCEPTANCE OF THE RESIGNATIONS OF A NUMBER OF COMMISSIONED OFFICERS OF THE REGULAR CORPS OF THE PUBLIC HEALTH SERVICE, THE QUESTION HAS ARISEN AS TO WHETHER OR NOT, UNDER THE PROVISIONS OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED, PARTICULARLY THE PROVISIONS THEREOF APPEARING IN SECTION 12 OF TITLE 37 OF THE U.S. CODE, UNDER THE PUBLIC HEALTH SERVICE ACT OF JULY 1, 1944 (42 USC, CH. 1), AS AMENDED, UNDER EXECUTIVE ORDER 9575 OF JUNE 21, 1945, 10 F.R. 7895, OR UNDER ANY OTHER APPLICABLE LAW, EXECUTIVE ORDER, OR REGULATION, SUCH OFFICERS, UPON RESIGNATION, MAY BE FURNISHED OR PAID:

(1)MILEAGE, GOVERNMENT TRANSPORTATION REQUESTS AND PER DIEM, OR ANY OTHER TRAVEL ALLOWANCE, FROM THEIR LAST POST OF DUTY TO THE PLACE OF RECORD AS THEIR HOMES OR TO A PLACE OF NOT GREATER DISTANCE;

(2) TRANSPORTATION FOR THEIR HOUSEHOLD GOODS AND EFFECTS FROM SUCH LAST DUTY STATION TO THE PLACE OF RECORD AS THEIR HOMES OR TO A PLACE OF NOT GREATER DISTANCE;

(3) TRANSPORTATION OR MILEAGE ALLOWANCE FOR THEIR DEPENDENTS FROM THEIR LAST DUTY STATION TO THE PLACE OF RECORD AS THEIR HOMES OR TO A PLACE OF NOT GREATER DISTANCE.

YOUR ATTENTION IS DIRECTED TO THE FOLLOWING PUBLISHED DECISIONS OF YOUR OFFICE WHICH APPEAR TO HAVE SOME BEARING ON THE QUESTIONS PRESENTED BUT DO NOT APPEAR TO ANSWER THEM. 22 C.G. 645, BID. 885, 23 C.G. 73, BID. 512, 24 C.G. 667, BID. 915.

ATTENTION IS ALSO DIRECTED TO THE FACT THAT ALTHOUGH THE FIRST PARAGRAPH OF SECTION 12 OF TITLE 37 OF THE U.S.C. PROVIDES FOR MILEAGE FOR REGULAR COMMISSIONED OFFICERS OF THE PUBLIC HEALTH SERVICE FROM THEIR LAST DUTY STATION TO THEIR HOMES IN CONNECTION WITH RELIEF FROM ACTIVE DUTY OR DISCHARGE NOT THE RESULT OF THEIR OWN MISCONDUCT, IT DOES NOT PROVIDE FOR TRANSPORTATION OF THEIR HOUSEHOLD GOODS OR THEIR DEPENDENTS. IN THE EVENT A REGULAR COMMISSIONED OFFICER OF THE PUBLIC HEALTH SERVICE IS SEPARATED FROM THE SERVICE BY BEING RELIEVED FROM ACTIVE DUTY OR BY DISCHARGE NOT AS A RESULT OF HIS OWN MISCONDUCT, IS HE ENTITLED, IN ADDITION TO THE MILEAGE PROVIDED FOR IN THE FIRST PARAGRAPH OF 37 U.S.C. 112, TO TRANSPORTATION FROM HIS LAST DUTY STATION TO HIS HOME FOR HIS DEPENDENTS AND FOR HIS HOUSEHOLD GOODS AND EFFECTS.

SECTION 209 (A) OF THE PUBLIC HEALTH SERVICE ACT OF JULY 1, 1944, 58 STAT. 686, PROVIDES THAT COMMISSIONED OFFICERS OF THE REGULAR CORPS SHALL RECEIVE SUCH PAY AND ALLOWANCES AS ARE OR MAY HEREAFTER BE PROVIDED BY LAW. CURRENT PROVISIONS FOR THE PAY AND ALLOWANCES OF SUCH OFFICERS ARE CONTAINED IN THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 359, AND SECTION 12 OF THAT ACT, AS AMENDED, 37 U.S.C. 112, PROVIDES IN PART:

OFFICERS OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT, INCLUDING ACTIVE AND RETIRED PERSONNEL OF THE REGULAR ESTABLISHMENTS AND MEMBERS OF THE RESERVE COMPONENTS THEREOF AND THE NATIONAL GUARD, WHILE ON ACTIVE DUTY IN THE FEDERAL SERVICE, WHEN TRAVELING UNDER COMPETENT ORDERS WITHOUT TROOPS, INCLUDING TRAVEL FROM HOME TO FIRST STATION TO HOME IN CONNECTION WITH THEIR APPOINTMENT OR CALL TO ACTIVE DUTY FROM LAST STATION TO HOME IN CONNECTION WITH RELIEF OR CALL TO ACTIVE DUTY OR DISCHARGE NOT THE RESULT OF THEIR OWN MISCONDUCT, SHALL RECEIVE A MILEAGE ALLOWANCE AT THE RATE OF 8 CENTS PER MILE, DISTANCE TO BE COMPUTED BY THE SHORTEST USUALLY TRAVELED ROUTE AND EXISTING LAWS PROVIDING FOR THE ISSUE OF TRANSPORTATION REQUESTS TO OFFICERS OF THE ARMY TRAVELING UNDER COMPETENT ORDERS, AND FOR DEDUCTION TO BE MADE FROM MILEAGE ACCOUNTS WHEN TRANSPORTATION IS FURNISHED BY THE UNITED STATES, ARE HEREBY MADE APPLICABLE TO ALL THE SERVICES MENTIONED IN THE TITLE OF THIS ACT, BUT IN CASES WHEN ORDERS ARE GIVEN FOR TRAVEL TO BE PERFORMED REPEATEDLY BETWEEN TWO OR MORE PLACES IN THE SAME VICINITY, AS DETERMINED BY THE HEAD OF THE EXECUTIVE DEPARTMENT CONCERNED, HE MAY, IN HIS DISCRETION, DIRECT THAT ACTUAL AND NECESSARY EXPENSES ONLY BE ALLOWED. ACTUAL EXPENSES ONLY SHALL BE PAID FOR TRAVEL UNDER ORDERS IN ALASKA AND OUTSIDE THE LIMITS OF THE UNITED STATES IN NORTH AMERICA.

WHEN ANY OFFICER, WARRANT OFFICER, OR ENLISTED MAN ABOVE THE FOURTH GRADE HAVING DEPENDENTS AS DEFINED IN SECTION 4 HEREOF, IS ORDERED TO MAKE A PERMANENT CHANGE OF STATION, THE UNITED STATES SHALL FURNISH TRANSPORTATION IN KIND FROM FUNDS APPROPRIATED FOR THE TRANSPORTATION OF THE ARMY, THE NAVY, THE MARINE CORPS, THE COAST GUARD, THE COAST AND GEODETIC SURVEY, AND THE PUBLIC HEALTH SERVICE TO HIS NEW STATION FOR SUCH DEPENDENTS: * * * PROVIDED FURTHER, THAT THE PERSONNEL OF ALL THE SERVICES MENTIONED IN THE TITLE OF THIS ACT SHALL HAVE THE BENEFIT OF ALL EXISTING LAWS APPLYING TO THE ARMY AND MARINE CORPS FOR THE TRANSPORTATION OF HOUSEHOLD EFFECTS: AND PROVIDED FURTHER, THAT IN LIEU OF TRANSPORTATION IN KIND AUTHORIZED BY THIS SECTION FOR DEPENDENTS, THE PRESIDENT MAY AUTHORIZE THE PAYMENT IN MONEY OF AMOUNTS EQUAL TO SUCH COMMERCIAL TRANSPORTATION COSTS FOR THE WHOLE OR SUCH PART OF THE TRAVEL FOR WHICH TRANSPORTATION IN KIND IS NOT FURNISHED WHEN SUCH TRAVEL SHALL HAVE BEEN COMPLETED.

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.

UNDER THE ABOVE-QUOTED PROVISIONS OF THE SAID PAY READJUSTMENT ACT OF 1942, AN OFFICER OF THE REGULAR CORPS OF PUBLIC HEALTH SERVICE UPON DISCHARGE NOT THE RESULT OF HIS OWN MISCONDUCT WOULD BE ENTITLED TO MILEAGE FROM HIS LAST STATION TO HIS HOME PROVIDED THAT THE TRAVEL WAS PERFORMED PRIOR TO THE EFFECTIVE DATE OF SUCH DISCHARGE UNDER COMPETENT ORDERS DIRECTING SUCH TRAVEL. CF. 25 COMP. GEN. 425. TRANSPORTATION REQUESTS MAY BE ISSUED FOR SUCH TRAVEL, SUBJECT, OF COURSE, TO PROPER DEDUCTIONS BEING MADE THEREFOR, IN THE SETTLEMENT OF THE MILEAGE CLAIM.

WITH RESPECT TO WHETHER A PER DIEM ALLOWANCE IN LIEU OF SUBSISTENCE COULD BE PAID FOR TRAVEL INCIDENT TO THE RESIGNATION OF AN OFFICER OF THE REGULAR CORPS OF THE PUBLIC HEALTH SERVICE, YOUR ATTENTION IS INVITED TO DECISION OF DECEMBER 19, 1944, WHEREIN IT IS STATED (24 COMP. GEN. 463, 466):

YOUR QUESTION (2) IS WITH RESPECT TO AN OFFICER'S RIGHT TO MILEAGE UNDER ORDERS DIRECTING HIM TO RETURN TO HIS HOME AND UPON ARRIVAL, OR AT SOME OTHER DATE, TO CONSIDER HIMSELF RELIEVED FROM ACTIVE DUTY, IF SUCH ITEMS ARE ISSUED WHILE HE IS IN A PER DIEM STATUS. IT SEEMS EVIDENT THAT SUCH ORDERS WOULD HAVE THE EFFECT OF TERMINATING THE TEMPORARY DUTY ENJOINED IN HIS PRIOR ORDERS AND WOULD NOT CONTEMPLATE ADDITIONAL DUTY OF ANY KIND, EXCEPT THAT WHICH WAS INCIDENT TO THE OFFICER'S TRAVEL TO HIS HOME AND RELEASE FROM ACTIVE DUTY. THE STATUTORY PROVISION QUOTED ABOVE (58 STAT. 309) AUTHORIZING THE PAYMENT OF A PER DIEM CONTEMPLATES AN ASSIGNMENT TO DUTY AWAY FROM THE OFFICER'S DESIGNATED POST OF DUTY AND DOES NOT APPEAR TO BE FOR APPLICATION TO THE CASE OF A RESERVE OFFICER TRAVELING TO HIS HOME IN CONNECTION WITH HIS RELEASE FROM ACTIVE DUTY IN WHICH CASE IT SEEMS CLEAR THAT ANY ASSIGNMENT TO A DESIGNATED POST OF DUTY IS TERMINATED. A MILEAGE ALLOWANCE FOR TRAVEL BY A RESERVE OFFICER FROM HIS LAST STATION TO HIS HOME IN CONNECTION WITH RELIEF FROM ACTIVE DUTY IS EXPRESSLY AUTHORIZED BY THE PROVISIONS OF SECTIONS 3 AND 12 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 359, AS AMENDED BY SECTIONS 7 AND 9 OF THE ACT OF SEPTEMBER 7, 1944, 58 STAT. 730, PUBLIC LAW 421; AND, UNDER THE CIRCUMSTANCES HERE CONSIDERED, SUCH ALLOWANCE IS AUTHORIZED TO BE PAID IRRESPECTIVE OF THE FACT THAT THE OFFICER CONCERNED WAS IN A PER DIEM STATUS IMMEDIATELY PRECEDING TRAVEL TO HIS HOME. YOUR QUESTION (2) IS ANSWERED ACCORDINGLY.

CONSIDERING WHAT WAS THERE SAID, NO SITUATION COMES TO MIND WHERE THERE WOULD BE ANY OCCASION TO PRESCRIBE A PER DIEM ALLOWANCE IN LIEU OF SUBSISTENCE FOR TRAVEL HOME UPON RESIGNATION OF SUCH OFFICERS. IF A SPECIFIC CASE ARISES WHEREIN THE QUESTION IS PRESENTED, IT MAY BE SUBMITTED HERE FOR CONSIDERATION.

YOUR FURTHER QUESTIONS ARE WITH RESPECT TO THE RIGHT OF OFFICERS OF THE REGULAR CORPS OF THE PUBLIC HEALTH SERVICE TO TRANSPORTATION OF DEPENDENTS AND TRANSPORTATION OF HOUSEHOLD EFFECTS UPON RESIGNATION FROM THE SERVICE.

IN DECISION OF AUGUST 4, 1943, 23 COMP. GEN. 73, REFERRED TO IN YOUR LETTER, THESE SAME QUESTIONS WERE CONSIDERED WITH RESPECT TO OFFICERS AND ENLISTED PERSONNEL OF THE REGULAR NAVY AND IT WAS HELD, QUOTING FROM PARAGRAPH ONE OF THE SYLLABUS:

TRANSPORTATION, AT GOVERNMENT EXPENSE, FROM LAST DUTY STATION TO HOME FOR DEPENDENTS AND HOUSEHOLD EFFECTS OF OFFICERS AND ENLISTED MEN OF THE REGULAR NAVY UPON THEIR DISCHARGE FROM THE SERVICE IS NOT AUTHORIZED BY SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942.

THIS SAME CONCLUSION IS APPLICABLE TO OFFICERS OF THE REGULAR CORPS OF THE PUBLIC HEALTH SERVICE.

PRIOR TO THE ENACTMENT OF THE ABOVE-QUOTED PROVISIONS OF THE PAY READJUSTMENT ACT OF 1942, TRANSPORTATION FOR DEPENDENTS--- THE ENTITLEMENTS TO WHICH GENERALLY PARALLEL THE ENTITLEMENTS TO TRANSPORTATION OF HOUSEHOLD EFFECTS--- OF MEMBERS OF VARIOUS SERVICES WHEN SUCH MEMBERS WERE ORDERED TO MAKE A PERMANENT CHANGE OF STATION, WAS GOVERNED BY SECTION 12 OF THE ACT OF MAY 18, 1920, 41 STAT. 604, AND SECTION 12 OF THE PAY READJUSTMENT ACT OF 1922, 42 STAT. 631. THE PROVISIONS OF THOSE ACTS UNIFORMLY WERE INTERPRETED AS NOT AUTHORIZING TRANSPORTATION OF DEPENDENTS OF SUCH MEMBERS FROM HOME TO FIRST STATION UPON ENTRY INTO THE SERVICE AND FROM LAST STATION TO HOME UPON SEPARATION FROM THE SERVICE. SEE UNITED STATES V. PHISTERER, 94 U.S. 219, 222, HOLDING THAT THE HOME OF AN OFFICER IS NOT A MILITARY STATION; ALSO, 27 COMP. DEC. 61; 3 COMP. GEN. 358; 15 ID. 1040; 18 ID. 921; 20 ID. 363; 22 ID. 885. BY SPECIFIC STATUTORY PROVISIONS, EXCEPTIONS TO THAT RULE HAVE BEEN MADE, FROM TIME TO TIME, BY THE INCLUSION WITHIN THE DEFINITION OF THE PHRASE ,PERMANENT CHANGE OF STATION"--- INSOFAR AS TRANSPORTATION OF DEPENDENTS IS CONCERNED--- THE HOME TO WHICH SUCH PERSONNEL ARE ORDERED IN CONNECTION WITH RETIREMENT (SEE SECTION 3, THE ACT OF JUNE 24, 1935, 49 STAT. 421) AND BY EXPRESSLY AUTHORIZING THE TRANSPORTATION OF DEPENDENTS OF RETIRED OR RESERVE PERSONNEL WHEN ORDERED TO AND RELEASED FROM ACTIVE DUTY. SEE THE ACT OF MARCH 17, 1941, 55 STAT. 34, 35, AND SUCCEEDING ANNUAL NAVAL APPROPRIATIONS ACTS. THOSE EXCEPTIONS ARE INCORPORATED INTO THE QUOTED PROVISIONS OF THE PAY READJUSTMENT ACT OF 1942, AND SUCH PROVISIONS OF THE PAY READJUSTMENT ACT, WITH EXCEPTIONS NOT HERE MATERIAL, HAVE BEEN VIEWED AS BEING MERELY A RE-ENACTMENT OF THE PRIOR PROVISIONS.

THE WORDS "WHEN ORDERED TO ACTIVE DUTY OTHER THAN TRAINING DUTY" AND "RELIEF FROM ACTIVE DUTY" USED IN THE STATUTORY DEFINITION OF THE TERM "PERMANENT CHANGE OF STATION" CONTAINED IN SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942, ARE PARTICULARLY APPLICABLE TO PERSONNEL OF RESERVE COMPONENTS, WHEREAS THEY ARE PRACTICALLY MEANINGLESS INSOFAR AS PERSONNEL OF THE REGULAR ESTABLISHMENTS ARE CONCERNED. SUCH PROVISIONS HAVE REFERENCE TO A STATUS IN WHICH PERSONNEL MAY BE IN EITHER AN ACTIVE OR AN INACTIVE DUTY STATUS. A MEMBER OF THE REGULAR ESTABLISHMENTS--- NOT ON THE RETIRED LIST--- HAS NO INACTIVE DUTY STATUS TO WHICH HE MAY REVERT OR BE ORDERED FROM AND, HENCE, HE IS NOT ORDERED TO ACTIVE DUTY NOR RELIEVED FROM ACTIVE DUTY. SEE 22 COMP. GEN. 645, ID. 885. ALSO, IT SEEMS PERTINENT TO MENTION THAT IT WAS NOT UNTIL THE ENACTMENT OF SECTION 9 OF THE ACT OF SEPTEMBER 7, 1944, 58 STAT. 730, AMENDING SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942, SUPRA, THAT MILEAGE WAS AUTHORIZED TO BE PAID TO AN OFFICER OF THE REGULAR SERVICES, AS DISTINGUISHED FROM THE RESERVE COMPONENTS, INCIDENT TO FIRST REPORTING FOR DUTY, IT PREVIOUSLY HAVING BEEN HELD OVER THE YEARS THAT PUBLIC OFFICERS, CIVILIAN AS WELL AS MILITARY, MUST PLACE THEMSELVES AT THE PLACE WHERE THEY ARE FIRST TO PERFORM DUTY WITHOUT EXPENSE TO THE GOVERNMENT. SEE 22 COMP. GEN. 885, SUPRA. HENCE, EVEN IF THE LANGUAGE OF SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942, DEFINING A TERM "PERMANENT CHANGE OF STATION" OTHERWISE COULD HAVE BEEN VIEWED AS APPLICABLE TO OFFICERS OF THE REGULAR ESTABLISHMENTS SO AS TO INCLUDE A CHANGE FROM HOME TO FIRST STATION OF SUCH AN OFFICER, A CONCLUSION THAT SUCH WAS THE INTENTION OF THE CONGRESS WOULD HAVE BEEN EXTREMELY DOUBTFUL FOR TO SO HOLD WOULD HAVE PRESENTED THE ANOMALOUS SITUATION OF RECOGNIZING STATUTORY AUTHORITY FOR TRANSPORTATION OF AN OFFICER'S DEPENDENTS FROM HIS HOME TO HIS FIRST DUTY STATION WHEN THERE WAS NO AUTHORITY FOR PAYMENT FOR THE TRANSPORTATION OF THE OFFICER HIMSELF. IN VIEW OF THE FOREGOING, THE CONCLUSION IS REQUIRED THAT OFFICERS OF THE REGULAR CORPS OF THE PUBLIC HEALTH SERVICE ARE NOT ENTITLED TO TRANSPORTATION OF THEIR DEPENDENTS OR TRANSPORTATION OF THEIR HOUSEHOLD EFFECTS TO THEIR HOMES UPON RESIGNATION FROM THE SERVICE.