B-10730, JULY 9, 1941, 21 COMP. GEN. 11

B-10730, JULY 9, 1941, 21 COMP. GEN. 11

TRAVEL ALLOWANCE - NAVAL RESERVISTS THE TRAVEL ALLOWANCE PAYABLE, UNDER THE DECISION PUBLISHED IN 20 COMP. GEN. 1, TO MEMBERS OF THE NAVAL RESERVE WHO ARE DISCHARGED AT EXPIRATION OF ENLISTMENT WHILE ON ACTIVE DUTY IN CONNECTION WITH THE EXISTING EMERGENCY DECLARED BY THE PRESIDENT SHOULD BE COMPUTED UPON THE DISTANCE FROM THE PLACE OF DISCHARGE TO THE SAME PLACE TO WHICH THEY WOULD BE ENTITLED TO TRANSPORTATION AND SUBSISTENCE WERE THEY RELIEVED FROM ACTIVE DUTY AND NOT DISCHARGED FROM THE NAVAL RESERVE. FROM AND AFTER THE DATE OF RECEIPT OF ALNAV 59, DATED JUNE 10, 1941, WHICH PROVIDES THAT " NAVAL RESERVE ENLISTED PERSONNEL * * * WILL BE RETAINED ON ACTIVE DUTY FOR DURATION OF THE EXISTING NATIONAL EMERGENCY EVEN THOUGH BEYOND THEIR TERM OF ENLISTMENT," A REENLISTMENT ENTERED INTO OR EXTENSION TAKING EFFECT THEREAFTER IS SUPERFLUOUS AND INOPERATIVE TO CONFER A RIGHT TO TRAVEL ALLOWANCE.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY, JULY 9, 1941:

THERE HAS BEEN CONSIDERED YOUR LETTER OF MAY 3, 1941, AS FOLLOWS:

IN THE ASSISTANT COMPTROLLER GENERAL'S DECISION B-14980 OF MARCH 14, 1941, THE QUESTION WAS CONSIDERED AS TO WHETHER ENLISTED MEN OF THE NAVAL RESERVE DISCHARGED AT OTHER THAN EXPIRATION OF ENLISTMENT WHILE ON ACTIVE DUTY IN TIME OF WAR OR NATIONAL EMERGENCY WERE ENTITLED TO TRAVEL ALLOWANCE UNDER THE SAME CONDITIONS AS ENLISTED MEN OF THE REGULAR NAVY. IT WAS STATED IN THE DECISION:

" * * * THE OBLIGATION OF THE GOVERNMENT TO RETURN AN ENLISTED MAN OF THE NAVAL RESERVE TO HIS HOME OR THE PLACE FROM WHICH TAKEN FOR ACTIVE DUTY UPON RELEASE THEREFROM IS NOT INCREASED IF AT SUCH TIME HE IS DISCHARGED FROM HIS ENLISTMENT CONTRACT. WHEN SO RELEASED FROM ACTIVE DUTY (THAT IS, BY DISCHARGE) EITHER DURING A TIME OF WAR OR NATIONAL EMERGENCY OR IN TIME OF PEACE, THE MAN IS ENTITLED TO NOTHING MORE THAN TRANSPORTATION AND SUBSISTENCE TO THE PLACE FROM WHICH HE ENTERED ON ACTIVE DUTY.'

THE SPECIFIC QUESTION PRESENTED FOR DECISION ACCORDINGLY WAS ANSWERED BY STATING THAT "ENLISTED MEN OF THE NAVAL RESERVE WHO ARE DISCHARGED OTHER THAN AT EXPIRATION OF ENLISTMENT WHEN ON ACTIVE DUTY IN TIME OF WAR OR NATIONAL EMERGENCY ARE NOT ENTITLED TO TRAVEL ALLOWANCE AT FIVE CENTS PER MILE.'

IN THE ACTING COMPTROLLER GENERAL'S DECISION OF JULY 1, 1940 (20 COMP. GEN. 1), THE STATEMENT WAS MADE THAT IF THE NAVY DEPARTMENT IS OF THE OPINION THAT ENLISTED MEN OF THE NAVAL RESERVE WHOSE ENLISTMENTS EXPIRE WHILE ON ACTIVE DUTY DURING THE PRESENT EMERGENCY MUST BE DISCHARGED, THEY MAY BE PAID THE TRAVEL ALLOWANCES PRESCRIBED BY SECTION 126 OF THE NATIONAL DEFENSE ACT, AS AMENDED SEPTEMBER 22, 1922 (42 STAT. 1021; 34 U.S.C. 895), AND THAT SUCH ALLOWANCES ARE PAYABLE EVEN IF THEY IMMEDIATELY REENLIST OR EXTEND THEIR ENLISTMENTS. IN THIS DECISION IT WAS HELD THAT MEMBERS OF THE NAVAL RESERVE DISCHARGED AT EXPIRATION OF ENLISTMENT ARE ENTITLED TO TRAVEL ALLOWANCE TO THE PLACE AT WHICH FOUND PHYSICALLY FIT FOR ACTIVE DUTY. THE NAVY DEPARTMENT HAS DETERMINED THAT ENLISTED MEN OF THE NAVAL RESERVE ON ACTIVE DUTY ARE ENTITLED TO DISCHARGE AT EXPIRATION OF ENLISTMENT. IN THIS CONNECTION THE FOLLOWING INSTRUCTIONS WERE PUBLISHED TO THE NAVAL SERVICE IN ARTICLE 2506-1 (D), U.S. NAVAL TRAVEL INSTRUCTIONS:

"ON EXPIRATION OF ENLISTMENT.--- ENLISTED MEN OF THE NAVAL RESERVE WHOSE ENLISTMENTS EXPIRE WHILE ON ACTIVE DUTY IN CONNECTION WITH THE NATIONAL EMERGENCY PROCLAIMED BY THE PRESIDENT ARE ENTITLED TO TRAVEL ALLOWANCE AT THE RATE OF 5 CENTS PER MILE FROM PLACE OF DISCHARGE TO PLACE AT WHICH FOUND PHYSICALLY QUALIFIED FOR SUCH ACTIVE DUTY. TRAVEL ALLOWANCE IS PAYABLE REGARDLESS OF IMMEDIATE REENLISTMENT OR EXTENSION OF ENLISTMENT. (COMP. GEN. B-10730, JULY 1, 1940) "

IN DISCUSSING THE PLACE TO WHICH ENLISTED MEN OF THE NAVAL RESERVE ARE ENTITLED TO PAYMENT OF TRAVEL ALLOWANCE ON DISCHARGE AT EXPIRATION OF ENLISTMENT WHILE ON ACTIVE DUTY, IT WAS STATED IN THE ACTING COMPTROLLER GENERAL'S DECISION OF JULY 1, 1940, SUPRA, THAT ENLISTED MEN OF THE REGULAR NAVY ARE ENTITLED TO TRAVEL ALLOWANCE TO THE PLACE OF ACCEPTANCE FOR ENLISTMENT, BUT THAT---

"IN THE CASE OF A MEMBER OF THE NAVAL RESERVE HE IS ENTITLED TO TRAVEL ALLOWANCE TO THE PLACE OF ACCEPTANCE FOR MUSTER INTO THE SERVICE, THAT IS, THE PLACE OF MUSTER IN, THE "ACCEPTANCE" IN HIS CASE BEING THE PLACE HE IS FOUND PHYSICALLY FIT FOR DUTY AND ASSIGNED TO ACTIVE DUTY. IN OTHER WORDS, THE PLACE OF ACCEPTANCE FOR ENLISTMENT IN THE NAVAL RESERVE IN TIME OF PEACE IS NOT NECESSARILY THE PLACE FROM WHICH THE MEMBER ENTERED ON ACTIVE DUTY FOR THE EMERGENCY. ACCORDINGLY, HE WOULD BE ENTITLED TO TRAVEL ALLOWANCE TO THE SAME PLACE HE WOULD BE ENTITLED TO TRANSPORTATION AND SUBSISTENCE WERE HE RELIEVED FROM ACTIVE DUTY AND NOT DISCHARGED FROM THE NAVAL RESERVE.' ( ITALICS SUPPLIED.)

IN CONNECTION WITH THE FOREGOING, IT IS POINTED OUT THAT UNDER THE PROVISIONS OF THE FORMER NAVAL RESERVE ACT OF 1925 (43 STAT. 1080) AND THE PRESENT NAVAL RESERVE ACT OF 1938 (52 STAT. 175; 34 U.S. CODE, SUP. V, SECTION 852, ET SEQ.), ENLISTED MEN OF THE NAVAL RESERVE UPON RELEASE FROM ACTIVE DUTY OR TRAINING DUTY WITH PAY HAVE CONSISTENTLY BEEN FURNISHED WITH TRANSPORTATION AND SUBSISTENCE FROM THE PLACE AT WHICH RELEASED FROM ACTIVE DUTY TO THEIR HOMES OR PLACES FROM WHICH CALLED TO ACTIVE DUTY AND NOT TO THE PLACE AT WHICH FOUND PHYSICALLY QUALIFIED FOR ACTIVE DUTY OR TRAINING DUTY WITH PAY.

FOR REASONS ABOVE SET FORTH, RECONSIDERATION IS REQUESTED OF THAT PART OF THE ACTING COMPTROLLER GENERAL'S DECISION OF JULY 1, 1940 (20 COMP. GEN. 1), HOLDING THAT "MEMBERS OF THE NAVAL RESERVE WHO ARE DISCHARGED AT EXPIRATION OF ENLISTMENT AND WHILE ON ACTIVE DUTY IN CONNECTION WITH THE EXISTING EMERGENCY DECLARED BY THE PRESIDENT, ARE ENTITLED TO TRAVEL ALLOWANCE TO PLACE OF MUSTER IN FOR THE EMERGENCY ACTIVE DUTY SERVICE AND THEREFORE NOT NECESSARILY TO THE PLACE OF ACCEPTANCE FOR ENLISTMENT IN THE NAVAL RESERVE," AND THAT THE NAVY DEPARTMENT BE ADVISED WHETHER ENLISTED MEN OF THE NAVAL RESERVE WHO ARE DISCHARGED AT EXPIRATION OF ENLISTMENT ARE ENTITLED TO TRAVEL ALLOWANCE AT THE RATE OF FIVE CENTS PER MILE FROM THE PLACE AT WHICH THEY ARE RELEASED FROM ACTIVE DUTY TO THE PLACE FROM WHICH THEY ARE CALLED TO ACTIVE DUTY.

FOR REASONS MORE FULLY STATED IN THE DECISION OF JULY 1, 1940, 20 COMP. GEN. 1, REFERRED TO IN YOUR LETTER OF MAY 3, 1941, IT WAS CONCLUDED THAT ENLISTED MEMBERS OF THE NAVAL RESERVE WERE DISCHARGED UPON EXPIRATION OF ENLISTMENT WHILE ON ACTIVE DUTY WERE ENTITLED TO THE TRAVEL ALLOWANCE BENEFITS OF SECTION 126 OF THE NATIONAL DEFENSE ACT AS AMENDED BY THE ACT OF SEPTEMBER 22, 1922, 42 STAT. 1021, WHICH PROVIDED IN PART:

HEREAFTER AN ENLISTED MAN DISCHARGED FROM THE ARMY, NAVY, OR MARINE CORPS, EXCEPT BY WAY OF PUNISHMENT FOR AN OFFENSE, SHALL RECEIVE 5 CENTS PER MILE FOR THE DISTANCE FROM THE PLACE OF HIS DISCHARGE TO THE PLACE OF HIS ACCEPTANCE FOR ENLISTMENT, ENROLLMENT, OR MUSTER INTO THE SERVICE: * *

IT IS UNDERSTOOD THAT IN SOME INSTANCES ENLISTED MEN OF THE NAVAL RESERVE WHEN CALLED TO ACTIVE DUTY ARE ORDERED TO A PLACE OTHER THAN THEIR HOMES FOR PHYSICAL EXAMINATION TO DETERMINE THEIR PHYSICAL FITNESS AND IF FOUND PHYSICALLY FIT AND ACCEPTED THEY ARE THEN SENT TO A DUTY STATION WHICH MIGHT BE, AND USUALLY IS, A DIFFERENT PLACE THAN THE PLACE FROM WHICH CALLED OR WHERE THE PHYSICAL EXAMINATION WAS CONDUCTED. IN DECISION B- 14980, DATED MARCH 14, 1941, 20 COMP. GEN. 519, IT WAS HELD THAT ENLISTED NAVAL RESERVISTS DISCHARGED AT OTHER THAN EXPIRATION OF ENLISTMENT WERE ENTITLED TO TRANSPORTATION AND SUBSISTENCE TO THE PLACE FROM WHICH THEY ENTERED UPON ACTIVE DUTY.

IN THE DECISION OF JULY 1, 1940, 20 COMP. GEN. 1, IT WAS HELD THAT TRAVEL ALLOWANCE IN SUCH CASE SHOULD BE COMPUTED UPON THE DISTANCE FROM THE PLACE OF DISCHARGE FROM THE NAVAL RESERVE TO THE SAME PLACE TO WHICH HE WOULD BE ENTITLED TO TRANSPORTATION AND SUBSISTENCE WERE HE RELIEVED FROM ACTIVE DUTY AND NOT DISCHARGED FROM THE NAVAL RESERVE. THE COMPUTATION OF DISTANCES ARE ON A COMMON BASIS, WHETHER THE RESERVISTS BE ENTITLED TO TRANSPORTATION AND SUBSISTENCE OR TO TRAVEL ALLOWANCE.

THE CONCLUSION REACHED IN THE DECISION OF JULY 1, 1940, WAS BASED UPON THE ASSUMPTION OF THE NAVY DEPARTMENT'S DETERMINATION THAT ENLISTED NAVAL RESERVISTS WERE REQUIRED TO BE DISCHARGED AT EXPIRATION OF ENLISTMENT NOTWITHSTANDING THE AUTHORITY CONTAINED IN SECTION 5 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1176, FOR THEIR RETENTION, THROUGHOUT A WAR OR UNTIL A NATIONAL EMERGENCY CEASES TO EXIST. IN THIS CONNECTION THERE IS NOTED THE STATEMENT CONTAINED IN THE SECOND PARAGRAPH OF YOUR LETTER OF MAY 3, 1941, QUOTED ABOVE, TO THE EFFECT THAT THE NAVY DEPARTMENT HAS DETERMINED THAT ENLISTED MEN OF THE NAVAL RESERVE ON ACTIVE DUTY ARE ENTITLED TO DISCHARGE AT EXPIRATION OF ENLISTMENT. IT APPEARS THAT THE AUTHORITY PERMITTING REENLISTMENT AND EXTENSION OF ENLISTMENT OF NAVAL RESERVISTS HAS NOW BEEN RESCINDED BY " ALNAV 59" DATED JUNE 10, 1941, WHICH PROVIDES:

EFFECTIVE UPON RECEIPT THIS ALNAV ALL NAVAL RESERVE ENLISTED PERSONNEL ON ACTIVE DUTY OR THEREAFTER ORDERED TO ACTIVE DUTY WILL BE RETAINED ON ACTIVE DUTY FOR DURATION OF THE EXISTING NATIONAL EMERGENCY EVEN THOUGH BEYOND THEIR TERM OF ENLISTMENT X THIS IN ACCORDANCE WITH AGREEMENT SIGNED IN SHIPPING ARTICLES QUOTE (50) IN EVENT OF WAR OR NATIONAL EMERGENCY DURING MY TERM OF SERVICE I FURTHER OBLIGATE MYSELF TO SERVE THROUGHOUT THE WAR OR NATIONAL EMERGENCY IF SO REQUIRED UNQUOTE

THIS NECESSARILY AFFECTS THE DECISION OF JULY 1, 1940. FROM AND AFTER THE DATE OF RECEIPT OF ALNAV 59, THE AUTHORITY AND NECESSITY FOR REENLISTMENTS OR EXTENSIONS OF ENLISTMENTS IN THE NAVAL RESERVE DURING THE EMERGENCY CEASES. IN EFFECT, AND FOR PURPOSES OF TRAVEL ALLOWANCE, THE PERIOD OF DETENTION OF NAVAL RESERVISTS UNDER SECTION 5 OF THE NAVAL RESERVE ACT OF 1938, AND ALNAV 59 UNTIL TERMINATION OF THE EMERGENCY, IS PART OF THE CURRENT ENLISTMENT. ACCORDINGLY, A ,REENLISTMENT" THEREAFTER ENTERED INTO OR AN "EXTENSION" TAKING EFFECT THEREAFTER WOULD BE SUPERFLUOUS AND INOPERATIVE TO CONFER A RIGHT TO TRAVEL ALLOWANCE.