B-132032, JUL. 17, 1957

B-132032, JUL. 17, 1957

TO MR. OLIVER P. TURNER:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 17, 1957, REQUESTING REVIEW OF OUR SETTLEMENT OF MAY 15, 1957, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT OF $548.85 PAID BY YOU TO THE DEPARTMENT OF STATE FOR PASSAGE ABOARD THE M.S. GRIPSHOLM FROM MORMUGAO, PORTUGUESE INDIA, TO NEW YORK, NEW YORK, IN DECEMBER 1943.

THE RECORDS SHOW THAT YOU WERE TRANSFERRED IN SEPTEMBER 1941 TO THE FLEET MARINE CORPS RESERVE UPON SEPARATION FROM AN ENLISTMENT IN THE U.S. MARINE CORPS ENTERED INTO AT SHANGHAI, CHINA, IN 1937. IT IS INDICATED THAT YOU WERE SUBSEQUENTLY TRANSFERRED TO THE RETIRED LIST OF THE MARINE CORPS. YOU STATED THAT YOU WAIVED TRANSPORTATION FROM CAVITE, P.I., TO SHANGHAI, THE PLACE OF YOUR LAST REENLISTMENT, AT THE TIME OF YOUR SEPARATION. IS INDICATED THAT YOU WERE SEIZED BY THE JAPANESE AT SHANGHAI ON NOVEMBER 5, 1942, AND THAT UPON BEING RELEASED YOU WERE RETURNED TO THE UNITED STATES ON THE GRIPSHOLM IN DECEMBER 1943. YOUR CLAIM WAS DISALLOWED IN THE SETTLEMENT OF MAY 15, 1957, ON THE BASIS THAT YOUR SEPARATION FROM ACTIVE SERVICE IN SEPTEMBER 1941 CONSTITUTED A DISCHARGE FOR PURPOSES OF ENTITLEMENT TO TRAVEL ALLOWANCE, AND THAT YOU WERE ENTITLED TO TRANSPORTATION AT GOVERNMENT EXPENSE AT THAT TIME, THEREFORE, ONLY FROM THE PHILIPPINE ISLANDS TO SHANGHAI, WHERE YOU LAST ENLISTED, THE RIGHT TO WHICH YOU WAIVED.

AT THE TIME OF YOUR TRANSFER TO THE FLEET MARINE CORPS RESERVE THERE WAS NO AUTHORITY FOR THE REIMBURSEMENT OF TRAVEL EXPENSES OF A RESERVIST OR A RETIRED MEMBER EXCEPT FOR TRAVEL PERFORMED IN COMPLIANCE WITH THE REQUIREMENTS OF COMPETENT TRAVEL ORDERS, AND THE LAW MADE NO EXPRESS PROVISION FOR TRAVEL ALLOWANCE UPON TRANSFER TO THE FLEET MARINE CORPS RESERVE. HOWEVER, UPON A CONSIDERATION THAT A TRANSFER TO THE FLEET RESERVE NOT INVOLVING A CONTINUATION ON ACTIVE DUTY TERMINATED A MAN'S CONTRACT OF ENLISTMENT AS THOUGH DISCHARGE WERE EFFECTED, IT WAS HELD BY THIS OFFICE THAT SUCH TRANSFER WAS THE EQUIVALENT OF THE DISCHARGE CONTEMPLATED BY THE ACT OF SEPTEMBER 22, 1922, 42 STAT. 1021, AMENDING SECTION 126 OF THE NATIONAL DEFENSE ACT OF JUNE 3, 1916, AND THE TRAVEL ALLOWANCE THERE PROVIDED WAS AUTHORIZED FOR PAYMENT INCIDENT TO TRANSFERS OF THAT NATURE. 19 COMP. GEN. 225. SEE, ALSO, BALDWIN V. UNITED STATES, 100 C.CLS. 343. SINCE THE TRAVEL IN QUESTION WAS NOT PERFORMED AS A RESERVIST OR A RETIRED MEMBER IN COMPLIANCE WITH THE REQUIREMENTS OF COMPETENT TRAVEL ORDERS, ANY RIGHT TO REIMBURSEMENT FOR YOUR TRAVEL NECESSARILY WOULD ARISE UNDER THAT ACT.

UNDER THE PROVISIONS OF THE CITED ACT OF SEPTEMBER 22, 1922, QUOTED IN PERTINENT PART IN THE SETTLEMENT OF MAY 15, 1957, AN ENLISTED MAN, UPON DISCHARGE, WAS ENTITLED TO RECEIVE AN ALLOWANCE OF FIVE CENTS PER MILE "FOR THE DISTANCE FROM THE PLACE OF HIS DISCHARGE TO THE PLACE OF HIS ACCEPTANCE OR ENLISTMENT, ENROLLMENT, OR MUSTER INTO THE SERVICE," PROVIDED THAT FOR SEA TRAVEL INVOLVED BETWEEN THOSE POINTS ONLY TRANSPORTATION IN KIND AND SUBSISTENCE EN ROUTE WERE AUTHORIZED. INASMUCH AS THE ENLISTMENT FROM WHICH YOU WERE SEPARATED UPON TRANSFER TO THE FLEET MARINE CORPS RESERVE WAS ENTERED INTO AT SHANGHAI, YOU WERE ENTITLED ONLY TO TRAVEL ALLOWANCE AND SEA TRAVEL IN KIND FROM THE PHILIPPINE ISLANDS TO SHANGHAI. YOU WERE NOT ENTITLED, THEREFORE, TO TRANSPORTATION IN KIND FOR THE TRAVEL BACK TO THE UNITED STATES AS A MATTER OF RIGHT INCIDENT TO YOUR TRANSFER TO THE FLEET MARINE CORPS RESERVE AND, CONSEQUENTLY, NO BASIS EXISTS FOR REIMBURSEMENT TO YOU OF THE AMOUNT PAID TO THE DEPARTMENT OF STATE FOR YOUR PASSAGE ABOARD THE GRIPSHOLM. ACCORDINGLY, THE SETTLEMENT OF MAY 15, 1957, IS SUSTAINED.