B-10730, JULY 1, 1940, 20 COMP. GEN. 1

B-10730, JULY 1, 1940, 20 COMP. GEN. 1

TRAVEL ALLOWANCE - NAVAL RESERVISTS 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 THE TRAVEL ALLOWANCE PRESCRIBED BY SECTION 126 OF THE NATIONAL DEFENSE ACT, AS AMENDED, EVEN THOUGH THEY IMMEDIATELY REENLIST OR EXTEND THEIR ENLISTMENTS. 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.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY, JULY 1, 1940:

THERE HAS BEEN CONSIDERED YOUR LETTER OF JUNE 6, 1940, AS FOLLOWS:

THE NAVY DEPARTMENT HAS UNDER CONSIDERATION A QUESTION RAISED BY THE DISBURSING OFFICER, U.S. NAVAL AIR STATION, PENSACOLA, FLA., AS TO WHETHER TRAVEL ALLOWANCE IS PAYABLE IN THE CASE OF CLASS V RESERVES WHOSE ENLISTMENTS EXPIRE WHILE ON ACTIVE DUTY AND WHO REENLIST, AND IN THE CASE OF SUCH MEN SERVING IN FIRST EXTENSION OF ENLISTMENT WHOSE TERMS OF EXTENSION OF ENLISTMENT EXPIRE UNDER THE SAME CIRCUMSTANCES.

SECTION 7 OF THE NAVAL RESERVE ACT OF 1938, APPROVED JUNE 25, 1938 (52 STAT. 1176; 34 U.S. CODE, SUP. V, SEC. 853E), PROVIDES RELATIVE TO PAY AND ALLOWANCES OF ENLISTED MEN OF THE NAVAL RESERVE, AS FOLLOWS:

"* * * ENLISTED MEN OF THE NAVAL RESERVE, INCLUDING THOSE ON THE HONORARY RETIRED LIST, OR WHO MAY HAVE BEEN RETIRED, WHEN EMPLOYED ON ACTIVE DUTY OR ON TRAINING DUTY WITH PAY OR WHEN EMPLOYED IN AUTHORIZED TRAVEL TO AND FROM SUCH DUTY, SHALL RECEIVE THE SAME PAY AND ALLOWANCES AS RECEIVED BY * * * ENLISTED MEN OF THE REGULAR NAVY OF THE SAME RANK, GRADE, OR RATING, AND OF THE SAME LENGTH OF SERVICE * * *.'

UNDER THE ACT OF SEPTEMBER 22, 1922 (42 STAT. 1021; 34 U.S.C. 895), AN ENLISTED MAN OF THE REGULAR NAVY DISCHARGED BY REASON OF EXPIRATION OF ENLISTMENT OR EXTENDED ENLISTMENT IS ENTITLED TO TRAVEL ALLOWANCE AT THE RATE OF 5 CENTS PER MILE FROM THE PLACE OF DISCHARGE TO THE PLACE OF HIS ACCEPTANCE FOR ENLISTMENT, ENROLLMENT, OR MUSTER INTO THE SERVICE.

ARTICLE H-2504, BUREAU OF NAVIGATION MANUAL, AS AMENDED BY CHANGE NO. 13, DATED NOVEMBER 6, 1939, PROVIDES, RELATIVE TO TERMS OF ENLISTMENTS AND REENLISTMENTS IN THE NAVAL RESERVE, IN PART, AS FOLLOWS:

"/1) ENLISTMENTS AND REENLISTMENTS IN THE NAVAL RESERVE SHALL BE FOR TERMS OF 4 YEARS.

"/2) ENLISTED MEN MAY BE PERMITTED TO EXTEND THEIR ENLISTMENTS FOR PERIODS OF 1, 2, 3, OR 4 YEARS UNDER THE SAME REGULATIONS AS PRESCRIBED FOR EXTENSIONS OF ENLISTMENTS IN THE REGULAR NAVY.'

IN A DECISION OF THE FORMER COMPTROLLER GENERAL OF THE UNITED STATES OF NOVEMBER 9, 1926, A-16100, IT WAS HELD:

"THE ACT OF SEPTEMBER 22, 1922 (42 STAT. 1021), AUTHORIZING TRAVEL ALLOWANCE FOR ENLISTED MEN OF THE NAVY, IS NOT APPLICABLE TO AN ENLISTED MAN OF THE NAVAL RESERVE DISCHARGED IN TIME OF PEACE, WHETHER OR NOT ON ACTIVE DUTY AT TIME OF DISCHARGE, AND WHETHER AN ENROLLED, ENLISTED, OR TRANSFERRED MEMBER THEREOF.' THIS DECISION IN TERMS IS RESTRICTED TO ENLISTED MEN OF THE NAVAL RESERVE WHO ARE DISCHARGED "IN TIME OF PEACE.' IT DOES NOT COVER THE QUESTION PRESENTED IN THIS SUBMISSION, AS TO THE RIGHT OF AN ENLISTED MAN OF THE NAVAL RESERVE TO PAYMENT OF TRAVEL ALLOWANCE UPON DISCHARGE AT THE EXPIRATION OF HIS ENLISTMENT OR EXTENDED ENLISTMENT WHILE ON ACTIVE DUTY IN TIME OF WAR OR NATIONAL EMERGENCY.

ENLISTED MEN OF THE NAVAL RESERVE ARE BEING CALLED TO ACTIVE DUTY IN CONNECTION WITH THE NATIONAL EMERGENCY DECLARED BY THE PRESIDENT AS EXISTING IN HIS PROCLAMATION OF SEPTEMBER 8, 1939. IN VIEW OF THIS FACT, YOUR DECISION IS REQUESTED AS TO WHETHER ENLISTED MEN OF THE NAVAL RESERVE ON ACTIVE DUTY IN TIME OF WAR OR NATIONAL EMERGENCY ARE ENTITLED TO PAYMENT OF TRAVEL ALLOWANCE UPON EXPIRATION OF ENLISTMENT UNDER THE SAME CIRCUMSTANCES THAT ENLISTED MEN OF THE REGULAR NAVY ARE ENTITLED TO PAYMENT OF TRAVEL ALLOWANCE UPON EXPIRATION OF ENLISTMENT.

SECTION 126 OF THE NATIONAL DEFENSE ACT, AS AMENDED SEPTEMBER 22, 1922, 42 STAT. 1021, SO FAR AS HERE MATERIAL PROVIDES:

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: PROVIDED, THAT FOR SEA TRAVEL INVOLVED IN TRAVEL BETWEEN PLACE OF DISCHARGE AND PLACE OF ACCEPTANCE FOR ENROLLMENT, ENLISTMENT, OR MUSTER INTO THE SERVICE ONLY TRANSPORTATION IN KIND AND SUBSISTENCE EN ROUTE SHALL BE ALLOWED: * * *

THE ACT OF SEPTEMBER 29, 1919, 41 STAT. 288, ENTITLED " AN ACT TO PROVIDE TRAVEL ALLOWANCES FOR CERTAIN RETIRED ENLISTED MEN AND REGULAR ARMY RESERVISTS," PROVIDES:

THAT SECTION 126 OF THE ACT ENTITLED " AN ACT FOR MAKING FURTHER AND MORE EFFECTUAL PROVISIONS FOR THE NATIONAL DEFENSE, AND FOR OTHER PURPOSES," APPROVED JUNE 3, 1916, AS AMENDED BY SECTION 3 OF AN ACT ENTITLED " AN ACT PERMITTING ANY PERSON WHO HAS SERVED IN THE UNITED STATES ARMY, NAVY, OR MARINE CORPS IN THE PRESENT WAR TO RETAIN HIS UNIFORM AND PERSONAL EQUIPMENT, AND TO WEAR THE SAME UNDER CERTAIN CONDITIONS," APPROVED FEBRUARY 28, 1919, SHALL BE HELD TO APPLY TO ANY ENLISTED MAN FOR WHOM THE LAW AUTHORIZES TRAVEL ALLOWANCES AS AN INCIDENT TO ENTRY UPON AND RELIEF FROM ACTIVE DUTY WITH THE ARMY WHO HAS BEEN CALLED INTO ACTIVE SERVICE DURING THE PRESENT EMERGENCY, OR WHO SHALL HEREAFTER BE CALLED INTO ACTIVE SERVICE.

THIS LAST QUOTED PROVISION, IF SUBSISTING LAW, IS APPLICABLE ONLY TO THE ARMY AND IS QUOTED FOR SUCH INTERPRETATIVE VALUE AS IT MAY HAVE.

SECTIONS 4 AND 201 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1175, PROVIDE FOR ENLISTMENT IN THE NAVAL RESERVE UNDER SUCH REGULATIONS AS THE SECRETARY OF THE NAVY MAY PRESCRIBE AND SECTION 205 PROVIDES FOR TRANSFER OF ENLISTED MEN UPON EXPIRATION OF TERM OF SERVICE IN THE REGULAR NAVY TO SERVE FOR 4 YEARS IN THE FLEET RESERVE. SECTION 5 OF THE ACT PROVIDES:

ANY MEMBER OF THE NAVAL RESERVE * * * MAY BE ORDERED TO ACTIVE DUTY BY THE SECRETARY OF THE NAVY IN TIME OF WAR OR WHEN IN THE OPINION OF THE PRESIDENT A NATIONAL EMERGENCY EXISTS AND MAY BE REQUIRED TO PERFORM ACTIVE DUTY THROUGHOUT THE WAR OR UNTIL THE NATIONAL EMERGENCY CEASES TO EXIST; BUT IN TIME OF PEACE, EXCEPT AS OTHERWISE PROVIDED IN THIS ACT, HE SHALL BE ORDERED TO OR CONTINUED ON ACTIVE DUTY WITH HIS OWN CONSENT ONLY: * * * PROVIDED FURTHER, THAT THE SECRETARY OF THE NAVY MAY RELEASE ANY MEMBER FROM ACTIVE DUTY EITHER IN TIME OF WAR OR IN TIME OF PEACE. ITALICS SUPPLIED.)

SECTION 6 CONTAINS A PROVISO:

* * * THAT OFFICERS AND ENLISTED MEN OF THE NAVAL RESERVE ON ACTIVE DUTY SHALL BE SUBJECT TO SEPARATION THEREFROM IN THE SAME MANNER AS MAY BE PROVIDED BY OR IN PURSUANCE OF LAW FOR THE SEPARATION OF OFFICERS AND ENLISTED MEN OF THE REGULAR NAVY: * * *.

SECTION 7, SO FAR AS HERE MATERIAL, IS AS QUOTED IN YOUR LETTER. SECTION 301 OF THE ACT SUBJECTS ALL MEMBERS OF THE NAVAL RESERVE WHEN ON ACTIVE DUTY TO THE LAWS, REGULATIONS, AND ORDERS FOR THE GOVERNMENT OF THE NAVY. NEITHER THE NAVAL RESERVE ACT OF 1938 NOR THE APPROPRIATIONS UNDER " NAVAL RESERVE" FOR THE FISCAL YEARS 1940, 53 STAT. 757, 762, OR 1941, ACT OF JUNE 11, 1940, PUBLIC, NO. 588, 54 STAT. 265, SPECIFICALLY PROVIDES FOR TRANSPORTATION AND SUBSISTENCE FOR ENLISTED MEN OF THE NAVAL RESERVE TRAVELING TO AND FROM ACTIVE DUTY BUT SUCH ALLOWANCES ARE AUTHORIZED FOR ENLISTED MEN OF THE REGULAR NAVY TRAVELING ON DUTY. SUCH TRAVEL TO AND FROM ACTIVE DUTY DOES NOT FALL WITHIN SECTION 126 OF THE NATIONAL DEFENSE ACT AND, AS COMMUTATION OF THE COST OF TRANSPORTATION OR SUBSISTENCE IS AUTHORIZED ONLY AS THE LAW PROVIDES, TRANSPORTATION AND SUBSISTENCE IS ALL THAT IS AUTHORIZED TO BE FURNISHED IN TRAVELING TO AND FROM ACTIVE DUTY, UNLESS SECTION 126 OF THE NATIONAL DEFENSE ACT IS APPLICABLE TO A DISCHARGE WHILE ON ACTIVE DUTY.

YOUR LETTER SUGGESTS THE INQUIRY IS WITH RESPECT TO ENLISTED MEN ON ACTIVE DUTY FOR THE EMERGENCY WHOSE ENLISTMENTS WILL EXPIRE AND WHO EITHER REENLIST OR EXTEND THEIR ENLISTMENTS UPON EXPIRATION. WHETHER CONSIDERATION HAS BEEN GIVEN TO THE ITALICIZED PORTION OF SECTION 5 AS ABOVE QUOTED IS NOT APPARENT. SEE IN THIS CONNECTION SECTION 38 OF THE NATIONAL DEFENSE ACT AS AMENDED BY SECTION 4 OF THE ACT OF JUNE 15, 1933, 48 STAT. 155; SECTION 55 OF THE LAST CITED ACT AS AMENDED BY SECTION 35 OF THE ACT OF JUNE 4, 1920, 41 STAT. 780; AND THE ACT OF MARCH 15, 1940, PUBLIC, 438, 54 STAT. 53, AND ACT OF MAY 14, 1940, PUBLIC, NO. 513, 54 STAT. 213, WHERE PROVISIONS ARE MADE FOR CONTINUANCE OF THE OBLIGATION TO SERVE WHEN ON ACTIVE DUTY DURING WAR OR DURING EMERGENCY DECLARED BY THE CONGRESS AND FOR 6 MONTHS THEREAFTER IN THE CASE OF APPOINTMENTS AND ENLISTMENTS IN THE ARMY OR THE AUXILIARY FORCES OF THE ARMY.

THE APPROPRIATION UNDER " TRANSPORTATION AND RECRUITING OF NAVAL PERSONNEL" UNDER " PAY, SUBSISTENCE, AND TRANSPORTATION OF NAVAL PERSONNEL," BOTH FOR THE FISCAL YEAR 1940, 53 STAT. 768, AND FOR THE FISCAL YEAR 1941, ACT OF JUNE 11, 1940, PUBLIC, NO. 588, 54 STAT. 265, PAGE 13, CONTAINS AN ITEM---

* * * FOR TRAVEL ALLOWANCE OR FOR TRANSPORTATION AND SUBSISTENCE AS AUTHORIZED BY LAW OF ENLISTED MEN UPON DISCHARGE; * * *

BOTH OF THESE APPROPRIATIONS ARE AVAILABLE AS FOLLOWS, THE PORTION SHOWN IN BRACKETS BEING ADDITIONAL LANGUAGE CONTAINED IN THE APPROPRIATION FOR THE FISCAL YEAR 1941:

IN ALL, FOR PAY, SUBSISTENCE, AND TRANSPORTATION OF NAVAL PERSONNEL ( NAVAL RESERVE AVIATION OFFICERS ON ACTIVE DUTY, AND), MEMBERS OF THE NAVAL RESERVE WHEN CALLED TO ACTIVE DUTY IN TIME OF WAR OR DURING THE EXISTENCE OF A NATIONAL EMERGENCY DECLARED BY THE PRESIDENT, * * *

I CONCLUDE THAT IF THE NAVY DEPARTMENT, NOTWITHSTANDING THE PROVISIONS OF SECTION 5 HEREIN QUOTED FROM THE NAVAL RESERVE ACT OF 1938, IS OF OPINION THAT MEMBERS OF THE NAVAL RESERVE CALLED TO ACTIVE DUTY IN CONNECTION WITH THE EXISTING EMERGENCY DECLARED BY THE PRESIDENT AND WHOSE ENLISTMENTS IN THE NAVAL RESERVE EXPIRE WHILE ON ACTIVE DUTY MUST BE DISCHARGED FROM THE NAVAL RESERVE, THEY MAY BE PAID THE TRAVEL ALLOWANCES PRESCRIBED BY SECTION 126 OF THE NATIONAL DEFENSE ACT AND THAT SUCH ALLOWANCES ARE PAYABLE EVEN IF THEY IMMEDIATELY REENLIST OR EXTEND THEIR ENLISTMENTS. IS TO BE NOTED, HOWEVER, THAT THE BASIS OF PAYMENT UNDER THE TERMS OF SECTION 126 WILL BE DIFFERENT FROM THE BASIS FOR PAYMENTS MADE TO ENLISTED MEN OF THE REGULAR NAVY. THE LATTER ARE ENTITLED TO TRAVEL ALLOWANCE TO THE PLACE OF ACCEPTANCE FOR ENLISTMENT. 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.