A-47526, MARCH 1, 1933, 12 COMP. GEN. 538

A-47526, MARCH 1, 1933, 12 COMP. GEN. 538

TRAVEL EXPENSES - NAVAL RESERVISTS ON DUTY WITHOUT PAY UNDER THE NAVAL RESERVE ACT OF FEBRUARY 28, 1925, 43 STAT. 1083, 1085, NO MILEAGE TRANSPORTATION OR SUBSISTENCE IS AUTHORIZED FOR MEMBERS OF THE NAVAL RESERVE IN TRAVELING TO OR FROM TRAINING DUTY "WITHOUT PAY.'

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE NAVY, MARCH 1, 1933:

THERE HAS BEEN RECEIVED YOUR LETTER OF FEBRUARY 21, 1933, AS FOLLOWS:

AT THE PRESENT TIME APPROXIMATELY 136 ENLISTED NAVAL RESERVISTS ARE PERFORMING TRAINING DUTY, WITHOUT PAY, ON BOARD THE U.S.S. WYOMING AND ARE BEING FURNISHED SUBSISTENCE IN KIND WHILE ACTUALLY ON BOARD. IT IS DESIRED TO FURNISH THESE MEN WITH TRANSPORTATION TO THEIR HOMES UPON DETACHMENT FROM SUCH DUTY. SOME OF THESE MEN WILL BE DETACHED AT NEW ORLEANS, LA., ABOUT MARCH 7, 1933, AND THE REMAINDER WILL BE DETACHED UPON ARRIVAL OF THE U.S.S. WYOMING AT THE NAVY YARD, NEW YORK, N.Y., ABOUT MARCH 22, 1933.

AN EXAMINATION OF THE VARIOUS PROVISIONS OF THE NAVAL RESERVE ACT APPROVED FEBRUARY 28, 1925 (43 STAT. 1080, ET SEQ.), WITH PARTICULAR REFERENCE TO SECTIONS 11 AND 20 OF THAT ACT AS SET FORTH IN U.S. CODE, TITLE 34, SECTIONS 759 AND 781, AND TO THOSE PROVISIONS OF THE CURRENT NAVAL APPROPRIATION ACT APPROVED JUNE 30, 1932 (47 STAT. 425, 431), MAKING APPROPRIATIONS FOR TRANSPORTATION AND SUBSISTENCE OF NAVAL RESERVE PERSONNEL, RAISES A DOUBT AS TO THE AVAILABILITY OF EXISTING NAVAL RESERVE APPROPRIATIONS TO COVER THE COST OF FURNISHING TRANSPORTATION FOR SUCH NAVAL RESERVISTS TO THEIR HOMES TOGETHER WITH SUBSISTENCE OR CASH IN LIEU THEREOF.

IN VIEW OF THE ABOVE, YOUR DECISION IS RESPECTFULLY REQUESTED AS TO WHETHER OR NOT EXISTING NAVAL RESERVE APPROPRIATIONS ARE AVAILABLE---

(1) TO FURNISH TRANSPORTATION TO ENLISTED NAVAL RESERVISTS TO AND FROM AUTHORIZED TRAINING DUTY, WITHOUT PAY?

(2) TO FURNISH SUCH NAVAL RESERVISTS WITH SUBSISTENCE OR CASH IN LIEU THERROF WHILE IN A TRAVEL STATUS TO AND FROM AUTHORIZED TRAINING DUTY, WITHOUT PAY, (A) TRANSPORTATION ALSO HAVING BEEN FURNISHED, (B) TRANSPORTATION NOT HAVING BEEN FURNISHED?

IN THE EVENT THE ABOVE QUESTIONS ARE DECIDED IN THE AFFIRMATIVE, YOUR FURTHER DECISION IS REQUESTED UPON THE QUESTION AS TO WHETHER OR NOT THE EXPENSES OF TRANSPORTATION, AS AUTHORIZED BY LAW, AND/OR SUBSISTENCE MAY ALSO BE FURNISHED OFFICERS OF THE NAVAL RESERVE WHILE TRAVELING TO AND FROM AUTHORIZED TRAINING DUTY, WITHOUT PAY.

AS PREVIOUSLY INDICATED, SOME OF THE ENLISTED NAVAL RESERVISTS ON BOARD THE U.S.S. WYOMING WILL BE DETACHED FROM THAT VESSEL AT NEW ORLEANS ABOUT MARCH 7, 1933. IN VIEW OF THIS FACT, IT IS REQUESTED THAT THIS MATTER BE CONSIDERED AS URGENT AND THAT YOUR DECISION THEREON BE EXPEDITED ACCORDINGLY.

RELATIVE TO PAY AND ALLOWANCES OF MEMBERS OF THE NAVAL RESERVE AND THE FLEET NAVAL RESERVE WHILE PERFORMING TRAINING DUTY, THE ACT OF FEBRUARY 28, 1925, 43 STAT. 1083, 1085, PROVIDES AS FOLLOWS:

SEC. 11. THAT COMMISSIONED OFFICERS OF THE NAVAL RESERVE WHEN EMPLOYED ON ACTIVE DUTY OR ON TRAINING DUTY, WITH PAY, OR WHEN EMPLOYED IN AUTHORIZED TRAVEL TO AND FROM SUCH DUTY, SHALL BE DEEMED TO HAVE BEEN CONFIRMED IN GRADE AND QUALIFIED FOR ALL GENERAL SERVICE AND SHALL RECEIVE THE PAY, ALLOWANCES, INCLUDING LONGEVITY PAY, AS PROVIDED BY LAW FOR THE RESERVE FORCES OF THE UNITED STATES, AND SHALL WHEN TRAVELING UNDER ORDERS RECEIVE TRANSPORTATION IN KIND, MILEAGE OR ACTUAL EXPENSES AS PROVIDED BY LAW FOR TRAVEL PERFORMED BY OFFICERS OF THE REGULAR NAVY. WARRANT OFFICERS AND MEN OF THE NAVAL RESERVE 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 WARRANT OFFICERS AND ENLISTED MEN OF THE REGULAR NAVY OF THE SAME RANK, GRADE, OR RATING, AND OF THE SAME LENGTH OF SERVICE WHICH SHALL INCLUDE SERVICE IN THE NAVY, MARINE CORPS, COAST GUARD, NAVAL RESERVE FORCE, NAVAL MILITIA, NATIONAL NAVAL VOLUNTEERS, MARINE CORPS RESERVE, OR NAVAL RESERVE: * * *.

SEC. 20. THAT IN TIME OF PEACE, EXCEPT AS HEREIN OTHERWISE PROVIDED, OFFICERS AND ENROLLED AND ENLISTED MEN OF THE FLEET NAVAL RESERVE SHALL BE REQUIRED TO PERFORM SUCH TRAINING DUTY, NOT TO EXCEED FIFTEEN DAYS ANNUALLY, AS MAY BE PRESCRIBED BY THE SECRETARY OF THE NAVY, UNLESS EXCUSED THEREFROM FOR GOOD AND SUFFICIENT REASONS BY DIRECTION OF THE SECRETARY OF THE NAVY: PROVIDED, THAT THEY MAY BE GIVEN ADDITIONAL TRAINING OR OTHER DUTY, EITHER WITH OR WITHOUT PAY, AS MAY BE AUTHORIZED, WITH THEIR CONSENT, BY THE SECRETARY OF THE NAVY: PROVIDED FURTHER, THAT WHEN AUTHORIZED TRAINING OR OTHER DUTY WITHOUT PAY IS PERFORMED BY OFFICERS OR MEN THEY MAY, IN THE DISCRETION OF THE SECRETARY OF THE NAVY, BE FURNISHED SUBSISTENCE IN KIND OR COMMUTATION THEREOF AT A RATE TO BE FIXED FROM TIME TO TIME BY THE SECRETARY OF THE NAVY * * *.

THE ACT OF JUNE 30, 1932, 47 STAT. 425, MAKING APPROPRIATION FOR THE NAVAL RESERVE FOR THE FISCAL YEAR ENDING JUNE 30, 1933, PROVIDES:

FOR EXPENSES OF ORGANIZING, ADMINISTERING, AND RECRUITING THE NAVAL RESERVE AND NAVAL MILITIA; PAY AND ALLOWANCES OF OFFICERS AND ENLISTED MEN OF THE NAVAL RESERVE WHEN EMPLOYED ON AUTHORIZED TRAINING DUTY; MILEAGE FOR OFFICERS WHILE TRAVELING UNDER ORDERS TO AND FROM TRAINING DUTY; TRANSPORTATION OF ENLISTED MEN TO AND FROM TRAINING DUTY, AND SUBSISTENCE AND TRANSFERS EN ROUTE, OR CASH IN LIEU THEREOF; SUBSISTENCE OF ENLISTED MEN DURING THE ACTUAL PERIOD OF TRAINING DUTY; SUBSISTENCE OF OFFICERS AND ENLISTED MEN OF THE FLEET NAVAL RESERVE WHILE PERFORMING AUTHORIZED TRAINING OR OTHER DUTY WITHOUT PAY; * * *.

SECTION 11 OF THE SUBSTANTIVE LAW THUS EXPRESSLY AUTHORIZES TRANSPORTATION FOR ENLISTED MEN AND MILEAGE FOR OFFICERS OF THE NAVAL RESERVE FOR TRAVEL INVOLVED IN PERFORMANCE OF TRAINING DUTY ,WITH PAY; " AND, UNDER SECTION 20, WHEN TRAINING OR OTHER DUTY "WITHOUT PAY" IS PERFORMED BY OFFICERS OR MEN OF THE FLEET NAVAL RESERVE, THEY MAY BE FURNISHED "SUBSISTENCE IN KIND OR COMMUTATION THEREOF.' BY REASON OF THE ASSIMILATION IN SECTION 11 OF THEIR PAY AND ALLOWANCES TO MEN OF THE REGULAR NAVY, SUBSISTENCE IN KIND IS AUTHORIZED FOR MEN OF THE NAVAL RESERVE ON TRAINING DUTY "WITH PAY.' OFFICERS HOWEVER, UNDER SECTION 11, ARE NOT ENTITLED TO SUBSISTENCE IN KIND AND THE FACT THAT SUBSISTENCE IN KIND IS EXTENDED TO BOTH OFFICERS AND MEN UNDER SECTION 20 FOR DUTY WITHOUT PAY AND NO OTHER ALLOWANCES ARE EXPRESSLY INCLUDED INDICATES A LEGISLATIVE INTENT TO LIMIT ALL EXPENSES TO THE GOVERNMENT FURNISHING SUBSISTENCE IN KIND FOR SUCH DUTY. IN OTHER WORDS, APPLYING THE MAXIM EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS AS AN AID IN DISCOVERING THE LEGISLATIVE INTENT, IT MUST BE CONCLUDED THAT THE EXPRESS AUTHORIZATION OF TRANSPORTATION OF MEMBERS ORDERED TO TRAINING DUTY "WITH PAY" UNDER SECTION 11, AND THE AUTHORIZATION OF SUBSISTENCE ONLY FOR MEMBERS ORDERED TO TRAINING DUTY "WITHOUT PAY" UNDER SECTION 20, PRECLUDES ANY OTHER ALLOWANCE THAN SUBSISTENCE IN KIND FOR MEMBERS ORDERED TO TRAINING DUTY "WITHOUT PAY," DURING THE PERIOD OF TRAINING DUTY. THIS CONSTRUCTION IS CONSISTENT WITH THE APPROPRIATION WHICH PROVIDES FOR TRANSPORTATION AND SUBSISTENCE FOR MEN ON TRAINING DUTY WITH PAY AND "SUBSISTENCE (ONLY) OF OFFICERS AND ENLISTED MEN OF THE FLEET NAVAL RESERVE WHILE PERFORMING AUTHORIZED TRAINING OR OTHER DUTY WITHOUT PAY.' SEE, ALSO, A-29117, OCTOBER 22, 1929, TO THE SECRETARY OF THE NAVY, WHEREIN IT WAS STATED IN EFFECT THAT THERE IS NO AUTHORITY UNDER THE NAVAL RESERVE APPROPRIATION TO PAY MILEAGE TO AN OFFICER OF THE NAVAL RESERVE ON ACTIVE DUTY WITHOUT PAY.

ACCORDINGLY, YOU ARE ADVISED THAT MILEAGE TRANSPORTATION OR SUBSISTENCE IS NOT AUTHORIZED FOR MEMBERS OF THE NAVAL RESERVE IN TRAVELING TO OR FROM TRAINING DUTY "WITHOUT PAY.'