B-108920, JUNE 24, 1952, 31 COMP. GEN. 678

B-108920, JUNE 24, 1952, 31 COMP. GEN. 678

MILEAGE - MILITARY, NAVAL, ETC., PERSONNEL IN AWAITING ORDERS STATUS - TRAVEL BETWEEN DUTY STATION AND HOME AN ENLISTED MEMBER OF THE MARINE CORPS DISCHARGED FROM TREATMENT AT A GOVERNMENT HOSPITAL WHO AT HIS OWN REQUEST, AFTER APPEARING BEFORE A PHYSICAL EVALUATION BOARD, WAS ORDERED TO PROCEED TO HIS HOME IN AN "AWAITING ORDERS STATUS" PENDING ACTION ON RETIREMENT PROCEEDINGS, IS ENTITLED TO MILEAGE FOR TRAVEL FROM DUTY STATION TO HOME AND RETURN, AND ALSO MILEAGE FROM DUTY STATION TO HOME INCIDENT TO SEPARATION FROM THE SERVICE FOR PHYSICAL DISABILITY.

ASSISTANT COMPTROLLER GENERAL YATES TO LT. COL. E. M. JONES, U.S. MARINE CORPS, JUNE 24, 1952:

THERE HAS BEEN RECEIVED BY FIRST ENDORSEMENT DATED MARCH 28, 1952, FROM THE COMMANDANT OF THE MARINE CORPS, YOUR LETTER OF MARCH 18, 1952 (REFERENCE (20-4) EMJ/IN), REQUESTING DECISION AS TO WHETHER PAYMENT IS AUTHORIZED OF MILEAGE ALLOWANCE TO SERGEANT CLARENCE H. BRYANT, USMCR, FOR TRAVEL PERFORMED FROM BOISE, IDAHO, TO SAN DIEGO, CALIFORNIA AND RETURN, UNDER THE CIRCUMSTANCES DISCLOSED IN AN ORDER TO CLOSE ACCOUNT, AND TRAVEL VOUCHER WITH SUPPORTING PAPERS SUBMITTED WITH YOUR LETTER.

THE RECORD SHOWS THAT ON JANUARY 16, 1952, THE ENLISTED MAN WAS DISCHARGED FROM TREATMENT AT THE UNITED STATES NAVAL HOSPITAL AT SAN DIEGO, CALIFORNIA, AND HAVING APPEARED BEFORE A PHYSICAL EVALUATION BOARD CONVENED AT CAMP JOSEPH H. PENDLETON, OCEANSIDE, CALIFORNIA, HE REQUESTED ON JANUARY 20, 1952, THAT HE BE ALLOWED TO PROCEED TO HIS HOME AT BOISE, IDAHO, IN AN AWAITING ORDERS STATUS PENDING ACTION ON THE RETIREMENT PROCEEDINGS IN THIS CASE, AND AGREED TO THE CONDITIONS SET FORTH IN MARINE CORPS GENERAL ORDER NO. 82 OF JANUARY 17, 1951. BY ORDER DATED JANUARY 22, 1952, ISSUED BY HEADQUARTERS, MARINE CORPS RECRUIT DEPOT, SAN DIEGO, CALIFORNIA, SERGEANT BRYANT WAS DIRECTED TO PROCEED ON JANUARY 26, 1952, TO HIS HOME AND AWAIT ORDERS PENDING ACTION ON THE RETIREMENT PROCEEDINGS IN HIS CASE, THE ORDER PROVIDING THAT HE WOULD BE CHARGED LEAVE TO THE MAXIMUM EXTENT POSSIBLE FOR THE PERIOD WHILE AWAITING ORDERS AND THAT IF SUCH PERIOD EXCEEDED HIS ACCRUED LEAVE HE WOULD BE CONSIDERED AS AWAITING ORDERS FOR THE EXCESS PERIOD AND NOT ON EXCESS LEAVE. IN CONNECTION WITH THE REQUEST TO BE PLACED IN AN AWAITING ORDERS STATUS IT WAS REPORTED THAT AS OF JANUARY 1, 1952, THE ENLISTED MAN HAD 30 DAYS OF ACCRUED LEAVE. PRIOR TO HIS DEPARTURE FROM SAN DIEGO HE WAS PAID $79 AS ADVANCE MILEAGE TO HIS HOME. IN A LETTER DATED FEBRUARY 4, 1952, FROM THE COMMANDANT OF THE MARINE CORPS TO THE COMMANDING GENERAL, MARINE BARRACKS, CAMP JOSEPH H. PENDLETON, IT WAS STATED THAT ON JANUARY 31, 1952, THE SECRETARY OF THE NAVY APPROVED THE PROCEEDINGS AND RECOMMENDED FINDINGS OF THE PHYSICAL EVALUATION BOARD IN THE CASE OF THE ENLISTED MAN, AS CONCURRED IN OR MODIFIED BY THE PHYSICAL REVIEW COUNCIL, AND DIRECTED THAT HE BE SEPARATED FROM THE NAVAL SERVICE BY REASON OF PHYSICAL DISABILITY UNDER THE PROVISIONS OF 37 U.S.C. 272 (A) AND 273. ACCORDINGLY, IT WAS DIRECTED THAT HE BE DISCHARGED BY REASON OF PHYSICAL DISABILITY. BY TELEGRAM OF FEBRUARY 14, 1952, FROM THE MARINE CORPS RECRUIT DEPOT, SAN DIEGO, CALIFORNIA, SERGEANT BRYANT WAS NOTIFIED THAT HIS ORDERS OF JANUARY 22, 1952, WERE CANCELED AND TO REPORT TO THAT DEPOT IMMEDIATELY FOR SEPARATION. HE APPEARS TO HAVE REPORTED AT SAN DIEGO ON FEBRUARY 18 AND WAS HONORABLY DISCHARGED BY REASON OF PHYSICAL DISABILITY ON FEBRUARY 22, 1952.

INSTRUCTIONS CONCERNING THE DISPOSITION OF MARINE CORPS PERSONNEL AWAITING FINAL ACTION ON DISABILITY RETIREMENT PROCEEDINGS WERE PROMULGATED IN THE AFOREMENTIONED MARINE CORPS GENERAL ORDER NO. 82, DATED JANUARY 17, 1951. IT PROVIDES, INTER ALIA, THAT THE COMMANDING OFFICER OF THE STATION TO WHICH THE ENLISTED MEMBER IS ATTACHED MAY PLACE HIM IN AN AWAITING ORDERS STATUS PROVIDED A PHYSICAL EVALUATION BOARD HAS ARRIVED AT A RECOMMENDED FINDING THAT THE MEMBER IS UNFIT TO PERFORM THE DUTIES OF HIS RANK; THAT THE COMMANDING OFFICER OF THE NAVAL HOSPITAL INVOLVED CONSIDERS THAT FURTHER HOSPITALIZATION AND TREATMENT ARE NOT REQUIRED; THAT THE COMMANDING OFFICER OF THE MEMBER'S STATION CONSIDERS THAT HIS SERVICES MAY NOT BE UTILIZED TO ADVANTAGE; AND THAT THE MEMBER HAS AGREED TO PERMIT ACCUMULATED LEAVE TO BE CHARGED AGAINST HIM WHILE IN SUCH A STATUS. WHEN ALL THE SAID CONDITIONS HAVE BEEN MET THE COMMANDING OFFICER OF THE ORGANIZATION OF WHICH THE MARINE IS A MEMBER IS AUTHORIZED TO ISSUE THE NECESSARY ORDERS DIRECTING HIM TO PROCEED HOME TO AWAIT ORDERS.

SECTION 4 (B) OF THE ARMED FORCES LEAVE ACT OF 1946 WAS AMENDED BY SECTION 1 OF THE ACT OF AUGUST 4, 1947, 61 STAT. 748 TO READ IN PART AS FOLLOWS:

AFTER AUGUST 31, 1946, MEMBERS OF THE ARMED FORCES WHEN ABSENT ON ACCOUNT OF SICKNESS OR WOUNDS, OR WHEN DIRECTED BY THE SECRETARY TO BE ABSENT FROM DUTY TO AWAIT ORDERS PENDING ACTION ON DISABILITY RETIREMENT PROCEEDINGS FOR ANY PERIOD IN EXCESS OF THE NUMBER OF DAYS' LEAVE AUTHORIZED BY THIS ACT, SHALL RECEIVE THE SAME PAY AND ALLOWANCES THEY WOULD RECEIVE IF NOT SO ABSENT; * * *

SECTION 4 (C) OF THE ARMED FORCES LEAVE ACT AS ADDED BY THE SAID 1947 ACT, PROVIDES THAT MEMBERS OF THE ARMED FORCES DISCHARGED AFTER AUGUST 31, 1946, SHALL BE COMPENSATED IN CASH FOR UNUSED ACCRUED LEAVE STANDING TO THEIR CREDIT AT THE TIME OF DISCHARGE. SECTION 4 OF THE 1947 ACT REPEALED SECTION 1265 OF THE REVISED STATUTES, 10 U.S.C. 841, WHICH PROVIDED:

OFFICERS WHEN ABSENT ON ACCOUNT OF SICKNESS OR WOUNDS, OR LAWFULLY ABSENT FROM DUTY AND AWAITING ORDERS, SHALL RECEIVE FULL PAY; WHEN ABSENT WITH LEAVE, FOR OTHER CAUSES, FULL PAY DURING SUCH ABSENCE NOT EXCEEDING IN THE AGGREGATE THIRTY DAYS IN ONE YEAR, AND HALF PAY DURING SUCH ABSENCE EXCEEDING THIRTY DAYS IN ONE YEAR. WHEN ABSENT WITHOUT LEAVE, THEY SHALL FORFEIT ALL PAY DURING SUCH ABSENCE, UNLESS THE ABSENCE IS EXCUSED AS UNAVOIDABLE.

IT HAS BEEN HELD THAT AN OFFICER WHO WAS ORDERED, EVEN AT HIS OWN REQUEST, TO PROCEED TO HIS HOME AND THERE AWAIT ORDERS, WAS NOT "ABSENT FROM DUTY WITH LEAVE" WITHIN THE MEANING OF THE ACT OF MARCH 3, 1863, 12 STAT. 736, WHICH PROVIDED THAT AN OFFICER ABSENT FROM DUTY WITH LEAVE, EXCEPT FOR SICKNESS OR FOR WOUNDS, SHOULD RECEIVE ONLY HALF PAY AND ALLOWANCES. UNITED STATES. V. WILLIAMSON, 90 U.S. 411. ALSO IN THE CASE OF UNITED STATES V. PHISTERER, 94 U.S. 219, IT WAS HELD THAT AN OFFICER ORDERED HOME TO AWAIT ORDERS WAS ENTITLED TO TRAVEL ALLOWANCE FOR THE TRAVEL PERFORMED PURSUANT TO THE SAID ORDERS.

IN AMENDING SECTION 4 OF THE ARMED FORCES LEAVE ACT OF 1946, AND REPEALING SECTION 1265 OF THE REVISED STATUTES, IT APPARENTLY WAS THE INTENTION TO CONTINUE TO PERMIT MEMBERS TO BE ORDERED TO BE ABSENT FROM DUTY IN AN "AWAITING ORDERS STATUS" RATHER THAN IN A LEAVE STATUS PENDING ACTION ON DISABILITY RETIREMENT PROCEEDINGS BUT IN VIEW OF THE PROVISION FOR COMPENSATING MEMBERS FOR UNUSED LEAVE TO THEIR CREDIT AT THE TIME OF DISCHARGE OR RELEASE FROM ACTIVE DUTY, TO REQUIRE LEAVE STANDING TO THE CREDIT OF THE INDIVIDUAL TO BE CHARGED AGAINST SUCH PERIOD WHILE AWAITING ORDERS TO THE EXTENT POSSIBLE. THEREFORE, SINCE SERGEANT BRYANT WAS IN AN AWAITING ORDERS STATUS RATHER THAN IN A LEAVE STATUS WHILE AT HIS HOME AT BOISE, IDAHO, AND SINCE HIS TRAVEL THERETO AND RETURN TO SAN DIEGO WAS PERFORMED PURSUANT TO THE ORDERS OF JANUARY 22 AND FEBRUARY 14, 1952, HE IS ENTITLED TO MILEAGE INCIDENT TO SUCH TRAVEL AS WELL AS MILEAGE FROM SAN DIEGO TO BOISE INCIDENT TO HIS DISCHARGE FROM THE SERVICE.

ACCORDINGLY, PAYMENT OF THE VOUCHER, WHICH IS RETURNED HEREWITH, IS AUTHORIZED IF CORRECT IN OTHER RESPECTS.