B-116371, AUGUST 18, 1953, 33 COMP. GEN. 81

B-116371, AUGUST 18, 1953, 33 COMP. GEN. 81

TRAVEL ALLOWANCE - RETIREMENT - RESERVISTS RETIRED PRIOR TO APRIL 1, 1951 - PLACE TO WHICH ENTITLED - RIGHT TO SELECT HOME UNDER PARAGRAPH 1150-3 OF THE JOINT TRAVEL REGULATIONS WHICH PERMITS CERTAIN MEMBERS OF THE RESERVE ON RETIREMENT TO SELECT A HOME FOR TRAVEL AND TRANSPORTATION ALLOWANCE PURPOSES, RESERVE MEMBERS OF THE ARMED FORCES OR MEMBERS OF THE ARMY OF THE UNITED STATES SERVING WITHOUT COMPONENT WHO WERE PLACED ON THE RETIRED LIST FOR ANY REASON PRIOR TO APRIL 1, 1951, THE EFFECTIVE DATE OF THE SAID PARAGRAPH, MAY NOT SELECT A HOME OTHER THAN HOME OF RECORD FOR TRAVEL AND TRANSPORTATION ALLOWANCE PURPOSES AND SECTION 402 (I) OF THE CAREER COMPENSATION ACT OF 1949, WHICH GIVES RETIRED RESERVISTS THE SAME PAY, RIGHTS, BENEFITS AND PRIVILEGES AS REGULAR RETIRED PERSONNEL, IS NOT FOR APPLICATION IN SUCH CASES.

ACTING COMPTROLLER GENERAL MORROW TO THE SECRETARY OF THE ARMY, AUGUST 18, 1953:

REFERENCE IS MADE TO YOUR LETTER OF JULY 23, 1953, REQUESTING DECISION AS TO THE EFFECT OF SECTION 402 (I) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 802, 820, IN CERTAIN INSTANCES INVOLVING TRAVEL AND TRANSPORTATION ALLOWANCES FROM LAST STATION TO HOME OF ARMY RESERVE PERSONNEL AND PERSONNEL OF THE ARMY OF THE UNITED STATES SERVING WITHOUT SPECIFICATION AS TO COMPONENT WHO HAVE BEEN RELEASED FROM ACTIVE DUTY AND GRANTED RETIREMENT PAY PRIOR TO OCTOBER 1, 1949, UNDER SECTION 5 OF THE ACT OF APRIL 3, 1939, 53 STAT. 557, AND OF ARMY RESERVE PERSONNEL WHO HAVE BEEN RETIRED BY REASON OF PHYSICAL DISABILITY ON OR AFTER OCTOBER 1, 1949, UNDER TITLE IV OF SAID CAREER COMPENSATION ACT OF 1949. THE MATTERS ON WHICH A DECISION IS REQUESTED RELATE TO THE QUESTION OF WHETHER SUCH PERSONNEL MAY SELECT THE HOME TO WHICH SUCH TRAVEL AND TRANSPORTATION ALLOWANCES ARE PAYABLE.

SAID SECTION 402 (I) PROVIDES AS FOLLOWS:

(I) ALL MEMBERS OF THE RESERVE COMPONENTS HERETOFORE OR HEREAFTER RETIRED OR GRANTED RETIREMENT PAY BECAUSE OF PHYSICAL DISABILITY SHALL BE ENTITLED TO THE SAME PAY, RIGHTS, BENEFITS, AND PRIVILEGES PROVIDED BY LAW OR REGULATION FOR RETIRED MEMBERS OF THE REGULAR SERVICES.

THE PAY, RIGHTS, BENEFITS AND PRIVILEGES WHICH ARE GRANTED TO MEMBERS OF RESERVE COMPONENTS UNDER THE ABOVE-QUOTED PROVISIONS OF LAW, ARE THOSE WHICH ARE PROVIDED BY LAW OR REGULATION FOR ,RETIRED" MEMBERS OF THE REGULAR SERVICES. THE BENEFITS REFERRED TO IN THAT SECTION WOULD APPEAR TO BE THOSE WHICH ACCRUE TO AN OFFICER AFTER HIS RETIREMENT HAS BEEN EFFECTED, AS DISTINGUISHED FROM RIGHTS SUCH AS TRAVEL AND TRANSPORTATION ALLOWANCES WHICH ACCRUE IN CONNECTION WITH HIS BEING PLACED ON THE RETIRED LIST FOR PHYSICAL DISABILITY, OR RELEASE FROM ACTIVE DUTY FOR THE SAME REASON AND THE GRANTING OF RETIREMENT PAY UNDER SAID ACT OF APRIL 3, 1939. SAID SECTION 402 (I) WAS ADDED TO H.R. 5007--- LATER ENACTED INTO LAW AS THE CAREER COMPENSATION ACT OF 1949--- ON THE FLOOR OF THE SENATE AND THE ONLY BENEFITS WHICH WERE MENTIONED IN THE DEBATE THEREON, WERE OF THE FORMER TYPE, VIZ., THE SAME RIGHT AS RETIRED PERSONNEL OF THE REGULAR SERVICES TO MAKE PURCHASES AT COMMISSARIES AND POST EXCHANGES, THE RIGHT TO BE FURNISHED MEDICAL ATTENTION AND HOSPITALIZATION THE SAME AS REGULAR RETIRED PERSONNEL, AND PERMISSION TO TRAVEL BY ARMY TRANSPORT. SEE PAGES 13506, 13515 AND 13516, OF THE CONGRESSIONAL RECORD, SEPTEMBER 26, 1949. A RIGHT TO TRAVEL AND TRANSPORTATION ALLOWANCES ARISES INCIDENT TO THE TERMINATION OF A MEMBER'S ACTIVE DUTY STATUS RATHER THAN AS AN INCIDENT TO A MEMBER'S RETIRED STATUS AND HENCE IT WOULD NOT APPEAR THAT A RIGHT TO SUCH ALLOWANCE WAS AFFECTED BY THE SAID SECTION 402 (I).

SECTION 302 (A) OF SAID CAREER COMPENSATION ACT AUTHORIZES THE ISSUANCE OF REGULATIONS GOVERNING THE PAYMENT OF TRAVEL AND TRANSPORTATION ALLOWANCES IN CONNECTION WITH RETIREMENT OR RELEASE FROM ACTIVE DUTY "FROM LAST STATION TO HOME OR TO THE PLACE FROM WHICH ORDERED TO ACTIVE DUTY.' PARAGRAPH 1150-3, JOINT TRAVEL REGULATIONS, STATES THAT THE "HOME" MEANS THE PLACE RECORDED AS THE HOME OF THE PERSON CONCERNED AT THE TIMES THEREIN STATED, EXCEPT THAT IN CONNECTION WITH RETIREMENT

* * * OF MEMBERS OF THE RESERVE COMPONENTS PERMANENTLY RETIRED ON THE BASIS OF PHYSICAL DISABILITY; OR OF MEMBERS OF THE RESERVE COMPONENTS WHO ARE ELIGIBLE TO RETIRE WITH PAY AND WHO DO RETIRE IMMEDIATELY FOLLOWING A PERIOD OF NOT LESS THAN ONE YEAR OF CONTINUOUS ACTIVE DUTY, THE TERM "HOME" MEANS THE PLACE WHICH THE INDIVIDUAL SELECTS AND PERFORMS TRAVEL THERETO WITHIN ONE YEAR FROM THE DATE OF RETIREMENT OR TRANSFER, OR ONE YEAR FROM 28 APRIL 1952, WHICHEVER IS LATER.

THE SAID REGULATIONS WERE MADE EFFECTIVE APRIL 1, 1951, AND MAY NOT BE GIVEN RETROACTIVE EFFECT SO AS TO CHANGE THE RIGHT OF A RESERVE MEMBER WHOSE ACTIVE DUTY STATUS WAS TERMINATED PRIOR THERETO. EACH OF THE RESERVE MEMBERS HERE INVOLVED HAD HIS ACTIVE DUTY STATUS TERMINATED PRIOR TO APRIL 1, 1951, AT WHICH TIME HE BECAME ENTITLED TO MILEAGE FROM HIS LAST STATION TO HIS HOME UNDER THE PROVISIONS OF SECTION 12 OF THE ACT OF JUNE 16, 1942, 56 STAT. 364, AS AMENDED BY SECTION 9 OF THE ACT OF SEPTEMBER 7, 1944, 58 STAT. 730. UNDER THOSE PROVISIONS OF LAW SUCH A RESERVE MEMBER DID NOT HAVE A RIGHT TO SELECT A HOME FOR TRAVEL ALLOWANCE PURPOSE (24 COMP. GEN. 291, 294) AND THE VESTED RIGHT TO MILEAGE WHICH ACCRUE UNDER THOSE PROVISIONS MAY NOT BE INCREASED OR DIMINISHED BY SUBSEQUENT REGULATIONS.