B-117114, DEC 15, 1953

B-117114, DEC 15, 1953

PRECIS-UNAVAILABLE

MR. MILTON M. FOSTER:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 2, 1953, REQUESTING REVIEW OF GENERAL ACCOUNTING OFFICE SETTLEMENT DATED AUGUST 24, 1953, WHICH DISALLOWED YOUR CLAIM FOR MILEAGE FOR TRAVEL PERFORMED BY YOU TO AND FROM TRAINING DUTY PURSUANT TO ORDERS OF MARCH 22, 1949, SEPTEMBER 20, 1949, AND NOVEMBER 5, 1952.

EACH OF THE FIRST TWO MENTIONED ORDERS WERE ISSUED BY THE COMMANDANT OF THE 12TH NAVAL DISTRICT, ADDRESSED TO YOU AT FRESNO, CALIFORNIA, AND STATED THAT THE TRAINING DUTY WAS TO BE PERFORMED "AT NO EXPENSE TO THE GOVERNMENT." THE EARLIER OF THE TWO ORDERS DIRECTED TRAVEL TO SAN DIEGO, CALIFORNIA, FOR FIVE DAYS' TRAINING DUTY AND THE LATER ONE DIRECTED TRAVEL TO FORT HUENESE, CALIFORNIA, FOR 14 DAYS' TRAINING DUTY. THE ORDERS OF NOVEMBER 5, 1952, WERE ISSUED BY THE COMMANDANT OF THE 11TH NAVAL DISTRICT AND DIRECTED TRAVEL FROM OXNARD, CALIFORNIA, TO SAN DIEGO FOR 4 DAYS' TRAINING DUTY WITHOUT PAY, IT BEING STATED THEREIN THAT "YOU ARE AUTHORIZED TO TRAVEL IN THE EXECUTION OF THESE ORDERS AT YOUR OWN EXPENSE UNLESS GOVERNMENT TRANSPORTATION REQUESTS ARE FURNISHED OR GOVERNMENT TRANSPORTATION IS DIRECTED IN REPORTING TO OR UPON RELEASE FROM ACTIVE DUTY FOR TRAINING."

SECTION 501(B) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 826, PROVIDES THAT WHEN MEMBERS OF THE NAVAL RESERVE ARE GIVEN TRAINING DUTY WITHOUT PAY WITH THEIR CONSENT, "THEY MAY, IN THE DISCRETION OF THE SECRETARY CONCERNED, BE FURNISHED WITH TRANSPORTATION TO AND FROM SUCH DUTY." SECTION 6001, JOINT TRAVEL REGULATIONS, PROVIDES FOR THE FURNISHING OF TRANSPORTATION IN KIND, OR A MONETARY ALLOWANCE IS LIEU THEREOF AT THE RATE OF FIVE CENTS PER MILE, FOR TRAVEL TO AND FROM POINTS OF TRAINING DUTY WITHOUT PAY "WHEN AUTHORIZED BY THE SECRETARY CONCERNED." PARAGRAPH H-5307(1), CHANGE 1, APRIL 13, 1950, BUREAU OF NAVAL PERSONNEL MANUAL, STATES THAT PERSONNEL OF THE NAVAL RESERVE MAY BE PERMITTED ON THEIR OWN APPLICATION TO PERFORM TEMPORARY DUTY WITHOUT PAY OR ALLOWANCES "AND WITHOUT EXPENSE TO THE GOVERNMENT FOR TRAVEL TO AND FROM SUCH DUTY." HOWEVER, COMMANDANTS OF NAVAL DISTRICTS ARE GIVEN AUTHORITY TO "ORDER MEMBERS OF THE NAVAL RESERVE TO PERFORM TRAINING DUTY WITHOUT PAY BUT WITH EXPENSE TO THE GOVERNMENT FOR TRAVEL TO AND FROM TRAINING DUTY AND FOR SUBSISTANCE DURING THE PERFORMANCE OF SUCH DUTY. SUCH CASES ORDERS SHOULD SPECIFY THAT TRANSPORTATION AND SUBSISTENCE IS AT GOVERNMENT EXPENSE."

THE FOREGOING PROVISIONS OF LAW DO NOT GRANT AN ABSOLUTE RIGHT TO TRANSPORTATION AT GOVERNMENT EXPENSE FOR TRAVEL TO AND FROM TRAINING DUTY WITHOUT PAY, SINCE THEY ARE PERMISSIVE ONLY AND REQUIRE AFFIRMATIVE ACTION BY THE SECRETARY CONCERNED, AS A CONDITION PRECEDENT TO THE VESTING OF A RIGHT TO SUCH TRANSPORTATION. THE JOINT TRAVEL REGULATIONS ALSO ARE CONDITIONAL, SINCE IT IS PROVIDED THEREIN THAT TRANSPORTATION IN KIND OR A COMMUTATION THEREOF MAY BE FURNISHED ONLY "WHEN AUTHORIZED BY THE SECRETARY CONCERNED." PARAGRAPH H-5307(1) OF THE BUREAU OF NAVAL PERSONNEL MANUAL, THE REGULATIONS WHICH APPEAR TO GOVERN THE ISSUANCE OF ORDERS FOR TRAINING DUTY WITHOUT PAY, CONTEMPLATE THE FURNISHING OF TRANSPORTATION AT GOVERNMENT EXPENSE TO AND FROM SUCH TRAINING DUTY ONLY WHEN THE TRAINING DUTY ORDERS SO PROVIDE. YOUR ORDERS DO NOT AUTHORIZE TRAVEL AT GOVERNMENT EXPENSE. THE PROVISIONS OF SAID PARAGRAPH H-5307(1) WHICH WERE IN EFFECT PRIOR TO APRIL 13, 1950, CONTAINED NO AUTHORITY TO INCLUDE IN THE TRAINING DUTY ORDERS A PROVISION FOR TRANSPORTATION AT GOVERNMENT EXPENSE AND SUCH REGULATIONS APPARENTLY CONTEMPLATED THE ISSUANCE OF SUCH ORDERS ONLY TO NAVAL RESERVE PERSONNEL WHO DESIRED TO PERFORM TEMPORARY DUTY WITHOUT PAY "AND WITHOUT EXPENSE TO THE GOVERNMENT FOR TRAVEL TO AND FROM SUCH DUTY."

WHILE THE FIRST SENTENCE OF PARAGRAPH 7, BUPERS RESERVE INSTRUCTION 1500.6, DECEMBER 1, 1952, TO WHICH YOU REFER, STATES THAT THE JOINT TRAVEL REGULATIONS SPECIFICALLY PROVIDE THAT PERSONNEL ORDERED TO ACTIVE DUTY FOR TRAINING WITHOUT PAY AND ALLOWANCES, ARE ENTITLED TO TRANSPORTATION IN KIND OR A MONETARY ALLOWANCE IN LIEU THEREOF TO AND FROM SUCH TRAINING DUTY, THE FOLLOWING SENTENCE STATES THAT PARAGRAPH 6001 OF SUCH REGULATIONS GOVERNS THE FURNISHING OF TRANSPORTATION AT GOVERNMENT EXPENSE. AS EXPLAINED ABOVE, SUCH REGULATIONS PERMIT THE FURNISHING OF TRANSPORTATION AT GOVERNMENT EXPENSE ONLY WHEN AUTHORIZED BY THE SECRETARY CONCERNED. SUCH AUTHORITY WAS NOT GRANTED IN YOUR CASE.

ACCORDINGLY, THE SETTLEMENT OF AUGUST 24, 1953, IS SUSTAINED.