B-122273, MARCH 14, 1955, 34 COMP. GEN. 440

B-122273, MARCH 14, 1955, 34 COMP. GEN. 440

PAY - ACTIVE DUTY - TRAVEL TIME ON RELEASE FROM ACTIVE DUTY - ACTUAL TRAVEL REQUIREMENT - TIME LIMITATIONS PAY AND ALLOWANCES FOR TRAVEL TIME AUTHORIZED BY SECTION 201 (E) OF THE CAREER COMPENSATION ACT OF 1949 FOR MEMBERS OF RESERVE COMPONENTS OF THE UNIFORMED SERVICES ON RELEASE FROM EXTENDED ACTIVE DUTY FOR MORE THAN THIRTY DAYS MAY NOT BE PAID PRIOR TO ACTUAL PERFORMANCE OF TRAVEL. ALTHOUGH SECTION 201 (E) OF THE CAREER COMPENSATION ACT OF 1949 AND EXECUTIVE ORDER NO. 10153 DO NOT PRESCRIBE ANY TIME LIMITATION DURING WHICH TRAVEL MUST BE PERFORMED BY MEMBERS OF THE RESERVE COMPONENTS OF THE UNIFORMED SERVICES ON RELEASE FROM EXTENDED ACTIVE DUTY, A REASONABLE TIME IS CONTEMPLATED AND SUGGESTION IS MADE THAT CONSIDERATION BE GIVEN TO AMENDING THE ADMINISTRATIVE REGULATIONS TO INCLUDE A DEFINITE TIME LIMITATION FOR PERFORMANCE OF SUCH TRAVEL.

ASSISTANT COMPTROLLER GENERAL WEITZEL TO THE SECRETARY OF DEFENSE, MARCH 14, 1955:

REFERENCE IS MADE TO LETTER OF DECEMBER 7, 1954, FROM THE ASSISTANT SECRETARY OF DEFENSE, WITH ENCLOSURE ( COMMITTEE ACTION NO. 109 OF THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE), REQUESTING DECISION AS TO (1) WHETHER A MEMBER OF A RESERVE COMPONENT OF THE UNIFORMED SERVICE WHO IS ORDERED TO EXTENDED ACTIVE DUTY IN EXCESS OF THIRTY DAYS IS REQUIRED, UPON DETACHMENT FROM HIS LAST DUTY STATION, TO ACTUALLY PERFORM THE TRAVEL AUTHORIZED IN HIS ORDER TO RECEIVE ACTIVE-DUTY PAY AND ALLOWANCES FOR TRAVEL TIME, AND (2) IF SO, WHETHER SUCH TRAVEL MUST BE PERFORMED WITHIN A SPECIFIED PERIOD OF TIME.

IT IS STATED IN THE ENCLOSURE THAT EXECUTIVE ORDER NO. 10153, DATED AUGUST 17, 1950, ISSUED PURSUANT TO SECTION 201 (E) OF THE CAREER COMPENSATION ACT OF 1949, DOES NOT SPECIFICALLY REQUIRE PERFORMANCE OF TRAVEL FROM LAST DUTY STATION TO THE MEMBER'S HOME (EXCEPT IN CASE TRAVEL BY PRIVATE CONVEYANCE IS SPECIFICALLY AUTHORIZED AND TRAVEL IS SO PERFORMED) TO INCLUDE TRAVEL TIME AS ACTIVE DUTY, NOR DOES IT REQUIRE THAT TRAVEL SPECIFICALLY AUTHORIZED AND PERFORMED BY PRIVATE CONVEYANCE BE COMPLETED WITHIN ANY SPECIFIC PERIOD OF TIME. IT IS STATED ALSO THAT THE NAVY, MARINE CORPS, AND AIR FORCE WITHHOLD PAYMENT OF PAY AND ALLOWANCES DUE FOR THE PERIOD OF TRAVEL FROM LAST STATION TO HOME UNTIL THE TRAVEL IS COMPLETED, BUT THAT THE ARMY MAKES PAYMENT OF PAY AND ALLOWANCES FOR AUTHORIZED TRAVEL TIME PRIOR TO DEPARTURE FROM THE LAST DUTY STATION, EXCEPT WHERE TRAVEL BY PRIVATE CONVEYANCE IS SPECIFICALLY AUTHORIZED.

SECTION 201 (E) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 807, PROVIDES THAT IN ACCORDANCE WITH REGULATIONS PRESCRIBED BY THE PRESIDENT, IN THE CASE OF MEMBERS OF THE UNIFORMED SERVICES CALLED OR ORDERED TO EXTENDED ACTIVE DUTY IN EXCESS OF THIRTY DAYS, ACTIVE DUTY SHALL INCLUDE "THE TIME REQUIRED TO PERFORM TRAVEL" FROM HOME TO FIRST DUTY STATION AND FROM LAST DUTY STATION TO HOME BY THE MODE OF TRANSPORTATION AUTHORIZED IN ORDERS FOR SUCH MEMBER.

EXECUTIVE ORDER NO. 10153, DATED AUGUST 17, 1950, PRESCRIBING REGULATIONS PURSUANT TO THAT SECTION, AND RELATING TO THE INCLUSION AS ACTIVE DUTY OF "TIME REQUIRED FOR TRAVEL" FROM HOME TO FIRST DUTY STATION AND FROM LAST DUTY STATION TO HOME, PROVIDES THAT IN CASE TRAVEL BY PUBLIC TRANSPORTATION IS AUTHORIZED, THE "TRAVEL TIME INCLUDED AS ACTIVE DUTY SHALL BE BASED UPON ACTUAL AND NECESSARY SCHEDULES" WHICH MOST NEARLY COINCIDE WITH THE POSSIBLE "TIME OF DEPARTURE AND ARRIVAL BY THE MODE OF TRANSPORTATION ACTUALLY USED," OR BY PUBLIC SURFACE TRANSPORTATION IF THE TRAVEL IS "ACTUALLY PERFORMED BY PRIVATE CONVEYANCE" WITHOUT HAVING BEEN SPECIFICALLY AUTHORIZED. IN A CASE WHERE TRAVEL BY PRIVATE CONVEYANCE IS SPECIFICALLY AUTHORIZED AND THE TRAVEL IS SO PERFORMED, THE TRAVEL TIME INCLUDED AS ACTIVE DUTY IS TO BE COMPUTED ON THE BASIS OF A FORMULA SET FORTH IN THE ORDER. UNDER THAT ORDER THE SECRETARIES CONCERNED MAY PRESCRIBE, WITH RESPECT TO PERSONNEL OF THE UNIFORMED SERVICES WITHIN THEIR RESPECTIVE DEPARTMENTS, SUCH SUPPLEMENTARY REGULATIONS, NOT INCONSISTENT WITH THE ORDER, AS THEY MAY DEEM NECESSARY OR DESIRABLE FOR CARRYING OUT SUCH REGULATIONS, SUCH SUPPLEMENTARY REGULATIONS TO BE UNIFORM FOR ALL THE SERVICES TO THE FULLEST EXTENT PRACTICABLE. IT DID NOT APPEAR THAT SUCH UNIFORMITY HAS BEEN ACCOMPLISHED.

SECTION 201 (E) OF THE ACT CONTAINS NO INDICATION THAT THE PAY AND ALLOWANCES AUTHORIZED FOR TRAVEL TIME IS PAYABLE IF NO TRAVEL IS PERFORMED. THE USE OF THE WORDS "TIME REQUIRED TO PERFORM TRAVEL" AT LEAST SUGGESTS THAT THE CONGRESS INTENDED THAT ACTUAL TRAVEL WOULD BE PERFORMED BEFORE A RIGHT TO PAY AND ALLOWANCE FOR TRAVEL TIME ACCRUED. SECTION 201 (E) IS TO BE DISTINGUISHED FROM SECTION 303 (A) OF THE SAME ACT, 63 STAT. 813, WHICH EXPRESSLY AUTHORIZES PAYMENT OF TRAVEL AND TRANSPORTATION ALLOWANCES FOR MEMBERS UPON SEPARATION FROM THE SERVICE OR RELEASE FROM ACTIVE DUTY WHETHER OR NOT THE MEMBER PERFORMS THE TRAVEL. IN OUR OPINION EXECUTIVE ORDER NO. 10153 CLEARLY CONTEMPLATES ACTUAL TRAVEL (WHETHER TRAVEL IS AUTHORIZED BY PUBLIC TRANSPORTATION OR BY PRIVATE CONVEYANCE) BEFORE PAY AND ALLOWANCES ACCRUE FOR TRAVEL TIME. WOULD SEEM IMPOSSIBLE TO COMPUTE TRAVEL TIME BASED ON "TIME OF DEPARTURE AND ARRIVAL BY THE MODE OF TRANSPORTATION ACTUALLY USED," AS REQUIRED BY THE EXECUTIVE ORDER, UNTIL THE TRAVEL IS ACTUALLY PERFORMED. HENCE, NO AUTHORITY IS FOUND FOR PAYMENT OF PAY AND ALLOWANCES FOR THE PERIOD REQUIRED FOR TRAVEL FROM LAST STATION TO HOME PRIOR TO THE PERFORMANCE OF THE TRAVEL. IT IS NOTED, HOWEVER, THAT A BILL (S. 804) INTRODUCED IN THE SENATE ON JANUARY 28, 1955, WOULD AMEND SECTION 201 (E) OF THE CAREER COMPENSATION ACT TO AUTHORIZE PAYMENT PRIOR TO DEPARTURE FOR TRAVEL TIME TO RETURN HOME UPON RELEASE FROM ACTIVE DUTY, WITHOUT REGARD TO THE ACTUAL PERFORMANCE OF SUCH TRAVEL.

WITH RESPECT TO THE PERIOD WITHIN WHICH THE TRAVEL MUST BE PERFORMED, WHILE NEITHER THE PRESENT LAW NOR THE EXECUTIVE ORDER PRESCRIBES A LIMITATION, THEY MUST CONTEMPLATE TRAVEL WITHIN A REASONABLE TIME AND IN ORDER THAT CLAIMS ARISING INCIDENT TO SUCH TRAVEL MAY BE HANDLED IN AN ORDERLY MANNER, SOME DEFINITE LIMITATION AS TO WHEN TRAVEL SHOULD BE PERFORMED WOULD SEEM DESIRABLE. SUCH A LIMITATION COULD BE INCLUDED IN THE ADMINISTRATIVE REGULATION RELATING TO THE MATTER AND IT MAY BE SUGGESTED THAT SINCE, UNDER JOINT TRAVEL REGULATIONS, A LIMITATION OF ONE YEAR FROM DATE OF DISCHARGE, RELEASE FROM ACTIVE DUTY, RETIREMENT, ETC., IS PRESCRIBED FOR TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS, A SIMILAR LIMITATION WOULD APPEAR REASONABLE WITH RESPECT TO THE TRAVEL HERE INVOLVED.