B-126184, FEBRUARY 29, 1956, 35 COMP. GEN. 493

B-126184, FEBRUARY 29, 1956, 35 COMP. GEN. 493

TRAVEL - RESERVISTS - INCIDENT TO PHYSICAL EXAMINATIONS UNDER SECTION 501 (B) OF THE CAREER COMPENSATION ACT OF 1949, WHICH AUTHORIZES TRANSPORTATION FOR RESERVE PERSONNEL FOR "OTHER DUTY AS REQUIRED BY LAW, WITHOUT PAY," RESERVISTS IN A NON-PAY STATUS MAY BE FURNISHED TRANSPORTATION FOR THE PURPOSE OF TAKING PERIODIC PHYSICAL EXAMINATIONS, HOWEVER, THERE IS NO AUTHORITY FOR PAYMENT OF MILEAGE OR SUBSISTENCE EN ROUTE FOR SUCH TRAVEL. ALTHOUGH APPLICANTS AND REJECTED APPLICANTS FOR ENLISTMENT IN THE RESERVE COMPONENTS ARE ENTITLED, PURSUANT TO SECTION 303 (E) OF THE CAREER COMPENSATION ACT OF 1949, TO ALLOWANCES FOR TRAVEL TO TAKE INITIAL PHYSICAL EXAMINATIONS FOR THE PURPOSE OF QUALIFYING FOR ENLISTMENT, THERE IS NO SIMILAR AUTHORITY FOR PAYMENT FOR SUCH TRAVEL BY APPLICANT OR REJECTED APPLICANTS FOR COMMISSIONED STATUS.

TO THE SECRETARY OF THE ARMY, FEBRUARY 29, 1956:

REFERENCE IS MADE TO LETTER OF NOVEMBER 23, 1955, FROM THE ASSISTANT SECRETARY OF THE ARMY ( MANPOWER AND RESERVE FORCES) REQUESTING A DECISION WHETHER SECTION 501 (B) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 301 (B), PROVIDES AUTHORITY TO FURNISH TRANSPORTATION AND PER DIEM IN LIEU OF SUBSISTENCE (1) TO MEMBERS OF RESERVE COMPONENTS WHILE TRAVELING FOR THE PURPOSE OF TAKING THE PHYSICAL EXAMINATIONS REQUIRED OF SUCH MEMBERS NOT ON ACTIVE DUTY, AT LEAST ONCE EVERY FOUR YEARS OR MORE OFTEN AS REQUIRED BY SECRETARY CONCERNED, UNDER SECTION 225 OF THE ARMED FORCES RESERVE ACT OF 1952, 66 STAT. 488, 50 U.S.C. 941, AND (2) TO PERSONS TRAVELING FOR THE PURPOSE OF UNDERGOING INITIAL PHYSICAL EXAMINATIONS TO ESTABLISH PHYSICAL QUALIFICATION FOR APPOINTMENT OR ENLISTMENT IN A RESERVE COMPONENT AS REQUIRED BY THE SECRETARY CONCERNED UNDER SECTION 217 OF THE 1952 ACT, 66 STAT. 486, 50 U.S.C. 949.

SECTION 501 (B) OF THE 1949 ACT PROVIDES THAT RESERVE PERSONNEL "MAY BE GIVEN ADDITIONAL TRAINING OR OTHER DUTY AS PROVIDED FOR BY LAW, WITHOUT PAY, AS MAY BE AUTHORIZED BY THE SECRETARY CONCERNED, WITH THEIR CONSENT, AND WHEN SUCH AUTHORIZED TRAINING OR OTHER DUTY WITHOUT PAY IS PERFORMED THEY MAY, IN THE DISCRETION OF THE SECRETARY CONCERNED, BE FURNISHED WITH TRANSPORTATION TO AND FROM SUCH DUTY, WITH SUBSISTENCE AND QUARTERS IN KIND OR COMMUTATION THEREOF AT A RATE TO BE FIXED FROM TIME TO TIME BY THE SECRETARY CONCERNED.'

REGULATIONS GOVERNING THE FURNISHING OF TRANSPORTATION AND SUBSISTENCE TO MEMBERS OF RESERVE COMPONENTS FOR TRAVEL PERFORMED IN A NON-PAY STATUS, AS AUTHORIZED UNDER SECTION 501 (B), ARE CONTAINED IN CHAPTER 6, PART A (SEE PARAGRAPHS 6002 AND 6004, CHANGE 35, JUNE 1, 1955) OF THE JOINT TRAVEL REGULATIONS. INSOFAR AS DUTY WITHOUT PAY IS CONCERNED, SUCH REGULATIONS APPEAR TO APPLY ONLY TO ACTIVE DUTY TRAINING WITHOUT PAY AND TO INACTIVE DUTY TRAINING WITHOUT PAY. HOWEVER, SINCE THE PROVISIONS OF SECTION 501 (B) COVER NOT ONLY ADDITIONAL TRAINING DUTY WITHOUT PAY, BUT ALSO ,OTHER DUTY AS PROVIDED FOR BY LAW, WITHOUT PAY," IT WOULD APPEAR THAT SUCH PROVISIONS OF LAW ARE BROAD ENOUGH TO PERMIT AN AMENDMENT TO CHAPTER 6, PART A, TO PROVIDE FOR PAYMENT WITH RESPECT TO TRAVEL IN A NON-PAY STATUS BY SUCH PERSONS AS ARE MEMBERS OF RESERVE COMPONENTS, IN CONNECTION WITH THE PHYSICAL EXAMINATIONS MENTIONED ABOVE.

IT SHOULD BE REMEMBERED, HOWEVER, THAT SECTION 501 (B) APPLIES TO " MEMBERS.' PERSONS WHO ARE NOT MEMBERS OF A RESERVE COMPONENT TRAVELING TO A PLACE WHERE THEY ARE TO BE EXAMINED TO DETERMINE WHETHER THEY HAVE THE NECESSARY PHYSICAL QUALIFICATIONS FOR SUCH MEMBERSHIP, MAY NOT BE REIMBURSED FOR THEIR EXPENSES OF TRAVEL UNDER SUCH PROVISIONS OF LAW. MOREOVER, SINCE SECTION 501 (B) PROVIDES THE SPECIFIC AUTHORITY FOR "TRANSPORTATION" ETC., FOR RESERVISTS GIVEN "ADDITIONAL TRAINING OR OTHER DUTY AS PROVIDED FOR BY LAW, WITHOUT PAY," THE TRAVEL AND TRANSPORTATION ALLOWANCE RIGHTS OF RESERVISTS ON DUTY WITHOUT PAY NECESSARILY ARE FOR DETERMINATION ON THE BASIS OF THE PROVISIONS OF THAT SECTION. SINCE THAT SECTION, UNLIKE SECTION 303 OF THE CAREER COMPENSATION ACT, 37 U.S.C. 253, DOES NOT PROVIDE AUTHORITY FOR COMMUTATION OF TRANSPORTATION, THAT IS, REIMBURSEMENT ON A MILEAGE BASIS FOR TRANSPORTATION EXPENSES, THERE WOULD APPEAR TO BE NO STATUTORY AUTHORITY TO PRESCRIBE (AS HAS BEEN PRESCRIBED IN PARAGRAPH 6002-2 OF THE JOINT TRAVEL REGULATIONS) THE PAYMENT OF MILEAGE FOR TRAVEL FALLING WITHIN THE SCOPE OF SECTION 501 (B). LIKEWISE, WHILE THAT SECTION AUTHORIZES COMMUTATION OF QUARTERS AND SUBSISTENCE DURING THE PERFORMANCE OF DUTY WITHOUT PAY, IT AUTHORIZES "SUBSISTENCE" ONLY WHILE EN ROUTE TO AND FROM PLACE OF PERFORMANCE OF DUTY AND, HENCE, THERE WOULD BE NO AUTHORITY TO PRESCRIBE A PER DIEM IN LIEU OF SUCH SUBSISTENCE EN ROUTE. SEE 10 COMP. GEN. 475; 15 COMP. GEN. 361; 18 COMP. GEN. 588; 20 COMP. GEN. 361; 21 COMP. GEN. 15.

SECTION 303 (E) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 815, AUTHORIZES THE PROMULGATION OF REGULATIONS GOVERNING THE PAYMENT OF TRAVEL AND TRANSPORTATION ALLOWANCES TO APPLICANTS AND REJECTED APPLICANTS FOR ENLISTMENT, WITHIN THE LIMITATIONS THERE MENTIONED. NO REASON IS PERCEIVED WHY SUCH PROVISIONS OF LAW SHOULD NOT BE REGARDED AS APPLICABLE TO APPLICANTS AND REJECTED APPLICANTS FOR ENLISTMENT IN THE RESERVE COMPONENTS OF THE UNIFORMED SERVICES. REGULATIONS ISSUED UNDER SUCH STATUTORY AUTHORITY ARE CONTAINED IN PARAGRAPH 5050 OF THE JOINT TRAVEL REGULATIONS. IT IS OUR VIEW THAT SUCH REGULATIONS MAY BE CONSIDERED TO COVER THE TRAVEL OF APPLICANTS AND REJECTED APPLICANTS FOR ENLISTMENT IN THE RESERVE COMPONENTS AND THAT SUCH PERSONS ARE ENTITLED TO THE ALLOWANCES THERE PROVIDED FOR TRAVEL TO AND FROM A PLACE OF PHYSICAL EXAMINATION. NO SIMILAR STATUTORY AUTHORITY HAS BEEN FOUND, HOWEVER, WITH RESPECT TO APPLICANTS FOR COMMISSIONED STATUS OR REJECTED APPLICANTS FOR COMMISSIONS.