B-133960, DEC. 18, 1957

B-133960, DEC. 18, 1957

TO LIEUTENANT COLONEL C. W. FARNUM, FC:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 17, 1957, RECEIVED BY INDORSEMENT OF THE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, DATED SEPTEMBER 27, 1957, REQUESTING DECISION WHETHER PAYMENT PROPERLY MAY BE MADE ON THE ENCLOSED VOUCHER IN FAVOR OF SECOND LIEUTENANT EDGAR G. MENKES, CE, FOR MILEAGE AT THE RATE OF SIX CENTS PER MILE FOR THE DISTANCE FROM REDONDO BEACH, CALIFORNIA, TO FORT BELVOIR, VIRGINIA, LESS THAT PREVIOUSLY PAID TO HIM FOR THE DISTANCE FROM ST. ALBANS, NEW YORK, TO FORT BELVOIR, INCIDENT TO HIS TRAVEL PERFORMED ON REPORTING FOR ACTIVE DUTY FOR TRAINING UNDER ORDERS OF HEADQUARTERS FIRST ARMY, GOVERNORS ISLAND, NEW YORK, DATED MAY 29, 1956.

IN THE ORDERS OF MAY 29, 1956, LIEUTENANT MENKES' HOME ADDRESS WAS SHOWN TO BE AT ST. ALBANS, NEW YORK, AND HE WAS DIRECTED TO PROCEED ON MAY 22, 1957, FROM THAT PLACE TO FORT BELVOIR ON ACTIVE DUTY FOR TRAINING FOR SIX MONTHS, REPORTING AT THE INDICATED STATION NOT LATER THAN MAY 23, 1957, WITH DATE OF RELIEF FROM THAT DUTY STATED TO BE NOVEMBER 21, 1957. TRAVEL BY PRIVATELY OWNED CONVEYANCE WAS AUTHORIZED. ON THE BASIS OF A NOTICE RECEIVED FROM LIEUTENANT MENKES ANNOUNCING A CHANGE OF ADDRESS FROM ST. ALBANS TO REDONDO BEACH, ORDERS OF HEADQUARTERS, NEW YORK MILITARY DISTRICT (1242), NEW YORK, NEW YORK, DATED OCTOBER 1, 1956, PROVIDED FOR HIS RELEASE FROM ASSIGNMENT WITH 1706 USAR CONTROL GROUP, WITH STATION IN BROOKLYN, NEW YORK, AND ASSIGNMENT TO 6123 USAR CONTROL GROUP, SOUTHERN CALIFORNIA SUB DISTRICT. YOU STATE THAT HE DID NOT NOTIFY HEADQUARTERS, FIRST ARMY, AT THAT TIME OF HIS CHANGE OF ADDRESS. THE OFFICER'S ITINERARY SHOWS THAT HE PERFORMED TRAVEL BY PRIVATE CAR FROM REDONDO BEACH TO FORT BELVOIR DURING THE PERIOD APRIL 26 TO MAY 5, 1957, AND THAT HE PROCEEDED FROM FORT BELVOIR TO ST. ALBANS ON MAY 6 AND RETURNED TO FORT BELVOIR ON MAY 23, 1957, ON WHICH DATE HE PRESUMABLY REPORTED FOR DUTY UNDER THE ORDERS OF MAY 29, 1956. IT IS INDICATED THAT SUCH ITINERARY WAS PREPARED BY THE OFFICER IN ACCORDANCE WITH INSTRUCTIONS GIVEN HIM AT FORT BELVOIR AND THAT HE WAS ADVISED THERE THAT HE WOULD NEED HIS ORIGINAL ORDERS AMENDED IN ORDER TO CLAIM TRAVEL PAY FROM HIS CALIFORNIA ADDRESS. ORDERS OF HEADQUARTERS, FIRST UNITED STATES ARMY, DATED JULY 9, 1957, AMENDED SO MUCH OF THE ORDERS OF MAY 29, 1956, PERTAINING TO LIEUTENANT MENKES' ACTIVE DUTY FOR TRAINING ASSIGNMENT TO SHOW HIS PERMANENT ADDRESS AS AT REDONDO BEACH AND TO CHANGE THE EFFECTIVE DATE OF THE ORDERS TO MAY 19, 1957, THE REPORTING DATE TO NOT LATER THAN MAY 23, 1957, AND THE DATE OF RELIEF FROM ACTIVE DUTY TO NOVEMBER 18, 1957.

SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813, PROVIDES THAT UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED MEMBERS OF THE UNIFORMED SERVICES SHALL BE ENTITLED TO RECEIVE TRAVEL AND TRANSPORTATION ALLOWANCES FOR TRAVEL PERFORMED UNDER COMPETENT ORDERS UPON CALL TO ACTIVE DUTY FROM HOME OR FROM THE PLACE FROM WHICH ORDERED TO ACTIVE DUTY TO THE FIRST STATION, AND SECTION 201 (E) OF THE ACT, 63 STAT. 807, AS AMENDED, 37 U.S.C. 232 (E), PROVIDES THAT IN ACCORDANCE WITH REGULATIONS PRESCRIBED BY THE PRESIDENT, IN THE CASE OF MEMBERS CALLED OR ORDERED TO EXTENDED ACTIVE DUTY IN EXCESS OF 30 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 THE ORDERS. THE TERM "HOME" FOR SUCH PURPOSES IS DEFINED IN PARAGRAPH 1150-3 OF THE JOINT TRAVEL REGULATIONS TO MEAN "THE PLACE RECORDED AS THE HOME OF THE INDIVIDUAL WHEN COMMISSIONED, REINSTATED, APPOINTED, REAPPOINTED, ENLISTED, REENLISTED, INDUCTED, OR ORDERED INTO THE RELEVANT TOUR OF ACTIVE DUTY.'

ON THE DATE OF ISSUANCE OF THE ORDERS OF MAY 29, 1956, THE OFFICER'S HOME OF RECORD WAS AT ST. ALBANS, AND THE ORDERS DIRECTED TRAVEL FROM THAT POINT TO HIS ACTIVE DUTY STATION AT FORT BELVOIR. TRAVEL WAS NOT REQUIRED UNDER THOSE ORDERS UNTIL MAY 22, 1957, AND CONSEQUENTLY SUCH ORDERS COULD HAVE BEEN EFFECTIVELY AMENDED AT ANY TIME PRIOR TO THAT DATE TO REFLECT A CHANGE OF HOME ADDRESS AND TO DIRECT TRAVEL FROM THAT POINT ON ENTERING UPON ACTIVE DUTY. THE ORDERS OF HEADQUARTERS, NEW YORK MILITARY DISTRICT, DATED OCTOBER 1, 1956, HOWEVER, WERE ISSUED ONLY FOR THE PURPOSE OF CHANGE OF RESERVE UNIT ASSIGNMENT AND WERE NOT INTENDED AS AN AMENDMENT TO THE ORDERS OF MAY 29, 1956. THEREFORE, INASMUCH AS SUCH ORDERS WERE NOT OTHERWISE AMENDED PRIOR TO THEIR EFFECTIVE DATE--- THE DATE TRAVEL WAS REQUIRED--- LIEUTENANT MENKES' HOME FOR PURPOSES OF DETERMINING HIS RIGHT TO TRAVEL ALLOWANCES WHEN "ORDERED INTO THE RELEVANT TOUR OF ACTIVE DUTY," AS WELL AS FOR DETERMINING THE EFFECTIVE DATE OF ENTRY UPON ACTIVE DUTY FOR PAY PURPOSES, WAS ST. ALBANS, AND SUCH FACT WAS NOT CHANGED BY THE MODIFICATION OF THE ORDERS BY THE ORDERS OF JULY 9, 1957, THE RULE BEING WELL ESTABLISHED THAT TRAVEL ORDERS MAY NOT BE MODIFIED RETROACTIVELY TO INCREASE THE RIGHTS OF THE TRAVELER OR TO ALTER THE LIABILITY OF THE GOVERNMENT IN THE MATTER. 24 COMP. GEN. 439. CONSEQUENTLY, NO AUTHORITY EXISTS FOR THE PAYMENT OF A MILEAGE ALLOWANCE EXCEEDING THAT FROM ST. ALBANS TO FORT BELVOIR WHICH THE OFFICER PREVIOUSLY HAS RECEIVED.