B-141220, DEC. 31, 1959

B-141220, DEC. 31, 1959

TO JAMES H. STEWART, SECC, U.S. NAVAL AND MARINE CORPS RESERVE TRAINING CENTER:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 22, 1959, WITH ENCLOSURES, REQUESTING REVIEW OF THAT PART OF THE SETTLEMENT OF SEPTEMBER 21, 1959, WHICH DISALLOWED YOUR CLAIM FOR REFUND OF CHECK AGE FOR EXCESS TRAVEL TIME ON FEBRUARY 22, 1957, AND PAYMENT FOR ONE EXTRA DAY TRAVEL TIME ON MARCH 11, 1957, INCIDENT TO ACTIVE DUTY TRAINING.

BY ORDERS FROM THE COMMANDANT, NINTH NAVAL DISTRICT, DATED JANUARY 24, 1957, IF FOUND PHYSICALLY QUALIFIED UPON EXAMINATION ON FEBRUARY 19, 1957, YOU WERE DIRECTED TO PROCEED FROM LANSING, MICHIGAN, AND REPORT TO THE COMMANDING OFFICER, U.S. NAVAL RECEIVING STATION. U.S. NAVAL STATION, SAN DIEGO, CALIFORNIA, PRIOR TO 1600 HOURS ON FEBRUARY 24, 1957, FOR FURTHER ASSIGNMENT TO THE U.S.S. STODDARD DD556, FOR 14 DAYS' ACTIVE DUTY TRAINING. THE ORDERS PROVIDED THAT YOU WOULD BE ENTITLED TO ACTIVE DUTY PAY AND ALLOWANCES FOR THE SPECIFIED NUMBER OF DAYS OF ACTIVE DUTY FOR TRAINING PLUS THE TIME NECESSARY TO PERFORM TRAVEL BY THE MODE OF TRANSPORTATION EMPLOYED "OR FOR CONSTRUCTIVE TRAVEL OVER THE OFFICIAL ROUTE, WHICHEVER IS LESS.' IT APPEARS THAT YOU AND 10 OTHERS WERE TO TRAVEL UNDER IDENTICAL ORDERS; THAT THE COMMANDANT, NINTH NAVAL DISTRICT, ARRANGED FOR GROUP TRAVEL ABOARD A CHARTERED PLANE, AND THAT A TRANSPORTATION REQUEST WAS ISSUED FOR TRAVEL ABOARD THAT PLANE. THE PLANE DEPARTED LANSING ON FEBRUARY 22, 1957, AND YOU REPORTED ABOARD THE VESSEL THE NEXT DAY. YOU WERE RELEASED FROM ACTIVE DUTY TRAINING ON MARCH 9, 1957, AND ARRIVED AT LANSING ON MARCH 11, 1957, 28 1/2 HOURS LATER THAN SCHEDULED, DUE TO MECHANICAL FAILURE AND A FORCED LANDING EN ROUTE. YOU WERE PAID FOR ACTIVE DUTY TRAINING, INCLUDING TRAVEL TIME, FROM FEBRUARY 19 THROUGH MARCH 10, 1957. HOWEVER, YOUR PAY ACCOUNT SUBSEQUENTLY WAS CHECKED FOR THE PERIOD FEBRUARY 19 THROUGH 22, 1957. YOU CONTEND, HOWEVER, THAT YOU ARE ENTITLED TO PAY FOR FEBRUARY 22, 1957, FOR THE REASON THAT TRAVEL ABOARD THE CHARTERED PLANE COMMENCED ON THAT AY; ALSO THAT YOU ARE ENTITLED TO ONE ADDITIONAL DAY'S PAY FOR MARCH 11, 1957, FOR THE REASON THAT THE PLANE DID NOT ARRIVE AT LANSING UNTIL THAT DATE.

YOUR CLAIM FOR ACTIVE DUTY PAY FOR THOSE DAYS WAS DISALLOWED BY THE SETTLEMENT MENTIONED ABOVE FOR THE REASON THAT COMMERCIAL AIR TARIFF SCHEDULES ON FILE IN THIS OFFICE SHOW YOU COULD HAVE DEPARTED LANSING ON FEBRUARY 23, 1957, AND ARRIVED AT SAN DIEGO ON FEBRUARY 24, AND THAT ON THE RETURN TRIP YOU COULD HAVE DEPARTED SAN DIEGO ON MARCH 9, 1957, AND ARRIVED AT LANSING BEFORE 12 O-CLOCK NOON ON MARCH 10, 1957. THE CRUX OF YOUR REQUEST FOR REVIEW IS THAT SINCE THE NAVY HAD CHARTERED A COMMERCIAL PLANE FOR GROUP TRAVEL AND HAD ISSUED A TRANSPORTATION REQUEST FOR TRAVEL ABOARD IT, YOU COULD NOT HAVE UTILIZED OTHER COMMERCIAL AIR TRANSPORTATION BUT WERE REQUIRED TO TRAVEL WITH THE GROUP. YOUR REQUEST IS SUPPORTED BY A LETTER DATED SEPTEMBER 15, 1959, FROM THE COMMANDING OFFICER, NAVAL RESERVE SURFACE DIVISION 9-101 (M).

PARAGRAPH 044735-1 AND 2, NAVY COMPTROLLER MANUAL, PROVIDES THAT MEMBERS OF THE NAVAL RESERVE ON TRAINING DUTY WITH PAY ARE ENTITLED TO ACTIVE DUTY PAY AND ALLOWANCES, AND THAT THE PAY STATUS BEGINS ON THE DATE THAT A MEMBER OFFICIALLY AND NECESSARILY COMPLIES WITH THE ORDER CALLING HIM TO ACTIVE DUTY FOR TRAINING AND EXTENDS TO AND INCLUDES THE DATE HE IS RELIEVED FROM ACTIVE DUTY FOR TRAINING. IT FURTHER PROVIDES THAT SINCE TRAVEL BY PUBLIC TRANSPORTATION IS THE ONLY MODE OF TRANSPORTATION AUTHORIZED FOR ACTIVE DUTY FOR TRAINING FOR LESS THAN 90 DAYS, COMPUTATION OF TRAVEL TIME IN REPORTING TO ACTIVE DUTY FOR TRAINING WILL BE BASED ON ACTUAL TRAVEL TIME NOT TO EXCEED CONSTRUCTIVE TRAVEL BY THE SHORTEST USUALLY TRAVELED ROUTE, AND THAT TRAVEL TO THE PLACE FROM WHICH ORDERED TO ACTIVE DUTY FOR TRAINING UPON RELEASE FROM TRAINING DUTY WILL BE BASED ON CONSTRUCTIVE TRAVEL TIME BY THE SHORTEST USUALLY TRAVELED ROUTE "REGARDLESS OF PERFORMANCE OF TRAVEL.'

THUS, THE CONTROLLING REGULATIONS CLEARLY LIMIT PAY FOR ACTIVE DUTY FOR TRAINING TO THE PERIOD COVERED BY THE ORDERS TO SUCH DUTY PLUS THE TIME REQUIRED FOR TRAVEL NOT TO EXCEED THE CONSTRUCTIVE TIME FOR TRAVEL BY THE SHORTEST USUALLY TRAVELED ROUTE REGARDLESS OF THE FACT THAT THE ACTUAL TRAVEL TIME MAY BE GREATER. THEREFORE, EVEN THOUGH THE TRAVEL WAS ARRANGED BY CHARTERED PLANE, THERE WAS NO AUTHORITY TO BEGIN YOUR ACTIVE DUTY PAY ONE DAY SOONER THAN WAS NECESSARY TO COMPLY WITH THE ORDERS BY THE MODE OF TRANSPORTATION ACTUALLY USED NOR TO EXTEND IT BY ONE DAY BY REASON OF THE FACT THAT THE TRAVEL AS PERFORMED REQUIRED MORE TIME THAN CONSTRUCTIVE TRAVEL OVER THE USUALLY TRAVELED ROUTE. SEE 37 COMP. GEN. 103.