B-145922, AUGUST 1, 1961, 41 COMP. GEN. 56

B-145922, AUGUST 1, 1961, 41 COMP. GEN. 56

PAY - ACTIVE DUTY - TRAVEL TIME ON RELEASE - RESERVISTS DELAYED DUE TO WEATHER, ETC. - AMENDATORY ORDERS NECESSITY ALTHOUGH A REGULATION TO AUTHORIZE ADDITIONAL ACTIVE DUTY PAY TO RESERVISTS WHO ARE DELAYED IN RETURNING TO THEIR HOMES UPON RELEASE FROM TRAINING DUTY BECAUSE OF WEATHER CONDITIONS OR MECHANICAL FAILURE OF PUBLIC OR GOVERNMENT TRANSPORTATION FACILITIES, WITHOUT THE NECESSITY FOR ISSUANCE OF AMENDATORY ORDERS, WOULD BE EFFECTIVE UNDER NAVY AND MARINE REGULATIONS WHICH CLEARLY LIMIT PAY FOR ACTIVE DUTY FOR TRAINING TO THE PERIOD COVERED BY THE ORDERS PLUS THE TIME NECESSARY FOR TRAVEL, WITHOUT A RELEASE DATE BEING STATED IN THE ORDERS, UNDER ARMY AND AIR FORCE PROCEDURES WHICH PROVIDE FOR ORDERING PERSONNEL TO AN OVERALL TRAINING PERIOD BETWEEN SPECIFIED DATES, INCLUDING TO AND FROM TRAVEL TIME, THERE IS NO BASIS FOR COMPUTATION OF NECESSARY OR CONSTRUCTIVE TRAVEL TIME AND, THEREFORE, THE REGULATION WOULD BE WITHOUT EFFECT UNLESS THE PROCEDURES WERE CHANGED TO ACCORD WITH THOSE OF THE NAVY AND MARINE CORPS.

TO THE SECRETARY OF DEFENSE, AUGUST 1, 1961:

REFERENCE IS MADE TO LETTER OF MAY 19, 1961, FROM THE ASSISTANT SECRETARY OF DEFENSE, REQUESTING DECISION WHETHER THE MILITARY DEPARTMENTS MAY PROMULGATE REGULATIONS AUTHORIZING PAYMENT OF ACTIVE DUTY PAY WITHOUT ISSUANCE OF AMENDATORY ORDERS FOR THE PERIOD (USUALLY ONE DAY) A RESERVIST IS DELAYED IN RETURNING TO HIS HOME, UPON RELEASE FROM TRAINING DUTY, BECAUSE OF WEATHER CONDITIONS OR MECHANICAL FAILURE OF PUBLIC OR GOVERNMENT TRANSPORTATION FACILITIES UNDER THE CIRCUMSTANCES SET FORTH IN COMMITTEE ACTION NO. 279 OF THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE.

THE QUESTION AND REGULATION PROPOSED ARE PRESENTED AS FOLLOWS:

MAY THE MODIFICATION TO REGULATIONS PROPOSED HEREIN FOR THE PAYMENT OF ADDITIONAL ACTIVE DUTY PAY AND ALLOWANCES TO RESERVE PERSONNEL WHERE DELAY IN RETURN TRAVEL PERFORMED IN CONNECTION WITH RELEASE FROM ACTIVE DUTY OR ACTIVE DUTY FOR TRAINING OCCURS AS A RESULT OF MECHANICAL FAILURE OR ADVERSE WEATHER CONDITIONS, WITHOUT THE REQUIREMENT OF AMENDATORY ORDERS, BE ADOPTED BY THE SERVICES?

THE MODIFICATION TO THE SERVICE REGULATIONS IS EXEMPLIFIED BY THE PROPOSED REVISION TO NAVY COMPTROLLER MANUAL, PARAGRAPH 1044735-2, WHICH READS AS FOLLOWS:

B. EXCESS TRAVEL TIME. ADDITIONAL PAYMENT IS NOT AUTHORIZED FOR TRAVEL TIME IN EXCESS OF THAT ALLOWABLE ON THE BASIS OF SUBPARAGRAPH A, EXCEPT IN INSTANCES WHERE DELAY IN RETURN TRAVEL PERFORMED BY PUBLIC SURFACE TRANSPORTATION OR GOVERNMENT OR COMMERCIAL AIR, AS APPLICABLE, ACTUALLY OCCURS DUE TO MECHANICAL FAILURE OR ADVERSE WEATHER CONDITIONS. CLAIMS FOR ADDITIONAL PAY AND ALLOWANCES WILL BE SUBMITTED IN ACCORDANCE WITH PARAGRAPH 1044725 AND MUST BE SUPPORTED BY A STATEMENT FROM THE CARRIER AS TO THE REASON FOR THE DELAY.

SECTION 201 (D) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 232 (D), PROVIDES IN PERTINENT PART THAT:

ALL MEMBERS OF THE UNIFORMED SERVICES WHEN ON THE ACTIVE LIST, WHEN ON ACTIVE DUTY, OR WHEN PARTICIPATING IN FULL-TIME TRAINING, TRAINING DUTY WITH PAY OR OTHER FULL-TIME DUTY * * * SHALL BE ENTITLED TO RECEIVE THE BASIC PAY OF THE PAY GRADE TO WHICH ASSIGNED * * *. PROVIDED, 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 MEMBERS * * *. ANY PAYMENTS ACCRUING UNDER ANY LAW TO ANY MEMBER OF A UNIFORMED SERVICE INCIDENT TO HIS RELEASE FROM ACTIVE DUTY OR ACTIVE DUTY FOR TRAINING OR FOR HIS RETURN HOME INCIDENT TO RELEASE FROM THAT DUTY, MAY BE PAID TO THAT MEMBER BEFORE HIS DEPARTURE FROM HIS LAST DUTY STATION, WHETHER OR NOT HE ACTUALLY PERFORMS THE TRAVEL INVOLVED. * * *

REGULATIONS PROMULGATED PURSUANT TO SECTION 201 (D) ARE CONTAINED IN EXECUTIVE ORDER NO. 10153, AUGUST 17, 1950, AS AMENDED BY EXECUTIVE ORDER NO. 10649, DECEMBER 28, 1955. SECTION 2 OF THE EXECUTIVE ORDER, RELATING TO MEMBERS CALLED TO ACTIVE DUTY IN EXCESS OF 30 DAYS, PROVIDES IN PART AS FOLLOWS:

SECTION 2. FOR TRAVEL FROM LAST DUTY STATION TO HOME, 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 PUBLIC SURFACE TRANSPORTATION, WITHOUT REGARD TO THE ACTUAL PERFORMANCE OF SUCH TRAVEL.

THE EXECUTIVE ORDER ALSO PROVIDES THAT THE SECRETARIES CONCERNED MAY PRESCRIBE, WITH RESPECT TO PERSONNEL WITHIN THEIR RESPECTIVE DEPARTMENTS, SUCH SUPPLEMENTAL REGULATIONS NOT INCONSISTENT WITH THOSE REGULATIONS AS MAY BE DEEMED NECESSARY OR DESIRABLE FOR CARRYING OUT SUCH REGULATIONS.

IT IS STATED IN THE COMMITTEE ACTION DISCUSSION OF THE PROPOSED REGULATION, REGARDING TRAINING DUTY FOR RESERVISTS, THAT ORDERS FOR ARMY AND AIR FORCE PERSONNEL PROVIDE FOR AN OVERALL TRAINING PERIOD OF A CERTAIN NUMBER OF DAYS, WHICH INCLUDES AUTHORIZED TRAVEL TIME TO AND FROM THE TRAINING LOCATION. THE "RELEASE DATE" SPECIFICALLY INDICATED IN ORDERS FOR ARMY AND AIR FORCE MEMBERS IS THE CONSTRUCTIVE DATE ON WHICH THE MEMBER IS DUE TO ARRIVE HOME AND BE RELEASED FROM DUTY, AND IS ALSO THE FINAL DAY FOR WHICH PAY AND ALLOWANCES ACCRUE. UNDER NAVY AND MARINE CORPS PROCEDURES, HOWEVER, THE PERIOD OF TRAINING SPECIFIED IN THE ORDERS IS THE ACTUAL DURATION OF TRAINING DUTY, EXCLUSIVE OF TRAVEL TIME. THE ORDERS DIRECT THE MEMBER TO REPORT ON A SPECIFIC DATE FOR A SPECIFIED NUMBER OF DAYS (NORMALLY 14 DAYS) TRAINING DUTY, PLUS "THE TIME NECESSARY TO PERFORM TRAVEL.' THERE IS NO SPECIFIC "RELEASE DATE," AS SUCH, INDICATED IN THE ORDERS OF NAVY AND MARINE CORPS MEMBERS. THE CONTROLLING DATE IS THE DATE OF DETACHMENT FROM THE TRAINING DUTY STATION, AND SUCH DATE IS ENDORSED ON THE MEMBER'S ORDERS. THIS DETACHMENT DATE IS THEN USED TO COMPUTE THE CONSTRUCTIVE DATE ON WHICH HE IS TO ARRIVE HOME--- THE DATE ON WHICH PAY AND ALLOWANCES CEASE TO ACCRUE.

THE PROPOSED REGULATION WOULD NOT BE APPLICABLE IN THOSE CASES WHERE A RESERVIST, RETURNING TO HIS HOME FROM A PERIOD OF TRAINING DUTY, UTILIZES A PRIVATELY OWNED VEHICLE. IN OUR DECISION OF DECEMBER 31, 1959, B- 141220, CITED IN COMMITTEE ACTION NO. 279, INVOLVING A CLAIM FOR PAY FOR ADDITIONAL TRAVEL TIME BY A NAVAL RESERVIST, THE ADDITIONAL TIME HAVING BEEN OCCASIONED BY MECHANICAL FAILURE AND A FORCED LANDING OF A GOVERNMENT CHARTERED PLANE EN ROUTE HOME FROM A PERIOD OF ACTIVE DUTY FOR TRAINING, WE HELD THAT PAYMENT WAS NOT AUTHORIZED. THAT DECISION WAS BASED UPON THE CONTROLLING REGULATIONS, NAVY COMPTROLLER MANUAL, PARAGRAPHS 1044735-1 AND 2, WHICH LIMITED PAY FOR ACTIVE DUTY FOR TRAINING TO THE PERIOD COVERED BY THE ORDERS TO SUCH DUTY PLUS THE TRAVEL TIME REQUIRED FOR TRAVEL NOT TO EXCEED THE CONSTRUCTIVE TIME FOR TRAVEL BY THE SHORTEST USUALLY TRAVELED ROUTE.

THE CONTROLLING NAVY AND MARINE CORPS 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 TRAVEL TIME. SINCE IT IS THE PRACTICE OF THOSE SERVICES TO SPECIFY IN TRAINING DUTY ORDERS THE ACTUAL PERIOD OF TRAINING DUTY PLUS THE TIME NECESSARY TO PERFORM THE TRAVEL (NO DATE OF RELEASE TO INACTIVE DUTY BEING STATED), WE SEE NO OBJECTION TO THE ISSUANCE OF THE PROPOSED REGULATION AND ARE OF THE VIEW THAT, WITHOUT ISSUING FURTHER ORDERS TO SUCH MEMBERS, IT WOULD OPERATE TO AUTHORIZE ADDITIONAL TRAVEL TIME FOR NAVY AND MARINE CORPS MEMBERS IN CASES OF DELAY IN RETURN UNDER THE CIRCUMSTANCES SPECIFIED.

WITH RESPECT TO ARMY AND AIR FORCE PROCEDURE, HOWEVER, IT IS STATED TO BE THE PRACTICE OF THOSE SERVICES TO ORDER PERSONNEL TO AN OVERALL TRAINING PERIOD BETWEEN SPECIFIED DATES WHICH INCLUDES TRAVEL TIME TO AND FROM THE TRAINING LOCATION. THUS, ARMY REGULATION 37-104, PARAGRAPH 20-22 DEALING WITH COMPUTATION OF TRAVEL TIME FOR MEMBERS OF THE ARMY RESERVE ORDERED TO ACTIVE DUTY FOR TRAINING PROVIDES AS FOLLOWS: 20-22. COMPUTATION OF TRAVEL TIME

*A. GENERAL. FINANCE AND ACCOUNTING OFFICERS WILL, IN EVERY CASE, COMPUTE THE TRAVEL TIME AND DETERMINE THE PROPER DATE OF ENTRY ON ACTIVE DUTY, EXCEPT AS PROVIDED IN B BELOW.

*B. SERVICE OF 30 DAYS OR LESS. TRAVEL TIME NEED NOT BE COMPUTED IN THOSE CASES WHERE A MEMBER IS ORDERED TO ACTIVE DUTY FOR TRAINING FOR A PERIOD EXTENDING BETWEEN TWO DATES, BOTH DATES INCLUSIVE, PROVIDED A REPORTING DATE IS NOT SHOWN IN THE ORDERS.

UNDER SUCH ARMY AND AIR FORCE PROCEDURES WHERE NO REPORTING DATE OR DATE OF RELEASE FROM THE TRAINING DUTY STATION IS SHOWN, NO BASIS IS PRESENTED FOR COMPUTING NECESSARY OR CONSTRUCTIVE TRAVEL TIME. HENCE, THE PROPOSED REGULATIONS COULD NOT OPERATE TO EXTEND THE NECESSARY TRAVEL TIME FOR SUCH PERSONNEL. FURTHERMORE, WE HAVE HELD THAT PAY IS NOT AUTHORIZED BEYOND THE DATE OF RELEASE FROM ACTIVE OR TRAINING DUTY STATED IN THE ORDERS, AND THAT THE INACTIVE STATUS OF A RESERVIST AUTOMATICALLY BECOMES EFFECTIVE ON THE DATE STATED IN THE ORDERS UNLESS AT SOME TIME PRIOR TO SUCH EFFECTIVE DATE COMPETENT ORDERS ARE ISSUED WHICH AMEND OR MODIFY THE ORDERS RELEASING HIM FROM A DUTY STATUS, SO AS TO POSTPONE OR CANCEL THE DATE OF RELEASE FROM ACTIVE DUTY. 33 COMP. GEN. 239. THEREFORE, UNDER THE PRESENT PROCEDURES OF THE ARMY AND AIR FORCE THE PROPOSED REGULATION WOULD BE WITHOUT EFFECT. HOWEVER, IF SUCH PROCEDURES ARE CHANGED TO ACCORD WITH THE NAVY AND MARINE CORPS PROCEDURES, THAT IS, TO SPECIFY IN THE MEMBER'S ORDERS THE ACTUAL PERIOD OF TRAINING DUTY PLUS NECESSARY TRAVEL TIME, THE PROPOSED REGULATION, IF PROMULGATED, WOULD OPERATE TO EXTEND TRAVEL TIME IN THE CIRCUMSTANCES STATED. THE QUESTION PRESENTED IS ANSWERED ACCORDINGLY.