B-148400, APR. 16, 1962

B-148400, APR. 16, 1962

TO MR. JAMES O. CLINE:

REFERENCE IS MADE TO YOUR RECENT LETTER IN EFFECT REQUESTING FURTHER CONSIDERATION OF THE CLAIM OF THE UNITED STATES AGAINST YOU IN THE SUM OF $117.16 ARISING FROM AN OVERPAYMENT OF PAY AND ALLOWANCES FOR TRAVEL TIME INCIDENT TO YOUR RELEASE FROM ACTIVE DUTY AS LIEUTENANT (JG), UNITED STATES NAVAL RESERVE. WHILE IT APPEARS FROM YOUR LETTER THAT YOU HAVE REMITTED THE AMOUNT OF THE INDEBTEDNESS TO THE UNITED STATES NAVY FINANCE CENTER, CLEVELAND 14, OHIO, YOU REQUEST A FURTHER EXPLANATION OF THE BASIS FOR THE INDEBTEDNESS.

THE RECORD SHOWS THAT YOU SERVED AS A REGULAR MEMBER OF THE UNITED STATES NAVY FROM JUNE 8, 1955, TO JUNE 25, 1958; THAT YOU ACCEPTED A COMMISSION IN THE UNITED STATES NAVAL RESERVE ON JUNE 26, 1958. THE TERMINATION OF YOUR COMMISSION IN THE UNITED STATES NAVY AND REAPPOINTMENT IN THE UNITED STATES NAVAL RESERVE WAS ACCOMPLISHED BY ORDERS DATED APRIL 18, 1958. THEY CITED AS AUTHORITY 10 U.S.C. 6907, WHICH PROVIDES FOR APPOINTMENT IN THE NAVAL RESERVE AND RELEASE FROM ACTIVE DUTY AT THE DISCRETION OF THE SECRETARY OF THE NAVY OF CERTAIN OFFICERS APPOINTED UNDER 10 U.S.C. 6904. ORDERS DATED JULY 2, 1958, DIRECTED YOUR RELEASE FROM ACTIVE DUTY BY SEPTEMBER 17, 1958, AFTER SERVING LESS THAN 90 DAYS IN A RESERVE STATUS. PURSUANT TO AN ENDORSEMENT OF SEPTEMBER 5, 1958, TO YOUR ORDERS, YOU WERE DETACHED FROM DUTY AT ALAMEDA, CALIFORNIA, ON THAT DATE. THE ENDORSEMENT AUTHORIZED 11 DAYS' TRAVEL TIME FOR TRAVEL BY PRIVATELY OWNED CONVEYANCE FROM ALAMEDA, CALIFORNIA, TO YOUR HOME OF RECORD, YONKERS, NEW YORK, AND PROVIDED THAT AT 2400, SEPTEMBER 16, 1958, YOU WERE TO REGARD YOURSELF AS RELEASED FROM ACTIVE DUTY. YOU RECEIVED PAY AND ALLOWANCE FOR 11 DAYS' TRAVEL TIME. HOWEVER, UPON AUDIT OF THE DISBURSING OFFICER'S ACCOUNTS, EXCEPTION WAS TAKEN TO PAYMENT OF OF PAY AND ALLOWANCES IN EXCESS OF FOUR DAYS, THE TIME REQUIRED FOR TRAVEL BY RAIL, RESULTING IN THE INDEBTEDNESS.

IN LETTER OF FEBRUARY 8, 1962, FROM CLAIMS DIVISION OF THIS OFFICE, YOU WERE ADVISED THAT PARAGRAPH 044202-3C, NAVY COMPTROLLER MANUAL, PROVIDES THAT A RESERVE MEMBER RELEASED FROM A PERIOD OF ACTIVE DUTY TO WHICH HE HAS BEEN ORDERED FOR A PERIOD OF MORE THAN 30 DAYS BUT LESS THAN 90 DAYS IS ENTITLED TO ACTIVE DUTY PAY FOR TRAVEL TIME TO HIS HOME COMPUTED BY PUBLIC SERVICE CARRIER SCHEDULES WITHOUT REGARD TO ACTUAL PERFORMANCE OF TRAVEL, AND THAT EXECUTIVE ORDER 10649 DATED DECEMBER 28, 1955, STATES THAT TRAVEL BY PRIVATE CONVEYANCE SHALL NOT BE AUTHORIZED IN ANY CASE IN WHICH THE CALL TO ACTIVE DUTY IS FOR LESS THAN 90 CONSECUTIVE DAYS.

YOU SAY YOU WERE NOT CALLED TO ACTIVE DUTY AS A RESERVIST BUT WERE ALREADY SERVING ON ACTIVE DUTY AS A REGULAR AND WERE RETAINED ON ACTIVE DUTY AS A RESERVIST FOR AN ADDITIONAL PERIOD OF LESS THAN 90 DAYS. FOR THAT REASON YOU BELIEVE THAT THE EXECUTIVE ORDER AND THE CITED PROVISIONS OF THE NAVY COMPTROLLER MANUAL ARE NOT APPLICABLE TO YOUR CASE. THUS, IN EFFECT, YOUR CONTENTION IS THAT YOUR SERVICE AS A REGULAR SHOULD BE COMBINED WITH SUBSEQUENT SERVICE AS A RESERVIST TO AUTHORIZE ADDITIONAL TRAVEL TIME UPON RELEASE FROM ACTIVE DUTY.

THE QUESTION OF WHETHER REGULAR MEMBERS ACCEPTING RESERVE COMMISSIONS AND CONTINUING ON ACTIVE DUTY FOR 10 DAYS COULD COMBINE TIME SERVED AS A REGULAR WITH THE SUBSEQUENT TIME SERVED AS A RESERVIST SO AS TO QUALIFY FOR ADDITIONAL TRAVEL BENEFITS UPON RELEASE FROM ACTIVE DUTY WAS CONSIDERED IN DECISION OF OCTOBER 18, 1957,B-132812, PUBLISHED AT 37 COMP. GEN. 262, IN WHICH THE SECRETARY OF DEFENSE WAS ADVISED IN PERTINENT PART AS FOLLOWS.

"WE UNDERSTAND THAT THE QUESTIONS HERE INVOLVED ARISE ONLY IN CASES, SUCH AS HERE PRESENTED, WHERE IT IS PROPOSED TO ADD THE TIME SERVED AS A REGULAR MEMBER OF THE UNIFORMED SERVICES TO THE TIME SUBSEQUENTLY SERVED AS A RESERVIST TO DETERMINE WHETHER A MEMBER IS CALLED OR ORDERED TO ACTIVE DUTY IN EXCESS OF 30 DAYS WITHIN THE CONTEMPLATION OF THE FIRST PROVISO IN SECTION 201 (D), 37 U.S.C. 231 (D), OF THE CAREER COMPENSATION ACT OF 1949 (AS REDESIGNATED BY SECTION 2 (2), 37 U.S.C. 232, OF THE ACT OF MARCH 31, 1955, 69 STAT. 19). THE CITED PROVISIONS OF LAW RELATE TO MEMBERS OF THE UNIFORMED SERVICES "CALLED OR ORDERED TO EXTENDED ACTIVE DUTY IN EXCESS OF THIRTY DAYS.' IT SEEMS CLEAR THAT THE MEMBERS REFERRED TO ARE MEMBERS OF A RESERVE COMPONENT AND WE SEE NO BASIS ON WHICH THE PERIOD OF TIME SERVED AS A REGULAR MAY BE USED TO AUGMENT THE TIME SUBSEQUENTLY SERVED AS A RESERVIST IN DETERMINING WHETHER A MEMBER WAS CALLED OR ORDERED TO ACTIVE DUTY AS A RESERVIST IN EXCESS OF 30 DAYS. NEITHER THE STATUTE NOR THE REGULATIONS ISSUED UNDER IT SEEM TO CONTEMPLATE SUCH A COMBINATION OF REGULAR AND RESERVE SERVICE. SEE PAGES 1545 AND 1546 OF THE HEARINGS BEFORE A SUBCOMMITTEE OF THE COMMITTEE ON ARMED SERVICES, HOUSE OF REPRESENTATIVES, EIGHTY-FIRST CONGRESS, FIRST SESSION, ON H.R. 2553, WHICH WAS ENACTED AS THE CAREER COMPENSATION ACT OF 1949.'

WHILE YOUR ORDERS TO ACTIVE DUTY DID NOT SPECIFY THE PERIOD OF TIME TO BE SERVED AS A RESERVIST, SINCE YOU IN FACT SERVED LESS THAN 90 DAYS, THERE APPEARS NO BASIS ON WHICH YOUR SERVICE AS A REGULAR MAY BE COMBINED WITH YOUR RESERVE SERVICE SO AS TO AUTHORIZE TRAVEL BY PRIVATE AUTOMOBILE TO YOUR HOME ON THE BASIS OF RESERVE SERVICE OF 90 DAYS OR MORE. THEREFORE, IT APPEARS THAT YOU PROPERLY WERE CHARGED WITH AN OVERPAYMENT OF ACTIVE DUTY PAY AND ALLOWANCES.