B-15187, MARCH 26, 1941, 20 COMP. GEN. 562

B-15187, MARCH 26, 1941, 20 COMP. GEN. 562

TRAVEL ALLOWANCE - ARMY - DISCHARGE TO ACCEPT CIVILIAN POSITION ARMY ENLISTED MEN DISCHARGED TO ACCEPT CIVILIAN EMPLOYMENT IN A MILITARY AGENCY OF THE UNITED STATES, UNDER A REGULATION AUTHORIZING SUCH DISCHARGES "FOR THE CONVENIENCE OF THE GOVERNMENT," ARE NOT ENTITLED TO TRAVEL ALLOWANCE UNDER THE ACT OF SEPTEMBER 22, 1922, SINCE DISCHARGES UNDER THESE CIRCUMSTANCES MUST BE CONSIDERED TO HAVE BEEN AT THE REQUEST OF AND FOR THE PERSONAL CONVENIENCE OF THE MEN.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF WAR, MARCH 26, 1941:

THERE HAS BEEN CONSIDERED YOUR LETTER DATED FEBRUARY 20, 1941, AS FOLLOWS:

NOTICES OF EXCEPTIONS ISSUED BY YOUR OFFICE ARE BEING RECEIVED IN THE OFFICE OF THE CHIEF OF FINANCE, PERTAINING TO PAYMENTS MADE BY DISBURSING OFFICERS STATIONED IN THE PANAMA CANAL DEPARTMENT FOR TRAVEL PAY TO ENLISTED MEN DISCHARGED UNDER THE PROVISIONS OF SECTION III, WAR DEPARTMENT CIRCULAR NUMBER 73, SEPTEMBER 25, 1939, E.G., NOTICE OF EXCEPTION DATED JANUARY 14, 1941, ON VOUCHER 58, JANUARY 1940, ACCOUNTS OF MAJOR HARRY FOSTER, F.D., A COPY OF WHICH IS INCLOSED.

THE AMENDMENT OF ARMY REGULATIONS 615-210 AS PUBLISHED IN SECTION III, WAR DEPARTMENT CIRCULAR NUMBER 73, SEPTEMBER 25, 1939, PROVIDES THAT:

" DEPARTMENT COMMANDERS ARE AUTHORIZED TO DISCHARGE ENLISTED MEN FOR THE CONVENIENCE OF THE GOVERNMENT, TO ENABLE THEM TO ACCEPT EMPLOYMENT IN A CIVILIAN CAPACITY IN A MILITARY AGENCY OF THE UNITED STATES OPERATED UNDER CONTROL OF THE DEPARTMENT COMMANDER. THIS AUTHORITY WILL BE EXERCISED ONLY WHEN, IN THE OPINION OF THE COMMANDER, THE CHANGE OF STATUS OF THE INDIVIDUAL WILL BENEFIT THE MILITARY SERVICE WITHIN HIS COMMAND.'

BASED ON THIS REGULATION, THE DISBURSING OFFICERS HAVE BEEN PAYING TRAVEL PAY TO THE ENLISTED MEN CONCERNED AS THE FINAL STATEMENTS SHOW THAT THE DISCHARGE IS "FOR THE CONVENIENCE OF THE GOVERNMENT.'

YOUR OFFICE, HOWEVER, HAS TAKEN THE VIEW THAT SUCH DISCHARGES ARE FOR THE CONVENIENCE OF THE ENLISTED MEN, AND HAS DENIED CREDIT FOR THE PAYMENTS IN THE ACCOUNTS OF THE DISBURSING OFFICERS, FOR THE REASON THAT, AS STATED ON THE NOTICE OF EXCEPTION:

" SOLDIER DISCHARGED FOR CONVENIENCE OF THE GOVERNMENT UNDER SECTION X- 1A.R.---615-360, AS AMENDED BY PAR. 60A WAR DEPARTMENT CIRCULAR NO. 73 DATED SEPTEMBER 25, 1939, APPARENTLY IS NOT ENTITLED TO TRAVEL PAY. COMP. GEN. 265.'

THIS VIEW WAS ALSO HELD BY THE CLAIMS DIVISION OF YOUR OFFICE IN THE CASE OF STAFF SERGEANT ROY D. KIRK, NUMBER 6923641, 7TH RECONNAISSANCE SQUADRON, AIR CORPS, FRANCE FIELD, CANAL ZONE, WHO WAS DISCHARGED UNDER THE PROVISIONS OF SECTION III, WAR DEPARTMENT CIRCULAR NUMBER 73, SEPTEMBER 25, 1939, BUT WHO WAS NOT PAID TRAVEL PAY AT THE TIME OF HIS DISCHARGE. HIS CLAIM WAS SUBMITTED TO YOUR OFFICE ON JUNE 17, 1940, AND THE REPORT FURNISHED YOUR OFFICE BY THE ADJUTANT GENERAL ON THIS CASE STATED THAT STAFF SERGEANT KIRK HAD BEEN HONORABLY DISCHARGED MARCH 14, 1940, AT FRANCE FIELD, CANAL ZONE, FOR CONVENIENCE OF THE GOVERNMENT (TO ACCEPT CIVILIAN EMPLOYMENT WITH THE UNITED STATES ARMY IN THE CANAL ZONE). THIS CLAIM, NUMBER 10926127, WAS DISALLOWED ON DECEMBER 30, 1940, FOR THE FOLLOWING REASON:

" THE ADJUTANT GENERAL OF THE ARMY HAS REPORTED THAT YOU WERE ACCEPTED FOR ENLISTMENT ON MAY 4, 1937, AT DECATUR, ALABAMA, AND DISCHARGED ON MARCH 14, 1940, AT YOUR OWN REQUEST AND FOR YOUR OWN CONVENIENCE, TO ACCEPT CIVILIAN EMPLOYMENT WITH THE UNITED STATES ARMY IN THE CANAL ZONE.

" IT HAS BEEN CONSISTENTLY HELD THAT A SOLDIER DISCHARGED AT HIS OWN REQUEST AND FOR HIS OWN CONVENIENCE, IS NOT ENTITLED TO TRAVEL PAY. ACCORDINGLY, THERE IS NO AUTHORITY OF LAW FOR PAYMENT AS CLAIMED.'

YOUR DECISION IS, THEREFORE, RESPECTFULLY REQUESTED AS TO WHETHER ENLISTED MEN OF THE ARMY DISCHARGED FOR THE CONVENIENCE OF THE GOVERNMENT, UNDER THE PROVISIONS OF ARMY REGULATIONS 615-210, AS AMENDED BY WAR DEPARTMENT CIRCULAR NUMBER 73, SEPTEMBER 25, 1939, ARE ENTITLED TO RECEIVE TRAVEL PAY AS AUTHORIZED BY THE ACT OF SEPTEMBER 22, 1922 (42 STAT. 1021).

SECTION 126 OF THE NATIONAL DEFENSE ACT OF JUNE 3, 1916, AS AMENDED AND REENACTED BY THE ACT OF SEPTEMBER 22, 1922, 42 STAT. 1021, PROVIDES:

HEREAFTER AN ENLISTED MAN DISCHARGED FROM THE ARMY, NAVY, OR MARINE CORPS, EXCEPT BY WAY OF PUNISHMENT FOR AN OFFENSE, SHALL RECEIVE 5 CENTS PER MILE FOR THE DISTANCE FROM THE PLACE OF HIS DISCHARGE TO THE PLACE OF HIS ACCEPTANCE FOR ENLISTMENT, ENROLLMENT, OR MUSTER INTO THE SERVICE: * *

THE AMENDMENT TO ARMY REGULATIONS 615-210 QUOTED IN YOUR LETTER AUTHORIZES DEPARTMENT COMMANDERS TO DISCHARGE ENLISTED MEN FOR THE CONVENIENCE OF THE GOVERNMENT TO ENABLE SUCH ENLISTED MEN TO ACCEPT EMPLOYMENT IN A CIVILIAN CAPACITY IN A MILITARY AGENCY OF THE UNITED STATES OPERATED UNDER THE CONTROL OF THE DEPARTMENT COMMANDER AND PROVIDES THAT SUCH AUTHORITY WILL BE EXERCISED ONLY WHEN, IN THE COMMANDER'S OPINION, THE CHANGE OF STATUS OF THE INDIVIDUAL WILL BENEFIT THE MILITARY SERVICE. YOUR QUESTION IS WHETHER ENLISTED MEN DISCHARGED UNDER THIS REGULATION ARE ENTITLED TO TRAVEL ALLOWANCE AS AUTHORIZED BY THE ACT OF SEPTEMBER 22, 1922, SUPRA.

BEFORE A DISCHARGE CAN BE MADE UNDER THE REGULATION, IT APPEARS THAT AN ENLISTED MAN MUST, IN EFFECT, REQUEST THAT HE BE GRANTED A DISCHARGE BY MAKING KNOWN HIS INTENTION OF ACCEPTING CIVILIAN EMPLOYMENT. THE REGULATION CONTEMPLATES THIS ACTION ON HIS PART BECAUSE WITHOUT HIS ASSURANCE THAT HE WILL ACCEPT EMPLOYMENT IN A MILITARY AGENCY OF THE UNITED STATES OPERATED UNDER THE CONTROL OF THE PARTICULAR DEPARTMENT COMMANDER, THE DISCHARGE WOULD NOT FALL WITHIN THE SCOPE OF THE REGULATION. THEREFORE, IT FOLLOWS THAT ENLISTED MEN WHO OBTAIN A DISCHARGE IN ACCORDANCE WITH THIS REGULATION MUST BE CONSIDERED TO HAVE OBTAINED SUCH DISCHARGE AT THEIR REQUEST.

IT HAS BEEN CONSISTENTLY HELD THAT AN ENLISTED MAN WHO IS DISCHARGED AT HIS OWN REQUEST PRIOR TO THE EXPIRATION OF HIS ENLISTMENT BY WAY OF FAVOR AND FOR HIS PERSONAL CONVENIENCE IS NOT ENTITLED TO THE TRAVEL ALLOWANCE AUTHORIZED BY THE ABOVE ACT. 5 COMP. GEN. 265, AND CASES CITED THEREIN; A -28173, AUGUST 9, 1929; A-27671, AUGUST 7, 1929; A 30228, FEBRUARY 3, 1930; A-40700, FEBRUARY 16, 1932; A-96296, AUGUST 26, 1938. IT HAS BEEN HELD, ALSO, THAT WHERE AN ENLISTED MAN IS DISCHARGED AT HIS REQUEST PRIOR TO THE EXPIRATION OF HIS ENLISTMENT IN ORDER THAT HE MAY ACCEPT CIVILIAN EMPLOYMENT, HIS DISCHARGE IS BY WAY OF FAVOR AND FOR HIS PERSONAL CONVENIENCE. 2 COMP. DEC. 252; 6 ID. 326; 82 MS COMP. DEC. 582. IT DOES NOT APPEAR THAT A DISCHARGE OBTAINED UNDER THE REGULATION IN QUESTION SHOULD GIVE GREATER RIGHTS.

THE LAST SENTENCE OF THE AMENDMENT PROVIDES THAT DISCHARGES OF THIS NATURE WILL BE MADE ONLY WHEN, IN THE OPINION OF THE DEPARTMENT COMMANDER, THE CHANGE OF STATUS WILL BENEFIT THE MILITARY SERVICE, BUT AN ADMINISTRATIVE STATEMENT THAT A DISCHARGE IS FOR THE CONVENIENCE OF THE GOVERNMENT IS NOT EVIDENCE THAT SUCH DISCHARGE WAS NOT GRANTED BY WAY OF FAVOR TO THE MAN AND FOR HIS PERSONAL CONVENIENCE, FOR NECESSARILY DISCHARGES IN SUCH CIRCUMSTANCES ARE ALWAYS OF ADVANTAGE TO THE ENLISTED MAN, OR, AT LEAST, ARE BELIEVED BY HIM TO BE TO HIS ADVANTAGE. IN 5 COMP. GEN. 265, IT WAS STATED, BEGINNING WITH THE LAST PARAGRAPH ON PAGE 268:

IT IS TRUE YOUR SUGGESTION IS THAT WHETHER THE DISCHARGE IS BY WAY OF FAVOR AND FOR THE PERSONAL CONVENIENCE OF THE MAN IS A QUESTION OF FACT AND THAT ADMINISTRATIVE OFFICERS' DETERMINATIONS OF SUCH FACTS SHOULD BE CONCLUSIVE UPON THE GENERAL ACCOUNTING OFFICE IN THE SETTLEMENT OF ACCOUNTS. THIS IS NOT TRUE IN OTHER MATTERS UNLESS IT IS MADE SO BY STATUTE. THE LEGALITY OF THE PAYMENT IS TO BE DETERMINED BY THE LAW AND THE FACTS. IF ADMINISTRATIVE OFFICERS' DETERMINATIONS WHETHER ON THE FACT BY ADMINISTRATIVE OFFICERS COULD NOT BE EQUALLY CONTROLLING IN ALL QUESTIONS OF MIXED LAW AND FACT. IT IS SUFFICIENT TO SAY THAT THERE COULD BE NO INDEPENDENT AUDIT WERE YOUR SUGGESTION SOUND, AND THE ACCOUNTING OFFICERS FROM THE FOUNDATION OF THE GOVERNMENT HAVE NOT BEEN BOUND BY THE DETERMINATION OF FACTS BY ADMINISTRATIVE OFFICERS EXCEPT WHERE STATUTES IN SPECIFIC INSTANCES HAVE MADE SUCH DETERMINATION FINAL. * * * ..END :