B-153964, SEPTEMBER 15, 1964, 44 COMP. GEN. 140

B-153964, SEPTEMBER 15, 1964, 44 COMP. GEN. 140

MILEAGE - MILITARY PERSONNEL - MIXED MODES - ABSENTEE, ETC., STATUS EFFECT AN ENLISTED MARINE CORPS MEMBER WHO, UNDER ORDERS DIRECTING TRAVEL TO A NEW PERMANENT DUTY STATION, DESERTED AND SUBSEQUENTLY UPON APPREHENSION COMPLETED THE TRAVEL TO THE DUTY STATION OVER AN INDIRECT ROUTE AT PERSONAL EXPENSE AND BY GOVERNMENT MEANS (USE OF TRANSPORTATION REQUEST AND GOVERNMENT CONVEYANCE) IS REGARDED AS COMPLETING TRAVEL UNDER THE ORIGINAL CHANGE OF STATION ORDERS WHICH REMAINED IN EFFECT ENTITLING THE MEMBER TO PAYMENT OF A TRAVEL ALLOWANCE FOR THE MIXED MODES OF TRAVEL AND, THEREFORE, THE MEMBER WHO HAD THE DESERTION MARK REMOVED UPON CONVICTION FOR AN UNAUTHORIZED ABSENCE IS ENTITLED TO MILEAGE COMPUTED ON THE OFFICIAL DISTANCE FROM THE OLD TO THE NEW STATION, LESS THE DISTANCE OF INDIRECT INTERMEDIATE TRAVEL BY TRANSPORTATION REQUEST AND GOVERNMENT MEANS, PLUS ANY PER DIEM TO WHICH HE MAY BE ENTITLED FOR THE TRAVEL PERFORMED.

TO P. W. SPITHALER, UNITED STATES MARINE CORPS, SEPTEMBER 15, 1964:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 13, 1964, WITH ENCLOSURES, IN WHICH YOU REQUEST AN ADVANCE DECISION AS TO THE ENTITLEMENT OF PRIVATE ROBERT TUCKER, 1911578, U.S. MARINE CORPS, TO MILEAGE ALLOWANCE UNDER THE CIRCUMSTANCES STATED BELOW. THE REQUEST WAS ASSIGNED CONTROL NO. 64-9 BY THE DEPARTMENT OF DEFENSE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

BY ORDERS DATED FEBRUARY 21 AND APRIL 17, 1963, PRIVATE TUCKER WAS DIRECTED TO TRAVEL FROM HIS OVERSEAS DUTY STATION TO SAN DIEGO, CALIFORNIA, THENCE TO SECOND MARINE DIVISION, FLEET MARINE FORCE, CAMP LEJEUNE, NORTH CAROLINA, WHERE HE WAS TO REPORT NOT LATER THAN MIDNIGHT ON JUNE 1, 1963. HE DID NOT REPORT THERE ON JUNE 1, 1963, AND YOU SAY THAT ON THAT DAY HE WAS ADMINISTRATIVELY JOINED BY "SERVICE RECORD" BY SECOND RECONNAISSANCE BATTALION, SECOND MARINE DIVISION, FLEET MARINE FORCE, CAMP LEJEUNE, AND SUBSEQUENTLY DECLARED A DESERTER AS OF JUNE 2, 1963. SEPTEMBER 5, 1963, TUCKER WAS APPREHENDED BY CIVILIAN AUTHORITY AT COLUMBUS, OHIO, AND DELIVERED TO MILITARY AUTHORITY THAT DATE. IN FIFTH INDORSEMENT DATED DECEMBER 23, 1963, TO HIS ORDERS IT IS STATED THAT ON SEPTEMBER 13, 1963, HE WAS ISSUED TRANSPORTATION REQUEST NO. 306173 TO PROCEED TO NAVAL TRAINING CENTER, GREAT LAKES, ILLINOIS, TO AWAIT GOVERNMENT AIR EVACUATION UNDER GUARD TO CAMP LEJEUNE. SUCH TRANSPORTATION WAS FURNISHED ON OCTOBER 1, 1963.

IN YOUR LETTER IT IS STATED THAT UNDER THE PROVISIONS OF PARAGRAPH 1101.1 (A) NAVAL TRAVEL INSTRUCTIONS, TUCKER WAS ADVANCED THE SUM OF $155 FOR THE OFFICIAL TRAVEL REQUIRED TO BE PERFORMED BETWEEN SAN DIEGO, CALIFORNIA, AND CAMP LEJEUNE, NORTH CAROLINA, AND THAT UPON REPORTING IT WOULD APPEAR THAT THE ADVANCE WOULD BE LIQUIDATED IN ACCORDANCE WITH THE MIXED TRAVEL PROVISIONS OF PARAGRAPH 4154 OF THE JOINT TRAVEL REGULATIONS. HOWEVER, YOU SAY THAT SINCE PARAGRAPH 5400-2 OF THE REGULATIONS REQUIRES THAT A CHECK AGE FOR TRANSPORTATION REQUESTS ISSUED TO A DESERTER, WITH OR WITHOUT ORDERS, BE MADE AGAINST THE MEMBER'S PAY RECORD, YOU BELIEVE THIS PROCEDURE IS CONTRADICTORY TO THE NORMAL METHOD OUTLINED IN PARAGRAPH 4154 AND YOU ASK THE FOLLOWING UESTIONS:

(1) IS THE PERMANENT CHANGE OF STATION ORDERS PREVIOUSLY ISSUED CONSIDERED CANCELLED AND VOIDED WHEN A MEMBER IS DECLARED A DESERTER?

(2) IF QUESTION (1) IS ANSWERED IN THE AFFIRMATIVE; COULD THE ANSWER LATER BE REVERSED IF THE ,MARK OF DESERTION" WAS REMOVED AS BEING ERRONEOUS AND THE MEMBER WAS TRIED AND CONVICTED FOR A LESSOR OFFENSE?

(3) IF QUESTION (1) IS ANSWERED IN THE NEGATIVE; WOULD THE CLAIM FOR TRAVEL BE COMPUTED AT 6 CENTS PER MILE FROM SAN DIEGO, CALIF. TO COLUMBUS, OHIO AND CHECK AGE MADE FOR ACTUAL COST OF TR'S FURNISHED TO GREAT LAKES, ILLINOIS?

(4) IF QUESTION (1) IS ANSWERED IN THE NEGATIVE; WOULD THE CLAIM FOR TRAVEL BE COMPUTED AT 5 CENTS PER MILE FROM SAN DIEGO TO CAMP LEJEUNE USING THE METHOD PRESCRIBED BY REFERENCE (C) (PARAGRAPH 4154 JTR/?

SINCE RECEIPT OF THE SUBMISSION WE HAVE BEEN FURNISHED OFFICIAL INFORMATION THAT THE MARK OF DESERTION WAS REMOVED IN THE MEMBER'S RECORD AND THAT HE WAS TRIED AND CONVICTED OF UNAUTHORIZED ABSENCE. THEREFORE, THE SUBMISSION WILL BE ANSWERED ON THAT BASIS.

THE PERTINENT STATUTE, 37 U.S.C. 404 (A), 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 ORDERS "WITHOUT REGARD TO THE COMPARATIVE COSTS OF THE VARIOUS MODES OF TRANSPORTATION.' SUBPARAGRAPH (D) OF THAT SECTION PROVIDES THAT THE TRAVEL AND TRANSPORTATION ALLOWANCES AUTHORIZED FOR EACH KIND OF TRAVEL MAY NOT BE MORE THAN ONE OF THE FOLLOWING:

(1) TRANSPORTATION IN KIND, REIMBURSEMENT THEREFOR, OR A MONETARY ALLOWANCE IN PLACE OF THE COST OF TRANSPORTATION AT A RATE THAT IS NOT MORE THAN 7 CENTS A MILE * * *; (2) TRANSPORTATION IN KIND, REIMBURSEMENT THEREFOR, OR A MONETARY ALLOWANCE IS PROVIDED BY CLAUSE (1) OF THIS SECTION, PLUS A PER DIEM IN PLACE OF SUBSISTENCE OF NOT MORE THAN $16 A DAY; OR (3) A MILEAGE ALLOWANCE OF NOT MORE THAN 10 CENTS A MILE * * *.

PARAGRAPH 5400-1 OF THE REGULATIONS PROVIDES IN PERTINENT PART AS FOLLOWS:

* * * WHEN AN ABSENTEE, * * * UNDER PRIOR ORDERS, REPORTS IN, SURRENDERS AT, OR IS APPREHENDED AND DELIVERED TO A STATION OF ONE OF THE RESPECTIVE SERVICES OTHER THAN HIS DUTY STATION AND IS WITHOUT FUNDS WITH WHICH TO PURCHASE TRANSPORTATION, HE MAY BE FURNISHED THE NECESSARY TRANSPORTATION, AND MEAL TICKETS OR THE EQUIVALENT OF SUCH MEAL TICKETS IN CASH, TO TRAVEL TO HIS NEW DUTY STATION OR TO SUCH OTHER PLACE AS MAY BE DIRECTED BY COMPETENT AUTHORITY. IN SUCH CASES, THE TRANSPORTATION, MEAL TICKETS, OR THE CASH EQUIVALENT OF SUCH MEAL TICKETS WILL BE CONSIDERED AS FURNISHED IN CONNECTION WITH THE PRIOR ORDERS, STATION AND THE NEW DUTY STATION OR BETWEEN OLD DUTY STATION AND THE ULTIMATE NEW DUTY STATION, AS APPLICABLE, SHOULD BE MADE IN ACCORDANCE WITH THE APPROPRIATE SECTIONS OF CHAPTER 4 OF THESE REGULATIONS.

IMPLEMENTING REGULATIONS ARE CONTAINED IN THE MARINE CORPS PERSONNEL MANUAL. PARAGRAPH 7051-2 (B) DEALS WITH THE SITUATION IN WHICH AN ABSENTEE IS DELIVERED TO AN ORGANIZATION OTHER THAN THE ORGANIZATION FROM WHICH HE ABSENTED HIMSELF AND PROVIDES THAT WHERE THE INDIVIDUAL IS EN ROUTE TO A NEW DUTY STATION, HIS CHANGE OF STATION ORDERS WOULD BE ENDORSED IN LIEU OF THE ISSUANCE OF A NEW SET OF ORDERS.

IN 24 COMP. GEN. 18, THERE WAS CONSIDERED THE SOMEWHAT SIMILAR CASE OF AN ENLISTED MAN WHO WAS APPREHENDED AS A STRAGGLER EN ROUTE TO A NEW STATION UNDER ORDERS. IT WAS HELD THAT THE MEMBER DID NOT FORFEIT HIS RIGHT TO TRANSPORTATION AT GOVERNMENT EXPENSE TO THE NEW STATION, NOR WAS HE REQUIRED TO COMPLETE THE ORDERED TRAVEL AT HIS OWN EXPENSE, BUT THAT HE WAS ENTITLED TO THE AUTHORIZED MONEY ALLOWANCE FOR THE OFFICIAL DISTANCE OF THE ORDERED TRAVEL LESS THE DISTANCE FOR WHICH TRANSPORTATION IN KIND WAS FURNISHED HIM BY THE GOVERNMENT. THIS DECISION IS BASED ON THE ESTABLISHED RULE THAT THE GOVERNMENT IS OBLIGATED TO TRANSPORT MEMBERS OF THE UNIFORMED SERVICES WHO HAVE BEEN ASSIGNED TO A NEW STATION. 21 COMP. DEC. 842, 845; AND 1 COMP. GEN. 400, 402.

BASED ON THE FOREGOING, IT APPEARS THAT WHEN TUCKER WAS ISSUED A TRANSPORTATION REQUEST AT COLUMBUS, OHIO, FOR TRANSPORTATION TO THE NAVAL TRAINING CENTER, GREAT LAKES, ILLINOIS, TO AWAIT GOVERNMENT AIR EVACUATION TO CAMP LEJEUNE, NORTH CAROLINA, HE WAS FURNISHED TRANSPORTATION WHICH APPARENTLY WAS ADMINISTRATIVELY DETERMINED TO BE NECESSARY TO COMPLETE THE DIRECTED TRANSFER TO CAMP LEJEUNE UNDER HIS ORDERS OF FEBRUARY 21 AND APRIL 17, 1963. THUS THE PERMANENT CHANGE OF STATION ORDERS REMAINED IN EFFECT AND HIS TRAVEL ALLOWANCES ARE FOR COMPUTATION IN ACCORDANCE WITH THE MIXED TRAVEL PROVISIONS OF PARAGRAPH 4154 OF THE JOINT TRAVEL REGULATIONS.

PARAGRAPH 4154-2 RELATING TO PERMANENT CHANGE OF STATION TRAVEL PARTLY AT PERSONAL EXPENSE AND PARTLY AT GOVERNMENT MEANS (TRANSPORTATION REQUESTS OR TRANSPORTATION IN KIND) IN EFFECT AT THE TIME PROVIDES:

2. ALLOWANCES FOR TRANSPORTATION. COMPUTATION OF MONETARY ALLOWANCES IN LIEU OF TRANSPORTATION SHALL BE IN ACCORDANCE WITH THE FOLLOWING CIRCUMSTANCES:

1. FOR TRAVEL AT PERSONAL EXPENSE UNDER SUBPAR. 1, A MONETARY ALLOWANCE IN LIEU OF TRANSPORTATION AT THE RATE OF $0.05 PER MILE SHALL BE ALLOWED FOR THE OFFICIAL DISTANCE OF THE ORDERED TRAVEL LESS THE OFFICIAL DISTANCE BETWEEN THE POINTS TRANSPORTATION REQUESTS WERE FURNISHED AND USED. THE EVENT THAT COMPUTATION UNDER THIS PARAGRAPH SHOWS THAT A MEMBER HAS BEEN FURNISHED AND USED EXCESS TRANSPORTATION, DEDUCTION SHALL BE MADE AT THE RATE OF $0.05 PER MILE FOR SUCH EXCESS TRANSPORTATION;

2. IN THE EVENT THAT GOVERNMENT CONVEYANCE IS UTILIZED FOR A PORTION OF THE JOURNEY UNDER THE ABOVE CIRCUMSTANCES, THE OFFICIAL DISTANCE OF THE ORDERED TRAVEL FOR WHICH A MONETARY ALLOWANCE IN LIEU OF TRANSPORTATION IS PAYABLE SHALL BE THE OFFICIAL DISTANCE TRAVEL WAS REQUIRED TO BE PERFORMED AT PERSONAL EXPENSE, NOT TO EXCEED THE OFFICIAL DISTANCE OF THE ORDERED TRAVEL AS REDUCED BY ITEM 1.

IN THE COMPUTATION OF THE TRAVEL ALLOWANCE FOR THE OFFICIAL DISTANCE BETWEEN THE OLD AND THE NEW STATION, ITEM 1 OF PARAGRAPH 4154-2 REQUIRES THAT THERE BE DEDUCTED FROM SUCH DISTANCE THE DISTANCE BETWEEN THE POINTS TRANSPORTATION REQUESTS WERE USED. IF, IN ADDITION TO THE USE OF TRANSPORTATION REQUESTS, THE MEMBER ALSO IS FURNISHED TRANSPORTATION BY GOVERNMENT CONVEYANCE FOR A PORTION OF THE JOURNEY, ITEM 2 OF PARAGRAPH 4154-2, WHILE NOT ENTIRELY CLEAR, APPEARS TO REQUIRE A FURTHER DEDUCTION FROM THE OFFICIAL DISTANCE THAT IS REDUCED BY THE TRAVEL BY GOVERNMENT CONVEYANCE. THIS IS IN ACCORDANCE WITH THE PERTINENT STATUTE, 37 U.S.C. 404 (A), UNDER WHICH THE GOVERNMENT'S OBLIGATION IS LIMITED TO FURNISHING A MEMBER TRANSPORTATION OR REIMBURSEMENT THEREFOR FROM HIS OLD TO HIS NEW DUTY STATION. ALSO, UNDER SUBSECTION 404 (D) A MEMBER MAY NOT RECEIVE BOTH TRANSPORTATION IN KIND AND A MONETARY ALLOWANCE FOR THE SAME DISTANCE TRAVELED BY GOVERNMENT CONVEYANCE. THEREFORE, WHEN TRANSPORTATION BY GOVERNMENT CONVEYANCE RESULTS IN A REDUCTION OF THE OFFICIAL DISTANCE AS WELL AS THE DISTANCE TRAVELED BY TRANSPORTATION REQUEST MUST BE CONSIDERED IN COMPUTING THE TRAVEL ALLOWANCE DUE FOR THE TRAVEL PERFORMED AT PERSONAL EXPENSE. COMPARE B-147477 DATED NOVEMBER 8, 1961, AND CHAPTER 5, SECTION B OF AIR FORCE MANUAL 177-103.

SINCE THE TRAVEL IN THIS CASE WAS PERFORMED AT PERSONAL EXPENSE AND BY GOVERNMENT MEANS (USE OF TRANSPORTATION REQUEST AND GOVERNMENT CONVEYANCE) AND CIRCUITOUS TRAVEL IS INVOLVED IN COMPUTING THE TRAVEL ALLOWANCE UNDER PARAGRAPH 4154 OF THE REGULATIONS, TUCKER IS ENTITLED TO AN ALLOWANCE OF 5 CENTS PER MILE FOR THE OFFICIAL DISTANCE FROM SAN DIEGO, CALIFORNIA, TO CAMP LEJEUNE, NORTH CAROLINA, LESS THE OFFICIAL DISTANCE OF TRAVEL PERFORMED BY GOVERNMENT MEANS FROM COLUMBUS, OHIO, TO CAMP LEJEUNE VIA GREAT LAKES, ILLINOIS. IN THE CIRCUMSTANCES OF THIS CASE, THE OFFICIAL DISTANCE BETWEEN SAN DIEGO AND CAMP LEJEUNE PROPERLY IS TO BE REDUCED BY THE DISTANCE OF THE INDIRECT TRAVEL BY GOVERNMENT MEANS VIA GREAT LAKES RATHER THAN THE DIRECT DISTANCE FROM COLUMBUS, OHIO, TO CAMP LEJEUNE SINCE, DUE TO TUCKER'S FAILURE TO REPORT AT CAMP LEJEUNE AS DIRECTED, IT APPARENTLY WAS DETERMINED TO BE NECESSARY TO TRANSPORT HIM TO GREAT LAKES FOR CONFINEMENT AND FURTHER TRANSPORTATION BY AIR TO HIS DUTY STATION. THEREFORE HE IS ENTITLED TO A MONETARY ALLOWANCE OF 5 CENTS PER MILE FOR THE TRAVEL INVOLVED COMPUTED ON THE ABOVE BASIS, TOGETHER WITH ANY PER DIEM TO WHICH HE MAY BE ENTITLED FOR THE TRAVEL PERFORMED.

SINCE THE MARK OF DESERTION HAS BEEN REMOVED, NO FURTHER ANSWERS APPEAR TO BE REQUIRED TO THE QUESTIONS PRESENTED.