B-157955, DEC. 10, 1965

B-157955, DEC. 10, 1965

TO THE SECRETARY OF THE NAVY:

REFERENCE IS MADE TO LETTER OF OCTOBER 20, 1965, FROM THE UNDER SECRETARY OF THE NAVY REQUESTING DECISION WHETHER PARAGRAPH M6005 OF THE JOINT TRAVEL REGULATIONS WHICH BECAME EFFECTIVE AUGUST 31, 1965, MAY BE AMENDED RETROACTIVELY TO CHANGE THE EFFECTIVE DATE TO MAY 27, 1965, UNDER THE CIRCUMSTANCES DESCRIBED. THE REQUEST WAS ASSIGNED CONTROL NO. 65-32 BY THE DEPARTMENT OF DEFENSE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

IN THE LETTER IT IS STATED THAT PUBLIC LAW 89-51, APPROVED JUNE 28, 1965, 79 STAT. 173, WITH EFFECTIVE DATE OF OCTOBER 13, 1964, AMENDED THE RESERVE OFFICERS' TRAINING CORPS VITALIZATION ACT OF 1964, PUB.L. 88-647, APPROVED OCTOBER 13, 1964, 78 STAT. 1063, TO PROVIDE AUTHORITY FOR PAYMENT OF TRAVEL AND TRANSPORTATION ALLOWANCES TO SELECTED APPLICANTS FOR MEMBERSHIP IN THE SENIOR RESERVE OFFICERS' TRAINING CORPS FOR ORDERED TRAVEL TO AND FROM SUMMER TRAINING DUTY. IT IS FURTHER STATED THAT THE LEGISLATIVE HISTORY OF THE BILL, H.R. 7762, 89TH CONGRESS, WHICH WAS ENACTED AS PUBLIC LAW 89-51 INDICATES THAT THIS AUTHORITY WAS INADVERTENTLY OMITTED FROM PUBLIC LAW 88-647, AND THAT IS IS ALSO INDICATED THAT PUBLIC LAW 89-51 WAS MADE RETROACTIVELY EFFECTIVE TO INSURE THAT APPLICANTS FOR MEMBERSHIP IN THE SENIOR RESERVE OFFICERS' TRAINING CORPS WOULD BE ENTITLED TO ALLOWANCES FOR TRAINING IN THE SUMMER OF 1965.

ALSO IT IS SAID THAT THE TRAVEL AND TRANSPORTATION ENTITLEMENT PROVISIONS OF PUBLIC LAW 88-647 WERE IMPLEMENTED IN PARAGRAPH M6005 OF THE JOINT TRAVEL REGULATIONS, EFFECTIVE MAY 27, 1965, BY JOINT DETERMINATION NO. 30- 65 OF THAT DATE AND THAT BY JOINT DETERMINATION NO. 53-65 DATED AUGUST 31, 1965, PARAGRAPH M6005 OF THE REGULATIONS WAS AMENDED TO IMPLEMENT THE PROVISIONS OF PUBLIC LAW 89-51. IT IS STATED THAT IN THE ADMINISTRATIVE PROCESSING OF JOINT DETERMINATION NO. 53 65, THE INTENDED EFFECTIVE DATE MAY 27, 1965, WAS INADVERTENTLY DELETED WITH THE RESULT THAT THE AMENDMENT OF PARAGRAPH M6005 BECAME EFFECTIVE ON AUGUST 31, 1965, RATHER THAN ON MAY 27, 1965, AS INTENDED. THIS IS REFLECTED IN CHANGE NO. 154 OF THE JOINT TRAVEL REGULATIONS.

IN HIS LETTER THE UNDER SECRETARY SAYS THAT IN OUR DECISION B-68708, AUGUST 20, 1947, IT IS INDICATED THAT REGULATIONS ISSUED PURSUANT TO EXPRESS STATUTORY AUTHORITY AND AMENDMENTS THERETO MAY BE MADE RETROACTIVELY EFFECTIVE TO THE EFFECTIVE DATE OF THE STATUTE UNDER WHICH THEY ARE ISSUED. FURTHER, HE SAYS THAT IT IS IMPLIED IN OUR DECISION 32 COMP. GEN. 315, 316, THAT A RETROACTIVE AMENDMENT TO A REGULATION MAY BE ISSUED TO CORRECT AN OBVIOUS ADMINISTRATIVE ERROR AND THEREFORE, IT WOULD APPEAR TO BE PROPER TO AMEND PARAGRAPH M6005 OF THE REGULATIONS SO AS TO BE EFFECTIVE ON MAY 27, 1965.

SECTION 2109 OF TITLE 10, U.S.C. WAS ADDED BY PUBLIC LAW 88-647, DATED OCTOBER 13, 1964, AND PROVIDES FOR FIELD TRAINING AND PRACTICE CRUISES FOR MEMBERS OF THE SENIOR RESERVE OFFICERS' TRAINING CORPS. SUBSECTION (B) (1) PROVIDES THAT THE SECRETARY OF THE MILITARY DEPARTMENT CONCERNED MAY--

"/1) TRANSPORT MEMBERS OF THE PROGRAM TO AND FROM THE PLACES DESIGNATED FOR FIELD TRAINING OR PRACTICE CRUISES AND FURNISH THEM SUBSISTENCE WHILE TRAVELING TO AND FROM THOSE PLACES, OR, INSTEAD OF FURNISHING THEM TRANSPORTATION AND SUBSISTENCE, PAY THEM A TRAVEL ALLOWANCE AT THE RATE PRESCRIBED FOR CADETS AND MIDSHIPMEN AT THE UNITED STATES MILITARY, NAVAL, AND AIR FORCE ACADEMIES FOR TRAVEL BY THE SHORTEST USUALLY TRAVELED ROUTE FROM THE PLACES FROM WHICH THEY ARE AUTHORIZED TO PROCEED TO THE PLACE DESIGNATED FOR THE TRAINING OR CRUISE AND RETURN, AND PAY THE ALLOWANCE FOR THE RETURN TRIP IN ADVANCE; "

SECTION 2 OF PUBLIC LAW 89-51 AMENDED 10 U.S.C. 2109 (B) BY INSERTING THE WORDS,"AND DESIGNATED APPLICANTS FOR MEMBERSHIP," AFTER THE WORDS "MEMBERS OF" WHEREVER THEY APPEAR. SECTION 4 OF THE STATUTE PROVIDES "THE EFFECTIVE DATE OF THIS ACT IS OCTOBER 13, 1964.'

THE PURPOSE OF THE ABOVE-QUOTED PROVISIONS OF LAW IS STATED IN SENATE REPORT 315 ON H.R. 7762, 89TH CONG., 1ST SESS. AT PAGE 2 AS FOLLOWS:

"ANOTHER PURPOSE OF THE ROTC LEGISLATION ENACTED LAST YEAR WAS TO AUTHORIZE A 2-YEAR SENIOR ROTC PROGRAM THAT WAS INTENDED TO ATTRACT TRANSFER STUDENTS FROM JUNIOR COLLEGES WITHOUT ROTC UNITS AND STUDENTS AT 4-YEAR COLLEGES WHO HAVE NOT HAD THE BASIC COURSE OF THE SENIOR ROTC PROGRAM. BEFORE A STUDENT CAN BE ACCEPTED IN THE NEW 2-YEAR SENIOR ROTC PROGRAM, HE MUST SUCCESSFULLY COMPLETE A 6- TO 8-WEEK PERIOD OF SUMMER MILITARY TRAINING. THE 1964 ACT AUTHORIZED PAY FOR APPLICANTS FOR THE 2- YEAR ROTC BUT IT DID NOT INCLUDE A PROVISION AUTHORIZING TRAVEL ALLOWANCES TO AND FROM THE SUMMER MILITARY TRAINING. THIS OMISSION WAS UNINTENDED AND H.R. 7762 WOULD PROVIDE AUTHORITY FOR PAYMENT OF THESE NECESSARY TRAVEL ALLOWANCES.'

FURTHER, THE REPORT SHOWS THAT THE LEGISLATION (PUB.L. 89-51) WAS SPONSORED BY THE DEPARTMENT OF DEFENSE TO GIVE THE SECRETARY OF THE MILITARY DEPARTMENT CONCERNED AUTHORITY TO ISSUE REGULATIONS AUTHORIZING TRAVEL ALLOWANCES FOR DESIGNATED APPLICANTS FOR MEMBERSHIP IN THE ROTC PROGRAM FOR THE REASON THAT IT WOULD BE DIFFICULT, IF NOT IMPOSSIBLE TO CONDUCT THE CAMPS AND CRUISES WITHOUT THE TRAVEL AUTHORIZATION, AND THAT SUCH REGULATIONS COULD BE MADE RETROACTIVE TO OCTOBER 13, 1964.

IT IS A WELL ESTABLISHED RULE THAT WHEN REGULATIONS ARE PROPERLY ISSUED RIGHTS THEREUNDER BECOME FIXED AND, ALTHOUGH SUCH REGULATIONS MAY BE AMENDED PROSPECTIVELY TO INCREASE OR DECREASE RIGHTS GIVEN THEREBY, THEY MAY NOT BE SO AMENDED RETROACTIVELY EXCEPT TO CORRECT OBVIOUS ERRORS IN THE REGULATIONS WHICH IT IS INTENDED TO CORRECT. 27 COMP. GEN. 339; 32 ID. 315 AND 527; 33 ID. 174 AND 505; 40 ID. 242 AND 41 ID. 392. COMPARE ARIZONA GROCERY V. ATCHISON RY., 284 U.S. 370 (1932); HELVERING V. GRIFFITHS, 318 U.S. 371, 395 (1943); 23 COMP. GEN. 713, 716, AND 24 ID. 439, 441.

CLEARLY, CHANGE 154 TO PARAGRAPH M6005, JOINT TRAVEL REGULATIONS, WAS PROMULGATED FOR THE EXPRESS PURPOSE OF AUTHORIZING TRAVEL ALLOWANCES FOR APPLICANTS FOR MEMBERSHIP IN THE ROTC PROGRAM WHILE TRAVELING TO AND FROM THE PLACES FOR TRAINING OR PRACTICE CRUISES. ALSO, THE RECORD SHOWS THAT IT WAS BOTH THE LEGISLATIVE AND ADMINISTRATIVE INTENT THAT SUCH APPLICANTS WOULD BE ENTITLED TO THESE ALLOWANCES INCIDENT TO TRAINING PERFORMED IN THE SUMMER OF 1965. THE REGULATION AS WRITTEN WAS INEFFECTIVE TO AUTHORIZE TRAVEL ALLOWANCES FOR SUCH APPLICANTS FOR TRAINING IN THE SUMMER OF 1965 FOR THE STATED REASON THAT THE INTENDED EFFECTIVE DATE, MAY 27, 1965, WAS INADVERTENTLY OMITTED. THUS IT IS EVIDENT THAT PARAGRAPH M6005 OF THE REGULATIONS AS WRITTEN DOES NOT REFLECT THE INTENT OF THE ISSUING AUTHORITY AND THAT THE WORDS "EFFECTIVE DATE MAY 27, 1965" WERE INTENDED FOR INCLUSION IN THE REGULATION BUT WERE OMITTED THROUGH ERROR OR INADVERTENCE.

BASED ON THE FOREGOING IT APPEARS THAT A MODIFICATION TO PARAGRAPH M6005 OF THE REGULATIONS MAKING IT EFFECTIVE MAY 27, 1965, MAY BE CONSIDERED A BONA FIDE CORRECTION TO SHOW ORIGINAL INTENT, COMING WITHIN THE RULE PERMITTING RETROACTIVE MODIFICATION, AND WOULD BE PROPER. SEE OUR DECISION OF AUGUST 12, 1964, TO THE SECRETARY OF THE ARMY, B-154781, COPY HEREWITH.