B-16981, JUNE 16, 1941, 20 COMP. GEN. 898

B-16981, JUNE 16, 1941, 20 COMP. GEN. 898

REGULAR ARMY RESERVISTS - TRAVEL ALLOWANCE AND LUMP SUM PAYMENT FOR TIME ON RESERVE LIST REGULAR ARMY RESERVISTS ON ACTIVE DUTY UNDER PUBLIC RESOLUTION NO. 96, APPROVED AUGUST 27, 1940, ARE ENTITLED UPON DISCHARGE TO TRAVEL ALLOWANCE RATHER THAN TRANSPORTATION IN KIND, AND THE TRAVEL ALLOWANCE MAY BE COMPUTED ON THE DISTANCE FROM THE PLACE OF DISCHARGE TO THE LAST PROPERLY REPORTED HOME FROM WHICH TRANSPORTATION WAS FURNISHED, IN ACCORDANCE WITH SECTION 30 OF THE NATIONAL DEFENSE ACT, AS AMENDED, WHEN REPORTING FOR ACTIVE DUTY RATHER THAN TO THE PLACE OF REPORTING FOR ACTIVE DUTY. WHERE A REGULAR ARMY RESERVIST IS DISCHARGED ON ACCOUNT OF DEPENDENCY, UNDER THE PROVISIONS OF SECTION 3 (E) OF PUBLIC RESOLUTION NO. 96, APPROVED AUGUST 27, 1940, UPON HIS OWN APPLICATION MADE WITHIN 20 DAYS OF THE DATE OF ENTRY ON ACTIVE DUTY, HE IS NOT ENTITLED TO THE LUMP SUM ALLOWANCE WHICH IS PAYABLE UNDER SECTION 30 OF THE NATIONAL DEFENSE ACT, AS AMENDED, TO REGULAR ARMY RESERVISTS FOR TIME ON THE RESERVE LIST "IF FOUND QUALIFIED AND ACCEPTED FOR ACTIVE DUTY.'

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF WAR, JUNE 16, 1941:

I HAVE YOUR LETTER OF MAY 15, 1941, AS FOLLOWS:

SECTION 2 OF THE PUBLIC RESOLUTION OF AUGUST 27, 1940 (54 STAT. 858), AUTHORIZING THE PRESIDENT TO ORDER MEMBERS AND UNITS OF RESERVE COMPONENTS AND RETIRED PERSONNEL OF THE REGULAR ARMY INTO ACTIVE MILITARY SERVICE PROVIDES THAT:

"ALL NATIONAL GUARD, RESERVE, AND RETIRED PERSONNEL ORDERED INTO THE ACTIVE MILITARY SERVICE OF THE UNITED STATES UNDER THE FOREGOING SPECIAL AUTHORITY, SHALL FROM THE DATES ON WHICH THEY ARE RESPECTIVELY REQUIRED BY SUCH ORDER TO REPORT FOR DUTY IN SUCH SERVICE, BE SUBJECT TO THE RESPECTIVE LAWS AND REGULATIONS RELATING TO ENLISTMENTS, REENLISTMENTS, EMPLOYMENT, CONDUCT, RIGHTS, AND PRIVILEGES, AND DISCHARGE OF SUCH PERSONNEL IN SUCH SERVICE TO THE SAME EXTENT IN ALL PARTICULARS AS IF THEY HAD BEEN ORDERED INTO SUCH SERVICE UNDER EXISTING GENERAL STATUTORY AUTHORIZATIONS.'

SECTION 30 OF THE NATIONAL DEFENSE ACT, AS AMENDED BY THE ACT OF JUNE 4, 1920 (41 STAT. 775), AND THE ACT OF APRIL 25, 1938 (52 STAT. 221), PROVIDES IN PART THAT:

"MEMBERS OF THE REGULAR ARMY RESERVE MAY BE ORDERED TO ACTIVE DUTY ONLY IN CASE OF EMERGENCY DECLARED BY THE PRESIDENT AND WHEN SO ORDERED SHALL BE FURNISHED TRANSPORTATION AND SUBSISTENCE ALLOWANCES AT GOVERNMENT EXPENSE FROM THEIR HOMES WITHIN THE CONTINENTAL LIMITS OF THE UNITED STATES OR ITS POSSESSIONS TO POINTS WHERE ORDERED TO REPORT FOR ACTIVE DUTY. IN ADDITION, IF FOUND QUALIFIED AND ACCEPTED FOR ACTIVE DUTY FOLLOWING SUCH ORDER THEY SHALL RECEIVE A SUM AT THE RATE OF $3 PER MONTH FOR EACH MONTH THEY HAVE BEEN ENLISTED IN THE REGULAR ARMY RESERVE BUT NOT TO EXCEED $150. WHILE ON ACTIVE DUTY THEY SHALL HAVE THE SAME STATUS AND RECEIVE ONLY THE SAME PAY AND ALLOWANCES PROVIDED BY LAW FOR ENLISTED MEN OF THE ACTIVE REGULAR ARMY OF LIKE GRADE AND LENGTH OF SERVICE. COMPUTING LENGTH OF SERVICE FOR PAY PURPOSES, TIME SPENT ON ACTIVE DUTY ONLY WILL BE COUNTED. WITHIN SIX MONTHS AFTER THE TERMINATION OF AN EMERGENCY DECLARED BY THE PRESIDENT, THEY SHALL BE PLACED IN AN INACTIVE STATUS OR DISCHARGED, WHICHEVER IS APPROPRIATE.

"MEMBERS OF THE REGULAR ARMY RESERVE SHALL BE SUBJECT TO MILITARY LAW ONLY FROM THE DATE THEY ARE REQUIRED TO OBEY AN ORDER TO REPORT FOR ACTIVE DUTY.'

IN CONNECTION WITH THE ORDERING TO ACTIVE MILITARY DUTY OF MEMBERS OF THE REGULAR ARMY RESERVE UNDER THE PUBLIC RESOLUTION OF AUGUST 27, 1940, SUPRA, THE FOLLOWING QUESTIONS HAVE BEEN PRESENTED TO THIS DEPARTMENT ON WHICH YOUR DECISION IS RESPECTFULLY REQUESTED:

1. WHEN A MEMBER OF THE REGULAR ARMY RESERVE, WHO HAS BEEN QUALIFIED AND ACCEPTED FOR ACTIVE MILITARY DUTY, IS DISCHARGED FROM THE ARMY OF THE UNITED STATES BEFORE THE EXPIRATION OF THE PERIOD OF DUTY, IS HE ENTITLED TO TRAVEL PAY AT FIVE CENTS PER MILE WHEN DISCHARGED, AS PROVIDED FOR REGULAR ARMY ENLISTED MEN BY SECTION 126 OF THE NATIONAL DEFENSE ACT, AS AMENDED BY THE ACT OF FEBRUARY 28, 1919 (40 STAT. 1203), AND THE ACT OF SEPTEMBER 22, 1922 (42 STAT. 1021), OR SHOULD HE BE FURNISHED TRANSPORTATION IN KIND?

2. IF HE IS ENTITLED TO TRAVEL PAY, IS THE DISTANCE TO BE COMPUTED FROM THE PLACE OF DISCHARGE TO THE PLACE OF REPORTING FOR ACTIVE DUTY OR FROM THE PLACE OF DISCHARGE TO THE LAST PROPERLY REPORTED HOME WITHIN THE CONTINENTAL LIMITS OF THE UNITED STATES, WHICH IS THE POINT FROM WHICH TRANSPORTATION WAS FURNISHED WHEN HE WAS ORDERED TO REPORT FOR ACTIVE DUTY?

3. SUBPARAGRAPH 31 B (1), AR 155-5, PROVIDES THAT:

"MEMBERS OF THE REGULAR ARMY RESERVE, IF FOUND QUALIFIED AND ACCEPTED FOR ACTIVE DUTY FOLLOWING A PROPER ORDER TO REPORT FOR ACTIVE DUTY, WILL RECEIVE AN ADDITIONAL PAYMENT AT THE RATE OF $3 PER MONTH FOR EACH MONTH THEY HAVE BEEN ENLISTED IN THE REGULAR ARMY RESERVE, BUT NOT TO EXCEED 50.'

UNDER DATE OF DECEMBER 20, 1940, INSTRUCTIONS (COPY INCLOSED) WERE ISSUED TO THE COMMANDING GENERALS OF CORPS AREAS AND DEPARTMENTS WITH REFERENCE TO THE CALLING TO ACTIVE DUTY OF MEMBERS OF THE REGULAR ARMY RESERVE AS FOLLOWS:

"REGULAR ARMY RESERVISTS WHO WILL NOT BE AVAILABLE FOR ACTIVE DUTY BECAUSE OF DEPENDENCY OR BECAUSE THEY HOLD KEY POSITIONS IN ESSENTIAL INDUSTRIES WILL BE DISCHARGED UNDER THE PROVISIONS OF PARAGRAPH G A (1), AR 155-5 PRIOR TO JANUARY 31, 1941. TO ACCOMPLISH THIS THE FOLLOWING ACTION WILL BE TAKEN:

"A. RESERVISTS WITH DEPENDENTS WILL BE INFORMED OF THE PROVISIONS OF PARAGRAPH (C), SECTION 3, OF PUBLIC RESOLUTION NO. 96, 76TH CONGRESS; THAT FAMILY ALLOWANCES WILL NOT BE AVAILABLE; AND THAT IF THEY DESIRE A DISCHARGE FROM THE REGULAR ARMY RESERVE AT THIS TIME A REQUEST FOR DISCHARGE SUPPORTED BY PROOF OF DEPENDENCY MUST BE SUBMITTED TO THE CORPS AREA COMMANDER WITHOUT DELAY.'

UNDER THESE INSTRUCTIONS DISCHARGE OF MEMBERS OF THE REGULAR ARMY RESERVE BECAUSE OF DEPENDENCY WAS NOT MANDATORY. HOWEVER, A NUMBER OF MEMBERS OF THE REGULAR ARMY RESERVE HAVE BEEN DISCHARGED BECAUSE OF DEPENDENCY SINCE BEING INDUCTED AND THE QUESTION HAS ARISEN AS TO WHETHER, IN SUCH CASES, THE ENLISTMENT ALLOWANCE AS PROVIDED FOR IN SUBPARAGRAPH 31 B (1), AR 155- 5, QUOTED ABOVE, IS PROPERLY PAYABLE IN SUCH CASES. ACTION WAS TAKEN IN SECTION III, WAR DEPARTMENT CIRCULAR NO. 42, MARCH 15, 1941, TO CLARIFY THE MEANING OF THE REGULATION REFERRED TO ABOVE WITH REFERENCE TO THESE CASES, WHICH ACTION WAS SPECIFICALLY DESIGNED TO PROHIBIT PAYMENT OF THE ADDITIONAL ALLOWANCE OF $3 PER MONTH IN THE CASE OF MEMBERS OF THE REGULAR ARMY RESERVE WHO REQUEST DISCHARGE ON ACCOUNT OF DEPENDENCY WITHIN TWENTY DAYS AFTER ENTRY INTO ACTIVE MILITARY SERVICE. THERE IS, HOWEVER, SOME DOUBT AS TO WHETHER OR NOT A REGULAR ARMY RESERVIST IS ENTITLED TO THE ADDITIONAL ENLISTMENT ALLOWANCE UNDER THESE CIRCUMSTANCES. YOUR DECISION ON THIS QUESTION IS, THEREFORE, REQUESTED WITH REFERENCE TO THIS MATTER.

UNDER THE PROVISIONS OF SECTION 2 OF PUBLIC RESOLUTION NO. 96, APPROVED AUGUST 27, 1940, 54 STAT. 859, MEMBERS OF THE REGULAR ARMY RESERVE ORDERED INTO THE ACTIVE MILITARY SERVICE OF THE UNITED STATES UNDER THE SPECIAL AUTHORITY CONFERRED UPON THE PRESIDENT BY SECTION 1 OF THAT RESOLUTION ARE SUBJECT TO THE SAME LAWS AND REGULATIONS RELATING TO ENLISTMENTS, REENLISTMENTS, EMPLOYMENT, CONDUCT, RIGHTS, PRIVILEGES, AND DISCHARGES AS THEY WOULD HAVE BEEN IF ORDERED INTO SUCH SERVICE UNDER SECTION 30 OF THE NATIONAL DEFENSE ACT, AS AMENDED, SUPRA. SECTION 30, AS AMENDED, PROVIDES THAT MEMBERS OF THE REGULAR ARMY RESERVE ORDERED TO ACTIVE DUTY IN AN EMERGENCY DECLARED BY THE PRESIDENT SHALL BE FURNISHED TRANSPORTATION AND SUBSISTENCE ALLOWANCES AT GOVERNMENT EXPENSE FROM THEIR HOMES WITHIN THE CONTINENTAL LIMITS OF THE UNITED STATES OR ITS POSSESSIONS TO POINTS WHERE ORDERED TO REPORT FOR ACTIVE DUTY, AND FURTHER PROVIDES THAT WHILE ON ACTIVE DUTY THEY SHALL RECEIVE THE PAY AND ALLOWANCES PROVIDED BY LAW FOR ENLISTED MEN OF THE ACTIVE REGULAR ARMY OF LIKE GRADE AND LENGTH OF SERVICE. SECTION 126 OF THE NATIONAL DEFENSE ACT, AS AMENDED BY THE STATUTES CITED IN YOUR LETTER, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

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: PROVIDED, THAT FOR SEA TRAVEL INVOLVED IN TRAVEL BETWEEN PLACE OF DISCHARGE AND PLACE OF ACCEPTANCE FOR ENROLLMENT, ENLISTMENT, OR MUSTER INTO THE SERVICE ONLY TRANSPORTATION IN KIND AND SUBSISTENCE EN ROUTE SHALL BE ALLOWED: * * *.

IN A DECISION OF THE COMPTROLLER OF THE TREASURY, DATED NOVEMBER 16, 1917, 24 COMP. DEC. 288, THERE WAS CONSIDERED THE QUESTION WHETHER MEMBERS OF THE REGULAR ARMY RESERVE CALLED TO ACTIVE SERVICE IN TIME OF WAR UNDER SECTION 32 OF THE NATIONAL DEFENSE ACT OF JUNE 3, 1916, WERE ENTITLED, UPON DISCHARGE, TO TRAVEL ALLOWANCE TO THEIR HOMES. THE STATUTORY PROVISION FOR TRAVEL ALLOWANCE THERE CONSIDERED (SECTION 126 OF THE ACT OF JUNE 3, 1916, 39 STAT. 217) READS AS FOLLOWS:

ON AND AFTER JULY FIRST, NINETEEN HUNDRED AND SIXTEEN, AN ENLISTED MAN WHEN DISCHARGED FROM THE SERVICE, EXCEPT BY WAY OF PUNISHMENT FOR AN OFFENSE, SHALL RECEIVE 3-1/2 CENTS PER MILE FROM THE PLACE OF HIS DISCHARGE TO THE PLACE OF HIS ACCEPTANCE FOR ENLISTMENT, ENROLLMENT, OR ORIGINAL MUSTER INTO THE SERVICE, AT HIS OPTION: PROVIDED, THAT FOR SEA TRAVEL ON DISCHARGE TRANSPORTATION AND SUBSISTENCE ONLY SHALL BE FURNISHED TO ENLISTED MEN.

THE PERTINENT PART OF SECTION 32, AS QUOTED IN THAT DECISION, IS AS FOLLOWS:

* * * THAT UPON REPORTING FOR DUTY, AND BEING FOUND PHYSICALLY FIT FOR SERVICE, MEMBERS OF THE REGULAR ARMY RESERVE SHALL RECEIVE A SUM EQUAL TO $3 PER MONTH FOR EACH MONTH DURING WHICH THEY SHALL HAVE BELONGED TO THE RESERVE AS WELL AS THE ACTUAL NECESSARY COST OF TRANSPORTATION AND SUBSISTENCE FROM THEIR HOMES TO THE PLACES AT WHICH THEY MAY BE ORDERED TO REPORT FOR DUTY UNDER SUCH SUMMONS. * * *

THE CONCLUSION REACHED BY THE COMPTROLLER OF THE TREASURY IS STATED IN THE LAST PARAGRAPH OF THE DECISION AS FOLLOWS:

IT IS EVIDENT THAT IN SO FAR AS THE OPERATION OF THIS STATUTE IS CONCERNED THE REENTRY OF A MEMBER OF THE REGULAR ARMY RESERVE TO ACTIVE SERVICE IS IN THE NATURE OF A NEW ENLISTMENT. THE FACT THAT THE STATUTE EXPRESSLY PROVIDES FOR THE PAYMENT OF NECESSARY TRAVEL EXPENSES FROM THE HOME WHENCE HE IS RECALLED TO ACTIVE SERVICE CLEARLY INDICATES AN INTENT TO REGARD THAT HOME AS THE PLACE OF HIS ACCEPTANCE FOR ENLISTMENT WITHIN THE MEANING OF THE ACT. YOU ARE ADVISED ACCORDINGLY.

THE STATUTORY PROVISIONS CONSIDERED IN THAT DECISION ARE QUITE SIMILAR IN ALL ESSENTIAL RESPECTS TO THE PROVISIONS CITED BY YOU FROM THE STATUTES NOW IN EFFECT. SINCE THE LAW HAS SPECIFICALLY PROVIDED FOR TRANSPORTATION OF MEMBERS OF THE REGULAR ARMY RESERVE ONLY FROM THEIR HOMES TO POINTS WHERE ORDERED TO REPORT FOR ACTIVE DUTY, AND SINCE THEIR PAY AND ALLOWANCES WHILE ON ACTIVE DUTY ARE THE SAME AS THOSE OF ENLISTED MEN OF THE REGULAR ARMY IT SEEMS REASONABLE TO CONCLUDE THAT WITH RESPECT TO ALLOWANCE FOR TRAVEL UPON DISCHARGE THEY ARE ENTITLED TO TRAVEL ALLOWANCE AS PROVIDED FOR DISCHARGED ENLISTED MEN OF THE REGULAR ARMY. HOWEVER, IN AGREEMENT WITH THE REASONING OF THE DECISION QUOTED ABOVE, THE TRAVEL ALLOWANCE PROPERLY MAY BE COMPUTED ON THE DISTANCE FROM THE PLACE OF DISCHARGE TO THE LAST PROPERLY REPORTED HOME FROM WHICH TRANSPORTATION WAS FURNISHED WHEN THE RESERVIST WAS ORDERED TO REPORT TO ACTIVE DUTY. YOUR FIRST TWO QUESTIONS ARE ANSWERED ACCORDINGLY.

SUBPARAGRAPH 31 B (1), ARMY REGULATIONS 155-5, QUOTED BY YOU IN CONNECTION WITH YOUR THIRD QUESTION, IS BASED ON THAT PART OF SECTION 30 OF THE NATIONAL DEFENSE ACT, AS AMENDED, WHICH READS AS FOLLOWS:

* * * MEMBERS OF THE REGULAR ARMY RESERVE MAY BE ORDERED TO ACTIVE DUTY ONLY IN CASE OF EMERGENCY DECLARED BY THE PRESIDENT AND WHEN SO ORDERED SHALL BE FURNISHED TRANSPORTATION * * *. IN ADDITION, IF FOUND QUALIFIED AND ACCEPTED FOR ACTIVE DUTY FOLLOWING SUCH ORDER THEY SHALL RECEIVE A SUM AT THE RATE OF $3 PER MONTH FOR EACH MONTH THEY HAVE BEEN ENLISTED IN THE REGULAR ARMY RESERVE, BUT NOT TO EXCEED $150. * * *

YOU STATE THAT ACTION WAS TAKEN IN SECTION III, WAR DEPARTMENT CIRCULAR NO. 42, DATED MARCH 15, 1941, WHICH WAS SPECIFICALLY DESIGNED TO PROHIBIT PAYMENT OF THE ADDITIONAL ALLOWANCE OF $3 PER MONTH IN THE CASE OF MEMBERS OF THE REGULAR ARMY RESERVE WHO REQUEST DISCHARGE ON ACCOUNT OF DEPENDENCY WITHIN 20 DAYS AFTER ENTRY INTO ACTIVE MILITARY SERVICE. SECTION III OF THE CITED CIRCULAR READS AS FOLLOWS:

III--- PAY AND ALLOWANCES FOR REGULAR ARMY RESERVISTS DISCHARGED ON ACCOUNT OF DEPENDENTS.--- IN ORDER TO CLARIFY THE INTENT OF PARAGRAPH 318 (1), AR 155-5, THE FOLLOWING INSTRUCTIONS ARE PUBLISHED FOR THE INFORMATION AND GUIDANCE OF ALL CONCERNED:

MEMBERS OF THE REGULAR ARMY RESERVE, WHO, UPON BEING ORDERED TO ACTIVE DUTY, REQUEST DISCHARGE ON ACCOUNT OF DEPENDENTS, ARE NOT QUALIFIED FOR ACTIVE DUTY WITHIN THE INTENT OF PARAGRAPH 318 (1), AR 155-5, AND ARE THEREFORE NOT ENTITLED TO RECEIVE THE ADDITIONAL PAYMENT PROVIDED FOR IN THAT PARAGRAPH.

WHILE NO MENTION IS MADE IN THE ABOVE-QUOTED SECTION OF THE 20 DAY PERIOD REFERRED TO IN THE LAST PARAGRAPH OF YOUR LETTER, SECTION 3 (E) OF PUBLIC RESOLUTION NO. 96, APPROVED AUGUST 27, 1940, SPECIFIES THAT ANY RESERVIST OF THE ARMY BELOW THE RANK OF CAPTAIN WHO IS ORDERED INTO ACTIVE MILITARY SERVICE PURSUANT TO THE SAID RESOLUTION AND WHO HAS ANY PERSON OR PERSONS DEPENDENT SOLELY UPON HIM FOR SUPPORT, ETC., MAY RESIGN OR SHALL BE DISCHARGED UPON HIS OWN REQUEST MADE WITHIN 20 DAYS OF THE DATE OF HIS ENTRY INTO ACTIVE MILITARY SERVICE. THE SO-CALLED ENLISTMENT ALLOWANCE WAS PROVIDED AS AN ELEMENT OF COMPENSATION FOR REGULAR ARMY RESERVISTS ORDERED TO ACTIVE DUTY OF INDEFINITE DURATION DURING A NATIONAL EMERGENCY, AND UNDOUBTEDLY IT WAS CONTEMPLATED THAT THE GOVERNMENT WOULD HAVE THE BENEFIT OF THEIR SERVICE FOR A SUBSTANTIAL PERIOD OF ACTIVE DUTY. HENCE, IF A RESERVIST MAKE APPLICATION FOR DISCHARGE WITHIN THE 20-DAY PERIOD UNDER THE TERMS SPECIFIED IN SECTION 3 (E), SUPRA, IT WOULD APPEAR PROPER TO CONSIDER THAT THERE HAS BEEN NO SUBSTANTIAL COMPLIANCE WITH THE PROVISION THAT HE BE "FOUND QUALIFIED AND ACCEPTED FOR ACTIVE DUTY" WHICH IS A STATUTORY CONDITION TO PAYMENT OF THE ALLOWANCE INVOLVED. ACCORDINGLY, YOU ARE ADVISED THAT WHERE A MEMBER OF THE REGULAR ARMY RESERVE IS DISCHARGED, UNDER THE PROVISIONS OF SECTION 3 (E) OF PUBLIC RESOLUTION NO. 96, UPON HIS OWN APPLICATION MADE WITHIN 20 DAYS OF THE DATE OF HIS ENTRY INTO ACTIVE MILITARY SERVICE, BECAUSE HE HAS SOME PERSON OR PERSONS DEPENDENT SOLELY UPON HIM FOR SUPPORT, HE IS NOT ENTITLED TO PAYMENT OF THE ALLOWANCE IN QUESTION.