B-46583, APRIL 23, 1945, 24 COMP. GEN. 776

B-46583, APRIL 23, 1945, 24 COMP. GEN. 776

MILEAGE - ARMY OFFICERS - RETURN FROM PLACE OF LEAVE; TRAVEL TO HOSPITAL THE GENERAL RULE THAT AN ARMY OFFICER ORDERED TO RETURN TO HIS STATION FROM A PLACE OF LEAVE PRIOR TO EXPIRATION OF HIS LEAVE MUST BEAR THE EXPENSE OF RETURN IS NOT FOR APPLICATION TO DENY PAYMENT OF MILEAGE FROM AN OFFICER'S HOME TO WHICH HE HAD BEEN ORDERED IN CONNECTION WITH HIS RELEASE FROM ACTIVE DUTY, WHERE AMENDING ORDERS CONTINUING HIS ACTIVE DUTY STATUS FOR PURPOSES OF FURTHER HOSPITALIZATION AND CANCELLING THE UNEXPIRED PORTION OF LEAVE ORIGINALLY GRANTED WERE NOT RECEIVED UNTIL AFTER EXPIRATION OF THE LEAVE PERIOD. IN VIEW OF THE DETERMINATION OF THE SECRETARY OF WAR, UNDER AUTHORITY OF SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942, THAT AN OFFICER TRAVELING TO OR FROM A HOSPITAL FOR OBSERVATION AND TREATMENT IS IN A TRAVEL STATUS WITHIN THE MEANING OF THE MILEAGE LAWS, AND SINCE EXISTING ADMINISTRATIVE REGULATIONS DO NOT PRESCRIBE PER DIEM ALLOWANCES INCIDENT TO TRAVEL OF THAT NATURE, AN ARMY OFFICER IS NOT ENTITLED TO A PER DIEM ALLOWANCE AND REIMBURSEMENT OF THE COST OF TRANSPORTATION INCIDENT TO TRAVEL TO A HOSPITAL BUT, INSTEAD, IS ENTITLED TO MILEAGE.

ASSISTANT COMPTROLLER GENERAL YATES TO COL. ALFRED N. TAYLOR, U.S. ARMY, APRIL 23, 1945:

THERE HAS BEEN CONSIDERED YOUR LETTER OF DECEMBER 14, 1944, REQUESTING DECISION WHETHER PAYMENT IS AUTHORIZED ON A VOUCHER, SUBMITTED THEREWITH, STATED IN FAVOR OF JOHN D. NORTON, FIRST LIEUTENANT, AUS, FOR REIMBURSEMENT OF THE COST OF RAIL AND BUS FARE AND FOR A PER DIEM ALLOWANCE INCIDENT TO TRAVEL PERFORMED FROM PALESTINE, TEXAS, TO BUTLER, PENNSYLVANIA, PURSUANT TO THE PROVISIONS OF SPECIAL ORDER NO. 198, HEADQUARTERS, THIRD SERVICE COMMAND, BALTIMORE, MARYLAND, DATED AUGUST 18, 1944.

THE EVIDENCE PRESENTED DISCLOSES THAT LIEUTENANT NORTON APPEARED BEFORE AN ARMY RETIRING BOARD CONVENED AT THE DESHON GENERAL HOSPITAL, BUTLER, PENNSYLVANIA, ON JULY 29, 1944, AND WAS FOUND TO BE PHYSICALLY INCAPACITATED FOR ACTIVE MILITARY SERVICE. ON THE BASIS OF THAT FINDING THE FOLLOWING ORDERS--- PARAGRAPH 12, SPECIAL ORDERS NO. 182, HEADQUARTERS, THIRD SERVICE COMMAND, BALTIMORE, MARYLAND, DATED JULY 31, 1944--- WERE ISSUED:

12. EA OF THE FOLLOWING OFFICERS, NOW AT DESHON GH, BUTLER, PA., IS GRANTED LV OF ABSENCE FOR THE PERIOD INDICATED EFF 5 AUG 44. EA OFF WP HIS HOME, AS SHOWN SO AS TO ARRIVE THEREAT NOT LATER THAN DATE SPECIFIED BELOW, UPON WHICH DATE HE IS DP HELD FR FURTHER AD AND WILL REVERT TO INACTIVE STATUS: * * * * * * * *

CHART

NAME AND ASGMT LEAVE DATE OF RELIEF HOME ADDRESS CH ( ST LT) JOHN D. FIFTEEN DAYS 22 AUG. 44 PALESTINE,

NORTON 10541186 AUS, TEX.

CH CORP, NYPE,

BROOKLYN, NY. * * * * * * * * WP. TDN. TPA. PCS. 501-31 P 431-02, 103, 107, 108 212/50425. TEMP APMT IN AUS OF OFF WILL CONTINUE IN FORCE DURING THE PERIOD OF THE PRESENT EMERGENCY AND FOR SIX MONTHS THEREAFTER UNLESS SOONER TERMINATED DP. EA OFF IS ENTITLED TO WD AGO FORM 280 CERT OF SV AND WILL BE FURNISHED SAME BY APPROPRIATE CO UPON RELIEF FR AD. RELIEF FR AD IS BY REASON OF PHYSICAL DISABILITY. AUTH: PAR 4, CIR 217, WD, 1941, AS AMENDED, AND SEC III, CIR 206, WD, 1944.

PARAGRAPHS 6 AND 7 OF THE SAID ORDERS OF AUGUST 18, 1944, UNDER WHICH THE TRAVEL NOW IN QUESTION WAS PERFORMED, PROVIDE:

6. THE UNEXPIRED PORTION OF LV GRANTED CH (1ST LT JOHN D. NORTON, 10541186 AUS, CH C. ORP, NYPE, BROOKLYN, NY, BY PAR 12, SO 182, THIS HQ, CS, IS REVOKED. SO MUCH OF PAR 12, SO, 182, THIS HQ. CS, AS READS," WP HIS HOME, PALESTINE, TEXAS, SO AS TO ARRIVE THEREAT NOT LATER THAN 22 AUG 44, UPON WHICH DATE HE IS DP HELD FR FURTHER AD AND WILL REVERT TO INACTIVE STATUS,"IS AMENDED TO READ: " WP HIS HOME PALESTINE, TEXAS, TO AWAIT FURTHER ORDERS.' AUTH: WD MSGFM AGPO-S-201 -- NORTON, JOHN DONALD 14, AUG 44.

7. CH (1ST LT) JOHN D NORTON 10541186 AUS, CH C. ORP, NYPE, BROOKLYN, NY, NOW AT PALESTINE, TEXAS, WP DESHON GH, BUTLER, PA. RPTG UPON ARRIVAL TO CO FOR FURTHER OBSN AND TREATMENT. TDN. 501-6 P 432-02 212/50425. AUTH: WD MSGFM AGPO-S-201--- NORTON, JOHN DONALD, 14 AUG 44. (210.8 X 705.1)

THE DATES ON WHICH TRAVEL WAS ACCOMPLISHED FROM THE DESHON GENERAL HOSPITAL TO THE OFFICER'S HOME AT PALESTINE UNDER THE ORDERS OF JULY 31, 1944, ARE NOT SHOWN. HOWEVER, IT IS SHOWN THAT THE TRAVEL PERFORMED PURSUANT TO THE ORDERS OF AUGUST 18, 1944, WAS COMMENCED AT PALESTINE ON AUGUST 23, 1944, AND PARAGRAPH 7 OF THE ORDERS OF AUGUST 18, 1944, STATES THAT THE OFFICER IS "NOW AT PALESTINE, TEXAS.' YOU EXPRESS DOUBT AS TO THE PROPRIETY OF THE PROPOSED PAYMENT IN VIEW OF THE FOLLOWING PROVISIONS OF PARAGRAPHS 2B AND C OF ARMY REGULATIONS 35 4840:

B. AN OFFICER OF THE ARMY WHO, WHILE ON A LEAVE OF ABSENCE, WAS REQUIRED BY AN IMPERATIVE PUBLIC EMERGENCY TO RETURN TO HIS STATION IS NOT ENTITLED TO MILEAGE FOR TRAVEL PERFORMED IN RETURNING TO HIS STATION, NOR TO MILEAGE FOR TRAVEL IN RETURNING FROM HIS STATION TO THE PLACE FROM WHICH HE DEPARTED FOR THE PURPOSE OF RESUMING HIS LEAVE STATUS. AN OFFICER TAKES HIS LEAVE OF ABSENCE AT HIS OWN RISK; AND IF THE GOVERNMENT NEED HIS SERVICES BEFORE HIS LEAVE EXPIRES, IT MUST HAVE THEM, AND HE MUST BEAR HIS OWN EXPENSES IN RETURNING TO HIS STATION. 13 COMP. DEC. 294; 16 COMP. DEC. 445; 2 COMP. GEN. 424.

C. AN OFFICER UNDER ORDERS TO CHANGE STATION AT A FUTURE DATE WAS GRANTED A LEAVE OF ABSENCE. DURING SAID LEAVE HIS DATE OF RELIEF FROM OLD STATION WAS POSTPONED, AND HE WAS REQUIRED TO RETURN FOR FURTHER DUTY. HE IS NOT ENTITLED TO MILEAGE IN GOING TO OR RETURNING FROM THE PLACE OF LEAVE ALTHOUGH IT WAS ON THE ROUTE TO HIS NEW STATION. MS. COMP. DEC. NOV. 26, 1906.

THE RULE THUS EXPRESSED HAS BEEN RECOGNIZED FOR MANY YEARS BY THE COURTS AND IN THE DECISIONS OF THE ACCOUNTING OFFICERS OF THE GOVERNMENT. FITZPATRICK V. UNITED STATES, 37 C.1CLS. 332; 13 COMP. DEC. 292; 2 COMP. GEN. 424. HOWEVER, THAT RULE IS NOT FOR APPLICATION UNLESS ORDERS REQUIRING A RETURN TO THE OFFICER'S FORMER STATION ARE RECEIVED PRIOR TO THE EXPIRATION OF THE GRANTED LEAVE OF ABSENCE. THE ORDERS OF JULY 31, 1944, GRANTED LIEUTENANT NORTON A LEAVE OF ABSENCE. THE ORDERS OF JULY 31, 1944, GRANTED LIEUTENANT NORTON A LEAVE OF ABSENCE OF 15 DAYS, EFFECTIVE AUGUST 5, 1944. COUNTING AUGUST 5 AS THE FIRST DAY OF LEAVE, THE OFFICER WOULD BE IN A LEAVE STATUS ONLY THROUGH AUGUST 19, 1944. PARAGRAPHS 6 AND 7 OF SPECIAL ORDER NO. 198, PURPORTING TO REVOKE THE UNEXPIRED PORTION OF THE PRIOR ORDERS AND DIRECT TRAVEL BACK TO DESHON GENERAL HOSPITAL, WERE ISSUED ON AUGUST 18, 1944, AT BALTIMORE, MARYLAND; AND WHILE THE DATE OF THE RECEIPT THEREOF BY THE OFFICER IS NOT SHOWN, IT SEEMS APPARENT THAT IN THE NORMAL COURSE OF EVENTS SAID ORDERS COULD NOT HAVE REACHED HIM PRIOR TO THE EXPIRATION OF THE GRANTED LEAVE OF ABSENCE. UNDER SUCH CIRCUMSTANCES, THE RULE STATED IN THE QUOTED REGULATIONS IS NOT FOR APPLICATION.

SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 364, 366, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

OFFICERS OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT, INCLUDING RESERVE COMPONENTS THEREOF AND THE NATIONAL GUARD, WHILE ON ACTIVE DUTY IN THE FEDERAL SERVICE, WHEN TRAVELING UNDER COMPETENT ORDERS WITHOUT TROOPS SHALL RECEIVE A MILEAGE ALLOWANCE AT THE RATE OF 8 CENTS PER MILE, DISTANCE TO BE COMPUTED BY THE SHORTEST USUALLY TRAVELED ROUTE *

UNLESS OTHERWISE EXPRESSLY PROVIDED BY LAW, NO OFFICER OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT SHALL BE ALLOWED OR PAID ANY SUM IN EXCESS OF EXPENSES ACTUALLY INCURRED FOR SUBSISTENCE WHILE TRAVELING ON DUTY AWAY FROM HIS DESIGNATED POST OF DUTY, NOR ANY SUM FOR SUCH EXPENSES ACTUALLY INCURRED IN EXCESS OF $7 PER DAY. THE HEADS OF THE EXECUTIVE DEPARTMENTS CONCERNED ARE AUTHORIZED TO PRESCRIBE PER DIEM RATES OF ALLOWANCE, NOT EXCEEDING $6, IN LIEU OF SUBSISTENCE TO OFFICERS TRAVELING ON OFFICIAL BUSINESS AND AWAY FROM THEIR DESIGNATED POSTS OF DUTY * * * *

THE HEAD OF THE DEPARTMENT CONCERNED MAY DETERMINE WHAT SHALL CONSTITUTE A TRAVEL STATUS AND TRAVEL WITHOUT TROOPS WITHIN THE MEANING OF THE LAWS GOVERNING THE PAYMENT OF MILEAGE OR OTHER TRAVEL EXPENSES.

THE TRAVEL DIRECTED IN PARAGRAPH 7 OF THE ORDERS OF AUGUST 18, 1944, WAS FOR THE STATED PURPOSE OF RETURNING LIEUTENANT NORTON TO THE DESHON GENERAL HOSPITAL FOR FURTHER OBSERVATION AND TREATMENT. THEREFORE, IN VIEW OF THE DETERMINATION MADE BY THE SECRETARY OF WAR UNDER AUTHORITY CONTAINED IN SECTION 12 OF THE PAY READJUSTMENT ACT THAT AN OFFICER PERFORMING "TRAVEL TO AND FROM A HOSPITAL FOR OBSERVATION AND TREATMENT" IS IN A TRAVEL STATUS WITHIN THE MILEAGE LAWS (PARAGRAPH 3, AR 35-4820, JANUARY 26, 1944), AND SINCE EXISTING ADMINISTRATIVE REGULATIONS ( WAR DEPARTMENT CIRCULAR NO. 260, JUNE 26, 1944) DO NOT PRESCRIBE THE PAYMENT OF PER DIEM ALLOWANCES INCIDENT TO THE PERFORMANCE OF TRAVEL OF THAT NATURE, IT MUST BE CONCLUDED THAT LIEUTENANT NORTON PROPERLY IS NOT ENTITLED TO A PER DIEM ALLOWANCE AND REIMBURSEMENT OF THE COST OF TRANSPORTATION INCIDENT TO THE TRAVEL PERFORMED UNDER THE ORDERS OF AUGUST 15, 1944. HOWEVER, FROM THE FACTS PRESENTED IT APPEARS THAT HE WOULD BE ENTITLED TO A MILEAGE ALLOWANCE FOR THE OFFICIAL TRAVEL INVOLVED. CF. B- 43217, APRIL 5, 1945, 24 COMP. GEN. 719.

ACCORDINGLY, PAYMENT ON THE VOUCHER PRESENTED ON THE BASIS PROPOSED IS NOT AUTHORIZED. THE VOUCHER WILL BE RETAINED IN THIS OFFICE.