B-47327, FEBRUARY 14, 1945, 24 COMP. GEN. 613

MILEAGE - RESERVE OFFICERS - RELEASE FROM ACTIVE DUTY WHERE THE DISTANCE FROM A RESERVE OFFICER'S LAST STATION TO HIS HOME OF RECORD EXCEEDS THE DISTANCE FROM THAT STATION TO THE PLACE FROM WHICH HE WAS ORDERED TO ACTIVE DUTY, FOR WHICH LATTER DISTANCE HE WAS PAID MILEAGE IN ADVANCE UNDER SECTION 7 OF THE ACT OF SEPTEMBER 7, 1944, UPON RELEASE FROM ACTIVE DUTY, THE OFFICER MAY BE PAID ADDITIONAL MILEAGE FOR OTHERWISE PROPER TRAVEL WITHIN THE PURVIEW OF SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED, FROM THE LAST STATION TO HIS HOME OF RECORD, LESS THE AMOUNT OF ADVANCE MILEAGE PREVIOUSLY PAID. 24 COMP. GEN. 291, AMPLIFIED.

ASSISTANT COMPTROLLER GENERAL YATES TO COL. J. W. DANSBY, U.S. ARMY, FEBRUARY 14, 1945:

THERE HAS BEEN RECEIVED BY SECOND INDORSEMENT FROM THE FISCAL DIRECTOR, ARMY SERVICE FORCES, YOUR LETTER OF DECEMBER 15, 1944, REQUESTING DECISION RELATIVE TO THE PROPRIETY OF PAYMENT ON A VOUCHER, SUBMITTED THEREWITH, IN FAVOR OF SECOND LIEUTENANT THOMAS J. GUILFOYLE, CAC, AUS, FOR MILEAGE FROM FORT SAM HOUSTON, TEXAS, TO HIS HOME, SKOWHEGAN, MAINE, INCIDENT TO HIS RELEASE FROM ACTIVE DUTY, LESS AN AMOUNT ALREADY PAID TO THE OFFICER REPRESENTING MILEAGE FROM FORT SAM HOUSTON, TEXAS, TO CAMP DAVIS, NORTH CAROLINA.

BY PARAGRAPH 22, SPECIAL ORDERS NO. 301, ARMY SERVICE FORCES, HEADQUARTERS, EIGHTH SERVICE COMMAND, DALLAS, TEXAS, DATED OCTOBER 27, 1944, THE OFFICER WAS RELEASED FROM BROOKE GENERAL HOSPITAL, FORT SAM HOUSTON, TEXAS, AND WAS ASSIGNED TO THE REPLACEMENT POOL AT FORT BLISS, TEXAS. THE SAID ORDERS DIRECTED HIM TO PROCEED TO HIS HOME, SKOWHEGAN, MAINE, SO AS TO ARRIVE THEREAT NOT LATER THAN DECEMBER 1, 1944, ON WHICH DATE HE WAS RELEASED FROM FURTHER ACTIVE DUTY. THE OFFICER'S RELEASE FROM ACTIVE DUTY WAS STATED TO BE BECAUSE OF PHYSICAL DISABILITY. APPARENTLY PRIOR TO THE OFFICER'S DEPARTURE FROM FORT SAM HOUSTON, YOU MADE AN ADVANCE CASH PAYMENT OF MILEAGE TO HIM IN THE SUM OF $119.34, COVERING THE DISTANCE FROM FORT SAM HOUSTON TO CAMP DAVIS, NORTH CAROLINA (THE PLACE FROM WHICH HE WAS ORDERED TO ACTIVE DUTY). THAT PAYMENT IS STATED TO HAVE BEEN MADE ON VOUCHER NO. 55491, OF YOUR NOVEMBER, 1944, ACCOUNTS AND THE AMOUNT THEREOF HAS BEEN DEDUCTED FROM THE AMOUNT OTHERWISE SHOWN TO BE DUE ON THE SUBMITTED VOUCHER. YOUR DOUBT AS TO THE PROPRIETY OF PAYMENT ON SUCH VOUCHER APPEARS TO ARISE BECAUSE THE OFFICER CLAIMED AND WAS PAID MILEAGE TO CAMP DAVIS.

IT IS ASSUMED THAT LIEUTENANT GUILFOYLE RECEIVED HIS COMMISSION UNDER THE PROVISIONS OF THE ACT OF SEPTEMBER 22, 1941, 55 STAT. 728, 729, WHICH ACT PROVIDES THAT OFFICERS APPOINTED UNDER ITS PROVISIONS "SHALL RECEIVE THE SAME PAY AND ALLOWANCES AND BE ENTITLED TO THE SAME RIGHTS, PRIVILEGES, AND BENEFITS AS MEMBERS OF THE OFFICER'S RESERVE CORPS OF THE SAME GRADE AND LENGTH OF ACTIVE SERVICE.'

SECTIONS 3 AND 12 OF THE ACT OF JUNE 16, 1942, 56 STAT. 360, 364, AS AMENDED BY SECTIONS 7 AND 9, RESPECTIVELY, OF THE ACT OF SEPTEMBER 7, 1944, PUB. LAW 421, 58 STAT. 730, PROVIDE IN PERTINENT PART AS FOLLOWS:

SEC. 3. WHEN MEMBERS OF THE RESERVE FORCES OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT ARE AUTHORIZED BY LAW TO RECEIVE FEDERAL PAY, PAYMENTS MAY INCLUDE THE ENTIRE AMOUNT LAWFULLY ACCRUING TO SUCH PERSONS AS PAY, ALLOWANCES, AND MILEAGE, AND PAY, ALLOWANCES, AND MILEAGE FOR THEIR RETURN HOME MAY BE PAID TO THEM PRIOR TO THEIR DEPARTURE FROM THEIR LAST DUTY STATION INCIDENT TO RELEASE FROM ACTIVE DUTY: PROVIDED, THAT ANY SUCH MILEAGE PAYABLE SHALL BE COMPUTED FROM THE PLACE OF RELEASE TO THE PLACE FROM WHICH ORDERED TO ACTIVE DUTY WITHOUT REGARD TO ACTUAL PERFORMANCE OF TRAVEL.

SEC. 12. OFFICERS OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT, INCLUDING ACTIVE AND RETIRED PERSONNEL OF THE REGULAR ESTABLISHMENTS AND MEMBERS OF THE RESERVE COMPONENTS THEREOF AND THE NATIONAL GUARD, WHILE ON ACTIVE DUTY IN THE FEDERAL SERVICE, WHEN TRAVELING UNDER COMPETENT ORDERS WITHOUT TROOPS, INCLUDING TRAVEL FROM HOME TO FIRST STATION IN CONNECTION WITH THEIR APPOINTMENT OR CALL TO ACTIVE DUTY AND FROM LAST STATION TO HOME IN CONNECTION WITH RELIEF FROM ACTIVE DUTY OR DISCHARGE NOT THE RESULT OF THEIR OWN MISCONDUCT, SHALL RECEIVE A MILEAGE ALLOWANCE AT THE RATE OF 8 CENTS PER MILE * * *.

INSOFAR AS PAYMENT OF MILEAGE INCIDENT TO RELEASE FROM ACTIVE DUTY IS CONCERNED, THE PROVISIONS OF THE SAID TWO SECTIONS ARE NOT READILY RECONCILABLE. THE PROVISO CONTAINED IN SECTION 3 LIMITS THE PAYMENT OF MILEAGE--- PAID WITHOUT REGARD TO ACTUAL PERFORMANCE OF TRAVEL--- TO AN AMOUNT COMPUTED ON THE DISTANCE "FROM THE PLACE OF RELEASE TO THE PLACE FROM WHICH ORDERED TO ACTIVE TY," WHEREAS SECTION 12 OF SAID ACT, AS AMENDED, PROVIDES FOR PAYMENT OF MILEAGE FOR THE DISTANCE ,FROM LAST STATION IS HOME IN CONNECTION WITH RELIEF FROM ACTIVE DUTY.' SINCE THE PERTINENT PROVISION OF SECTION 12 MADE NO CHANGE IN THE THEN EXISTING PROVISIONS OF LAW WITH REGARD TO THE PLACE TO WHICH A RESERVE OFFICER WAS ENTITLED TO MILEAGE UPON RELEASE FROM ACTIVE DUTY (SEE SECTION 37A OF THE ACT OF JUNE 3, 1916, AS ADDED THERETO BY SECTION 32 OF THE ACT OF JUNE 4, 1920, 41 STAT. 776; SECTION 7 OF THE ACT OF JUNE 25, 1938, 52 STAT. 1176) IT IS NOT APPARENT THAT CONGRESS INTENDED TO RESTRICT IN ANY MANNER SUCH OFFICERS' RIGHT TO MILEAGE UPON RELEASE FROM ACTIVE DUTY BY AMENDING THE SAID SECTION 3 IN THE MANNER INDICATED. ALSO, THE LEGISLATIVE HISTORY OF SAID ACT OF SEPTEMBER 7, 1944, GIVES NO INDICATION OF ANY SUCH INTENT. APPARENTLY SECTION 7 OF THE SAID ACT OF SEPTEMBER 7, 1944, WAS INSERTED THEREIN FOR THE PURPOSE OF PERMITTING PAYMENT OF ACCRUED PAY, ALLOWANCES AND MILEAGE TO RESERVE OFFICERS PRIOR TO THEIR DEPARTURE FROM THEIR LAST DUTY STATIONS, WITHOUT REGARD TO THE LENGTH OF THEIR SERVICE, SUCH ADVANCE PAYMENT BEING PERMITTED UNDER THEN EXISTING LAW ONLY TO OFFICERS WHO HAD A PERIOD OF SERVICE OF LESS THAN 30 DAYS. THE FOLLOWING APPEARS IN THE REPORT OF THE SENATE COMMITTEE ON MILITARY AFFAIRS, SENATE REPORT NO. 917, TO ACCOMPANY H.R. 1506, PAGE 4:

SECTION 7 WOULD AMEND EXISTING LAW TO PROVIDE THE SAME PROCEDURE UPON RELIEF FROM ACTIVE DUTY FOR ALL MEMBERS OF THE RESERVE FORCES AS IS NOW USED FOR THOSE WHOSE PERIOD OF SERVICE HAS BEEN LESS THAN 30 DAYS. PRESENT, UPON RELEASE FROM ACTIVE DUTY, A MEMBER OF THE RESERVE FORCES WITH LESS THAN 30 DAYS' ACTIVE SERVICE MAY BE PAID HIS ACCRUED PAY, ALLOWANCES, AND MILEAGE FOR HIS RETURN HOME PRIOR TO HIS DEPARTURE FROM HIS DUTY STATION. THE AMENDMENT WOULD PERMIT THESE PAYMENTS REGARDLESS OF THE LENGTH OF SERVICE AND SHOULD EXPEDITE ADMINISTRATION AT TIME OF DEMOBILIZATION.

THE PROVISIONS OF SECTION 12 OF THE ACT OF JUNE 16, 1942, AS AMENDED, AUTHORIZING PAYMENT OF MILEAGE TO AN OFFICER'S "HOME" ON RELEASE FROM ACTIVE DUTY HAVE BEEN RECOGNIZED AS A BASIC RIGHT UNDER THE STATUTES AND IT HAS BEEN HELD THAT A PAYMENT OF MILEAGE MADE UNDER SECTION 3 OF THE SAID ACT,"TO THE PLACE FROM WHICH ORDERED TO ACTIVE DUTY" MAY NOT EXCEED THE MILEAGE THAT WOULD BE PAYABLE FROM THE OFFICER'S LAST STATION TO HIS HOME OF RECORD. 24 COMP. GEN. 291, 296. IN CONSONANCE WITH THAT VIEW, IT APPEARS THAT THE LAW CONTEMPLATES THAT UPON RELEASE FROM ACTIVE DUTY RESERVE OFFICER MAY BE PAID, UPON HIS REQUEST AND BEFORE DEPARTURE FROM HIS LAST STATION, MILEAGE FROM THAT STATION TO THE PLACE FROM WHICH HE WAS ORDERED TO ACTIVE DUTY NOT TO EXCEED MILEAGE FROM THAT STATION TO HIS HOME OF RECORD; AND THAT IF THE DISTANCE FROM THE LAST STATION TO THE PLACE FROM WHICH HE WAS ORDERED TO ACTIVE DUTY, AND IF TRAVEL TO HIS HOME IS ACTUALLY PERFORMED PURSUANT TO COMPETENT ORDERS AND UNDER CONDITIONS BRINGING SUCH TRAVEL WITHIN THE PROVISIONS OF SECTION 12 OF THE ACT OF JUNE 16, 1942, AS AMENDED, HE IS ENTITLED TO AN ADDITIONAL PAYMENT, REPRESENTING MILEAGE TO HIS HOME OF RECORD LESS THE AMOUNT OF THE ADVANCE PAYMENT RECEIVED BY HIM. ON THAT BASIS, PAYMENT ON THE SUBMITTED VOUCHER, WHEN PROPERLY CERTIFIED FOR PAYMENT, IS AUTHORIZED, IF OTHERWISE CORRECT. THE VOUCHER IS RETURNED HEREWITH.