B-49865, JANUARY 7, 1946, 25 COMP. GEN. 498

B-49865, JANUARY 7, 1946, 25 COMP. GEN. 498

TRANSPORTATION; PER DIEM IN LIEU OF SUBSISTENCE - TEMPORARY MEMBERS OF COAST GUARD RESERVE TEMPORARY MEMBERS OF THE COAST GUARD RESERVE (OTHER THAN TEMPORARY MEMBERS WHO ARE CIVILIAN EMPLOYEES OF THE GOVERNMENT) ENROLLED PURSUANT TO SECTION 207 OF THE ACT OF FEBRUARY 19, 1941, AS AMENDED, WHO TRAVEL ON ACTIVE DUTY IN THEIR CAPACITY AS MEMBERS OF SAID RESERVE ARE ENTITLED TO THE ACTUAL COST OF TRANSPORTATION AND PER DIEM IN LIEU OF SUBSISTENCE ON THE SAME BASIS AS IS AUTHORIZED BY SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED, FOR REGULAR MEMBERS OF THE COAST GUARD AND THE COAST GUARD RESERVE IN A TRAVEL STATUS, WHETHER SUCH TEMPORARY MEMBERS SERVE ON ACTIVE DUTY WITH PAY OR WITHOUT PAY.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, JANUARY 7, 1946:

REFERENCE IS MADE TO YOUR LETTER OF MAY 16, 1945 (FILE JAG:II:WJG:Z/L20- 3), REFERRING TO THE CLAIM OF BOATSWAIN (T) LESLIE J. BURKE, USCGR, AND REQUESTING DECISION AS TO WHETHER TEMPORARY MEMBERS OF THE UNITED STATES COAST GUARD RESERVE WHILE SERVING ON ACTIVE DUTY WITHOUT PAY ARE ENTITLED TO THE ACTUAL COST OF TRANSPORTATION AND PER DIEM IN LIEU OF SUBSISTENCE FOR TRAVEL PERFORMED UNDER COMPETENT ORDERS IN CONNECTION WITH THEIR ASSIGNED DUTIES AS TEMPORARY MEMBERS OF THE RESERVE.

THE QUESTION AS TO THE LEGALITY OF SUCH PAYMENTS APPEARS TO HAVE ARISEN AS A RESULT OF THE DISALLOWANCE BY THE CLAIMS DIVISION OF THIS OFFICE OF THE CLAIM OF THE SAID LESLIE J. BURKE, TEMPORARY MEMBER OF THE COAST GUARD RESERVE, WHO WAS ENROLLED FOR FULL TIME SPECIAL SERVICE DUTY ,WITHOUT PAY" UNDER THE PROVISIONS OF SECTION 207 OF THE COAST GUARD AUXILIARY AND RESERVE ACT OF 1941, AS AMENDED. THE CLAIM WAS FOR THE COST OF TRANSPORTATION AND $7 PER DIEM IN LIEU OF SUBSISTENCE DURING THE PERIOD MAY 11 TO 15, 1944, FOR TRAVEL PERFORMED UNDER ORDERS DATED MAY 10, 1944, DIRECTING HIM TO FERRY A COAST GUARD VESSEL FROM BOSTON, MASSACHUSETTS, TO BROOKLYN, NEW YORK, AND RETURN TO BOSTON VIA RAIL. THE CLAIM WAS DISALLOWED BY SETTLEMENT DATED FEBRUARY 21, 1945, FOR THE REASON STATED, IN EFFECT, THAT WHILE THE SAID SECTION 207, AS AMENDED, AUTHORIZES TEMPORARY MEMBERS OF THE RESERVE SERVING ON ACTIVE DUTY "WITH PAY" TO BE PAID THE PAY AND ALLOWANCES PROVIDED FOR MEMBERS OF THE REGULAR COAST GUARD RESERVE, NO EXPRESS PROVISION IS MADE FOR THE TRAVELING EXPENSES OF TEMPORARY RESERVISTS SERVING ON ACTIVE DUTY "WITHOUT PAY," IT BEING NOTED, ALSO, THAT MR. BURKE WAS ENROLLED TO SERVE WITHOUT PAY OR "ALLOWANCES.' WITH RESPECT TO THE LATTER PHASE OF THE MATTER, THE COMMANDANT OF THE COAST GUARD STATES IN HIS MEMORANDUM OF APRIL 6, 1945, ENCLOSED WITH YOUR LETTER, THAT:

THE FACT THAT IN THE CASE BEFORE THE CLAIMS DIVISION OF THE GENERAL ACCOUNTING OFFICE BOATSWAIN (T) BURKE WAS ENROLLED TO SERVE WITHOUT PAY AND ALLOWANCES SHOULD NOT HAVE RESULTED IN A DENIAL OF HIS CLAIM. USING THE WORDS "NO ALLOWANCES" IN THE ENROLLMENT FORM, THE COAST GUARD INTENDED TO EXCLUDE RENTAL AND THE 70 CENTS PER DAY SUBSISTENCE ALLOWANCES ONLY; THERE WAS NO INTENTION TO PROHIBIT THE PAYMENT OF NECESSARY TRANSPORTATION EXPENSES AND PER DIEM IN THE EVENT TRAVEL BECAME NECESSARY IN THE PERFORMANCE BY BOATSWAIN (T) BURKE OF HIS DUTIES. THE PRIMARY MEANING OF THE WORD "ALLOWANCES" HAS ALWAYS BEEN CONSTRUED BY THE MILITARY SERVICES TO BE RENTAL AND SUBSISTENCE AND IN USING THAT WORD IN THE ENROLLMENT FORM THE COAST GUARD INTENDED THAT MEANING ONLY.

THE COAST GUARD RESERVE, AS NOW CONSTITUTED, WAS CREATED BY THE COAST GUARD AUXILIARY AND RESERVE ACT OF 1941, APPROVED FEBRUARY 19, 1941, 55 STAT. 9, AS AMENDED (14 U.S.C. 262-271), AS A MILITARY ORGANIZATION TO BE A COMPONENT PART OF THE UNITED STATES COAST GUARD, THE REGULAR MEMBERS OF WHICH ARE SUBJECT TO BE ORDERED TO ACTIVE DUTY IN TIME OF WAR OR NATIONAL EMERGENCY AND, WHEN ON ACTIVE DUTY, ARE SUBJECT TO THE LAWS, REGULATIONS AND ORDERS FOR THE GOVERNMENT OF THE COAST GUARD AND ARE ENTITLED TO THE SAME PAY AND ALLOWANCES AS ARE RECEIVED BY PERSONNEL OF THE REGULAR COAST GUARD OF THE SAME RANK, GRADE, RATING AND LENGTH OF SERVICE. IN ADDITION TO REGULAR MEMBERS OF THE COAST GUARD RESERVE, THE ENROLLMENT THEREIN OF TEMPORARY MEMBERS FOR FULL TIME, PART TIME OR INTERMITTENT DUTY IS AUTHORIZED UNDER SECTION 207 OF THE SAID ACT, WHICH, AS AMENDED BY THE ACTS OF JUNE 6, 1942, 56 STAT. 329, OCTOBER 26, 1942, 56 STAT. 990, AND NOVEMBER 23, 1942, 56 STAT. 1021, READS AS FOLLOWS:

THE COMMANDANT, WITH THE APPROVAL OF THE SECRETARY OF THE TREASURY OR OF THE SECRETARY OF THE NAVY, WHILE THE COAST GUARD IS OPERATING AS A PART OF THE NAVY, IS HEREBY AUTHORIZED TO ENROLL AS TEMPORARY MEMBERS OF THE RESERVE, FOR DUTY UNDER SUCH CONDITIONS AS HE MAY PRESCRIBE, INCLUDING BUT NOT LIMITED TO PART-TIME AND INTERMITTENT ACTIVE DUTY WITH OR WITHOUT PAY, AND WITHOUT REGARD TO AGE, MEMBERS OF THE AUXILIARY, SUCH OFFICERS AND MEMBERS OF THE CREW OF ANY MOTORBOAT OR YACHT PLACED AT THE DISPOSAL OF THE COAST GUARD, AND SUCH PERSONS (INCLUDING GOVERNMENT EMPLOYEES WITHOUT PAY OTHER THAN THE COMPENSATION OF THEIR CIVILIAN POSITIONS) WHO BY REASON OF THEIR SPECIAL TRAINING AND EXPERIENCE ARE DEEMED BY THE COMMANDANT TO BE QUALIFIED FOR SUCH DUTY, AS ARE CITIZENS OF THE UNITED STATES OR OF ITS TERRITORIES OR POSSESSIONS, INCLUDING THE PHILIPPINE ISLANDS, TO DEFINE THEIR POWERS AND DUTIES, AND TO CONFER UPON THEM, APPROPRIATE TO THEIR QUALIFICATIONS AND EXPERIENCE, THE SAME RANKS, GRADES, AND RATINGS AS ARE PROVIDED FOR THE PERSONNEL OF THE REGULAR COAST GUARD RESERVE. WHEN PERFORMING ACTIVE DUTY WITH PAY, AS HEREIN AUTHORIZED, TEMPORARY MEMBERS OF THE RESERVE SHALL BE ENTITLED TO RECEIVE THE PAY AND ALLOWANCES OF THEIR RESPECTIVE RANKS, GRADES, OR RATINGS, AS MAY BE AUTHORIZED FOR MEMBERS OF THE REGULAR COAST GUARD RESERVE.

SUCH SECTION AUTHORIZES THE COMMANDANT, WITH THE APPROVAL OF THE SECRETARY OF THE NAVY, TO ENROLL PERSONS AS TEMPORARY MEMBERS OF THE COAST GUARD RESERVE "UNDER SUCH CONDITIONS AS HE MAY PRESCRIBE, INCLUDING * * * ACTIVE DUTY WITH OR WITHOUT PAY" AND, WHILE IT FIXES THE PAY AND ALLOWANCES OF TEMPORARY MEMBERS OF THE RESERVE ON ACTIVE DUTY "WITH PAY," NO EXPRESS PROVISION IS MADE THEREIN FOR THE TRAVELING EXPENSES OF TEMPORARY MEMBERS OF THE RESERVE SERVING "WITHOUT PAY" IN TIME OF WAR OR NATIONAL EMERGENCY. HOWEVER, IN VIEW OF THE BROAD AUTHORITY VESTED IN THE COMMANDANT TO ENROLL TEMPORARY MEMBERS OF THE COAST GUARD RESERVE FOR ACTIVE DUTY WITHOUT PAY ,UNDER SUCH CONDITIONS AS HE MAY PRESCRIBE," AND IN THE ABSENCE OF ANY STATUTORY PROVISION INDICATING A CONTRARY INTENT, I BELIEVE IT REASONABLY MAY BE CONCLUDED THAT SUCH AUTHORITY IS BROAD ENOUGH TO PERMIT THE COMMANDANT TO PRESCRIBE PAYMENT OF PROPER TRAVEL EXPENSES FOR TEMPORARY RESERVISTS ENROLLED FOR ACTIVE DUTY WITHOUT PAY WHO ARE ORDERED TO PERFORM OFFICIAL TRAVEL IN CONNECTION WITH THE PERFORMANCE OF THEIR OFFICIAL DUTIES AS TEMPORARY MEMBERS OF THE RESERVE. CF. 25 COMP. GEN. 194, 200, ANSWER TO QUESTION (F). IN THIS CONNECTION, IT IS NOTED THAT CURRENT ADMINISTRATIVE INSTRUCTIONS SPECIFICALLY PROVIDE FOR THE PAYMENT OF THE TRAVELING EXPENSES OF TEMPORARY MEMBERS OF THE COAST GUARD RESERVE ENROLLED FOR DUTY WITHOUT PAY, THUS INDICATING THAT IT LIKEWISE IS THE ADMINISTRATIVE VIEW THAT THE COMMANDANT, HAVING BEEN AUTHORIZED TO ENROLL PERSONS AS TEMPORARY RESERVISTS "UNDER CONDITIONS AS HE MAY PRESCRIBE," IS AUTHORIZED TO PRESCRIBE THE TRAVELING EXPENSES PAYABLE TO SUCH RESERVISTS SERVING WITHOUT PAY WHEN PERFORMING OFFICIAL TRAVEL.

THE TRAVELING EXPENSES PRESCRIBED FOR TEMPORARY MEMBERS OF THE RESERVE SERVING WITHOUT PAY ARE SET FORTH IN COAST GUARD FINANCE AND SUPPLY CIRCULAR 190-43, DATED AUGUST 12, 1943, IN PERTINENT PART, AS FOLLOWS:

2. TEMPORARY OFFICER MEMBERS OF THE COAST GUARD RESERVE ENROLLED FOR DUTY WITHOUT PAY, OTHER THAN THOSE SPECIFIED IN PARAGRAPH 7 BELOW, WHEN TRAVELING ON OFFICIAL BUSINESS UNDER ORDERS OF COMPETENT AUTHORITY AND AWAY FROM THEIR DESIGNATED POSTS OF DUTY, MAY BE ALLOWED A PER DIEM, IN LIEU OF SUBSISTENCE, AS PRESCRIBED IN CIRCULAR NO. 42, PAY AND SUPPLY INSTRUCTIONS. SUCH TEMPORARY MEMBERS OF THE COAST GUARD RESERVE, WHEN PERFORMING TRAVEL UNDER COMPETENT ORDERS AND TEMPORARY DUTY IN CONNECTION THEREWITH, SHALL BE ENTITLED, IN ADDITION TO THE PER DIEM RATES PRESCRIBED IN CIRCULAR NO. 42, PAY AND SUPPLY INSTRUCTIONS, TO TRANSPORTATION AT GOVERNMENT EXPENSE, INCLUDING SLEEPING CAR OR STATEROOM ACCOMMODATIONS. MILEAGE WILL NOT BE ALLOWED.

4. TEMPORARY ENLISTED MEMBERS OF THE COAST GUARD RESERVE ENROLLED FOR DUTY WITHOUT PAY, WHEN REQUIRED BY ORDERS OF COMPETENT AUTHORITY TO PERFORM TRAVEL, WILL BE FURNISHED TRANSPORTATION AT GOVERNMENT EXPENSE AND WILL BE ALLOWED TRAVEL STATUS SUBSISTENCE AND QUARTERS ALLOWANCES IN AMOUNTS NOT TO EXCEED THOSE PRESCRIBED IN ARTICLE 219 (3), PAY AND SUPPLY INSTRUCTIONS, FOR PERSONNEL OF THE REGULAR COAST GUARD. REIMBURSEMENT FOR THE TRAVEL STATUS ALLOWANCES WILL BE MADE ON STANDARD FORM 1012.

7. TEMPORARY MEMBERS OF THE COAST GUARD RESERVE, WHO ARE LIKEWISE GOVERNMENT CIVIL SERVICE EMPLOYEES AND ARE RECEIVING COMPENSATION FROM THE GOVERNMENT IN THEIR CIVIL STATUS, WHEN PERFORMING TRAVEL UNDER ORDERS OF COMPETENT AUTHORITY, WILL BE ENTITLED TO THE ALLOWANCES PRESCRIBED IN STANDARDIZED GOVERNMENT TRAVEL REGULATIONS FOR OTHER CIVIL EMPLOYEES OF THE GOVERNMENT WHILE TRAVELING ON OFFICIAL BUSINESS. ORDERS TO SUCH PERSONNEL WILL BE ADDRESSED IN THEIR CIVILIAN CAPACITY AND SHOULD BEAR NO REFERENCE TO THEIR STATUS AS TEMPORARY MEMBERS OF THE COAST GUARD RESERVE.

CIRCULAR NO. 42 AND ARTICLE 219 (3), COAST GUARD PAY AND SUPPLY INSTRUCTIONS, REFERRED TO IN SAID CIRCULAR, PERTAIN TO THE ALLOWANCES AUTHORIZED UNDER SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 364, AS AMENDED, FOR OFFICERS AND ENLISTED MEN OF THE COAST GUARD IN A TRAVEL STATUS.

SINCE PERSONS ENROLLED AS TEMPORARY MEMBERS OF THE RESERVE WHO ARE NOT ISSUED TRAVEL ORDERS IN THE CAPACITY OF CIVILIAN EMPLOYEES OF THE UNITED STATES TRAVEL ON ACTIVE DUTY IN THEIR CAPACITY AS TEMPORARY MEMBERS OF THE COAST GUARD RESERVE, THERE APPEARS TO BE NO LEGAL OBJECTION TO REIMBURSING THEIR ACTUAL EXPENSES OF TRAVEL OR TO PRESCRIBING A PER DIEM FOR SUCH TRAVEL ON THE SAME BASIS AS IS AUTHORIZED FOR REGULAR MEMBERS OF THE COAST GUARD AND THE COAST GUARD RESERVE IN A TRAVEL STATUS, WHETHER SUCH TEMPORARY MEMBERS SERVE ON ACTIVE DUTY WITH OR WITHOUT PAY. THE QUESTION SUBMITTED IS ANSWERED ACCORDINGLY.

IT MAY BE NOTED WITH RESPECT TO THE CLAIM OF MR. BURKE, THAT HIS ORDERS REQUIRED HIM TO FERRY A COAST GUARD VESSEL FROM BOSTON, MASSACHUSETTS, TO BROOKLYN, NEW YORK, AND THE CLAIM SUBMITTED SHOWS THAT HE LEFT BOSTON 6:45 A.M. MAY 11, ARRIVED AT BROOKLYN 8 P.M. MAY 14, LEFT BROOKLYN 10:30 A.M. MAY 15 AND ARRIVED IN BOSTON 11 P.M. MAY 16, 1944. THE 7TH PARAGRAPH OF SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942, PROVIDES AS FOLLOWS:

PERSONNEL OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT PERFORMING TRAVEL ON GOVERNMENT-OWNED VESSELS FOR WHICH NO TRANSPORTATION FARE IS CHARGED SHALL BE ENTITLED ONLY TO REIMBURSEMENT OF ACTUAL AND NECESSARY EXPENSES INCURRED.

MR. BURKE HAVING PERFORMED THE TRAVEL INVOLVED FROM BOSTON TO BROOKLYN ON A GOVERNMENT-OWNED VESSEL, HE WOULD NOT BE ENTITLED, ON THE BASIS STATED, TO A PER DIEM FOR THAT PORTION OF THE JOURNEY, BUT TO REIMBURSEMENT OF HIS ACTUAL AND NECESSARY SUBSISTENCE EXPENSES NOT TO EXCEED $7 PER DAY, AS PROVIDED IN THE SAID SECTION 12. SEE 24 COMP. GEN. 362. YOU MAY BE ADVISED THAT FURTHER CONSIDERATION WILL BE GIVEN MR. BURKE'S CLAIM IF SUBMITTED ON THAT BASIS.