B-51015, SEPTEMBER 21, 1945, 25 COMP. GEN. 285

B-51015, SEPTEMBER 21, 1945, 25 COMP. GEN. 285

TRAVEL ALLOWANCE - NAVAL RESERVISTS DISCHARGED TO REENLIST IN REGULAR NAVY ENLISTED MEN OF THE NAVAL RESERVE, UPON DISCHARGE PRIOR TO THE END OF THE PERIOD THEY ARE OBLIGATED TO SERVE AS MEMBERS OF SUCH RESERVE, TO ENABLE THEM TO REENLIST IMMEDIATELY IN THE REGULAR NAVY, ARE NOT ENTITLED TO THE TRAVEL ALLOWANCE PROVIDED BY SECTION 126 OF THE NATIONAL DEFENSE ACT, AS AMENDED; BUT, UPON ULTIMATE DISCHARGE, THEY WILL BE ENTITLED UNDER EXISTING LAW TO TRAVEL ALLOWANCE FROM THE PLACE OF SUCH DISCHARGE TO THE PLACE TO WHICH THEY WOULD HAVE BEEN ENTITLED TO THE ALLOWANCE INCIDENT TO THEIR DISCHARGE FROM THE NAVAL RESERVE.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, SEPTEMBER 21, 1945:

THERE HAS BEEN CONSIDERED YOUR LETTER OF JULY 10, 1945, AS FOLLOWS:

THERE IS FORWARDED HEREWITH A LETTER FROM THE BUREAU OF SUPPLIES AND ACCOUNTS, NAVY DEPARTMENT, DATED JULY 2, 1945, RELATIVE TO THE RIGHT OF MEMBERS OF THE U.S. NAVAL RESERVE TO PAYMENT OF TRAVEL ALLOWANCE UPON DISCHARGE FOR THE CONVENIENCE OF THE GOVERNMENT TO ENLIST IN THE REGULAR NAVY.

YOUR DECISION IS REQUESTED ON THE SPECIFIC QUESTION SET FORTH IN PARAGRAPH 6 OF THE ENCLOSURE, NAMELY, WHETHER TRAVEL ALLOWANCE IS PAYABLE, UNDER THE THIRD PROVISO OF THE ACT OF DECEMBER 14, 1942 (56 STAT. 1049; 34 U.S.C. 895, SUPP. IV,) IN THE CASE OF ENLISTED MEN OF THE NAVAL RESERVE DISCHARGED FOR THE CONVENIENCE OF THE GOVERNMENT IN ACCORDANCE WITH ADMINISTRATIVE REGULATIONS SIMILAR TO THOSE ISSUED IN ALNAV 40 OF FEBRUARY 28, 1945, COPY ENCLOSED.

SECTION 126 OF THE NATIONAL DEFENSE ACT OF JUNE 3, 1916, 39 STAT. 217, AS AMENDED BY SECTION 3 OF THE ACT OF FEBRUARY 28, 1919, 40 STAT. 1203, AND BY THE ACT OF SEPTEMBER 22, 1922, 42 STAT. 1021, PROVIDES:

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 THE 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: PROVIDED FURTHER, THAT ENLISTED MEN UNDER THE AGE OF EIGHTEEN DISCHARGED ON THE APPLICATION OF EITHER OF THEIR PARENTS OR LEGAL GUARDIAN SHALL BE FURNISHED WITH TRANSPORTATION IN KIND FROM THE PLACE OF DISCHARGE TO THE RAILROAD STATION AT OR NEAREST TO THE PLACE OF ACCEPTANCE FOR ENLISTMENT, OR TO THEIR HOME IF THE DISTANCE THERETO IS NO GREATER THAN FROM THE PLACE OF DISCHARGE TO THE PLACE OF ACCEPTANCE FOR ENLISTMENT, BUT IF THE DIFFERENCE BE GREATER THEY MAY BE FURNISHED TRANSPORTATION IN KIND FOR A DISTANCE EQUAL TO THAT FROM THE PLACE OF DISCHARGE TO THE PLACE OF ACCEPTANCE FOR ENLISTMENT.

THE ACT OF DECEMBER 14, 1942, 56 STAT. 1049, PROVIDES AS FOLLOWS:

THAT SECTION 126 OF THE ACT OF JUNE 3, 1916 (39 STAT. 217, 10 U.S.C. 752), AS AMENDED, IS HEREBY FURTHER AMENDED BY ADDING A FURTHER PROVISO AT THE END OF SAID SECTION TO READ AS FOLLOWS: "PROVIDED FURTHER, THAT FROM AND AFTER AUGUST 27, 1940, UPON DISCHARGE OR RELIEF OR RELEASE FROM ACTIVE DUTY, AN ENLISTED MAN INDUCTED INTO THE MILITARY OR NAVAL SERVICE UNDER THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, AS AMENDED, OR PUBLIC RESOLUTION NUMBERED 96, APPROVED AUGUST 27, 1940, SHALL, UNDER SUCH REGULATIONS AS THE SECRETARY OF THE WAR OR THE SECRETARY OF THE NAVY, RESPECTIVELY, SHALL PRESCRIBE, RECEIVE THE SAID 5 CENTS PER MILE FOR THE DISTANCE FROM THE PLACE OF DISCHARGE OR RELIEF OR RELEASE FROM ACTIVE DUTY TO THE LOCATION OF THE LOCAL BOARD WHERE HE FIRST REPORTED FOR DELIVERY TO AN INDUCTION STATION IN THE CASE OF A SELECTEE, OR TO THE HOME STATION OF THE NATIONAL GUARD UNIT IN THE CASE OF A NATIONAL GUARD ENLISTED MAN, OR TO THE PLACE WHERE HE WAS SELECTED FOR ENROLLMENT IN THE CIVILIAN CONSERVATION CORPS IN THE CASE OF A CIVILIAN CONSERVATION CORPS ENROLLEE SO INDUCTED: AND PROVIDED FURTHER, THAT THE ENLISTED MEN OF THE NAVAL RESERVE, THE MARINE CORPS RESERVE, THE ENLISTED RESERVE CORPS, AND THE REGULAR ARMY RESERVE SHALL RECEIVE UPON DISCHARGE OR RELIEF OR RELEASE FROM ACTIVE DUTY, THE SAME MILEAGE ALLOWANCE AS HEREIN PRESCRIBED, AND UNDER THE SAME CONDITIONS AS HEREIN PRESCRIBED FOR ENLISTED MEN INDUCTED INTO THE MILITARY OR NAVAL SERVICE UNDER THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, AS AMENDED, EXCEPT THAT THE DISTANCE FOR WHICH MILEAGE IS COMPUTED SHALL BE FROM THE PLACE OF DISCHARGE OR RELIEF OR RELEASE FROM ACTIVE DUTY TO THE PLACE FROM WHICH ORDERED TO ACTIVE DUTY.'

ALNAV 40 OF FEBRUARY 28, 1945, PROVIDES:

EXCEPTION TO ALNAV 110-44 HEREBY AUTHORIZED APPLICABLE TO RADIO TECHNICIANS AND AVIATION RADIO TECHNICIANS ONLY. COMMANDING OFFICERS AUTHORIZED TO DISCHARGE RESERVISTS IN THE RT AND ART RATING EXCEPT THOSE HOLDING TEMPORARY WARRANTS AND COMMISSIONS FOR IMMEDIATE RE ENLISTMENT IN THE REGULAR NAVY FOR FOUR YEARS.

APPLICANTS MUST BE ADVANCED RADIO MATERIAL SCHOOL GRADUATES BETWEEN AGES OF EIGHTEEN AND THIRTY-ONE WELL QUALIFIED PROFESSIONALLY PHYSICALLY QUALIFIED IN ACCORDANCE MEDICAL DEPARTMENT MANUAL WITH GOOD CONDUCT RECORDS. RE-ENLISTMENTS SHALL BE IN PERMANENT RATE HELD AT TIME OF DISCHARGE. IMMEDIATE ADVANCEMENT TO TEMPORARY RATE HELD AT TIME OF DISCHARGE AUTHORIZED.

WHILE YOUR QUESTION IS STATED AS BEING BASED ON "THE THIRD PROVISO OF THE ACT OF DECEMBER 14, 1942," THAT ACT IS MADE UP OF ONLY TWO PROVISOS THEREBY ADDED TO SECTION 126 OF THE ACT OF JUNE 3, 1916, AS AMENDED, SUPRA. HOWEVER, THE SUBJECT MATTER OF YOUR SUBMISSION INDICATES THAT IT IS BASED ON THE PROVISIONS OF THE SECOND PROVISO CONTAINED IN THE ACT OF DECEMBER 14, 1942--- THE FOURTH PROVISO OF SECTION 126 OF THE ACT OF JUNE 3, 1916, AS AMENDED BY THE SAID 1942 ACT -- AND YOUR SUBMISSION WILL BE CONSIDERED ACCORDINGLY.

PRIOR TO THE ENACTMENT OF THE ACT OF DECEMBER 14, 1942, AN ENLISTED MEMBER OF THE NAVAL RESERVE WAS ENTITLED TO THE TRAVEL ALLOWANCE AUTHORIZED BY SECTION 126 OF THE NATIONAL DEFENSE ACT, AS AMENDED, ONLY IN CONNECTION WITH A DISCHARGE OCCURRING AT EXPIRATION OF ENLISTMENT WHILE HE WAS ON ACTIVE DUTY AND WHEN HE CONTINUED ON ACTIVE DUTY, A DISCHARGE OR RELEASE FROM ACTIVE DUTY OCCURRING PRIOR TO THE EXPIRATION OF HIS ENLISTMENT PERIOD ENTITLED HIM TO ONLY TRANSPORTATION AND SUBSISTENCE IN KIND TO THE PLACE FROM WHICH HE ENTERED UPON ACTIVE DUTY. 20 COMP. GEN. 1, 519. THE EFFECT OF THE ACT OF DECEMBER 14, 1942, INSOFAR AS IT RELATES TO SUCH ENLISTED PERSONNEL, WAS TO AUTHORIZE PAYMENT OF THE SAID TRAVEL ALLOWANCE UPON A RESERVIST'S RELIEF OR RELEASE FROM ACTIVE DUTY OR IN CONNECTION WITH A DISCHARGE (GRANTED PRIOR TO THE NORMAL EXPIRATION OF ENLISTMENT) WHERE SUCH DISCHARGE, IN EFFECT, ACCOMPLISHED A RELEASE FROM ACTIVE DUTY. IT IS ASSUMED THAT YOUR PRESENT QUESTION REFERS TO THE DISCHARGE OF ENLISTED PERSONNEL PRIOR TO THE END OF THE PERIOD THEY ARE OBLIGATED TO SERVE AS MEMBERS OF THE NAVAL RESERVE.

THE DECISIONS OF THE ACCOUNTING OFFICERS OF THE GOVERNMENT HAVE BEEN UNIFORM IN HOLDING THAT ENLISTED PERSONNEL OF THE ARMED FORCES DISCHARGED PRIOR TO THE DATE UPON WHICH THEIR ENLISTMENT CONTRACTS TERMINATE, FOR THE PURPOSE OF ENABLING THEM TO REENLIST IMMEDIATELY OR OF ALLOWING THEM TO CONTINUE, WITHOUT BREAK, IN THE MILITARY SERVICE IN A DIFFERENT STATUS OR CAPACITY MAY NOT BE CONSIDERED AS HAVING BEEN DISCHARGED UNDER CONDITIONS ENTITLING THEM TO THE TRAVEL ALLOWANCE PROVIDED IN SECTION 126 OF THE NATIONAL DEFENSE ACT, AS AMENDED, BUT THAT UPON THEIR EVENTUAL DISCHARGE AND COMPLETE SEPARATION FROM THE SERVICE THEY ARE ENTITLED TO THE TRAVEL ALLOWANCE SO PROVIDED TO THE PLACE OF ENTRY INTO THE SERVICE UNDER THE ORIGINAL ENLISTMENT, IF THE DISCHARGE IS OF A NATURE OTHERWISE ENTITLING THEM TO TRAVEL ALLOWANCE. 8 COMP. DEC. 513; 26 ID. 359; 6 COMP. GEN. 842; 23 ID. 808; 24 ID. 901. WHILE, BY REASON OF THE PROVISIONS OF THE ACT OF DECEMBER 14, 1942, ENLISTED MEMBERS OF THE NAVAL RESERVE ARE ENTITLED TO THE TRAVEL ALLOWANCE UPON DISCHARGE OR RELIEF OR RELEASE FROM ACTIVE DUTY, NOTHING APPEARS IN THE PROVISIONS OF THAT ACT, OR IN ITS LEGISLATIVE HISTORY, TO INDICATE THAT THE RULE STATED ABOVE IS NOT FOR APPLICATION IN CASES INVOLVING DISCHARGES GRANTED TO SUCH PERSONNEL, PRIOR TO THE TERMINATION OF THE PERIOD THEY ARE OBLIGATED TO SERVE AS MEMBERS OF THE NAVAL RESERVE, FOR THE PURPOSE OF ENABLING THEM TO CONTINUE IN THE NAVAL SERVICE IN A DIFFERENT CAPACITY WITHOUT A BREAK IN THEIR ACTIVE SERVICE. CF. 26 COMP. DEC. 21, 33; 23 COMP. GEN. 117.

THE AUTHORIZATION CONTAINED IN ALNAV 40, QUOTED ABOVE, IS FOR THE EXPRESS PURPOSE OF ENABLING CERTAIN ENLISTED RESERVE PERSONNEL TO BE DISCHARGED AND IMMEDIATELY REENLISTED IN THE REGULAR NAVY FOR A PERIOD OF 4 YEARS. UNDER SUCH CIRCUMSTANCES, IT IS CONCLUDED THAT, INSOFAR AS TRAVEL ALLOWANCE IS CONCERNED, THEIR SERVICE IN THE REGULAR NAVY--- UPON THE ACCOMPLISHMENT OF THE CONTEMPLATED REENLISTMENT--- IS A CONTINUATION OF THEIR ENLISTED SERVICE AND THAT NO RIGHT TO TRAVEL ALLOWANCE WILL ACCRUE TO THEM UNTIL THEIR ULTIMATE DISCHARGE FROM THE SERVICE. AT THAT TIME THEY WILL BE ENTITLED, IF THE EXISTING PROVISIONS OF LAW ARE THEN IN EFFECT, TO TRAVEL ALLOWANCE FROM THE PLACE OF SUCH DISCHARGE TO THE PLACE TO WHICH THEY WOULD HAVE BEEN ENTITLED TO SUCH ALLOWANCE INCIDENT TO THEIR DISCHARGE FROM THE NAVAL RESERVE HAD THEY NOT ENLISTED IN THE REGULAR NAVY.