B-53093, NOVEMBER 29, 1945, 25 COMP. GEN. 425

B-53093, NOVEMBER 29, 1945, 25 COMP. GEN. 425

MILEAGE - NAVAL RESERVE OFFICERS - TRAVEL FROM LAST STATION TO HOME SUBSEQUENT TO DISCHARGE THE MILEAGE AUTHORIZED BY THE PROVISIONS OF SECTION 9 OF THE ACT OF SEPTEMBER 7, 1944, AMENDING SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942, WHICH ACCRUES ONLY INCIDENT TO THE PERFORMANCE BY AN "OFFICER" OF TRAVEL UNDER COMPETENT ORDERS, DOES NOT ACCRUE INCIDENT TO TRAVEL PERFORMED BY A NAVAL RESERVE OFFICER FROM HIS LAST STATION TO HIS HOME SUBSEQUENT TO HIS SEVERANCE FROM THE NAVAL SERVICE BY WAY OF DISCHARGE, IRRESPECTIVE OF THE AUTHORITY UNDER SECTION 7 OF THE 1944 ACT FOR THE ADVANCE PAYMENT OF MILEAGE FROM PLACE OF RELEASE TO PLACE FROM WHICH ORDERED TO ACTIVE DUTY WITHOUT REGARD TO THE ACTUAL PERFORMANCE OF TRAVEL. 20 COMP. GEN. 757; 21 ID. 819, DISTINGUISHED.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, NOVEMBER 29, 1945:

THERE HAS BEEN CONSIDERED YOUR LETTER OF OCTOBER 11, 1945, AS FOLLOWS:

IN THE COMPTROLLER GENERAL'S DECISION OF NOVEMBER 15, 1935, A-67234, THE QUESTION WAS CONSIDERED AS TO THE RIGHT OF AN OFFICER OF THE OFFICERS' RESERVE CORPS TO PAYMENT OF MILEAGE TO HIS HOME UPON RELEASE FROM ACTIVE DUTY WHEN SUCH TRAVEL WAS PERFORMED SUBSEQUENT TO HIS DISCHARGE AND HE WAS NO LONGER A MEMBER OF THE RESERVE. IT WAS HELD IN SAID DECISION, AS FOLLOWS:

"* * * WHILE THE QUOTED STATUTE ( SECTION 37 (A) OF THE NATIONAL DEFENSE ACT, AS AMENDED) CONTEMPLATES NORMALLY THAT THE TRAVEL "FROM HIS LAST STATION TO HIS HOME" SHALL BE PERFORMED WHILE THE PERSON IS AN OFFICER AND ON ACTIVE DUTY STATUS, YET WHERE THE OFFICER'S COMMISSION TERMINATES WHILE HE IS ON ACTIVE DUTY AWAY FROM HIS HOME AND HIS ORDERS PROVIDE THAT UPON TERMINATION OF ACTIVE DUTY HE SHALL PROCEED TO HIS HOME, AS IN THIS CASE, THE STATUTE IS OPERATIVE TO GIVE HIM MILEAGE, THE PURPOSE BEING TO RETURN THE OFFICER TO THE PLACE WHERE HE ENTERED ON ACTIVE DUTY. ITS PURPOSE IS THE SAME AS THE TRAVEL PAY LAW APPLICABLE TO ENLISTED MEN, SECTION 126 OF THE NATIONAL DEFENSE ACT, AND THE ACT OF MARCH 2, 1901, 31 STAT. 902, WHICH GIVES TO AN OFFICER DISCHARGED FROM THE SERVICE EXCEPT BY WAY OF PUNISHMENT FOR AN OFFENSE, 4 CENTS PER MILE FROM THE PLACE OF HIS DISCHARGE TO THE PLACE OF HIS RESIDENCE AT THE TIME OF HIS APPOINTMENT, OR TO THE PLACE OF HIS ORIGINAL MUSTER INTO THE SERVICE. * * * "

SECTION 37 (A) OF THE NATIONAL DEFENSE ACT, AS AMENDED, WHICH WAS CONSIDERED IN THE CITED DECISION OF NOVEMBER 15, 1935, PROVIDES IN PERTINENT PART, AS FOLLOWS:

"* * * A RESERVE OFFICER SHALL NOT BE ENTITLED TO PAY AND ALLOWANCES EXCEPT WHEN ON ACTIVE DUTY. WHEN ON ACTIVE DUTY HE SHALL RECEIVE THE SAME PAY AND ALLOWANCES AS AN OFFICER OF THE REGULAR ARMY OF THE SAME GRADE AND LENGTH OF ACTIVE SERVICE, AND MILEAGE FROM HIS HOME TO HIS FIRST STATION AND FROM HIS LAST STATION TO HIS HOME, BUT SHALL NOT BE ENTITLED TO RETIREMENT OR RETIRED PAY.'

IN VIEW OF THE SIMILARITY BETWEEN THE PRESENT LAW AND THAT CONSIDERED IN THE CITED DECISION OF NOVEMBER 15, 1935, THE BUREAU OF SUPPLIES AND ACCOUNTS OF THE NAVY DEPARTMENT STATES THAT IT CONSIDERED THAT MILEAGE IS PAYABLE TO OFFICERS FOR TRAVEL FROM LAST STATION TO HOME EVEN THOUGH IT IS NOT PERFORMED PRIOR TO THE EFFECTIVE DATE OF THE OFFICER'S DISCHARGE. HOWEVER, IN THE ASSISTANT COMPTROLLER GENERAL'S DECISION OF JULY 18, 1945, B-48313, IT WAS HELD THAT MILEAGE WAS NOT PAYABLE IN SUCH CASES UNLESS TRAVEL WAS BEGUN PRIOR TO THE EFFECTIVE DATE OF DISCHARGE (DATE OF TERMINATION OF APPOINTMENT AS AN OFFICER IN THE UNITED STATES NAVAL RESERVE).

IF THE ABOVE QUOTED PROVISIONS OF SECTION 37 (A) OF THE NATIONAL DEFENSE ACT, AS AMENDED, WERE, AS STATED IN THE CITED DECISION OF NOVEMBER 15, 1935, IN THE NATURE OF A TRAVEL ALLOWANCE AND PAYABLE AT ALL EVENTS AS LONG AS TRAVEL WAS COMPLETED WITHIN A REASONABLE TIME, IT WOULD APPEAR, A FORTIORI, THAT THE SAME CONSTRUCTION SHOULD BE PLACED ON SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942, SINCE THIS LATER ACT, CONSIDERING THE PROVISIONS IN SECTION 3 THEREOF, AS AMENDED, FOR ADVANCE PAYMENTS OF MILEAGE WITHOUT REGARD TO PERFORMANCE OF TRAVEL, WOULD SEEM TO LEAVE LITTLE DOUBT THAT IT WAS THE LEGISLATIVE INTENT TO ASSURE OFFICERS REIMBURSEMENT FOR TRAVEL TO AND FROM ACTIVE DUTY, EVEN THOUGH SUCH TRAVEL MIGHT BE PERFORMED AS A CIVILIAN. THIS PRINCIPLE APPEARS TO HAVE BEEN CLEARLY RECOGNIZED IN PRIOR DECISIONS OF THE COMPTROLLER GENERAL OF THE UNITED STATES IN CONNECTION WITH OFFICERS FIRST REPORTING FOR ACTIVE DUTY. (SEE, IN THIS CONNECTION, 20 COMP. GEN. 757; 21 ID. 819.)

IN VIEW OF THE FOREGOING, YOUR EARLY DECISION IS REQUESTED AS TO WHETHER MILEAGE IS PAYABLE TO OFFICERS FOR TRAVEL FROM LAST STATION TO HOME, EVEN THOUGH SUCH TRAVEL IS NOT PERFORMED PRIOR TO THE EFFECTIVE DATE OF THE OFFICER'S DISCHARGE (DATE OF TERMINATION OF APPOINTMENT AS AN OFFICER IN THE UNITED STATES NAVAL RESERVE).

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, 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 * * * .

IT HAS BEEN RECOGNIZED THAT THE DISCHARGE OF A RESERVE OFFICER ON ACTIVE DUTY, EITHER BECAUSE OF DISABILITY INCURRED IN LINE OF DUTY OR FOR OTHER REASON NOT DUE TO HIS OWN MISCONDUCT, IS TANTAMOUNT TO A RELEASE FROM ACTIVE DUTY AND, CONSEQUENTLY, THAT A RESERVE OFFICER DISCHARGED UNDER THOSE CONDITIONS IS ENTITLED, WITHOUT REGARD TO THE PERFORMANCE OF TRAVEL, TO AN ADVANCE PAYMENT OF MILEAGE FROM THE PLACE OF RELEASE TO THE PLACE FROM WHICH ORDERED TO ACTIVE DUTY UNDER THE ABOVE-QUOTED PROVISIONS OF SECTION 3 OF THE ACT OF JUNE 16, 1942, AS AMENDED. B-47498, MARCH 8, 1945. THEREFORE, IN THOSE CASES WHERE THE PLACE FROM WHICH A RESERVE OFFICER IS ORDERED TO ACTIVE DUTY IS THE OFFICER'S HOME OF RECORD, ALSO, AS SHOWN IN THE OFFICIAL RECORDS OF THE NAVY DEPARTMENT IT WOULD APPEAR THAT THE ADVANCE PAYMENT OF MILEAGE SO AUTHORIZED WOULD EQUAL THAT OTHERWISE PROVIDED BY STATUTE FOR TRAVEL UNDER COMPETENT ORDERS FROM LAST STATION TO HOME AND, CONSEQUENTLY, THAT OFFICERS SO SITUATED WOULD BE ENTITLED TO MILEAGE TO THEIR HOMES EVEN THOUGH COMPLETELY SEPARATED FROM THE SERVICE BY DISCHARGE BEFORE PERFORMING ANY TRAVEL THERETO. HENCE, IT IS ASSUMED THAT THE QUESTION PRESENTED IN YOUR SUBMISSION RELATES ONLY TO THOSE CASES WHERE IT IS BELIEVED THAT A RESERVE OFFICER, BECAUSE HIS HOME OF RECORD IS AT A POINT OTHER THAN THE PLACE FROM WHICH HE WAS ORDERED TO ACTIVE DUTY, OR FOR OTHER REASON, IS ENTITLED TO BENEFITS UNDER THE PROVISIONS OF SECTION 12 OF THE ACT OF JUNE 16, 1942, AS AMENDED, WHICH WOULD BE GREATER THAN THOSE ACCRUING UNDER SECTION 3 OF THAT ACT, AS AMENDED.

PRIOR TO THE ENACTMENT OF THE ACT OF SEPTEMBER 7, 1944, SECTION 12 OF THE ACT OF JUNE 16, 1942, AUTHORIZED THE PAYMENT OF MILEAGE GENERALLY TO OFFICERS OF BOTH THE REGULAR ESTABLISHMENTS AND THE RESERVE COMPONENTS THEREOF WHILE ON ACTIVE DUTY IN THE FEDERAL SERVICE WHILE "TRAVELING UNDER COMPETENT ORDERS WITHOUT TROOPS" AND NAVAL RESERVE OFFICERS WERE ENTITLED TO THE MILEAGE SO AUTHORIZED INCIDENT TO THE PERFORMANCE OF TRAVEL FROM HOME TO FIRST STATION AND FROM LAST STATION TO HOME "WHEN TRAVELING UNDER ORDERS" BY VIRTUE OF THE PROVISIONS OF SECTION 7 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1176. THE PROVISIONS OF THE SAID SECTION 12, AS WELL AS SIMILAR PROVISIONS CONTAINED IN PRIOR MILEAGE LAWS, UNIFORMLY HAVE BEEN CONSIDERED TO AUTHORIZE THE PAYMENT OF MILEAGE ONLY INCIDENT TO ACTUAL TRAVEL WHICH IS PERFORMED BY AN "OFFICER" PURSUANT TO COMPETENT ORDERS, AND THAT VIEW NECESSARILY REQUIRES THE CONCLUSION THAT SUCH MILEAGE IS AUTHORIZED FOR PAYMENT ONLY FOR TRAVEL PERFORMED BEFORE DISCHARGE OR OTHER COMPLETE SEVERANCE FROM THE SERVICE AND ONLY AFTER THE TRAVEL HAS BEEN COMPLETED. 13 COMP. DEC. 156; 1 COMP. GEN. 737; 4 ID. 28; 15 ID. 438; B- 46958, APRIL 28, 1945; B-48313, JULY 18, 1945. AS AMENDED BY SECTION 9 OF THE ACT OF SEPTEMBER 7, 1944, MILEAGE BENEFITS FORMERLY ACCRUING TO NAVAL RESERVE OFFICERS UNDER THE NAVAL RESERVE ACT OF 1938 WERE INCORPORATED IN THE SAID SECTION 12, THAT SECTION IN ITS PRESENT FORM PROVIDING FOR THE PAYMENT OF MILEAGE TO RESERVE OFFICERS "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.' WHILE THE SAID SECTION 12, AS AMENDED BY THE ACT OF SEPTEMBER 7, 1944, INCLUDES ADDITIONAL TRAVEL NOT THERETOFORE COVERED BY ITS PROVISIONS BEFORE AMENDMENT, THE INCLUSION OF SUCH ADDITIONAL BENEFITS DOES NOT APPEAR IN ANY WAY TO CHANGE THE REQUIREMENT THAT THE MILEAGE AUTHORIZED BY THAT SECTION IS FOR PAYMENT ONLY INCIDENT TO THE ACTUAL PERFORMANCE BY AN ,OFFICER" OF TRAVEL UNDER COMPETENT ORDERS WITHOUT TROOPS.

IN THE DECISION OF NOVEMBER 15, 1935, A-67234, TO WHICH YOU REFER, IT WAS RECOGNIZED THAT THE PROVISIONS OF SECTION 37 (A) OF THE NATIONAL DEFENSE ACT, AS AMENDED BY THE ACT OF JUNE 4, 1920, 41 STAT. 776--- WHICH PROVIDED THAT A RESERVE OFFICER WHEN ON ACTIVE DUTY SHALL RECEIVE THE SAME PAY AND ALLOWANCES AS AN OFFICER OF THE REGULAR ARMY, AND MILEAGE FROM HIS HOME TO HIS FIRST STATION AND FROM HIS LAST STATION TO HIS HOME--- CONTEMPLATED THAT THE TRAVEL FROM LAST STATION TO HOME SHALL BE PERFORMED WHILE THE PERSON IS AN OFFICER AND WHILE HE IS IN AN ACTIVE DUTY STATUS. SEE, ALSO, B-20324, SEPTEMBER 29, 1941. HOWEVER, AS AN EXCEPTION TO THAT REQUIREMENT IT WAS HELD IN THAT DECISION THAT A MEMBER OF THE OFFICERS' RESERVE CORPS WHOSE RELIEF FROM ACTIVE DUTY RESULTED FROM THE TERMINATION OF HIS COMMISSION, AND WHOSE ORDERS TO ACTIVE DUTY DIRECTED TRAVEL TO HIS HOME INCIDENT TO RELIEF FROM ACTIVE DUTY, WAS ENTITLED TO MILEAGE FROM LAST STATION TO HOME ON THE THEORY THAT THE PURPOSE OF THAT STATUTE WAS TO RETURN THE OFFICER TO THE PLACE WHERE HE ENTERED ON ACTIVE DUTY. IT NOW IS URGED THAT A LIKE INTERPRETATION OF SECTION 12 OF THE ACT OF JUNE 16, 1942, AS AMENDED, IS WARRANTED SO AS TO AUTHORIZE THE PAYMENT OF MILEAGE FROM LAST STATION TO HOME INCIDENT TO DISCHARGE FROM THE SERVICE EVEN THOUGH SUCH TRAVEL IS PERFORMED AS A CIVILIAN. IT IS SUGGESTED FURTHER THAT SUCH PRINCIPLE HAS BEEN RECOGNIZED IN PRIOR DECISIONS OF THIS OFFICE IN CONNECTION WITH OFFICERS FIRST REPORTING FOR ACTIVE DUTY, CITING 20 COMP. GEN. 757, AND 21 COMP. GEN. 819. HOWEVER, WITH RESPECT TO THE DECISIONS THUS CITED, IT APPEARS SUFFICIENT TO POINT OUT THAT WHILE IN EACH CASE TRAVEL WAS PERFORMED UNDER UNUSUAL CIRCUMSTANCES, THE CONDITIONS THEREIN CONSIDERED WERE OF SUCH CHARACTER AS TO WARRANT THE CONCLUSION THAT THE OFFICERS INVOLVED WERE, DURING THE PERIOD OF THE TRAVEL IN QUESTION, IN FACT RESERVE OFFICERS RATHER THAN CIVILIANS AND, HENCE, WERE ENTITLED TO MILEAGE AND OTHER ALLOWANCES AUTHORIZED FOR PAYMENT TO RESERVE OFFICERS TRAVELING TO THEIR FIRST DUTY STATIONS.

WHILE UNDER THE PROVISIONS OF SECTION 37 (A) OF THE NATIONAL DEFENSE ACT, AS AMENDED, THE PAYMENT OF MILEAGE FROM LAST STATION TO HOME WAS APPROVED IN THE DECISION OF NOVEMBER 15, 1935, INCIDENT TO THE PERFORMANCE OF THE TRAVEL SUBSEQUENT TO THE TERMINATION OF THE COMMISSION OF A MEMBER OF THE OFFICERS' RESERVE CORPS, SUCH APPROVAL HAD AS ITS BASIS ONLY THE RECOGNITION OF THE GOVERNMENT'S OBLIGATION UNDER THAT STATUTE TO RETURN RESERVE OFFICERS TO THE PLACES OF ENTRY UPON ACTIVE DUTY, IT APPARENTLY BEING BELIEVED THAT ANY OTHER CONCLUSION WOULD OBLIGATE THE OFFICER RATHER THAN THE GOVERNMENT FOR THE EXPENSES INVOLVED. SUCH INTERPRETATION WAS, AS THEREIN INDICATED, AN EXCEPTION TO THE REQUIREMENT UNDER THAT STATUTE THAT TRAVEL FOR WHICH MILEAGE ACCRUED WAS THAT PERFORMED UNDER COMPETENT ORDERS AS AN OFFICER AND IN VIEW OF THE FACT THAT UNDER THE PROVISIONS OF SECTION 3 OF THE ACT OF JUNE 16, 1942, AS AMENDED, AUTHORITY EXISTS FOR THE ADVANCE PAYMENT OF MILEAGE TO RESERVE OFFICERS UPON DISCHARGE NOT THE RESULT OF THEIR OWN MISCONDUCT "FROM THE PLACE OF RELEASE TO THE PLACE FROM WHICH ORDERED TO ACTIVE DUTY WITHOUT REGARD TO THE ACTUAL PERFORMANCE OF TRAVEL"--- THUS, IN EFFECT, AUTHORIZING THE PAYMENT OF MILEAGE UNDER THE CIRCUMSTANCES AND FOR THE PURPOSE CONTEMPLATED IN THE DECISION OF NOVEMBER 15, 1935--- THERE APPEARS TO EXIST NO REASONABLE BASIS UPON WHICH TO CONCLUDE THAT THE PROVISIONS OF SECTION 12 OF THE ACT OF JUNE 16, 1942, AS AMENDED, ARE SUBJECT TO SIMILAR EXCEPTION. IT MUST BE HELD, THEREFORE, THAT THE MILEAGE AUTHORIZED UNDER THE PROVISIONS OF THE SAID SECTION 12, AS AMENDED, ACCRUES ONLY INCIDENT TO THE PERFORMANCE BY AN "OFFICER" OF TRAVEL UNDER COMPETENT ORDERS AND, THEREFORE, THAT THE MILEAGE AUTHORIZED MAY NOT BE CONSIDERED TO ACCRUE INCIDENT TO TRAVEL PERFORMED BY RESERVE OFFICERS SUBSEQUENT TO THEIR SEVERANCE FROM THE NAVAL SERVICE BY WAY OF DISCHARGE.