B-56513, APRIL 12, 1946, 25 COMP. GEN. 722

B-56513, APRIL 12, 1946, 25 COMP. GEN. 722

TRAVEL ALLOWANCE - DISCHARGED PRISONERS RESTORED TO DUTY AND DISCHARGED HONORABLY OR OTHER THAN HONORABLY UNDER SECTION 126 OF THE NATIONAL DEFENSE ACT, AS AMENDED, DISHONORABLY DISCHARGED ARMY PRISONERS CONFINED IN THE UNITED STATES DISCIPLINARY BARRACKS WHOSE SENTENCES ARE REMITTED AND WHO ARE RESTORED TO DUTY PURSUANT TO SECTION 2 OF THE ACT OF MARCH 14, 1915, FOR THE PURPOSE OF GIVING THEM AN HONORABLE OR OTHER THAN HONORABLE ("BLUE") DISCHARGE, MAY, UPON FINAL DISCHARGE OTHER THAN BY WAY OF PUNISHMENT FOR AN OFFENSE, BE PAID A TRAVEL ALLOWANCE COMPUTED FROM THE PLACE OF FINAL DISCHARGE TO THE PLACE OF ACCEPTANCE FOR ENLISTMENT, OR OTHER PLACE TO WHICH THEY WOULD HAVE BEEN ENTITLED HAD NOT THE DISHONORABLE DISCHARGE AND RESTORATION TO DUTY INTERVENED.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF WAR, APRIL 12, 1946:

THERE HAS BEEN CONSIDERED YOUR LETTER OF MARCH 11, 1946, AS FOLLOWS:

IN CARRYING OUT THE WAR DEPARTMENT POST WAR CLEMENCY POLICY THE QUESTION HAS ARISEN AS TO WHAT, IF ANY, TRANSPORTATION EXPENSES ARE PAYABLE TO, OR ON BEHALF OF, DISHONORABLY DISCHARGED PRISONERS SERVING A SENTENCE OF CONFINEMENT IN THE UNITED STATES DISCIPLINARY BARRACKS, WHOSE SENTENCES ARE REMITTED AND WHO ARE RESTORED TO DUTY UNDER THE AUTHORITY VESTED IN THE SECRETARY OF WAR BY SECTION 2 OF THE ACT OF 4 MARCH 1915, 38 STAT. 1085, 10 U.S.C. 1457.

THE MILITARY PERSONNEL IN QUESTION IN ACCORDANCE WITH WAR DEPARTMENT POLICY ARE RESTORED TO DUTY FOR THE SOLE PURPOSE OF GIVING THEM AN HONORABLE OR OTHER THAN HONORABLE (BLUE) DISCHARGE WHERE THE CIRCUMSTANCES WARRANT SUCH ACTION, AND IMMEDIATELY UPON RESTORATION TO DUTY ARE DISCHARGED AT THE PLACE WHERE THEY ARE RESTORED TO DUTY. IT HAVING BEEN HELD BY YOUR OFFICE IN 2 COMP. GEN. 162 THAT RESTORATION TO DUTY OF A DISHONORABLY DISCHARGED PRISONER HAS THE EFFECT OF CREATING A NEW ENLISTMENT FOR ENLISTMENT PURPOSES, SOME DOUBT EXISTS AS TO WHETHER THE APPLICATION OF THE NEW ENLISTMENT CONCEPT ADOPTED IN THAT DECISION WOULD DEPRIVE THE PERSONNEL RESTORED TO DUTY AND DISCHARGED UNDER THE ABOVE CLEMENCY PLAN, EVEN THOUGH FOR THE SOLE PURPOSE OF IMMEDIATE HONORABLE OR BLUE DISCHARGE, OF TRAVEL ALLOWANCES ON SAID DISCHARGE.

IN THIS CONNECTION ATTENTION IS INVITED TO THE PROVISIONS CONTAINED IN CURRENT AND EARLIER WAR DEPARTMENT APPROPRIATION ACTS UNDER FINANCE DEPARTMENT, FINANCE SERVICE ARMY, TRAVEL OF THE ARMY, AUTHORIZING "TRANSPORTATION OF DISCHARGED PRISONERS" FROM PLACE OF RELIEF "TO THEIR HOMES OR ELSEWHERE AS THEY MAY ELECT, THE COST IN EACH CASE NOT TO BE GREATER THAN TO THE PLACE OF LAST ENLISTMENT.'

IT IS CONSIDERED THAT THE CLEMENCY EXTENDED TO THE CLASS OF MILITARY PERSONNEL FALLING WITHIN THE WAR DEPARTMENT POST WAR CLEMENCY POLICY AS INDICATED ABOVE, WHEREBY SUCH PERSONNEL ULTIMATELY RECEIVE AN HONORABLE OR BLUE DISCHARGE, SHOULD NOT OPERATE TO PLACE SUCH PERSONNEL IN A MORE DISADVANTAGEOUS STATUS IN THE MATTER OF TRAVEL ALLOWANCES THAN DISCHARGED PRISONERS WHO AS INDICATED ABOVE ARE ENTITLED TO TRANSPORTATION IN KIND UPON DISHONORABLE DISCHARGE FROM THE SERVICE, SINCE HAD THE PERSONNEL FALLING WITHIN THE CLEMENCY POLICY NOT BEEN RESTORED TO DUTY THEY WOULD HAVE BEEN ENTITLED TO TRANSPORTATION IN KIND UPON RELIEF FROM THE DISCIPLINARY BARRACKS UPON TERMINATION OF THEIR TERMS OF CONFINEMENT.

WHILE THE WAR DEPARTMENT IS NOT SOLICITOUS FOR THESE MEN THAT THEY NECESSARILY RECEIVE THE TRAVEL PAY ALLOWED UNDER SECTION 126 OF THE NATIONAL DEFENSE ACT, AS AMENDED, UNLESS THAT METHOD OF PROVIDING FOR THEIR TRAVEL EXPENSES BE THE ONLY LEGAL MEANS OF TAKING CARE OF THE SITUATION, IT IS HIGHLY DESIRABLE AND CONDUCIVE TO THE SUCCESS OF THE CLEMENCY PLAN THAT A WAY BE FOUND WITHOUT ADDITIONAL LEGISLATION, IF POSSIBLE, FOR THE TRANSPORTATION OF SUCH PERSONNEL TO THEIR HOMES OR TO THE PLACE OF THEIR ORIGINAL ENLISTMENT EVEN IF (AND IN FACT PREFERABLY SO IF AUTHORITY IN LAW EXISTS THEREFOR) TRANSPORTATION IN KIND ONLY BE AUTHORIZED.

IN VIEW OF THE ABOVE, YOUR DECISION IS REQUESTED AS TO WHETHER UNDER SECTION 126 OF THE NATIONAL DEFENSE ACT, AS AMENDED, PERSONS WHO ARE RESTORED TO DUTY AND GIVEN AN HONORABLE OR BLUE DISCHARGE IN ACCORDANCE WITH THE WAR DEPARTMENT POST WAR CLEMENCY POLICY AS DISCUSSED ABOVE, MAY BE PAID THE TRAVEL PAY AUTHORIZED BY SUCH SECTION, OR IN LIEU THEREOF BE FURNISHED TRANSPORTATION IN KIND TO THEIR PLACE OF PRIOR ENLISTMENT OR TO THEIR HOMES WHICHEVER DISTANCE MAY BE SHORTER.

IN ORDER THAT FINAL AND DEFINITE PLANS, AND INSTRUCTIONS RELATING THERETO, MAY BE PROMPTLY FORMULATED AND ISSUED, IT IS URGENTLY REQUESTED THAT YOUR DECISION ON THE QUESTION INVOLVED BE RENDERED AT AS EARLY A DATE AS POSSIBLE.

PARAGRAPH 7 OF SECTION 2 OF THE ACT OF MARCH 4, 1915, 38 STAT. 1084, 1085, PROVIDES:

7. WHENEVER HE SHALL DEEM SUCH ACTION MERITED THE SECRETARY OF WAR MAY REMIT THE UNEXECUTED PORTIONS OF THE SENTENCES OF OFFENDERS SENT TO THE UNITED STATES DISCIPLINARY BARRACKS FOR CONFINEMENT AND DETENTION THEREIN, AND IN ADDITION TO SUCH REMISSION MAY GRANT THOSE WHO HAVE NOT BEEN DISCHARGED FROM THE ARMY AN HONORABLE RESTORATION TO DUTY, AND MAY AUTHORIZE THE REENLISTMENT OF THOSE WHO HAVE BEEN DISCHARGED OR UPON THEIR WRITTEN APPLICATION TO THAT END ORDER THEIR RESTORATION TO THE ARMY TO COMPLETE THEIR RESPECTIVE TERMS OF ENLISTMENT, AND SUCH APPLICATION AND ORDER OF RESTORATION SHALL BE EFFECTIVE TO REVIVE THE ENLISTMENT CONTRACT FOR A PERIOD EQUAL TO THE ONE NOT SERVED UNDER SAID CONTRACT.

IN DECISION OF AUGUST 31, 1922, 2 COMP. GEN. 162, 167 CONSIDERING THE PROVISIONS OF THE ABOVE QUOTED ACT, IT WAS HELD THAT THE RESTORATION OF A DISHONORABLY DISCHARGED PRISONER TO THE ARMY TO COMPLETE THE TERM OF THE ENLISTMENT FROM WHICH HE WAS DISHONORABLY DISCHARGED CONSTITUTED A NEW ENLISTMENT FOR THE PURPOSE OF COMPUTING THE REENLISTMENT ALLOWANCE UPON A SUBSEQUENT REENLISTMENT. THAT DECISION WAS ADHERED TO IN DECISION TO THE SECRETARY OF WAR DATED OCTOBER 21, 1932, A-45118. IN VIEW OF THOSE DECISIONS, AND CONSIDERING THE PROVISIONS OF THE ACT OF MARCH 4, 1915, SUPRA, AND THE PURPOSES INTENDED TO BE ACCOMPLISHED THEREBY, IT WOULD APPEAR CLEAR THAT THE PERSONNEL REFERRED TO IN YOUR LETTER COULD NOT BE CONSIDERED IN THE CATEGORY OF DISCHARGED PRISONERS AND, THEREFORE, THEY WOULD NOT BE ENTITLED TO TRANSPORTATION IN KIND UNDER THE PROVISION IN THE ANNUAL APPROPRIATION ACTS FOR THE MILITARY ESTABLISHMENT, CURRENTLY CONTAINED IN THE MILITARY APPROPRIATION ACT, 1946, APPROVED JULY 3, 1945, UNDER THE HEADING OF FINANCE SERVICE, ARMY, TRAVEL OF THE ARMY (59 STAT. 387), FOR "TRANSPORTATION OF DISCHARGED PRISONERS * * * TO HOMES, OR ELSEWHERE AS THEY MAY ELECT, THE COST IN EACH CASE NOT TO BE GREATER THAN TO THE PLACE OF LAST ENLISTMENT.' THE APPARENT PURPOSE OF THE SAID ACT OF MARCH 4, 1915, IS TO RESTORE SUCH DISHONORABLY DISCHARGED PRISONERS TO THEIR ENLISTED STATUS, WHEN SUCH ACTION IS DEEMED TO BE MERITED, IN ORDER THAT THEY MAY HAVE THE OPPORTUNITY TO RECEIVE AN HONORABLE DISCHARGE, OR DISCHARGE OTHER THAN HONORABLE, UPON FINAL SEPARATION FROM THE SERVICE. TO HOLD THAT SUCH PERSONNEL STILL RETAINED THE RIGHTS OF DISCHARGED PRISONERS WOULD, IN EFFECT, CONTINUE A STATUS WHICH APPARENTLY THE STATUTE WAS DESIGNED TO TERMINATE.

ACCORDINGLY, ANY RIGHT THE PERSONNEL REFERRED TO IN YOUR LETTER WOULD HAVE TO ANY PAYMENT INCIDENT TO THEIR TRANSPORTATION IN CONNECTION WITH THEIR DISCHARGE WOULD BE GOVERNED BY SECTION 126 OF THE NATIONAL DEFENSE ACT, 39 STAT. 217, AS AMENDED, WHICH READS (10 U.S.C., SUPP. IV, 752):

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 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 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 SECTIONS 301-318 OF APPENDIX TO TITLE 50, AS AMENDED, OR SECTION 401 405 OF APPENDIX TO TITLE 50, SHALL, UNDER SUCH REGULATIONS AS THE SECRETARY OF 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 SECTIONS 301-318 OF APPENDIX TO TITLE 50, 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.

THE CASES HERE UNDER CONSIDERATION INVOLVE A DISCHARGE, NOT BY WAY OF PUNISHMENT FOR AN OFFENSE (EITHER AN HONORABLE DISCHARGE, OR A DISCHARGE OTHER THAN HONORABLE--- THE SO-CALLED "BLUE" DISCHARGE) WHICH GIVES RISE TO A RIGHT TO THE TRAVEL ALLOWANCE PROVIDED FOR BY THE STATUTE QUOTED ABOVE. HOWEVER, SINCE, IN THE CASE OF ENLISTEES, THE PLACE TO WHICH THE TRAVEL ALLOWANCE IS PAYABLE IS FIXED BY THE PLACE OF ACCEPTANCE FOR ENLISTMENT, ENROLLMENT, OR MUSTER INTO THE SERVICE, DOUBT ARISES AS TO WHETHER ANY ALLOWANCES WOULD ACCRUE IN THESE CASES, IT BEING STATED THAT THE DISCHARGE OF THE PERSONNEL CONCERNED IS ACCOMPLISHED AT THE PLACE WHERE THEY ARE RESTORED TO DUTY.

BASED ON THE DECISION OF AUGUST 31, 1922, SUPRA, THE PLACE OF RESTORATION TO DUTY IN THESE CASES WOULD FIX THE PLACE TO WHICH TRAVEL ALLOWANCE WOULD BE PAYABLE UNDER THAT PARTICULAR "ENLISTMENT" AND THE PLACE OF RESTORATION BEING THE SAME AS THE PLACE OF DISCHARGE, NO TRAVEL ALLOWANCE WOULD ACCRUE. HOWEVER, IT HAS BEEN RECOGNIZED THAT UNDER CERTAIN CIRCUMSTANCES WHERE THERE HAVE BEEN TWO ENLISTMENTS WITH AN INTERVENING DISCHARGE INCIDENT TO WHICH NO TRAVEL ALLOWANCE WAS PAYABLE, THE TRAVEL ALLOWANCE INCIDENT TO THE SECOND DISCHARGE IS COMPUTED TO THE PLACE OF ACCEPTANCE UNDER THE ORIGINAL ENLISTMENT AND NOT UNDER THE SECOND ENLISTMENT. SEE 23 COMP. GEN. 808, 810, AND DECISIONS CITED THEREIN. THAT RULE APPEARS TO BE PREDICATED ON THE APPARENT BASIC PURPOSE OF THE TRAVEL ALLOWANCE LAW WHICH IS TO ENABLE A MAN WHO IS FREE TO TRAVEL, TO RETURN UPON DISCHARGE, AT THE EXPENSE OF THE GOVERNMENT, TO THE PLACE WHERE THE ARMY LAST ASSUMED CONTROL OF HIM. A-33687, NOVEMBER 3, 1930; CF. SHERBURNE V. UNITED STATES, 16 C.1CLS. 491.

THE PERSONNEL HERE INVOLVED WERE DISCHARGED FROM THEIR PREVIOUS TERM OF SERVICE BY WAY OF PUNISHMENT FOR AN OFFENSE, THUS PRECLUDING PAYMENT OF THE TRAVEL ALLOWANCE AT THAT TIME. UNDER THE CIRCUMSTANCES THEY THEN WERE NOT FREE TO TRAVEL TO THEIR HOMES OR ELSEWHERE, BUT WERE CONFINED IN THE UNITED STATES DISCIPLINARY BARRACKS WHERE THEY REMAINED UNDER THE ABSOLUTE CONTROL OF THE ARMY. SEE PARAGRAPH 3 OF SECTION 2 OF THE ACT OF MARCH 4, 1915, SUPRA. THE ARMY NEVER RELINQUISHED CONTROL OF SUCH PERSONS AND THEREFORE UPON THEIR RESTORATION TO DUTY THERE WAS, IN FACT, NO NEW ASSUMPTION OF CONTROL BY THE ARMY BUT, RATHER, A CONTINUANCE OF THE CONTROL WHICH HAD EXISTED SINCE ENTRY INTO THE SERVICE PRIOR TO THE DISHONORABLE DISCHARGE. CONSIDERED IN THIS LIGHT, THE PLACE OF RESTORATION TO DUTY WOULD HAVE LITTLE OR NO RELATION TO THE PLACE TO WHICH TRAVEL ALLOWANCE SHOULD BE COMPUTED AND FOR THE PURPOSE OF COMPUTING SUCH TRAVEL ALLOWANCE IT WOULD APPEAR THAT IT SHOULD BE DISREGARDED.

IN VIEW OF THE FOREGOING, YOU ARE ADVISED THAT DISHONORABLY DISCHARGED PRISONERS SERVING A SENTENCE OF CONFINEMENT IN THE UNITED STATES DISCIPLINARY BARRACKS, WHOSE SENTENCES ARE REMITTED AND WHO ARE RESTORED TO DUTY UNDER THE AUTHORITY VESTED IN THE SECRETARY OF WAR BY THE ACT OF MARCH 14, 1915, SUPRA, MAY, UPON FINAL DISCHARGE, NOT BY WAY OF PUNISHMENT FOR AN OFFENSE, BE PAID A TRAVEL ALLOWANCE IN ACCORDANCE WITH THE SAID SECTION 126 OF THE NATIONAL DEFENSE ACT, AS AMENDED, COMPUTED FROM THE PLACE OF SUCH FINAL DISCHARGE TO THE PLACE OF ACCEPTANCE FOR ENLISTMENT, OR OTHER PLACE, TO WHICH SUCH PERSON WOULD HAVE BEEN ENTITLED HAD NOT THE DISHONORABLE DISCHARGE AND RESTORATION TO DUTY INTERVENED.