B-81043, DECEMBER 20, 1948, 28 COMP. GEN. 370

B-81043, DECEMBER 20, 1948, 28 COMP. GEN. 370

TRAVELING EXPENSES, SUBSISTENCE AND QUARTERS ALLOWANCES - RESERVE OFFICERS ORDERED TO DUTY FOR PHYSICAL EXAMINATION UNDER SECTION 14 OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED, AUTHORIZING, AT THE DISCRETION OF THE SECRETARY OF THE ARMY, THE PAYMENT OF TRAVELING EXPENSES AND THE COMMUTATION OF SUBSISTENCE AND QUARTERS TO ARMY RESERVE OFFICERS ORDERED TO DUTY WITH THEIR CONSENT, BUT WITHOUT PAY, FOR TRAINING OR TO "OTHER DUTY AS PROVIDED BY LAW," SUCH OFFICERS ORDERED TO DUTY FOR THE PURPOSE OF TAKING A PHYSICAL EXAMINATION TO DETERMINE THEIR FITNESS FOR EXTENDED ACTIVE DUTY MAY, UPON THE PROMULGATION OF APPROPRIATE REGULATIONS, BE PAID SUCH EXPENSES AND ALLOWANCES INCIDENT TO SAID DUTY FROM THE APPROPRIATION ITEM " TRAVEL OF THE ARMY.'

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE ARMY, DECEMBER 20, 1948:

THERE HAS BEEN RECEIVED YOUR LETTER OF OCTOBER 21, 1948, AS FOLLOWS:

IN ORDER TO PROVIDE SUFFICIENT OFFICER PERSONNEL TO ALLOW THE ARMY TO PERFORM ITS MISSION OF TRAINING THE ARMY UNDER RECENTLY INCREASED AUTHORIZED STRENGTHS, IT IS NECESSARY THAT THE ARMY RECALL A NUMBER OF RESERVE OFFICERS FOR EXTENDED ACTIVE DUTY.

AT THE PRESENT TIME ARMY REGULATIONS REQUIRE THAT NO OFFICER WILL BE ORDERED TO SUCH EXTENDED ACTIVE DUTY UNTIL HE IS EXAMINED TO DETERMINE HIS PHYSICAL FITNESS, WHICH EXAMINATION UNDER CURRENT REGULATIONS MUST BE MADE BY A MEDICAL OFFICER OF THE ARMY. ALSO, UNDER CURRENT POLICY SUCH EXAMINATIONS ARE MADE WITHOUT ANY EXPENSE TO THE UNITED STATES, WHICH MEANS THAT THE NECESSARY COSTS TO SUCH RESERVE OFFICERS INCIDENT TO TRAVELING TO AND FROM POINTS NECESSARY FOR EXAMINATIONS ARE REQUIRED TO BE BORNE BY THEM. THIS IS BELIEVED TO BE UNFAIR TO THE RESERVE PERSONNEL CONCERNED SINCE THE REQUIREMENTS FOR PHYSICAL EXAMINATION ARE THOSE IMPOSED BY THE ARMY FOR ITS OWN PROTECTION, AND IN ANY EVENT IS HAVING A DETERRENT EFFECT IN SECURING THE CONSENT OF SUCH PERSONNEL TO RECALL TO SUCH EXTENDED ACTIVE DUTY. IN ORDER TO ALLEVIATE THIS INJUSTICE AND TO FACILITATE THE PROCUREMENT OF SUCH OFFICERS, THE DEPARTMENT OF THE ARMY PROPOSES TO CALL THESE OFFICERS TO DUTY WITHOUT PAY, WITH THEIR CONSENT, AND TO FURNISH THEM TRANSPORTATION AND SUBSISTENCE TO AND FROM SUCH DUTY, AND SUBSISTENCE AND QUARTERS ALLOWANCES OR COMMUTATION THEREOF DURING THE PERFORMANCE OF THE DUTY ENTAILED IN DETERMINING THEIR PHYSICAL FITNESS FOR ACTIVE DUTY AS AUTHORIZED BY SEC. 14 OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED BY SEC. 3 OF THE ACT OF 25 MARCH 1948, PUBLIC LAW 460, 80TH CONGRESS, AND SEC. 55 (A) OF THE NATIONAL DEFENSE ACT, AS AMENDED BY SEC. 4 OF PUBLIC LAW 460, CITED SUPRA.

IN VIEW OF THE ABOVE, YOUR DECISION IS REQUESTED AS TO WHETHER YOUR OFFICE WOULD BE REQUIRED TO OBJECT TO THE USE OF FUNDS PROVIDED IN THE APPROPRIATION " TRAVEL OF THE ARMY" UNDER " FINANCE SERVICE, ARMY" IN THE ARMY APPROPRIATION ACT FOR 1949, FOR THE PAYMENT OF TRAVELING EXPENSES AND SUBSISTENCE AND QUARTERS ALLOWANCES TO SUCH PERSONNEL ORDERED TO DUTY WITH THEIR CONSENT FOR THE PERIOD THEY MAY BE PERFORMING DUTY WITHOUT PAY IN CONNECTION WITH DETERMINING THEIR PHYSICAL FITNESS FOR EXTENDED ACTIVE DUTY.

A PRESENTATION OF THE REASONS AND MATTERS CONSIDERED IN CONNECTION WITH THIS SUBMISSION ARE SET FORTH IN THE ACCOMPANYING ENCLOSURE.

IT IS STATED IN THE ENCLOSURE THAT THE RESERVE OFFICERS IN QUESTION ARE CURRENTLY BEING ORDERED TO ACTIVE DUTY AT AN APPROXIMATE RATE OF 3,000 PER MONTH TO FILL POSITION VACANCIES OCCASIONED BY EXPANSION AND NORMAL REPLACEMENTS, AND THAT IT IS ANTICIPATED THAT THE REQUIREMENTS WILL CONTINUE AT THIS RATE FOR THE NEXT TEN MONTHS, AND THEREAFTER REPLACEMENT NEEDS WILL REQUIRE CALLING APPROXIMATELY 1,000 SUCH OFFICERS MONTHLY TO EXTENDED ACTIVE DUTY. IT IS FURTHER STATED THEREIN THAT ALL RESERVE OFFICERS HERE CONSIDERED ARE THOSE WHO HAVE CONSENTED TO BE CALLED TO EXTENDED ACTIVE DUTY AND FOR WHOM A GRADE AND POSITION VACANCY EXISTS TO WHICH THEY ARE TO BE ORDERED TO EXTENDED ACTIVE DUTY IF FOUND PHYSICALLY QUALIFIED. ALSO, IT IS INDICATED THAT THE ORDERS DIRECTING THESE RESERVE OFFICERS TO PROCEED TO DUTY WITHOUT PAY FOR THE PURPOSE OF TAKING AN EXAMINATION TO DETERMINE THEIR PHYSICAL FITNESS WILL STATE THAT SUCH ORDERS ARE INCIDENT TO AND TO BE FOLLOWED BY ACTIVE DUTY ORDERS IF FOUND PHYSICALLY FIT.

SECTION 14 OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED BY SECTION 3 OF THE ACT OF MARCH 25, 1948, 62 STAT. 88, AND SECTION 55 (A) OF THE NATIONAL DEFENSE ACT, AS AMENDED BY SECTION 4 OF SAID ACT OF MARCH 25, 1948, 62 STAT. 89, 90, ARE, IN PERTINENT PART, AS FOLLOWS:

* * * PROVIDED, THAT THEY ( RESERVE OFFICERS) MAY BE GIVEN ADDITIONAL TRAINING OR OTHER DUTY AS PROVIDED BY LAW, WITHOUT PAY, AS MAY BE AUTHORIZED BY THE HEAD OF THE DEPARTMENT CONCERNED, WITH THEIR CONSENT, AND WHEN SUCH AUTHORIZED TRAINING OR OTHER DUTY WITHOUT PAY IS PERFORMED THEY MAY IN THE DISCRETION OF THE HEAD OF THE DEPARTMENT CONCERNED, BE FURNISHED WITH TRANSPORTATION TO AND FROM SUCH DUTY, WITH SUBSISTENCE EN ROUTE, AND, DURING THE PERFORMANCE OF SUCH DUTY, BE FURNISHED WITH SUBSISTENCE AND QUARTERS IN KIND OR COMMUTATION THEREOF AT A RATE TO BE FIXED FROM TIME TO TIME BY THE HEAD OF THE DEPARTMENT CONCERNED.

* * * PROVIDED FURTHER, THAT WHEN AUTHORIZED TRAINING OR OTHER DUTY WITHOUT PAY IS PERFORMED BY MEMBERS OF THE ORGANIZED RESERVE CORPS THEY MAY IN THE DISCRETION OF THE SECRETARY OF THE ARMY BE FURNISHED WITH TRANSPORTATION TO AND FROM SUCH DUTY, WITH SUBSISTENCE EN ROUTE, AND, DURING THE PERFORMANCE OF SUCH DUTY, BE FURNISHED SUBSISTENCE AND QUARTERS IN KIND OR COMMUTATION THEREOF AT A RATE TO BE FIXED FROM TIME TO TIME BY THE HEAD OF THE DEPARTMENT CONCERNED.

AN EXAMINATION OF THE LEGISLATIVE HISTORY OF SAID ACT OF MARCH 25, 1948, FURNISHES LITTLE INFORMATION AS TO THE INTENT AND MEANING OF THE TERM "OTHER DUTY" AS USED IN THE ABOVE-QUOTED PROVISIONS OF LAW. HOWEVER, SINCE THE DUTY WHICH MAY BE GIVEN RESERVE OFFICERS WITHOUT PAY IS NOT LIMITED BY SAID PROVISIONS OF THE STATUTE TO ANY PARTICULAR KIND OF DUTY, BUT TO "OTHER DUTY AS PROVIDED BY LAW," IT WOULD APPEAR TO BE WITHIN THE DISCRETION OF THE HEAD OF THE DEPARTMENT CONCERNED TO ORDER RESERVE OFFICER TO DUTY WITHOUT PAY, WITH THEIR CONSENT, FOR PURPOSES OF TAKING A PHYSICAL EXAMINATION TO DETERMINE THEIR FITNESS FOR EXTENDED ACTIVE DUTY. ACCORDINGLY, YOU ARE ADVISED THAT UPON THE PROMULGATION OF APPROPRIATE REGULATIONS WITH RESPECT THERETO, THIS OFFICE WOULD NOT BE REQUIRED TO OBJECT TO THE USE OF AVAILABLE FUNDS FOR THE FURNISHING TO RESERVE OFFICERS ORDERED TO DUTY, WITHOUT PAY, OF TRANSPORTATION AND SUBSISTENCE TO AND FROM THE PLACE OF PHYSICAL EXAMINATION, AND SUBSISTENCE AND QUARTERS IN KIND, OR A COMMUTATION THEREOF, AT RATES FIXED IN SUCH REGULATIONS, FOR THE PERIOD SUCH PERSONNEL MAY BE PERFORMING DUTY WITHOUT PAY IN CONNECTION WITH DETERMINING THEIR PHYSICAL FITNESS FOR EXTENDED ACTIVE DUTY.

IN CONNECTION WITH THE FOREGOING, ATTENTION IS INVITED TO DECISION OF THIS OFFICE TO THE SECRETARY OF THE NAVY, B-11813, DATED NOVEMBER 25, 1940, WHEREIN IT WAS STATED, AT PAGE 7, AS FOLLOWS:

THE ORDERS ISSUED BY THE SECRETARY OF THE NAVY TO A RESERVE OR A RETIRED OFFICER PLACING HIM ON ACTIVE DUTY--- IF THERE IS ACTUALLY AN ENTRY ON DUTY--- ARE CONTROLLING. DENBY V. BERRY, 263 U.S. 29. THAT WAS THE RULE FOLLOWED IN 19 COMP. GEN. 282. WHERE, IN THE PAST, AN ORDER HAS BEEN ISSUED DIRECTING AN OFFICER OR ENLISTED MAN TO BE EXAMINED FOR ACTIVE DUTY, AND IF FOUND QUALIFIED DIRECTING HIM TO PROCEED TO A PLACE AND REPORT FOR ACTIVE DUTY, SUCH ORDER DOES NOT ENTITLE THE OFFICER OR MAN TO TRAVEL ALLOWANCE OR PAY WHILE TRAVELING TO TAKE THE PHYSICAL EXAMINATION. * * * AS TO THE FUTURE, THE MATTER IS ENTIRELY WITHIN THE CONTROL OF THE SECRETARY OF THE NAVY TO ADOPT THAT FORM OF ORDER WHICH, IF HE SO DESIRES, WILL PLACE THE OFFICER OR MAN ON ACTIVE DUTY AT THE TIME HE COMMENCES THE TRAVEL TO THE PLACE OF PHYSICAL EXAMINATION TO SECURE TO THEM TRAVEL ALLOWANCE AND PAY WHEN TRAVELING TO BE PHYSICALLY EXAMINED FOR ACTIVE DUTY. * * *

THUS, IT WILL BE SEEN THAT THE PAY AND/OR ALLOWANCES, WITHIN STATUTORY LIMITATIONS, TO WHICH RESERVE OFFICERS MAY BE ENTITLED WHILE TRAVELING AND ON DUTY IN CONNECTION WITH TAKING A PHYSICAL EXAMINATION TO DETERMINE THEIR FITNESS FOR EXTENDED ACTIVE DUTY IS GOVERNED, PRIMARILY, BY THE ORDERS DIRECTING THEM TO TAKE THE EXAMINATION, AND THAT THIS OFFICE HAS RECOGNIZED THE MATTER AS BEING, IN THIS RESPECT, WITHIN THE CONTROL OF THE HEAD OF THE DEPARTMENT CONCERNED; THAT IS, IT IS WITHIN HIS DISCRETION TO ADOPT THE FORM OF ORDERS WHICH HE CONSIDERS PROPER IN SUCH CASES. THE PROVISIONS OF THE ACT OF MARCH 25, 1948, SUPRA, AMENDING SECTION 14 OF THE PAY READJUSTMENT ACT OF 1942 AND SECTION 55 (A) OF THE NATIONAL DEFENSE ACT, DO NOT APPEAR TO WARRANT ANY MODIFICATION OF THE CITED DECISION.

WITH RESPECT TO THE QUESTION PRESENTED IN THE THIRD PARAGRAPH OF YOUR LETTER, THE FOLLOWING PROVISIONS ARE CONTAINED IN THE ARMY APPROPRIATION ACT, 1949, 62 STAT. 647, 651, 662:

FINANCE SERVICE, ARMY

TRAVEL OF THE ARMY: FOR TRAVEL ALLOWANCES AND TRAVEL IN KIND, AS AUTHORIZED BY LAW, FOR PERSONS TRAVELING IN CONNECTION WITH THE MILITARY ACTIVITIES OF THE DEPARTMENT OF THE ARMY * * *.

ORGANIZED RESERVES

FOR PAY AND ALLOWANCES, NOT OTHERWISE PROVIDED FOR, OF MEMBERS OF THE OFFICERS' RESERVE CORPS (INCLUDING NURSES) AND RESERVE WARRANT OFFICERS ON DUTY IN ACCORDANCE WITH LAW; MILEAGE ACTUAL AND NECESSARY EXPENSES, OR PER DIEM IN LIEU THEREOF, AT RATES AUTHORIZED BY LAW, AND TRANSPORTATION OF TEMPORARY CHANGE OF STATION BAGGAGE INCURRED BY OFFICERS AND ENLISTED MEN OF THE REGULAR ARMY AND RESERVE OFFICERS AND RESERVE WARRANT OFFICERS TRAVELING ON DUTY IN CONNECTION WITH THE ORGANIZED RESERVES * * *.

SINCE, AS POINTED OUT IN THE ENCLOSURE TO YOUR LETTER, THE TRAVEL AND DUTY INVOLVED IN THESE CASES ARE INCIDENT TO EXTENDED ACTIVE DUTY WITH THE ARMY, RATHER THAN TRAVEL ON DUTY WITH THE ORGANIZED RESERVES, AND CLEARLY IS TRAVEL "IN CONNECTION WITH THE MILITARY ACTIVITIES OF THE DEPARTMENT OF THE ARMY," IT APPEARS THAT THE PAYMENT OF TRAVELING EXPENSES AND THE COMMUTATION OF SUBSISTENCE AND QUARTERS AUTHORIZED BY THE SAID ACT OF MARCH 25, 1948, SUPRA, TO THE PERSONNEL CONCERNED IS PROPERLY CHARGEABLE TO THE APPROPRIATION " TRAVEL OF THE ARMY.'