B-8513, AUGUST 8, 1940, 20 COMP. GEN. 71

B-8513, AUGUST 8, 1940, 20 COMP. GEN. 71

TRANSPORTATION - DEPENDENTS AND BAGGAGE - ARMY RESERVE OFFICERS ORDERED TO ACTIVE DUTY AN ARMY RESERVE OFFICER ORDERED TO ACTIVE DUTY WITH THE CIVILIAN CONSERVATION CORPS IS NOT ENTITLED TO A GREATER BAGGAGE ALLOWANCE THAN THAT AUTHORIZED IN HIS ORDERS UNDER REGULATIONS PRESCRIBED BY THE SECRETARY OF WAR EVEN THOUGH THE ALLOWANCE SO AUTHORIZED IS LESS THAN THAT WHICH COULD HAVE BEEN AUTHORIZED UNDER THE APPLICABLE APPROPRIATIONS. REIMBURSEMENT FOR TRANSPORTATION OF AN ARMY RESERVE OFFICER'S DEPENDENTS FROM HIS HOME TO HIS FIRST DUTY STATION UNDER ACTIVE DUTY ORDERS, IS NOT AUTHORIZED.

ACTING COMPTROLLER GENERAL ELLIOTT TO CAPT. ROBERT M. GRAY, UNITED STATES ARMY, AUGUST 8, 1940:

THERE HAS BEEN CONSIDERED YOUR LETTER OF JUNE 26, 1940, REQUESTING REVIEW OF SETTLEMENT DATED JUNE 17, 1940. IN SAID SETTLEMENT THERE WAS ALLOWED $4.14, COST OF SHIPPING TEMPORARY CHANGE OF STATION BAGGAGE ALLOWANCE FROM YOUR HOME, CHARLOTTE, N.C., TO WASHINGTON, D.C., ON YOUR ORDER TO ACTIVE DUTY IN THE OFFICERS' RESERVE CORPS FOR SERVICES IN CONNECTION WITH THE CIVILIAN CONSERVATION CORPS IN THE OFFICE OF THE JUDGE ADVOCATE GENERAL OF THE ARMY AT WASHINGTON, D.C., BUT THERE WAS DISALLOWED (1) YOUR CLAIM FOR THE COST OF SHIPPING THE ACTUAL WEIGHT OF THE BAGGAGE NOT EXCEEDING THE WEIGHT OF THE PERMANENT CHANGE OF STATION ALLOWANCE OF A CAPTAIN OF THE ARMY AND (2) YOUR CLAIM FOR THE COST OF COMMERCIAL TRANSPORTATION OF YOUR WIFE FROM CHARLOTTE, N.C., TO WASHINGTON, D.C. YOU ENCLOSED WITH YOUR REQUEST FOR REVIEW THE CHECK FOR $4.14 ISSUED ON THE SETTLEMENT OF JUNE 17, 1940, AND CITE SEVERAL STATUTES AND OPINIONS OF THE JUDGE ADVOCATE GENERAL OF THE ARMY WHICH YOU APPARENTLY REGARD AS APPOSITE.

THE ORDER UNDER WHICH YOU ENTERED ON ACTIVE DUTY, PARAGRAPH 6 OF WAR DEPARTMENT SPECIAL ORDER NO. 113, DATED WASHINGTON, MAY 14, 1938, IS AS FOLLOWS:

BY DIRECTION OF THE PRESIDENT, CAPTAIN ROBERT MCDONALD GRAY (O 359225), JUDGE ADVOCATE GENERAL'S DEPARTMENT RESERVE, IS, WITH HIS CONSENT, ORDERED TO ACTIVE DUTY, EFFECTIVE 16 MAY 1938. ON THAT DATE HE WILL PROCEED WITHOUT DELAY FROM CHARLOTTE, NORTH CAROLINA, TO WASHINGTON, D.C., REPORTING IN PERSON UPON ARRIVAL TO THE JUDGE ADVOCATE GENERAL FOR DUTY IN CONNECTION WITH CIVILIAN CONSERVATION CORPS ACTIVITIES. CAPTAIN GRAY WILL RANK FROM 16 MAY 1938. HE WILL BE RELIEVED FROM DUTY IN TIME TO ENABLE HIM TO ARRIVE AT HIS HOME ON 15 NOVEMBER 1938, ON WHICH DATE HE WILL REVERT TO INACTIVE STATUS. CP 8011 P2-0121 A 10100-8 AND 9. THE TRAVEL DIRECTED IS NECESSARY IN THE MILITARY SERVICE. BAGGAGE ALLOWANCE IS LIMITED TO TEMPORARY CHANGE OF STATION ALLOWANCE PRESCRIBED IN PARAGRAPH 3, AR 30-960. CP 8099 P2 0620-0284-1378-0700 A 10100-8 AND 9.

THE PERIOD FOR WHICH YOU WERE ORDERED TO ACTIVE DUTY WAS EXTENDED BY PARAGRAPH 7 OF WAR DEPARTMENT SPECIAL ORDER NO. 253, OCTOBER 28, 1938, TO EXPIRE MAY 15, 1939, AS FOLLOWS:

BY DIRECTION OF THE PRESIDENT, CAPTAIN ROBERT MCDONALD GRAY (O 359225), JUDGE ADVOCATE GENERAL'S DEPARTMENT RESERVE, NOW ON DUTY IN THE OFFICE OF THE JUDGE ADVOCATE GENERAL, WASHINGTON, D.C., IS CONTINUED ON ACTIVE DUTY UNTIL 15 MAY 1939. HE WILL BE RELIEVED FROM DUTY IN TIME TO ENABLE HIM TO ARRIVE AT HIS HOME, CHARLOTTE, NORTH CAROLINA, ON 15 MAY 1939, ON WHICH DATE HE WILL REVERT TO INACTIVE STATUS. CP 8011 P2-0121 A 10100-9. THE TRAVEL DIRECTED IS NECESSARY IN THE MILITARY SERVICE. BAGGAGE ALLOWANCE IS LIMITED TO TEMPORARY CHANGE IN STATION ALLOWANCE PRESCRIBED IN PARAGRAPH 3, A.R. 30-960 CP 8099 P1-0607, P2-0620 A 10100-9 AND CP 8102 P2 -0700 A 10100-9.

THE BASIS FOR YOUR CLAIM IS THE PROVISION CONTAINED UNDER " ORGANIZED RESERVES" IN THE ANNUAL APPROPRIATION ACT FOR THE MILITARY ESTABLISHMENT OF THE WAR DEPARTMENT FOR THE FISCAL YEAR 1938 (IN EFFECT WHEN YOU WERE ORDERED TO ACTIVE DUTY), ACT OF JULY 1, 1937, 50 STAT. 464, WHICH APPROPRIATED FUNDS TO BE AVAILABLE, AMONG OTHER PURPOSES,"* * * FOR TRANSPORTATION OF BAGGAGE, INCLUDING PACKING AND CRATING, OF RESERVE OFFICERS ORDERED TO ACTIVE DUTY FOR NOT LESS THAN SIX MONTHS; * * *"

THE ANNUAL APPROPRIATION ACT FOR THE MILITARY ESTABLISHMENT, ACT OF JUNE 11, 1938, FOR THE FISCAL YEAR 1939, AND THEREFORE EFFECTIVE JULY 1, 1938, UNLESS OTHERWISE STATED, 52 STAT. 642, 662, ET SEQ., WHICH APPARENTLY YOU THINK IS APPLICABLE TO YOUR CASE, APPROPRIATED FUNDS UNDER " ORGANIZED RESERVES"---

* * * FOR TRAVEL IN KIND, OR REIMBURSEMENT IN LIEU THEREOF, AS NOW AUTHORIZED BY LAW FOR OFFICERS OF THE REGULAR ARMY, OF DEPENDENTS OF RESERVE OFFICERS WHO HAVE BEEN ORDERED TO ACTIVE DUTY FOR PERIODS IN EXCESS OF FIFTEEN DAYS; * * * FOR THE ACTUAL AND NECESSARY EXPENSES, OR PER DIEM IN LIEU THEREOF, AT RATES AUTHORIZED BY LAW, INCURRED BY OFFICERS AND ENLISTED MEN OF THE REGULAR ARMY AND RESERVE OFFICERS ORDERED TO ACTIVE DUTY FOR PERIODS IN EXCESS OF FIFTEEN DAYS TRAVELING ON DUTY IN CONNECTION WITH THE ORGANIZED RESERVES, AND FOR TRAVEL OF DEPENDENTS, AND PACKING AND TRANSPORTATION OF BAGGAGE OF SUCH PERSONNEL; * * * FOR TRANSPORTATION OF BAGGAGE, INCLUDING PACKING AND CRATING, OF RESERVE OFFICERS ORDERED TO ACTIVE DUTY FOR NOT LESS THAN SIX MONTHS; * * *

SECTION 6 OF THE ACT OF JUNE 28, 1937, ESTABLISHING THE CIVILIAN CONSERVATION CORPS, 50 STAT. 320, PROVIDES:

THE PRESIDENT MAY ORDER RESERVE OFFICERS OF THE ARMY AND OFFICERS OF THE NAVAL AND MARINE RESERVES AND WARRANT OFFICERS OF THE COAST GUARD TO ACTIVE DUTY WITH THE CORPS UNDER THE PROVISIONS OF SECTION 37A OF THE NATIONAL DEFENSE ACT AND THE ACT OF FEBRUARY 28, 1925, RESPECTIVELY.

THE APPROPRIATION FOR THE CIVILIAN CONSERVATION CORPS FOR THE FISCAL YEAR 1938, JOINT RESOLUTION OF JULY 1, 1937, 50 STAT. 470, WAS, SO FAR AS HERE MATERIAL, FOR ALL AUTHORIZED AND NECESSARY EXPENSES TO CARRY INTO EFFECT THE PROVISIONS OF THE ACT OF JUNE 28, 1937, AND THE APPROPRIATION FOR THAT ACTIVITY FOR THE FISCAL YEAR 1939, ACT OF MAY 23, 1938, 52 STAT. 414, AS SUPPLEMENTED BY THE JOINT RESOLUTION OF APRIL 25, 1938, 52 STAT. 222, WAS IN THE SAME FORM. SECTION 37A OF THE NATIONAL DEFENSE ACT, ADDED BY SECTION 32 OF THE ACT OF JUNE 4, 1920, 41 STAT. 776, PROVIDES:

TO THE EXTENT PROVIDED FOR FROM TIME TO TIME BY APPROPRIATIONS FOR THIS SPECIFIC PURPOSE, THE PRESIDENT MAY ORDER RESERVE OFFICERS TO ACTIVE DUTY AT ANY TIME AND FOR ANY PERIOD; BUT EXCEPT IN TIME OF A NATIONAL EMERGENCY EXPRESSLY DECLARED BY CONGRESS, NO RESERVE OFFICER SHALL BE EMPLOYED ON ACTIVE DUTY FOR MORE THAN FIFTEEN DAYS IN ANY CALENDAR YEAR WITHOUT HIS OWN CONSENT. 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.

WHILE NOT HERE MATERIAL, IT IS APPROPRIATE TO REMARK THAT THE PROVISION FOR THE SAME PAY AND ALLOWANCES AS OFFICERS OF THE SAME GRADE AND LENGTH OF SERVICE OF THE REGULAR ARMY IS IN SOME RESPECTS AFFECTED BY SECTIONS 3 AND 14 OF THE JOINT PAY ACT OF JUNE 10, 1922, 42 STAT. 625, ET. SEQ.

FIRST, THERE WILL BE CONSIDERED YOUR CLAIM FOR TRANSPORTATION OF BAGGAGE. TRANSPORTATION OF BAGGAGE IS NOT AN ALLOWANCE PRESCRIBED BY PERMANENT LAW FOR OFFICERS OF THE ARMY. THE ANNUAL APPROPRIATION ACTS FOR THE MILITARY ESTABLISHMENT HAVE PROVIDED FUNDS (QUOTING FROM THE APPROPRIATION ACT FOR THE FISCAL YEAR 1938 HERE IN QUESTION UNDER " QUARTERMASTER CORPS," " ARMY TRANSPORTATION," 50 STAT. 451) " FOR TRANSPORTATION OF * * * AUTHORIZED BAGGAGE, INCLUDING PACKING AND CRATING * * *.' IN THE SAME APPROPRIATION ACT UNDER " ORGANIZED RESERVES" THERE IS CONTAINED THE PROVISO QUOTED ABOVE FOR TRANSPORTATION OF BAGGAGE INCLUDING PACKING AND CRATING FOR RESERVE OFFICERS ORDERED TO ACTIVE DUTY FOR NOT LESS THAN 6 MONTHS. NEITHER OF THESE STATUTES PROVIDES THAT OFFICERS SHALL HAVE ANY RIGHT TO TRANSPORTATION OF BAGGAGE OF A SPECIFIC WEIGHT AND UNDER PARTICULAR SITUATIONS. THE STATUTORY PROVISIONS ARE MERELY AN AUTHORITY TO THE SECRETARY OF WAR TO USE THE AMOUNT APPROPRIATED FOR THAT PURPOSE AND SUBJECT TO HIS REGULATIONS. SECTIONS 216 AND 228, REVISED STATUTES, 5 U.S.C. 190 AND 215. THE SECRETARY OF WAR HAS PRESCRIBED IN PARAGRAPH 3 OF AR 30-960, JUNE 12, 1931, THE SHIPMENT OF AUTHORIZED BAGGAGE ON TEMPORARY CHANGE OF STATION OF A WEIGHT NOT TO EXCEED 300 POUNDS FOR A CAPTAIN AND, BY PARAGRAPH 10 OF THE SAME REGULATIONS, HAS PRESCRIBED A WEIGHT NOT TO EXCEED 8,500 POUNDS FOR SHIPMENT OF AUTHORIZED BAGGAGE ON PERMANENT CHANGE OF STATION OF A CAPTAIN. THE SAME PROVISIONS ARE CONTAINED IN THE SAME NUMBERED REGULATIONS PROMULGATED MAY 24, 1938. NOWHERE IN THE REGULATIONS IS TEMPORARY OR PERMANENT CHANGE OF STATION DESCRIBED. PARAGRAPH 7 (B) OF THE CIVILIAN CONSERVATION CORPS REGULATIONS PROMULGATED DECEMBER 1, 1937, CONTEMPLATE THAT REGULAR ARMY OFFICERS WILL NOT BE ASSIGNED TO EXTENDED PERIODS OF DUTY WITH THE CIVILIAN CONSERVATION CORPS; THAT IS, THAT THEIR PERMANENT STATIONS SHALL NOT BE CHANGED ON ACCOUNT OF SUCH DUTY, WITH CERTAIN EXCEPTIONS THEREIN DESCRIBED. PARAGRAPH 71 (D) OF THE SAME REGULATIONS PROVIDES:

THE AUTHORIZED BAGGAGE ALLOWANCE FOR RESERVE OFFICERS * * * ORDERED TO ACTIVE DUTY WITH THE CIVILIAN CONSERVATION CORPS WILL BE LIMITED TO THE TEMPORARY CHANGE OF STATION ALLOWANCES PRESCRIBED IN PARAGRAPH 3, AR 30- 960, EXCEPT THAT THE PERMANENT CHANGE OF STATION ALLOWANCES PRESCRIBED IN PARAGRAPH 10, AR 30-960, MAY BE AUTHORIZED BY THE SECRETARY OF WAR IN INDIVIDUAL CASES OF RESERVE OFFICERS ON PERMANENT CHANGE OF STATION. THIS REGULATION WAS AMENDED BY CHANGES NO. 7, CIVILIAN CONSERVATION CORPS REGULATIONS JUNE 7, 1938, BY ADDING AT THE END THEREOF THE FOLLOWING:

NO BAGGAGE IN EXCESS OF THE PRESCRIBED ALLOWANCE WILL BE SHIPPED, AND NO SERVICE INVOLVING EXCESS COST OF SHIPPING THE AUTHORIZED ALLOWANCE WILL BE FURNISHED BY THE WAR DEPARTMENT FOR SUCH PERSONS IN CONNECTION WITH THEIR RELIEF FROM ACTIVE DUTY. THESE WERE COMPETENT REGULATIONS, AS THE SECRETARY OF WAR WAS ENTITLED TO TAKE NOTICE OF THE FACT THAT DUTY WITH THE CIVILIAN CONSERVATION CORPS WAS OF LIMITED DURATION AND THAT THE TEMPORARY CHANGE OF STATION BAGGAGE ALLOWANCE WAS ADEQUATE FOR THE SERVICES CONTEMPLATED BY THE ORDERING OF RESERVE OFFICERS TO ACTIVE DUTY WITH THE CIVILIAN CONSERVATION CORPS. HE WAS NOT REQUIRED TO PROVIDE FOR THE PERMANENT CHANGE OF STATION BAGGAGE ALLOWANCE FOR RESERVE OFFICERS ORDERED TO ACTIVE DUTY FOR PERIODS NOT LESS THAN 6 MONTHS. THAT WAS THE LIMIT FIXED BY THE STATUTE BUT THE SECRETARY OF WAR, IN TOUCH WITH, AND PRESUMED TO HAVE EXPERT AND DETAILED KNOWLEDGE OF, THE DUTIES TO BE PERFORMED, WAS NOT COMPELLED TO FIX THE RIGHT TO SHIP AS THE PERMANENT CHANGE OF STATION BAGGAGE ALLOWANCE FOR RESERVE OFFICERS ORDERED TO ACTIVE DUTY WITH THE CIVILIAN CONSERVATION CORPS FOR THE MINIMUM PERIOD PRESCRIBED IN THE STATUTE. THE MATTER BEING ENTIRELY WITHIN HIS DISCRETION AND YOUR ORDERS HAVING SPECIFICALLY PROVIDED FOR YOUR RIGHTS IN THIS RESPECT, THERE IS NO AUTHORITY IN THE STATUTE TO GIVE MORE THAN THE SECRETARY OF WAR HAS PRESCRIBED.

SECOND, AS TO YOUR CLAIM FOR COMMERCIAL COST OF TRANSPORTATION FOR YOUR WIFE, SECTION 12 OF THE ACT OF MAY 18, 1920, 41 STAT. 604, PROVIDES:

THAT HEREAFTER WHEN ANY COMMISSIONED OFFICER * * * HAVING A WIFE OR DEPENDENT CHILD OR CHILDREN IS ORDERED TO MAKE A PERMANENT CHANGE OF STATION, THE UNITED STATES SHALL FURNISH TRANSPORTATION IN KIND FROM FUNDS APPROPRIATED FOR THE TRANSPORTATION OF THE ARMY, * * * TO HIS NEW STATION FOR THE WIFE AND DEPENDENT CHILD OR CHILDREN: * * * THIS WAS SUPPLEMENTED BY A PROVISION IN SECTION 12 OF THE JOINT PAY ACT OF JUNE 10, 1922, 42 STAT. 631, TO THE EFFECT THAT, IN LIEU OF TRANSPORTATION IN KIND AUTHORIZED TO BE FURNISHED BY THE FOREGOING STATUTE, THE PRESIDENT MIGHT AUTHORIZE THE PAYMENT IN MONEY OF AMOUNTS EQUAL TO SUCH COMMERCIAL TRANSPORTATION COSTS WHEN SUCH TRAVEL SHALL HAVE BEEN COMPLETED. IN THE REENACTMENT OF SECTION 12 OF THE JOINT PAY ACT, BY THE ACT OF JUNE 1, 1926, 44 STAT. 680, THE LAST STATED LANGUAGE IS REPEATED WITHOUT CHANGE.

IN 27, COMP. DEC. 391, DECISION DATED OCTOBER 25, 1920, THE COMPTROLLER OF THE TREASURY HELD THAT THE HOME OF A RETIRED OFFICER OF THE ARMY WAS NOT A MILITARY STATION AND THAT THE STATUTE DID NOT AUTHORIZE PAYMENT OF TRANSPORTATION FOR HIS DEPENDENTS FROM HIS HOME TO A PLACE OF DUTY WHEN ORDERED TO ACTIVE DUTY, CITING UNITED STATES V. PHISTERER, 94 U.S. 219, HOLDING THAT THE HOME OF AN OFFICER OF THE ARMY IS NOT A MILITARY STATION. THE COMPTROLLER OF THE TREASURY THERETOFORE HAD HELD, 27 COMP. DEC. 61, THAT AN OFFICER UPON RETIREMENT FROM THE ARMY WAS NOT ENTITLED TO TRANSPORTATION OF HIS DEPENDENTS FROM HIS LAST PERMANENT STATION TO HIS HOME. THE EFFECT OF THIS LATTER DECISION HAS BEEN MODIFIED BY SECTION 3 OF THE NAVAL APPROPRIATION ACT OF JUNE 24, 1935, FOR THE FISCAL YEAR 1936, 49 STAT. 421, TO PROVIDE THAT THE WORDS "PERMANENT CHANGE OF STATION" AS USED IN SECTION 12 OF THE ACT APPROVED MAY 18, 1920, 41 STAT. 604, SHALL BE HELD TO INCLUDE THE HOME OF AN OFFICER OR MAN TO WHICH HE IS ORDERED IN CONNECTION WITH RETIREMENT. THAT PROVISION DOES NOT AFFECT THE DECISION IN 27 COMP. DEC. 391, WHICH IS IN FULL FORCE AND EFFECT AND HAS BEEN CARRIED INTO THE ARMY REGULATIONS IN PARAGRAPH 7A (1) OF AR 30-920, THE FOLLOWING LANGUAGE HAVING BEEN ADDED BY CHANGES NO. 2, JULY 31, 1939:

* * * TRANSPORTATION IN KIND AS NOW AUTHORIZED BY LAW FOR OFFICERS OF THE REGULAR ARMY MAY BE FURNISHED DEPENDENTS OF RESERVE OFFICERS WHO HAVE BEEN ORDERED TO ACTIVE DUTY FOR PERIODS IN EXCESS OF FIFTEEN DAYS IF PROVISION THEREFOR HAS BEEN MADE IN THE CURRENT APPROPRIATION ACT; BUT TRANSPORTATION IN KIND IS NOT AUTHORIZED FOR DEPENDENTS OF RESERVE OFFICERS FOR TRAVEL FROM HOME TO FIRST STATION OF RESERVE OFFICERS OR FROM THEIR LAST STATION TO HOME UPON RELIEF FROM ACTIVE DUTY. YOUR WIFE TRAVELED FROM YOUR HOME, CHARLOTTE, N.C., TO WASHINGTON, D.C. YOUR HOME IN CHARLOTTE, N.C., WAS NOT A MILITARY STATION. YOU WERE NOT, THEREFORE, ORDERED TO MAKE A PERMANENT CHANGE OF STATION WHEN ORDERED TO ACTIVE DUTY AND, THEREFORE, TRANSPORTATION OF YOUR DEPENDENTS WAS NOT AUTHORIZED UNDER THE CITED LAWS. THIS HAS BEEN THE UNIFORM CONSTRUCTION OF THE ACT IN QUESTION FOR 20 YEARS; KNOWN TO THE CONGRESS AND ACQUIESCED IN BY IT EXCEPT WITH RESPECT TO TRAVEL TO THE HOME OF AN OFFICER OR MAN IN CONNECTION WITH HIS RETIREMENT. THE SETTLEMENT OF JUNE 17, 1940, WAS PROPER AND IS SUSTAINED. THE CHECK FOR $4.14 IS RETURNED HEREWITH.