B-94930, MAY 23, 1950, 29 COMP. GEN. 474

B-94930, MAY 23, 1950, 29 COMP. GEN. 474

FURLOUGH TRAVEL ALLOWANCE - TRAVEL ALLOWANCE DEDUCTION REQUIREMENT A MARINE CORPS RESERVE ENLISTED WOMAN WHO WAS DISCHARGED FROM AN ENLISTMENT TERMINATED WITHOUT ACTIVE SERVICE FOR THE PURPOSE OF IMMEDIATE ENLISTMENT IN THE REGULAR MARINE CORPS, AND WHOSE LAST AND ONLY ACTIVE SERVICE RESULTED IN THE PAYMENT OF A TRAVEL ALLOWANCE UNDER SECTION 126 OF THE NATIONAL DEFENSE ACT, IS NOT ENTITLED TO THE FURLOUGH TRAVEL ALLOWANCE PROVIDED BY SECTION 6 OF THE ACT OF OCTOBER 6, 1945, WITHOUT DEDUCTION THEREFROM OF THE AMOUNT OF TRAVEL ALLOWANCE PREVIOUSLY PAID.

ASSISTANT COMPTROLLER GENERAL YATES TO MAJ. G. R. FRANK, U.S. MARINE CORPS, MAY 23, 1950:

THERE HAS BEEN RECEIVED BY ST ENDORSEMENT, FROM THE COMMANDANT OF THE MARINE CORPS, YOUR LETTER OF APRIL 24, 1950, REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO CREDIT THE ACCOUNT OF PRIVATE FIRST CLASS RUTH E. SCHUMAKER, USMC, WITH $50.60 REPRESENTING TRAVEL ALLOWANCE PAID TO HER AT THE TIME OF HER DISCHARGE FROM THE MARINE CORPS RESERVE ON AUGUST 16, 1946, ON THE BASIS OF THE FACTS SHOWN THEREIN.

IT APPEARS THAT PRIVATE SCHUMAKER ENLISTED IN THE MARINE CORPS RESERVE ON APRIL 10, 1945; REPORTED FOR ACTIVE DUTY MAY 9, 1945, AND WAS RELIEVED FROM ACTIVE DUTY AND DISCHARGED ON AUGUST 16, 1946. IT FURTHER APPEARS THAT SHE REENLISTED IN THE MARINE CORPS RESERVE ON MARCH 24, 1947; WAS DISCHARGED MAY 24, 1949; REENLISTED MAY 25, 1949, AND WAS DISCHARGED JULY 7, 1949, TO ENLIST IN THE REGULAR MARINE CORPS; AND THAT SHE SO ENLISTED ON THE FOLLOWING DATE AND IS STILL SERVING IN SUCH ENLISTMENT. SHE PERFORMED NO ACTIVE SERVICE IN THE MARINE CORPS RESERVE UNDER THE ENLISTMENTS ENTERED INTO ON MARCH 24, 1947, AND MAY 25, 1949. IT APPEARS THAT SHE WAS GRANTED REENLISTMENT LEAVE AT WASHINGTON, D.C., ON SEPTEMBER 26, 1949, AND THAT SHE WAS PAID FURLOUGH TRAVEL ALLOWANCE IN THE SUM OF $284, COMPUTED AT THE RATE OF 5 CENTS PER MILE, ON THE DISTANCE FROM WASHINGTON, .C., TO RIVERSIDE, CALIFORNIA, PLACE OF LEAVE, AND RETURN, LESS $50.60 TRAVEL ALLOWANCE PAID AT THE TIME OF HER RELEASE AND DISCHARGE ON AUGUST 16, 1946.

THE ORDER TO ADJUST THE ACCOUNT OF PRIVATE SCHUMAKER WITH THE AMOUNT HERE INVOLVED APPARENTLY IS BASED UPON A DECISION OF THIS OFFICE, DATED JULY 1, 1949, 29 COMP. GEN. 6, AND YOU EXPRESS A DOUBT AS TO WHETHER THAT DECISION AUTHORIZES SUCH ACTION IN THE PRESENT CASE. THE FACTS IN THAT CASE SHOW THAT THE ENLISTED MAN WAS DISCHARGED FROM THE SERVICE ON DECEMBER 6, 1945, FOLLOWING WARTIME ACTIVE DUTY IN THE MARINE CORPS RESERVE; THAT HE REENLISTED IN THE MARINE CORPS RESERVE ON SEPTEMBER 19, 1946, FOR FOUR YEARS, AND SERVED ON CONTINUOUS ACTIVE DUTY UNTIL AUGUST 16, 1948, WHEN HE WAS DISCHARGED FOR THE PURPOSE OF IMMEDIATE ENLISTMENT IN THE REGULAR MARINE CORPS, AND THAT HE SO ENLISTED THE FOLLOWING DAY. IT WAS HELD THAT SINCE NO TRAVEL ALLOWANCE WAS PAID INCIDENT TO THE DISCHARGE WHICH IMMEDIATELY PRECEDED HIS ENLISTMENT IN THE REGULAR MARINE CORPS, THE AMOUNT OF THE TRAVEL ALLOWANCE PAID AT THE TIME OF HIS DISCHARGE IN 1945, WAS IMPROPERLY DEDUCTED FROM THE FURLOUGH TRAVEL ALLOWANCE TO WHICH HE WAS ENTITLED UNDER THE ACT OF OCTOBER 6, 1945.

SECTION 6 OF THE SAID ACT OF OCTOBER 6, 1945, 59 STAT. 539, PROVIDES THAT:

EVERY PERSON DISCHARGED OR RELEASED FROM THE MILITARY OR NAVAL FORCES ON OR AFTER JUNE 1, 1945, WHO ENLISTS OR REENLISTS IN THE REGULAR MILITARY OR NAVAL ESTABLISHMENT (IRRESPECTIVE OF THE SERVICE FROM WHICH DISCHARGED OR RELEASED), AND WHO IS GRANTED A REENLISTMENT FURLOUGH OR LEAVE, SHALL BE PAID * * * A FURLOUGH TRAVEL ALLOWANCE * * *. NO MONETARY ALLOWANCE SHALL BE PAID UNDER THIS SECTION IF TRAVEL ALLOWANCE AT LEAST AS GREAT HAS BEEN PAID UNDER SECTION 126 OF THE NATIONAL DEFENSE ACT UPON THE DISCHARGE OR RELEASE IMMEDIATELY PRECEDING THE ENLISTMENT OR REENLISTMENT, AND IF TRAVEL ALLOWANCE IN A LESSER AMOUNT HAS BEEN SO PAID UNDER SECTION 126 OF THE NATIONAL DEFENSE ACT, THE MONETARY ALLOWANCE PROVIDED FOR IN THIS SECTION SHALL BE REDUCED BY THAT SO PAID UNDER SUCH SECTION 126. * * *

PARAGRAPH 10 OF MARINE CORPS GENERAL ORDER NO. 23, DATED MAY 6, 1949, TITLED "REENLISTMENT VE," PROVIDES AS FOLLOWS:

A. FORMER ACTIVE MEMBERS OF THE MARINE CORPS AND MARINE CORPS RESERVE, OFFICERS AND ENLISTED, WHO REENLIST IN THE REGULAR MARINE CORPS, MAY BE GRANTED REENLISTMENT LEAVE. REENLISTMENT LEAVE MAY BE GRANTED ONLY ONCE DURING AN ENLISTMENT PERIOD.

WHILE THE BENEFITS PROVIDED BY THE SAID SECTION 6 OF THE ACT OF OCTOBER 6, 1945, ARE OFFERED AS AN INDUCEMENT FOR ENLISTMENT OR REENLISTMENT IN THE REGULAR MILITARY OR NAVAL ESTABLISHMENT OF PERSONS WHO WERE DISCHARGED OR RELEASED FROM THE MILITARY OR NAVAL FORCES, IT DOES NOT FOLLOW THAT THE STATUTE CONTEMPLATED THE PAYMENT OF SUCH BENEFITS, WITHOUT DIMINUTION OF TRAVEL ALLOWANCE PREVIOUSLY PAID, IN CASES WHERE THE ENLISTMENT IN THE REGULAR SERVICE FOLLOWS TWO ENLISTMENTS IN THE RESERVE, DURING ALL OF WHICH TIME THE ENLISTED PERSON WAS IN AN INACTIVE STATUS. SUCH INDUCEMENT PRIMARILY WAS DIRECTED TO PERSONS WHO, AS A RESULT OF CONTINUOUS ACTIVE MILITARY SERVICE, WERE UNABLE TO OBTAIN LEAVE OR FURLOUGH FROM THEIR POSTS OR STATIONS TO VISIT THEIR RELATIVES, ETC., AND THE "RELEASE" OR "DISCHARGE" REFERRED TO IN THE FIRST PART OF THE SECTION OBVIOUSLY HAS REFERENCE TO A DISCHARGE OR RELEASE FROM ACTIVE MILITARY OR NAVAL SERVICE. AS A MATTER OF FACT, THE STATUTE REASONABLY WAS SUSCEPTIBLE TO AN ADMINISTRATIVE INTERPRETATION THAT REENLISTMENT FURLOUGH TRAVEL ALLOWANCE SHOULD NOT BE PAYABLE FOLLOWING A COMPLETE ENLISTMENT COMPRISED WHOLLY OF INACTIVE SERVICE, ON THE BASIS THAT THE NAVAL RESERVE ACT OF 1938, AS AMENDED, 34 U.S.C. 853B, PERMITS INACTIVE NAVAL AND MARINE CORPS RESERVISTS TO ACCEPT EMPLOYMENT IN ANY CIVIL BRANCH OF THE PUBLIC SERVICE AND TO PRACTICE THEIR CIVILIAN PROFESSION OR OCCUPATION. IN SUCH A STATUS THEY NECESSARILY WOULD BE UNDER NO IMPEDIMENT OR RESTRICTION TO VISIT WHOMEVER THEY DESIRED, AND AT WHATEVER PLACES, WITHOUT THE INHIBITION WHICH MIGHT ATTACH TO SERVICE PERSONNEL ON EXTENDED ACTIVE DUTY.

WHILE PARAGRAPH 10A OF MARINE CORPS GENERAL ORDER NO. 23, SUPRA, APPEARS TO HAVE INTERPRETED THE EFFECT OF SECTION 6, SUPRA, OTHERWISE WITH RESPECT TO GRANTING FURLOUGH, THE SEPARATION OF THIS WOMAN FROM THE MARINE CORPS RESERVE WHILE IN AN INACTIVE STATUS DOES NOT CONSTITUTE A DISCHARGE OR RELEASE WITHIN CONTEMPLATION OF SECTION 126 OF THE NATIONAL DEFENSE ACT, AS AMENDED. NO TRAVEL ALLOWANCE IS PAYABLE UNDER THE SAID SECTION 126 UPON DISCHARGE FROM AN ENLISTMENT IN THE MARINE CORPS RESERVE WHICH HAS BEEN TERMINATED WITHOUT ACTIVE SERVICE; HENCE, TO GIVE SECTION 6 OF THE ACT OF OCTOBER 6, 1945, SOME EFFECT IN A CASE OF THIS NATURE, THE DISCHARGE OR RELEASE IS THAT WHICH TERMINATED HER ACTIVE SERVICE, AND INASMUCH AS THE LAST, AND ONLY, ACTIVE SERVICE OF THIS WOMAN RESULTED IN THE PAYMENT OF TRAVEL ALLOWANCE UNDER SECTION 126 OF THE NATIONAL DEFENSE ACT, AS AMENDED, SUCH PAYMENT PROPERLY WAS DEDUCTED FROM THE REENLISTMENT FURLOUGH TRAVEL ALLOWANCE.

ACCORDINGLY, YOU ARE NOT AUTHORIZED TO CREDIT THE ACCOUNT OF THE ENLISTED WOMAN WITH THE AMOUNT OF $50.60 AND THE ORDER TO ADJUST ACCOUNT, TRANSMITTED WITH YOUR LETTER, WILL BE RETAINED IN THIS OFFICE. THE ORIGINAL LEAVE AUTHORIZATION OF SEPTEMBER 26, 1949, AS AMENDED, IS RETURNED HEREWITH, AS REQUESTED.