B-15095, JUNE 4, 1941, 20 COMP. GEN. 856

B-15095, JUNE 4, 1941, 20 COMP. GEN. 856

MILEAGE AND SUBSISTENCE - ARMY MANEUVERS AN OFFICER ORDERED TO THE SCENE OF ARMY MANEUVERS FOR TEMPORARY DUTY INVOLVING THE MAKING OF OBSERVATIONS IS PARTICIPATING IN THE MANEUVERS SO FAR AS TRAVEL ALLOWANCE IS CONCERNED AND MAY NOT BE PAID MILEAGE FOR MOVEMENTS FROM PLACE TO PLACE, WHILE ON SUCH DUTY, REQUIRED IN THE PERFORMANCE OF HIS ASSIGNED DUTIES, NOR MAY HE BE PAID PER DIEM IN LIEU OF SUBSISTENCE EXCEPT WHILE TRAVELING BETWEEN HIS REGULAR POST OF DUTY AND THE TEMPORARY POST FROM WHICH HIS MOVEMENTS IN OBSERVING THE MANEUVERS BEGAN AND ENDED.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO CAPT. A. J. REGNIER, U.S. ARMY, JUNE 4, 1941:

THERE HAS BEEN CONSIDERED YOUR REQUEST OF FEBRUARY 7, 1941, FOR DECISION WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON TWO VOUCHERS TRANSMITTED THEREWITH IN FAVOR OF LT. COL. FENTON G. EPLING, COAST ARTILLERY CORPS, COVERING MILEAGE AND PER DIEM CLAIMED TO BE DUE IN CONNECTION WITH TRAVEL PERFORMED BY HIM DURING THE PERIOD MAY 6 TO 13, 1940.

BY SPECIAL ORDERS NO. 8, DATED MAY 4, 1940, HEADQUARTERS AIR DEFENSE COMMAND, MITCHEL FIELD, Y., THE OFFICER WAS INSTRUCTED AS FOLLOWS:

1. PURSUANT TO AUTHORITY CONTAINED IN RADIOGRAM FROM THE ADJUTANT GENERAL TO THE COMMANDING GENERAL, FIRST ARMY, DATED MAY 3, 1940, AND ST ENDORSEMENT, HQ., FIRST ARMY TO THE COMMANDING GENERAL, AIR DEFENSE COMMAND, DATED APRIL 27, 1940, FILE 120./17

* * * * * * * MAJOR FENTON G. EPLING, COAST ARTILLERY CORPS,

* * * WILL PROCEED BY AIR IN GOVERNMENT AIRCRAFT, ON OR ABOUT MAY 6, 1940, FROM MITCHEL FIELD, HEMPSTEAD, NEW YORK, TO MAXWELL FIELD, MONTGOMERY, ALABAMA, THENCE TO SUCH OTHER PLACES IN THE AREA OF MANEUVER OF UNITS PARTICIPATING IN THE THIRD ARMY EXERCISES AS MAY BE DIRECTED BY THE COMMANDING GENERAL, AIR DEFENSE COMMAND, FOR THE PURPOSE OF OBSERVING, IN CONNECTION WITH THE TRAINING OF THE AIR DEFENSE COMMAND, THE FIELD EXERCISES BEING CONDUCTED IN GEORGIA, ALABAMA, LOUISIANA, AND TEXAS. UPON COMPLETION OF THIS TEMPORARY DUTY AT SUCH PLACES AS MAY BE VISITED, THE PERSONNEL ENUMERATED ABOVE WILL RETURN BY AIR IN GOVERNMENT AIRCRAFT TO THEIR PROPER STATION AT MITCHEL FIELD, HEMPSTEAD, NEW YORK.

THE NATURE OF THE TEMPORARY DUTY BEING SUCH AS MAY REQUIRE REMAINING AT ONE PLACE MORE THAN SEVENTY-TWO HOURS, A DELAY OF NOT TO EXCEED FIVE DAYS AT EACH SELECTED STOPPING PLACE IS AUTHORIZED, PROVIDING THE TOTAL ELAPSED TIME FROM DEPARTURE FROM MITCHEL FIELD TO RETURN THERETO DOES NOT EXCEED FIFTEEN DAYS.

THE TRAVEL DIRECTED IS NECESSARY IN THE PUBLIC SERVICE.

IN LIEU OF SUBSISTENCE, A PER DIEM ALLOWANCE OF SIX DOLLARS ($6.00) IS AUTHORIZED FOR A CONTINUOUS JOURNEY BY AIR. FD 1445 P 177-0620 A 10410-0 FOR OFFICERS, AND FD 1445 P 190-0623 A 10410-0 FOR ENLISTED MEN.

IT IS REPORTED THAT PURSUANT TO THESE ORDERS THE OFFICER DEPARTED FROM MITCHEL FIELD, N.Y., BY GOVERNMENT AIRPLANE AT 8:10 A.M. ON MAY 6, 1940, AND ARRIVED AT MAXWELL FIELD, ALA., AT 2:30 P.M. THE SAME DAY. ON MAY 9, 1940, THE OFFICER RECEIVED VERBAL ORDERS (NOW CONFIRMED AND MADE OF RECORD IN PARAGRAPH 1, SPECIAL ORDERS NO. 48, DATED SEPTEMBER 27, 1940, HEADQUARTERS AIR DEFENSE COMMAND, MITCHEL FIELD, N.Y.) FROM THE AIR DEFENSE COMMANDER AS FOLLOWS:

* * * MAJOR FENTON G. EPLING, C.A.C., NOW ON TEMPORARY DUTY AT MAXWELL FIELD, ALABAMA, IN COMPLIANCE WITH PARAGRAPH 1, SPECIAL ORDERS NO. 8, THIS HEADQUARTERS, DATED MAY 4, 1940, WILL PROCEED ON MAY 9, 1940, TO DRY PRONG, LOUISIANA, THENCE TO CAMP BEAUREGARD, LOUISIANA, BY GOVERNMENT AUTOMOBILE FOR THE PURPOSE OF OBSERVING AIRCRAFT AND ANTIAIRCRAFT OPERATIONS. UPON ARRIVAL THEREAT, HE WILL RETURN TO HIS PROPER STATION AT MITCHEL FIELD, NEW YORK, BY GOVERNMENT AIRPLANE, IN COMPLIANCE WITH PARAGRAPH 1, SPECIAL ORDERS NO. 8, THIS HEADQUARTERS, DATED MAY 4, 1940. THE TRAVEL DIRECTED IS NECESSARY IN THE MILITARY SERVICE. FD 1445 P 177- 0620 A 10410-0.

THE RECORD DISCLOSES FURTHER THAT THE OFFICER DEPARTED FROM MAXWELL FIELD ON MAY 9, 1940, BY GOVERNMENT AUTOMOBILE; ARRIVED AT AND DEPARTED FROM DRY PRONG, LA., ON MAY 11, AND ARRIVED AT CAMP BEAUREGARD, LA., AT 9 P.M., MAY 11. AT 9:20 A.M. ON MAY 12, THE OFFICER LEFT CAMP BEAUREGARD BY GOVERNMENT AIRPLANE, SPENT THE NIGHT AT MAXWELL FIELD AND ARRIVED AT MITCHEL FIELD AT 2:20 P.M. ON MAY 13. THE OFFICER IS CLAIMING PER DIEM IN LIEU OF SUBSISTENCE FOR THE PERIODS 8:10 A.M., MAY 6, 1940, TO 1:30 P.M., MAY 9, 1940, AND 9:20 A.M., MAY 12, 1940, TO 2:20 P.M., MAY 13, 1940, AND IS CLAIMING MILEAGE FOR THE TRAVEL FROM MAXWELL FIELD TO DRY PRONG AND THENCE TO CAMP BEAUREGARD.

SECTION 12 OF THE ACT OF JUNE 10, 1922, 42 STAT. 631, AS AMENDED BY THE ACT OF JUNE 1, 1926, 44 STAT. 680, AND SECTION 1 OF THE ACT OF MARCH 2, 1931, 46 STAT. 1461, PROVIDES:

THAT OFFICERS OF ANY OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT, WHEN TRAVELING UNDER COMPETENT ORDERS WITHOUT TROOPS, SHALL RECEIVE A MILEAGE ALLOWANCE AT THE RATE OF 8 CENTS PER MILE, DISTANCE TO BE COMPUTED BY THE SHORTEST USUALLY TRAVELED ROUTE AND EXISTING LAWS PROVIDING FOR THE ISSUE OF TRANSPORTATION REQUESTS TO OFFICERS OF THE ARMY TRAVELING UNDER COMPETENT ORDERS, AND FOR DEDUCTION TO BE MADE FROM MILEAGE ACCOUNTS WHEN TRANSPORTATION IS FURNISHED BY THE UNITED STATES, ARE HEREBY MADE APPLICABLE TO ALL THE SERVICES MENTIONED IN THE TITLE OF THIS ACT, * * * UNLESS OTHERWISE EXPRESSLY PROVIDED BY LAW, NO OFFICER OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT SHALL BE ALLOWED OR PAID ON DUTY AWAY FROM HIS DESIGNATED POST OF DUTY,NOR ANY SUM FOR SUCH EXPENSES ACTUALLY INCURRED IN EXCESS OF $7 PER DAY. THE HEADS OF THE EXECUTIVE DEPARTMENTS CONCERNED ARE AUTHORIZED TO PRESCRIBE PER DIEM RATES OF ALLOWANCE NOT EXCEEDING $6, IN LIEU OF SUBSISTENCE TO OFFICERS TRAVELING ON OFFICIAL BUSINESS AND AWAY FROM THEIR DESIGNATED POSTS OF DUTY. PROVIDED, THAT FOR TRAVEL BY AIR UNDER COMPETENT ORDERS ON DUTY WITHOUT TROOPS, UNDER REGULATIONS TO BE PRESCRIBED RESPECTIVELY BY THE HEADS OF THE DEPARTMENTS CONCERNED, MEMBERS (INCLUDING OFFICERS, WARRANT OFFICERS, CONTRACT SURGEONS, ENLISTED MEN, FLYING CADETS, AND MEMBERS OF THE NURSE CORPS) OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT, * * * SHALL, IN LIEU OF MILEAGE OR OTHER TRAVEL ALLOWANCES, BE ALLOWED AND PAID THEIR ACTUAL AND NECESSARY TRAVELING EXPENSES NOT TO EXCEED $8 PER DAY, OR, IN LIEU THEREOF, PER DIEM ALLOWANCES AT RATES NOT TO EXCEED $6 PER DAY.

THE ACT OF JUNE 12, 1906, 34 STAT. 246, AUTHORIZED THE SECRETARY OF WAR TO DETERMINE WHAT SHALL CONSTITUTE TRAVEL WITHOUT TROOPS WITHIN THE MEANING OF THE LAWS GOVERNING THE PAYMENT OF MILEAGE TO OFFICERS OF THE ARMY. SEE ARMY REGULATIONS 34-4820, PARAGRAPH 3. HOWEVER, ALL THE ACTS CITED REFER TO "TRAVEL" AND FOR AN OFFICER TO BE ENTITLED TO THE AMOUNTS AUTHORIZED BY SUCH ACTS HE MUST HAVE PERFORMED "TRAVEL" UNDER COMPETENT ORDERS. THE ORDERS ISSUED TO THE OFFICER HERE INVOLVED REQUIRED HIM TO TRAVEL FROM MITCHEL FIELD TO MAXWELL FIELD BUT UPON ARRIVAL AT THE LATTER STATION HE WAS TO PROCEED--- TO SUCH OTHER PLACES IN THE AREA OF MANEUVER OF UNITS PARTICIPATING IN THE THIRD ARMY EXERCISES AS MAY BE DIRECTED BY THE COMMANDING GENERAL, AIR DEFENSE COMMAND, FOR THE PURPOSE OF OBSERVING, IN CONNECTION WITH THE TRAINING OF THE AIR DEFENSE COMMAND, THE FIELD EXERCISES BEING CONDUCTED IN GEORGIA, ALABAMA, LOUISIANA, AND TEXAS.

AS TO THE NATURE OF THE OFFICER'S DUTIES THE CHIEF OF THE AIR CORPS IS REPORTED TO HAVE MADE THE FOLLOWING STATEMENT:

SINCE ATTACHED PAPERS SHOW THAT THE COMMANDING GENERAL, AIR DEFENSE COMMAND, AND MEMBERS OF HIS STAFF WERE NOT ORDERED TO REPORT AND DID NOT REPORT TO THE COMMANDING GENERAL OF THE THIRD ARMY MANEUVERS OR ANY OFFICER OF HIS COMMAND FOR DUTY, NOR DID THEY PARTICIPATE IN OR WERE THEY CONNECTED IN ANY WAY WITH THE THIRD ARMY MANEUVERS, IT IS THE OPINION OF THIS OFFICE THAT THE DECISION OF THE ASSISTANT COMPTROLLER GENERAL DATED MAY 18, 1940 (B 9617) IS WITHOUT APPLICATION IN THIS MATTER.

THE THIRD ARMY MANEUVERS TOOK PLACE DURING THE PERIOD MAY 5 TO 25, 1940. IT IS REPORTED IN THE ARMY AND NAVY REGISTER DATED JUNE 1, 1940, PAGE 1, THAT THE MANEUVERS INVOLVED SOME 70,000 REGULAR ARMY TROOPS IN THE LARGEST PEACETIME CONCENTRATION FOR INTENSIVE FIELD TRAINING. AS TO THE PURPOSE OF SUCH MANEUVERS LIEUTENANT GENERAL S. D. EMBICK STATED:

THE MANEUVERS WERE CONDUCTED FOR THE PURPOSE OF OBTAINING EMPIRICAL DATA INDICATIVE OF THE POWERS AND LIMITATIONS OF THE NEW TYPE CORPS. * * *

I WOULD STRESS THE FACT THAT OUR MANEUVERS WERE INTENDED TO BE OF THE NATURE OF A SCIENTIFIC TEST * * *.

IN CONNECTION WITH THE SAME SUBJECT MAJ. GEN. H. J. BREES, CHIEF CONTROL OFFICER OF THE MANEUVERS, SAID:

* * * THESE MANEUVERS WERE DESIGNED AS A TEST OF A NEW ORGANIZATION AND NEW MATERIAL, NOT AS A TEST OF COMMANDERS. WHAT LESSONS WE HAVE LEARNED OR WHAT DATA WE HAVE GATHERED WILL BE DISCUSSED BY EVERY SCHOOL AND BY EVERY OFFICER FOR SOME TIME TO COME.

SEE ARMY AND NAVY REGISTER DATED JUNE 1, 1940.

IN A-75945, DATED JULY 11, 1936, IT IS STATED:

* * * ORDERS TO FLYING OFFICERS TO PARTICIPATE IN WARLIKE OPERATIONS, WHETHER ACTUAL OR SIMULATED, ARE NOT ORDERS TO TRAVEL. OF COURSE, THERE MAY BE TRAVEL IN CONNECTION WITH ACTUAL OR SIMULATED OPERATIONS, BUT ORDERS TO OFFICERS, WHETHER ORAL OR WRITTEN, TO TAKE POSITION AND FUNCTION IN THEIR CAPACITY AS ARMY OR NAVY OFFICERS IN CONNECTION WITH OPERATIONS ARE NOT ORDERS TO TRAVEL, ALTHOUGH THE ORDERS MAY REQUIRE MOVEMENT; THE ORDERS ARE FOR PERFORMANCE OF THE DUTY FOR WHICH THE OFFICER IS COMMISSIONED AND THE OFFICER IS NOT IN A TRAVEL STATUS WHEN SO FUNCTIONING. * * *

COLONEL EPLING, IN HIS CAPACITY AS AN OFFICER, WAS ORDERED TO THE AREA OF THE ARMY MANEUVERS TO MAKE SUCH OBSERVATIONS AS WERE DIRECTED. HE WAS PLACED UNDER THE COMMANDING GENERAL, AIR DEFENSE COMMAND, FOR TEMPORARY DUTY AT MAXWELL FIELD AND WHILE HE WAS PERFORMING SUCH DUTY HE WAS NOT IN A TRAVEL STATUS. HIS TRAVEL STATUS ENDED AT 2:30 P.M., MAY 6, 1940, WHEN HE ARRIVED AT MAXWELL FIELD AND DID NOT COMMENCE AGAIN UNTIL 8:30 A.M., MAY 13, 1940, WHEN HE DEPARTED FROM MAXWELL FIELD EN ROUTE TO HIS STATION AT MITCHEL FIELD. WHILE IT IS NOT SHOWN THAT HE REPORTED TO THE COMMANDING GENERAL OF THE THIRD ARMY MANEUVERS NOR THAT HE PARTICIPATED IN THE MANEUVERS AS A THEORETICAL COMBATANT, HIS DUTIES WERE OBVIOUSLY PERFORMED WITH THE CONSENT AND SANCTION OF THE COMMANDING GENERAL OF THE MANEUVERS AND WERE WITHIN THE PURPOSE FOR WHICH THE MANEUVERS WERE HELD. WHETHER AN OFFICER IS A MEMBER OF ONE OF THE FORCES PARTICIPATING IN THE SIMULATED WARLIKE ACTIVITIES OR IS PRESENT AT THE MANEUVERS, OFFICIALLY, FOR THE PURPOSES OF OBSERVING THE ACTIVITIES WITH A VIEW TO UTILIZING THE INFORMATION GAINED FROM OBSERVING THE MANEUVERS FOR USE IN DEVISING OPERATING PLANS FOR TACTICAL OR BATTLE UNITS, HE IS PARTICIPATING IN THE MANEUVERS--- SIMULATED WARFARE--- AND IS NOT IN A TRAVEL STATUS WHILE PERFORMING THAT DUTY--- AN APPROPRIATE DUTY TO BE PERFORMED BY AN OFFICER OF THE ARMY UNDER HIS COMMISSION AS SUCH. THAT IS, WHETHER HE FUNCTIONS AS A MEMBER OF ONE OF THE FORCES TAKING PART IN THE MANEUVERS OR IS OBSERVING THE MANEUVERS FOR THE PURPOSE OF DRAWING CONCLUSIONS FROM THE ACTIVITIES (ONE OF THE PURPOSES OF THE MANEUVERS) HE IS PARTICIPATING IN THE MANEUVERS SO FAR AS TRAVEL ALLOWANCE IS CONCERNED.

WHILE THE OFFICER WAS ENGAGED IN THE PERFORMANCE OF HIS TEMPORARY DUTIES HE WAS REQUIRED TO MOVE FROM PLACE TO PLACE BUT DURING SUCH PERIOD HE WAS NOT PERFORMING "TRAVEL UNDER COMPETENT ORDERS.' HE WAS MERELY PERFORMING HIS DUTIES AS AN OFFICER. IT HAS BEEN REPEATEDLY HELD THAT MERE MOVEMENT IN THE PERFORMANCE OF ASSIGNED DUTIES DOES NOT CONSTITUTE TRAVEL FOR THE PURPOSE OF THE MILEAGE LAWS. SEE A-75945, DATED JULY 11, 1936, AND CASES THEREIN CITED.

THE PRINCIPLE APPLICABLE TO THIS CASE IS NOT MATERIALLY DIFFERENT FROM THE PRINCIPLE EXPRESSED IN B-9617, DATED MAY 18, 1940, CITED BY THE CHIEF OF THE AIR CORPS IN HIS STATEMENT QUOTED ABOVE. THE OFFICER IS ENTITLED TO PER DIEM IN LIEU OF SUBSISTENCE AS FIXED IN HIS ORDERS DURING TRAVEL FROM MITCHEL FIELD TO MAXWELL FIELD AND RETURN BUT IS NOT ENTITLED TO PER DIEM IN LIEU OF SUBSISTENCE OR MILEAGE FOR ANY PERIOD WHILE TEMPORARY DUTY WAS PERFORMED AFTER HIS ARRIVAL AT MAXWELL FIELD AND BEFORE HIS DEPARTURE THEREFROM EN ROUTE TO MITCHEL FIELD. ACCORDINGLY, YOU ARE NOT AUTHORIZED TO MAKE PAYMENT ON STANDARD FORM 1071 COVERING MILEAGE WHICH IS RETAINED IN THIS OFFICE. STANDARD FORM 1012 IS RETURNED HEREWITH AND WHEN ADJUSTED TO COVER THE PERIOD INDICATED ABOVE, PAYMENT THEREON IS AUTHORIZED.