B-36309, DECEMBER 3, 1943, 23 COMP. GEN. 401

B-36309, DECEMBER 3, 1943, 23 COMP. GEN. 401

TRANSPORTATION - MIDSHIPMEN SEPARATED FROM NAVAL ACADEMY THE PRIMARY PURPOSE OF THE PROVISION IN THE NAVAL APPROPRIATION ACT, 1944, AUTHORIZING ,TRANSPORTATION IN KIND AND SUBSISTENCE TO DISCHARGED MIDSHIPMEN" IS TO RETURN TO THEIR HOMES MIDSHIPMEN INVOLUNTARILY SEPARATED FROM THE NAVAL ACADEMY, AND WAS INTENDED TO EXTEND SUCH BENEFITS TO CASES WHERE THE SEPARATION IS INITIATED BY, OR AT THE INSTANCE OF, THE GOVERNMENT, RATHER THAN THE MIDSHIPMAN, EVEN THOUGH REFERRED TO AS A DISMISSAL OR RESIGNATION, BUT NOT TO CASES WHERE THE SEPARATION IS TO BE REGARDED AS AT THE INSTANCE OF THE MIDSHIPMAN, RATHER THAN THE GOVERNMENT. MIDSHIPMEN SEPARATED FROM THE NAVAL ACADEMY BY REASON OF (A) HONORABLE DISCHARGE--- GIVEN TO GRADUATES NOT COMMISSIONED DUE TO LACK OF VACANCIES- -- (B) DISCHARGE UNDER HONORABLE CONDITIONS--- GIVEN MIDSHIPMEN FOUND PHYSICALLY DISQUALIFIED FOR CONTINUANCE AT THE NAVAL ACADEMY--- (C) DISCHARGE FOR " INAPTITUDE" ON GRADUATION, MAY BE FURNISHED TRANSPORTATION AND SUBSISTENCE TO THEIR HOMES, UNDER THE PROVISION IN THE NAVAL APPROPRIATION ACT, 1944, AUTHORIZING THE FURNISHING OF TRANSPORTATION IN KIND AND SUBSISTENCE TO DISCHARGED MIDSHIPMEN. THE RESIGNATION OF A MIDSHIPMAN FROM THE NAVAL ACADEMY FOR DEFICIENCY IN STUDIES, FOLLOWING A RECOMMENDATION BY THE ACADEMIC BOARD, OR A DISMISSAL AS REQUIRED BY LAW, MAY BE REGARDED AS A SEPARATION INITIATED BY AND AT THE INSTANCE OF THE GOVERNMENT RATHER THAN THE MIDSHIPMAN, SO AS TO ENTITLE SUCH MIDSHIPMAN TO SUBSISTENCE AND RETURN TRANSPORTATION TO HIS HOME UNDER THE PROVISION IN THE NAVAL APPROPRIATION ACT, 1944, AUTHORIZING THE FURNISHING OF TRANSPORTATION IN KIND AND SUBSISTENCE TO DISCHARGED MIDSHIPMEN. THE VOLUNTARY RESIGNATION OF A MIDSHIPMAN FROM THE NAVAL ACADEMY MUST BE REGARDED AS A RESIGNATION PREDICATED ON THE REQUEST AND FOR THE CONVENIENCE OF THE MIDSHIPMAN, RATHER THAN AT THE INSTANCE OF THE GOVERNMENT, AND, THEREFORE, SUCH A MIDSHIPMAN MAY NOT BE FURNISHED SUBSISTENCE AND RETURN TRANSPORTATION TO HIS HOME AS AUTHORIZED UNDER THE NAVAL APPROPRIATION ACT OF 1944, FOR ,DISCHARGED MIDSHIPMEN.' A PERSON ILLEGALLY APPOINTED A MIDSHIPMAN AT THE NAVAL ACADEMY WHOSE APPOINTMENT IS SUBSEQUENTLY REVOKED MAY NOT RE REGARDED AS A "DISCHARGED MIDSHIPMAN" WITHIN THE MEANING OF THE NAVAL APPROPRIATION ACT, 1944, AUTHORIZING THE FURNISHING OF TRANSPORTATION IN KIND AND SUBSISTENCE TO DISCHARGED MIDSHIPMEN.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, DECEMBER 3, 1943:

THERE HAS BEEN CONSIDERED YOUR LETTER OF AUGUST 10, 1943, TRANSMITTING A LETTER DATED AUGUST 3, 1943, FROM THE CHIEF OF THE BUREAU OF NAVAL PERSONNEL, AND REQUESTING A DECISION RESPECTING THE FURNISHING OF TRANSPORTATION AND SUBSISTENCE TO MIDSHIPMEN WHO ARE SEPARATED FROM THE UNITED STATES NAVAL ACADEMY. YOUR LETTER SETS FORTH THE QUESTION INVOLVED AS FOLLOWS:

THE NAVAL APPROPRIATION ACT, 1944, APPROVED 26 JUNE 1943 ( PUBLIC LAW 92- -- 78TH CONGRESS), UNDER THE APPROPRIATION " BUREAU OF SUPPLIES AND ACCOUNTS," SUBHEAD " PAY, SUBSISTENCE, AND TRANSPORTATION OF NAVAL PERSONNEL," AUTHORIZES "TRANSPORTATION IN KIND AND SUBSISTENCE TO DISCHARGED MIDSHIPMEN.'

AT THE PRESENT TIME MIDSHIPMEN ARE SEPARATED FROM THE NAVAL ACADEMY IN THE FOLLOWING MANNER:

(A) HONORABLE DISCHARGE.--- GIVEN TO MIDSHIPMEN WHO ARE GRADUATED FROM THE NAVAL ACADEMY, BUT WHO, BECAUSE OF A LACK OF VACANCIES, ARE NOT GIVEN COMMISSIONS.

(B) DISCHARGE UNDER HONORABLE CONDITIONS.--- GIVEN TO MIDSHIPMEN FOUND PHYSICALLY DISQUALIFIED FOR CONTINUANCE AT THE NAVAL ACADEMY.

(C) RESIGNATIONS FOR DEFICIENCIES IN STUDIES.--- GIVEN TO MIDSHIPMEN WHO HAVE BEEN FOUND DEFICIENT IN STUDIES AND RECOMMENDED TO BE DROPPED BY THE ACADEMIC BOARD.

(D) VOLUNTARY RESIGNATION.--- WHERE MIDSHIPMEN FIND THEY ARE NOT SUITED TO THE NAVAL SERVICE AND DESIRE TO LEAVE.

(E) DISMISSAL,--- IN CASES OF MIDSHIPMEN WHOSE DISMISSAL HAS BEEN RECOMMENDED BY THE SUPERINTENDENT OF THE NAVAL ACADEMY AND APPROVED BY THE PRESIDENT OF THE UNITED STATES AS REQUIRED BY LAW.

(F) REVOCATION OF APPOINTMENT.--- WHERE MIDSHIPMAN HAS BEEN ILLEGALLY APPOINTED--- RARELY OCCURS.

(G) DISCHARGE FOR " INAPTITUDE" ON GRADUATION.---THREE OR FOUR CASES EACH YEAR.

YOUR DECISION IS REQUESTED AS TO WHETHER OR NOT THE APPROPRIATION " PAY, SUBSISTENCE, AND TRANSPORTATION" FOR THE CURRENT FISCAL YEAR MAY BE CONSIDERED LEGALLY AVAILABLE FOR PAYMENT OF THE COST OF TRANSPORTATION" FOR THE CURRENT FISCAL YEAR MAY BE CONSIDERED LEGALLY AVAILABLE FOR PAYMENT OF THE COST OF TRANSPORTATION AND SUBSISTENCE IN KIND TO THEIR HOMES OF MIDSHIPMEN WHO ARE SEPARATED FROM THE NAVAL ACADEMY BY OTHER THAN ACTUAL DISCHARGE, UNDER CONDITIONS AS STATED ABOVE.

THERE APPEARS NO ROOM FOR DOUBT THAT THE APPROPRIATION CONCERNED IS AVAILABLE FOR THE FURNISHING OF TRANSPORTATION IN KIND AND SUBSISTENCE TO MIDSHIPMEN SEPARATED FROM THE NAVAL ACADEMY UNDER THE CIRCUMSTANCES OUTLINED IN SUBPARAGRAPHS (A), (B) AND (G) OF YOUR LETTER. ALSO, IT IS CLEAR THAT, SINCE A SEPARATION SUCH AS SET FORTH IN SUBPARAGRAPH (F/--- REVOCATION OF APPOINTMENT--- IS PREDICATED UPON A FINDING THAT THE PERSON INVOLVED WAS NOT A LEGALLY APPOINTED MIDSHIPMAN, PERSONS SO SEPARATED FROM THE NAVAL ACADEMY MAY NOT BE CONSIDERED AS "DISCHARGED MIDSHIPMEN" WITHIN THE MEANING OF THE APPROPRIATION PROVISION INVOLVED.

HOWEVER, THE CASES OF SEPARATION SET FORTH IN SUBPARAGRAPHS (C), (D) AND (E) OF YOUR LETTER--- RESIGNATION FOR DEFICIENCY IN STUDY; VOLUNTARY RESIGNATION; AND DISMISSAL--- REQUIRE A CONSIDERATION OF THE SCOPE OF THE WORD "DISCHARGED" IN ORDER TO DETERMINE WHETHER SUCH SEPARATIONS PROPERLY FALL WITHIN THE PURVIEW OF THE TERM "DISCHARGED MIDSHIPMEN" AS USED IN THE APPROPRIATION ACT.

THE WORD "DISCHARGED," IN ITS GENERALLY ACCEPTED SENSE, IMPLIES ACTION INITIATED BY THE EMPLOYER OR SUPERIOR--- IN THIS CASE THE GOVERNMENT--- WHICH IS MORE OR LESS ADVERSE TO THE EMPLOYEE OR SUBORDINATE. THAT IS TO SAY, TERMINATION OF THE SERVICE IS AT THE INSTANCE OF THE EMPLOYER RATHER THAN OF THE EMPLOYEE. FOR MANY YEARS VARIOUS PROVISIONS OF LAW HAVE PRESCRIBED A TRAVEL ALLOWANCE FOR OFFICERS AND ENLISTED MEN OF THE ARMED FORCES ON THEIR DISCHARGE FROM THE SERVICE AND SUCH LEGISLATION CONSISTENTLY HAS BEEN HELD AS NOT EXTENDING TO CASES WHERE THE SEPARATION IS AT THE REQUEST, AND FOR THE CONVENIENCE, OF THE OFFICER OR ENLISTED MAN, NOTWITHSTANDING THAT IN THE MILITARY SERVICES "DISCHARGE" IS THE WORD APPLIED TO THE TERMINATION OF THE SERVICE OF AN OFFICER OR ENLISTED MAN REGARDLESS OF THE CAUSE OF THE SEPARATION. SWEET V. UNITED STATES, 189 U.S. 471; UNITED STATES V. BARNETT, 189 U.S. 474; 2 COMP. GEN. 612; 5 ID. 265; 20 ID. 562, 563.

THE PRIMARY PURPOSE OF THE APPROPRIATION PROVISION HERE IN QUESTION IS TO RETURN TO THEIR HOMES THOSE MIDSHIPMEN INVOLUNTARILY SEPARATED FROM THE NAVAL ACADEMY; AND, HAVING REGARD FOR THE LONG ESTABLISHED CONSTRUCTION PLACED UPON THE WORD "DISCHARGED" IN CONNECTION WITH SIMILAR LAWS AND REGULATIONS AFFECTING THE MILITARY SERVICES, THE CONCLUSION APPEARS JUSTIFIED THAT SUCH PROVISION WAS INTENDED TO EXTEND TO THOSE CASES WHERE THE SEPARATION OF A MIDSHIPMAN FROM THE NAVAL ACADEMY IS INITIATED BY, OR IS AT THE INSTANCE OF, THE GOVERNMENT, RATHER THAN THE MIDSHIPMAN, EVEN THOUGH SUCH SEPARATION IS REFERRED TO AS A DISMISSAL OR RESIGNATION, BUT NOT TO THOSE CASES WHERE THE SEPARATION IS TO BE REGARDED AS AT THE INSTANCE OF THE MIDSHIPMAN, RATHER THAN THE GOVERNMENT.

APPLYING THE RULE THUS STATED TO THE SITUATIONS DESCRIBED IN SUBPARAGRAPHS (C) AND (D) OF YOUR LETTER, IT APPEARS THAT THE BASIS FOR THE TWO CLASSES OF RESIGNATIONS THERE INVOLVED ARE NOT THE SAME. WHILE IT APPEARS THAT IN EACH INSTANCE THERE IS INVOLVED, IN A SENSE, A PERMISSIVE RESIGNATION, THE SITUATION PRESENTED IN SUBPARAGRAPH (C/--- RESIGNATION FOR DEFICIENCY IN STUDIES, FOLLOWING A RECOMMENDATION BY THE ACADEMIC BOARD THAT THE MIDSHIPMAN BE DROPPED--- IS SUCH THAT THE RESIGNATION PROPERLY MAY BE VIEWED AS A SEPARATION INITIATED BY, AND AT THE INSTANCE OF, THE GOVERNMENT RATHER THAN THE MIDSHIPMAN, WHEREAS UNDER THE CIRCUMSTANCES PRESENTED IN SUBPARAGRAPH (D/--- VOLUNTARY RESIGNATION WHERE MIDSHIPMEN FIND THEY ARE NOT SUITED TO THE NAVAL SERVICE AND DESIRE TO LEAVE--- THE SEPARATION IS PREDICATED ON THE REQUEST, AND IS FOR THE CONVENIENCE OF THE MIDSHIPMAN, RATHER THAN BEING AT THE INSTANCE OF THE GOVERNMENT.

A DISMISSAL, AS SET FORTH IN SUBPARAGRAPH (E), IS CLEARLY A SEPARATION AT THE INSTANCE OF THE GOVERNMENT.

ACCORDINGLY, YOU ARE ADVISED THAT THE APPROPRIATION PROVISION IN QUESTION AUTHORIZES THE FURNISHING OF TRANSPORTATION IN KIND AND SUBSISTENCE TO MIDSHIPMEN SEPARATED FROM THE NAVAL ACADEMY UNDER THE CIRCUMSTANCES STATED IN SUBPARAGRAPHS (A), (B), (C), (E), AND (G) OF YOUR LETTER BUT THAT IT DOES NOT AUTHORIZE THE FURNISHING THEREOF WHERE THE SEPARATION IS UNDER THE CIRCUMSTANCES STATED IN SUBPARAGRAPHS (D) AND (F).