B-98372, NOV. 17, 1960

B-98372, NOV. 17, 1960

TO MR. ALLAN R. ZENOWITZ:

REFERENCE IS MADE TO YOUR LETTERS DATED MAY 21 AND SEPTEMBER 29, 1960, REQUESTING RECONSIDERATION OF OUR SETTLEMENT DATED MAY 18, 1960, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT OF TRAVEL EXPENSES FOR TRAVEL PERFORMED ON JULY 14 AND 15, 1959, FROM CAMP DRUM, NEW YORK, TO NEW YORK, NEW YORK, INCIDENT TO YOUR TRAINING DUTY WITH THE NEW YORK ARMY NATIONAL GUARD.

UNDER THE PROVISIONS OF TRAINING AUTHORITY NO. 30F DATED MAY 11, 1959, YOU WERE CALLED TO SUMMER TRAINING DURING THE PERIOD JULY 11 TO 25, 1959 WITH THE NEW YORK ARMY NATIONAL GUARD. SPECIAL ORDERS NO. 19 DATED JULY 7, 1959, AUTHORIZED A LEAVE OF ABSENCE FOR YOU FROM THIS TRAINING DURING THE PERIOD JULY 14 TO 25, 1959. YOU RETURNED TO NEW YORK CITY AT YOUR OWN EXPENSE ON JULY 15, 1959, AND NOW CLAIM REIMBURSEMENT FOR SUCH TRAVEL.

SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 253, PROVIDES THAT UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, MEMBERS OF THE UNIFORMED SERVICES SHALL BE ENTITLED TO RECEIVE TRAVEL AND TRANSPORTATION ALLOWANCES FOR TRAVEL PERFORMED OR TO BE PERFORMED UNDER COMPETENT ORDERS UPON RELEASE FROM ACTIVE DUTY FROM LAST DUTY STATION TO HOME OR TO THE PLACE FROM WHICH ORDERED TO ACTIVE DUTY, REGARDLESS OF WHETHER OR NOT SUCH MEMBER PERFORMS THE TRAVEL INVOLVED. THUS, THE ACT PROVIDES THAT TRAVEL ALLOWANCES MAY BE PAID ONLY FOR TRAVEL PERFORMED OR TO BE PERFORMED UNDER COMPETENT ORDERS EXCEPT THAT THE ALLOWANCE OTHERWISE PAYABLE FOR THE DISTANCE FROM LAST DUTY STATION TO HOME, OR THE PLACE FROM WHICH ORDERED TO ACTIVE DUTY, MAY BE PAID WITHOUT THE REQUIREMENT OF TRAVEL. PRIOR STATUTES PROVIDING FOR THE PAYMENT OF A MONETARY ALLOWANCE FOR TRAVEL PERFORMED BY MEMBERS OF THE UNIFORMED SERVICES CONSISTENTLY HAVE BEEN CONSTRUED AS NOT AUTHORIZING REIMBURSEMENT FOR TRAVEL PERFORMED IN A LEAVE STATUS ON THE BASIS THAT THE MEMBER IS ENTITLED TO REIMBURSEMENT AFTER COMPLETION OF SUCH TRAVEL BY REASON OF HIS RELEASE FROM ACTIVE DUTY. 2 COMP. GEN. 625; ELMORE V. UNITED STATES, 61 CT.CL. 173; 19 COMP. GEN. 422. IT FOLLOWS THAT IN THE ABSENCE OF SPECIFIC LEGISLATIVE LANGUAGE EVIDENCING A CONTRARY INTENT, IT MUST BE CONCLUDED THAT THE PROVISIONS CONTAINED IN THE CURRENT STATUTE AUTHORIZING PAYMENT OF TRAVEL ALLOWANCE ON RELEASE FROM ACTIVE DUTY REGARDLESS OF WHETHER OR NOT THE MEMBER PERFORMS THE TRAVEL INVOLVED RELATE ONLY TO PROSPECTIVE TRAVEL.

IN CONNECTION WITH YOUR STATEMENT THAT THE ORDERS GRANTING YOU A LEAVE OF ABSENCE WERE CUT TO EXCUSE YOU FROM ANNUAL FIELD TRAINING, THE ARMY HAS REPORTED THAT YOU WERE IN A LEAVE STATUS AT THE TIME THE TRAVEL WAS PERFORMED. SINCE THERE WAS NO ADMINISTRATIVE INTENTION TO RELEASE YOU FROM MILITARY CONTROL BY THESE ORDERS, THE ORDERS MERELY PROVIDING FOR A LEAVE OF ABSENCE, YOU ARE NOT ENTITLED TO REIMBURSEMENT OF THE TRAVEL EXPENSES CLAIMED.

ACCORDINGLY, THE SETTLEMENT OF MAY 18, 1960, WAS CORRECT AND IS SUSTAINED.