10 Findings of Fact than his release from active duty as an enlisted man, that the right to travel allowance accrued. Army and Navy → 13 (9) Same; opinion of Comptroller General not followed.-The opinion of the Comptroller General, 24 Comp. Gen. 641, 644, holding that enlisted men temporarily appointed officers are not entitled to the mileage allowance of 8 cents per mile for travel performed in connection with orders relieving them from active duty and at the same time terminating their appointments, is not in accord with the purpose and intention of the applicable statutes, and is not followed. The Reporter's statement of the case: Mr. Fred W. Shields for the plaintiff. King & King were on the brief. Mr. Wilson Myers, with whom was Mr. Assistant Attorney General Holmes Baldridge, for the defendant. Mr. Paris T. Houston was on the brief. Plaintiff, an enlisted man in the Navy with the permanent rating of Chief Electrician Mate, received a temporary appointment as an officer during World War II. Plaintiff was given terminal leave as such officer. Upon the expiration of this leave on August 3, 1947, plaintiff reverted to his permanent enlisted rating, was relieved from active duty, and was placed in the Fleet Reserve. Plaintiff sues to recover the difference between the mileage at eight cents per mile payable to officers upon relief from active duty and the travel allowance of five cents per mile paid to him as an enlisted man from his last duty station, San Francisco, California, to his home in Norfolk, Virginia. The court having made the foregoing introductory statement, entered findings of fact as follows, upon a stipulation by the parties: 1. On June 1, 1947, while plaintiff was serving aboard the U. S. S. Estes in the Navy Yard, Bremerton, Washington, as a commissioned officer of the United States Navy with the temporary rank of lieutenant, he received orders issued by Findings of Fact 123 C. Cls. the Secretary of the Navy on February 7, 1947, which orders provided in part as follows: From: To: Via: The Secretary of the Navy. Lt. John C. Day, USN, (CEM) (341-5356), USS Estes (AGC-12), FPO, San Francisco, California. Commanding Officer. Termination of temporary appointment; Transfer to Fleet Reserve and relieved of all active duty. References: (a) Joint ltr. 45-998, Navy Dept. Bulletin, 15 Aug. 1945. (b) Art. H-9603, BuPers Manual 1942. 1. When directed by your commanding officer, and when relieved, you will regard yourself detached from duty at your present station and from such other duty as may have been assigned to you. You will proceed to a port in the United States, and upon arrival proceed immediately and report to the activity listed below for temporary duty: Commanding Officer, Naval Receiving Station, Naval Station, Treasure Island, San Francisco, California. 2. Upon reporting to this command, you will report for a physical examination in accordance with reference (a) and for the purpose of classification, as directed by the commanding officer of the above command; you will also report to such Civil Readjustment Officer as directed for an interview. 3. Upon the completion of temporary duty outlined above, your commanding officer will grant you terminal leave in the amount to which entitled, as shown by your "Officer's Leave Record." Upon termination of the leave granted, the President terminates your appointment as a Lieutenant for temporary service, and at your own request you are transferred immediately to the Fleet Reserve, Class F-4-D. Concurrent with the termination of your temporary appointment and transfer to the Fleet Reserve, you will regard yourself relieved of all active duty in the U. S. Navy. 4. Upon the expiration of leave granted in these orders you will not be required to return to the command designated in paragraph 1 for the purpose of transfer to the Fleet Reserve. 5. The commanding officer of the command designated in paragraph 1 is hereby directed to effect your transfer 10 Findings of Fact to the Fleet Reserve in accordance with the instructions contained in enclosure 1, concurrent with termination of your temporary appointment. Upon effecting your transfer to the Fleet Reserve, the commanding officer shall comply with instructions contained in reference (b). As required by law, the Chief of Naval Personnel has determined that your release from active naval service is considered to be under honorable conditions, and you are entitled to a certificate of satisfactory service. * 8. In accordance with reference (c) the travel allowance to which you are entitled is that computed at the rate of five cents per mile from your last duty station to the place of acceptance for last enlistment, or your home, as indicated in your current service record, which also shows your home of record. This allowance will be paid to you on public voucher (Standard Form 1034) on date of transfer to the Fleet Reserve. 9. Upon your release from active duty your temporary status will terminate. Under recent legislation you are eligible to be advanced to the highest grade in which, as determined by the Secretary of the Navy, you served satisfactorily under a temporary appointment. Upon being placed upon the retired list you will become entitled to all the benefits of such rank provided by the legislation. Until such time you are authorized to assume the title and wear the uniform of a Lieutenant, U. S. Navy, when appropriate in accordance with Naval Uniform Regulations. For the President: /s/ JOHN L. SULLIVAN, Acting Secretary of the Navy. 2. Pursuant to said orders plaintiff was detached from duty aboard the U. S. S. Estes, on June 1, 1947, proceeding to San Francisco, California, reporting to the Receiving Station, Separation Center, Treasure Island, San Francisco, California, on June 2, 1947, where he remained until June 4, 1947, at which time he was granted 60 days' terminal leave, upon the expiration of which at midnight of August 3, 1947, his temporary appointment as lieutenant was to be terminated and he was to be transferred to the Fleet Reserve, Class F-4-D in his permanent rating of Chief Electrician's Mate and released to inactive duty. Findings of Fact 123 C. Cls. 3. On June 4, 1947, plaintiff left San Francisco, California, for his home in Norfolk, Virginia, which travel was performed at his own expense. Thereafter, on August 7, 1947, he received a travel allowance at the rate of five cents per mile from San Francisco, California, to Norfolk, Virginia, in the sum of $160.85. 4. Plaintiff was paid five cents a mile for his travel pursuant to an order by the Secretary of the Navy dated September 27, 1946, Sec. Nav. ltr. Pers-8110 CSM: cfr, L 20–5, issued in connection with the amendment of 34 U. S. C., Sec. 895, by the Act of August 2, 1946, 60 Stat. 853, 856. The order provided in material part as follows: From: The Secretary of The Navy. To: All Ships and Stations. Subj: Payment of travel allowance to enlisted personnel. Ref: (a) Section 21, Public Law 604, 79th Congress, approved 2 August 1946. 3. The places between which travel allowance is payable ARE AT THE ELECTION OF THE ENLISTED PERSON CONCERNED, as follows: * (h) REGULAR TRANSFERRED TO FLEET RESERVE OR TO RETIRED LIST AND IMMEDIATELY RELEASED FROM ACTIVE DUTY-from place of transfer and release to (1) place of acceptance for enlistment or (2) home in U. S. or one of its possessions he may select as future residence; * * 4. As used in paragraph 3 the term "Fleet Reserve" applies to that class of personnel transferred to the Fleet Naval Reserve or Fleet Marine Corps Reserve with credit for at least 15 years' active service. The term "place of transfer" means the last duty station where the enlisted person was actually or constructively on duty. 5. If plaintiff is entitled to the difference in the travel allowance paid to him at the rate of five cents per mile and "mileage" at the rate of eight cents per mile for the travel performed from San Francisco, California, to Norfolk, Virginia, there is due him the sum of $96.51. 10 Opinion of the Court The court decided that the plaintiff was entitled to recover. LITTLETON, Judge, delivered the opinion of the court: Plaintiff sues to recover the difference in the travel allowance paid to him by the Navy at the rate of five cents per mile as an enlisted man and mileage at the rate of eight cents per mile payable to officers for the travel performed from San Francisco, California, to Norfolk, Virginia, in connection with the termination of his temporary appointment as an officer, his transfer to the Fleet Reserve, and his relief from active duty. During World War II plaintiff, an enlisted man with the permanent rating of Chief Electrician Mate, had received a temporary appointment as an officer in the Navy pursuant to the provisions of Sec. 2 of the Act of July 24, 1941, 55 Stat. 603, 34 U. S. C. § 350 (a). On June 1, 1947, while serving aboard the U. S. S. Estes in the Navy Yard at Bremerton, Washington, plaintiff received orders issued by the Secretary of the Navy on February 7, 1947, notifying him of the pending termination of his temporary appointment.1 These orders, entitled "Termination of temporary appointment; Transfer to Fleet Reserve and relieved of all active duty," detached plaintiff from duty at his present station and directed him to report to the Naval Receiving Station, San Francisco, California, for temporary duty. The orders then provided as follows: 3. Upon the completion of temporary duty outlined above, your commanding officer will grant you terminal leave in the amount to which entitled, as shown by your 1 The Act of July 24, 1941, supra, as amended, 34 U. S. C. § 3501 (a) provides as follows: "Personnel appointed or advanced under the authority of sections 350-350j of this title may be continued in their temporary status during such period as the President may determine, but not longer than six months after the termination of war or national emergency or, in the case of reserve and retired personnel, not longer than the period specified in this section or the date of release from active duty whichever is the earlier and in no case longer than six months after the termination of war or national emergency. Upon the termination of their temporary status such personnel on the active list of the Regular Navy and Marine Corps shall assume their permanent status and those of the retired list and of the respective Reserve components, including the Fleet Reserve and Fleet Marine Corps Reserve, shall have, when returned to an inactive status, the highest grade and rank in which, as determined by the Secretary of the Navy, they served satisfactorily under a temporary appointment, unless entitled to the same or higher grade and rank pursuant to section 350g of this title." |