B-148188, JAN. 22, 1965

B-148188, JAN. 22, 1965

TO LIEUTENANT COLONEL ERVEN E. BOETTNER, USAR:

REFERENCE IS MADE TO YOUR LETTER DATED NOVEMBER 9, 1964, REQUESTING RECONSIDERATION OF OUR DECISIONS, B-148188, DATED JULY 2, 1964, AND SEPTEMBER 11, 1964, WHEREIN IT WAS DETERMINED THAT THE AMOUNT OF $36.85 WAS DUE YOU ON CERTAIN ITEMS OF PAY AND ALLOWANCES, AND TO YOUR LETTER DATED OCTOBER 22, 1964, ADDRESSED TO THE FINANCE CENTER, UNITED STATES ARMY, INDIANAPOLIS, INDIANA, ENCLOSING CHECK NO. 5460138, DATED JULY 23, 1964, FOR $36.85, WHICH YOU REFUSE TO ACCEPT IN PAYMENT OF YOUR CLAIM.

IT APPEARS UNNECESSARY TO DISCUSS ALL THE MATTERS MENTIONED IN YOUR LETTER SINCE, FOR THE MOST PART, YOUR ARGUMENTS ARE BASED ON YOUR BELIEF THAT THE STATUS OF A RESERVE OFFICER ORDERED TO ACTIVE DUTY FOR TRAINING FOR A SHORT PERIOD OF TIME IS THE SAME AS THAT OF AN OFFICER ON EXTENDED ACTIVE DUTY WHO IS ORDERED TO PROCEED FROM HIS PERMANENT STATION TO ANOTHER PLACE FOR THE PERFORMANCE OF TEMPORARY DUTY UPON THE COMPLETION OF WHICH HE IS TO RETURN TO HIS POST OF DUTY. WHILE THERE ARE POINTS OF SIMILARITY IN THE TWO SITUATIONS, THEY ARE NOT THE SAME. A RESERVE OFFICER HAS NEVER BEEN REGARDED AS BEING ON TEMPORARY DUTY AWAY FROM HIS DESIGNATED POST OF DUTY (PERMANENT STATION) WHEN HE HAS BEEN ORDERED TO ACTIVE DUTY FOR TRAINING AND IS DIRECTED TO REPORT AT A PARTICULAR PLACE FOR THE PERFORMANCE OF SUCH DUTY. THAT PLACE HAS BEEN VIEWED AS HIS DESIGNATED POST OF DUTY NO MATTER HOW SHORT A PERIOD OF ACTIVE DUTY FOR TRAINING HEWAS DIRECTED TO PERFORM. IN SUCH CIRCUMSTANCES, UNLESS HE IS PLACED IN A "PARACHUTE DUTY" STATUS WHILE ON ACTIVE DUTY FOR TRAINING WITHIN THE MEANING OF THAT TERM AS DEFINED IN PARAGRAPH 2-2, AR 37-104, AND, IN ADDITION, REGULATIONS SIMILAR TO THOSE CONTAINED IN EXECUTIVE ORDER NO. 10681, OCTOBER 23, 1956, RELATING TO FLYING PAY--- SEE 37 COMP. GEN. 121, 122--- CLEARLY PROVIDE THAT JUMPS PERFORMED DURING INACTIVE TRAINING DUTY MAY BE USED TO QUALIFY FOR SUCH PAY WHILE ON ACTIVE DUTY FOR TRAINING, THERE IS NO BASIS FOR THE PAYMENT OF PARACHUTE PAY DURING ACTIVE DUTY FOR TRAINING ON THE BASIS OF JUMPS PERFORMED WHILE ON INACTIVE DUTY FOR TRAINING. NEITHER PARAGRAPH 20-47C/4), AR 37-104, NOR ANY OTHER REGULATIONS WHICH HAVE BEEN FOUND, SO PROVIDE. IN ANY EVENT, THE MATTER IS SUFFICIENTLY DOUBTFUL TO BRING YOUR CLAIM WITHIN THE PURVIEW OF THE LONGWILL (17 CT.CL. 288 (1881) ( AND CHARLES (19 CT.CL. 316 (1884) ( CASES IN WHICH THE COURT OF CLAIMS EXPRESSED THE VIEW THAT THE ACCOUNTING OFFICERS OF THE GOVERNMENT SHOULD NOT ALLOW DOUBTFUL CLAIMS, THUS LEAVING THE CLAIMANT TO HIS REMEDY IN THE COURTS.

CONCERNING YOUR COMMENT THAT IT IS RATHER UNUSUAL FOR THIS OFFICE "TO BE SPECULATING AS TO WHAT THE SECRETARY OF THE ARMY MEANT " BY THE REGULATIONS WHICH YOU CITE, YOU ARE ADVISED THAT IN THE DISCHARGE OF OUR RESPONSIBILITIES UNDER 31 U.S.C. 71 TO SETTLE AND ADJUST ALL CLAIMS AGAINST THE UNITED STATES, WE MUST INTERPRET THE PROVISIONS OF ALL LAWS AND REGULATIONS WHICH ARE APPLICABLE IN EACH INDIVIDUAL CASE. SUCH INTERPRETATIONS ARE FINAL AND CONCLUSIVE ON ALL OFFICERS IN THE EXECUTIVE BRANCH OF THE GOVERNMENT AND NO MONEY PROPERLY MAY BE PAID TO YOU OR TO ANY OTHER CLAIMANT BY A DISBURSING OFFICER CONTRARY TO OUR DECISIONS. U.S.C. 74. WHILE YOU DISAGREE WITH THE CONCLUSIONS REACHED IN YOUR CASE, WE HAVE CAREFULLY AND IN CONSIDERABLE DETAIL CONSIDERED ALL THE MATTERS YOU HAVE BROUGHT TO OUR ATTENTION. IN THE CIRCUMSTANCES, IT IS BELIEVED THAT NO ..END :