B-152931, JAN. 24, 1964

B-152931, JAN. 24, 1964

TO MR. RAYMOND S. CARLSTEN:

REFERENCE IS MADE TO YOUR LETTER DATED NOVEMBER 8, 1963, REQUESTING RECONSIDERATION OF THE SETTLEMENT DATED AUGUST 20, 1963, WHICH DISALLOWED YOUR CLAIM FOR DISLOCATION ALLOWANCE INCIDENT TO YOUR PERMANENT CHANGE OF STATION ORDERS DATED JULY 6, 1961.

THE RECORD SHOWS THAT THE CHIEF OF NAVAL AIR RESERVE TRAINING COMMAND, U.S. NAVAL AIR STATION, GLENVIEW, ILLINOIS, ISSUED PERSONNEL ORDER NO. 96- 61, DATED JUNE 26, 1961, TO THE COMMANDING OFFICER, NAVAL AIR STATION, NEW YORK, NEW YORK, AUTHORIZING YOUR TRANSFER IN JULY OR AUGUST 1961 TO THE NAVAL AIR STATION, MINNEAPOLIS. IN PARAGRAPH 5 OF THE ORDER IT IS STATED THAT THE TRANSFER COMES UNDER THAT PORTION OF CNARESTRA INSTRUCTION 1001.12F, DATED JANUARY 28, 1960, WHICH PERTAINS TO TRANSFER TO AN AREA OF CHOICE FOR TRANSFER TO FLEET RESERVE, AND THAT PRIOR TO ACCEPTANCE OF THIS TYPE OF ORDERS A PAGE 13 SERVICE RECORD ENTRY WILL BE PREPARED AND SIGNED BY THE INDIVIDUAL CONCERNED AS REQUIRED BY THAT INSTRUCTION. PURSUANT TO THIS AUTHORITY, STANDARD TRANSFER ORDERS DATED JULY 6, 1961, WERE ISSUED BY WHICH YOU WERE RELEASED FROM YOUR ASSIGNMENT WITH THE U.S. NAVAL AIR STATION, NEW YORK, NEW YORK, AND TRANSFERRED TO THE U.S. NAVAL AIR STATION, MINNEAPOLIS, MINNESOTA, FOR DUTY IN TAR ALLOWANCE. HOWEVER, WHEN YOU REPORTED THERE IT WAS NOTED THAT NAVAL AIR STATION, NEW YORK, NEW YORK, HAD FAILED TO HAVE YOU SIGN THE PAGE 13 ENTRY IN YOUR ENLISTED SERVICE RECORD, AND SUCH ENTRY WAS PREPARED AND SIGNED BY YOU. YOU WERE PAID THE SUM OF $77.10 FOR DISLOCATION ALLOWANCE, $79.68 FOR PERSONAL TRAVEL, AND $79.68 FOR DEPENDENT TRAVEL. UPON YOUR ARRIVAL AT THE NAVAL AIR STATION, MINNEAPOLIS, AND THE SUM OF $77.10 WHICH WAS PAID TO YOU FOR DISLOCATION ALLOWANCE WAS CONSIDERED AN ERRONEOUS PAYMENT AND WAS COLLECTED FROM YOU BY ADJUSTMENT IN YOUR PAY ACCOUNT. YOUR CLAIM FOR REFUND OF THIS AMOUNT WAS DISALLOWED BY SETTLEMENT DATED AUGUST 20, 1963, FOR THE REASON THAT YOUR TRANSFER UNDER THE ORDERS OF JULY 6, 1961, WAS PERMISSIVE IN CHARACTER.

IN YOUR PRESENT LETTER YOU SAY THAT YOU DID NOT SUBMIT A LETTER OF REQUEST FOR TRANSFER TO USNAS, MINNEAPOLIS, AS REQUIRED BY CNARESTRA INSTRUCTION 1001.12F, DATED JANUARY 28, 1960, BECAUSE YOU DID NOT WANT TO WAIVE THE DISLOCATION ALLOWANCE. IN VIEW OF THIS, AND SINCE YOU DID NOT SIGN THE WAIVER OF THE DISLOCATION ALLOWANCE WHEN THE ORDERS WERE ISSUED, YOU BELIEVE THAT THE ORDERS SHOULD BE REGARDED AS DIRECTIVE-TYPE ORDERS AND NOT PERMISSIVE, AND THAT YOU ARE ENTITLED TO PAYMENT OF THE DISLOCATION ALLOWANCE.

IT LONG HAS BEEN HELD THAT NO RIGHT TO TRAVEL AND TRANSPORTATION ALLOWANCES AUTHORIZED BY STATUTE INCIDENT TO AN ORDERED CHANGE OF PERMANENT STATION ACCRUES TO A MEMBER FOR TRAVEL BY HIM OR BY HIS DEPENDENTS UNDER A MERE PERMISSION TO CHANGE STATIONS. 3 COMP. GEN. 25; 37 ID. 53. IT MUST APPEAR THAT MILITARY CONSIDERATIONS INDUCED THE REASSIGNMENT AND HENCE THAT THE TRAVEL WAS PERFORMED ON PUBLIC BUSINESS, SINCE PUBLIC BUSINESS IS THE FOUNDATION ON WHICH THE RIGHT TO TRAVEL ALLOWANCES RESTS. PERRIMOND V. UNITED STATES, 19 CT.CL. 509; DAY V. UNITED STATES, 123 ID. 10, 18.

IT APPEARS THAT YOU WERE BEING UTILIZED AT YOUR DUTY STATION IN NEW YORK AND THAT YOU WOULD HAVE BEEN RETAINED ON DUTY THERE BUT FOR THE FACT THAT YOU INFORMED THE COMMANDING OFFICER THAT YOU BELIEVED YOU HAD BEEN TREATED UNJUSTLY BY BEING TRANSFERRED TO NEW YORK AND THAT YOU SOUGHT CORRECTION OF INJUSTICES WHICH OCCURRED WHILE YOU WERE STATIONED AT MINNEAPOLIS. THE RECORD CLEARLY SHOWS THAT YOU WISHED TO RETURN TO MINNEAPOLIS. THE ONLY POINT IN DISPUTE IS THAT YOU CONTEND THAT YOU DID NOT WISH TO RETURN EXCEPT ON YOUR TERMS AND THAT YOUR ORDERS SHOULD BE CONSIDERED AS DIRECTIVE IN NATURE, SINCE YOU WOULD NOT HAVE ACCEPTED SUCH TRANSFER IF YOU WERE REQUIRED TO FORFEIT TRAVEL ALLOWANCES. ON THE OTHER HAND, IN A REPORT DATED DECEMBER 6, 1961, TO CHIEF OF NAVAL AIR RESERVE TRAINING FROM THE COMMANDING OFFICER, U.S. NAVAL AIR STATION, NEW YORK, IT IS STATED THAT YOU HAD EXPRESSED A STRONG DESIRE TO RETURN TO MINNEAPOLIS UNDER ANY CONDITIONS AND WERE ORALLY INFORMED THAT RECEIPT OF ORDERS ISSUED TO YOU ENTAILED A WAIVER OF THE DISLOCATION ALLOWANCE, AND THAT THERE IS NO DOUBT IN THE WRITER'S MIND THAT YOU FULLY UNDERSTOOD THE CONDITIONS OF YOUR ORDERS AND ACCEPTED THEM WITHOUT RESERVATION, WRITTEN OR VERBAL.

WITH RESPECT TO YOUR CONTENTION THAT YOUR ORDERS OF JULY 6, 1961, WERE DIRECTIVE-TYPE ORDERS WHICH YOU WERE REQUIRED TO OBEY, IT DOES NOT APPEAR THAT THE PERMISSIVE CHARACTER OF AN ORDER UNDER WHICH TRAVEL ALLOWANCES ARE NOT PAYABLE NEED BE ASCERTAINABLE ON ITS FACE. IT HAS BEEN HELD THAT THE TERMS OF AN ORDER GIVEN FOR TRAVEL, OR FOR THAT MATTER FOR ANY OTHER PURPOSE, CANNOT DETERMINE THE CHARACTER OF THE TRAVEL OR THE SERVICE PERFORMED, BUT THAT QUESTION MUST BE DETERMINED FROM THE PARTICULAR FACTS IN EACH CASE. MCCAULEY V. UNITED STATES, 50 CT.CL. 105, 113. ON THIS BASIS, ORDERS HAVE BEEN HELD TO BE PERMISSIVE IN CHARACTER EVEN THOUGH THE OPTION GRANTED THE RECIPIENT WAS NOT APPARENT ON THE FACE OF THE ORDER. COMP. GEN. 20.

FROM THE FACTS OF RECORD IT IS CLEAR THAT YOUR TRANSFER TO MINNEAPOLIS WAS AUTHORIZED BY THE CHIEF OF NAVAL AIR RESERVE TRAINING AS A TRANSFER TO AN AREA OF YOUR CHOICE FOR TRANSFER TO THE FLEET RESERVE RATHER THAN AS A MATTER OF PUBLIC BUSINESS TO FULFILL A NEED FOR YOUR SERVICES AT THE NAVAL AIR STATION IN THAT CITY, AND THAT IT WAS NOT THE ADMINISTRATIVE INTENT TO PAY YOU THE DISLOCATION ALLOWANCE. THEREFORE, YOUR TRANSFER TO MINNEAPOLIS MUST BE CONSIDERED PERMISSIVE IN CHARACTER. THIS IS SO EVEN IF YOU DID NOT NOT UNDERSTAND THAT YOUR TRANSFER THERE WAS A NO-COST TRANSFER AND YOU ACCEPTED IT IN GOOD FAITH AND IN RELIANCE ON ADMINISTRATIVE ASSURANCES THAT YOU DID NOT HAVE TO WAIVE THE DISLOCATION ALLOWANCE. IT IS WELL SETTLED THAT THE GOVERNMENT IS NOT BOUND BY THE ERRONEOUS ACTS OF ITS OFFICERS OR AGENTS IN THE ABSENCE OF A STATUTE SO PROVIDING. ROBERTSON V. SICHEL, 127 U.S. 507, 515.

ACCORDINGLY, THE SETTLEMENT OF AUGUST 20, 1963, WAS CORRECT AND IS SUSTAINED.