B-147646, JAN. 5, 1962

B-147646, JAN. 5, 1962

TO MASTER SERGEANT ALEX SMITH, AF 2024 7995:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 8, 1961, REQUESTING RECONSIDERATION OF SETTLEMENT DATED OCTOBER 4, 1961, WHICH ALLOWED ONLY $10.26 OF YOUR CLAIM FOR MILEAGE ALLOWANCE FOR TRAVEL BY PRIVATELY OWNED AUTOMOBILE FROM NEW YORK, NEW YORK, TO VANDENBERG AIR FORCE BASE, CALIFORNIA, DURING THE PERIOD FEBRUARY 19 TO APRIL 9, 1961.

THE RECORD SHOWS THAT BY SPECIAL ORDERS NO. TB-12, HEADQUARTERS, 317 AIR BASE GROUP (USAFE), UNITED STATES AIR FORCE, APO 253, NEW YORK, NEW YORK, DATED FEBRUARY 18, 1961, YOU WERE AUTHORIZED TO PROCEED, AND DID PROCEED, ON THAT DATE ON 30 DAYS EMERGENCY LEAVE TO THE ZONE OF INTERIOR LEAVE ADDRESS DESIGNATED AS 151 SOUTH DOHENY DRIVE, LOS ANGELES 48, CALIFORNIA, SUCH LEAVE HAVING BEEN GRANTED BECAUSE OF THE ILLNESS OF YOUR WIFE. SPECIAL ORDERS NO. A-62, HEADQUARTERS, 317 AIR BASE GROUP (USAFE), DATED FEBRUARY 20, 1961 (STATING THAT YOU HAD DEPARTED THAT STATION ON FEBRUARY 18, 1961, ON EMERGENCY LEAVE AT THE ZONE OF INTERIOR ADDRESS), YOU WERE RELIEVED FROM ASSIGNMENT WITH 317 CIVIL ENGINEERING SQUADRON OF THAT STATION AND ASSIGNED TO 818 COMBAT SUPPORT GROUP (SAC), LINCOLN AIR FORCE BASE, NEBRASKA. THESE ORDERS WERE AMENDED BY SPECIAL ORDERS NO. A-87, DATED MARCH 9, 1961, TO SHOW YOUR NEW ASSIGNMENT AS 392 COMBAT SUPPORT GROUP (SAC), VANDERBERG AIR FORCE BASE, CALIFORNIA, AND TO AUTHORIZE 14 DAYS TRAVEL TIME FROM PORT OF ENTRY IN ADDITION TO THE 30 DAYS OF EMERGENCY LEAVE THEN BEING USED.

IN THE SETTLEMENT OF OCTOBER 4, 1961, REIMBURSEMENT WAS LIMITED TO MILEAGE FROM LOS ANGELES TO VANDENBERG AIR FORCE BASE, ON THE BASIS OF PARAGRAPHS 6454 AND 4156 (CASE 7 (A) ( OF THE JOINT TRAVEL REGULATIONS INASMUCH AS THE SPECIAL ORDERS DIRECTING YOUR CHANGE OF ASSIGNMENT WERE RECEIVED BY YOU AT LOS ANGELES WHILE YOU WERE ON LEAVE. PARAGRAPH 6454 PROHIBITS PAYMENT OF EXPENSES INCURRED DURING PERIODS OF TRAVEL UNDER ORDERS WHICH DO NOT INVOLVE PUBLIC BUSINESS AND CASE 7 (A) OF PARAGRAPH 4156 PROVIDES THAT WHEN THE STATION OF A MEMBER IS CHANGED WHILE HE IS ON LEAVE OF ABSENCE, HE WILL, ON JOINING THE NEW STATION, BE ENTITLED TO ALLOWANCES FROM THE PLACE WHERE HE RECEIVED THE ORDERS DIRECTING THE CHANGE, NOT TO EXCEED THE DISTANCE FROM THE OLD TO THE NEW STATION.

YOU STATE THAT YOU WERE NOTIFIED ON OR ABOUT FEBRUARY 10, 1961, THAT YOU WOULD BE ASSIGNED TO LINCOLN, NEBRASKA, AND BECAUSE OF SUCH"ALERT ORDERS" YOU ARE UNDER THE IMPRESSION THAT YOU ALREADY HAD YOUR CHANGE OF STATION ORDERS PRIOR TO YOUR EMERGENCY LEAVE. YOU FURTHER STATE THAT HAD YOU RECEIVED NOTICE OF YOUR WIFE'S ILLNESS ON A NORMAL WORKING DAY, YOU BELIEVE THAT PROPER ORDERS WOULD HAVE BEEN ISSUED PURSUANT TO WHICH YOU WOULD HAVE RECEIVED TRAVEL ALLOWANCE FROM NEW YORK TO YOUR NEXT ASSIGNMENT.

AUTHORITY FOR PAYMENT OF TRAVEL ALLOWANCES TO MEMBERS OF THE UNIFORMED SERVICES IS CONTAINED IN SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 253 (A), WHICH 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 CHANGE OF PERMANENT STATION OR OTHERWISE. THE JOINT TRAVEL REGULATIONS, PROMULGATED PURSUANT TO THIS LAW, DEFINES A COMPETENT TRAVEL ORDER IN PARAGRAPH 3001 AS "A WRITTEN INSTRUMENT ISSUED OR APPROVED BY THE SECRETARY OF THE DEPARTMENT CONCERNED, OR SUCH PERSON OR PERSONS TO WHOM AUTHORITY HAS BEEN DELEGATED OR REDELEGATED TO ISSUE TRAVEL ORDERS, DIRECTING AN INDIVIDUAL OR GROUP OF INDIVIDUALS TO TRAVEL BETWEEN DESIGNATED POINTS.' PARAGRAPH 3000 OF THE REGULATIONS PROHIBITS PAYMENT FOR TRAVEL PERFORMED IN ANTICIPATION OF OR PRIOR TO RECEIPT OF ORDERS AND AUTHORIZES REIMBURSEMENT FOR TRAVEL ONLY WHEN ORDERS BY COMPETENT AUTHORITY HAVE BEEN ISSUED THEREFOR.

WHILE IT MAY BE THAT YOU HAD RECEIVED INFORMATION AS TO YOUR FORTHCOMING TRANSFER TO LINCOLN AIR FORCE BASE AND THAT PERMANENT CHANGE OF STATION ORDERS WOULD HAVE BEEN ISSUED HAD FEBRUARY 18, 1961, THE DATE YOU RECEIVED NOTIFICATION OF YOUR WIFE'S ILLNESS, BEEN A NORMAL WORKING DAY, IT IS CLEAR THAT COMPETENT ORDERS DIRECTING A CHANGE OF YOUR PERMANENT STATION WERE NOT ACTUALLY ISSUED UNTIL FEBRUARY 20, 1961, WHICH ORDERS WERE DELIVERED TO YOU AT YOUR LEAVE ADDRESS IN LOS ANGELES. WHEN YOU DEPARTED YOUR DUTY STATION IN EUROPE FOR LOS ANGELES ON FEBRUARY 18, 1961, SUCH TRAVEL WAS BEING PERFORMED PURSUANT TO THE ONLY ORDERS EXISTING AT THAT TIME, SPECIAL ORDERS NO. TB-12 WHICH AUTHORIZED YOU TO PROCEED ON 30 DAYS EMERGENCY LEAVE. IT HAS CONSISTENTLY BEEN HELD THAT ALLOWANCES ARE NOT PAYABLE FOR SUCH TRAVEL PERFORMED INCIDENT TO LEAVE, THE TRAVEL NOT HAVING BEEN PERFORMED ON PUBLIC BUSINESS. PERRIMOND V. UNITED STATES, 19 CT.CL. 509; DAY V. UNITED STATES, 123 ID. 10, 18. HENCE, UNDER THE LAW AND REGULATIONS AS SET OUT ABOVE YOU WERE ENTITLED TO RECEIVE MILEAGE FROM LOS ANGELES, THE PLACE OF LEAVE WHERE YOU RECEIVED THE CHANGE OF STATION AND AMENDATORY ORDERS, TO VANDENBERG AIR FORCE BASE, YOUR NEW DUTY STATION. ACCORDINGLY, THE SETTLEMENT OF OCTOBER 4, 1961, IS CORRECT AND MUST BE SUSTAINED.

REGARDING YOUR STATEMENT THAT YOU WERE NOT AWARE OF THE EXISTING TRAVEL REGULATIONS CONCERNING EMERGENCY LEAVE, IT IS A WELL-SETTLED PRINCIPLE OF LAW THAT SUCH CIRCUMSTANCES DO NOT AFFORD A PROPER BASIS FOR ALTERING OR SUSPENDING THE APPLICATION OF THE LAW AND REGULATIONS TO THE EXISTING FACTS.