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B-149558, OCTOBER 1, 1962, 42 COMP. GEN. 187

B-149558 Oct 01, 1962
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DIRECTIVE ORDERS A NAVY ENLISTED MEMBER WHOSE CHANGE OF DUTY STATION ORDERS PENDING TRANSFER TO THE FLEET RESERVE AND SUBSEQUENT RELEASE TO INACTIVE DUTY WERE ISSUED AT HIS REQUEST. CONDITIONED ON THE ACCEPTANCE OF ALLOWANCES TO COVER THE MOVE TO HIS HOME OF SELECTION AND THE EXECUTION OF AN IRREVOCABLE WAIVER TO FUTURE CLAIM FOR TRAVEL OR TRANSPORTATION EXPENSES IS NOT ENTITLED TO TRAVEL ALLOWANCES INCIDENT TO HIS TRANSFER TO THE SEPARATION ACTIVITY IN THE AREA OF THE HOME OF SELECTION. AS THE CHARACTER OF THE ORDERS ISSUED AT THE REQUEST OF AND FOR THE CONVENIENCE OF THE MEMBERS WERE PERMISSIVE RATHER THAN DIRECTIVE. TRANSFER ORDERS ISSUED AT THE REQUEST OF A NAVY ENLISTED MAN RETURNING HIM FROM AN OVERSEAS DUTY STATION TO A SEPARATION ACTIVITY IN THE AREA OF THE HOME OF SELECTION PENDING TRANSFER TO THE FLEET RESERVE IN CONSIDERATION OF A WAIVER TO ENTITLEMENT TO OTHER THAN TRANSPORTATION AND TRAVEL ALLOWANCES TO THE HOME OF SELECTION ARE NOT THE COMPETENT ORDERS CONTEMPLATED BY SECTION 303 OF THE CAREER COMPENSATION ACT OF 1949.

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B-149558, OCTOBER 1, 1962, 42 COMP. GEN. 187

MILITARY PERSONNEL - TRANSFER AT MEMBER'S REQUEST - WAIVER OF BENEFITS. ORDERS - TRANSFERS REQUESTED - PERMISSIVE V. DIRECTIVE ORDERS A NAVY ENLISTED MEMBER WHOSE CHANGE OF DUTY STATION ORDERS PENDING TRANSFER TO THE FLEET RESERVE AND SUBSEQUENT RELEASE TO INACTIVE DUTY WERE ISSUED AT HIS REQUEST, CONDITIONED ON THE ACCEPTANCE OF ALLOWANCES TO COVER THE MOVE TO HIS HOME OF SELECTION AND THE EXECUTION OF AN IRREVOCABLE WAIVER TO FUTURE CLAIM FOR TRAVEL OR TRANSPORTATION EXPENSES IS NOT ENTITLED TO TRAVEL ALLOWANCES INCIDENT TO HIS TRANSFER TO THE SEPARATION ACTIVITY IN THE AREA OF THE HOME OF SELECTION, AS THE CHARACTER OF THE ORDERS ISSUED AT THE REQUEST OF AND FOR THE CONVENIENCE OF THE MEMBERS WERE PERMISSIVE RATHER THAN DIRECTIVE, PRECLUDING THE PAYMENT OF TRAVEL ALLOWANCES SUBSEQUENT TO THE DATE OF THE WAIVER TO ENTITLEMENT TO FURTHER TRAVEL ALLOWANCE PAYMENTS. TRANSFER ORDERS ISSUED AT THE REQUEST OF A NAVY ENLISTED MAN RETURNING HIM FROM AN OVERSEAS DUTY STATION TO A SEPARATION ACTIVITY IN THE AREA OF THE HOME OF SELECTION PENDING TRANSFER TO THE FLEET RESERVE IN CONSIDERATION OF A WAIVER TO ENTITLEMENT TO OTHER THAN TRANSPORTATION AND TRAVEL ALLOWANCES TO THE HOME OF SELECTION ARE NOT THE COMPETENT ORDERS CONTEMPLATED BY SECTION 303 OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 253, WHICH AUTHORIZE PAYMENT OF TRAVEL AND TRANSPORTATION ALLOWANCES UPON PERMANENT CHANGE OF STATION, BUT RATHER CONSTITUTE PERMISSIVE ORDERS IN VIEW OF THE CHOICE THE MEMBER HAD UP TO THE TIME OF DEPARTURE FROM HIS OVERSEAS DUTY STATION, OR AT LEAST UNTIL HIS EXECUTION OF THE WAIVER, OF COMPLYING WITH OR REJECTING THE ORDERS; THEREFORE, THE TRANSFER ORDERS, WHICH WERE NOT COMPETENT ORDERS, WERE EFFECTIVE ONLY AS AN ASSIGNMENT TO DUTY AT THE ACTIVITY OF THE MEMBER'S CHOICE.

TO THE SECRETARY OF THE NAVY, OCTOBER 1, 1962:

IN LETTER OF JULY 11, 1962, FROM THE UNDER SECRETARY OF THE NAVY, REVIEW WAS REQUESTED OF EXCEPTION TAKEN BY THE NAVY AUDIT BRANCH OF THE GENERAL ACCOUNTING OFFICE ON JANUARY 24, 1962, IN THE CASE OF JOHN L. KUPETZ, 223 69 86, WHO WAS TRANSFERRED TO THE U.S. NAVAL FLEET RESERVE ON OCTOBER 30, 1959. THE UNDER SECRETARY ALSO STATES IT IS UNDERSTOOD THAT NUMEROUS SIMILAR NOTICES OF EXCEPTION INVOLVING OTHER MEMBERS ARE PENDING. THE SUBMISSION WAS ASSIGNED PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE CONTROL NO. 62-13.

STANDARD TRANSFER ORDER NO. 134-59 OF JULY 27, 1959, ISSUED BY ELECTRONIC COUNTERMEASURES SQUADRON TWO (VQ-2), NAVY 537, DIRECTED JOHN LOUIS KUPETZ, 223 69 86, ADC, USN, TO PROCEED TO THE U.S. NAVAL STATION, BOSTON, MASSACHUSETTS, FOR DUTY PENDING TRANSFER TO THE FLEET RESERVE AND SUBSEQUENT RELEASE TO INACTIVE DUTY. THE TRANSFER WAS CONDITIONAL IN THAT KUPETZ HAD TO EXECUTE AN AGREEMENT TO THE EFFECT THAT HE HAD REQUESTED THE TRANSFER IN ORDER THAT WHEN ELIGIBLE FOR TRANSFER TO THE FLEET RESERVE, HE WOULD BE RELEASED TO INACTIVE DUTY IN THAT CITY (BOSTON, MASSACHUSETTS) INSTEAD OF THE NEAREST PORT OF ENTRY; THAT IN CONSIDERATION OF GRANTING THE REQUEST, HE HAD SELECTED HINGHAM, MASSACHUSETTS, AS HIS HOME FOR ALL PURPOSES INCLUDING TRANSPORTATION FOR HIMSELF, HIS DEPENDENTS, BAGGAGE AND HOUSEHOLD GOODS AND THAT HE UNDERSTOOD THAT HAVING SELECTED HINGHAM AS HIS HOME AND AFTER RECEIVING ALLOWANCES THERETO, THE SELECTION WOULD BE IRREVOCABLE. IT FURTHER STATED THAT AFTER THE DATE OF THIS WAIVER HE WOULD NOT BE ENTITLED TO FURTHER REIMBURSEMENT OR TRANSPORTATION.

KUPETZ WAS PAID MILEAGE AT ?06 PER MILE FOR 229 MILES INCIDENT TO HIS TRANSFER FROM ROTA, SPAIN, TO BOSTON, MASSACHUSETTS. ALSO, INCIDENT TO THE SAME ORDERS HE WAS PAID FOR HIS DEPENDENTS' TRAVEL IN THE SUM OF $41.94 REPRESENTING REIMBURSEMENT FOR 233 MILES AT ?18 PER MILE. EXCEPTION WAS TAKEN TO THE PAYMENT FOR THE REASON THAT THE MEMBER AND HIS DEPENDENTS WERE NOT ENTITLED TO REIMBURSEMENT FOR THE TRAVEL PERFORMED INCIDENT TO THE ORDERS DATED JULY 27, 1959, SINCE THE ORDERS WERE ISSUED AT THE REQUEST OF AND FOR THE CONVENIENCE OF THE MEMBER AND WERE PERMISSIVE RATHER THAN DIRECTIVE TYPE ORDERS.

IN THE UNDER SECRETARY'S LETTER REQUESTING RECONSIDERATION OF THE EXCEPTION THERE IS QUOTED A LETTER DATED MAY 26, 1961, FROM THE BUREAU OF NAVAL PERSONNEL TO THE CHIEF OF OUR NAVY AUDIT BRANCH RELATIVE TO THE SIMILAR CASES OF JUNIOR D. FORTNER, 342 37 81, AND WALLACE G. GIBSON, 266 10 41. IN THAT LETTER IT IS STATED THAT THE TRANSFER OF ENLISTED MEMBERS TO A SEPARATION ACTIVITY UNDER SUCH CIRCUMSTANCES IN EFFECT CONSTITUTES THE MEMBERS' LAST MOVE AT GOVERNMENT EXPENSE AND IS INTENDED TO BE PERMISSIVE ONLY IN THAT SHOULD THE MEMBER NOT DESIRE TO WAIVE THE ONE YEAR RIGHT TO SELECT HIS HOME, THE AUTHORIZATION IS REVOKED. IT IS STATED IN THE LETTER THAT THE ADMINISTRATIVE INTENT AS EXPRESSED IN THE BUPERS INSTRUCTION 1811.1B, MARCH 28, 1960, WHICH PERMITS SUCH TRANSFERS, WAS NOT TO GIVE THESE MEN A CHOICE OF WHETHER TO COMPLY WITH THE TRANSFER ORDERS OR NOT, BUT RATHER TO INSURE THAT NO ADDITIONAL EXPENSE WOULD BE INCURRED BY THE GOVERNMENT INCIDENT TO THEIR TRANSFER TO STATIONS OF THEIR CHOICE. ALSO, IN A LETTER DATED JUNE 5, 1961, FROM THE DIRECTOR, MILITARY PAY DIVISION, IT IS STATED THAT IT IS FREQUENTLY A BENEFIT TO THE NAVY FROM THE STANDPOINTS OF BOTH MONEY AND MORALE TO TRANSFER A MEMBER TO AN ACTIVITY OF HIS CHOICE FOR PROCESSING IN CONNECTION WITH TRANSFER TO THE FLEET RESERVE AND, CONSIDERING THAT THIS TRANSFER IS CONTINGENT UPON THE MEMBER'S EXECUTION OF A "HOME OF SELECTION," THERE IS NO ADDITIONAL EXPENSE TO THE GOVERNMENT IN CONNECTION WITH SUCH TRANSFER. FURTHER, IT WAS SUGGESTED IN THE LETTER OF MAY 26, 1961, THAT OUR DECISION OF JULY 24, 1957, 37 COMP. GEN. 53 (AFFIRMED IN OUR DECISION OF MARCH 27, 1958, B/132195), IN WHICH WE HELD THAT THERE IS NO LEGAL BASIS FOR THE PAYMENT OF DISLOCATION ALLOWANCE INCIDENT TO PERMISSIVE CHANGE-OF STATION TRANSFERS, IS LIMITED ONLY TO CASES INVOLVING PAYMENT OF DISLOCATION ALLOWANCE AND IS NOT INTENDED FOR APPLICATION TO PAYMENT OF TRAVEL ALLOWANCES TO WHICH A MEMBER IS OTHERWISE ENTITLED FOR TRAVEL PERFORMED INCIDENT TO A PERMANENT CHANGE OF STATION.

THE STATUTORY AUTHORITY FOR THE PAYMENT OF TRAVEL AND TRANSPORTATION ALLOWANCES UPON PERMANENT CHANGE OF STATION, INCLUDING MOVE FROM LAST STATION TO HOME UPON TRANSFER TO THE FLEET RESERVE, IS CONTAINED IN SECTION 303 OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 253, WHICH PROVIDES THAT, UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, MEMBERS OF THE UNIFORMED SERVICES SHALL BE ENTITLED TO RECEIVE SUCH ALLOWANCES FOR TRAVEL PERFORMED OR TO BE PERFORMED ,UNDER COMPETENT ORDERS.' THE "COMPETENT ORDER" CONTEMPLATED BY THE STATUTE HAS BEEN CONSIDERED TO BE AN ORDER WHICH INVOLVES PUBLIC BUSINESS AND IS REQUIRED TO BE OBEYED STRICTLY AND EXECUTED PROMPTLY. SEE 2 COMP. GEN. 625, 626; 8 ID. 327, 330; PERRIMOND V. UNITED STATES, 19 CT.CL. 509. THUS, TRAVEL DIRECTED BY COMPETENT AUTHORITY PERFORMED IN THE GOVERNMENT SERVICE IS TRAVEL ON PUBLIC BUSINESS FOR WHICH REIMBURSEMENT IS AUTHORIZED, AND THIS IS TRUE EVEN THOUGH IT IS KNOWN TO THE ORDER ISSUING AUTHORITY THAT THE TRAVEL DIRECTED INVOLVES AN ASSIGNMENT WHICH IS PREFERRED BY THE MEMBER OR MEMBERS TO WHOM THE ORDERS ARE ADDRESSED. THE SITUATION, HOWEVER, IS DIFFERENT WHERE THE CHOICE OF COMPLYING WITH THE ORDERS AND PERFORMING THE ATTENDANT TRAVEL LIES WITH THE ADDRESSEE. IN SUCH CASES THE PERMISSIVE CHARACTER OF THE TRAVEL OR THE SERVICE PERFORMED PRECLUDES PAYMENT OF TRAVEL ALLOWANCES. SEE B-132195, MARCH 27, 1958, AND AUTHORITIES CITED THEREIN.

IT IS EVIDENT THAT THE ORDERS OF JULY 27, 1959, WERE NOT ORDERS THAT KUPETZ WAS REQUIRED TO OBEY, BUT RATHER THAT, UNTIL THE TIME OF HIS DEPARTURE FROM HIS OVERSEAS DUTY STATION, OR AT LEAST UNTIL HIS EXECUTION OF THE WAIVER, THEY WERE ORDERS SUCH AS COULD HAVE BEEN REJECTED BY HIM WITH IMPUNITY. IN THESE CIRCUMSTANCES, THE CONCLUSION IS REQUIRED THAT THE ORDERS OF JULY 27, 1959, WERE EFFECTIVE ONLY AS AN ASSIGNMENT TO DUTY AT BOSTON, MASSACHUSETTS, AND WERE NOT COMPETENT TRAVEL ORDERS WITHIN THE MEANING OF THE CAREER COMPENSATION ACT OF 1949, ENTITLING KUPETZ TO PAYMENT OF TRAVEL AND TRANSPORTATION ALLOWANCES.

THE POINTS ADVANCED BY THE UNDER SECRETARY IN HIS LETTER OF JULY 11, 1962, AND IN THE LETTER THERE QUOTED ARE SIMILAR TO THE VIEW TAKEN BY THE ASSISTANT SECRETARY OF THE NAVY (PERSONNEL AND RESERVE FORCES) IN A LETTER DATED DECEMBER 26, 1957, ASKING THAT WE RECONSIDER OUR DECISION OF JULY 24, 1957, 37 COMP. GEN. 53, WHICH DEALT WITH A MEMBER OF THE MARINE CORPS WAIVING FUTURE CLAIM TO TRANSPORTATION OF HIMSELF, HIS DEPENDENTS, AND HOUSEHOLD EFFECTS IN CONSIDERATION OF A PERMISSIVE PERMANENT CHANGE OF STATION TO THE AREA WHERE HE EXPECTED, IN TWO YEARS, TO BE TRANSFERRED TO THE FLEET MARINE CORPS RESERVE. IN OUR DECISION OF MARCH 27, 1958, B- 132195, REFERRED TO ABOVE, WE AFFIRMED OUR DECISION OF JULY 24, 1957, ON THE BASIS THAT THERE WAS NO STATUTORY AUTHORITY FOR THE DISBURSEMENT OF PUBLIC FUNDS IN SUCH MANNER IN CONTEMPLATION OF A TRANSFER TO THE FLEET MARINE CORPS RESERVE. WHILE THE TRANSFER IN THAT CASE TOOK PLACE APPROXIMATELY TWO YEARS PRIOR TO THE TIME OF THE CONTEMPLATED TRANSFER TO THE FLEET MARINE CORPS RESERVE, THE DECISION TURNED ON THE PERMISSIVE ORDER RULE AND THE TIME ELEMENT WOULD NOT APPEAR TO BE A FACTOR IN THE APPLICATION OF THAT RULE.

OUR DECISION OF APRIL 25, 1958, B-134839, IS CITED AS APPARENTLY LENDING SUPPORT TO THE VIEW THAT ORDERS SUCH AS THOSE ISSUED TO KUPETZ ARE IN EFFECT ORDERS FROM THE MEMBER'S LAST DUTY STATION TO HIS SELECTED HOME AND ON THAT BASIS TRAVEL ALLOWANCES TO THE STATION IN THE AREA OF THE HOME OF SELECTION ARE AUTHORIZED. IN THAT CASE WE CONSIDERED A REQUEST FOR DECISION WHETHER AN OFFICER WAS ENTITLED TO A PER DIEM ALLOWANCE INCIDENT TO AN ASSIGNMENT TO TEMPORARY DUTY AT A NAVAL INSTALLATION WHILE AWAITING ACTION UPON HIS APPLICATION FOR RETIREMENT SUCH INSTALLATION BEING NEAR THE PLACE SELECTED AS HIS HOME. WE HELD THAT PER DIEM WAS NOT AUTHORIZED BUT WE DID NOT CONSIDER THE QUESTION OF TRAVEL ALLOWANCES TO THE INSTALLATION SINCE THAT QUESTION WAS NOT PRESENTED AND THE RECORD DID NOT SHOW THAT THE MEMBER WAS PAID SUCH ALLOWANCES.

THEREFORE, BASED ON THE SAME PRINCIPLES STATED IN 37 COMP. GEN. 53, THE TRAVEL ALLOWANCE PAYMENTS MADE TO KUPETZ WERE UNAUTHORIZED AND THE EXCEPTIONS TAKEN IN THE AUDIT IN THAT CASE AND SIMILAR CASES APPEAR TO HAVE BEEN PROPERLY ISSUED.

IN HIS LETTER OF JULY 11, 1962, THE UNDER SECRETARY REQUESTS THAT IF THE ORDERS IN QUESTION MUST BE CONSIDERED PERMISSIVE ORDERS, THE PAYMENTS MADE TO KUPETZ AND TO OTHERS IN SIMILAR CIRCUMSTANCES BE PASSED TO CREDIT IN THE ACCOUNTS OF THE DISBURSING OFFICERS AND THAT A CUTOFF DATE BE ESTABLISHED AFTER APPROPRIATE CHANGES HAVE BEEN MADE IN THE APPLICABLE REGULATIONS. IT IS INDICATED THAT SUCH REQUEST IS MADE ON THE BASIS THAT, UNTIL RECEIPT OF INFORMATION RELATIVE TO THE EXCEPTION TAKEN TO THE PAYMENT TO KUPETZ, IT WAS ASSUMED THE PROCEDURES OUTLINED IN THE LETTER OF MAY 26, 1961, TO OUR NAVY AUDIT BRANCH WERE SATISFACTORY SINCE NO REPLY WAS RECEIVED TO THAT LETTER. IT SHOULD BE OBSERVED, HOWEVER, THAT AFTER RECEIPT OF THAT LETTER, AUDIT EXCEPTIONS WERE STATED ON DECEMBER 22, 1961, TO THE PAYMENTS THERE INVOLVED. IN VIEW OF SUCH ACTION AND THE DETERMINATION IN OUR DECISIONS OF JULY 24, 1957, AND MARCH 27, 1958, THAT SUCH PAYMENTS WERE NOT AUTHORIZED, THERE APPEARS TO HAVE BEEN NO PROPER BASIS FOR CONTINUING TO MAKE SUCH PAYMENTS.

IN THE CIRCUMSTANCES NO BASIS IS FOUND ON THE PRESENT RECORD FOR THE REMOVAL OF THE EXCEPTIONS.

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