B-152269, OCT. 23, 1963

B-152269, OCT. 23, 1963

TO MR. DENNIS R. WIK:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 19, 1963, RELATIVE TO YOUR CLAIM FOR PAY AND ALLOWANCES FOR THE PERIOD JUNE 6 TO 15, 1962.

YOUR CLAIM WAS DISALLOWED BY SETTLEMENT DATED JULY 19, 1963, FOR THE REASONS STATED THEREIN. AT YOUR REQUEST THE SETTLEMENT WAS REVIEWED AND BY DECISION OF SEPTEMBER 10, 1963, B-152269, YOU WERE ADVISED OF THE REASONS WHY THERE IS NO LEGAL BASIS FOR THE PAYMENT OF YOUR CLAIM.

WITH REGARD TO THE MATTERS DISCUSSED IN YOUR PRESENT LETTER, AS A BASIS FOR THE ALLOWANCE OF YOUR CLAIM, ACTIVE DUTY PAY ACCRUES WHILE ON ACTIVE DUTY AND SECTION 201/D) OF THE CAREER COMPENSATION ACT OF 1949 AS AMENDED BY THE ACT OF MARCH 31, 1955, 69 STAT. 19, IN EFFECT WHEN YOU WERE ORDERED TO ACTIVE DUTY, PROVIDES THAT IN ACCORDANCE WITH REGULATIONS PRESCRIBED BY THE PRESIDENT, IN CASE OF MEMBERS OF THE UNIFORMED SERVICE ORDERED TO ACTIVE DUTY IN EXCESS OF 30 DAYS, ACTIVE DUTY SHALL INCLUDE "THE TIME REQUIRED TO PERFORM TRAVEL" FROM HOME TO FIRST DUTY STATION AND FROM LAST DUTY STATION TO HOME" BY THE MODE OF TRANSPORTATION AUTHORIZED IN ORDERS" FOR SUCH MEMBERS. THE PRESIDENTIAL REGULATIONS, EXECUTIVE ORDER NO. 10649, DATED DECEMBER 28, 1955, PROVIDE THAT FOR TRAVEL FROM HOME TO FIRST DUTY STATION, WHERE TRAVEL BY PRIVATE CONVEYANCE IS AUTHORIZED AND PERFORMED, THE TRAVEL TIME INCLUDED AS ACTIVE DUTY SHALL BE COMPUTED ON THE BASIS OF ONE DAY FOR EACH 300 MILES OF TRAVEL AND THAT ONE DAY OF TRAVEL SHALL ALSO BE ALLOWED FOR EACH FRACTION OF 300 MILES IN EXCESS OF 150 MILES. FOR SUCH TRAVEL BY PUBLIC TRANSPORTATION IT PROVIDES THAT THE TRAVEL TIME AUTHORIZED IS TO BE BASED ON "ACTUAL AND NECESSARY SCHEDULES WHICH MOST NEARLY COINCIDE WITH THE POSSIBLE TIME OF DEPARTURE AND ARRIVAL BY THE MODE OF TRANSPORTATION ACTUALLY USED.'

HAD YOU ELECTED TO TRAVEL BY COMMERCIAL MEANS YOUR PAY AND ALLOWANCES WOULD NOT HAVE STARTED UNTIL THE DATE TRAVEL WAS REQUIRED TO BEGIN BY THE MODE OF TRAVEL ACTUALLY USED. THE ONLY DIFFERENCE IN THAT CIRCUMSTANCE AND ONE INVOLVING TRAVEL BY PRIVATE CONVEYANCE IS THE BASIS FOR COMPUTATION OF AUTHORIZED TRAVEL TIME, ONE BEING BASED ON A MILEAGE ALLOWANCE PER DAY AND THE OTHER ON KNOWN EXISTING PUBLIC CARRIER SCHEDULES. SEE B-143649, MAY 1, 1961, COPY ENCLOSED. NO ALLOWANCE IS MADE FOR TRAVEL DELAYS IN EITHER EVENT.

THUS, WHILE YOU WERE A PUBLIC HEALTH SERVICE OFFICER ON MAY 17, 1962, WHEN YOUR ORDERS TO ACTIVE DUTY WERE ISSUED AS WELL AS ON JUNE 6, 1962, YOUR ENTITLEMENT TO PAY AND ALLOWANCES FOR ACTIVE DUTY LEGALLY DID NOT BEGIN UNTIL YOU ENTERED ON ACTIVE DUTY UNDER THE LAW AND REGULATIONS OR ON THE DATE ON WHICH YOU REPORTED FOR ACTIVE DUTY PLUS THE ADDITIONAL TIME ALLOWED BY THE EXECUTIVE ORDER FOR TRAVEL BY PRIVATE VEHICLE. INDICATED ABOVE, THERE IS NO PROVISION IN THE LAW OR EXECUTIVE ORDER TO ALLOW ACTIVE DUTY PAY AND ALLOWANCES FOR DELAY ENCOUNTERED IN TRAVEL FROM HOME TO FIRST STATION OR FROM LAST STATION TO HOME. SUCH DELAYS, THEREFORE, NECESSARILY ARE HANDLED ON A DIFFERENT BASIS THAN DELAYS WHICH OCCUR WHEN A MEMBER ALREADY IN AN ACTIVE DUTY PAY STATUS IS TRAVELING UNDER COMPETENT ORDERS AND IS PREVENTED FROM REACHING HIS NEXT STATION BECAUSE OF BREAKDOWN OF TRANSPORTATION, ETC. IN THOSE CIRCUMSTANCES THE EXISTING PAY STATUS IS NOT INTERRUPTED AND, WHEN OTHERWISE PROPER, ACTIVE DUTY PAY AND ALLOWANCES CONTINUE.

INASMUCH AS THE DISTANCE FROM PASADENA, CALIFORNIA, TO ANCHORAGE, ALASKA, IS 2,833 MILES, YOU WERE ENTITLED TO ACTIVE DUTY PAY FOR ONLY 9 DAYS' TRAVEL TIME, AND SINCE YOU ACTUALLY REPORTED AT ANCHORAGE FOR ACTIVE DUTY ON JUNE 25, 1962, YOUR ACTIVE DUTY PAY AND ALLOWANCES BEGAN ON JUNE 16, 1962. THUS AS YOU WERE ADVISED IN THE DECISION OF SEPTEMBER 10, 1963, THE AMENDMENT TO YOUR ORDERS TO SHOW THAT YOU WERE ORDERED TO ACTIVE DUTY ON JUNE 16, 1962, AND REPORTED ON JUNE 25, 1962, DID NOT AFFECT YOUR ENTITLEMENT TO PAY AND ALLOWANCES. IT MERELY CHANGED THE ORDERS TO REFLECT THE ACTIVE DUTY AUTHORIZED TO BE COUNTED FOR PAY PURPOSES.

IT MAY BE ADDED THAT THIS OFFICE DOES NOT PROMULGATE REGULATIONS RELATING TO THE TRAVEL OF MEMBERS OF THE UNIFORMED SERVICE AND WE HAVE NO AUTHORITY TO DISREGARD THE PROVISIONS OF VALID REGULATIONS IN THE SETTLEMENT OF CLAIMS AND THE AUDIT OF ACCOUNTS.

WHILE YOU MAY FEEL THAT THE ADMINISTRATIVE OFFICE SHOULD HAVE HANDLED YOUR CASE DIFFERENTLY THE RECORD PRESENTS NO BASIS FOR FAVORABLE ACTION BY THIS OFFICE IN THE MATTER.