B-132195, MAR. 27, 1958

B-132195, MAR. 27, 1958

TO THE SECRETARY OF THE NAVY:

BY LETTER DATED DECEMBER 26, 1957, THE ASSISTANT SECRETARY OF THE NAVY (PERSONNEL AND RESERVE FORCES) REQUESTED THAT WE RECONSIDER OUR DECISION OF JULY 24, 1957, B-132195, 37 COMP. GEN. 53, TO LIEUTENANT COLONEL W. O. ADAMS, DISBURSING OFFICER, UNITED STATES MARINE CORPS, UPON HIS REQUEST FOR AN ADVANCE DECISION ON A VOUCHER COVERING A CLAIM BY TECHNICAL SERGEANT HAROLD E. WILLIAMS, SAN DIEGO,CALIFORNIA, FOR A DISLOCATION ALLOWANCE WHICH, HE PREVIOUSLY HAD AGREED TO FOREGO IN CONSIDERATION OF AN ASSIGNMENT TO DUTY AT THE MARINE CORPS RECRUIT DEPOT, SAN DIEGO, PAYMENT OF THE CLAIMED DISLOCATION ALLOWANCES WAS DENIED SERGEANT HAROLD E. WILLIAMS ON TWO GROUNDS: FIRST, HE HAD WAIVED THE ALLOWANCE, AND SECOND, THE ORDERS, COUPLED WITH PRIOR CORRESPONDENCE CONSTITUTED A MERE PERMISSION TO CHANGE STATIONS. IN HIS LETTER, THE ASSISTANT SECRETARY STATES AMONG OTHER THINGS, THAT:

"A. IT IS NOW AND HAS BEEN A CONTINUING POLICY OF THE MARINE CORPS NOT TO EFFECT CHANGES OF STATION OF ITS PERSONNEL MERELY AS A RESULT OF PERSONAL PREFERENCE OR DESIRES. THE POLICY HAS BEEN, AND CONTINUES TO BE, THAT ANY PERMANENT CHANGE OF STATION MUST SATISFY THE PRIMARY REQUISITE OF BEING NECESSARY IN THE PUBLIC INTEREST.

"B. IN ACCORDANCE WITH ESTABLISHED POLICY OF THE U.S. MARINE CORPS, THE TRANSFER OF TECHNICAL SERGEANT WILLIAMS TO THE MARINE CORPS RECRUIT DEPOT, SAN DIEGO WAS TO FILL A VALID MILITARY REQUIREMENT FOR A MARINE OF HIS RANK, EXPERIENCE AND QUALIFICATIONS AT THAT PARTICULAR STATION. HIS TRANSFER WAS THEREFORE DEEMED TO BE IN THE PUBLIC INTEREST. THE FACT THAT TECHNICAL SERGEANT WILLIAMS HAD EXPRESSED A MARKED PREFERENCE FOR SAN DIEGO, CALIFORNIA AS HIS HOME UPON RETIREMENT WAS RELATED TO THE ORDERS ISSUED HIM ONLY INSOFAR AS IT THERE-UPON BECAME POSSIBLE TO SATISFY A REQUIREMENT OF THE MARINE CORPS AND AT THE SAME TIME TO GRANT A DESIRED TRANSFER AT NOADDITIONAL EXPENSE TO THE GOVERNMENT. THE PRIMARY MOTIVATION IN THE INTEREST OF THE GOVERNMENT WAS IN NO WAY VITIATED BY THIS ACTION, IN-AS-MUCH AS A MARINE OF TECHNICAL SERGEANT WILLIAMS' QUALIFICATIONS WOULD HAVE BEEN ORDERED IN ANY EVENT TO THE BILLET VACANCY WHICH EXISTED.

"D. THE WAIVER OF DISLOCATION ALLOWANCE WAS REQUESTED IN VIEW OF PARAGRAPH 9003.4 JOINT TRAVEL REGULATIONS WHICH STATES THAT A MEMBER IS NOT ENTITLED TO THE ALLOWANCE UPON RELEASE FROM ACTIVE DUTY AND IN VIEW OF THE INTENT OF TECHNICAL SERGEANT WILLIAMS THAT THE SAN DIEGO AREA WAS, IN FACT, HIS POINT OF SELECTION UPON TRANSFER TO THE FLEET MARINE CORPS RESERVE, AS EVIDENCED BY HIS ORIGINAL REQUEST FOR TRANSFER. PARAGRAPH 4158, JOINT TRAVEL REGULATIONS STATES THAT A MEMBER WHO IS TRANSFERRED TO THE FLEET MARINE CORPS RESERVE, MAY SELECT HIS HOME AND RECEIVE TRAVEL ALLOWANCE THERETO FROM HIS LAST DUTY STATION PROVIDED TRAVEL IS COMPLETED TO THE SELECTED HOME WITHIN ONE YEAR AFTER TERMINATION OF ACTIVE DUTY. OBTAINING THE WAIVER OF TRANSPORTATION OF DEPENDENTS AND SHIPMENT OF HOUSEHOLD EFFECTS UPON TRANSFER TO THE FLEET RESERVE WAS CONSIDERED NECESSARY IN ORDER TO PREVENT THE POSSIBILITY OF UNNECESSARY EXPENDITURE OF PUBLIC FUNDS IN THE EVENT OF A LATER CHANGE OF SELECTION OF A HOME, UPON THE MARINE'S TRANSFER TO THE FLEET MARINE CORPS RESERVE.

"3. IN VIEW OF THE STATEMENTS OF FACT AND POLICY LISTED ABOVE, IT IS THE CONVICTION OF THE UNDERSIGNED THAT THE TRANSFER OF TECHNICAL SERGEANT WILLIAMS WAS * * * IN COMPLETE CONSONANCE WITH ACCEPTED POLICIES OF MILITARY REQUIREMENTS, ECONOMY, AND COMPLIANCE WITH THE SPIRIT OF EXISTING REGULATIONS.'

THE MATTER PRESENTED HERE FOR DECISION DID NOT CONCERN THE VALIDITY OF THE MILITARY REQUIREMENT INVOLVED IN SERGEANT WILLIAMS' ASSIGNMENT TO DUTY AT THE MARINE CORPS RECRUIT DEPOT, SAN DIEGO, THE QUESTION BEING WHETHER HE WAS ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES, SPECIFICALLY A DISLOCATION ALLOWANCE, INCIDENT TO SUCH ASSIGNMENT IN THE CIRCUMSTANCES IN WHICH IT WAS MADE. THE STATUTORY AUTHORITY FOR THE PAYMENT OF TRAVEL AND TRANSPORTATION ALLOWANCES 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.' A MILITARY ORDER HAS BEEN CONSIDERED TO BE AN ORDER WHICH IS REQUIRED TO BE OBEYED STRICTLY AND EXECUTED PROMPTLY. SEE 2 COMP. GEN. 625, 626; 8 ID. 327, 330. IT IS AN ORDER SUCH AS THIS THAT IS CONTEMPLATED IN THE REQUIREMENT IN THE CAREER COMPENSATION ACT OF 1949 THAT THE TRAVEL FOR WHICH ALLOWANCES ARE PAYABLE MUST BE PERFORMED UNDER "COMPETENT ORDERS.' A COMPETENT TRAVEL ORDER IS DEFINED IN PARAGRAPH 3001, JOINT TRAVEL REGULATIONS, AS A WRITTEN INSTRUMENT ISSUED BY PROPER AUTHORITY DIRECTING AN INDIVIDUAL OR GROUP OF INDIVIDUALS TO TRAVEL BETWEEN DESIGNATED POINTS. AS TO THE TRAVEL ALLOWANCES AUTHORIZED UNDER SUCH ORDERS, IT HAS BEEN SAID THAT "MILEAGE IS A FORM OF REIMBURSEMENT FOR MONEY EXPENDED BY AN OFFICER IN THE GOVERNMENT'S SERVICE, AND PUBLIC BUSINESS IS THE FOUNDATION ON WHICH MILEAGE RESTS.' PERRIMOND V. UNITED STATES, 19 C.CLS. 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. IT WAS IN SUCH A CASE, PARMELEE V. UNITED STATES, 56 C.CLS. 125, THAT THE COURT DENIED PAYMENT OF MILEAGE TO A NAVAL OFFICER WHO HAD BEEN GIVEN AN ORDER CONTAINING AN OPTION TO PROCEED AT HIS OWN EXPENSE TO A DESIGNATED PLACE OR TO CONSIDER THE ORDER REVOKED. SEE, ALSO, 3 COMP. GEN. 358. FURTHER, IT DOES NOT APPEAR THAT THE PERMISSIVE CHARACTER OF AN ORDER UNDER WHICH TRAVEL ALLOWANCES ARE NOT PAYABLE NEED TO BE ASCERTAINABLE ON ITS FACT. IN THE CASE OF MCCAULY V. UNITED STATES, 50 C.CLS. 105, 113, THE COURT SAID,"THE RULE IS WELL SETTLED THAT THE TERMS OF AN ORDER GIVEN FOR TRAVEL, OR FOR THAT MATTER FOR ANY PURPOSE, CAN NOT DETERMINE THE CHARACTER OF THE TRAVEL OR THE SERVICE PERFORMED, BUT THAT QUESTION MUST BE DETERMINED BY THE COURT FROM THE PARTICULAR FACTS IN EACH CASE.' 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. 3 COMP. GEN. 25; 7 ID. 20.

IN THE INSTANT CASE, SERGEANT WILLIAMS, APPARENTLY WITH PRIOR KNOWLEDGE THAT THERE WAS, OR SOON WOULD BE, A BILLET VACANCY AT THE MARINE CORPS RECRUIT DEPOT, SAN DIEGO, ADDRESSED A LETTER UNDER DATE OF DECEMBER 12, 1956, TO THE COMMANDANT OF THE MARINE CORPS IN WHICH HE REQUESTED THAT HE BE TRANSFERRED FROM CAMP LEJEUNE, NORTH CAROLINA, TO THE MARINE CORPS RECRUIT DEPOT, SAN DIEGO, ON OR ABOUT FEBRUARY 1, 1957, AND FURTHER INDICATED THAT HE UNDERSTOOD THAT FAVORABLE CONSIDERATION OF THIS REQUEST WOULD REQUIRE THAT HE WAIVE ANY CLAIM TO TRANSPORTATION FOR HIMSELF, HIS DEPENDENTS, AND HIS HOUSEHOLD EFFECTS UPON A SUBSEQUENT TRANSFER TO THE FLEET MARINE CORPS RESERVE, AND TO A DISLOCATION ALLOWANCE IN CONNECTION WITH HIS REQUESTED TRANSFER TO SAN DIEGO. BY LETTER OF JANUARY 22, 1957, TO THE COMMANDING GENERAL, CAMP LEJEUNE, THE COMMANDANT OF THE MARINE CORPS AUTHORIZED SERGEANT WILLIAMS' TRANSFER TO SAN DIEGO, PROVIDED HE EXECUTED THE WAIVERS PROFFERED IN HIS REQUEST FOR TRANSFER, WITH THE FURTHER EXPRESS CONDITION "SHOULD TECHNICAL SERGEANT WILLIAMS DECLINE TO EXECUTE SUCH WAIVER, AUTHORITY FOR TRANSFER CONTAINED IN PARAGRAPH 2 ABOVE IS CANCELLED.' SERGEANT WILLIAMS MET THE REQUIRED CONDITIONS AND ON FEBRUARY 1, 1957, ORDERS, INCORPORATING BY REFERENCE THE COMMANDANT'S LETTER OF JANUARY 22, 1957, WERE ISSUED TRANSFERRING SERGEANT WILLIAMS TO SAN DIEGO. HE REPORTED AT SAN DIEGO ON MARCH 18, 1957, AND THEREUPON REPUDIATED HIS WAIVER BY CLAIMING PAYMENT OF A DISLOCATION ALLOWANCE UPON ADVICE FROM AN UNDISCLOSED QUARTER.

FROM THE FACTS RECITED IT IS EVIDENT THAT THE ORDERS OF FEBRUARY 1, 1957, WERE NOT ORDERS WHICH SERGEANT WILLIAMS WAS REQUIRED TO OBEY, BUT RATHER THAT, AT LEAST UNTIL THE TIME OF HIS DEPARTURE FROM CAMP LEJEUNE, THEY WERE ORDERS SUCH AS COULD HAVE BEEN REJECTED BY HIM WITH IMPUNITY. THESE CIRCUMSTANCES THE CONCLUSION IS REQUIRED THAT THE ORDERS OF FEBRUARY 1, 1957,WERE EFFECTIVE ONLY AS AN ASSIGNMENT TO DUTY AT THE MARINE CORPS RECRUIT DEPOT, SAN DIEGO, AND WERE NOT COMPETENT TRAVEL ORDERS WITHIN THE MEANING OF THE CAREER COMPENSATION ACT OF 1949, ENTITLING SERGEANT WILLIAMS TO PAYMENT OF TRAVEL AND TRANSPORTATION ALLOWANCES. THIS CONCLUSION FINDS SUPPORT IN SUBPARAGRAPH D OF THE ASSISTANT SECRETARY'S LETTER QUOTED ABOVE WHICH APPEARS CLEARLY TO REFLECT THAT IT WAS NOT THE ADMINISTRATIVE INTENT TO PAY SERGEANT WILLIAMS TRAVEL AND TRANSPORTATION ALLOWANCES ON THE BASIS OF AN ORDERED PERMANENT CHANGE OF STATION TO THE MARINE CORPS RECRUIT DEPOT, BUT TO PAY HIM, SOME TWO YEARS IN ADVANCE, THE ALLOWANCES WHICH WOULD ACCRUE TO HIM SHOULD HE BE TRANSFERRED AT CAMP LEJEUNE SOME TWO YEARS HENCE TO THE FLEET MARINE CORPS RESERVE AND THEREAFTER TRAVEL TO SAN DIEGO AS HIS SELECTED HOME. NO STATUTORY AUTHORITY FOR THE DISBURSEMENT OF PUBLIC FUNDS IN THIS MANNER HAS BEEN FOUND.