A-71241, JUNE 26, 1936, 15 COMP. GEN. 1131

A-71241: Jun 26, 1936

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" IS NOT ENTITLED TO EXCHANGE BENEFITS AUTHORIZED BY ACT OF MARCH 26. YOU ARE HEREBY AUTHORIZED TO PROCEED ON OR ABOUT JANUARY 12. THIS IS IN ADDITION TO YOUR PRESENT DUTIES. UPON THE COMPLETION THEREOF YOU WILL RESUME YOUR REGULAR DUTIES AT THE NAVAL HOSPITAL. THE ABOVE IS AUTHORIZED WITH THE UNDERSTANDING THAT YOU WILL BE ENTITLED TO NO MILEAGE OR EXPENSE IN CONNECTION THEREWITH. IN CASE YOU DO NOT DESIRE TO BEAR THIS EXPENSE YOU WILL REGARD THIS AUTHORIZATION AS REVOKED AND RETURN THIS LETTER TO THE BUREAU OF NAVIGATION FOR CANCELLATION. BY CAPTAIN MCMULLIN UNDER THESE ORDERS WAS NOT MANDATORY AS A PUBLIC NECESSITY. WAS LEFT OPTIONAL WITH HIM. THE PRACTICAL EFFECT OF THE ORDERS WAS TO PERMIT THE OFFICER TO BE ABSENT FROM HIS STATION AND THE PERFORMANCE OF HIS ASSIGNED DUTIES WITH FULL PAY AND ALLOWANCES AT HIS STATION WHILE PURSUING A PRIVATE VENTURE.

A-71241, JUNE 26, 1936, 15 COMP. GEN. 1131

EXCHANGE - LOSS BY - NAVY OFFICER ATTENDING FOREIGN POST GRADUATE COURSE OF INSTRUCTION A NAVY OFFICER IN ATTENDANCE, UNDER A TEMPORARY DUTY STATUS, UPON A POST GRADUATE COURSE OF INSTRUCTION IN A FOREIGN COUNTRY, UNDER ORDERS SPECIFYING THAT HE WOULD BE ENTITLED TO "NO MILEAGE OR EXPENSE IN CONNECTION THEREWITH," IS NOT ENTITLED TO EXCHANGE BENEFITS AUTHORIZED BY ACT OF MARCH 26, 1934, 48 STAT. 466, AND EXECUTIVE ORDER OF MARCH 27, 1934.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY, JUNE 26, 1936:

BY YOUR ENDORSEMENT, MAY 8, 1936, THERE HAS BEEN RECEIVED BASIC LETTER OF THE PAYMASTER GENERAL OF THE NAVY RELATIVE TO CREDIT FOR $150.74 IN THE DISBURSING ACCOUNTS OF LIEUT. COMDR. G. S. BOWER (S.C.), U.S. NAVY, REPRESENTING PAYMENT OF EXCHANGE RELIEF TO CAPTAIN JOSEPH J. A. MCMULLIN, MEDICAL CORPS, U.S. NAVY, WHILE ON DUTY UNDER ORDERS OF DECEMBER 11, 1934, AS FOLLOWS:

FROM: THE CHIEF OF THE BUREAU OF NAVIGATION.

TO: COMMANDER JOSEPH J. A. MCMULLIN (MEDICAL CORPS), U.S. NAVY,

NAVAL HOSPITAL, NEW YORK, N.Y.

VIA: COMMANDANT THIRD NAVAL DISTRICT.

SUBJECT: AUTHORIZATION.

1. YOU ARE HEREBY AUTHORIZED TO PROCEED ON OR ABOUT JANUARY 12, 1935, TO VIENNA, AUSTRIA, FOR TEMPORARY DUTY IN ATTENDANCE UPON A POSTGRADUATE COURSE OF INSTRUCTION IN SURGERY FOR A PERIOD OF APPROXIMATELY FOUR MONTHS.

2. THIS IS IN ADDITION TO YOUR PRESENT DUTIES, AND UPON THE COMPLETION THEREOF YOU WILL RESUME YOUR REGULAR DUTIES AT THE NAVAL HOSPITAL, NEW YORK, N.Y.

3. THE ABOVE IS AUTHORIZED WITH THE UNDERSTANDING THAT YOU WILL BE ENTITLED TO NO MILEAGE OR EXPENSE IN CONNECTION THEREWITH. IN CASE YOU DO NOT DESIRE TO BEAR THIS EXPENSE YOU WILL REGARD THIS AUTHORIZATION AS REVOKED AND RETURN THIS LETTER TO THE BUREAU OF NAVIGATION FOR CANCELLATION.

WILLIAM LEAHY.

THE AUDIT ACTION DISALLOWED THE CREDIT ON THE GROUNDS THAT A REASONABLE APPLICATION OF THE EXCHANGE RELIEF ACT OF MARCH 26, 1934 (48 STAT. 466), CONTEMPLATES EMPLOYMENT OR DETAIL TO DUTY IN A FOREIGN COUNTRY UNDER MANDATORY ORDERS AS CONTRASTED WITH ORDERS OF A PERMISSIVE CHARACTER WHICH LEAVE OBEDIENCE THERETO DISCRETIONARY ON THE PART OF THE OFFICER.

PERFORMANCE OF TEMPORARY DUTY AT VIENNA, AUSTRIA, BY CAPTAIN MCMULLIN UNDER THESE ORDERS WAS NOT MANDATORY AS A PUBLIC NECESSITY, BUT WAS LEFT OPTIONAL WITH HIM. THE PRACTICAL EFFECT OF THE ORDERS WAS TO PERMIT THE OFFICER TO BE ABSENT FROM HIS STATION AND THE PERFORMANCE OF HIS ASSIGNED DUTIES WITH FULL PAY AND ALLOWANCES AT HIS STATION WHILE PURSUING A PRIVATE VENTURE, JUSTIFIED POSSIBLY BECAUSE OF THE CHARACTER OF THE VENTURE, I.E., TAKING A POSTGRADUATE COURSE IN SURGERY. WHETHER THE NAVY HAD AUTHORITY TO PROVIDE FOR HIS ATTENDANCE ON SUCH COURSE AT THE EXPENSE OF THE UNITED STATES IS BESIDE THE QUESTION. IT DID NOT DO SO, BUT SPECIFICALLY PROVIDED THAT SUCH ATTENDANCE SHOULD BE WITHOUT EXPENSE TO THE UNITED STATES. HIS ORDERS NOT ONLY CLEARLY IMPLY THERE WAS NO ADMINISTRATIVE INTENTION THAT THE EMPLOYMENT AUTHORIZED SHOULD COST THE GOVERNMENT ANYTHING IN EXCESS OF THE OFFICER'S ORDINARY PAY AND ALLOWANCES, BUT EXPRESSLY STATE THE AUTHORITY IS GIVEN WITH THE UNDERSTANDING THAT HE WOULD BE ENTITLED TO "NO MILEAGE OR EXPENSE IN CONNECTION THEREWITH.' IN OTHER WORDS, THE GOVERNMENT WAS NOT OBLIGATED FOR ANY EXPENSES IN CONNECTION WITH THIS SERVICE. THE INSTRUCTIONS ISSUED BY THE BUREAU OF SUPPLIES AND ACCOUNTS TO THE NAVAL ATTACHE, BERLIN, GERMANY, UNDER DATE OF FEBRUARY 6, 1935, TO THE EFFECT THAT CAPTAIN MCMULLIN IS ENTITLED TO REIMBURSEMENT FOR LOSSES SUSTAINED DUE TO APPRECIATION OF FOREIGN CURRENCIES WERE NOT IN ACCORDANCE WITH THE TERMS OF HIS ORDERS WHICH, NECESSARILY, MUST GOVERN HIS RIGHT TO PAY. THE FACT THAT CAPTAIN MCMULLIN WAS AT CONSIDERABLE EXPENSE IN DEFRAYING HIS LIVING AND OTHER EXPENSES IS NOT MATERIAL SINCE HE VOLUNTARILY ASSUMED SUCH EXPENSES. THE STATUS OF CAPTAIN MCMULLIN WITH RESPECT TO HIS ORDINARY PAY AND ALLOWANCES DURING THE PERIOD OF SUCH VOLUNTARY TEMPORARY DUTY IS SIMILAR TO THAT OF A RETIRED OFFICER WHO IS PERMITTED TO RESIDE IN A FOREIGN COUNTRY. SUCH PERMISSION DOES NOT INCREASE THE GOVERNMENT'S OBLIGATION WITH RESPECT TO HIS PAY AND DOES NOT, THEREFORE, ENTITLE HIM TO EXCHANGE BENEFITS AUTHORIZED BY THE ACT OF MARCH 26, 1934 (48 STAT. 466), AND THE EXECUTIVE ORDER OF MARCH 27, 1934, ISSUED PURSUANT THERETO. 62410, JUNE 15, 1935, 14 COMP. GEN. 892.