B-105167, SEP 19, 1951

B-105167: Sep 19, 1951

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ATTORNEY AT LAW: REFERENCE IS MADE TO YOUR LETTERS OF JUNE 12 AND JULY 20. STATED THAT THE SUBJECT OFFICER WAS PLACED ON TEMPORARY DUTY AT CLINTON COUNTY ARMY AIR FIELD UNDER AUTHORITY OF VERBAL ORDERS OF THE COMMANDING GENERAL. STATE THAT THE VERBAL ORDERS OF THE COMMANDING OFFICER AT THAT BASE DIRECTING THE PERFORMANCE OF THE ABOVE-MENTIONED TRAVEL ARE CONFIRMED. THE CLAIM WAS DISALLOWED UNDER THE WELL ESTABLISHED RULE THAT THE STATUTORY REQUIREMENT THAT TRAVEL BE UNDER COMPETENT ORDERS (SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942. AN EXCEPTION TO SUCH RULE HAVING BEEN RECOGNIZED ONLY IN CASES WHERE THE NECESSITY FOR OFFICIAL TRAVEL IS OF SUCH URGENCY AS TO MAKE IMPRACTICABLE THE ISSUANCE OF WRITTEN ORDERS PRIOR TO THE COMMENCEMENT OF TRAVEL.

B-105167, SEP 19, 1951

PRECIS-UNAVAILABLE

A.J. FRERICKS, ATTORNEY AT LAW:

REFERENCE IS MADE TO YOUR LETTERS OF JUNE 12 AND JULY 20, 1951, THE LATTER ENCLOSING A POWER OF ATTORNEY FROM DR. HENRY G. HUGHES, FORMER FIRST LIEUTENANT, MEDICAL CORPS, AUTHORIZING YOU TO REPRESENT HIM IN PROSECUTING HIS CLAIM FOR PER DIEM AND REIMBURSEMENT OF EXPENSES OF TRAVEL FROM WRIGHT FIELD, OHIO, TO CLINTON COUNTY ARMY AIR FIELD, WILMINGTON, OHIO, A DISTANCE OF APPROXIMATELY 36 MILES, AND RETURN, DURING THE MONTHS OF MAY AND JUNE 1946, AND THE FORMER REQUESTING REVIEW OF GENERAL ACCOUNTING OFFICE SETTLEMENT OF JULY 6, 1950, WHICH DISALLOWED SUCH CLAIM.

MR. HUGHES STATES THAT HE MADE EIGHT CONSECUTIVE WEEKLY TRIPS TO CLINTON COUNTY ARMY AIR FIELD, THE FIRST COMMENCING MAY 10, 1946, WITH RETURN TO WRIGHT FIELD TWO DAYS LATER, ALL TRAVEL BEING PERFORMED BY PRIVATELY OWNED CONVEYANCE FROM SEVEN TO EIGHT A.M. ON EACH DAY OF TRAVEL. A SERIES OF REQUESTS FOR WRITTEN ORDERS COVERING SUCH TRAVEL, ALL DATED JANUARY 23, 1947, STATED THAT THE SUBJECT OFFICER WAS PLACED ON TEMPORARY DUTY AT CLINTON COUNTY ARMY AIR FIELD UNDER AUTHORITY OF VERBAL ORDERS OF THE COMMANDING GENERAL, ARMY MEDICAL CORPS. EIGHT ORDERS DATED OCTOBER 14, 1949, WRIGHT-PATTERSON AIR FORCE BASE, DAYTON, OHIO, DIRECTING TRAVEL TO CLINTON COUNTY ARMY AIR FIELD, WILMINGTON, OHIO, TO PERFORM DUTY AS MEDICAL OFFICER FOR APPROXIMATELY TWO DAYS IN EACH INSTANCE, STATE THAT THE VERBAL ORDERS OF THE COMMANDING OFFICER AT THAT BASE DIRECTING THE PERFORMANCE OF THE ABOVE-MENTIONED TRAVEL ARE CONFIRMED, SUCH ORDERS HAVING BEEN ISSUED UNDER EXIGENCIES WHICH PREVENTED THE ISSUANCE OF WRITTEN ORDERS IN ADVANCE.

THE CLAIM WAS DISALLOWED UNDER THE WELL ESTABLISHED RULE THAT THE STATUTORY REQUIREMENT THAT TRAVEL BE UNDER COMPETENT ORDERS (SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 364) CONTEMPLATES THE ISSUANCE OF WRITTEN ORDERS IN ADVANCE OF THE TRAVEL, AN EXCEPTION TO SUCH RULE HAVING BEEN RECOGNIZED ONLY IN CASES WHERE THE NECESSITY FOR OFFICIAL TRAVEL IS OF SUCH URGENCY AS TO MAKE IMPRACTICABLE THE ISSUANCE OF WRITTEN ORDERS PRIOR TO THE COMMENCEMENT OF TRAVEL. IN SUCH CASES, IF THE VERBAL ORDERS SUBSEQUENTLY ARE CONFIRMED IN WRITING BY COMPETENT AUTHORITY WITHIN A REASONABLE TIME AND SUCH CONFIRMATORY ORDERS CONTAIN A SHOWING THAT THE TRAVEL WAS NECESSARY AND AN EXPLANATION OF THE EMERGENCY WHICH PREVENTED THE ISSUANCE OF WRITTEN ORDERS IN ADVANCE, REIMBURSEMENT OF EXPENSES OF TRAVEL HAS NOT BEEN QUESTIONED. THE ORDERS OF OCTOBER 14, 1949, WERE ISSUED OVER THREE YEARS AFTER THE TRAVEL WAS PERFORMED AND STATE NO FACTS SHOWING THE EXISTENCE OF AN EMERGENCY WHICH PREVENTED THE ISSUANCE OF ADVANCE WRITTEN ORDERS. WHILE YOU SUGGEST THAT AN URGENT SITUATION EXISTED BECAUSE THE OFFICER WAS ORDERED TO A STATION WHERE THERE WAS NO MEDICAL OFFICER, YOUR STATEMENT TO THAT EFFECT IS NOT SUPPORTED BY INFORMATION FROM OFFICIAL SOURCES. ON THE CONTRARY, THE FACT THAT REGULAR WEEK-END TRIPS WERE MADE OVER A PERIOD OF MORE THAN TWO MONTHS (THE RECORD INDICATES THAT TWO ADDITIONAL TRIPS WERE MADE DURING THE FIRST TWO WEEK ENDS OF JULY 1946, FOR WHICH REIMBURSEMENT IS NOT CLAIMED) SUGGESTS A SITUATION WHICH WAS KNOWN SUFFICIENTLY FAR IN ADVANCE FOR THE ISSUANCE OF PROPER WRITTEN ORDERS. WHILE IT IS TRUE THAT AN OFFICER ORDINARILY MAY NOT QUESTION OTHERWISE PROPER VERBAL ORDERS OF HIS SUPERIOR OFFICER, BEFORE HE MAY BE REIMBURSED FOR THE EXPENSES OF TRAVEL PERFORMED UNDER SUCH VERBAL ORDERS, IT NONETHELESS IS REQUIRED THAT PROPER CONFIRMATORY ORDERS BE ISSUED AS REQUIRED BY APPLICABLE REGULATIONS (PARAGRAPH 5, ARMY REGULATIONS 35-4890, MAY 9, 1946, AND PARAGRAPH 13, ARMY REGULATIONS 310- 50, DECEMBER 1, 1944) AND THAT THEY CONTAIN SUCH INFORMATION AS WILL PERMIT THIS OFFICE TO AUTHORIZE AN EXPENDITURE OF PUBLIC FUNDS ON THE BASIS THEREOF. THE REQUIREMENT THAT VERBAL ORDERS MUST BE CONFIRMED WITHIN A REASONABLE TIME AFTER SUCH ORDERS ARE ISSUED IS BASED ON THE PROBABILITY THAT MANY OF THE FACTS WITH RESPECT TO SUCH ORDERS ARE MATTERS OF MEMORY RATHER THAN OF WRITTEN RECORD AND IF CONFIRMATORY ORDERS ARE TO BE OF SUCH ACCURACY AS TO PERMIT PAYMENTS FROM PUBLIC FUNDS ON THE BASIS THEREOF THEY MUST BE ISSUED WHILE THE OFFICER ISSUING THEM HAS A VIVID MEMORY AS TO SUCH FACTS. IN THIS CONNECTION, ATTENTION IS INVITED TO THE FACT THAT WHILE THE CLAIMANT STATES THAT TRAVEL FROM AND RETURN TO WRIGHT FIELD WAS PERFORMED ON FRIDAY AND SUNDAY OF EACH WEEK IN QUESTION, COLONEL E.L. OLSON, MC, THE OFFICER WHO SIGNED THE REQUESTS FOR WRITTEN ORDERS ON JANUARY 23, 1947, WHEN ASKED FOR CLARIFICATION OF THE TRAVEL HERE INVOLVED, SETS FORTH DATES IN 5TH INDORSEMENT OF OCTOBER 3, 1949, INDICATING THAT TRAVEL WAS PERFORMED ON FRIDAY AND SATURDAY OF EACH WEEK. LETTER OF JANUARY 15, 1947, FROM HEADQUARTERS, CLINTON COUNTY ARMY AIR FIELD, TO THE COMMANDING GENERAL, AIR MATERIEL COMMAND AT WRIGHT FIELD, IN WHICH CONFIRMATORY ORDERS ALSO WERE REQUESTED, LIKEWISE INDICATES THAT THE OFFICER WAS ON TEMPORARY DUTY AT THAT HEADQUARTERS ONLY ON FRIDAY AND SATURDAY OF EACH WEEK. HOWEVER, BE THAT AS IT MAY, UNDER ALL THE CIRCUMSTANCES IN THIS CASE, PARTICULARLY THE LONG DELAY IN ISSUING CONFIRMATORY ORDERS, THIS OFFICE IS NOT WARRANTED IN AUTHORIZING THE PAYMENT OF DR. HUGHES' CLAIM FROM PUBLIC FUNDS.

ACCORDINGLY, THE SETTLEMENT OF JULY 6, 1950, IS SUSTAINED.