B-112988, APR 6, 1953

B-112988, APR 6, 1953

PRECIS-UNAVAILABLE

HERBERT S. COOK:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 7, 1952, REQUESTING REVIEW OF THAT PART OF GENERAL ACCOUNTING OFFICE SETTLEMENT DATED JUNE 5, 1952, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM DURING THE PERIOD APRIL 30 TO JUNE 15, 1951, INCIDENT TO DUTY PERFORMED BY YOU AS A LIEUTENANT, JUNIOR GRADE, U. S. NAVAL RESERVE AT ROCHESTER, NEW YORK.

BY BUREAU OF NAVAL PERSONNEL ORDERS OF MARCH 22, 1951, YOU WERE DIRECTED TO PROCEED FROM YOUR HOME - FOLLOWING PHYSICAL EXAMINATION SHOWING PHYSICAL QUALIFICATION FOR ACTIVE DUTY - AND REPORT TO THE NAVAL INSPECTOR OF ORDNANCE, EASTMAN KODAK COMPANY, ROCHESTER, NEW YORK, ON OR BEFORE MAY 29, 1951, "FOR ACTIVE DUTY." ENDORSEMENT THEREON SHOWS THAT YOU SO REPORTED ON APRIL 30, 1951. BUREAU OF NAVAL PERSONNEL ORDERS OF JUNE 15, 1951, DIRECTED YOUR DETACHMENT FROM SUCH DUTY AND ORDERED YOU TO REPORT TO THE SAME OFFICER FOR TEMPORARY DUTY PENDING FURTHER ASSIGNMENT BY THE BUREAU OF NAVAL PERSONNEL. ORDERS FROM THE LATTER OFFICER DATED JULY 27, 1951, DETACHED YOU FROM SUCH DUTY AS OF AUGUST 1, 1951. "CLARIFICATION OF ORDERS" DATED DECEMBER 21, 1951, SIGNED BY THE CHIEF OF NAVAL PERSONNEL STATES THAT YOU WERE IN THE FIRST GROUP OF OFFICERS CALLED TO TEMPORARY ACTIVE DUTY AT ROCHESTER, NEW YORK, PENDING FURTHER ASSIGNMENT BY THE BUREAU OF NAVAL PERSONNEL AT A LATER DATE, BUT THAT SINCE YOUR CASE WAS THE FIRST ONE RECEIVED AND THE REQUEST FOR ORDERS FAILED TO INDICATE THAT THIS WAS A TEMPORARY ASSIGNMENT, THE ORDERS OF MARCH 22, 1951, WERE ISSUED FOR ACTIVE DUTY INSTEAD OF TEMPORARY ACTIVE DUTY. IT IS STATED THAT THE BUREAU OF NAVAL PERSONNEL "TRIED TO RECTIFY THIS ERROR" BY ISSUING THE ORDERS OF JUNE 15, 1951. IT IS STATED FURTHER THAT THE BUREAU LATER OBTAINED COPIES OF BUREAU OF ORDNANCE LETTERS IN WHICH YOU WERE INFORMED THAT THE DUTY AT ROCHESTER WOULD BE OF A TEMPORARY NATURE PENDING FURTHER ASSIGNMENT AND THAT YOU WOULD BE ENTITLED TO PER DIEM FOR SUCH DUTY. THE THIRD PARAGRAPH OF SAID CLARIFICATION OF ORDERS IS AS FOLLOWS:

"3. THE ABOVE STATED CIRCUMSTANCES SHOW THE INTENTION OF THE BUREAU WAS TO ASSIGN YOU, AS WELL AS OTHER RESERVE OFFICERS IN THAT GROUP, TO TEMPORARY ACTIVE DUTY AT ROCHESTER, NEW YORK, PENDING FURTHER ASSIGNMENT TO PERMANENT ACTIVE DUTY. YOUR ORIGINAL ORDERS OF 22 MARCH 1951 ARE HEREBY CORRECTED ACCORDINGLY."

HOWEVER, THE CONCLUSIONS REACHED IN THE SAID PARAGRAPH SEEM TO BE ENTIRELY INCONSISTENT WITH THE OTHER STATEMENTS MADE IN THE CLARIFICATION SINCE IT IS APPARENT THAT THE "INTENTION" OF THE BUREAU OF NAVAL PERSONNEL TO ASSIGN YOU TO TEMPORARY DUTY PENDING FURTHER ASSIGNMENT DID NOT ARISE UNTIL SOMETIME AFTER THE ORDERS OF MARCH 22, 1951, WERE ISSUED. COPIES OF THE MENTIONED BUREAU OF ORDNANCE LETTERS HAVE BEEN OBTAINED. THEY NOT ONLY WERE INDEFINITE AS TO WHETHER THE DUTY AT ROCHESTER WAS TO BE TEMPORARY OR PERMANENT, BUT THE FIRST ONE WAS NOT EVEN WRITTEN UNTIL MARCH 30, 1951, MORE THAN A WEEK AFTER THE PERMANENT DUTY ORDERS HAD BEEN ISSUED BY THE BUREAU OF NAVAL PERSONNEL. WHILE THIS OFFICE HAS RECOGNIZED THAT TRAVEL ORDERS MAY BE AMENDED IN CERTAIN EXCEPTIONAL CASES WHERE ALL THE FACTS AND CIRCUMSTANCES CLEARLY SHOW THAT SOME PROVISION PREVIOUSLY DETERMINED AND DEFINITELY INTENDED, HAS BEEN OMITTED THROUGH ERROR OR INADVERTENCE IN PREPARING THE TRAVEL ORDER, THE RECORD CLEARLY SHOWS THAT AT THE TIME THE ORDERS OF MARCH 22 WERE ISSUED, THE ORDER ISSUING AUTHORITY - BUREAU OF NAVAL PERSONNEL - INTENDED TO ISSUE ORDERS DIRECTING YOU TO PERFORM PERMANENT DUTY AT ROCHESTER.

IT APPEARING THAT ROCHESTER WAS YOUR DESIGNATED POST OF DUTY DURING THE PERIOD INVOLVED, THE DISALLOWANCE OF YOUR CLAIM FOR SUCH PERIOD IS SUSTAINED.