B-131927, JUN. 26, 1957

B-131927: Jun 26, 1957

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SMITH: FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 7. WHEN DIRECTED BY THE COMMANDING OFFICER OF THE ACTIVITY AT WHICH YOU WERE SEPARATED. YOU WERE TO PROCEED TO YOUR HOME AT NEVADA. THE FOLLOWING WORDS WERE OMITTED IN ERROR: "TRAVEL VIA PRIVATELY OWNED CONVEYANCE IS AUTHORIZED.'. APPEARS THAT YOU WERE PAID PAY AND ALLOWANCES FOR TWO DAYS' TRAVEL TIME AND YOUR CLAIM IS FOR PAY FOR THE ADDITIONAL TIME NECESSARY FOR TRAVEL TO YOUR HOME ACCOMPLISHED BY AUTOMOBILE FROM THE PLACE OF SEPARATION AT SAN DIEGO. WHILE IT HAS BEEN RECOGNIZED THAT TRAVEL ORDERS MAY BE AMENDED RETROACTIVELY IN CERTAIN EXCEPTIONAL CASES WHERE THE ORDERS ARE AMBIGUOUS OR INCOMPLETE ON THEIR FACE OR WHERE ALL THE FACTS AND CIRCUMSTANCES CLEARLY SHOW THAT SOME PROVISION PREVIOUSLY INTENDED AND DEFINITELY AUTHORIZED HAS BEEN OMITTED THROUGH ERROR OR INADVERTENCE IN PREPARING THE ORDERS.

B-131927, JUN. 26, 1957

TO MR. MAX H. SMITH:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 7, 1957, REQUESTING REVIEW OF SETTLEMENT DATED FEBRUARY 27, 1957, WHICH DISALLOWED YOUR CLAIM FOR PAY AND ALLOWANCES FOR ADDITIONAL TRAVEL TIME TO YOUR HOME INCIDENT TO YOUR RELEASE FROM ACTIVE DUTY AS A LIEUTENANT (JG), U.S. NAVAL RESERVE.

BUREAU OF NAVAL PERSONNEL ORDERS OF APRIL 19, 1956, ADDRESSED AND DELIVERED TO YOU ON BOARD A VESSEL, DIRECTED YOU TO PROCEED TO THE UNITED STATES AND, UPON ARRIVAL, FURTHER TO PROCEED AND REPORT TO THE APPROPRIATE ACTIVITY NEAREST THE PORT OF DEBARKATION, FOR TEMPORARY DUTY IN CONNECTION WITH YOUR SEPARATION PROCESSING. UPON COMPLETION OF SEPARATION PROCESSING, AND WHEN DIRECTED BY THE COMMANDING OFFICER OF THE ACTIVITY AT WHICH YOU WERE SEPARATED, YOU WERE TO PROCEED TO YOUR HOME AT NEVADA, TEXAS, FOR RELEASE FROM ACTIVE DUTY "IN ACCORDANCE WITH HIS INSTRUCTION.' IN A LETTER OF NOVEMBER 16, 1956, THE CHIEF OF NAVAL PERSONNEL STATED THAT IN ISSUING THE ORDERS OF APRIL 19, 1956, THE FOLLOWING WORDS WERE OMITTED IN ERROR: "TRAVEL VIA PRIVATELY OWNED CONVEYANCE IS AUTHORIZED.' APPEARS THAT YOU WERE PAID PAY AND ALLOWANCES FOR TWO DAYS' TRAVEL TIME AND YOUR CLAIM IS FOR PAY FOR THE ADDITIONAL TIME NECESSARY FOR TRAVEL TO YOUR HOME ACCOMPLISHED BY AUTOMOBILE FROM THE PLACE OF SEPARATION AT SAN DIEGO, CALIFORNIA.

WHILE IT HAS BEEN RECOGNIZED THAT TRAVEL ORDERS MAY BE AMENDED RETROACTIVELY IN CERTAIN EXCEPTIONAL CASES WHERE THE ORDERS ARE AMBIGUOUS OR INCOMPLETE ON THEIR FACE OR WHERE ALL THE FACTS AND CIRCUMSTANCES CLEARLY SHOW THAT SOME PROVISION PREVIOUSLY INTENDED AND DEFINITELY AUTHORIZED HAS BEEN OMITTED THROUGH ERROR OR INADVERTENCE IN PREPARING THE ORDERS, A MERE ASSERTION OF ERROR UNACCOMPANIED BY A STATEMENT OF FACT SUPPORTING THE CLAIM OF ERROR HAS NOT BEEN ACCEPTED AS A SUFFICIENT BASIS FOR RETROACTIVE AMENDMENT OF ORDERS. THE ORDERS OF APRIL 19, 1956, WHERE NEITHER AMBIGUOUS NOR INCOMPLETE AND THEY CONTEMPLATED THAT THE COMMANDING OFFICER AT THE SEPARATION ACTIVITY WOULD PROVIDE INSTRUCTIONS FOR TRAVEL TO YOUR HOME, INCLUDING AUTHORIZATION FOR TRAVEL TIME VIA THE MEANS OF TRANSPORTATION YOU ADVISED HIM THAT YOU INTENDED TO USE.

IT SEEMS IMPROBABLE THAT THE CHIEF OF NAVAL PERSONNEL HAD ANY KNOWLEDGE AS TO WHETHER OR NOT YOU INTENDED TO TRAVEL TO YOUR HOME BY AUTOMOBILE AT THE TIME THE ORDERS OF APRIL 19, 1956, WERE ISSUED AND PRESUMABLY A PROVISION AUTHORIZING TRAVEL BY PRIVATELY OWNED CONVEYANCE WAS NOT INCLUDED FOR THAT REASON. THE COMMANDING OFFICER AT THE SEPARATION ACTIVITY IN SAN DIEGO WAS AUTHORIZED TO INCLUDE SUCH PROVISION IN HIS ENDORSEMENT ON SUCH ORDERS UPON YOUR ADVISING HIM THAT YOU INTENDED TO TRAVEL TO YOUR HOME BY AUTOMOBILE. ORDERS AND ENDORSEMENTS THEREON IN OTHER SIMILAR CASES CONSIDERED HERE HAVE SO PROVIDED. YOU HAVE NOT FURNISHED A COPY OF SUCH COMMANDING OFFICER'S ENDORSEMENT ON YOUR ORDERS AND IT IS ASSUMED THAT SUCH ENDORSEMENT AUTHORIZED TRAVEL BY PUBLIC CONVEYANCE AND GRANTED TWO DAYS' TRAVEL TIME BY SUCH MEANS OF TRANSPORTATION.

ACCORDINGLY, ON THE BASIS OF THE PRESENT RECORD THERE IS NO AUTHORITY FOR THE PAYMENT OF YOUR CLAIM AND THE SETTLEMENT OF FEBRUARY 27, 1957, IS SUSTAINED.