B-135790, MAY 28, 1958

B-135790, MAY 28, 1958

TO MR. G. T. MOORE, DISBURSING OFFICER:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 22, 1958, WITH ENCLOSURES, FORWARDED HERE BY LETTER OF APRIL 9, 1958, FROM THE JUDGE ADVOCATE GENERAL, DEPARTMENT OF THE NAVY, REFERENCE JAG:1342.2:SH 3093, REQUESTING DECISION WHETHER PAYMENT PROPERLY MAY BE MADE ON THE ACCOMPANYING VOUCHER IN FAVOR OF LIEUTENANT COMMANDER BAIN S. ALLEN, USN, FOR PER DIEM COVERING THE PERIOD AUGUST 19 TO 29, 1957, INCIDENT TO TEMPORARY ADDITIONAL DUTY PERFORMED UNDER ORDERS OF FIGHTER SQUADRON ONE HUNDRED FORTY-ONE, AIR FORCE, U.S. PACIFIC FLEET, DATED AUGUST 19, 1957.

THE STATED SUBJECT OF THE ORDERS OF AUGUST 19, 1957, WAS "TEMPORARY ADDITIONAL DUTY; AUTHORIZATION FOR," AND THEY PROVIDED THAT COMMANDER ALLEN AND OTHER NAMED OFFICERS WERE AUTHORIZED TO PROCEED TO THE U.S. NAVAL AIR STATION ATSUGI, HONSHU ISLAND, JAPAN,"FOR TEMPORARY ADDITIONAL DUTY IN A FLYING STATUS IN CONNECTION WITH AVIATION MATTERS FOR A PERIOD OF TEN (10) DAYS," AFTER WHICH THEY WERE TO RETURN TO THEIR STATION AND RESUME THEIR REGULAR DUTIES. THE ORDERS PROVIDED IN PARAGRAPH 3 THAT "THE ABOVE IS AUTHORIZED WITH THE UNDERSTANDING THAT YOU WILL BE ENTITLED TO NO REIMBURSEMENT FOR EXPENSES IN CONNECTION THEREWITH. IN CASE YOU DO NOT DESIRE TO BEAR THIS EXPENSE YOU WILL REGARD THIS AUTHORIZATION AS REVOKED.' IT APPEARS THAT COMMANDER ALLEN LEFT HIS STATION AND REPORTED TO NAVAL AIR STATION ATSUGI ON AUGUST 19, 1957, AND THAT HE LEFT THAT STATION AND RETURNED TO HIS DUTY STATION ON AUGUST 29, 1957. ENDORSEMENT OF DECEMBER 2, 1957, TO THE ORDERS OF AUGUST 19 PROVIDED FOR THE MODIFICATION OF THOSE ORDERS TO PROVIDE THAT TRAVEL BY GOVERNMENT TRANSPORTATION WAS DIRECTED AND TO INDICATE THAT FUNDS FOR THE PAYMENT OF PER DIEM FOR THE TEMPORARY ADDITIONAL DUTY INVOLVED WERE AVAILABLE. NOTHING APPEARING IN THAT ENDORSEMENT PURPORTED TO AMEND THE ORDERS TO SHOW THAT THE PERFORMANCE OF THE DUTY IN QUESTION WAS REQUIRED AS A MATTER OF OFFICIAL BUSINESS RATHER THAN ONE OF ELECTION AT THE PLEASURE OR CONVENIENCE OF THE OFFICERS CONCERNED. THERE IS NO SUGGESTION THAT ERROR IN THE ISSUANCE OF THE ORDERS OF AUGUST 19 RESULTED IN PROVISIONS APPEARING IN THOSE ORDERS NOT CONSONANT WITH THE INTENT OF THE ISSUING AUTHORITY.

THE PERFORMANCE OF PUBLIC BUSINESS BY DIRECTION OF COMPETENT ORDERS IS THE BASIS OF AUTHORITY FOR THE PAYMENT OF TRAVEL AND TRANSPORTATION ALLOWANCES UNDER THE PROVISIONS OF SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813, AND PARAGRAPH 3050 OF THE JOINT TRAVEL REGULATIONS. INSTRUCTIONS COVERING THE ISSUANCE TO NAVAL OFFICER PERSONNEL OF TEMPORARY ADDITIONAL DUTY ORDERS ARE CONTAINED IN BUPERS INSTRUCTIONS 3121.2B. PARAGRAPH 5 OF THOSE INSTRUCTIONS EXTENDS AUTHORITY TO VARIOUS NAMED COMMANDS TO ISSUE AUTHORIZATIONS TO OFFICERS ON PERMANENT DUTY WITH THE NAVY TO PERFORM TRAVEL AT NO EXPENSE TO THE GOVERNMENT IN CASES WHERE THE SERVICE WILL BENEFIT BUT NOT TO THE EXTENT OF OBLIGATING GOVERNMENT FUNDS, THE TEXTS OF SUCH AUTHORIZATIONS TO INCLUDE THE PARAGRAPH OF LIMITATION AND ELECTION THAT APPEARED AS PARAGRAPH 3 IN THE ORDERS OF AUGUST 19, 1957, QUOTED ABOVE. ALSO, IT IS PROVIDED THAT OFFICIAL NAVY BUSINESS SHALL BE COVERED BY A DIRECTIVE-TYPE ORDER PROVIDING FOR APPROPRIATE TRAVEL EXPENSES AND NOT BY AUTHORIZATION TO TRAVEL AT NO EXPENSE TO THE GOVERNMENT.

THE ORDERS OF AUGUST 19 WERE OF THE TRAVEL AUTHORIZATION TYPE CONTEMPLATED BY THOSE INSTRUCTIONS AND PRESUMABLY WERE ISSUED ON THE BASIS OF A DETERMINATION THAT OFFICIAL NAVY BUSINESS WAS NOT PRIMARILY INVOLVED. WHILE THE MODIFICATION OF DECEMBER 2, 1957, ATTEMPTED A CHANGE IN THE ORDERS TO PROVIDE DIRECTION FOR TRAVEL BY GOVERNMENT TRANSPORTATION AND TO INDICATE THAT FUNDS THEN WERE AVAILABLE FOR THE PAYMENT OF PER DIEM, SUCH MODIFICATION CONTAINED NOTHING WHICH, WERE IT OTHERWISE ACCEPTABLE TO RETROACTIVELY MODIFY THE ORDERS OF AUGUST 19, WOULD OVERCOME AND DISPROVE THE INITIAL DETERMINATION OF A LACK OF OFFICIAL NAVY BUSINESS WHICH RESULTED IN THE ISSUANCE OF THE AUTHORIZATION-TYPE ORDERS.

SINCE THE TRAVEL AND TEMPORARY DUTY IN QUESTION WERE AUTHORIZED FOR PERFORMANCE BY THE ORDERS OF AUGUST 19 AT COMMANDER ALLEN'S PLEASURE AND AT NO EXPENSE TO THE GOVERNMENT AND THE MODIFICATION OF DECEMBER 2, 1957, CONTAINS NO INDICATION THAT THOSE ORDERS DID NOT CONTAIN THE PROVISIONS INTENDED, IT IS CONCLUDED THAT THE TRAVEL AND TEMPORARY DUTY INVOLVED WERE NOT PERFORMED ON OFFICIAL BUSINESS UNDER COMPETENT TRAVEL ORDERS FOR PER DIEM PURPOSES UNDER THE GOVERNING LAW AND REGULATIONS. ACCORDINGLY, YOU ARE NOT AUTHORIZED TO MAKE PAYMENT ON THE SUBMITTED VOUCHER WHICH WILL BE RETAINED HERE. THE ORIGINAL ORDERS OF AUGUST 19, 1957, AND MODIFYING INDORSEMENT OF DECEMBER 2, 1957, ARE ENCLOSED FOR THEIR RETURN TO COMMANDER ALLEN.