B-139351, MAY 12, 1959

B-139351, MAY 12, 1959

PRECIS-UNAVAILABLE

HERMAN H. JACOBSON, PH1, USN:

REFERENCE IS MADE TO YOUR CLAIM DATED FEBRUARY 4, 1959, AND ENCLOSURE, WHICH WILL BE TREATED AS A REQUEST FOR RECONSIDERATION OF OUR SETTLEMENT OF AUGUST 18, 1958, WHEREIN AN IDENTICAL CLAIM BY YOU FOR REIMBURSEMENT FOR TRAVEL PERFORMED FROM SAN FRANCISCO, CALIFORNIA, TO SEATTLE, WASHINGTON, AND RETURN DURING THE PERIOD SEPTEMBER 12-14, 1957, WAS DISALLOWED.

AT THE TIME OF OUR SETTLEMENT OF AUGUST 18, 1958, THE RECORD SHOWED THAT YOU WERE DIRECTED BY LETTER ORDERS OF JULY 5, 1957, ISSUED BY COMMANDER MILITARY SEA TRANSPORTATION SERVICE, PACIFIC AREA, FORT MASON, SAN FRANCISCO, CALIFORNIA, TO PROCEED TO SEATTLE, WASHINGTON, FOR TEMPORARY DUTY TO AWAIT THE ARRIVAL OF CTG 5.1. ON OR ABOUT JULY 10, 1957, YOU WERE TO REPORT TO CTG 5.1 FOR TEMPORARY ADDITIONAL DUTY IN CONNECTION WITH PHOTOGRAPHIC COVERAGE OF MSTS ARCTIC OPERATIONS 1957 FOR A PERIOD OF ABOUT THREE MONTHS. UPON COMPLETION OF TEMPORARY ADDITIONAL DUTY YOU WERE TO RETURN TO YOUR PERMANENT STATION AND RESUME YOUR REGULAR DUTIES. TRAVEL VIA PRIVATE VEHICLE WAS AUTHORIZED AS BEING MORE ADVANTAGEOUS TO THE GOVERNMENT.

IN ACCORDANCE WITH THE ORDERS OF JULY 5, 1957, YOU TRAVELED BY PRIVATELY OWNED AUTOMOBILE FROM SAN FRANCISCO TO SEATTLE WHERE YOU REPORTED ON BOARD THE U.S.S. ELDORADO FOR TEMPORARY ADDITIONAL DUTY. UPON COMPLETION OF YOUR TEMPORARY ADDITIONAL DUTY THE U.S.S. ELDORADO PUT IN AT SAN DIEGO, CALIFORNIA. YOU WERE DETACHED AT THAT PLACE AND TRAVELED TO YOUR PERMANENT DUTY STATION AT SAN FRANCISCO AT GOVERNMENT EXPENSE.

AN ENLISTED LEAVE AUTHORIZATION PREPARED SEPTEMBER 10, 1957, SHOWS THAT YOU WERE GRANTED LEAVE OF ABSENCE COMMENCING 8:00 A.M., SEPTEMBER 11, 1957. THE AUTHORIZATION ALSO SHOWS YOU DEPARTED ON LEAVE AT 8:05 A.M., SEPTEMBER 11, 1957, AND RETURNED FROM LEAVE AT 10:20 A.M., SEPTEMBER 14, 1957.

IN A LETTER DATED OCTOBER 4, 1957, TO COMMANDING OFFICER, ENLISTED PERSONNEL, COMSTSPACAREA, FORT MASON, SAN FRANCISCO, CALIFORNIA, YOU STATED THAT SINCE THE U.S.S. ELDORADO DID NOT RETURN TO SEATTLE, YOU WERE REQUIRED TO TAKE LEAVE FOR THE TRIP TO SEATTLE AND RETURN IN ORDER TO DRIVE YOUR CAR BACK TO YOUR PERMANENT STATION AT SAN FRANCISCO. THIS LETTER, TOGETHER WITH A TRAVEL VOUCHER DATED OCTOBER 2, 1957, AND A COPY OF YOUR ORDERS OF JULY 5, 1957, WERE MADE THE BASIS FOR YOUR CLAIM FOR REIMBURSEMENT, AND, BY LETTER DATED JANUARY 10, 1958, FROM COMMANDER MILITARY SEA TRANSPORTATION SERVICE, PACIFIC AREA, YOUR CLAIM WAS FORWARDED TO OFFICER IN CHARGE, NAVAL REGIONAL ACCOUNTS OFFICE, WASHINGTON, D. C. PARAGRAPH 4 OF THE LETTER OF JANUARY 10, 1958, IS TO THE EFFECT THAT TEMPORARY ADDITIONAL ORDERS SHOULD HAVE BEEN ISSUED, THAT YOU WERE INFORMED BY A YEOMAN THAT YOU WOULD HAVE TO TAKE LEAVE TO GET YOUR CAR AND THAT YOU ACCEPTED SUCH INFORMATION WITHOUT CONTACTING PERSONNEL CONCERNED IN PREPARING TEMPORARY ADDITIONAL DUTY ORDERS. BUREAU OF NAVAL PERSONNEL LETTER, DATED FEBRUARY 21, 1958, ADDRESSED TO YOU FROM THE CHIEF OF NAVAL PERSONNEL DISAPPROVED YOUR CLAIM ON THE GROUND THAT ORDERS WERE NOT ISSUED DIRECTING THE TRAVEL FOR WHICH REIMBURSEMENT WAS CLAIMED.

OUR SETTLEMENT OF AUGUST 18, 1958, DISALLOWED YOUR CLAIM FOR THE REASON THAT WRITTEN ORDERS WERE NOT ISSUED TO DIRECT THE TRAVEL FOR WHICH REIMBURSEMENT WAS CLAIMED, AND IF THE TRAVEL WAS PERFORMED IN ACCORDANCE WITH VERBAL ORDERS, THERE WAS NO RECORD THAT SUCH VERBAL ORDERS HAD BEEN SUBSEQUENTLY CONFIRMED IN WRITING.

IN SUPPORT OF YOUR CLAIM, YOU NOW HAVE FURNISHED CONFIRMATION ORDERS ISSUED BY COMMANDER MILITARY SEA TRANSPORTATION SERVICE, PACIFIC AREA, UNDER DATE OF FEBRUARY 3, 1959. THESE ORDERS PURPORTEDLY CONFIRM VERBAL ORDERS OF SEPTEMBER 11, 1957, DIRECTING YOU TO PROCEED TO SEATTLE, WASHINGTON, FOR TEMPORARY ADDITIONAL DUTY TO SECURE AND RETURN PHOTOGRAPHIC EQUIPMENT, THAT TRAVEL TO BE VIA PRIVATELY OWNED VEHICLE AS BEING MORE ADVANTAGEOUS TO THE GOVERNMENT. FIRST ENDORSEMENT, ALSO DATED FEBRUARY 3, 1959, PURPORTS TO SHOW THAT YOU DEPARTED ON TEMPORARY ADDITIONAL DUTY AT 8:05 A.M., SEPTEMBER 11, 1957, AND RETURNED FROM TEMPORARY ADDITIONAL DUTY AT 10:20 A.M., SEPTEMBER 14, 1957, AT WHICH TIME YOUR TEMPORARY ADDITIONAL DUTY WAS COMPLETED AND YOU RESUMED YOUR REGULARLY ASSIGNED DUTIES.

UPON A REVIEW OF THE ENTIRE RECORD AS PRESENTLY BEFORE US, IT APPEARS THAT YOU WERE ABSENT FROM YOUR PERMANENT DUTY STATION AT SAN FRANCISCO FOR THE PERIOD 8:05 A.M., SEPTEMBER 11, 1957, UNDER AUTHORITY OF WRITTEN LEAVE ORDERS GRANTED BY DIRECTION OF COMMANDER MILITARY SEA TRANSPORTATION SERVICE, PACIFIC AREA. EXCEPT FOR THE BELATED CONFIRMATION ORDERS WHICH CONFIRM VERBAL ORDERS PURPORTEDLY ISSUED MORE THAN 16 MONTHS BEFORE, THERE IS NO EVIDENCE OF RECORD TO INDICATE THAT SUCH LEAVE AUTHORIZATION WAS COUNTERMINDED, CANCELLED OR RESCINDED. CONVERSELY, THERE APPEARS TO BE AMPLE SUBSTANTIATION FOR A CONCLUSION THAT YOUR LEAVE AUTHORIZATION ORDERS WERE THE ONLY ORDERS UNDER WHICH YOU WERE ABSENT FROM YOUR DUTY STATION FOR THE PERIOD OF YOUR CLAIM.

THE FOLLOWING EXCERPTS FROM THE RECORD, ALL DATED SUBSEQUENT TO COMPLETION OF THE TRAVEL FOR WHICH REIMBURSEMENT IS CLAIMED ARE INDICATIVE OF THE FACT THAT NO COMPETENT CONTEMPORANEOUS ORDERS (OTHER THAN LEAVE AUTHORIZATION) WERE ISSUED.

YOUR LETTER OF OCTOBER 4, 1957, STATES IN PART:

"3. I FEEL THAT REIMBURSEMENT FOR TRAVEL TO SEATTLE AND RETURN TO SAN FRANCISCO IS DUE ME. HOWEVER, I UNDERSTAND THAT PAYMENT CANNOT BE MADE UNLESS I HAVE ORDERS AUTHORIZING THE TRAVEL."

COMSTSPACAREA LETTER OF JANUARY 10, 1958, STATES IN PART:

"3. THE USS ELDORADO UPON COMPLETION OF PROJECT 572 DID NOT DOCK AT SEATTLE, WASHINGTON AS WAS ASSUMED. IT DOCKED AT SAN DIEGO, CALIFORNIA AND JACOBSON WAS GIVEN A TRANSPORTATION REQUEST FOR RETURN TO SAN FRANCISCO, CALIFORNIA. UPON ARRIVAL HE WAS GRANTED LEAVE TO PICK UP HIS CAR AT SEATTLE, WASHINGTON AND TO TRANSPORT 300 POUNDS OF NAVY PHOTOGRAPHIC EQUIPMENT TO COMSTSPACAREA AT SAN FRANCISCO. THIS EQUIPMENT HAD BEEN LEFT AT COMSTSMORPACSUBAREA BY SHIPS TERMINATING THE PROJECT AT SEATTLE.

"4. NECESSARY TEMPORARY ADDITIONAL DUTY ORDERS OR MODIFICATION TO ENCLOSURE (3) TO ACCOMPLISH THIS TASK SHOULD HAVE BEEN ISSUED JACOBSON BY COMSTSPACAREA. HOWEVER, JACOBSON WAS INFORMED BY A YEOMAN THAT HE WOULD HAVE TO TAKE LEAVE TO GET HIS CAR AND JACOBSON ACCEPTED THE INFORMATION WITHOUT CONTACTING PERSONNEL CONCERNED IN PREPARING TAD ORDERS. BECAUSE OF TRANSPORTING GOVERNMENT EQUIPMENT SUCH ACTION BEING DEEMED MORE ADVANTAGEOUS TO THE GOVERNMENT COMSTSPACAREA BELIEVES THAT THE ATTACHED CLAIM IS JUST AND PROPER PAYMENT SHOULD BE MADE."

BUREAU OF NAVAL PERSONNEL LETTER OF FEBRUARY 21, 1958, STATES IN PART:

"2. SINCE ORDERS WERE NOT ISSUED DIRECTING THE TRAVEL FOR WHICH REIMBURSEMENT IS CLAIMED, THERE IS NO BASIS WHEREBY REIMBURSEMENT MAY BE MADE THEREFOR AND THE CLAIM IS RETURNED NOT APPROVED."

THUS, IT SEEMS APPARENT THAT NO VERBAL ORDERS, SUBJECT TO WRITTEN CONFIRMATION, IN FACT WERE ISSUED IN ADVANCE OF THE TRAVEL AS REQUIRED BY PARAGRAPH 3002-2 OF THE JOINT TRAVEL REGULATIONS ISSUED PURSUANT TO SECTION 303(A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 802. ALSO, IT IS QUITE APPARENT THAT THE BELATED CONFIRMATORY ORDERS DATED MORE THAN 16 MONTHS AFTER THE TRAVEL IN QUESTION WAS PERFORMED, PRESENT A GRAVE INCONSISTENCY WITH THE CONTEMPORANEOUSLY WRITTEN LEAVE ORDERS ISSUED BY THE SAME AUTHORITY. VERBAL ORDERS INCONSISTENT WITH WRITTEN ORDERS CONTEMPORANEOUSLY ISSUED BY THE SAME AUTHORITY TO THE SAME PERSON MAY NOT BE GIVEN ANY EFFECT FOR PAY PURPOSES WHEN THE VERBAL ORDERS ARE NOT CONFIRMED FOR A LONG PERIOD OF TIME AFTER THEY PURPORTEDLY WERE ISSUED, AND THERE IS NO EVIDENCE TO ESTABLISH THAT THEY ACTUALLY WERE ISSUED, EXCEPT THE BELATED CONFIRMATORY ORDERS THEMSELVES.

FROM A REVIEW OF THE ENTIRE RECORD IT APPEARS THAT YOU PERFORMED PERMISSIVE TRAVEL AT YOUR OWN CONVENIENCE RATHER THAN DIRECTED TRAVEL INTENDED TO BE AT PUBLIC EXPENSE. IN THE CIRCUMSTANCES, WE FIND NO BASIS FOR CONCLUDING THAT REIMBURSABLE TRAVEL WAS PERFORMED PURSUANT TO COMPETENT ORDERS AS REQUIRED BY LAW. ON THE BASIS OF THE RECORD, WE WOULD NOT BE WARRANTED IN ALLOWING YOU REIMBURSEMENT FOR TRAVEL PERFORMED DURING THE PERIOD SEPTEMBER 12-14, 1957, AND THE SETTLEMENT OF AUGUST 18, 1958, MUST BE SUSTAINED.