B-140908, SEP. 22, 1960

B-140908, SEP. 22, 1960

TO SERGEANT ERNEST I. J. AGUILAR:

REFERENCE IS MADE TO YOUR LETTER OF JULY 20, 1960, REQUESTING RECONSIDERATION OF OUR DECISION TO YOU DATED OCTOBER 16, 1959, B 140908, WHICH SUSTAINED THE ACTION TAKEN IN OUR SETTLEMENT OF AUGUST 27, 1959, IN DISALLOWING YOUR CLAIM FOR TRAVEL ALLOWANCES FROM FORT LEWIS, WASHINGTON, TO CAMP DRUM, NEW YORK, AND RETURN, DURING THE PERIOD MAY 13 TO MAY 29, 1959.

YOU WERE ADVISED IN THE DECISION OF OCTOBER 16, 1959, THAT WE HAVE HELD THAT NO OFFICIAL TRAVEL IS REQUIRED UNDER CHANGE OF STATION ORDERS, EITHER OF A PERMANENT OR TEMPORARY NATURE, UNTIL SUCH TIME AS THE MEMBER IS REQUIRED TO DEPART THE OLD STATION BY ORDINARY MEANS OF COMMERCIAL TRANSPORTATION (RAIL UNLESS OTHERWISE SPECIFIED) TO REACH HIS NEW STATION ON THE DATE REQUIRED BY HIS TRAVEL ORDERS. SINCE YOU DEPARTED FROM FORT LEWIS PRIOR TO THE TIME OFFICIAL TRAVEL WAS REQUIRED TO ARRIVE AT CAMP DRUM IN ORDER TO REPORT ON THE DATE SPECIFIED IN YOUR TRAVEL ORDERS, AND SINCE YOUR ORDERS WERE REVOKED IN THE MEANTIME, WE HELD THAT THERE WAS NO AUTHORITY UNDER WHICH YOU COULD BE PAID TRAVEL ALLOWANCES. YOUR REQUEST FOR FURTHER CONSIDERATION IS MADE ON THE BASIS THAT YOU COMPLETED YOUR TRAVEL TO CAMP DRUM PRIOR TO THE TIME NOTIFICATION WAS SENT TO SERGEANT BRUMMITT THAT YOUR ORDERS HAD BEEN REVOKED, AND ALSO THAT YOU DID NOT RECEIVE PERSONAL NOTICE OF THE REVOCATION OF YOUR ORDERS. YOU ALSO REQUEST THAT OUR DECISION BE GUIDED BY THE SPIRIT AND NOT BY THE LETTER OF THE LAW.

WHEN A MEMBER IS GIVEN ORDERS TO LEAVE ONE STATION AND TRAVEL TO ANOTHER STATION FOR DUTY, WITH LEAVE GRANTED IN ADDITION TO THE TRAVEL TIME, HE IS FREE TO REMAIN AT HIS OLD STATION UNTIL IT IS TIME TO DEPART FOR THE NEW STATION OR HE MAY SPEND HIS LEAVE ELSEWHERE AND REPORT TO HIS NEW STATION ON THE DATE REQUIRED. IF THE MEMBER CHOOSES THE LATTER AND THEREBY DOES NOT RECEIVE NOTICE THAT HIS ORDERS HAVE BEEN CHANGED OR CANCELLED, THE RESPONSIBILITY IS HIS AND ANY COST OF EXCESS TRAVEL MUST BE BORNE BY HIM.

IN YOUR PRESENT LETTER YOU SAY THAT YOU AND SERGEANT BRUMMITT DEPARTED FROM FORT LEWIS ON MAY 13, 1959, TRAVELING TOGETHER IN HIS CAR AS FAR AS CHICAGO; THAT YOU CONTINUED ON TO YOUNGSTOWN, OHIO, AND THAT, AFTER A SHORT STAY THERE, YOU PROCEEDED TO CAMP DRUM, REPORTING IN ON OR ABOUT MAY 28, 1959. ALSO, YOU SAY THAT AFTER SIGNING IN, YOU CALLED YOUR FATHER IN YOUNGSTOWN; THAT SERGEANT BRUMMITT WHO WAS AT YOUR FATHER'S HOUSE INFORMED YOU OF A TELEGRAM HE HAD RECEIVED ADVISING THAT YOUR ORDERS HAD BEEN CANCELLED, AND THAT YOU THEN RETURNED WITH HIM TO FORT LEWIS.

THERE IS SOME VARIANCE BETWEEN THE FOREGOING STATEMENTS AND THE STATEMENTS MADE IN YOUR LETTER OF SEPTEMBER 16, 1959, AND THE ITINERARY OF TRAVEL SHOWN ON THE TRAVEL VOUCHER WHICH YOU SUBMITTED. AS SET FORTH IN OUR DECISION OF OCTOBER 16, 1959, THE VOUCHER SHOWS THAT YOU DEPARTED FORT LEWIS ON MAY 13, ARRIVED AT AND DEPARTED FROM CHICAGO ON MAY 16, AND AFTER TRAVELING TO YOUNGSTOWN, OHIO, AND BUFFALO, NIAGARA FALLS AND SYRACUSE, NEW YORK, YOU ARRIVED AT CAMP DRUM AT 0930 ON MAY 23, 1959. YOU DEPARTED AT 1200 ON THE SAME DATE AND ARRIVED AT BUFFALO THAT EVENING. ACCORDING TO YOUR LETTER OF SEPTEMBER 16, 1959, IT WAS FROM THERE THAT YOU CALLED YOUR FATHER AND LEARNED OF THE CANCELLATION OF YOUR ORDERS. FROM THERE YOU PROCEEDED TO FORT LEWIS, ARRIVING ON MAY 28, 1959.

THE FACT THAT YOU REMAINED AT CAMP DRUM FOR LESS THAN THREE HOURS BEFORE PROCEEDING ON TO BUFFALO TO VISIT WITH RELATIVES INDICATES THAT YOU CONTINUED IN A LEAVE STATUS AFTER ARRIVING AT CAMP DRUM. BUT IF YOU ACTUALLY REPORTED THERE FOR DUTY ON MAY 23, THE REQUIRED DATE OF YOUR DEPARTURE FROM FORT LEWIS IN ORDER TO TRAVEL BY COMMERCIAL TRANSPORTATION AND REPORT ON THAT DATE STILL WOULD HAVE BEEN AFTER MAY 16, THE DATE YOUR ORDERS WERE CANCELLED, SO THAT IF YOU HAD REMAINED AT YOUR STATION UNTIL THE REQUIRED DATE OF DEPARTURE YOU WOULD HAVE RECEIVED NOTICE OF THE CANCELLATION OF YOUR ORDERS PRIOR THERETO. IN THESE CIRCUMSTANCES IT MUST BE CONCLUDED THAT NO OFFICIAL TRAVEL WAS REQUIRED UNDER YOUR ORDERS, THE TRAVEL HAVING BEEN PERFORMED FOR PERSONAL REASONS. SINCE THE REQUIRED DATE OF DEPARTURE FROM FORT LEWIS IN ORDER TO ARRIVE AT CAMP DRUM ON MAY 23 WAS AFTER THE DATE OF CANCELLATION OF YOUR ORDERS, THE FACT THAT YOU ARRIVED AT CAMP DRUM BEFORE RECEIVING NOTICE OF SUCH CANCELLATION AFFORDS NO BASIS TO ALLOW YOUR CLAIM.

RELATIVE TO YOUR REQUEST THAT OUR DECISION BE GUIDED BY THE SPIRIT AND NOT BY THE LETTER OF THE LAW, IT MAY BE STATED THAT THE AUTHORITY OF OUR OFFICE UNDER SECTION 236 REVISED STATUTES, AS AMENDED BY SECTION 305 OF THE BUDGET AND ACCOUNTING ACT OF 1921, 31 U.S.C. 71, DOES NOT EXTEND TO CLAIMS BASED SOLELY ON EQUITABLE OR MORAL OBLIGATION. WE TRUST YOU WILL UNDERSTAND THAT WE ARE WITHOUT AUTHORITY TO IGNORE THE APPLICABLE STATUTES AND REGULATIONS IN THE SETTLEMENT OF CLAIMS THAT ARE PRESENTED TO US FOR CONSIDERATION.

ACCORDINGLY, WE HAVE NO CHOICE BUT TO AFFIRM OUR DECISION OF OCTOBER 16, 1959.