B-146676, OCT. 6, 1961

B-146676: Oct 6, 1961

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USNR-R: REFERENCE IS MADE TO LETTER DATED AUGUST 3. WRITTEN IN YOUR BEHALF BY YOUR ATTORNEY AND BEARING YOUR SIGNED ENDORSEMENT TO THE EFFECT THAT THE FACTS RECITED THEREIN ARE TRUE AND CORRECT TO THE BEST OF YOUR KNOWLEDGE AND RECOLLECTION. SUCH LETTER IS CONSIDERED AS A REQUEST BY YOU FOR REVIEW OF OUR SETTLEMENT OF JUNE 13. THEY FURTHER PROVIDED THAT IN THE EXECUTION THEREOF YOU WERE AUTHORIZED TO TRAVEL AT YOUR OWN EXPENSE. - WERE MODIFIED ON THE SAME DAY TO SHOW YOUR REPORTING DATE AS FEBRUARY 26. A MODIFICATION OF SUCH ORDERS WAS ISSUED. PARAGRAPH 2 OF WHICH READS AS FOLLOWS: "ORDERS ARE FURTHER MODIFIED SHOW ACTIVE DUTY FOR TRAINING AUTHORIZED WITH PAY AND ALLOWANCES AND TRAVEL BY COMMERCIAL TRANSPORTATION (TR-S/MEAL TICKETS) AND/OR TRAVEL AT YOUR OWN EXPENSE.

B-146676, OCT. 6, 1961

TO LIEUTENANT COMMANDER REUBEN E. STIVERS, USNR-R:

REFERENCE IS MADE TO LETTER DATED AUGUST 3, 1961, WRITTEN IN YOUR BEHALF BY YOUR ATTORNEY AND BEARING YOUR SIGNED ENDORSEMENT TO THE EFFECT THAT THE FACTS RECITED THEREIN ARE TRUE AND CORRECT TO THE BEST OF YOUR KNOWLEDGE AND RECOLLECTION. SUCH LETTER IS CONSIDERED AS A REQUEST BY YOU FOR REVIEW OF OUR SETTLEMENT OF JUNE 13, 1961, WHICH DISALLOWED YOUR CLAIM FOR ACTIVE DUTY PAY FOR A 14-DAY PERIOD OF ACTIVE DUTY FOR TRAINING ENDING MARCH 11, 1961.

THE ORDERS HERE INVOLVED DATED FEBRUARY 10, 1961, DIRECTED YOU TO REPORT IN PERSON BY 8 A.M., MARCH 6, 1961, TO THE ADMINISTRATIVE DIVISION, OFFICE OF INFORMATION, ROOM 4D715, PENTAGON, WASHINGTON, D.C., FOR A 14-DAY PERIOD OF ACTIVE DUTY FOR TRAINING WITHOUT PAY. THEY FURTHER PROVIDED THAT IN THE EXECUTION THEREOF YOU WERE AUTHORIZED TO TRAVEL AT YOUR OWN EXPENSE, NOT SUBJECT TO REIMBURSEMENT BY THE GOVERNMENT, AND SPECIFIED THAT IF YOU DID NOT DESIRE TO BEAR SUCH EXPENSE YOU WOULD REGARD THE ORDERS AS REVOKED. SUCH ORDERS--- ISSUED BY THE COMMANDANT OF THE FIFTH NAVAL DISTRICT--- WERE MODIFIED ON THE SAME DAY TO SHOW YOUR REPORTING DATE AS FEBRUARY 26, 1961, AND ON MARCH 31, 1961, AFTER THE END OF THE PERIOD OF ACTIVE DUTY FOR TRAINING HERE INVOLVED, A MODIFICATION OF SUCH ORDERS WAS ISSUED, PARAGRAPH 2 OF WHICH READS AS FOLLOWS:

"ORDERS ARE FURTHER MODIFIED SHOW ACTIVE DUTY FOR TRAINING AUTHORIZED WITH PAY AND ALLOWANCES AND TRAVEL BY COMMERCIAL TRANSPORTATION (TR-S/MEAL TICKETS) AND/OR TRAVEL AT YOUR OWN EXPENSE, SUBJECT TO REIMBURSEMENT.'

THE RECORDS SHOW THAT THE NAVAL RESERVE UNIT TO WHICH YOU WERE ASSIGNED DURING THE PERIOD INVOLVED WAS THE NAVAL RESERVE OFFICERS SCHOOL 5-6, WASHINGTON, D.C. YOU SAY THAT YOU WERE ASSIGNED TO INSTRUCT A COURSE, WHICH YOU REFER TO AS "PUBLIC RELATIONS 184," AT THAT SCHOOL DURING EVENING HOURS. YOU STATE FURTHER THAT PRIOR TO THE COMMENCEMENT OF YOUR ASSIGNMENT AS AN INSTRUCTOR YOU ASCERTAINED THAT YOUR ABILITY TO PROPERLY TEACH THE COURSE IN PUBLIC RELATIONS WOULD BE SUBSTANTIALLY ENHANCED IF YOU RECEIVED A PERIOD OF TRAINING AT THE OFFICE OF NAVY INFORMATION IN THE PENTAGON; THAT YOU ACCORDINGLY MADE APPLICATION TO THE COMMANDANT OF THE FIFTH NAVAL DISTRICT ON DECEMBER 20, 1960, FOR SUCH ACTIVE DUTY FOR TRAINING; AND THAT YOU WERE ADVISED THAT FUNDS WERE NOT AVAILABLE FOR PAY FOR NAVAL RESERVE OFFICERS OTHERWISE IN A NONPAY STATUS, BUT THAT YOU MIGHT APPLY FOR ACTIVE DUTY FOR TRAINING WITHOUT PAY AND ALLOWANCES. YOU AVER THAT YOUR APPLICATION FOR AND YOUR ACCEPTANCE OF TRAINING DUTY WITHOUT PAY WAS PREDICATED SOLELY ON THE FACT THAT YOU HAD NOT THEN RECEIVED WRITTEN ORDERS TO A BILLET WITH PAY AT THE NAVAL RESERVE OFFICERS SCHOOL 5-6, AND YOU URGE THAT SINCE ORDERS WERE SUBSEQUENTLY ISSUED ON MARCH 20, 1961, PROVIDING FOR PAY FOR THE BILLET, YOUR ORDERS OF FEBRUARY 10, 1961, WERE PROPERLY AMENDED TO SHOW ENTITLEMENT TO ACTIVE DUTY PAY FOR THE PERIOD OF ACTIVE DUTY FOR TRAINING. IN OTHER WORDS, YOU CONTEND THAT, IN ACCORDANCE WITH THE POLICY YOU SAY WAS FOLLOWED BY THE FIFTH NAVAL DISTRICT, THE ORDERS OF FEBRUARY 10, 1961, WOULD HAVE PROVIDED FOR ACTIVE DUTY PAY IF PRIOR TO THAT DATE YOU HAD RECEIVED WRITTEN ORDERS TO A PAY BILLET AT THE NAVAL RESERVE OFFICERS SCHOOL 5-6. ACCORDINGLY, YOU ASSERT THAT, SINCE SUCH ORDERS WERE SUBSEQUENTLY ISSUED, THE AMENDATORY ORDERS OF MARCH 31, 1961, DID NOT VEST YOU WITH ANY RIGHTS THAT YOU DID NOT ALREADY POSSESS. IT IS STATED THAT YOU RECEIVED PAY FOR YOUR DUTIES AS AN INSTRUCTOR FOR THE PERIOD FEBRUARY 13 THROUGH JUNE 26, 1961.

WE HAVE HELD GENERALLY FOR MANY YEARS THAT ORDERS RELATING TO GOVERNMENT PERSONNEL MAY NOT BE MODIFIED RETROACTIVELY TO INCREASE OR TO DECREASE RIGHTS WHICH HAVE VESTED UNDER APPLICABLE STATUTES, REGULATIONS OR ORDERS. SEE 23 COMP. GEN. 713, AND 24 ID. 439. IT IS OUR PRACTICE NOT TO RECOGNIZE RETROACTIVE AMENDATORY ORDERS UNLESS ERROR IS APPARENT ON THE FACE OF THE ORIGINAL ORDERS OR UNLESS THERE HAS BEEN A FULL DISCLOSURE BY THE ADMINISTRATIVE OFFICE CONCERNED OF ALL THE FACTS AND CIRCUMSTANCES SURROUNDING THE ISSUANCE OF SUCH ORDERS AND THE RECORD CLEARLY ESTABLISHES THAT SOME PROVISION PREVIOUSLY DETERMINED AND OTHERWISE AUTHORIZED AND DEFINITELY INTENDED WAS OMITTED THROUGH ERROR OR INADVERTENCE IN PREPARING THE ORDERS. SUCH INFORMATION HAS NOT BEEN FURNISHED IN THE PRESENT CASE AND THE INFORMATION YOU HAVE FURNISHED CLEARLY SHOWS THAT THE ORDERS OF FEBRUARY 10, 1961, EXPRESSED THE INTENT OF THE ISSUING AUTHORITY AT THAT TIME. THE ISSUANCE OF THE AMENDATORY ORDERS OF MARCH 31, 1961, APPEARS TO HAVE BEEN NOTHING MORE THAN AN ATTEMPT TO PROVIDE ACTIVE DUTY PAY FOR A PERIOD OF ACTIVE DUTY FOR TRAINING ALREADY PERFORMED UNDER ORDERS WHICH WERE CLEAR AND UNAMBIGUOUS ON THEIR FACE AND WHICH PROVIDED UNEQUIVOCABLY THAT SUCH PERIOD OF ACTIVE DUTY FOR TRAINING WAS WITHOUT PAY. THE ORDERS OF FEBRUARY 10, 1961, WERE PROPERLY ISSUED UNDER THE PROVISIONS OF ARTICLE H-3602 OF THE BUREAU OF NAVAL PERSONNEL MANUAL, IN EFFECT DURING THE PERIOD INVOLVED, WHICH AUTHORIZED THE COMMANDANT OF THE FIFTH NAVAL DISTRICT TO ISSUE TO RESERVISTS IN AN ACTIVE STATUS "INDIVIDUAL ORDERS TO ACTIVE DUTY FOR TRAINING WITH OR WITHOUT PAY AND ALLOWANCES.'

THE FACT THAT YOU WERE PAID FOR YOUR DUTIES AS AN INSTRUCTOR IN AN INACTIVE DUTY STATUS FURNISHES NO BASIS FOR THE PAYMENT OF YOUR CLAIM, SINCE THERE IS NO STATUTORY REQUIREMENT THAT MEMBERS OF RESERVE COMPONENTS RECEIVING PAY FOR INACTIVE DUTY TRAINING UNDER SECTION 501 OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 301, MUST BE PLACED IN A PAY STATUS IF ORDERED TO ACTIVE DUTY FOR TRAINING WITHOUT PAY. THE ORDERS OF FEBRUARY 10, 1961, CLEARLY STATED THAT THE DUTY INVOLVED WOULD BE WITHOUT PAY AND THAT IF YOU DID NOT DESIRE TO BEAR THE EXPENSE OF TRAVEL TO AND FROM SUCH DUTY, YOU WOULD REGARD SUCH ORDERS AS REVOKED. HAVING ELECTED TO SERVE UNDER SUCH ORDERS AND IT APPEARING THAT THEY EXPRESSED THE INTENT OF THE ISSUING AUTHORITY, THERE IS NO AUTHORITY FOR THE PAYMENT OF YOUR CLAIM.