B-147078, SEP. 22, 1961

B-147078, SEP. 22, 1961

TO MR. VINCENT CALENDA, JR.:

REFERENCE IS MADE TO YOUR LETTER OF JULY 25, 1961, IN WHICH YOU REFER TO OUR LETTER OF JULY 11, 1961, FILE REFERENCE DW Z 2020898-WDG 1, ADDRESSED TO THE HONORABLE JOHN O. PASTORE, UNITED STATES SENATE, RELATIVE TO YOUR INDEBTEDNESS IN THE AMOUNT OF $230.22 ON ACCOUNT OF EXCESS LEAVE AT THE TIME OF YOUR RELEASE FROM ACTIVE DUTY JANUARY 25, 1957, AS FIRST LIEUTENANT, INFANTRY, 04 036 908.

OUR LETTER OF JULY 11, 1961, CONTAINED A STATEMENT SHOWING, ON THE BASIS OF AN ADMINISTRATIVE REPORT FURNISHED BY THE DEPARTMENT OF THE ARMY, THE TOTAL NUMBER OF DAYS' EXCESS LEAVE CHARGEABLE TO YOU UNDER THE PROVISIONS OF THE ARMED FORCES LEAVE ACT OF 1946, 60 STAT. 963, AS AMENDED, 37 U.S.C. 31A, WHICH RESULTED FROM AN ADMINISTRATIVE FAILURE TO RECORD LEAVE TAKEN DURING THE PERIOD MAY 8 TO 31, 1956, WHEN YOU WERE IN AN EMERGENCY LEAVE STATUS WHILE ON PERMANENT CHANGE OF STATION. IN YOUR LETTER YOU STATE THAT YOU SHOULD HAVE BEEN ALLOWED TRAVEL TIME FROM THE WEST COAST TO YOUR NEW DUTY STATION, FORT DEVENS, MASSACHUSETTS. ALSO, YOU ARE VERIFYING THE DATE YOU REPORTED AT FORT DEVENS AND WILL LET US KNOW IF THE INFORMATION CONFIRMS YOUR STATEMENTS AS TO YOUR REPORTING TIME.

THE RECORD INDICATES THAT BY SPECIAL ORDERS 125, DATED MAY 5, 1956, YOU WERE RELIEVED FROM ASSIGNMENT WITH HEADQUARTERS, INCHON REPLACEMENT DEPOT, 8057TH AU, APO 971, AND REASSIGNED TO CAMP DRAKE, PERSONNEL CENTER, FOR FURTHER REASSIGNMENT AND TRANSFER TO THE CONTINENTAL UNITED STATES FOR 30 DAYS' EMERGENCY LEAVE AT PROVIDENCE, RHODE ISLAND, AND SUBSEQUENT REASSIGNMENT. THE ORDERS DESIGNATED THE TRANSFER AS A PERMANENT CHANGE OF STATION WITH TRAVEL DIRECTED AS NECESSARY IN THE MILITARY SERVICE. LETTER ORDER 5-476, DATED MAY 6, 1956, DETACHED YOU FROM ASSIGNMENT AT CAMP DRAKE AND ASSIGNED YOU TO RETURNEE-REASSIGNMENT STATION (6020), PERSONNEL CENTER, OAKLAND ARMY TERMINAL, CALIFORNIA, FOR FURTHER TRANSFER AND/OR ASSIGNMENT. YOU WERE AUTHORIZED 30 DAYS' EMERGENCY LEAVE UPON ARRIVAL IN THE UNITED STATES. YOU REPORTED AT OAKLAND ARMY TERMINAL, CALIFORNIA, MAY 7, 1956, AND COMMENCED TRAVEL TO PROVIDENCE, RHODE ISLAND, PURSUANT TO EMERGENCY LEAVE AUTHORIZATION. NO SPECIFIC MODE OF TRAVEL WAS DIRECTED FOR TRAVEL IN THE UNITED STATES. THE ORDERS PROVIDED THAT ALL TRAVEL TIME IN THE CONTINENTAL UNITED STATES WOULD BE COMPUTED IN ACCORDANCE WITH PARAGRAPH 23A, ARMY REGULATIONS 310-25. BY TELEGRAM ADDRESSED TO YOU AT YOUR LEAVE ADDRESS YOU WERE DIRECTED TO REPORT TO FORT DEVENS, MASSACHUSETTS, UPON EXPIRATION OF LEAVE EFFECTIVE JUNE 7, 1956, FOR ASSIGNMENT TO 74TH RCT. ON MAY 22, 1956, YOU PRESENTED A VOUCHER TO THE DISBURSING OFFICER AT FORT DEVENS, MASSACHUSETTS, FOR MILEAGE COVERING THE TRAVEL FROM OAKLAND ARMY TERMINAL, CALIFORNIA, TO FORT DEVENS, MASSACHUSETTS, IN WHICH YOU STATED THAT YOU COMMENCED TRAVEL MAY 7 AND ARRIVED AT FORT DEVENS, MASSACHUSETTS, MAY 20, 1956. THE VOUCHER (VOUCHER NO. 811911, MAY 1956 ACCOUNTS OF L. CHANEY) CONTAINS THE NOTATION "DDALV 13" MEANING 13 DAYS' DELAY EN ROUTE CHARGEABLE AS LEAVE. THE VOUCHER SHOWS YOU WERE PAID IN CASH THE SUM OF $194.34 ON MAY 25, 1956. THE MILITARY PAY RECORD FOR THE PERIOD INVOLVED SHOWS ON THE REVERSE SIDE THEREOF THAT YOU REPORTED AT HEADQUARTERS, 74TH RCT, FORT DEVENS, MASSACHUSETTS, MAY 22, 1956.

IN VIEW OF THE DISCREPANCY SHOWN AS TO THE DATE YOU REPORTED TO FORT DEVENS FOR DUTY, AN ADMINISTRATIVE REPORT WAS REQUESTED FROM THE DEPARTMENT OF THE ARMY FOR A STATEMENT AS TO YOUR STATUS DURING THE PERIOD MAY 21 TO JUNE 7, 1956, TOGETHER WITH COPIES OF THE MORNING REPORTS SHOWING THE DATE YOU REPORTED FOR DUTY. IN REPLY TO THAT REQUEST THE ADJUTANT GENERAL BY LETTER DATED JUNE 29, 1961, REPORTED IN PERTINENT PART AS FOLLOWS:

"A REVIEW OF THE MORNING REPORTS OF THE UNITS TO WHICH OFFICER WAS ASSIGNED DURING THE PERIOD CONCERNED, INDICATE OFFICER DEPARTED FROM OAKLAND ARMY TERMINAL, CALIFORNIA, ON EMERGENCY LEAVE, 7 MAY 1956 AND JOINED NEW STATION, COMPANY F, 74TH RCT, FORT DEVENS, MASSACHUSETTS, 1 JUNE 1956.

"IN VIEW OF THE ABOVE, IT IS DETERMINED THAT OFFICER WAS IN A LEAVE STATUS FROM 21 MAY THROUGH 31 MAY 1956, DURING THE PERIOD 21 MAY THROUGH 7 JUNE 1956.'

SECTION 4 (E) OF THE ARMED FORCES LEAVE ACT OF 1946, AS ADDED BY SECTION 1 OF THE ACT OF AUGUST 4, 1947, 61 STAT. 748, 37 U.S.C. 33 (E), PROVIDES THAT DETERMINATION OF THE NUMBER OF CALENDAR DAYS OF LEAVE TO WHICH A MEMBER OR FORMER MEMBER IS ENTITLED, INCLUDING THE NUMBER OF CALENDAR DAYS OF ABSENCE FROM DUTY OR VACATION TO BE COUNTED OR CHARGED AGAINST SUCH LEAVE, SHALL BE MADE IN ACCORDANCE WITH REGULATIONS TO BE PRESCRIBED BY THE RESPECTIVE SECRETARY CONCERNED AND ALL DECISIONS BY THE SECRETARY UNDER THAT SECTION SHALL BE FINAL AND CONCLUSIVE AND SHALL NOT BE SUBJECT TO REVIEW BY ANY COURT OR BY ANY OFFICER OF THE UNITED STATES. IN VIEW THEREOF WE ACCEPT THE DETERMINATION MADE BY THE ADJUTANT GENERAL IN HIS REPORT OF JUNE 29, 1961, THAT YOU WERE IN A LEAVE STATUS FROM MAY 21 THROUGH 31, 1956.

UNDER THE PROVISIONS OF SECTION 4 (E) OF THE ARMED FORCES LEAVE ACT OF 1946, REFERRED TO ABOVE, PARAGRAPH 13 (E), ARMY REGULATIONS 630-5 DATED SEPTEMBER 16, 1955, IN EFFECT AT THE TIME OF YOUR TRAVEL, PROVIDED THAT NO SPECIFIC AMOUNT OF TRAVEL TIME IS TO BE GRANTED IN CONNECTION WITH LEAVE OF ANY KIND, EXCEPT WHEN LEAVE IS GRANTED AS DELAY EN ROUTE IN THE ORDERS, THE TIME FOR TRAVEL AUTHORIZED IN SUCH ORDERS WILL NOT BE CHARGED AS LEAVE.

WHILE IT IS NOT CLEAR FROM THE RECORD, PRESUMABLY YOU WERE PAID MILEAGE FOR YOUR TRAVEL BY PRIVATELY OWNED VEHICLE FROM OAKLAND ARMY TERMINAL TO FORT DEVENS, MASSACHUSETTS, ON THE BASIS OF CASE 7 (B), PARAGRAPH 4156, JOINT TRAVEL REGULATIONS. UNDER THAT CASE A MEMBER WHO IS TRANSFERRED UNDER PERMANENT CHANGE OF STATION ORDERS FROM A STATION OUTSIDE THE UNITED STATES TO AN INTERMEDIATE STATION IN THE UNITED STATES FOR PROCESSING AND REASSIGNMENT AND WHO IS GRANTED A LEAVE OF ABSENCE FROM SUCH INTERMEDIATE STATION PENDING DETERMINATION OF HIS NEXT DUTY STATION DURING WHICH TIME HE RECEIVES ORDERS DIRECTING TRAVEL TO ANOTHER STATION SHALL BE ENTITLED, UPON JOINING THE NEW STATION, TO PERMANENT CHANGE OF STATION ALLOWANCES FROM THE STATION HE LEFT TO GO ON LEAVE TO THE LAST MENTIONED STATION. YOUR LETTER OF APRIL 6, 1960, YOU STATED THAT YOU WERE TOLD YOU HAD SIX DAYS' TRAVEL TIME FOR TRAVEL FROM OAKLAND TO YOUR NEW DUTY STATION AND THAT YOU REPORTED TO THE 74TH RCT REGIMENT HEADQUARTERS WITHIN SIX DAYS OF LEAVING CALIFORNIA.

WE HAVE HELD THAT THERE IS NO AUTHORITY FOR PAYMENT OF MILEAGE OR OTHER TRAVEL EXPENSES INCIDENT TO A CHANGE OF STATION MADE FOR PERSONAL REASONS UNLESS IT IS SHOWN THAT SUCH TRANSFER OR ASSIGNMENT MEETS THE NEEDS OF THE SERVICE. YOU WERE GRANTED 30 DAYS' EMERGENCY LEAVE WITH NO TRAVEL TIME AUTHORIZED. IT IS CLEAR THAT THE TRAVEL INCIDENT TO YOUR EMERGENCY LEAVE WAS FOR PERSONAL REASONS. HOWEVER, SINCE YOU WERE PAID MILEAGE FROM OAKLAND, CALIFORNIA, TO FORT DEVENS, MASSACHUSETTS, INCIDENT TO YOUR PERMANENT CHANGE OF STATION AND SINCE AS YOU SAY YOU PERFORMED THAT TRAVEL WITHIN SIX DAYS, IN VIEW OF THE CIRCUMSTANCES IN YOUR CASE WE WILL RECOGNIZE THE SIX DAYS AS BEING NECESSARY TRAVEL TIME TO MEET THE BASIC TRAVEL REQUIREMENTS OF YOUR ORDERS. ACCORDINGLY, WE ARE INSTRUCTING OUR CLAIMS DIVISION TO REDUCE YOUR INDEBTEDNESS BY $54.04, REPRESENTING SIX DAYS' PAY AND ALLOWANCES AT THE RATES IN EFFECT DURING THE PERIOD INVOLVED.

WE DO NOT PROPOSE TO QUESTION THE DETERMINATION MADE BY THE DEPARTMENT OF THE ARMY AS TO THE CHARGEABLE LEAVE FOR THE PERIOD MAY 21 THROUGH 31, 1956. IF YOU STILL FEEL THAT DETERMINATION WAS ERRONEOUS YOU SHOULD CONTACT THE OFFICE OF THE ADJUTANT GENERAL, DEPARTMENT OF THE ARMY, WASHINGTON 25, D.C., FILE REFERENCE AGPA-A 201.

A COPY OF THIS DECISION IS BEING FORWARDED TO SENATOR PASTORE FOR HIS INFORMATION.