B-149507, SEP. 27, 1962

B-149507, SEP. 27, 1962

TO ROBERT J. BOYD, M.D.:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 31, 1962, WITH ENCLOSURE, CONCERNING YOUR INDEBTEDNESS TO THE UNITED STATES INCIDENT TO YOUR MILITARY SERVICE WHICH WAS THE SUBJECT OF OUR DECISION OF AUGUST 7, 1962, B-149507, TO YOU. ALSO, CORRESPONDENCE CONCERNING THIS MATTER HAS BEEN RECEIVED FROM THE HONORABLE LEVERETT SALTONSTALL, UNITED STATES SENATE.

IN THE DECISION OF AUGUST 7, 1962, WE EXPLAINED TO YOU THAT WHILE UNDER THE PROVISIONS OF SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 253 (A), AND PARAGRAPH 4157-1A OF THE JOINT TRAVEL REGULATIONS, A MEMBER UPON RELEASE FROM ACTIVE DUTY HAS A LEGAL RIGHT TO TRAVEL ALLOWANCE COMPUTED EITHER ON THE BASIS OF THE DISTANCE TO HIS HOME OR TO THE PLACE FROM WHICH HE WAS ORDERED TO ACTIVE DUTY, DIFFERENT LEGAL PROVISIONS--- SECTION 201 (D) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 232 (D), AND EXECUTIVE ORDER NO. 10159, AS AMENDED BY EXECUTIVE ORDER NO. 10649--- GOVERN THE PAYMENT OF ACTIVE DUTY PAY FOR TRAVEL TIME TO AND FROM ACTIVE DUTY. WE POINTED OUT THAT IN DECISION OF SEPTEMBER 8, 1954, B 120297, IT WAS HELD THAT THE TERM "HOME" AS USED IN SECTION 201 OF THE CAREER COMPENSATION ACT OF 1949, AUTHORIZING ACTIVE DUTY PAY AND ALLOWANCES FOR TIME REQUIRED TO TRAVEL TO AND FROM ACTIVE DUTY STATIONS UPON ENTERING AND LEAVING THE SERVICE, MEANS THE PLACE RECORDED AS HOME WHEN ORDERED TO ACTIVE DUTY AND THAT THERE IS NO LEGAL BASIS TO AUTHORIZE ACTIVE DUTY PAY AND ALLOWANCES FOR THE TIME REQUIRED TO PERFORM TRAVEL, BY THE MODE OF TRANSPORTATION AUTHORIZED IN THE ORDERS, IN EXCESS OF THAT REQUIRED TO TRAVEL FROM AND TO THE HOME OF RECORD. SINCE YOUR HOME OF RECORD WHEN YOU ENTERED ON ACTIVE DUTY WAS MUSKEGON, MICHIGAN, WE HELD THAT YOU WERE ENTITLED UNDER THE APPLICABLE PROVISIONS OF LAW AND REGULATIONS TO ACTIVE DUTY PAY AND ALLOWANCES ONLY FOR TRAVEL FROM YOUR LAST DUTY STATION (FORT HAMILTON, NEW YORK) TO YOUR HOME OF RECORD (MUSKEGON, MICHIGAN), OR THREE DAYS' TRAVEL TIME. YOU WERE PAID PAY AND ALLOWANCES FOR 11 DAYS' TRAVEL TIME COMPUTED ON THE BASIS OF THE TIME REQUIRED TO PERFORM TRAVEL FROM YOUR LAST DUTY STATION (FORT HAMILTON, NEW YORK) TO THE PLACE FROM WHICH YOU WERE ORDERED TO ACTIVE DUTY (SAN FRANCISCO, CALIFORNIA) THUS RESULTING IN AN OVERPAYMENT OF PAY AND ALLOWANCES FOR 8 DAYS' TRAVEL TIME IN THE AMOUNT OF $184.13.

IN YOUR LETTER OF AUGUST 31, 1962, YOU QUESTION OUR INTERPRETATION OF THE TERM "HOME" AS USED IN SECTION 201 OF THE CAREER COMPENSATION ACT OF 1949. YOU EXPRESSED THE VIEW THAT A DIFFERENT INTERPRETATION OF THE TERM "HOME" SHOULD BE APPLIED IN THE CASE OF PHYSICIANS IN TRAINING BECAUSE OF THE FREQUENT MOVES REQUIRED TO BE MADE BY THEM DUE TO THE NATURE OF THEIR MEDICAL SCHOOL TRAINING, AND THE FACT THAT PHYSICIANS IN TRAINING GENERALLY RESIDE IN APARTMENTS WHICH THEY VACATE UPON ENTERING THE SERVICE AND HENCE AS A MATTER OF CONVENIENCE SHOW THEIR PARENTS' ADDRESS AS THEIR HOME OF RECORD. IN THE LIGHT OF THESE CIRCUMSTANCES, YOU ASK WHETHER WE WOULD CONSIDER A CHANGE IN OUR POLICY. YOU ALSO ASK WHETHER IT WOULD BE APPROPRIATE FOR YOU TO APPEAL THE DECISION IN YOUR CASE DIRECTLY TO THE COMPTROLLER GENERAL. ENCLOSED WITH YOUR LETTER WAS A CHECK FOR $10 TO BE APPLIED ON YOUR INDEBTEDNESS AND YOU ASK WHETHER YOUR PLAN TO PAY $10 A MONTH TO LIQUIDATE THE DEBT WOULD BE ACCEPTABLE.

YOUR CASE WAS CAREFULLY CONSIDERED IN THE ABOVE-MENTIONED DECISION OF AUGUST 7, 1962, TO YOU. THE LAW IS CLEAR THAT THE TERM "HOME" MEANS THE PLACE RECORDED AS HOME WHEN ORDERED TO ACTIVE DUTY AND NO PROVISION IS MADE FOR EXCEPTIONS TO COVER SITUATIONS AS DESCRIBED IN YOUR LETTER. THIS REGARD IT WOULD APPEAR FROM YOUR STATEMENTS THAT SAN FRANCISCO WAS A TEMPORARY ADDRESS AND THE RECORD PRESENTS NO PROPER BASIS FOR CONCLUDING THAT ANY ERROR WAS MADE IN DESIGNATING MUSKEGON, MICHIGAN, AS YOUR HOME OF RECORD. APPARENTLY YOU DID NOT ALLEGE ANY ERROR IN THAT RESPECT WHILE SERVING ON ACTIVE DUTY. CONSEQUENTLY YOU WERE ERRONEOUSLY PAID ON THE BASIS OF TRAVEL TIME TO SAN FRANCISCO. WE HAVE NO AUTHORITY TO GRANT EXCEPTIONS CONTRARY TO THE CLEAR PROVISIONS OF THE LAW. WHILE IT IS UNFORTUNATE THAT YOU WERE MISINFORMED OF YOUR RIGHTS BY SERVICE PERSONNEL AT FORT SAM HOUSTON, SAN ANTONIO, TEXAS, SUCH FACT WOULD NOT AFFORD A BASIS TO REMOVE YOUR INDEBTEDNESS, IT BEING WELL SETTLED THAT, IN THE ABSENCE OF A STATUTE SO PROVIDING, THE GOVERNMENT IS NOT LIABLE FOR LOSS OR DAMAGE RESULTING FROM NEGLIGENCE OR OMISSIONS OF DUTY OF OFFICERS OR AGENTS EMPLOYED IN THE PUBLIC SERVICE. SEE ROBERTSON V. SICHEL, 127 U.S. 507, 515, AND CASES THERE CITED.

ACCORDINGLY, OUR DECISION OF AUGUST 7, 1962, IS AFFIRMED. WITH RESPECT TO YOUR REQUEST AS TO WHETHER IT WOULD BE APPROPRIATE FOR YOU TO APPEAL THAT DECISION TO ME PERSONALLY, YOU ARE ADVISED THAT THE DECISION WAS PREPARED UNDER MY SUPERVISION AND CONSTITUTES FINAL ACTION ON THE RECORD PRESENTED INSOFAR AS OUR OFFICE IS CONCERNED.

YOUR PLAN TO PAY $10 A MONTH UNTIL YOUR INDEBTEDNESS IS LIQUIDATED IS ACCEPTABLE BUT THE PAYMENTS SHOULD BE INCREASED IF CIRCUMSTANCES PERMIT. THE PAYMENTS SHOULD BE FORWARDED TO THE U.S. GENERAL ACCOUNTING OFFICE, P.O. BOX 2610, WASHINGTON 13, D.C. ..END :