B-150796, MAR. 29, 1963

B-150796: Mar 29, 1963

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JOHNSON: REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 30. IN WHICH THE GOVERNMENT OF THE UNITED STATES IS EITHER A DEBTOR OR CREDITOR. THE DECISIONS OF THIS OFFICE ARE CONCLUSIVE UPON THE EXECUTIVE DEPARTMENTS OF THE GOVERNMENT. 31 U.S.C. 74. WE WILL CONSIDER YOUR LETTER AS A REQUEST FOR REVIEW OF YOUR INDEBTEDNESS. YOU ACCEPTED A COMMISSION IN THE MARINE CORPS RESERVE AND WERE ORDERED TO ACTIVE DUTY FOR TRAINING AS A RESERVE OFFICER JUNE 7. YOU WERE RELEASED FROM ACTIVE DUTY FOR TRAINING PERIOD SINCE YOUR ACTIVE DUTY AS A RESERVE OFFICER WAS LESS THAN 30 DAYS. YOU WERE ENTITLED. ONLY TO THE PLACE FROM WHICH YOU WERE ORDERED TO ACTIVE DUTY AS A RESERVIST. INASMUCH AS YOU WERE ORDERED TO ACTIVE DUTY AS A RESERVE OFFICER AT EL TORO AND WERE RELEASED AT THAT PLACE.

B-150796, MAR. 29, 1963

TO MR. ROBERT B. JOHNSON:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 30, 1962, CONCERNING YOUR INDEBTEDNESS TO THE UNITED STATES IN THE SUM OF $93.99 ARISING FROM AN OVERPAYMENT OF PAY AND ALLOWANCES FOR TRAVEL TIME INCIDENT TO YOUR RELEASE FROM ACTIVE DUTY AS FIRST LIEUTENANT, UNITED STATES MARINE CORPS RESERVE. IN YOUR LETTER YOU STATE THAT WE IGNORED YOUR APPEAL DATED SEPTEMBER 6, 1962, AND SINCE YOU CONSIDER IT UNFAIR TO APPEAL AN ARBITRARY DECISION TO THE DEPARTMENT CHARGED WITH COLLECTION OF DEBTS YOU REQUEST THE NAME OF THE DEPARTMENT TO WHICH YOU MAY ADDRESS YOUR APPEAL.

PURSUANT TO THE PROVISIONS OF 31 U.S.C. 71, THE GENERAL ACCOUNTING OFFICE HAS THE AUTHORITY TO SETTLE AND ADJUST ALL CLAIMS, DEMANDS AND ACCOUNTS, IN WHICH THE GOVERNMENT OF THE UNITED STATES IS EITHER A DEBTOR OR CREDITOR. THE DECISIONS OF THIS OFFICE ARE CONCLUSIVE UPON THE EXECUTIVE DEPARTMENTS OF THE GOVERNMENT. 31 U.S.C. 74. ACCORDINGLY, WE WILL CONSIDER YOUR LETTER AS A REQUEST FOR REVIEW OF YOUR INDEBTEDNESS.

THE RECORD SHOWS THAT YOU RESIGNED YOUR COMMISSION IN THE REGULAR MARINE CORPS ON JUNE 6, 1957, AT EL TORO (SANTA ANA), CALIFORNIA, AND YOU ACCEPTED A COMMISSION IN THE MARINE CORPS RESERVE AND WERE ORDERED TO ACTIVE DUTY FOR TRAINING AS A RESERVE OFFICER JUNE 7, 1957, AT EL TORO. ON JUNE 10, 1957, YOU WERE RELEASED FROM ACTIVE DUTY FOR TRAINING PERIOD SINCE YOUR ACTIVE DUTY AS A RESERVE OFFICER WAS LESS THAN 30 DAYS, YOU WERE ENTITLED, IN ACCORDANCE WITH PARAGRAPH 044230 3B, NAVY COMPTROLLER MANUAL IN EFFECT AT THAT TIME, TO PAY AND ALLOWANCES FOR TRAVEL TIME UPON RELEASE FROM ACTIVE DUTY FOR TRAINING, ONLY TO THE PLACE FROM WHICH YOU WERE ORDERED TO ACTIVE DUTY AS A RESERVIST. INASMUCH AS YOU WERE ORDERED TO ACTIVE DUTY AS A RESERVE OFFICER AT EL TORO AND WERE RELEASED AT THAT PLACE, YOU WERE NOT ENTITLED TO ANY PAY OR ALLOWANCES FOR TRAVEL TIME. HOWEVER, YOU WERE ERRONEOUSLY PAID ACTIVE DUTY PAY AND ALLOWANCES FOR THE PERIOD JUNE 11 TO 16, 1957, RESULTING IN AN OVERPAYMENT OF $93.99.

YOUR INDEBTEDNESS WAS REFERRED TO THIS OFFICE FOR COLLECTION. RESPONSE TO YOUR LETTER FOR FURTHER INFORMATION REGARDING THE MATTER, WE SENT YOU COPIES OF DECISIONS OF OUR OFFICE, B-120297, DATED SEPTEMBER 8, 1954, AND B-132812, DATED OCTOBER 18, 1957 (37 COMP. GEN. 262), TOGETHER WITH PART OF PARAGRAPH 044230-3 OF THE NAVY COMPTROLLER MANUAL. IN YOUR LETTER OF SEPTEMBER 6, 1962, YOU CONTENDED THAT THE STATEMENTS CONTAINED IN B-120297, DATED SEPTEMBER 8, 1954, SUPPORTED YOUR VIEW THAT YOUR WERE ENTITLED TO THE TRAVEL PAY AND ALLOWANCES WHICH YOU RECEIVED. YOU CITED THAT PORTION OF THE DECISION WHICH PERTAINED TO THE RIGHT TO PAY AND ALLOWANCES FOR REQUIRED TRAVEL TIME IN THE CASE OF AN ENLISTED MEMBER SEPARATED FROM THE REGULAR SERVICE AND IMMEDIATELY CALLED TO ACTIVE DUTY IN A RESERVE STATUS, WHO WAS RELEASED FROM ACTIVE DUTY AFTER SERVING MORE THAN 30 DAYS IN THAT STATUS AND YOU STATED THAT THE RULING WAS APPLICABLE IN YOUR CASE IN VIEW OF YOUR SERVICE IN THE REGULAR MARINE CORPS IMMEDIATELY PRECEDING YOUR RESERVE SERVICE. FURTHER, YOU EXPRESSED THE OPINION THAT OUR DECISION, B-132812, DATED OCTOBER 18, 1957, WAS NOT APPLICABLE IN YOUR CASE FOR THE REASON THAT THE RULING WAS AFTER YOUR RELEASE AND WOULD BE APPLICABLE ONLY TO THOSE RESERVISTS RELEASED AFTER OCTOBER 18, 1957.

IN THE DECISION OCTOBER 18, 1957, 37 COMP. GEN. 262, WE CONSIDERED THE CASE OF AN OFFICER WHO TERMINATED HIS COMMISSION IN THE REGULAR MARINE CORPS UPON ACCEPTANCE OF A RESERVE COMMISSION AND WAS IMMEDIATELY ASSIGNED TO ACTIVE DUTY AS A RESERVE OFFICER. THE OFFICER WAS RELEASED FROM ACTIVE DUTY WITHIN FIVE DAYS AFTER DATE OF ASSIGNMENT AS A RESERVE OFFICER. CONSIDERING WHETHER THE TIME SERVED AS A REGULAR MEMBER MAY BE ADDED TO THE TIME SUBSEQUENTLY SERVED AS A RESERVIST TO DETERMINE WHETHER HE WAS CALLED OR ORDERED TO ACTIVE DUTY IN EXCESS OF 30 DAYS WITHIN THE CONTEMPLATION OF THE FIRST PROVISO IN SECTION 201 (D) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 231 (D) (SUBSEQUENTLY RECODIFIED BY PUB.L. 87-649, DATED SEPTEMBER 7, 1962, AS 37 U.S.C. 204 (B) (, WE CONCLUDED THAT IT IS CLEAR THAT THE MEMBERS REFERRED TO IN THAT PROVISO ARE MEMBERS OF A RESERVE COMPONENT AND WE FOUND NO BASIS ON WHICH THE PERIOD OF TIME SERVED AS A REGULAR MAY BE USED TO AUGMENT THE TIME SUBSEQUENTLY SERVED AS A RESERVIST DETERMINING WHETHER A MEMBER WAS CALLED OR ORDERED TO ACTIVE DUTY AS A RESERVIST IN EXCESS OF 30 DAYS. WE STATED FURTHER THAT SINCE THIS OFFICER WAS NOT CALLED OR ORDERED TO ACTIVE DUTY AS A RESERVIST IN EXCESS OF 30 DAYS, THE CITED PROVISIONS OF THE STATUTE AND REGULATIONS HAD NO APPLICATION IN HIS CASE. HIS RIGHT TO ACTIVE DUTY PAY BENEFITS FOR TRAVEL TIME INCIDENT TO HIS RELEASE FROM ACTIVE DUTY AS A RESERVIST WAS GOVERNED BY PARAGRAPH 044230-3B, NAVY COMPTROLLER MANUAL. FINALLY, WE POINTED OUT THAT OUR DECISION OF SEPTEMBER 8, 1954, B-120297, WAS BASED ON THE FIRST PROVISO IN SECTION 201 (D) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, AND RELATED TO RESERVISTS ORDERED TO EXTENDED ACTIVE DUTY IN EXCESS OF 30 DAYS. SINCE THE MEMBERS CONSIDERED IN THE 1957 DECISION WERE ORDERED TO ACTIVE DUTY AS RESERVISTS FOR LESS THAN 30 DAYS FOLLOWING REGULAR SERVICE, SUCH STATUTORY PROVISION HAD NO APPLICATION IN THAT CASE AND THE RULING IN THE 1954 DECISION DID NOT APPLY.

PARAGRAPH 044230-3B OF THE NAVY COMPTROLLER MANUAL IN EFFECT AT THE TIME YOU WERE RELEASED FROM ACTIVE DUTY, PROVIDED AS FOLLOWS:

"B. ENTITLEMENT, ACTIVE DUTY OF 30 DAYS OR LESS.

RESERVE OFFICERS RELEASED FROM A PERIOD OF ACTIVE DUTY OF 30 DAYS OR LESS ARE ENTITLED TO ACTIVE DUTY PAY FOR THE ACTUAL TIME TO TRAVEL TO THE PLACE FROM WHICH ORDERED TO ACTIVE DUTY NOT TO EXCEED THE TRAVEL TIME COMPUTED ON THE BASIS OF THE ACTUAL AND NECESSARY CARRIER SCHEDULES OVER THE SHORTEST USUALLY TRAVELED ROUTE.'

SINCE YOUR ACTIVE DUTY AS A RESERVIST FROM JUNE 7 TO 10, 1957, WAS LESS THAN 30 DAYS, YOUR ENTITLEMENT TO ACTIVE DUTY PAY AND ALLOWANCES FOR TRAVEL TIME ON RELEASE FROM ACTIVE DUTY FOR TRAINING IS GOVERNED BY THE PROVISIONS OF PARAGRAPH 044230-3B, NAVY COMPTROLLER MANUAL, QUOTED ABOVE. INASMUCH AS YOU WERE CALLED TO ACTIVE DUTY FOR TRAINING AT EL TORO, CALIFORNIA, AND WERE RELEASED AT THAT PLACE, YOU ARE NOT ENTITLED TO PAY AND ALLOWANCES FOR ANY TRAVEL TIME INCIDENT TO YOUR RELEASE.

WITH RESPECT TO YOUR CONTENTION THAT OUR DECISION OF OCTOBER 18, 1957, B- 132812, IS APPLICABLE ONLY TO THOSE MEMBERS RELEASED AFTER OCTOBER 18, 1957, YOU ARE ADVISED THAT SUCH DECISION WAS AN ORIGINAL CONSTRUCTION OF THE STATUTE AND REGULATION IN THE CIRCUMSTANCES INVOLVED AND IS EFFECTIVE, NOT FROM THE DATE OF THE DECISION, BUT FROM THE EFFECTIVE DATE OF THE CONTROLLING REGULATION. 32 COMP. GEN. 17; 39 ID. 455; 40 ID. 14.

ACCORDINGLY, THE ACTION TAKEN ON YOUR INDEBTEDNESS WAS CORRECT AND IS SUSTAINED. YOU SHOULD ..END :