B-151125, AUG. 5, 1963

B-151125: Aug 5, 1963

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M.D.: REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 12. YOU WERE APPOINTED TO THE PUBLIC HEALTH SERVICE INACTIVE RESERVE. IT IS INDICATED THAT ON THAT DAY AND PRIOR TO ISSUANCE OF COMPETENT ORDERS YOU AND YOUR DEPENDENTS LEFT YOUR RESIDENCE AT CLEONA. SINCE YOU ALREADY WERE AT GALLUP. SINCE NO OFFICIAL TRAVEL WAS REQUIRED. WHICH WERE ISSUED BY THE PUBLIC HEALTH SERVICE ON MAY 10. IT WAS INADVERTENTLY STATED IN THE SETTLEMENT OF FEBRUARY 18. WERE IN ERROR IN ORDERING YOU TO ACTIVE DUTY FROM GALLUP. THAT YOU NOW KNOW THAT YOU COULD HAVE REFUSED THESE ORDERS AS INCORRECT. THAT AT THE TIME YOU RECEIVED THE ORDERS YOU WERE ADVISED THAT IT WOULD BE ILLEGAL FOR YOU TO RETURN TO YOUR HOME AND ATTEMPT TO GET AMENDED ORDERS.

B-151125, AUG. 5, 1963

TO MARION E. KINTNER, M.D.:

REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 12, 1963, IN EFFECT REQUESTING REVIEW OF OUR SETTLEMENT DATED FEBRUARY 18, 1963, WHICH DISALLOWED YOUR CLAIM FOR PERSONAL AND DEPENDENT TRAVEL AND SHIPMENT OF HOUSEHOLD EFFECTS INCIDENT TO YOUR CALL TO ACTIVE DUTY AS A COMMISSIONED OFFICER IN THE PUBLIC HEALTH SERVICE.

THE RECORD SHOWS THAT YOU HAD PERFORMED ACTIVE DUTY WITH THE PUBLIC HEALTH SERVICE FROM JUNE 20, 1958, THROUGH SEPTEMBER 1961. EFFECTIVE SEPTEMBER 29, 1961, YOU WERE APPOINTED TO THE PUBLIC HEALTH SERVICE INACTIVE RESERVE. PURSUANT TO YOUR REQUEST THAT YOU BE CALLED TO ACTIVE DUTY, THE DIVISION OF COMMISSIONED OFFICER PERSONNEL, PUBLIC HEALTH SERVICE, ADVISED YOU ON MARCH 14, 1962, THAT YOU COULD BE CALLED TO ACTIVE DUTY IMMEDIATELY PROVIDED A SUITABLE ASSIGNMENT COULD BE IDENTIFIED FOR YOUR. SUBSEQUENTLY, IN A TELEGRAM DATED MARCH 27, 1962, THE ASSISTANT AREA MEDICAL OFFICER, ALBUQUERQUE AREA, ADVISED YOU TO SUBMIT A WRITTEN REQUEST FOR ACTIVE DUTY, PUBLIC HEALTH SERVICE HOSPITAL, GALLUP, NEW MEXICO, ON OR ABOUT APRIL 15, 1962, TO DR. JOHN S. REISMAN, DIVISION OF INDIAN HEALTH. INCIDENT TO THIS TELEGRAM YOU REQUESTED ACTIVE DUTY EFFECTIVE APRIL 20, 1962. IT IS INDICATED THAT ON THAT DAY AND PRIOR TO ISSUANCE OF COMPETENT ORDERS YOU AND YOUR DEPENDENTS LEFT YOUR RESIDENCE AT CLEONA, PENNSYLVANIA, AND COMMENCED TRAVEL TO GALLUP, NEW MEXICO, AND THAT YOU ARRIVED AT YOUR DESTINATION ON APRIL 28, 1962. SINCE YOU ALREADY WERE AT GALLUP, YOUR PROSPECTIVE DUTY STATION, AND SINCE NO OFFICIAL TRAVEL WAS REQUIRED, YOUR ORDERS TO ACTIVE DUTY, WHICH WERE ISSUED BY THE PUBLIC HEALTH SERVICE ON MAY 10, 1962, ORDERED YOU TO PROCEED FROM GALLUP AND ALSO TO REPORT AT GALLUP FOR ACTIVE DUTY. IT WAS INADVERTENTLY STATED IN THE SETTLEMENT OF FEBRUARY 18, 1963, THAT SUCH ORDERS DIRECTED TRAVEL FROM COLUMBUS, OHIO.

IN YOUR PRESENT LETTER YOU SAY THAT YOUR ORDERS OF MAY 10, 1962, WERE IN ERROR IN ORDERING YOU TO ACTIVE DUTY FROM GALLUP, NEW MEXICO, AND THAT YOU NOW KNOW THAT YOU COULD HAVE REFUSED THESE ORDERS AS INCORRECT, BUT THAT AT THE TIME YOU RECEIVED THE ORDERS YOU WERE ADVISED THAT IT WOULD BE ILLEGAL FOR YOU TO RETURN TO YOUR HOME AND ATTEMPT TO GET AMENDED ORDERS. ALSO, YOU ASK WHETHER ANY OTHER AGENCY MIGHT CONSIDER THE MERITS OF YOUR CLAIM OR WHETHER YOUR ONLY REMEDY IS TO LITIGATE THE MATTER IN CIVIL COURT.

THE PROVISIONS OF 37 U.S.C. 404 AND 406 AUTHORIZE TRAVEL AND TRANSPORTATION ALLOWANCES, IN ACCORDANCE WITH REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, FOR MEMBERS OF THE UNIFORMED SERVICES, THEIR DEPENDENTS AND THEIR HOUSEHOLD EFFECTS, UPON CHANGE OF PERMANENT STATION (INCLUDING FROM HOME TO FIRST DUTY STATION ON CALL TO ACTIVE DUTY), PERFORMED UNDER ORDERS. PARAGRAPH 3000 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT "NO REIMBURSEMENT FOR TRAVEL IS AUTHORIZED UNLESS ORDERS BY COMPETENT AUTHORITY HAVE BEEN ISSUED THEREFOR," AND PARAGRAPH 3002 OF THE REGULATIONS PROVIDES THAT WRITTEN ORDERS ISSUED BY COMPETENT AUTHORITY ARE REQUIRED FOR OFFICIAL TRAVEL OR FOR REIMBURSEMENT OF EXPENSES INCIDENT THERETO. PARAGRAPH 7000-9 OF THE REGULATIONS PROVIDES THAT MEMBERS ARE ENTITLED TO TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE UPON A PERMANENT CHANGE OF STATION EXCEPT WHERE THE DEPENDENTS DEPARTED FROM THE OLD PERMANENT STATION PRIOR TO ISSUANCE OF ORDERS AND THE VOUCHER IS NOT SUPPORTED BY A CERTIFICATE OF THE COMMANDING OFFICER, OR HIS DESIGNATED REPRESENTATIVE, OF THE HEADQUARTERS ISSUING THE ORDERS THAT THE MEMBER WAS ADVISED PRIOR TO THE ISSUANCE OF PERMANENT CHANGE OF STATION ORDERS THAT SUCH ORDERS WOULD BE ISSUED. PARAGRAPH8015-1 OF THE REGULATIONS PROVIDES THAT SHIPMENT OF HOUSEHOLD EFFECTS AT GOVERNMENT EXPENSE IS NOT AUTHORIZED PRIOR TO ISSUANCE OF ORDERS EXCEPT IN CASE OF EMERGENCY, EXIGENCY OF THE SERVICE OR WHEN REQUIRED BY SERVICE NECESSITY, AS DETERMINED BY THE APPROPRIATE AUTHORITY OF THE UNIFORMED SERVICE CONCERNED.

IN SOME SITUATIONS INVOLVING TRAVEL OF DEPENDENTS AND SHIPMENT OF HOUSEHOLD EFFECTS PRIOR TO RECEIPT OF PERMANENT CHANGE OF STATION ORDERS, IT HAS BEEN RECOGNIZED THAT WHERE THE MEMBER HAD BEEN ADVISED OF IMPENDING PERMANENT CHANGE OF STATION ORDERS AND THE ORDERS ACTUALLY WERE ISSUED, AND WHERE THE INTERESTS OF THE GOVERNMENT WERE NOT PREJUDICED BY THE EARLY TRAVEL OR SHIPMENT, THE FACT THAT THE TRAVEL AND SHIPMENT OF EFFECTS WAS PRIOR TO THE ISSUANCE OF ORDERS NEED NOT BE REGARDED AS DEPRIVING HIM OF HIS RIGHT TO TRAVEL ALLOWANCES WHICH OTHERWISE WOULD ARISE INCIDENT TO HIS PERMANENT CHANGE OF STATION ORDERS. SEE B-108887, APRIL 15, 1952.

WITH RESPECT TO YOUR PERSONAL TRAVEL THE RECORD SHOWS THAT YOU PERFORMED THE TRAVEL FROM YOUR HOME TO GALLUP, NEW MEXICO, AFTER RECEIPT OF A TELEGRAM ADVISING YOU TO SUBMIT A REQUEST FOR ACTIVE DUTY BUT PRIOR TO THE ISSUANCE OF ANY ORDERS TO ACTIVE DUTY. THE ONLY ORDERS ISSUED TO YOU DIRECTED TRAVEL FROM GALLUP, NEW MEXICO, TO GALLUP, NEW MEXICO. THEREFORE, SINCE YOU WERE NOT DIRECTED BY COMPETENT ORDERS TO PERFORM TRAVEL FROM YOUR HOME AT CLEONA, PENNSYLVANIA, TO GALLUP, NEW MEXICO, THERE IS NO AUTHORITY FOR THE PAYMENT OF YOUR CLAIM FOR REIMBURSEMENT FOR YOUR OWN TRAVEL TO GALLUP.

WITH RESPECT TO YOUR CLAIM FOR TRANSPORTATION OF YOUR DEPENDENTS AND HOUSEHOLD EFFECTS, WHILE THE REGULATIONS PRECLUDE REIMBURSEMENT TO THE MEMBER FOR PERSONAL TRAVEL BEYOND THAT DIRECTED BY COMPETENT ORDERS, SUCH REGULATIONS PROVIDE IN PROPER CASES FOR TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS FROM HOME TO FIRST DUTY STATION UPON ORDERS TO ACTIVE DUTY. SINCE IT APPEARS THAT THE MOVEMENT OF YOUR DEPENDENTS AND EFFECTS WAS MADE FOLLOWING AND ON THE BASIS OF THE NOTICE TO YOU TO REQUEST ORDERS TO ACTIVE DUTY WHICH ORDERS WERE IN FACT ISSUED, AND THAT THE INTERESTS OF THE GOVERNMENT WERE NOT PREJUDICED BY THE EARLY MOVEMENT, THE FACT THAT TRANSPORTATION OF YOUR DEPENDENTS AND HOUSEHOLD EFFECTS PRECEDED THE ACTUAL ISSUANCE OF ORDERS NEED NOT BE REGARDED AS OPERATING TO DEFEAT YOUR RIGHT TO REIMBURSEMENT FOR THOSE EXPENSES.

ACCORDINGLY, THAT PART OF YOUR CLAIM FOR REIMBURSEMENT FOR TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS WILL BE ALLOWED. SETTLEMENT WILL ISSUE IN DUE COURSE FOR THE CORRECT AMOUNT FOUND TO BE DUE.

CONCERNING YOUR QUESTION AS TO FURTHER ADMINISTRATIVE REVIEW OF YOUR CLAIM, THE ACTION OF OUR OFFICE ON CLAIMS AGAINST THE UNITED STATES IS BY LAW MADE FINAL AND CONCLUSIVE ON ALL EXECUTIVE DEPARTMENTS OF THE GOVERNMENT. ACCORDINGLY, THERE IS NO FURTHER ACTION THAT MAY BE TAKEN ADMINISTRATIVELY ON YOUR CLAIM. HOWEVER, YOU ARE ADVISED THAT THE COURT OF CLAIMS OF THE UNITED STATES HAS JURISDICTION TO CONSIDER AND DETERMINE CERTAIN CLAIMS AGAINST THE UNITED STATES IF FILED THERE WITHIN SIX YEARS AFTER THE CLAIMS FIRST ACCRUE. 28 U.S.C. 2501.