B-151394, MAY 8, 1963

B-151394, MAY 8, 1963

TO SP 5 ROBERT H. BELL:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 17, 1963, IN EFFECT REQUESTING REVIEW OF THAT PART OF THE SETTLEMENT OF MARCH 28, 1963, WHICH DISALLOWED YOUR CLAIM FOR MILEAGE FROM MCGUIRE AIR FORCE BASE, NEW JERSEY, TO OAKLAND, CALIFORNIA.

BY PARAGRAPH 5, SPECIAL ORDERS NO. 181, DATED AUGUST 20, 1962, YOU WERE RETURNED TO THE UNITED STATES FROM DUTY IN GERMANY ON SEPTEMBER 7, 1962, AND REASSIGNED TO DUTY AT FORT MYER, VIRGINIA. THIRTY DAYS' DELAY CHARGEABLE AS LEAVE WAS AUTHORIZED AND YOUR LEAVE ADDRESS WAS SHOWN AS SARATOGA, CALIFORNIA. THE RECORD SHOWS THAT ON OCTOBER 7,1962, YOU REPORTED AT OAKLAND ARMY TERMINAL, CALIFORNIA, INSTEAD OF FORT MYER, VIRGINIA, AND THAT YOU APPLIED FOR REASSIGNMENT TO OAKLAND. BY MESSAGE 95820 DATED OCTOBER 11, 1962, AND PARAGRAPH 1, SPECIAL ORDERS NO. 151, DATED OCTOBER 23, 1962, YOU WERE ASSIGNED TO U.S. ARMY PERSONNEL CENTER, OAKLAND, CALIFORNIA, FOR DUTY UPON EXPIRATION OF LEAVE, OCTOBER 7, 1962.

PARAGRAPHS 1 AND 2, SPECIAL ORDERS NO. 176, DATED DECEMBER 7, 1962, WERE ISSUED TO REVOKE PARAGRAPH 1 OF SPECIAL ORDERS NO. 151, AND PARAGRAPH 2 SPECIAL ORDER 158 AND TO AMEND PARAGRAPH 5 OF SPECIAL ORDERS 181 TO SHOW THAT YOU WERE ASSIGNED TO OAKLAND, CALIFORNIA, INSTEAD OF FORT MYER, VIRGINIA. SUBSEQUENTLY, BY PARAGRAPHS 1 AND 2, SPECIAL ORDERS NO. 10, DATED JANUARY 21, 1963, PARAGRAPHS 1 AND 2 OF SPECIAL ORDERS 176 AND PARAGRAPH 2, SPECIAL ORDERS 158, WERE REVOKED, AND PARAGRAPH 1, SPECIAL ORDERS 151, WAS AMENDED PURPORTING TO SHOW A PERMANENT CHANGE OF STATION ASSIGNMENT BY VERBAL ORDERS DATED SEPTEMBER 10, 1962, AND DEPARTMENT OF THE ARMY MESSAGE 95820 DATED OCTOBER 11, 1962.

YOU PRESENTED A CLAIM FOR TRAVEL ALLOWANCES FOR TRAVEL FROM FRANKFURT, GERMANY, TO OAKLAND ARMY TERMINAL DURING THE PERIOD SEPTEMBER 7 TO OCTOBER 7, 1962. BY THE SETTLEMENT MENTIONED ABOVE YOU WERE ALLOWED $1.04 REPRESENTING PER DIEM FOR SEPTEMBER 7, 1962, LESS MEALS AND QUARTERS. HOWEVER, MILEAGE FOR TRAVEL FROM MCGUIRE AIR FORCE BASE, NEW JERSEY, TO OAKLAND, CALIFORNIA, WAS DISALLOWED BY THE SETTLEMENT FOR THE REASON THAT YOU WERE IN A LEAVE STATUS IN OAKLAND, CALIFORNIA, ON OCTOBER 7, 1962, WHEN YOU REQUESTED REASSIGNMENT TO THAT PLACE AND THAT ORDERS PURPORTING TO MODIFY YOUR ORIGINAL ORDERS RETROACTIVELY ARE WITHOUT EFFECT TO AUTHORIZE MILEAGE. IN YOUR PRESENT LETTER YOU SAY YOU RETURNED THE CHECK FOR $1.04 TO THE TREASURER OF THE UNITED STATES; THAT YOU CONSIDER THE AMENDATORY ORDERS TO BE PROPER, AND THAT YOU DID NOT REQUEST CHANGE OF ASSIGNMENT WHILE ON LEAVE ON OCTOBER 7, 1962.

IT LONG HAS BEEN THE ESTABLISHED RULE OF THE ACCOUNTING OFFICERS OF THE GOVERNMENT TO ACCEPT THE REPORT OF FACTS SUBMITTED BY THE ADMINISTRATIVE OFFICE IN THE ABSENCE OF EVIDENCE SUFFICIENTLY CONVINCING TO OVERCOME THE CORRECTNESS THEREOF. 3 COMP. GEN. 51; ID. 164; 15 ID. 241, 242; ID. 253, 254; AND 16 ID. 1105, 1106. HENCE, IN THE ABSENCE OF EVIDENCE ESTABLISHING THAT THE ADMINISTRATIVE REPORT IS IN ERROR, IT MUST BE ACCEPTED AS CORRECT. IN ANY EVENT IT IS APPARENT THAT YOU TRAVELED FROM MCGUIRE AIR FORCE BASE, NEW JERSEY, TO OAKLAND, CALIFORNIA, IN A LEAVE STATUS AND NOT IN AN ORDERED TRAVEL STATUS AND THAT YOU RECEIVED ORDERS ASSIGNING YOU TO OAKLAND WHILE THERE.

THE PERTINENT STATUTE, 37 U.S.C. 404, PROVIDES THAT UNDER REGULATIONS PROMULGATED BY THE SECRETARIES CONCERNED MEMBERS OF THE UNIFORMED SERVICES ARE ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCE FOR TRAVEL PERFORMED UNDER COMPETENT ORDERS. PARAGRAPH 3050-1 OF THE JOINT TRAVEL REGULATIONS PROMULGATED PURSUANT TO THAT AUTHORITY OF LAW PROVIDES THAT MEMBERS ARE ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES ONLY WHEN IN A TRAVEL STATUS AND THAT THEY SHALL BE DEEMED TO BE IN A TRAVEL STATUS WHILE PERFORMING TRAVEL ON PUBLIC BUSINESS. WHERE A MEMBER IS GRANTED LEAVE OF ABSENCE AT THE COMPLETION OF WHICH HE IS PERMITTED FOR HIS OWN CONVENIENCE TO REPORT AT A NEW STATION AT OR NEAR THE PLACE OF LEAVE, THE TRAVEL INVOLVED IS TO BE REGARDED AS HAVING BEEN PERFORMED INCIDENT TO LEAVE AND NOT ON PUBLIC BUSINESS AND THE EXPENSE THEREOF MUST BE BORNE BY THE TRAVELER. 30 COMP. GEN. 19. FURTHER, PARAGRAPH 4156, CASE 7, OF THE JOINT TRAVEL REGULATIONS, PROVIDES THAT WHEN THE STATION OF A MEMBER IS CHANGED WHILE HE IS ON LEAVE OF ABSENCE, HE WILL ON JOINING THE NEW STATION, BE ENTITLED ONLY TO TRAVEL ALLOWANCES FROM THE PLACE WHERE HE RECEIVED THE ORDERS DIRECTING THE CHANGE TO THE NEW STATION, NOT TO EXCEED THE DISTANCE FROM THE OLD TO THE NEW STATION.

IT LONG HAS BEEN THE RULE THAT EXCEPT TO CORRECT OR COMPLETE THE ORDERS TO SHOW THE ORIGINAL INTENT, TRAVEL ORDERS MAY NOT BE REVOKED OR MODIFIED RETROACTIVELY TO INCREASE OR DECREASE THE RIGHTS WHICH HAVE ACCRUED AND BECOME FIXED UNDER APPLICABLE STATUTES, REGULATIONS AND ORDERS FOR TRAVEL ALREADY PERFORMED. 23 COMP. GEN. 713. EXCEPT WHERE TRAVEL ORDERS ON THEIR FACE ARE INCOMPLETE AND AMBIGUOUS, OR WHERE ALL THE FACTS AND CIRCUMSTANCES WOULD CLEARLY DEMONSTRATE THAT SOME PROVISION PREVIOUSLY DETERMINED AND OTHERWISE AUTHORIZED AND DEFINITELY INTENDED IN A PARTICULAR CASE HAD BEEN OMITTED THROUGH ERROR OR INADVERTENCE IN PREPARING THE TRAVEL ORDERS, THEY MAY NOT BE AMENDED RETROACTIVELY. COMP. GEN. 439.

SINCE THE ORDERS OF OCTOBER 23, 1962, WERE COMPLETE AND UNAMBIGUOUS ON THEIR FACE, THERE APPEARS NO BASIS ON WHICH THE PURPORTED RETROACTIVE MODIFICATION MAY BE ACCEPTED, AND SINCE YOU WERE AT OAKLAND WHEN ORDERED TO DUTY THERE UPON TERMINATION OF LEAVE, THERE IS NO BASIS FOR THE ALLOWANCE OF YOUR CLAIM FOR MILEAGE FOR TRAVEL FROM MCGUIRE AIR FORCE BASE, NEW JERSEY, TO OAKLAND, CALIFORNIA. THEREFORE, THE SETTLEMENT OF MARCH 28, 1963, IS SUSTAINED.