B-155104, DEC. 10, 1964

B-155104: Dec 10, 1964

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

RA 19 263 774: FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 24. YOU WERE DIRECTED BY LETTER ORDERS 5-16. IN THE APPLICATION YOU STATED THAT THE LETTER ORDERS AUTHORIZED YOU TO WEAR CIVILIAN CLOTHING WHILE IN A TRAVEL STATUS AND THAT PARAGRAPH 1-3B OF ARMY REGULATIONS NO. 37-106 SPECIFIED THAT MEMBERS ARE DEEMED TO BE IN A TRAVEL STATUS PURSUANT TO COMPETENT ORDERS FOR PERIODS OF NECESSARY TEMPORARY DUTY. SINCE YOUR LETTER ORDERS WERE NOT DRAWN AS DIRECTED BY THOSE REGULATIONS. THE WEARING OF CIVILIAN CLOTHING APPARENTLY WAS INTENDED TO BE AUTHORIZED AND DIRECTED ONLY FOR THE PERIODS OF YOUR TRAVEL BETWEEN STATIONS AND NOT FOR THE PERIOD OF YOUR TEMPORARY DUTY. THAT THE OFFICE SETTLEMENT IMPLIED THAT THE LETTER ORDERS ISSUED TO YOU SHOULD HAVE STATED THAT A CLOTHING ALLOWANCE WAS AUTHORIZED AND.

B-155104, DEC. 10, 1964

TO SERGEANT ARTHUR A. HANSEN, RA 19 263 774:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 24, 1964, IN EFFECT REQUESTING A REVIEW OF OFFICE SETTLEMENT DATED MAY 8, 1962, WHICH DISALLOWED YOUR CLAIM FOR CIVILIAN CLOTHING ALLOWANCE INCIDENT TO ORDERS ASSIGNING YOU ON TEMPORARY DUTY IN SAIGON, VIETNAM.

YOU WERE DIRECTED BY LETTER ORDERS 5-16, HEADQUARTERS, 500TH MILITARY INTELLIGENCE GROUP, APO 67, DATED MAY 10, 1961, TO PROCEED ON OR ABOUT MAY 11, 1961, FROM YOUR STATION IN JAPAN TO SAIGON, VIETNAM, FOR TEMPORARY DUTY FOR A PERIOD OF APPROXIMATELY 90 DAYS. THOSE ORDERS ALSO AUTHORIZED AND DIRECTED YOU TO WEAR CIVILIAN CLOTHING WHILE IN A TRAVEL STATUS. APPEARS THAT AFTER YOU ACCOMPLISHED THE ASSIGNED MISSION AND COMPLETED THE TRAVEL INVOLVED UNDER THOSE ORDERS, YOU PRESENTED A CLAIM FOR A CLOTHING ALLOWANCE UNDER THE AUTHORITY OF ARMY REGULATIONS NO. 700-8400-1. IN THE APPLICATION YOU STATED THAT THE LETTER ORDERS AUTHORIZED YOU TO WEAR CIVILIAN CLOTHING WHILE IN A TRAVEL STATUS AND THAT PARAGRAPH 1-3B OF ARMY REGULATIONS NO. 37-106 SPECIFIED THAT MEMBERS ARE DEEMED TO BE IN A TRAVEL STATUS PURSUANT TO COMPETENT ORDERS FOR PERIODS OF NECESSARY TEMPORARY DUTY.

OUR CLAIMS DIVISION DISALLOWED THE CLAIM ON THE BASIS THAT THE GOVERNING REGULATION, SUBPARAGRAPH 12A (1) (B), CHANGE 4, ARMY REGULATIONS NO. 700- 8400-1, REQUIRED THAT ORDERS DIRECTING THE WEARING CIVILIAN CLOTHING FOR ENLISTED PERSONNEL ENGAGED IN DUTIES OF A NONCLASSIFIED NATURE CITE, IN ADDITION TO THE APPROPRIATION, THE DOLLAR VALUE OF THE INITIAL ISSUE ALLOWANCE AUTHORIZED, I.E., NOT TO EXCEED $100, $200, OR $300, AND SINCE YOUR LETTER ORDERS WERE NOT DRAWN AS DIRECTED BY THOSE REGULATIONS, THE WEARING OF CIVILIAN CLOTHING APPARENTLY WAS INTENDED TO BE AUTHORIZED AND DIRECTED ONLY FOR THE PERIODS OF YOUR TRAVEL BETWEEN STATIONS AND NOT FOR THE PERIOD OF YOUR TEMPORARY DUTY.

YOU SAY IN YOUR LETTER OF AUGUST 24, 1964, IN SUBSTANCE, THAT THE OFFICE SETTLEMENT IMPLIED THAT THE LETTER ORDERS ISSUED TO YOU SHOULD HAVE STATED THAT A CLOTHING ALLOWANCE WAS AUTHORIZED AND, THEREFORE, SINCE YOUR ORGANIZATION REFUSED TO AMEND THOSE ORDERS TO AUTHORIZE AN INITIAL CLOTHING ISSUE ALLOWANCE OF $100, YOU BELIEVE THAT THIS OFFICE SHOULD DIRECT THE ISSUANCE OF SUCH AN AMENDMENT.

THE REGULATIONS IN EFFECT AT THE TIME OF YOUR TRAVEL TO VIETNAM, SUBPARAGRAPH 12A (3) (NOW SUBPARAGRAPH 85D (1) ( OF ARMY REGULATIONS NO. 700-8400-1, PROVIDED THAT REQUESTS FOR AUTHORITY TO WEAR CIVILIAN CLOTHING IN THE PERFORMANCE OF OFFICIAL DUTY INCLUDING THE WEARING OF SUCH CLOTHING FOR PERIODS OF TEMPORARY DUTY FOR 15 DAYS OR LONGER, WERE TO BE SUBMITTED TO HEADQUARTERS, DEPARTMENT OF THE ARMY, FOR APPROVAL. ALSO, AS STATED IN THE OFFICE SETTLEMENT, PARAGRAPH 12A (1) (B) (NOW PARAGRAPH 84) OF THOSE REGULATIONS PROVIDED THAT ORDERS DIRECTING THE WEARING OF CIVILIAN CLOTHING MUST CITE, IN ADDITION TO THE APPROPRIATION SPECIFIED THEREIN, THE DOLLAR VALUE OF THE INITIAL ISSUANCE ALLOWANCE AUTHORIZED, I.E., NOT TO EXCEED $100, $200, OR $300. PARAGRAPH 12B (1) (C) OF THE REGULATIONS PROVIDED THAT WHERE CIVILIAN OUTER CLOTHING IS REQUIRED FOR TEMPORARY DUTY OF 15 DAYS OR LONGER, AN INITIAL ALLOWANCE OF NOT TO EXCEED $100 WAS AUTHORIZED. THESE REGULATIONS CONTEMPLATED THAT IN CASES WHERE TEMPORARY DUTY OF 15 DAYS OR LONGER, REQUIRING THE WEARING OF CIVILIAN CLOTHING, WAS DIRECTED AN ADMINISTRATIVE DETERMINATION WOULD BE MADE OF THE AMOUNT OF THE CLOTHING ALLOWANCE AUTHORIZED, NOT TO EXCEED THE MAXIMUM OF $100, AND THAT SUCH AMOUNT WOULD BE SPECIFIED IN THE TEMPORARY DUTY ORDERS.

IN CONNECTION WITH YOUR CLAIM, THE COMMANDER IN CHIEF OF THE U.S. ARMY PACIFIC, REPORTED IN A MESSAGE OF NOVEMBER 30, 1961, THAT YOU WERE NOT ENTITLED TO PAYMENT, HIS DETERMINATION BEING PREDICATED ON THE CONSIDERATION THAT DUTY REQUIRING THE WEARING OF CIVILIAN CLOTHING DID NOT EXCEED 15 DAYS. HIS MESSAGE INDICATES THAT YOU WERE REQUIRED TO WEAR CIVILIAN CLOTHING ONLY WHILE IN TRANSIT TO AND FROM SAIGON. THERE IS NOTHING IN THE RECORD BEFORE US TO SHOW THAT YOU WERE REQUIRED TO WEAR SUCH CLOTHING WHILE PERFORMING DUTY AT THAT STATION. THEREFORE SINCE YOUR ORDERS DID NOT SHOW ANY AMOUNT FOR PAYMENT AS AN INITIAL CIVILIAN CLOTHING ALLOWANCE NOR SHOW THE APPROPRIATION CHARGEABLE THEREFOR, AS REQUIRED BY THE CONTROLLING REGULATIONS, THE PROVISION IN YOUR ORDERS DIRECTING THE WEARING OF CIVILIAN CLOTHING WHILE IN A TRAVEL STATUS APPARENTLY CONTEMPLATED THAT YOU WOULD WEAR CIVILIAN CLOTHING ONLY DURING THE SHORT PERIOD OF YOUR TRAVEL TO YOUR TEMPORARY DUTY STATION AND RETURN (ACTUALLY 2 DAYS AND 22 HOURS) WITHOUT THE PAYMENT OF A CIVILIAN CLOTHING ALLOWANCE.

WITH RESPECT TO AMENDING YOUR ORDERS, YOU ARE ADVISED THAT THE ISSUANCE OF TRAVEL ORDERS AND THE AMENDMENT OR MODIFICATION OF SUCH ORDERS ARE MATTERS UNDER THE JURISDICTION OF THE DEPARTMENT OF THE ARMY. FURTHER, YOU ARE ADVISED THAT A MEMBER'S RIGHTS UNDER HIS TRAVEL ORDERS GENERALLY BECOME FIXED AT THE TIME THE TRAVEL AND TEMPORARY DUTY ARE PERFORMED AND SUCH RIGHTS MAY NOT BE INCREASED BY THE RETROACTIVE AMENDMENT OF HIS ORDERS. IN EXCEPTIONAL CASES WE HAVE RECOGNIZED THAT WHERE TRAVEL ORDERS, ON THEIR FACE, ARE INCOMPLETE OR AMBIGUOUS OR WHERE ALL THE FACTS AND CIRCUMSTANCES CLEARLY DEMONSTRATE THAT SOME PROVISION PREVIOUSLY DETERMINED AND OTHERWISE AUTHORIZED AND DEFINITELY INTENDED IN A PARTICULAR CASE WAS OMITTED THROUGH ERROR OR INADVERTENCE SUCH PROVISION MIGHT BE SUPPLIED BY AN AMENDMENT TO THE ORDERS. 24 COMP. GEN. 439. THERE DOES NOT APPEAR TO BE SUCH A BASIS, HOWEVER, FOR AMENDING YOUR ORDERS.

IN VIEW OF THE FOREGOING, THE RECORD BEFORE US PRESENTS NO LEGAL BASIS FOR THE PAYMENT OF YOUR CLAIM. ACCORDINGLY, THE SETTLEMENT OF MAY 8, 1962, IS SUSTAINED.