B-158887, AUG. 12, 1966

B-158887: Aug 12, 1966

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MELOY: FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 18. EARLIER REPLY WAS NOT POSSIBLE AS WE WERE AWAITING RECEIPT OF A SUPPLEMENTAL REPORT FROM THE FINANCE CENTER. AS YOU WERE ADVISED BY OUR LETTER OF JUNE 6. THE REPORT WAS RECEIVED HERE ON AUGUST 1. FURTHER TRAVEL IN CONNECTION WITH SUCH DUTY WAS TO BE AS DIRECTED AT FORT RILEY. THOSE ORDERS WERE AMENDED BY LETTER ORDERS 5-12. YOU AND OTHER LISTED MEMBERS WERE PLACED ON FURTHER TEMPORARY DUTY FOR PARTICIPATION IN THE U.S. YOU WERE PAID $303.65 FOR PER DIEM. WERE AMENDED BY LETTER ORDERS NO. 7-56. FOR THE DIFFERENCE BETWEEN 7 CENTS PER MILE TO WHICH YOU BELIEVED YOU WERE ENTITLED UNDER THE ORDERS OF JULY 27. YOU CERTIFIED ON THE TRAVEL VOUCHER SUPPORTING THE CLAIM THAT YOU WERE THE OWNER AND OPERATOR OF THE PRIVATELY OWNED CONVEYANCE UTILIZED FOR THE TRAVEL AND THAT YOU WERE PRIMARILY RESPONSIBLE FOR THE PAYMENT OF THE OPERATING EXPENSES.

B-158887, AUG. 12, 1966

TO MR. BILLY R. MELOY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 18, 1966, REQUESTING RECONSIDERATION OF YOUR CLAIM FOR ADDITIONAL MILEAGE OF $26.06 (DIFFERENCE BETWEEN 7 CENTS AND 5 CENTS PER MILE FOR A DISTANCE OF 1,303 MILES) FOR TRAVEL PERFORMED BY PRIVATELY OWNED VEHICLE FROM FORT RILEY, KANSAS, TO LAWTON, OKLAHOMA, AND FORT BENNING, GEORGIA, DURING THE PERIOD MAY 20 TO 26, 1965, WHILE SERVING AS A SECOND LIEUTENANT, UNITED STATES ARMY. EARLIER REPLY WAS NOT POSSIBLE AS WE WERE AWAITING RECEIPT OF A SUPPLEMENTAL REPORT FROM THE FINANCE CENTER, U.S. ARMY, INDIANAPOLIS, INDIANA, REQUESTED ON MAY 4, 1966, AS YOU WERE ADVISED BY OUR LETTER OF JUNE 6, 1966. THE REPORT WAS RECEIVED HERE ON AUGUST 1, 1966.

THE RECORD SHOWS THAT ON APRIL 16, 1965, HEADQUARTERS FORT LEONARD WOOD, MISSOURI, PUBLISHED LETTER ORDERS 4-92, DIRECTING YOU AND OTHER LISTED MEMBERS OF A RIFLE TEAM AND A PISTOL TEAM TO REPORT TO FORT RILEY, KANSAS, ON APRIL 24, 1965, FOR 10 DAYS' TEMPORARY DUTY TO REPRESENT FORT LEONARD WOOD AT THE FIFTH U.S. ARMY HI-POWER RIFLE AND PISTOL MATCHES. FURTHER TRAVEL IN CONNECTION WITH SUCH DUTY WAS TO BE AS DIRECTED AT FORT RILEY. THOSE ORDERS WERE AMENDED BY LETTER ORDERS 5-12, DATED MAY 4, 1965, HEADQUARTERS, FORT RILEY, KANSAS, EXTENDING THE PERIOD OF TEMPORARY DUTY TO 57 DAYS, AND BY LETTER ORDERS 5-49, DATED MAY 13, 1965, OF THE SAME COMMAND, YOU AND OTHER LISTED MEMBERS WERE PLACED ON FURTHER TEMPORARY DUTY FOR PARTICIPATION IN THE U.S. ARMY RIFLE AND PISTOL CHAMPIONSHIPS AND DIRECTED TO REPORT TO LAWTON, OKLAHOMA, ON MAY 21, 1965, AND FORT BENNING, GEORGIA, ON MAY 25, 1965. THE LATTER ORDERS STIPULATED THAT YOU WOULD BE PAID 5 CENTS PER MILE UNDER PARAGRAPH M4203-3, JOINT TRAVEL REGULATIONS. ON THE BASIS OF A TRAVEL VOUCHER SUBMITTED BY YOU INCIDENT TO THE TRAVEL AND TEMPORARY DUTY PERFORMED UNDER THE ABOVE ORDERS AND COVERING THE PERIOD MAY 3 TO JUNE 13, 1965,YOU WERE PAID $303.65 FOR PER DIEM, BOQ, AND MILEAGE ALLOWANCE IN LIEU OF TRANSPORTATION FOR TRAVEL FROM FORT RILEY TO LAWTON AND FORT BENNING BY PRIVATELY OWNED AUTOMOBILE ($65.15 REPRESENTING 5 CENTS PER MILE FOR THE OFFICIAL DISTANCE OF 1,303 MILES).

THE RECORD FURTHER SHOWS THAT AFTER THE ARMY EFFECTED PAYMENT TO YOU FOR THE TRAVEL INVOLVED, AS INDICATED ABOVE, THE ORDERS OF MAY 13, 1965, WERE AMENDED BY LETTER ORDERS NO. 7-56, HEADQUARTERS, FORT RILEY, DATED JULY 27, 1965, TO AUTHORIZE YOU RATHER THAN ONE FIRST LIEUTENANT KENNETH D. BOWEN TO DRIVE A PRIVATELY OWNED VEHICLE TO LAWTON AND FORT BENNING AND RECEIVE 7 CENTS PER MILE. IN VIEW OF THAT AMENDATORY ORDER YOU SUBMITTED A SUPPLEMENTAL CLAIM TO THE DEPARTMENT OF THE ARMY ON OCTOBER 26, 1965, FOR THE DIFFERENCE BETWEEN 7 CENTS PER MILE TO WHICH YOU BELIEVED YOU WERE ENTITLED UNDER THE ORDERS OF JULY 27, 1965, AND 5 CENTS PER MILE PREVIOUSLY PAID TO YOU AS THE MILEAGE ALLOWANCE FOR THE INVOLVED TRAVEL. YOU CERTIFIED ON THE TRAVEL VOUCHER SUPPORTING THE CLAIM THAT YOU WERE THE OWNER AND OPERATOR OF THE PRIVATELY OWNED CONVEYANCE UTILIZED FOR THE TRAVEL AND THAT YOU WERE PRIMARILY RESPONSIBLE FOR THE PAYMENT OF THE OPERATING EXPENSES. ALSO, IN SUPPORT OF YOUR CLAIM THERE WAS FURNISHED A COPY OF THE VOUCHER COVERING THE PAYMENT MADE TO LIEUTENANT BOWEN IN CONNECTION WITH HIS TRAVEL FROM FORT RILEY TO LAWTON AND FORT BENNING AND SHOWING THAT HE TOO WAS PAID 5 CENTS PER MILE AS A PASSENGER IN A PRIVATELY OWNED VEHICLE. PURSUANT TO PARAGRAPH 1-64B (4), ARMY REGULATIONS NO. 37-106, THE CLAIM WAS REFERRED TO OUR CLAIMS DIVISION FOR CONSIDERATION AND DISPOSITION.

BY SETTLEMENT OF MARCH 9, 1966, OUR CLAIMS DIVISION DISALLOWED THE CLAIM FOR THE REASON THAT TRAVEL ORDERS MAY NOT BE REVOKED OR MODIFIED RETROACTIVELY SO AS TO INCREASE OR DECREASE THE RIGHTS WHICH HAVE ACCRUED AND BECOME FIXED UNDER THE APPLICABLE STATUTES, REGULATIONS AND ORDERS FOR TRAVEL ALREADY PERFORMED. IN THAT SETTLEMENT YOU WERE ADVISED, ADDITIONALLY, THAT THERE IS NO SHOWING IN THE RECORD THAT YOU WERE GIVEN VERBAL ORDERS PRIOR TO YOUR DEPARTURE ON MAY 20, 1965, THAT WOULD AUTHORIZE THE MILEAGE RATE OF 7 CENTS PER MILE FOR THE TRAVEL. IN YOUR LETTER DATED MARCH 18, 1966, YOU REQUEST RECONSIDERATION OF THE CLAIM ON THE BASIS OF A NUMBER OF POINTS, MAINLY THAT BECAUSE LIEUTENANT BOWEN'S AUTOMOBILE WAS INOPERATIVE IT BECAME NECESSARY FOR YOU TO DRIVE YOUR AUTOMOBILE WITH HIM AS A PASSENGER; THAT YOU PAID THE OPERATING EXPENSES; THAT TIME DID NOT PERMIT AMENDMENT OF THE ORDERS PRIOR TO DEPARTURE; AND THAT A "VOCO WAS GIVEN BY MAJOR HOWARD 5TH US ARMY TEAM OIC" THAT THE ORDERS WOULD BE AMENDED AND THAT YOU WOULD RECEIVE THE 7 CENTS PER MILE WHEN THE AMENDMENT WAS ISSUED.

PARAGRAPH M4203-3B (1), JOINT TRAVEL REGULATIONS, PROVIDES, AMONG OTHER THINGS, THAT IT IS THE POLICY OF THE UNIFORMED SERVICES TO "AUTHORIZE" (AS DISTINGUISHED FROM "PERMIT") MEMBERS TO TRAVEL BY PRIVATELY OWNED CONVEYANCE ONLY WHEN SUCH MODE OF TRANSPORTATION IS ACCEPTABLE TO THE MEMBER AND DETERMINED TO BE MORE ADVANTAGEOUS TO THE GOVERNMENT. SUBPARAGRAPH (2) PROVIDES THAT FOR TRAVEL ACTUALLY PERFORMED BY PRIVATELY OWNED CONVEYANCE UNDER ORDERS AUTHORIZING SUCH MODE OF TRANSPORTATION AS MORE ADVANTAGEOUS TO THE GOVERNMENT, THE MEMBER WILL BE PAID A MONETARY ALLOWANCE IN LIEU OF TRANSPORTATION AT THE RATE OF 7 CENTS PER MILE FOR THE OFFICIAL DISTANCE, BUT THAT PAYMENT FOR SUCH TRAVEL IN EXCESS OF 5 CENTS PER MILE WILL NOT BE MADE, IRRESPECTIVE OF THE TERMS OF THE ORDERS, IN THE ABSENCE OF A SIGNED STATEMENT FROM THE MEMBER TO THE EFFECT THAT HE WAS IN FACT THE OWNER OR OPERATOR OF THE PRIVATELY OWNED CONVEYANCE UTILIZED AND THAT HE WAS PRIMARILY RESPONSIBLE FOR THE PAYMENT OF THE OPERATING EXPENSES THEREOF. PARAGRAPH M3002-2 PROVIDES THAT A VERBAL ORDER GIVEN IN ADVANCE OF TRAVEL AND SUBSEQUENTLY CONFIRMED IN WRITING GIVING DATE OF VERBAL ORDER AND APPROVED BY COMPETENT AUTHORITY WILL MEET THE REQUIREMENT FOR WRITTEN ORDERS.

SINCE THERE WAS NOTHING IN THE RECORD TO SHOW THAT YOU WERE VERBALLY AUTHORIZED TO UTILIZE YOUR PRIVATELY OWNED VEHICLE FOR THE TRAVEL TO LAWTON AND FORT BENNING PRIOR TO THE ISSUANCE OF THE AMENDATORY ORDERS OF JULY 27, 1965, AND IN VIEW OF THE STATEMENT IN YOUR LETTER OF MARCH 18, 1966, MENTIONED ABOVE, THAT A "VOCO" HAD BEEN GIVEN FOR THE AMENDMENT OF YOUR ORDERS, WE REQUESTED THE FINANCE CENTER, U.S. ARMY, INDIANAPOLIS, INDIANA, ON MAY 4, 1966, TO FURNISH A CLARIFYING REPORT IN THIS MATTER. IN RESPONSE TO OUR REQUEST WE NOW HAVE BEFORE US LETTER DATED JULY 15, 1966, FROM HEADQUARTERS, FIFTH U.S. ARMY MARKSMANSHIP TRAINING UNIT, FORT RILEY, KANSAS, WHICH CONTAINS THE FOLLOWING PERTINENT INFORMATION:

"2. CIRCUMSTANCES TO BE CONSIDERED ARE AS FOLLOWS:

"A. THE OFFICERS CONCERNED RODE TOGETHER AND DECIDED TO CHANGE CARS BECAUSE OF MECHANICAL PROBLEMS WITH THE CAR OWNED BY LT BOWEN.

"B. LT MELOY REMAINED WITH THE USAMTU DURING THE SUMMER TRAINING PERIOD AND THIS OFFICE WAS NOT NOTIFIED OF THE SWITCH UNTIL LT MELOY'S RETURN, CONSEQUENTLY THE TWO MONTH DELAY.'

AS A GENERAL PROPOSITION ORDERS MAY NOT BE MODIFIED TO RETROACTIVELY INCREASE OR DECREASE RIGHTS WHICH HAVE VESTED UNDER APPLICABLE STATUTES, REGULATIONS OR ORDERS. SEE 23 COMP. GEN. 713 AND 24 COMP. GEN. 439. HENCE, AMENDATORY ORDERS MAY NOT BE APPLIED RETROACTIVELY UNLESS ERROR IS APPARENT ON THE FACE OF THE ORIGINAL ORDERS OR UNLESS THERE HAS BEEN A FULL DISCLOSURE BY THE ADMINISTRATIVE OFFICE CONCERNED OF ALL THE FACTS AND CIRCUMSTANCES SURROUNDING THE ISSUANCE OF SUCH ORDERS AND THERECORD CLEARLY ESTABLISHES THAT SOME PROVISIONS PREVIOUSLY DETERMINED AND OTHERWISE AUTHORIZED AND DEFINITELY INTENDED WAS OMITTED THROUGH ERROR OR INADVERTENCE IN PREPARING THE ORDERS. THERE IS NOTHING IN THE RECORD TO SHOW THAT THE ORDERS OF MAY 13, 1965, WERE IN ERROR IN THAT THEY DID NOT REFLECT THE INTENTION OF THE ISSUING OFFICE AT THE TIME OF THEIR PUBLICATION, NOR DO THE ORDERS OF JULY 27, 1965, REFER TO A VERBAL ORDER OR OTHERWISE RECITE WHY SUCH ORDERS OF MAY 13, 1965, WERE BEING AMENDED. FURTHERMORE, THE INFORMATION FURNISHED IN THE ABOVE LETTER OF JULY 15, 1966, DOES NOT INDICATE THAT PRIOR TO THE PERFORMANCE OF YOUR TRAVEL WITH LIEUTENANT BOWEN TO LAWTON AND FORT BENNING VERBAL ORDERS WERE ISSUED AUTHORIZING YOU TO UTILIZE YOUR PRIVATELY OWNED VEHICLE.

ACCORDINGLY, ON THE BASIS OF THE RECORD BEFORE US WE MUST VIEW THE AMENDATORY ORDERS OF JULY 27, 1965, AS BEING INEFFECTIVE TO AUTHORIZE PAYMENT TO YOU OF THE ADDITIONAL MILEAGE CLAIMED. THE SETTLEMENT OF MARCH 9, 1966, THEREFORE WAS CORRECT AND IS SUSTAINED.