B-165780, MAR. 12, 1969

B-165780: Mar 12, 1969

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TO MAJOR JOHN M HESS: FURTHER REFERENCE IS MADE TO YOUR CLAIM FOR REIMBURSEMENT OF REGISTRATION FEES OF $50 AND $100 WHICH YOU PAID TO THE AMERICAN BOARD OF ANESTHESIOLOGY ON DECEMBER 26. THAT YOU WERE NOT AWARE OF ANY REIMBURSEMENT ENTITLEMENT AT THAT TIME AND. SINCE THE EXAMINATION WAS GIVEN NEAR YOUR STATION. YOU WERE PLACED ON TEMPORARY DUTY FOR THREE DAYS EFFECTIVE OCTOBER 8. UPON COMPLETION OF WHICH YOU WERE TO RETURN TO MARCH AIR FORCE BASE. DID NOT STATE THAT YOU WERE REQUESTING REIMBURSEMENT OF REGISTRATION FEES. THOSE ORDERS WERE AMENDED BY SPECIAL ORDER T-1420 OF JUNE 4. PROVIDES THAT AN OFFICER WHO CONSIDERS HIMSELF ELIGIBLE FOR ADMISSION TO A PROFESSIONAL BOARD EXAMINATION WILL COMMUNICATE DIRECTLY WITH THE EXAMINING AGENCY FOR EVALUATION AND DETERMINATION OF ELIGIBILITY.

B-165780, MAR. 12, 1969

TO MAJOR JOHN M HESS:

FURTHER REFERENCE IS MADE TO YOUR CLAIM FOR REIMBURSEMENT OF REGISTRATION FEES OF $50 AND $100 WHICH YOU PAID TO THE AMERICAN BOARD OF ANESTHESIOLOGY ON DECEMBER 26, 1963, AND MAY 2, 1964, RESPECTIVELY, FOR THE PURPOSE OF TAKING EXAMINATIONS IN ANESTHESIOLOGY.

IT APPEARS THAT YOU TOOK THE WRITTEN PORTION OF THE EXAMINATION IN 1964, THAT YOU WERE NOT AWARE OF ANY REIMBURSEMENT ENTITLEMENT AT THAT TIME AND, SINCE THE EXAMINATION WAS GIVEN NEAR YOUR STATION, YOU DID NOT REQUEST TEMPORARY DUTY ORDERS BUT TOOK THE EXAMINATION ON YOUR OWN TIME.

BY SPECIAL ORDER NO. T-2730, DATED OCTOBER 3, 1967, BASED ON YOUR REQUEST OF SEPTEMBER 18, 1967, YOU WERE PLACED ON TEMPORARY DUTY FOR THREE DAYS EFFECTIVE OCTOBER 8, 1967, AND DIRECTED TO PROCEED FROM MARCH AIR FORCE BASE, CALIFORNIA, TO WASHINGTON, D.C., FOR THE PURPOSE OF TAKING THE ORAL PORTION OF THE EXAMINATION, UPON COMPLETION OF WHICH YOU WERE TO RETURN TO MARCH AIR FORCE BASE. YOUR REQUEST OF SEPTEMBER 18, 1967, DID NOT STATE THAT YOU WERE REQUESTING REIMBURSEMENT OF REGISTRATION FEES. THE ORDERS OF OCTOBER 3, 1967, APPROVED "ALL NECESSARY TRAVEL EXPENSES" BUT SPECIFICALLY PROVIDED THAT "NONE" WOULD BE PAID FOR "REGISTRATION AND/OR ADMISSION FEES.' THOSE ORDERS WERE AMENDED BY SPECIAL ORDER T-1420 OF JUNE 4, 1968, TO APPROVE ALL NECESSARY TRAVEL EXPENSES "INCLUDING $150 FOR REGISTRATION AND/OR ADMISSION FEES.'

THE AIR FORCE ACCOUNTING AND FINANCE CENTER DID NOT PAY YOUR CLAIM FOR THE REASON THAT YOU PAID THE FEES WITHOUT ORDERS AUTHORIZING REIMBURSEMENT AND THE ORDERS OF OCTOBER 3, 1967, STILL DID NOT AUTHORIZE REIMBURSEMENT OF FEES. HOWEVER, THE FINANCE CENTER FORWARDED YOUR CLAIM HERE FOR CONSIDERATION UNDER THE MERITORIOUS CLAIMS ACT OF APRIL 10, 1928, 45 STAT. 413, 31 U.S.C. 236.

PARAGRAPH 2, AIR FORCE REGULATION 169-4, JUNE 2, 1966, PROVIDES THAT AN OFFICER WHO CONSIDERS HIMSELF ELIGIBLE FOR ADMISSION TO A PROFESSIONAL BOARD EXAMINATION WILL COMMUNICATE DIRECTLY WITH THE EXAMINING AGENCY FOR EVALUATION AND DETERMINATION OF ELIGIBILITY. WHEN THE EXAMINING AGENCY CONFIRMS HIS ELIGIBILITY, HE PROVIDES HIS COMMANDER WITH ALL THE PERTINENT CORRESPONDENCE AND REQUESTS PERMISSION TO BE PLACED ON TEMPORARY DUTY TO TAKE THE EXAMINATION. HIS REQUEST AND THE COMMANDER'S REPLY WILL BOTH BE IN WRITING, AS THEY CONSTITUTE SUBSTANTIATING DOCUMENTS TO SUPPORT THE CLAIM FOR REIMBURSEMENT.

PARAGRAPH 5 OF THE REGULATION PROVIDES THAT THE OFFICER MAY BE GRANTED TEMPORARY DUTY FOR THE MINIMUM TIME REQUIRED TO TAKE THE EXAMINATION PLUS TRAVEL TIME AND THAT PAYMENT OF FEES FOR APPLICATION, EXAMINATION, ETC., MAY BE AUTHORIZED TOGETHER WITH NECESSARY TRAVEL COSTS. PARAGRAPH 7 OF THE REGULATIONS PROVIDES THAT RECEIPT FOR PAYMENT OF FEES, EVIDENCE OF PRIOR APPROVAL TO TAKE THE EXAMINATION AND THE TEMPORARY DUTY ORDERS ARE USED TO SUPPORT CLAIMS FOR REPAYMENT OF FEES. WE DO NOT HAVE THE REGULATIONS IN EFFECT IN 1964 BUT IT IS ASSUMED THEY CONTAINED SIMILAR PROVISIONS.

THUS, TAKING EXAMINATIONS OF THE TYPE HERE INVOLVED ON A REIMBURSABLE BASIS REQUIRES PRIOR APPROVAL AND APPROPRIATE ORDERS AUTHORIZING THE EXPENDITURE. IN YOUR CASE THERE WAS NO APPROVAL FOR THE FIRST PART OF THE EXAMINATION IN 1964 INCIDENT TO WHICH YOU PAID THE FEES OF $150, AND REIMBURSEMENT OF FEES WAS SPECIFICALLY EXCLUDED FROM THE ORDERS AUTHORIZING THE SECOND PART OF THE EXAMINATION IN 1967.

WITH RESPECT TO THE AMENDATORY ORDERS OF JUNE 4, 1968, IT IS WELL SETTLED THAT OFFICIAL ORDERS PROVIDING A BASIS OF AUTHORITY FOR THE PAYMENT OF TRAVEL AND OTHER ALLOWANCES MAY NOT BE REVOKED OR MODIFIED RETROACTIVELY SO AS TO INCREASE OR DECREASE THE RIGHTS WHICH HAVE BECOME FIXED UNDER THE APPLICABLE STATUTES OR REGULATIONS UNLESS ERROR IS APPARENT ON THE FACE OF THE ORDERS, OR ALL THE FACTS AND CIRCUMSTANCES CLEARLY DEMONSTRATE THAT SOME PROVISION PREVIOUSLY DETERMINED AND DEFINITELY INTENDED HAD BEEN OMITTED THROUGH ERROR OR INADVERTENCE IN PREPARING THE ORDERS. KATZER V UNITED STATES, 52 CT. CLS. 32; 23 COMP. GEN. 713; 24 COMP. GEN. 439, AND 44 COMP. GEN. 405, 408.

THERE IS NO ERROR APPARENT ON THE FACE OF THE ORDERS OF OCTOBER 3, 1967, NOR IS THERE ANY ADMINISTRATIVE SHOWING OF FACTS TO DEMONSTRATE THAT A PROVISION FOR REIMBURSEMENT OF FEES, PREVIOUSLY DETERMINED AND DEFINITELY INTENDED FOR INCLUSION IN THE ORDERS, HAD BEEN OMITTED THROUGH ERROR OR INADVERTENCE IN PREPARING THE ORDERS. MOREOVER, SINCE THE FEES TOTALING $150 WERE PAID IN 1963 AND 1964 THEY APPARENTLY WERE REQUIRED INCIDENT TO THE WRITTEN EXAMINATION IN 1964 FOR WHICH NO ADMINISTRATIVE AUTHORIZATION OR ORDER WAS ISSUED. SINCE THERE IS NO SHOWING THAT ANY PORTION OF THE FEES WAS PAID INCIDENT TO THE EXAMINATION IN 1967, THE AMENDMENT OF THE 1967 ORDERS WOULD NOT, IN ANY EVENT, PROVIDE A BASIS FOR REIMBURSEMENT OF THE FEES INVOLVED. IN THE CIRCUMSTANCES, THE AMENDATORY ORDERS AFFORD NO BASIS FOR PAYMENT OF YOUR CLAIM.

THE MERITORIOUS CLAIMS ACT OF 1928 PROVIDES THAT WHEN A CLAIM IS FILED IN THIS OFFICE THAT MAY NOT BE LAWFULLY ADJUSTED BY USE OF AN APPROPRIATION THERETOFORE MADE, BUT WHICH CLAIM, IN OUR JUDGMENT CONTAINS SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS TO BE DESERVING OF THE CONSIDERATION OF THE CONGRESS, IT SHALL BE SUBMITTED TO THE CONGRESS WITH OUR RECOMMENDATIONS. THE REMEDY IS AN EXTRAORDINARY ONE AND ITS USE IS LIMITED TO EXTRAORDINARY CIRCUMSTANCES.

THE CASES WE HAVE REPORTED FOR THE CONSIDERATION OF THE CONGRESS GENERALLY HAVE INVOLVED EQUITABLE CIRCUMSTANCES OF AN UNUSUAL NATURE AND WHICH ARE UNLIKELY TO CONSTITUTE A RECURRING PROBLEM SINCE TO REPORT TO THE CONGRESS A PARTICULAR CASE WHEN SIMILAR EQUITIES EXIST OR ARE LIKELY TO ARISE WITH RESPECT TO OTHER CLAIMANTS WOULD CONSTITUTE PREFERENTIAL TREATMENT OVER OTHERS IN SIMILAR CIRCUMSTANCES.

THERE ARE NUMEROUS CASES IN WHICH ORDERS ARE AMENDED RETROACTIVELY IN AN ATTEMPT TO INCREASE OR DECREASE THE RIGHTS WHICH BECAME FIXED UNDER ORDERS AS WRITTEN WITH NO EVIDENCE TO ESTABLISH THAT A PROVISION PREVIOUSLY DETERMINED AND DEFINITELY INTENDED HAD BEEN OMITTED THROUGH ERROR IN PREPARING THE ORDERS. SUCH CLAIMS ARE UNIFORMLY DISALLOWED.

LIKEWISE, THE FACT THAT, HAD YOU MADE AN APPROPRIATE REQUEST, ORDERS MIGHT HAVE BEEN ISSUED IN ADVANCE AUTHORIZING YOU TO TAKE THE EXAMINATION IN 1964 WITH REIMBURSEMENT OF THE FEES INVOLVED, PROVIDES NO BASIS TO ALLOW YOUR CLAIM OR REPORT IT TO CONGRESS SINCE SIMILAR CLAIMS FOR REIMBURSEMENT OF EXPENSES INCURRED WITHOUT AUTHORIZATION AS REQUIRED BY THE CONTROLLING REGULATIONS HAVE BEEN DISALLOWED. THEREFORE, WE DO NOT REGARD YOUR CASE AS CONTAINING SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS WOULD WARRANT REPORTING IT TO THE CONGRESS FOR CONSIDERATION UNDER THE MERITORIOUS CLAIMS ACT OF 1928.