B-153892, JUL. 7, 1965

B-153892, JUL. 7, 1965

TO LIEUTENANT COLONEL ROLAND H. JENSEN, RETIRED:

REFERENCE IS MADE TO YOUR LETTER AND ENCLOSURE RECEIVED JUNE 15, 1965, REQUESTING FURTHER CONSIDERATION OF YOUR CLAIM FOR TRAVEL ALLOWANCES AND PER DIEM FOR TEMPORARY DUTY PERFORMED AT FORT LAWTON, WASHINGTON, DURING THE PERIOD NOVEMBER 5, 1962, TO FEBRUARY 4, 1963.

THE DUTY WAS PERFORMED INCIDENT TO ORDERS DATED NOVEMBER 2, 1962, WHICH EXPRESSLY PROVIDED THAT NO TRAVEL ALLOWANCES OR PER DIEM WERE AUTHORIZED INCIDENT TO THE ASSIGNMENT. YOUR CLAIM WAS DISALLOWED BY SETTLEMENT DATED OCTOBER 22, 1963. SUCH ACTION WAS SUSTAINED BY DECISION B-153892 DATED MAY 26, 1964, AFFIRMED MAY 5, 1965, FOR THE REASON THAT THE RECORD DOES NOT ESTABLISH THAT THE DUTY DIRECTED BY THE ORDERS OF NOVEMBER 2, 1962, WAS PRIMARILY BECAUSE OF THE NEED OF THE SERVICE RATHER THAN PRIMARILY FOR PERSONAL CONVENIENCE AND BENEFIT AS A RESULT OF YOUR REQUEST TO BE TRANSFERRED FROM AN UNDESIRABLE SITUATION AT MCCHORD AIR FORCE BASE.

IN YOUR PRESENT LETTER YOU SAY THAT THE ORDERS OF NOVEMBER 2, 1962, WERE AMENDED BY LETTER ORDERS 235, DATED APRIL 26, 1963, AND THAT THE LATTER ORDERS AFFORD A BASIS FOR THE PAYMENT OF YOUR CLAIM. YOU CONTINUE TO MAINTAIN THAT THE DUTY DIRECTED BY THE ORDERS OF NOVEMBER 2, 1962, WAS NOT FOR YOUR CONVENIENCE SINCE OTHER ACTION COULD HAVE BEEN TAKEN AS A RESULT OF YOUR REQUEST TO BE REASSIGNED, AND REQUEST, IF WE DO NOT REACH A MORE FAVORABLE DECISION, THAT THIS OFFICE SUBMIT THE ENTIRE FILE TO JUDICIAL REVIEW OR ADVISE YOU HOW TO DO SO.

IN THE DECISION OF MAY 26, 1964, FULL CONSIDERATION WAS GIVEN TO THE FACT THAT THE AMENDATORY ORDERS OF APRIL 26, 1963, DESIGNATED FUNDS FOR TRAVEL ALLOWANCES AND PER DIEM, AND IT WAS EXPLAINED THAT:

"* * * IT MUST APPEAR THAT MILITARY CONSIDERATIONS INDUCED THE ASSIGNMENT, AND HENCE THAT THE TRAVEL WAS PERFORMED ON PUBLIC BUSINESS, SINCE PUBLIC BUSINESS IS THE FOUNDATION ON WHICH THE RIGHT TO TRAVEL ALLOWANCES RESTS. PERRIMOND V. UNITED STATES, 19 CT.CL. 509; DAY V. UNITED STATES, 123 CT.CL. 10, 18.'

WHILE YOU DISAGREE WITH OUR DECISION IN YOUR CASE, YOUR LETTER AFFORDS NO BASIS FOR CONCLUDING THAT IT DOES NOT CORRECTLY APPLY THE LAW AND REGULATIONS. IN THIS REGARD, THE FACT THAT OTHER ACTION COULD HAVE BEEN TAKEN AS A RESULT OF YOUR REQUEST FOR REASSIGNMENT DOES NOT ALTER THE FACT THAT YOUR ASSIGNMENT TO FORT LAWTON WAS PRIMARILY FOR YOUR CONVENIENCE.

THE ACTION OF THIS OFFICE ON CLAIMS PRESENTED HERE IS FINAL AND CONCLUSIVE UPON THE EXECUTIVE BRANCH OF THE GOVERNMENT. INDEPENDENTLY OF THE ACTION OF THIS OFFICE, THE COURTS HAVE JURISDICTION TO CONSIDER AND DETERMINE CERTAIN CLAIMS AGAINST THE UNITED STATES. SEE 28 U.S.C. 1346 (A) (2), 1491 AND 2501. THIS OFFICE, HOWEVER, MAY NOT SUBMIT YOUR CLAIM FOR JUDICIAL REVIEW. ANY ACTION OF THAT TYPE WOULD BE FOR INITIATION BY YOU UNDER THE CITED PROVISIONS OF THE UNITED STATES CODE.