B-133743, DEC. 5, 1957

B-133743, DEC. 5, 1957

TO COMMANDER GEORGE R. SPEAKE, USNR:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 26, 1957, RELATIVE TO SETTLEMENT DATED AUGUST 19, 1957, WHICH DISALLOWED YOUR CLAIM FOR REFUND OF $401.31, REPRESENTING PAY AND ALLOWANCES FOR THE PERIOD JUNE 1 THROUGH JUNE 15, 1952, REPAID TO THE DEPARTMENT OF THE NAVY. THE CLAIM WAS DISALLOWED ON THE BASIS THAT SINCE YOU HAD ALREADY PERFORMED 14 DAYS OF ACTIVE TRAINING DUTY AND BEEN PAID THEREFOR, DURING FISCAL YEAR 1952, THERE WAS NO AUTHORITY FOR PAYMENT OF PAY AND ALLOWANCES FOR A SECOND 14- DAY ACTIVE TRAINING DUTY PERIOD IN THE SAME FISCAL YEAR.

IT APPEARS THAT YOU PERFORMED ACTIVE TRAINING DUTY FOR THE PERIOD NOVEMBER 5 THROUGH NOVEMBER 18, 1951, PURSUANT TO ORDERS DATED SEPTEMBER 25, 1951, FROM THE COMMANDANT, ELEVENTH NAVAL DISTRICT, SAN DIEGO, CALIFORNIA, AND THAT YOU WERE PAID THE AUTHORIZED PAY AND ALLOWANCES FOR SUCH DUTY. BY ORDERS DATED MAY 15, 1952, COMMANDANT, ELEVENTH NAVAL DISTRICT, YOU WERE ORDERED TO PROCEED AND REPORT ON OR ABOUT MAY 28, 1952, FOR A PHYSICAL EXAMINATION AND "IF FOUND PHYSICALLY QUALIFIED * * * (TO) REPORT ON 1 JUNE 1952, TO THE COMMANDING OFFICER, MARINE CORPS AIR STATION, EL TORO, CALIFORNIA, FOR FOURTEEN (14) DAYS ANNUAL TRAINING DUTY WITH PAY INVOLVING FLYING IN DUTIES APPROPRIATE TO YOUR RANK.' IT FURTHER APPEARS THAT YOU REPORTED, PERFORMED DUTY AS DIRECTED, AND RETURNED TO YOUR HOME, AND THAT YOU WERE PAID $401.31, AS PAY AND ALLOWANCES AND MILEAGE. UNDER DATE OF JULY 17, 1952, THE COMMANDANT'S OFFICE, ELEVENTH NAVAL DISTRICT, ADVISED YOU THAT SINCE YOU HAD ALREADY PERFORMED 14 DAYS OF TRAINING DUTY INVOLVING FLYING WITH PAY WITHIN THE FISCAL YEAR 1952, YOU WERE NOT ENTITLED TO PAY AND ALLOWANCES FOR THE PERIOD OF TRAINING JUNE 1 THROUGH JUNE 15, 1952, AND THAT THE ORDERS HAD BEEN INADVERTENTLY PROCESSED TO SHOW DUTY INVOLVING PAY. BY ORDERS DATED JULY 25, 1952, YOUR BASIC ORDERS WERE MODIFIED BY THE COMMANDANT, ELEVENTH NAVAL DISTRICT, TO SHOW TRAINING DUTY "WITHOUT PAY AND ALLOWANCES, WITHOUT CASH PAYMENT IN LIEU OF SUBSISTENCE OR COMMUTED RATIONS AND WITHOUT TRAVEL AT GOVERNMENT EXPENSE, IN LIEU OF THAT SHOWN.' DEMAND WAS MADE UPON YOU AND YOU REMITTED THE SUM OF $401.31.

YOU STATE THAT YOU PERFORMED THE DUTY IN GOOD FAITH UNDER COMPETENT ORDERS WHICH YOU COULD NOT QUESTION, AND THAT THE MODIFICATION ACTION WAS NOT TAKEN UNTIL AFTER THE DUTY HAD BEEN PERFORMED.

SECTION 315 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1184, IN EFFECT DURING THE PERIOD HERE INVOLVED, LIMITED THE PERIOD MEMBERS OF THE NAVAL RESERVE MIGHT BE REQUIRED TO PERFORM ACTIVE TRAINING DUTY WITH PAY IN TIME OF PEACE, TO "NOT TO EXCEED FIFTEEN DAYS ANNUALLY, AS MAY BE PRESCRIBED BY THE SECRETARY OF THE NAVY.'

BUREAU OF NAVAL PERSONNEL MANUAL, ARTICLES H-1701, CHANGE NO. 3, AND H- 5306, CHANGE NO. 1, IN EFFECT AT THE TIME HERE CONSIDERED, PROVIDED IN PERTINENT PART AS FOLLOWS:

"H-1701. INDIVIDUAL ORDERS TO OFFICERS FOR TRAINING DUTY

"/1)WHERE NO FLIGHT DUTY IS INVOLVED, ORDERS TO OFFICERS FOR TRAINING DUTY WITH PAY AND ALLOWANCES, INCLUDING MILEAGE, MAY BE ISSUED BY THE COMMANDANTS OF THE NAVAL DISTRICTS, RIVER COMMANDS, AND CHIEF OF NAVAL AIR RESERVE TRAINING WITHIN THE TRAINING QUOTAS PRESCRIBED BY THE BUREAU OF NAVAL PERSONNEL. ORDERS TO TRAINING DUTY INVOLVING FLYING WITH PAY WILL BE ISSUED BY THE BUREAU OF NAVAL PERSONNEL * * *.

"/2) ORDERS TO PERFORM TRAINING DUTY WITHOUT PAY OR ALLOWANCES, INCLUDING DUTY INVOLVING FLYING, FOR OFFICERS HOLDING DESIGNATIONS AS NAVAL AVIATORS OR LETTERS OF AUTHORITY TO SOLD NAVAL AIRCRAFT, MAY BE ISSUED BY COMMANDANTS OF NAVAL DISTRICTS, RIVER COMMANDS, OR THE CHIEF OF NAVAL AIR RESERVE TRAINING, OR UNDER THEIR DIRECTION BY THE COMMANDING OFFICER OF THE VESSEL OR AIR STATION AT WHICH THE DUTY IS TO BE PERFORMED OR BY THE SENIOR OFFICER PRESENT OF ANY NAVAL FORCE.

"H-5306. TRAINING DUTY WITH PAY

"/1) OFFICERS AND ENLISTED PERSONNEL OF THE NAVAL RESERVE MAY BE PERMITTED, ON THEIR OWN APPLICATION, TO PERFORM TRAINING DUTY WITH PAY AND ALLOWANCES IN ACCORDANCE WITH THE SUCCEEDING PARAGRAPHS HEREOF AND ARTICLES H-1701 AND H-1702.

"/2) QUOTAS FOR TRAINING DUTY WITH PAY FOR VARIOUS CLASSES OF THE NAVAL RESERVE SHALL BE PRESCRIBED BY THE BUREAU OF NAVAL PERSONNEL, IN ACCORDANCE WITH ARTICLE H-1406. UNDER THESE QUOTAS NO INDIVIDUAL OR ORGANIZATION SHALL BE GIVEN IN EXCESS OF 14 DAYS' TRAINING DUTY WITH PAY, EXCLUSIVE OF TRAVEL TIME, ANNUALLY, WITHOUT AUTHORITY OF THE BUREAU OF NAVAL PERSONNEL.

"/6) WHERE NO FLIGHT PAY IS INVOLVED, ORDERS TO OFFICERS FOR TRAINING DUTY WITH PAY AND ALLOWANCES, INCLUDING MILEAGE, MAY BE ISSUED BY COMMANDANTS OF NAVAL DISTRICTS, AND RIVER COMMANDS AND THE CHIEF OF NAVAL AIR RESERVE TRAINING, WITHIN THE QUOTAS PRESCRIBED BY THE BUREAU OF NAVAL PERSONNEL. ORDERS TO TRAINING DUTY INVOLVING FLIGHT PAY WILL BE ISSUED BY THE BUREAU OF NAVAL PERSONNEL.'

OTHER THAN TO AVER THAT YOU PERFORMED THE TRAINING DUTY IN GOOD FAITH, YOU HAVE NOT STATED THE LEGAL BASIS FOR YOUR CLAIM. PRESUMABLY YOU ARE RELYING ON THE RULE WHICH PERMITS AN OFFICER WHO DOES NOT HAVE A LEGAL RIGHT TO THE PAY AND ALLOWANCES PAID TO HIM, TO RETAIN SUCH PAY AND ALLOWANCES IF HE HAD A DE FACTO OFFICER STATUS AT THAT TIME. SEE 30 COMP. GEN. 195. HOWEVER, IT IS WELL ESTABLISHED THAT FOR A PERSON TO BE CONSIDERED AS HAVING SERVED AS A DE FACTO OFFICER, IT MUST BE SHOWN THAT HE SERVED UNDER COLOR OF AUTHORITY. THE PHRASE "COLOR OF AUTHORITY" CONTEMPLATES THAT THE PERSON CONSIDERED BE SERVING UNDER CIRCUMSTANCES WHICH JUSTIFY HIM IN BELIEVING THAT SUCH SERVICE IS BEING PERFORMED UNDER THE CONDITIONS PRESCRIBED BY LAW AS PREREQUISITES TO A RIGHT TO SUCH PAY AND ALLOWANCES. IF THE FACTS ARE SUCH AS TO PUT AN OFFICER ON NOTICE OF A DOUBT AS TO WHETHER ALL THE REQUIREMENTS OF LAW HAVE BEEN MET, IT IS INCUMBENT ON HIM TO VERIFY HIS STATUS AND HIS FAILURE TO DO SO DOES NOT OPERATE TO GIVE HIM THE ADVANTAGE OF A DE FACTO STATUS.

IT APPEARS THAT THE POLICY OF THE DEPARTMENT OF THE NAVY WAS TO ORDER MEMBERS OF THE NAVAL RESERVE TO ACTIVE TRAINING DUTY EITHER WITH OR WITHOUT PAY, ONLY UPON THE APPLICATION OF THE PERSONS CONCERNED AND NOT MORE THAN 14 DAYS OF TRAINING DUTY WITH PAY WAS CONTEMPLATED IN ANY FISCAL YEAR. THE REGULATIONS SPECIFICALLY BARRED ADDITIONAL TRAINING DUTY WITH PAY WITHOUT AUTHORITY OF THE BUREAU OF NAVAL PERSONNEL. IT IS ASSUMED THAT AS A COMMANDER IN THE NAVAL RESERVE PERFORMING ANNUAL TRAINING DUTY WITH PAY, YOU WERE AWARE OF THAT POLICY AND WHILE THE RECORD HERE DOES NOT SO SHOW, IT MAY WELL BE THAT YOUR REQUEST FOR TRAINING DUTY IN JUNE 1952 WAS FOR DUTY WITHOUT PAY. IN ANY EVENT, YOU WERE AWARE OF THE FACT THAT YOU RECEIVED TWO SETS OF ORDERS DIRECTING YOU TO REPORT FOR "ANNUAL TRAINING DUTY WITH PAY" IN THE SAME FISCAL YEAR. SINCE YOU WERE DIRECTED TWICE IN THE SAME YEAR TO REPORT FOR "ANNUAL" TRAINING DUTY, AND THE ORDERS OF MAY 15, 1952, MADE NO MENTION OF A SPECIFIC AUTHORIZATION FROM THE BUREAU OF NAVAL PERSONNEL, YOU WERE APPRISED OF A PROBABLE ERROR IN THE LATTER ORDERS. YOU SHOULD HAVE INQUIRED AS TO WHETHER YOU WERE BEING ORDERED TO TRAINING DUTY WITH OR WITHOUT PAY IN JUNE 1952. IT APPEARS THAT SUCH ACTION ON YOUR PART COULD HAVE RESULTED IN A PROMPT AMENDMENT TO SUCH ORDERS IN THE MANNER SHOWN BY THE AMENDATORY ORDERS OF JULY 25, 1952, AND NO PAY AND ALLOWANCES WOULD HAVE BEEN PAID TO YOU. YOUR FAILURE TO TAKE SUCH ACTION FURNISHES NO BASIS FOR PAYMENT OF YOUR CLAIM.