B-140842, FEB. 18, 1960

B-140842, FEB. 18, 1960

TO SERGEANT ALLEN B. WHITE:

REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 8, 1959, IN EFFECT, REQUESTING REVIEW OF SETTLEMENT DATED JULY 22, 1959, WHICH DISALLOWED YOUR CLAIM FOR ADDITIONAL MILEAGE AND PER DIEM INCIDENT TO TRAVEL PERFORMED UNDER ORDERS DATED JULY 22, 1958.

THE ORDERS OF JULY 22, 1958, DIRECTED YOU TO PROCEED ON OR ABOUT JULY 26, 1958, FROM YOUR DUTY STATION AT FORT MONMOUTH, NEW JERSEY, TO HEADQUARTERS, FIFTH UNITED STATES ARMY, CHICAGO, ILLINOIS, AND SUCH OTHER TEMPORARY DUTY STATIONS AS MIGHT BE DIRECTED BY THAT HEADQUARTERS FOR A PERIOD OF APPROXIMATELY NINETY DAYS. UPON COMPLETION OF THE DIRECTED TRAVEL AND TEMPORARY DUTY YOU WERE TO RETURN TO YOUR DUTY STATION AT FORT MONMOUTH. THE ORDERS AUTHORIZED TRAVEL BY PRIVATE AUTOMOBILE AND PROVIDED THAT TRAVEL TIME IN EXCESS OF NORMAL TRAVEL TIME VIA COMMON CARRIER WILL BE CHARGED AGAINST ACCRUED LEAVE. THE ORDERS ALSO DIRECTED YOU TO OBTAIN CERTIFICATES FROM EACH TEMPORARY DUTY STATION WHEN GOVERNMENT QUARTERS AND MESS FACILITIES WERE NOT AVAILABLE.

ON JULY 27, 1958, YOU TRAVELED BY AUTOMOBILE FROM YOUR DUTY STATION AT FORT MONMOUTH, NEW JERSEY, TO CHICAGO, ILLINOIS, AND TO OTHER PLACES AS DIRECTED BY HEADQUARTERS, FIFTH UNITED STATES ARMY, CHICAGO, ILLINOIS. YOU WERE GIVEN AN ADVANCE PAYMENT OF $454 AND LATER PAID THE SUM OF $870.95 REPRESENTING PER DIEM AND MILEAGE ALLOWANCE AT THE RATE OF ?05 PER MILE FOR THE PERIOD JULY 27 TO SEPTEMBER 20, 1958. YOU NOW CLAIM ADDITIONAL MILEAGE AT THE RATE OF ?07 PER MILE AND ADDITIONAL PER DIEM FOR THAT PERIOD (EXCEPT FOR SPECIFIED DAYS WHEN GOVERNMENT MESS AND QUARTERS ACTUALLY WERE AVAILABLE) PLUS MILEAGE AND PER DIEM FOR THE PERIOD SEPTEMBER 26 TO OCTOBER 19, 1958--- NO CLAIM IS MADE FOR SEPTEMBER 21-25, 1958, IT BEING STATED THAT YOU WERE NOT THEN AVAILABLE FOR DUTY--- FOR WHICH YOU HAVE NOT AS YET BEEN PAID, BASED ON "CORRECTED" ORDERS DATED JULY 22, 1958. IN THOSE ORDERS, THE ORDER ISSUING AUTHORITY ATTEMPTED TO CORRECT YOUR BASIC ORDERS TO INCLUDE A PROVISION AUTHORIZING PAYMENT OF A MILEAGE ALLOWANCE AT THE RATE OF ?07 PER MILE ON THE BASIS OF A DETERMINATION THAT TRAVEL BY PRIVATE AUTOMOBILE WAS MORE ADVANTAGEOUS TO THE GOVERNMENT. SUCH ORDERS ALSO INCLUDED A STATEMENT THAT "UTILIZATION OF AVAILABLE FACILITIES IMPRACTICABLE DUE TO THE COMPLEXITY OF THE MISSION.' THE RECORD SHOWS THAT YOUR ORDERS OF JULY 22, 1958, ORIGINALLY WERE ISSUED ON THE BASIS OF INFORMATION INDICATING THAT GOVERNMENT TRANSPORTATION, QUARTERS AND MESSING FACILITIES WOULD BE AVAILABLE TO YOU AND OTHER PERSONNEL INVOLVED ON THE TEMPORARY DUTY MISSION. THE ORIGINAL ORDERS CLEARLY REQUIRED THAT YOU OBTAIN A CERTIFICATE AS TO THE AVAILABILITY OF GOVERNMENT QUARTERS AND MESS AT EACH STATION, IT BEING RECOGNIZED THAT SUCH FACILITIES PROBABLY WOULD NOT BE AVAILABLE AT ALL STATIONS YOU VISITED ON TEMPORARY DUTY. IT WAS LATER DETERMINED TO ISSUE THE CORRECTED ORDERS BECAUSE GOVERNMENT TRANSPORTATION WAS NOT FURNISHED AND THE EXTENT OF TRAVEL (10,279 MILES) AND HOURS OF TRAVEL (BOTH DAY AND NIGHT) REQUIRED IN THE PERFORMANCE OF THE DIRECTED DUTY MADE THE USE OF PRIVATE AUTOMOBILES IMPERATIVE. THE CORRECTED ORDERS INDICATED THAT THE DUTY WAS SUCH THAT QUARTERS AND MESSING FACILITIES AT THE VARIOUS TEMPORARY DUTY STATIONS COULD NOT BE UTILIZED AND OMITTED THE REQUIREMENT THAT APPROPRIATE CERTIFICATES SHOULD BE OBTAINED.

IT HAS BEEN RECOGNIZED THAT WHERE TRAVEL ORDERS, ON THEIR FACE, ARE INCOMPLETE OR AMBIGUOUS OR WHERE A PROVISION WHICH WAS ORIGINALLY INTENDED TO BE INCLUDED IN TRAVEL ORDERS BUT WAS OMITTED THROUGH ERROR OR INADVERTENCE IN PREPARING SUCH ORDERS, THE ORDERS MAY BE CORRECTED OR COMPLETED TO SHOW THE ORIGINAL INTENT. SEE 24 COMP. GEN. 439. YOUR ORDERS OF JULY 22, 1958, AS ORIGINALLY ISSUED, CONTAINED THE PROVISIONS THE ORDER ISSUING AUTHORITY INTENDED TO INCLUDE IN YOUR ORDERS WITH RESPECT TO TRAVEL BY PRIVATE AUTOMOBILE AND THE AVAILABILITY OF GOVERNMENT QUARTERS AND MESSING FACILITIES AND WHICH THEY BELIEVED TO BE PROPER FROM THE INFORMATION THEY HAD AVAILABLE TO THEM AT THAT TIME. THE FACT THAT SUCH INFORMATION WAS NOT ENTIRELY CORRECT WITH RESPECT TO THE AVAILABILITY OF GOVERNMENT TRANSPORTATION, DOES NOT FURNISH SUFFICIENT GROUNDS FOR A RETROACTIVE MODIFICATION OF ORDERS. SEE IN THIS CONNECTION B-75874, MAY 7, 1948.

ACCORDINGLY, SINCE TRAVEL ORDERS MAY NOT BE REVOKED OR MODIFIED RETROACTIVELY SO AS TO INCREASE OR DECREASE THE RIGHTS WHICH HAVE ACCRUED OR BECOME FIXED UNDER APPLICABLE STATUTES, REGULATIONS, AND ORDERS FOR TRAVEL ALREADY PERFORMED, THE CORRECTED ORDERS OF JULY 22, 1958, CANNOT BE USED AS A LEGAL BASIS TO ALLOW YOU ADDITIONAL MILEAGE FOR THE PERIOD JULY 27 TO SEPTEMBER 20, 1958. HOWEVER, SINCE THE STATEMENT IN THE AMENDATORY ORDERS CONCERNING THE USE OF AVAILABLE FACILITIES APPEARS TO MEET THE REQUIREMENTS OF PARAGRAPH 4451-1-1 OF THE JOINT TRAVEL REGULATIONS, ADDITIONAL PER DIEM COVERING DEDUCTIONS MADE FROM THE PER DIEM PAID TO YOU FOR QUARTERS AND MEALS NOT ACTUALLY AVAILABLE, WILL BE ALLOWED.

CONCERNING YOUR CLAIM FOR THE PERIOD SEPTEMBER 26 TO OCTOBER 19, 1958, BASED ON THE CORRECTED ORDERS DATED JULY 22, 1958, THE RECORD SHOWS THAT THE CORRECTED ORDERS ACTUALLY WERE ISSUED ON SEPTEMBER 24, 1958. THEREFORE, YOUR CLAIM FOR PER AND MILEAGE ALLOWANCE AT THE RATE OF ?07 PER MILE FOR THE PERIOD SEPTEMBER 26 TO OCTOBER 19, 1958, WILL BE ALLOWED BY OUR CLAIMS DIVISION IN A SETTLEMENT WHICH WILL BE ISSUED IN DUE COURSE. IT IS UNDERSTOOD THAT THE ADVANCE PAYMENT OF $454 IS BEING COLLECTED FROM YOU AT THE RATE OF $10 PER MONTH BY DEDUCTIONS FROM YOUR PAY, THE FIRST DEDUCTION HAVING BEEN MADE IN DECEMBER 1958. THE BALANCE DUE AT THE TIME OF ISSUANCE OF THE SETTLEMENT WILL BE APPLIED AGAINST THE AMOUNT ALLOWED THEREIN AND THE DEPARTMENT OF THE ARMY WILL BE INFORMED THAT NO FURTHER DEDUCTIONS SHOULD BE MADE FROM YOUR PAY.

WE MAY NOT RETURN THE PAPERS PERTAINING TO YOUR CLAIM AS REQUESTED BY YOU, SINCE ALL PAPERS FILED IN CONNECTION WITH A CLAIM AGAINST THE UNITED STATES AND CONSIDERED IN REACHING A DECISION WITH RESPECT TO THE CLAIMANT'S RIGHTS BECOME A PART OF THE OFFICIAL FILES OF THIS OFFICE.