B-145949, JUL. 5, 1961

B-145949, JUL. 5, 1961

TO FIRST LIEUTENANT LAWRENCE R. DEWEY, JR., 086 060:

YOUR LETTER OF MAY 2, 1961, REQUESTS REVIEW OF THE SETTLEMENT OF APRIL 13, 1961, WHICH DISALLOWED YOUR CLAIM FOR MILEAGE FOR TRAVEL FROM FORT RUCKER, ALABAMA, TO OAKLAND, CALIFORNIA, AND RETURN DURING THE PERIOD OCTOBER 22, 1960, TO NOVEMBER 14, 1960.

BY PARAGRAPH 28, SPECIAL ORDERS NO. 197, DATED SEPTEMBER 1, 1960, AS AMENDED BY FIRST INDORSEMENT DATED OCTOBER 20, 1960, YOU WERE RELEASED FROM ASSIGNMENT AT FORT RUCKER UPON COMPLETION OF A COURSE OF INSTRUCTION AND UPON RECEIPT OF PORT CALL YOU WERE TO PROCEED TO OAKLAND, CALIFORNIA, FOR TRANSPORTATION TO HAWAII. IF PORT CALL WAS NOT RECEIVED BY 2400 HOURS ON THE LAST DAY OF LEAVE, OCTOBER 30, 1960, YOU WERE TO PROCEED ON THE FOLLOWING DAY IN ORDER TO ARRIVE AT THE PORT BY NOVEMBER 10, 1960. THE ORDERS ALSO GRANTED LEAVE AND STATED THAT YOUR LEAVE ADDRESS WOULD BE FORT MCNAIR, WASHINGTON, D.C. ORDERS DATED OCTOBER 25, 1960, FURTHER AMENDED THE ORDERS OF SEPTEMBER 1, 1960, TO DIRECT TEMPORARY DUTY FOR A COURSE OF INSTRUCTION AT CAMP WOLTERS, TEXAS, BEGINNING JANUARY 5, 1961, PRIOR TO REPORTING TO OAKLAND, CALIFORNIA, NOT LATER THAN MARCH 22, 1961. YOUR SERVICES WERE TO BE UTILIZED AT FORT RUCKER UNTIL THE REQUIRED DEPARTURE DATE FOR CAMP WOLTERS.

IN THE SETTLEMENT OF APRIL 13, 1961, WHICH DISALLOWED YOUR CLAIM, IT WAS STATED THAT THE AMENDATORY ORDERS OF OCTOBER 25, 1960, WERE RECEIVED AT FORT RUCKER, ALABAMA, ON NOVEMBER 1, 1960. THAT STATEMENT WAS BASED ON AN UNDATED CERTIFICATE EXECUTED BY THE ASSISTANT ADJUTANT AT FORT RUCKER IN WHICH IT WAS STATED THAT THE ORDERS WERE RECEIVED ON THAT DATE. HOWEVER, YOUR PRESENT LETTER WAS ACCOMPANIED BY A RESUME OF THE EVENTS AND A DISCUSSION OF THE REGULATIONS RELATING TO YOUR CLAIM PREPARED IN THE ADJUTANT GENERAL'S OFFICE ON DECEMBER 13, 1960, IN WHICH IT IS STATED THAT HEADQUARTERS, UNITED STATES ARMY AVIATION SCHOOL, FORT RUCKER, ADVISED THE ADJUTANT GENERAL BY MESSAGE DATED DECEMBER 8, 1960, THAT THE ORDERS OF OCTOBER 25, 1960, WERE RECEIVED AT THAT HEADQUARTERS ON OCTOBER 28, 1960. ALSO, YOU FURNISHED A COPY OF THAT MESSAGE WHICH IT IS SHOWN WAS SENT IN RESPONSE TO A SPECIFIC INQUIRY BY THE ADJUTANT GENERAL AS TO THE DATE ON WHICH THE ORDERS WERE RECEIVED AT FORT RUCKER. THUS, THE RECORD ESTABLISHES THAT THE ORDERS OF OCTOBER 25, 1960, WERE IN FACT RECEIVED AT FORT RUCKER ON OCTOBER 28, 1960, WHICH WAS PRIOR TO THE DATE YOU WERE REQUIRED TO DEPART THEREFROM UNDER YOUR ORDERS BEFORE THAT AMENDMENT. APPEARS, HOWEVER, THAT YOU DID NOT RECEIVE NOTICE OF THAT AMENDMENT TO YOUR ORDERS FOR THE REASON THAT YOU HAD DEPARTED FORT RUCKER ON LEAVE ON OCTOBER 22, 1960.

THE TRAVEL OF MEMBERS OF THE UNIFORMED SERVICES IS GOVERNED BY THE JOINT TRAVEL REGULATIONS ISSUED PURSUANT TO SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 253 (A). PARAGRAPH 3003-1 (B) OF THOSE REGULATIONS, RELATING TO PERMANENT CHANGE OF STATION ORDERS, PROVIDES THAT WHEN LEAVE OR DELAY PRIOR TO REPORTING TO THE NEW STATION IS AUTHORIZED IN THE ORDERS THE AMOUNT OF SUCH LEAVE OR DELAY WILL BE ADDED TO THE DATE OF DETACHMENT FROM THE OLD STATION TO DETERMINE THE EFFECTIVE DATE OF THE ORDERS. IT LONG HAS BEEN THE RULE THAT NO OFFICIAL TRAVEL IS REQUIRED UNDER CHANGE OF STATION ORDERS UNTIL SUCH TIME AS THE TRAVELER MUST DEPART FROM HIS OLD STATION BY ORDINARY MEANS OF TRANSPORTATION (RAIL UNLESS OTHERWISE SPECIFIED) IN ORDER TO REACH HIS DESTINATION ON THE DATE DESIGNATED BY THE TRAVEL ORDERS. WHERE AN OFFICER IS GRANTED LEAVE IN CONNECTION WITH TRAVEL IT IS CONSIDERED THAT NO OFFICIAL TRAVEL IS REQUIRED UNDER CHANGE OF STATION ORDERS UNTIL THE EXPIRATION OF THE LEAVE, AND IF THE ORDERS ARE CANCELLED PRIOR THERETO, ANY TRAVEL WHICH MAY HAVE BEEN PERFORMED IS REGARDED AS INCIDENT TO THE LEAVE, AND THE EXPENSE THEREOF MUST BE BORNE BY THE TRAVELER CONCERNED. 31 COMP. GEN. 156; 33 COMP. GEN. 289.

IN THE PRESENT CASE IT APPEARS THAT YOU DEPARTED FROM FORT RUCKER ON OCTOBER 22, 1960, ON LEAVE AND THAT YOUR LEAVE EXPIRED ON OCTOBER 30, 1960. THUS, YOUR ORDERS OF SEPTEMBER 1, 1960, AS AMENDED ON OCTOBER 20, 1960, DID NOT BECOME EFFECTIVE PRIOR TO OCTOBER 30, 1960. UNDER THE RULE INDICATED ABOVE, YOU WERE NOT REQUIRED TO COMMENCE OFFICIAL TRAVEL TO YOUR NEW STATION UNTIL AFTER THE EFFECTIVE DATE OF THE ORDERS. SINCE YOUR ORDERS WERE FURTHER MODIFIED PRIOR TO EXPIRATION OF LEAVE SO THAT TRAVEL TO OAKLAND WAS NOT REQUIRED AT THAT TIME, YOUR CLAIM WAS DISALLOWED BY THE SETTLEMENT OF APRIL 13, 1961. HOWEVER, IN YOUR PRESENT LETTER YOU CONTEND YOU SHOULD HAVE BEEN ADVISED OF THE NEW ORDERS AT YOUR LEAVE ADDRESS AND THAT SINCE YOU WERE NOT SO ADVISED YOU BELIEVE YOUR CLAIM IS VALID.

PARAGRAPH 7C, ARMY REGULATIONS 310-25, CHANGE 2, SEPTEMBER 4, 1959, PROVIDES THAT REVOCATION OR AMENDMENT OF REASSIGNMENT ORDERS WHILE PERSONNEL ARE PREPARING FOR OR EXECUTING ORDERS, TO INCLUDE DELAY EN ROUTE AS LEAVE, WILL BE AVOIDED, UNLESS ABSOLUTELY DICTATED BY MILITARY NECESSITY. WHEN A CHANGE OF ORDERS CANNOT BE AVOIDED, THE STATUS OF THE INDIVIDUAL SHOULD BE CLEARLY DETERMINED SO AS TO INSURE EXPEDITIOUS NOTIFICATION AND THAT UNNECESSARY PERSONAL HARDSHIP IS NOT IMPOSED UPON THE INDIVIDUAL AND HIS DEPENDENTS. IN CONFORMITY WITH THAT PROVISION THE RECORD SHOWS THAT UPON RECEIPT OF THE AMENDATORY ORDERS OF OCTOBER 25, 1960, THE COMMANDANT, USAAVNS, FORT RUCKER, ADVISED THE DEPARTMENT OF THE ARMY THAT YOU HAD DEPARTED YOUR STATION, AND THAT THE CHIEF OF ENGINEERS ATTEMPTED TO CONTACT YOU AT YOUR LEAVE ADDRESS IN WASHINGTON, D.C., BUT WAS UNABLE TO DO SO BECAUSE YOU HAD DEPARTED FOR OAKLAND. WHILE THE ABOVE ARMY REGULATIONS SET FORTH PROCEDURES DESIGNED TO PREVENT PERSONAL HARDSHIP WHICH MIGHT RESULT FROM REVOCATION OR AMENDMENT OF REASSIGNMENT ORDERS WHILE THE MEMBER IS ON LEAVE BUT PRIOR TO THEIR EFFECTIVE DATE, THE REGULATIONS DO NOT IMPOSE ANY LIABILITY ON THE GOVERNMENT FOR TRAVEL PERFORMED THAT IS NOT REQUIRED BY THE MEMBER'S ORDERS. HENCE, NEITHER THAT REGULATION NOR THE FACT THAT THE DEPARTMENT OF THE ARMY WAS UNABLE TO ADVISE YOU THAT YOUR ORDERS WERE CHANGED AFFORDS ANY BASIS FOR PAYMENT FOR THE TRAVEL TO OAKLAND AND RETURN NOT REQUIRED BY ORDERS BUT PERFORMED BECAUSE YOU DEPARTED YOUR STATION ON LEAVE BEFORE OFFICIAL TRAVEL WAS REQUIRED TO BEGIN.

ACCORDINGLY, THE SETTLEMENT OF APRIL 13, 1961, WAS CORRECT AND IS SUSTAINED.