B-153770, MAY 11, 1964

B-153770, MAY 11, 1964

TO CAPTAIN JAMES P. DUFFY, JR.:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 12, 1964, REQUESTING REVIEW OF SETTLEMENT DATED FEBRUARY 7, 1964, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT OF TRAVEL EXPENSES FROM AUGUSTA, GEORGIA, TO VICKSBURG, MISSISSIPPI, AND RETURN, AUGUST 7 TO 10, 1963.

BY ORDERS DATED AUGUST 8, 1963, HEADQUARTERS FORT GORDON, FORT GORDON, GEORGIA, YOU WERE DIRECTED TO PROCEED ON AUGUST 8, 1963, FOR A PERIOD OF APPROXIMATELY 3 DAYS, TO ESCORT THE REMAINS OF MAJOR EDWARD N. KEMPER, USAR, 01296537 (RETIRED), DECEASED, TO VICKSBURG, MISSISSIPPI, FOR BURIAL. IT IS PRESUMED THAT YOU WERE ADVISED ON AUGUST 7 THAT SUCH ORDERS WOULD BE ISSUED. THE CLAIM WAS DISALLOWED FOR THE REASON THAT UNDER THE APPLICABLE REGULATIONS THERE WAS NO AUTHORITY TO PROVIDE A MILITARY ESCORT FOR THE REMAINS OF THE DECEASED.

IN YOUR PRESENT LETTER YOU SAY THAT YOU ARE FULLY AWARE THAT TRAVEL ORDERS TO ESCORT THE REMAINS SHOULD NEVER HAVE BEEN DIRECTED UNDER THE REGULATIONS BUT THAT SINCE THE ORDERS WERE PUBLISHED AND THE TRAVEL WAS AUTHORIZED, AND SINCE YOU COMPLIED WITH THE ORDERS IN GOOD FAITH, YOU BELIEVE THAT YOU ARE ENTITLED TO REIMBURSEMENT OF THE EXPENSES AS CLAIMED.

PARAGRAPH 3000 OF THE JOINT TRAVEL REGULATIONS, ISSUED UNDER THE PERTINENT STATUTE, 37 U.S.C. 404, PROVIDES THAT "NO REIMBURSEMENT FOR TRAVEL IS AUTHORIZED UNLESS ORDERS BY COMPETENT AUTHORITY HAVE BEEN ISSUED THEREFOR.' HENCE, IN THE ABSENCE OF AUTHORITY FOR THE ISSUANCE OF ORDERS TO DIRECT THE PERFORMANCE OF A PARTICULAR DUTY ASSIGNMENT, THERE IS NO PROPER BASIS FOR PAYMENT OF A PER DIEM OR OTHER TRAVEL ALLOWANCES INCIDENT TO ITS PERFORMANCE UNDER IMPROPERLY ISSUED ORDERS, EVEN THOUGH PERFORMED IN GOOD FAITH.

UNDER THE PROVISIONS OF 10 U.S.C. 1481, 1482, AUTHORITY IS PROVIDED FOR THE PAYMENT BY THE SECRETARIES CONCERNED OF VARIOUS NECESSARY EXPENSES INCIDENT TO THE CARE AND DISPOSITION OF REMAINS OF DECEASED MEMBERS OF THE ARMED FORCES, INCLUDING THOSE FOR AN ESCORT TO THE PLACE OF BURIAL. SUCH EXPENDITURES ARE LIMITED, INSOFAR AS RELATING TO THE DEATH OF RETIRED MEMBERS, TO THOSE IN CASES OF DEATH WHILE ON ACTIVE DUTY OR INVOLVING---

"* * * ANY RETIRED MEMBER OF AN ARMED FORCE * * * WHO BECOMES A PATIENT IN A UNITED STATES HOSPITAL WHILE HE IS ON ACTIVE DUTY FOR A PERIOD OF MORE THAN 30 DAYS, AND WHO CONTINUES TO BE SUCH A PATIENT UNTIL THE DATE OF HIS DEATH; * * *.'

SINCE MAJOR KEMPER WAS NEITHER ON ACTIVE DUTY NOR UNDERGOING HOSPITALIZATION FOLLOWING ACTIVE DUTY AT THE TIME OF HIS DEATH, IT IS CLEAR THAT THE TRAVEL YOU PERFORMED PURSUANT TO YOUR ORDERS OF AUGUST 8, 1963, WAS NOT TRAVEL AUTHORIZED BY THE STATUTE AND MAY NOT BE CONSIDERED TRAVEL PERFORMED PURSUANT TO COMPETENT ORDERS. CONSEQUENTLY, TO THE EXTENT SUCH ORDERS PURPORT TO AUTHORIZE EXPENDITURE OF PUBLIC FUNDS FOR PAYMENT OF TRAVEL EXPENSES INCIDENT TO DUTY AS AN ESCORT OF MAJOR EDWARD N. KEMPER, DECEASED, THEY ARE WITHOUT AUTHORITY OF LAW AND OF NO EFFECT. COMPARE 9 COMP. GEN. 414 AND 40 COMP. GEN. 642, 644.

WE RECOGNIZE THAT YOU HAD NO REASON TO QUESTION THE VALIDITY OF YOUR ORDERS OF AUGUST 8, 1963, WHICH WERE ISSUED IN ERROR. HOWEVER, NEITHER THIS NOR THE FACT THAT YOU OBEYED THE ORDERS IN GOOD FAITH AFFORDS A PROPER BASIS FOR AUTHORIZING PAYMENT OF YOUR CLAIM. HENCE, WHILE WE APPRECIATE YOUR FEELINGS IN THE MATTER, WE ARE WITHOUT AUTHORITY TO ALLOW YOUR CLAIM. ACCORDINGLY, THE SETTLEMENT OF FEBRUARY 7, 1964, IS SUSTAINED.