B-157088, JUL. 21, 1965

B-157088, JUL. 21, 1965

TO MR. JON B. BANNISTER:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 4, 1965, IN EFFECT REQUESTING RECONSIDERATION OF THE ACTION OF OUR INDIANAPOLIS OFFICE IN LETTER OF APRIL 5, 1965, WHICH DISALLOWED YOUR CLAIM FOR ADDITIONAL TRAVEL TIME UPON RELEASE FROM ACTIVE DUTY AS FIRST LIEUTENANT, USAR, BY PARAGRAPH 2, SPECIAL ORDERS NO. 227, DATED SEPTEMBER 10, 1963.

THE ORDERS SHOW THAT YOU WERE RELEASED FROM ACTIVE DUTY AT FORT CAMPBELL, KENTUCKY, AND THAT YOUR HOME OF RECORD IS SAN MATEO, CALIFORNIA. THE ORDERS DIRECTED YOU TO PROCEED TO YOUR HOME OF RECORD ON SEPTEMBER 10, 1963, AND STATED THAT YOU WERE RELEASED FROM ACTIVE DUTY ON SEPTEMBER 11, 1963. THE MODE OF TRANSPORTATION WAS NOT SHOWN IN THE ORDERS. THE RECORD SHOWS THAT YOU WERE PAID FOR 2 DAYS' TRAVEL TIME, SEPTEMBER 10 AND 11, 1963; ALSO, THAT YOU WERE OVERPAID $198.85 FOR 13 DAYS' ACCRUED LEAVE. THE LETTER OF APRIL 5, 1965, ALSO REQUESTED PAYMENT OF THE INDEBTEDNESS RESULTING FROM THAT OVERPAYMENT. IN YOUR PRESENT LETTER YOU CONTEND THAT THE 2 DAYS' TRAVEL TIME APPARENTLY WAS BASED ON AIR TRAVEL, AND INDICATE THAT YOU TRAVELED BY AUTOMOBILE. YOU SAY YOU WERE STILL AT FORT CAMPBELL ON SEPTEMBER 11, 1963; THAT YOU BELIEVE YOU ARE ENTITLED TO ADDITIONAL TRAVEL TIME, AND THAT THE FULL INDEBTEDNESS IS UNJUST. ALSO, YOU REQUEST INFORMATION AS TO WHOM YOU SHOULD CONTACT FOR FURTHER CONSIDERATION OF YOUR CLAIM.

EXECUTIVE ORDER NO. 10153, DATED AUGUST 17, 1950, AS AMENDED BY EXECUTIVE ORDER 10649, DATED DECEMBER 28, 1955, PROMULGATED PURSUANT TO THE PERTINENT STATUTE, 37 U.S.C. 204 (B), PROVIDES (SECTION 2) THAT FOR TRAVEL FROM LAST DUTY STATION TO HOME, IN CASE TRAVEL BY PUBLIC TRANSPORTATION IS AUTHORIZED, THE TRAVEL TIME INCLUDED AS ACTIVE DUTY SHALL BE BASED UPON ACTUAL AND NECESSARY SCHEDULES WHICH MOST NEARLY COINCIDE WITH THE POSSIBLE TIME OF DEPARTURE AND ARRIVAL BY PUBLIC SURFACE TRANSPORTATION, WITHOUT REGARD TO ACTUAL PERFORMANCE OF TRAVEL. ARMY REGULATIONS 37-104 (PARAGRAPH 20-21, CHANGE 75, JULY 24, 1963, IN EFFECT AT THE TIME HERE INVOLVED) ISSUED IN CONFORMITY WITH THE EXECUTIVE ORDER AUTHORIZE ADDITIONAL TRAVEL TIME FOR TRAVEL BY PRIVATELY OWNED CONVEYANCE ONLY WHEN SPECIFIED IN THE ORDERS FOR RELEASE. WHERE TRAVEL IS NOT DIRECTED OR PERFORMED BY AIR AND TRAVEL BY PRIVATELY OWNED CONVEYANCE IS NOT AUTHORIZED IN THE ORDERS, THE EXECUTIVE ORDER AND REGULATIONS CONTEMPLATE THAT TRAVEL TIME FROM LAST STATION TO HOME SHALL BE BASED ON THE TIME REQUIRED FOR TRAVEL BY PUBLIC SURFACE TRANSPORTATION. SINCE YOUR ORDERS DID NOT DIRECT AIR TRAVEL OR SPECIFICALLY AUTHORIZE TRAVEL BY PRIVATELY OWNED CONVEYANCE, AND YOU DID NOT TRAVEL BY AIR, YOU ARE ENTITLED TO TRAVEL TIME COMPUTED ON THE BASIS OF PUBLIC SURFACE TRANSPORTATION. THE BASIS ON WHICH TRAVEL TIME OF 2 DAYS WAS COMPUTED IN YOUR CASE IS NOT DISCLOSED BY THE RECORD BEFORE US, BUT SINCE IT APPEARS THAT TRAVEL TIME IN EXCESS OF THAT AMOUNT WAS REQUIRED FOR TRAVEL TO YOUR HOME BY PUBLIC SURFACE TRANSPORTATION YOU ARE ENTITLED TO ADDITIONAL TRAVEL TIME AND INSTRUCTIONS HAVE BEEN ISSUED TODAY TO ADJUST YOUR INDEBTEDNESS ACCORDINGLY. YOU WILL BE ADVISED OF YOUR ADJUSTED INDEBTEDNESS IN DUE TIME. HOWEVER, SINCE THE ALLOWANCE IS PAYABLE WITHOUT REGARD TO ACTUAL TRAVEL AND SINCE YOUR ORDERS DIRECTED YOU TO PROCEED ON SEPTEMBER 10, 1963, THAT DAY AND THE NEXT WILL BE COUNTED AS TRAVEL DAYS EVEN THOUGH YOU SAY YOU DID NOT DEPART FORT CAMPBELL UNTIL ON OR AFTER SEPTEMBER 11, 1963.

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.