B-158149, JAN. 12, 1966

B-158149, JAN. 12, 1966

TO MAJOR S. A. WEIMER, JR., DISBURSING OFFICER, UNITED STATES MARINE CORPS:

WE HAVE BY REFERENCE FROM HEADQUARTERS UNITED STATES MARINE CORPS YOUR LETTER DATED JANUARY 5, 1966, REQUESTING AN ADVANCE DECISION AS TO THE PROPRIETY OF PAYMENT ON A VOUCHER IN THE AMOUNT OF $161.45, FORWARDED IN CONNECTION WITH THE CLAIM OF LANCE CORPORAL ALAN T. TYPINSKI, 2029498, USMC, FOR ALL MONETARY BENEFITS DUE BY REASON OF A CORRECTION OF HIS MARINE CORPS RECORD UNDER 10 U.S.C. 1552, WHICH WAS TRANSMITTED TO OUR CLAIMS DIVISION FOR DIRECT SETTLEMENT BY HEADQUARTERS LETTER DATED NOVEMBER 19, 1965, FILE CDB-3-RGS, 7220. YOU EXPRESS DOUBT AS TO THE LEGALITY OF PAYMENT ON THE VOUCHER BECAUSE OF THE LIMITED SCOPE OF THE ACTION OF THE BOARD FOR CORRECTION OF NAVAL RECORDS IN CORPORAL TYPINSKI'S CASE.

THE FOLLOWING IS A SUMMARY OF THE FACTS SET FORTH IN THE CORRECTION BOARD'S DECISION. CORPORAL TYPINSKI WAS GRANTED LEAVE IN NOVEMBER 1963 TO RETURN TO THE UNITED STATES FROM HIS STATION OVERSEAS FOR HUMANITARIAN PURPOSES, WHICH LEAVE WAS TO EXPIRE DECEMBER 11, 1963. UPON ATTEMPTING TO SECURE A FLIGHT BACK TO OKINAWA ON A SPACE AVAILABLE BASIS HE WAS UNSUCCESSFUL EVEN AFTER TWO EXTENSIONS OF HIS LEAVE AND HE WAS PLACED ABOARD A MILITARY AIR TRANSPORT SERVICE FLIGHT AND LISTED AS A MARINE WITH INSUFFICIENT FUNDS. NOT BEING IN AN EMERGENCY LEAVE STATUS, CORPORAL TYPINSKI WAS CHARGED THE VALUE OF THE AIR TRANSPORTATION VIA MATS AND A CHECK AGE FOR $191 WAS SENT TO HIS DISBURSING OFFICER. BEFORE HE WAS APPRISED OF HIS RIGHT TO PETITION FOR REMISSION OF HIS INDEBTEDNESS, $161.45 HAD ALREADY BEEN RECOUPED. THE REMISSION OF INDEBTEDNESS BOARD CANCELED $29.55, THE UNCOLLECTED PORTION OF THE DEBT.

UPON CORPORAL TYPINSKI'S APPLICATION TO THE BOARD FOR CORRECTION OF NAVAL RECORDS THE FOLLOWING DECISION WAS MADE WHICH WAS REVIEWED AND APPROVED BY THE UNDER SECRETARY OF THE NAVY ON JUNE 16, 1965:

"IT IS THE DECISION OF THE BOARD THAT THE NAVAL RECORD OF PETITIONER BE CORRECTED TO SHOW THAT PETITIONER WAS GRANTED EMERGENCY LEAVE IN NOVEMBER/DECEMBER 1963 TO RETURN TO CONTINENTAL UNITED STATES AND WAS FURNISHED TRANSPORTATION THEREWITH IN ACCORDANCE WITH EXISTING INSTRUCTIONS.'

YOU POINT OUT THAT THE REGULATIONS (PARAGRAPH C-6106, BUREAU OF NAVAL PERSONNEL MANUAL) CONTEMPLATES THE GRANTING OF EMERGENCY LEAVE FROM A POINT OUTSIDE THE UNITED STATES--- WITH ACCOMPANYING RIGHT TO TRANSPORTATION TO AND FROM THE UNITED STATES BY GOVERNMENT TRANSPORTATION- -- ONLY IN CONNECTION WITH PERMISSIVE TEMPORARY ADDITIONAL DUTY ORDERS DIRECTING TRAVEL FROM A MEMBER'S STATION TO THE APPROPRIATE INSTALLATION IN UNITED STATES AND THE TAKING OF EMERGENCY LEAVE THEREAFTER.

IT IS WELL ESTABLISHED THAT UPON CORRECTION OF THE RECORDS PURSUANT TO 10 U.S.C. 1552 A SERVICEMAN'S STATUS BECOMES FIXED BY THE RECORDS AS CORRECTED AND HE BECOMES ENTITLED TO PAY AND OTHER BENEFITS DUE UPON THE BASIS OF THE RECORD AS CORRECTED. SEE 34 COMP. GEN. 7.

WHILE THE BOARD'S DECISION IS NOT AS CLEAR AND COMPLETE AS IT MIGHT HAVE BEEN, IT IS EVIDENT THAT TRANSPORTATION COULD NOT BE FURNISHED IN A CASE LIKE THIS IN THE ABSENCE OF THE REQUISITE TEMPORARY ADDITIONAL DUTY ORDERS. IN SUCH CIRCUMSTANCES THE CORRECTION ACTION SHOWING THAT TRANSPORTATION WAS FURNISHED IN ACCORDANCE WITH EXISTING INSTRUCTIONS" MAY BE ACCEPTED AS ESTABLISHING THAT ALL NECESSARY ORDERS REQUIRED BY THE REGULATIONS TO PLACE CORPORAL TYPINSKI IN A TEMPORARY ADDITIONAL DUTY TRAVEL AND EMERGENCY LEAVE STATUS WERE ISSUED AND THAT WHILE ON THE MATS FLIGHT HE WAS TRAVELING IN A SPACE REQUIREMENT STATUS AT THE EXPENSE OF THE GOVERNMENT. HENCE NO CHARGE MAY BE MADE AGAINST HIM FOR THE TRANSPORTATION FURNISHED AND THE UNREMITTED AMOUNT OF SUCH CHARGE, $161.45, WITHHELD FROM HIS PAY SHOULD BE RELEASED TO HIM. ACCORDINGLY, THE VOUCHER, WHICH IS RETURNED HEREWITH, MAY BE PAID, IF OTHERWISE CORRECT.