B-162474, NOV. 13, 1967

B-162474, NOV. 13, 1967

ARMED SERVICES - PAY - TRAINING DUTY DECISION TO ARMY RESERVE MEMBER DISALLOWING CLAIM FOR ACTIVE DUTY PAY FOR PERIOD MAY 23 TO 29, 1965, TO ALLOW CREDIT OF 8 POINTS FOR ELIGIBILITY FOR RETIREMENT. WHERE APPLICATION FOR ACTIVE DUTY FOR TRAINING WAS APPROVED ON BASIS OF ACTIVE DUTY WITHOUT PAY TO PERMIT MEMBER TO EARN RETIREMENT CREDIT MEMBER IS NOT ENTITLED TO ACTIVE DUTY PAY.

TO MAJOR UBALDO DEL TORO, JR.:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 27, 1967, REQUESTING REVIEW OF OUR SETTLEMENT DATED AUGUST 7, 1967, WHICH DISALLOWED YOUR CLAIM FOR ACTIVE DUTY PAY AND ALLOWANCES FOR THE PERIOD MAY 23 TO 29, 1965, AS A MAJOR, U.S. ARMY RESERVE.

IN YOUR CLAIM DATED MAY 2, 1967, YOU STATED THAT DURING THE PERIOD MAY 16 TO 18, 1965, WHILE IN WASHINGTON, D.C., YOU VISITED YOUR HEADQUARTERS AND INFORMED THE PROPER AUTHORITIES THAT YOU LACKED 8 POINTS TO COMPLETE THE MINIMUM OF 50 POINTS FOR A CREDITABLE YEAR OF SERVICE UNDER THE ARMY RESERVE RETIREMENT PROGRAM. YOU FURTHER RELATED THAT BECAUSE OF THE PROXIMITY TO YOUR RETIREMENT DATE, MAY 31, IT WAS ADMINISTRATIVELY DECIDED THAT THE ONLY SOLUTION TO THE PROBLEM WAS TO CALL YOU TO ACTIVE DUTY FOR TRAINING FOR 8 DAYS THUS ENTITLING YOU TO THE 8 POINTS NEEDED.

SINCE THE PROVISIONS OF THE REGULATIONS FOR 45 DAYS OF ADVANCE NOTIFICATION COULD NOT BE COMPLIED WITH, YOU SAID YOU WERE INFORMED THAT YOU COULD PERFORM THE ACTIVE DUTY TRAINING AND RECEIVE THE DESIRED POINTS IF YOU AGREED TO SUCH DUTY ASSIGNMENT WITHOUT PAY. YOU SAID YOU ACCEPTED THIS PROPOSAL ON CONDITION THAT THE DUTY WOULD BE PERFORMED AT YOUR DUTY STATION SITE, MIAMI, FLORIDA. THE RECORD SHOWS THAT ON MAY 18, 1965, YOU SIGNED DA FORM 1058, APPLICATION FOR ACTIVE DUTY FOR TRAINING. ITEMS 14 AND 16 PROVIDE AS FOLLOWS:

"14. REQUEST THAT I BE ORDERED TO ACDUTRA FOR A PERIOD OF 8 DAYS BEGINNING ON OR ABOUT 24 MAY 1965 AT OACSI, WASHINGTON, D.C.

"16. REQUEST ACTIVE DUTY WITHOUT PAY.'

BY TELEGRAM DATED MAY 20, 1965, HEADQUARTERS IV UNITED STATES ARMY CORPS, BIRMINGHAM, ALABAMA, NOTIFIED YOU THAT THE DEPARTMENT OF THE ARMY APPROVED YOUR APPLICATION FOR ACTIVE DUTY FOR TRAINING AT HEADQUARTERS, DEPARTMENT OF THE ARMY, OACSI, WASHINGTON, D.C., FOR THE PERIOD MAY 24 TO 31, 1965. YOU WERE DIRECTED TO REPORT NOT LATER THAN MAY 24, 1965. ALSO, IT WAS STATED IN THE TELEGRAM THAT THE MESSAGE CONSTITUTED AUTHORITY FOR YOUR TRAVEL AND THAT CONFIRMING ORDERS WOULD BE MAILED TO THE TRAINING SITE. CONFIRMING ORDERS WERE ISSUED ON MAY 21, 1965.

YOU PERFORMED THE ACTIVE DUTY FOR TRAINING IN WASHINGTON, D.C. AND YOUR TRANSPORTATION EXPENSES WERE PAID BY THE DEPARTMENT OF THE ARMY. YOUR CLAIM FOR PAY AND ALLOWANCES FOR 8 DAYS' ACTIVE DUTY FOR TRAINING DURING THE PERIOD MAY 24 TO 31, 1965, WAS DISALLOWED BY SETTLEMENT DATED AUGUST 7, 1967, FOR THE REASONS STATED.

IN YOUR PRESENT LETTER YOU SAY THAT WHEN YOU SIGNED DA FORM 1058 ON MAY 18, 1965, ITEM 14 SHOWED YOU REQUESTED DUTY AT "DET A, OACSI" WHICH WAS THE LOCATION OF YOUR DUTY STATION IN MIAMI, FLORIDA. FURTHER, YOU SAY THAT LATER IN THE SAME DAY IT WAS ADMINISTRATIVELY DETERMINED BY PERSONNEL OF DETACHMENT A THAT EFFORTS SHOULD BE MADE TO HAVE YOU PERFORM THE ACTIVE DUTY FOR TRAINING WITH PAY IN WASHINGTON, D.C. THEREFORE, YOU SAY THE WORDS "DET A" WERE ERASED AND THE WORDS "OACSI WASHINGTON, D.C;, WERE INSERTED IN ITEM 14. HOWEVER, YOU CONTEND THAT THE ADMINISTRATIVE PERSONNEL WHO CHANGED DA FORM 1058 OVERLOOKED ITEM 16 AND DID NOT CHANGE OR DELETE THE WORDS "WITHOUT PAY.' ALSO, YOU SAY THAT IT WAS ADMINISTRATIVELY INTENDED THAT YOU PERFORM THE ACTIVE DUTY FOR TRAINING IN WASHINGTON, D.C., WITH PAY AND THIS IS SUBSTANTIATED BY YOUR ORDERS OF MAY 21, 1965, WHICH INCLUDED A CITATION OF FUNDS FOR THE TRAINING. FURTHERMORE, YOU SAY THAT THE CORRECTED ORDERS OF MAY 21, 1965, WHICH ELIMINATED THE PROVISIONS FOR PAYMENT ARE HIGHLY IRREGULAR AND SHOULD NOT BE CONSIDERED AS A BASIS TO DISALLOW YOUR CLAIM.

AUTHORITY FOR THE ISSUANCE OF THE ORDERS OF MAY 21, 1965, IS CONTAINED IN 37 U.S.C. 1002 (A) WHICH PROVIDES THAT A MEMBER OF THE NATIONAL GUARD, OR OF A RESERVE COMPONENT OF A UNIFORMED SERVICE, MAY, WITH HIS CONSENT, BE GIVEN ADDITIONAL TRAINING OR OTHER DUTY AS PROVIDED BY LAW, WITHOUT PAY, AS MAY BE AUTHORIZED BY THE SECRETARY CONCERNED. THE SECRETARIAL REGULATIONS ISSUED UNDER AUTHORITY OF 37 U.S.C. 1002 (A) AND IN EFFECT AT THE TIME ARE CONTAINED IN ARMY REGULATIONS 37-104 DATED FEBRUARY 15, 1965. PARAGRAPH 30135 (A) PROVIDES THAT A MEMBER WHO, WITH HIS CONSENT, IS ORDERED TO ACTIVE DUTY WITHOUT PAY IS NOT ENTITLED TO THE BASIC ALLOWANCE FOR QUARTERS OR SUBSISTENCE. IT FURTHER PROVIDES THAT SUCH MEMBER MAY BE FURNISHED WITH SUBSISTENCE AND QUARTERS IN KIND OR COMMUTATION THEREOF AT A RATE TO BE FIXED FROM TIME TO TIME BY THE SECRETARY OF THE ARMY.

THE PAY STATUS OF A RESERVE OFFICER WHO IS ORDERED TO ACTIVE DUTY FOR TRAINING IS GOVERNED BY THE TERMS OF HIS APPLICATION DA FORM 1058 AS IT IS ACCEPTED BY THE APPROVING AUTHORITY. THE ORDER ISSUING AUTHORITY MUST ISSUE THE ORDERS IN ACCORDANCE WITH THE TERMS OF THE APPLICATION AS IT IS APPROVED. OTHERWISE, THEY WOULD NOT CONSTITUTE COMPETENT ORDERS.

BY FIRST INDORSEMENT DATED DECEMBER 7, 1965, FROM HEADQUARTERS, IV UNITED STATES ARMY CORPS, BIRMINGHAM, ALABAMA, YOU WERE ADVISED THAT A VOUCHER PREPARED BY THAT OFFICE WAS RETURNED BY THE FINANCE AND ACCOUNTS OFFICE, U.S. ARMY, PENTAGON BRANCH, WITHOUT ACTION BECAUSE OF YOUR STATEMENT ON YOUR APPLICATION FOR THE TOUR INDICATING THAT IT WAS FOR POINT CREDIT ONLY. ALSO, YOU WERE ADVISED THAT THE ORDERS OF MAY 21, 1965, WERE CORRECTED TO INDICATE THAT YOU WERE ENTITLED TO TRAVEL PAY ONLY SINCE THAT IS ALL THE PAY AUTHORIZED BY HEADQUARTERS, DEPARTMENT OF THE ARMY, IN THEIR ORIGINAL INSTRUCTIONS FOR PUBLICATION OF YOUR ORDERS.

THUS, IT APPEARS THAT WHEN THE DEPARTMENT OF THE ARMY APPROVED YOUR APPLICATION FOR TRAINING DUTY AT WASHINGTON, D.C., ITEM 16 SHOWED YOU WOULD PERFORM THE DUTY WITHOUT PAY. WHILE IT MAY BE THAT PERSONS INVOLVED IN THE PROCESSING OF YOUR APPLICATION CONTEMPLATED THAT THE ACTIVE DUTY FOR TRAINING WOULD BE WITH PAY, THE FACT IS THAT THE APPROVING AUTHORITIES ACTED ON YOUR APPLICATION AS IT WAS SUBMITTED TO THEM, AND APPROVED IT ONLY ON THE BASIS THAT IT WAS AN APPLICATION FOR TRAINING DUTY WITHOUT PAY. APPARENTLY, THE ONLY REASON FOR APPROVING THE DUTY WHICH YOU REQUESTED SHORTLY BEFORE YOUR RETIREMENT WAS TO PERMIT YOU TO EARN THE ADDITIONAL POINTS NEEDED FOR RETIREMENT CREDIT AND THERE IS NOTHING IN THE RECORD TO INDICATE THAT THE APPLICATION WOULD HAVE BEEN APPROVED IF IT HAD PROVIDED FOR DUTY WITH PAY.

BASICALLY, THE APPLICATION FOR ACTIVE DUTY FOR TRAINING AND ITS APPROVAL CONSTITUTE THE AUTHORITY FOR THE ISSUANCE OF THE ORDERS OF MAY 21, 1965. ALSO, WHILE THE ORIGINAL ORDERS DO CONTAIN A CITATION TO FUNDS, THIS DID NOT AUTHORIZE ACTIVE DUTY FOR TRAINING WITH PAY. THE CORRECTED ORDERS WERE ISSUED TO PROPERLY REFLECT THE ADMINISTRATIVE INTENT IN APPROVING THE DUTY WITHOUT PAY. IN THESE CIRCUMSTANCES, THE ARMY FINANCE AND ACCOUNTS OFFICE PROPERLY REFUSED TO AUTHORIZE PAYMENT OF THE PAY VOUCHER.

SINCE THERE IS NO SHOWING THAT THE APPROVING AUTHORITY INTENDED TO APPROVE YOUR APPLICATION AS ONE WITH PAY INSTEAD OF WITHOUT PAY AND SINCE YOUR ORDERS AS CORRECTED PROVIDED FOR TRAVEL PAY ONLY, THERE IS NO AUTHORITY ON THE RECORD BEFORE US FOR THE PAYMENT OF YOUR CLAIM.