B-180921, SEP 5, 1974
Highlights
IS NOT ENTITLED TO PAY FOR SUCH EQUIVALENT TRAINING SINCE SUBPARAGRAPH 4- 13(F) OF AF 140-1. PROVIDES THAT EQUIVALENT TRAINING MUST BE PERFORMED WITHIN 60 DAYS OF TRANING ASSEMBLY FOR WHICH IT IS BEING SUBSTITUTED. ALTHOUGH ERRONEOUS INFORMATION GIVEN TO HIM CAUSED HIM TO BE UNAWARE OF THE 60 DAY LIMITATION HE IS NOT ENTITLED TO PAY FOR SUCH TRAINING BECAUSE IT IS WELL SETTLED THAT GOVERNMENT IS NOT BOUND BY UNAUTHORIZED OR INCORRECT STATEMENTS OF ITS AGENTS AND EMPLOYEES. (2) WHILE A CLAIMANT MAY ASSERT A CLAIM OR RIGHT IN THE GAO. THE GAO IS WITHOUT AUTHORITY TO APPOINT LEGAL COUNSEL TO REPRESENT THE CLAIMANT IN SUCH MATTERS. BARON: THIS ACTION IS IN RESPONSE TO A REQUEST BY MR. WHICH DISALLOWED HIS CLAIM FOR INACTIVE DUTY DRILL PAY FOR EQUIVALENT TRAINING PERFORMED FOR THE REASON THAT SUCH EQUIVALENT TRAINING WAS NOT PERFORMED WITHIN 60 DAYS OF THE SCHEDULED DRILL FOR WHICH THEY WERE BEING SUBSTITUTED.
B-180921, SEP 5, 1974
(1) NATIONAL GUARD MEMBER WHO PERFORMED EQUIVALENT TRAINING IN OCTOBER AND NOVEMBER 1972, IN LIEU OF SCHEDULED ASSEMBLY ON JANUARY 14, 1973, IS NOT ENTITLED TO PAY FOR SUCH EQUIVALENT TRAINING SINCE SUBPARAGRAPH 4- 13(F) OF AF 140-1, SEPTEMBER 15, 1972, PROVIDES THAT EQUIVALENT TRAINING MUST BE PERFORMED WITHIN 60 DAYS OF TRANING ASSEMBLY FOR WHICH IT IS BEING SUBSTITUTED. FURTHER, ALTHOUGH ERRONEOUS INFORMATION GIVEN TO HIM CAUSED HIM TO BE UNAWARE OF THE 60 DAY LIMITATION HE IS NOT ENTITLED TO PAY FOR SUCH TRAINING BECAUSE IT IS WELL SETTLED THAT GOVERNMENT IS NOT BOUND BY UNAUTHORIZED OR INCORRECT STATEMENTS OF ITS AGENTS AND EMPLOYEES. (2) WHILE A CLAIMANT MAY ASSERT A CLAIM OR RIGHT IN THE GAO, EITHER INDIVIDUALLY OR THROUGH A RECOGNIZED ATTORNEY OR OTHER REPRESENTATIVE, THE GAO IS WITHOUT AUTHORITY TO APPOINT LEGAL COUNSEL TO REPRESENT THE CLAIMANT IN SUCH MATTERS.
CLAIM FOR EQUIVALENT TRAINING PAY - GEORGE R. BARON:
THIS ACTION IS IN RESPONSE TO A REQUEST BY MR. GEORGE R. BARON FOR RECONSIDERATION OF OUR TRANSPORTATION AND CLAIMS DIVISION SETTLEMENT DATED JUNE 18, 1973, WHICH DISALLOWED HIS CLAIM FOR INACTIVE DUTY DRILL PAY FOR EQUIVALENT TRAINING PERFORMED FOR THE REASON THAT SUCH EQUIVALENT TRAINING WAS NOT PERFORMED WITHIN 60 DAYS OF THE SCHEDULED DRILL FOR WHICH THEY WERE BEING SUBSTITUTED.
THE RECORD INDICATES THAT THE MEMBER IS ASSIGNED TO HOWITZER BATTERY, 1ST SQUADRON, 104TH ARMORED CAVALRY, IN NUNTINGDON, PENNSYLVANIA. THE MEMBER REQUESTED AND WAS GRANTED PERMISSION TO ATTEND VOLUNTARY TRAINING ASSEMBLIES ON OCTOBER 26 AND NOVEMBER 2, 1972, FOR EQUIVALENT TRAINING IN LIEU OF A REGULARLY SCHEDULED TRAINING ASSEMBLY WHICH IS INDICATED IN THE FILE AS OCCURRING ON JANUARY 14, 1973. THE MEMBER DID NOT RECEIVE PAY FOR THE ABOVE-MENTIONED EQUIVALENT TRANING ASSEMBLIES AND THEREIN LIES THE BASIS FOR THE MEMBER'S CLAIM.
THE MEMBER CONTENDS THAT HE WAS NOT APPRISED OF THE FACT THAT EQUIVALENT TRAINING MUST BE PERFORMED WITHIN 60 DAYS OF THE TRAINING FOR WHICH IT IS SUBSTITUTED, IT APPEARING THAT THE MEMBER MAY HAVE BEEN GIVEN ERRONEOUS INFORMATION WHICH CAUSED HIM TO BE UNAWARE OF THE 60 DAY LIMITATION ON THE USE OF EQUIVALENT TRAINING. IN ADDITION, THE MEMBER REQUESTS THAT THIS OFFICE PROVIDE LEGAL REPRESENTATION FORM HIM IN PURSUING A REMEDY.
PARAGRAPH 4-13 OF ARMY REGULATION 140-1, SEPTEMBER 15, 1972, DEFINES EQUIVALENT TRAINING AS THAT TRAINING, INSTRUCTION, OR APPROPRIATE DUTY FOR INDIVIDUAL MEMBERS OF A UNIT, WHICH IS IN LIEU OF A REGULARLY SCHEDULED UNIT TRAINING ASSEMBLY, AND FOR WHICH PAY AND/OR RETIREMENT POINT CREDIT IS AUTHORIZED. FURTHER, THAT SUCH EQUIVALENT TRAINING MAY BE ACCOMPLISHED PRIOR TO, OR SUBSEQUENT TO, THE TRAINING ASSEMBLY FOR WHICH IT IS SUBSTITUTED. HOWEVER, SUBSECTION (F) OF PARAGRAPH 4-13 LIMITS THE PERIOD IN WHICH EQUIVALENT TRAINING MAY BE PERFORMED BY PROVIDING THAT EQUIVALENT TRAINING MUST BE PERFORMED WITHIN 60 DAYS OF THE TRAINING FOR WHICH IT IS BEING SUBSTITUTED.
WHILE IT APPEARS THAT THE MEMBER MAY HAVE BEEN GIVEN ERRONEOUS INFORMATION, IT IS WELL SETTLED THAT THE GOVERNMENT IS NOT BOUND BY NOR RESPONSIBLE FOR THE UNAUTHORIZED OR INCORRECT STATEMENTS OF ITS AGENTS AND EMPLOYEES. POSEY V. UNITED STATES, 449 F. 2D 228, 234 (1971). ALL GOVERNMENT AGENTS ARE SPECIAL AGENTS OF LIMITED AUTHORITY AND ALL PERSONS DEALING WITH SUCH AGENTS OR EMPLOYEES ARE CHARGED WITH NOTICE OF THAT FACT AND OF THE LIMITATION UPON THE AUTHORITY OF THE AGENTS WITH WHOM THEY DEAL. UNITED STATES V. THOMPSON, 293 F. SUPP. 1307 (1967), AFFIRMED 408 F.2D 1075 (1969). COMPARE FEDERAL CROP INSURANCE CORPORATION V. MARRILL, 332 U.S. 380 (1947), AND UNITED STATES IMMIGRATION AND NATURALIZATION SERVICES V. HIBI, 414 U.S. 5 (1973).
WHILE THE CLAIMANT MAY HAVE BEEN GIVEN ERRONEOUS INFORMATION CONCERNING HIS ENTITLEMENTS TO PAY FOR EQUIVALENT TRAINING, IN THE ABSENCE OF SPECIFIC AUTHORITY THEREFOR, THE UNITED STATES IS NOT LIABLE FOR SUCH ERRONEOUS ACTIONS BY ITS OFFICERS, AGENTS OR EMPLOYEES, EVEN THOUGH COMMITTED IN THE PERFORMANCE OF THEIR OFFICIAL DUTIES. 44 COMP. GEN. 337 (1964).
SINCE THE RECORD SHOWS THAT THE DATES ON WHICH THE MEMBER PERFORMED SUCH TRAINING WERE MORE THAN 60 DAYS PRIOR TO JANUARY 14, 1973, THE DATE FOR WHICH THEY WERE TO BE SUBSTITUTED, THERE IS NO LEGAL AUTHORITY UPON WHICH ENTITLEMENT TO SUCH EQUIVALENT PAY MAY BE BASED.
ACCORDINGLY, THE ACTION TAKEN BY OUR TRANSPORTATION AND CLAIMS DIVISION IS SUSTAINED.
WITH REGARD TO THE MEMBER'S REQUEST FOR LEGAL REPRESENTATION BEFORE THIS OFFICE, THIS OFFICE DOES NOT HAVE THE AUTHORITY TO APPOINT LEGAL COUNSEL TO REPRESENT A CLAIMANT. HOWEVER, CHAPTER 5, SECTION 19.1 OF TITLE I, GENERAL ACCOUNTING OFFICE POLICY AND PROCEDURES MANUAL, DOES ALLOW FOR LEGAL REPRESENTATION BEFORE THIS OFFICE, BY PROVIDING THAT ALL PERSONS HAVING A CLAIM OR OTHER RIGHTS ASSERTABLE IN THE GENERAL ACCOUNTING OFFICE MAY PROSECUTE SUCH CLAIM OR RIGHT INDIVIDUALLY OR THROUGH A RECOGNIZED ATTORNEY OR OTHER REPRESENTATIVE.