B-124225, OCT. 11, 1955

B-124225, OCT. 11, 1955

TO ROYAL W. WILLIAMS, M.D.:

REFERENCE IS MADE TO YOUR LETTERS OF APRIL 28, AND JULY 13, 1955, REQUESTING REVIEW OF THE SETTLEMENT OF MARCH 31, 1955, WHICH DISALLOWED YOUR CLAIM FOR $1,160.37, REPRESENTING MILEAGE FROM SAVANNAH, GEORGIA, TO CHARLESTON, SOUTH CAROLINA, AND PER DIEM FOR DUTY PERFORMED AS SENIOR SURGEON AT THE UNITED STATES PUBLIC HEALTH SERVICE OUTPATIENT CLINIC AT CHARLESTON, SOUTH CAROLINA, DURING THE PERIOD NOVEMBER 17, 1953, TO APRIL 14, 1954.

THE RECORD SHOWS THAT PERSONNEL ORDERS NO. 180.2/6) DATED OCTOBER 20, 1953, RELIEVED YOU FROM ASSIGNMENT AND DUTY AT MINNEAPOLIS, MINNESOTA, EFFECTIVE OCTOBER 25, 1953, AND ASSIGNED YOU ON PERMANENT CHANGE OF STATION TO THE OUTPATIENT CLINIC AND QUARANTINE STATION, PUBLIC HEALTH SERVICE, CHARLESTON, SOUTH CAROLINA. PERSONNEL ORDERS NO. 183.2/7), DATED OCTOBER 26, 1953, AMENDED THE EFFECTIVE DATE OF THE TRANSFER TO NOVEMBER 1, 1953. YOU INDICATE IN YOUR LETTER OF APRIL 28, 1955, THAT YOUR FAILURE TO PERFORM THE TRAVEL AUTHORIZED BY THESE ORDERS WAS DUE TO ISSUANCE OF AN EXECUTIVE ORDER WHICH PROVIDED NO COMMISSIONED OFFICER SHOULD BE PLACED IN CHARGE OF A QUARANTINE STATION UNTIL SCREENED FOR SECURITY REASONS, AND THAT SUCH PROVISION WAS OVERLOOKED WHEN PERSONNEL ORDERS NO. 180.2/6) WAS ISSUED, WHICH RESULTED IN VERBAL ORDERS TO REMAIN IN MINNEAPOLIS UNTIL YOUR ORIGINAL ORDERS WERE AMENDED. YOUR LETTER FURTHER INDICATES THAT YOU RECEIVED ORDERS BY TELEGRAM ON OR ABOUT NOVEMBER 6, 1953, TO PROCEED TO SAVANNAH, GEORGIA, AND RECORDS OF THIS OFFICE SHOW THAT YOU PERFORMED SUCH TRAVEL FROM NOVEMBER 9 TO 13, 1953.

PERSONNEL ORDERS NO. 192.2/6) DATED NOVEMBER 10, 1953, AMENDED PERSONNEL ORDERS NO. 180.2/6) TO INCLUDE TEMPORARY DUTY, EN ROUTE TO CHARLESTON, SOUTH CAROLINA, AT THE PUBLIC HEALTH SERVICE HOSPITAL, SAVANNAH, GEORGIA, FOR AN INDEFINITE PERIOD. PERSONNEL ORDERS NO. 203.2/8) DATED DECEMBER 4, 1953, AMENDED THE EFFECTIVE DATE OF PERSONNEL ORDER NO. 180.2/6) TO NOVEMBER 8, 1953, AND PERSONNEL ORDERS NO. 43.2/5) DATED APRIL 19, 1954, RELIEVED YOU FROM ASSIGNMENT AND DUTY AT CHARLESTON, SOUTH CAROLINA, EFFECTIVE APRIL 14, 1954, AND DIRECTED YOUR ASSIGNMENT ON A PERMANENT CHANGE OF STATION BASIS TO THE PUBLIC HEALTH SERVICE HOSPITAL AT SAVANNAH, GEORGIA. BY PERSONNEL ORDERS NO. 55, DATED MAY 13, 1954, YOU WERE RELIEVED FROM ACTIVE DUTY AT SAVANNAH EFFECTIVE MAY 20, 1954, AND YOUR APPOINTMENT AS SENIOR SURGEON, PUBLIC HEALTH SERVICE, WAS TERMINATED EFFECTIVE MAY 22, 1954.

DURING THE PERIOD FROM NOVEMBER 13, 1953, THE DATE ON WHICH YOU ARRIVED IN SAVANNAH, GEORGIA, TO APRIL 14, 1954, THE DATE OF YOUR PERMANENT CHANGE OF STATION TO SAVANNAH UNDER PERSONNEL ORDERS NO 43.2/5), YOU PERFORMED THREE PERIODS OF DUTY UNDER TRAVEL AUTHORIZATIONS NUMBERED 12727, 12728, AND 12729 PURPORTING TO ASSIGN YOU TO TEMPORARY ADDITIONAL DUTY AT THE PUBLIC HEALTH SERVICE OUTPATIENT CLINIC, CHARLESTON, SOUTH CAROLINA. SUCH TRAVEL AND DUTY WERE PERFORMED DURING THE PERIODS NOVEMBER 17-22, 1953, NOVEMBER 24, 1953 THROUGH APRIL 7, 1954, AND APRIL 7-14, 1954. NOVEMBER 26, 1954, PERSONNEL ORDER NO. 159.2/6) WAS ISSUED AMENDING PERSONNEL ORDERS NO. 180.2/6) TO SHOW SAVANNAH, GEORGIA, AS YOUR PERMANENT STATION IN LIEU OF CHARLESTON, SOUTH CAROLINA, AND TO CANCEL PERSONNEL ORDERS NOS. 43.2/5) AND 192.2/6). ON DECEMBER 9, 1954, TRAVEL AUTHORIZATIONS NUMBERED 12727, 12728 AND 12729 WERE AMENDED TO DELETE "TEMPORARY DUTY EN ROUTE FOR INDEFINITE PERIOD," TO SHOW SAVANNAH, GEORGIA, AS YOUR OFFICIAL STATION AND TO AUTHORIZE TEMPORARY DUTY AT CHARLESTON, SOUTH CAROLINA, WITH PER DIEM AT THE RATE OF $9. PURSUANT TO THESE CHANGES YOU HAVE REQUESTED PAYMENT OF MILEAGE FOR THREE SEPARATE TRIPS BY PRIVATE AUTOMOBILE FROM SAVANNAH TO CHARLESTON AND RETURN, PLUS PER DIEM FOR THE PERIODS NOVEMBER 17-22, 1953, NOVEMBER 24, 1953 THROUGH APRIL 7, 1954, AND APRIL 7-14, 1954, DURING WHICH YOU WERE ABSENT FROM YOUR CLAIMED OFFICIAL STATION AT SAVANNAH FOR PERFORMANCE OF TEMPORARY DUTY AT CHARLESTON. IN SUPPORT OF YOUR CLAIM, YOU HAVE SUBMITTED A COPY OF A LETTER DATED NOVEMBER 17, 1954, FROM THE SURGEON GENERAL, PUBLIC HEALTH SERVICE, WHICH STATES THAT APPARENTLY AN ADMINISTRATIVE ERROR WAS MADE IN ISSUING PERSONNEL ORDERS NO. 180.2/6), WHICH ASSIGNED YOU TO PERMANENT DUTY AT CHARLESTON, SOUTH CAROLINA, SINCE IT WAS INTENDED THAT ON TRANSFER FROM MINNEAPOLIS, YOUR NEXT PERMANENT DUTY STATION WOULD BE SAVANNAH, GEORGIA, AND ACTION WAS THEREFORE BEING TAKEN TO AMEND PERSONNEL ORDERS NOS. 180 AND 192 TO CORRECT THE ERROR AND MAKE SAVANNAH, GEORGIA, YOUR PERMANENT DUTY STATION.

THE DISALLOWANCE OF YOUR CLAIM ON MARCH 31, 1955, WAS BASED ON THE LONG ESTABLISHED RULE THAT A LEGAL RIGHT TO TRAVEL PAY AND ALLOWANCES ACCRUES AND VESTS AS AND WHEN TRAVEL IS PERFORMED UNDER THE ORDERS, AND SUCH RIGHTS THEREFORE ARE NOT SUBJECT TO RETROACTIVE MODIFICATIONS BY SUBSEQUENT ADMINISTRATIVE ACTION UNLESS THE ACTION IS TAKEN TO CORRECT OR COMPLETE THE ORDERS TO SHOW THE ORIGINAL INTENT. 23 COMP. GEN. 713; 24 ID. 439. IN REQUESTING REVIEW YOU STATE THAT YOUR ORIGINAL ORDERS, DIRECTING CHANGE OF STATION TO CHARLESTON, WERE ISSUED AS A RESULT OF AN ADMINISTRATIVE OVERSIGHT OF A PROHIBITION, APPARENTLY THAT CONTAINED IN EXECUTIVE ORDERS NOS. 10450 AND 10497, AGAINST ASSIGNING A COMMISSIONED OFFICER TO A SENSITIVE POSITION PRIOR TO COMPLETION OF A FULL SECURITY INVESTIGATION ON SUCH OFFICER. YOU FURTHER CONTEND THAT YOUR SUBSEQUENT ASSIGNMENTS, BY AMENDMENTS TO THE ORIGINAL ORDERS, TO TEMPORARY DUTY AT SAVANNAH AND AT CHARLESTON WERE NECESSITATED BY SUCH PROHIBITION, AND THAT PERSONNEL ORDERS NO. 159.2/6), ISSUED ON NOVEMBER 26, 1954, WHICH PURPORTED TO AMEND YOUR ORIGINAL ORDERS TO SHOW SAVANNAH AS YOUR OFFICIAL STATION, WERE THEREFORE A CORRECTION WHICH REFLECTED THE INTENT OF THE ADMINISTRATIVE OFFICE AT THE TIME YOUR ORIGINAL ORDERS WERE ISSUED.

WHILE IT MAY BE THAT A QUESTION CONCERNING YOUR SECURITY CLEARANCE PROMPTED THE ISSUANCE OF THE ORDERS OF NOVEMBER 10, 1953, ASSIGNING YOU TEMPORARY DUTY AT SAVANNAH EN ROUTE TO CHARLESTON, THESE ORDERS EVIDENCE NO INTENT TO CHANGE YOUR PERMANENT STATION, THE OBVIOUS INTENT BEING ONLY TO DELAY TRAVEL TO CHARLESTON PENDING DETERMINATION OF AN APPROPRIATE DUTY ASSIGNMENT FOR YOU THERE. THAT SUCH DUTY WAS AVAILABLE IS EVIDENCED BY YOUR ORDERS DIRECTING TRAVEL TO, AND DUTY AT, CHARLESTON. FURTHER, YOUR CLAIM VOUCHER SHOWS THAT ON 146 DAYS OUT OF 153 ELAPSED DAYS BETWEEN YOUR ARRIVAL AT SAVANNAH ON NOVEMBER 13, 1953, UNDER TEMPORARY DUTY ORDERS, AND APRIL 14, 1954, THE EFFECTIVE DATE OF THE ORDERS ASSIGNING YOU TO PERMANENT STATION THERE, YOU WERE PRESENT FOR DUTY AT CHARLESTON. THESE FACTS AFFORD NO BASIS FOR ANY CONCLUSION OTHER THAN THAT CHARLESTON WAS YOUR PERMANENT STATION DURING THE PERIOD IN QUESTION. PARAGRAPH 4201-4 OF THE JOINT TRAVEL REGULATIONS PROHIBITS THE PAYMENT OF PER DIEM FOR THE PERFORMANCE OF TEMPORARY DUTY WITHIN THE LIMITS OF THE PERMANENT DUTY STATION. 34 COMP. GEN. 427. SINCE THE ORDERS OF NOVEMBER 26, 1954, PURPORTING TO CHANGE YOUR PERMANENT STATION RETROACTIVELY TO SAVANNAH, WERE INEFFECTIVE TO ..END :