B-137336, APRIL 20, 1961, 40 COMP. GEN. 587

B-137336, APRIL 20, 1961, 40 COMP. GEN. 587

MILITARY PERSONNEL - MILEAGE - GOVERNMENT CONVEYANCE - AIR ACADEMY AERO CLUB - NONAPPROPRIATED FUND ACTIVITIES THE HOURLY FLYING FEE CHARGED AN AIR FORCE OFFICER BY THE AIR FORCE ACADEMY AERO CLUB FOR THE USE ON OFFICIAL TRAVEL OF AIRCRAFT LOANED TO THE CLUB MAY BE CONSIDERED A REIMBURSABLE TRAVEL EXPENSE ITEM UNDER PARAGRAPH 4406 OF THE JOINT TRAVEL REGULATIONS, WHICH PROVIDES THAT IN UNUSUAL CIRCUMSTANCES WHERE EXPENSES OF OPERATION OF GOVERNMENT CONVEYANCES ARE INCURRED THE TRAVELER MAY BE REIMBURSED. ALTHOUGH THE AIR FORCE ACADEMY AERO CLUB IS A NONAPPROPRIATED FUND ACTIVITY OF THE AIR FORCE, IT IS AN INSTRUMENTALITY OF THE UNITED STATES WHICH MAY OWN AND USE PROPERTY AND EQUIPMENT ONLY IN ITS CAPACITY AS A GOVERNMENT ENTERPRISE; THEREFORE, COMMERCIAL AIRCRAFT PURCHASED FROM THE PROCEEDS OF THE AERO CLUB NONAPPROPRIATED FUND ARE TO BE REGARDED AS GOVERNMENT CONVEYANCES WITHIN THE MEANING OF PARAGRAPH 1150-6 OF THE JOINT TRAVEL REGULATIONS. 38 COMP. GEN. 366, MODIFIED. "TIE-DOWN" FEES--- CHARGES PAID FOR THE PROTECTION AND SAFEGUARD OF AIR FORCE ACADEMY AERO CLUB AIRCRAFT LEFT OVERNIGHT AT COMMERCIAL AIRPORTS WHEN GOVERNMENT FACILITIES ARE NOT AVAILABLE--- MAY BE CONSIDERED AS IN THE NATURE OF STORAGE EXPENSES WHICH ARE REIMBURSABLE UNDER PARAGRAPH 4406 OF THE JOINT TRAVEL REGULATIONS WHEN A GOVERNMENT CONVEYANCE IS USED FOR OFFICIAL TRAVEL.

TO THE SECRETARY OF THE AIR FORCE, APRIL 20, 1961:

REFERENCE IS MADE TO LETTER OF JANUARY 24, 1961, FROM THE ASSISTANT SECRETARY OF THE AIR FORCE, PDTATAC CONTROL NO. 61-2, REQUESTING VERIFICATION OF YOUR INTERPRETATION OF OUR DECISION OF NOVEMBER 17, 1958, 38 COMP. GEN. 366, CONCERNING THE ENTITLEMENT OF LIEUTENANT COLONEL JOHN R. SALA TO REIMBURSEMENT FOR TRAVEL PERFORMED BY HIM IN AIRCRAFT ON LOAN FROM THE GOVERNMENT TO THE AIR FORCE ACADEMY AERO CLUB. YOU ALSO REQUEST ANSWERS TO THE ADDITIONAL QUESTIONS PRESENTED IN THE LETTER.

PARAGRAPH 1150-6 OF THE JOINT TRAVEL REGULATIONS DEFINES THE TERM "1GOVERNMENT CONVEYANCE" AS MEANING ANY TRANSPORTATION FACILITY OWNED, LEASED, OR CHARTERED BY THE GOVERNMENT. UNDER ORDINARY CIRCUMSTANCES, A GOVERNMENT CONVEYANCE IS PROVIDED WITHOUT CHARGE WHEN USED FOR OFFICIAL TRAVEL. UNDER UNUSUAL CIRCUMSTANCES, WHERE NECESSARY EXPENSES OF OPERATION OF GOVERNMENT CONVEYANCES SUCH AS COST OF GASOLINE, OIL, REPAIRS, NONPERSONAL SERVICES, GUARDS, AND STORAGE ARE INCURRED BY THE TRAVELER BECAUSE GOVERNMENT FACILITIES ARE NOT AVAILABLE, PARAGRAPH 4406 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT SUCH EXPENSES ARE REIMBURSABLE. PARAGRAPH 4203-3A OF THE REGULATIONS PROVIDES, WITH CERTAIN EXCEPTIONS NOT HERE MATERIAL, FOR THE PAYMENT TO MEMBERS OF A MONETARY ALLOWANCE IN LIEU OF TRANSPORTATION AT THE RATE OF FIVE CENTS PER MILE FOR AUTHORIZED TRAVEL PERFORMED AT PERSONAL EXPENSE. SUCH PROVISION, HOWEVER, HAS NO APPLICATION WHERE TRAVEL IS PERFORMED BY A GOVERNMENT CONVEYANCE.

THE DECISION OF NOVEMBER 17, 1958, HELD THAT IN THE CIRCUMSTANCES SHOWN, COLONEL SALA USED A GOVERNMENT CONVEYANCE IN THE ACCOMPLISHMENT OF THE TRAVEL IN QUESTION, EVEN THOUGH FOR PRACTICAL PURPOSES SUCH CONVEYANCE WAS CONTROLLED BY THE AERO CLUB, AND, THEREFORE, THERE WAS NO AUTHORITY FOR THE PAYMENT TO HIM OF THE MONETARY ALLOWANCE IN LIEU OF TRANSPORTATION AUTHORIZED BY PARAGRAPH 4203-3A OF THE JOINT TRAVEL REGULATIONS. IT WAS HELD THAT SINCE A MEMBER TRAVELING UNDER SUCH CIRCUMSTANCES IS ENTITLED TO REIMBURSEMENT FOR REASONABLE TRAVELING EXPENSES, COLONEL SALA PROPERLY COULD BE REIMBURSED FOR THE EXPENSES INCURRED FOR THE TRAVEL IN QUESTION UNDER THE PROVISIONS OF PARAGRAPH 4406 OF THE JOINT TRAVEL REGULATIONS IF SUPPORTED BY THE RECEIPTS REQUIRED BY THAT PARAGRAPH.

THE LETTER OF THE ASSISTANT SECRETARY IS IN PART AS FOLLOWS:

YOUR FURTHER DECISION ON THE ENSUING QUESTIONS GENERATED BY THE DECISION CITED ABOVE IS REQUESTED AS A BASIS FOR ISSUING REGULATIONS ON ENTITLEMENT TO TRAVEL ALLOWANCES FOR OFFICIAL TRAVEL BY AERO CLUB AIRCRAFT. AS A MEANS OF CONTROL, WE INTEND TO INCLUDE A STATEMENT IN THE REGULATIONS THAT REIMBURSEMENT FOR EXPENSES OF TRAVEL BY GOVERNMENT AIRCRAFT ON LOAN TO AN AERO CLUB WILL NOT EXCEED THE COST TO THE GOVERNMENT FOR TRANSPORTATION BY COMMERCIAL MEANS.

QUESTION 1. DOES THE TERM "REASONABLE TRAVELING EXPENSES" AS USED IN THE LAST PARAGRAPH OF YOUR 17 NOVEMBER 1958 DECISION INCLUDE THE HOURLY FLYING FEE CHARGED BY THE AERO CLUB?

QUESTION 2. SOME AERO CLUBS HAVE PURCHASED COMMERCIAL AIRCRAFT FROM PROCEEDS OF THE AERO CLUB SUNDRY (NONAPPROPRIATED) FUND. WHEN USED AS A MODE OF OFFICIAL TRAVEL, WOULD SUCH AIRCRAFT (OWNED BY THE AERO CLUB) BE CONSIDERED A GOVERNMENT CONVEYANCE?

QUESTION 3. IF THE ANSWER TO QUESTION 2 IS NEGATIVE, WOULD AIRCRAFT OWNED BY THE CLUB BE CONSIDERED A PRIVATELY OWNED CONVEYANCE AND REIMBURSEMENT FOR TRAVEL BY SUCH MEANS AUTHORIZED UNDER PROVISIONS OF PAR. 4203-3, JTR?

QUESTION 4. EXPENSES OF "TIE-DOWN" FEES ARE SOMETIMES INCURRED BY MEMBERS TRAVELING BY AERO CLUB AIRCRAFT. ARE SUCH EXPENSES REIMBURSABLE FOR (A) TRAVEL BY GOVERNMENT OWNED AIRCRAFT ON LOAN TO AN AERO CLUB? (B) TRAVEL BY AIRCRAFT OWNED BY AN AERO CLUB?

UNDER THE RULING IN OUR DECISION OF NOVEMBER 17, 1958, THE HOURLY FLYING FEE CHARGED THE OFFICER BY THE AERO CLUB MAY BE CONSIDERED AS A REIMBURSABLE ITEM ON TRAVELING EXPENSE UNDER THE PROVISIONS OF PARAGRAPH 4406 OF THE JOINT TRAVEL REGULATIONS. QUESTION 1 IS ANSWERED IN THE AFFIRMATIVE.

UNDER THE PROVISIONS OF PARAGRAPH 3A, AIR FORCE REGULATION 34-14, DATED SEPTEMBER 30, 1960, AERO CLUBS MAY BE ESTABLISHED ONLY AS SUNDRY FUND ACTIVITIES OF THE AIR FORCE IN KEEPING WITH AFR 176-1 TO OPERATE AS "INSTRUMENTALITIES OF THE FEDERAL GOVERNMENT" UNDER THE AUSPICES OF THE AIR FORCE. PARAGRAPH 2, AIR FORCE REGULATION 176-1, DATED SEPTEMBER 10, 1957, PROVIDES THAT NONAPPROPRIATED FUNDS AND THEIR RELATED ACTIVITIES ARE ESTABLISHED BY AUTHORITY OF THE SECRETARY OF THE AIR FORCE AND ARE NOT INCORPORATED UNDER THE LAWS OF ANY STATE OR THE DISTRICT OF COLUMBIA. THESE FUNDS AND ACTIVITIES ARE DECLARED TO BE "INSTRUMENTALITIES OF THE UNITED STATES GOVERNMENT" AND AS SUCH ENTITLED TO THE SOVEREIGN IMMUNITIES AND PRIVILEGES OF THE UNITED STATES AS PROVIDED IN THE CONSTITUTION AND STATUTES, AND IN INTERNATIONAL LAW, TREATIES AND AGREEMENTS WITH FOREIGN COUNTRIES. ALSO, PARAGRAPH 24 (B), SECTION 3, AIR FORCE REGULATIONS 176- 8, DATED JANUARY 28, 1960, PROVIDES, IN PART, THAT AS AN INSTRUMENTALITY OF THE UNITED STATES A NONAPPROPRIATED FUND ACTIVITY IS ENTITLED TO THE SAME IMMUNITY FROM STATE AND LOCAL TAXES AS IS GRANTED TO THE FEDERAL GOVERNMENT. THE STATUS OF NONAPPROPRIATED FUND ACTIVITIES AS GOVERNMENT INSTRUMENTALITIES AND THEIR ENTITLEMENT TO SUCCESSFULLY ASSERT THE DOCTRINE OF SOVEREIGN IMMUNITY AS SUCH HAVE BEEN RECOGNIZED BY THE COURTS. SEE STANDARD OIL CO. V. JOHNSON, 316 U.S. 481; BORDEN V. UNITED STATES, 126 CT. CL. 902. HENCE, WHILE A NONAPPROPRIATED FUND ACTIVITY MAY NOT BE A DIRECT AGENCY OF THE UNITED STATES AND IS NOT SUPPORTED BY APPROPRIATED FUNDS, IT IS UNQUESTIONABLY A GOVERNMENT ENTERPRISE AND MAY OWN AND USE PROPERTY AND EQUIPMENT ONLY IN THAT CAPACITY. IN SUCH CIRCUMSTANCES WE BELIEVE THAT AIRCRAFT OWNED BY A NONAPPROPRIATED FUND ACTIVITY ARE TO BE REGARDED AS GOVERNMENT CONVEYANCES WITHIN THE MEANING OF PARAGRAPH 1150-6 OF THE JOINT TRAVEL REGULATIONS. TO THE EXTENT THAT THE DISCUSSION IN THE LAST PARAGRAPH OF THE DECISION OF NOVEMBER 17, 1958, MAY BE VIEWED AS INDICATING OTHERWISE, IT SHOULD BE DISREGARDED. QUESTION 2 IS ANSWERED IN THE AFFIRMATIVE.

IN VIEW OF THE AFFIRMATIVE ANSWER TO QUESTION 2 IT APPEARS THAT AN ANSWER TO QUESTION 3 IS NOT NECESSARY.

IT IS STATED IN THE LETTER OF THE ASSISTANT SECRETARY THAT THE EXPENSES OF "TIE-DOWN" FEES ARE SOMETIMES INCURRED WHEN IT IS NECESSARY TO LEAVE THE AIRCRAFT OVERNIGHT AT COMMERCIAL AIRPORTS WHERE GOVERNMENT FACILITIES ARE NOT AVAILABLE; THAT THE TIE-DOWN SERVICE IS ESSENTIAL FOR PROTECTING AND SAFEGUARDING AIRCRAFT; AND THAT SUCH FEES AVERAGE FROM $2 TO $3 PER NIGHT FOR THE T-34 TYPE AIRCRAFT. IN SUCH CIRCUMSTANCES, IT REASONABLY MAY BE CONCLUDED THAT THE TIE-DOWN FEES, WHEN NECESSARILY INCURRED BECAUSE GOVERNMENT FACILITIES ARE NOT AVAILABLE MAY, AS SUGGESTED IN YOUR LETTER, BE CONSIDERED AS IN THE NATURE OF STORAGE EXPENSES WHICH ARE REIMBURSABLE UNDER PARAGRAPH 4406 OF THE JOINT TRAVEL REGULATIONS WHEN A GOVERNMENT CONVEYANCE IS USED FOR OFFICIAL TRAVEL. QUESTION 4 IS ANSWERED IN THE AFFIRMATIVE.

THE DECISION OF NOVEMBER 17, 1958, 38 COMP. GEN. 366, IS AMPLIFIED AND MODIFIED ACCORDINGLY.