B-144345, JAN. 18, 1961

B-144345, JAN. 18, 1961

TO MR. JACK C. MIKLOS:

YOUR LETTER OF OCTOBER 26, 1960, RECLAIMS $161, THE AMOUNT WHICH WAS DISALLOWED BY THE DEPARTMENT OF STATE IN YOUR TRAVEL VOUCHER REIMBURSING YOU FOR TRAVEL FROM STANFORD, CALIFORNIA, TO WASHINGTON, D.C., UPON YOUR TRANSFER OF OFFICIAL DUTY STATION IN WASHINGTON.

TRAVEL ORDER NO. 0-07511 OF FEBRUARY 25, 1960, AUTHORIZED TRAVEL FOR YOURSELF AND DEPENDENTS BY ANY MODE OF COMMON CARRIER TRANSPORTATION OR BY PRIVATELY OWNED AUTOMOBILE TO YOUR NEW DUTY STATION. IN THE DEPARTMENT OF STATE'S LETTER OF FEBRUARY 15, 1960, YOU WERE INFORMED THAT A MILEAGE ALLOWANCE OF $0.10 PER MILE WAS AUTHORIZED FOR THE USE OF YOUR AUTOMOBILE, AND THAT PER DIEM FOR USUAL ELAPSED TRAVEL TIME COULD BE CLAIMED. THE RECORD SHOWS YOU AND YOUR WIFE TRAVELED BY AUTOMOBILE AND YOUR CHILDREN BY COMMERCIAL AIR.

SINCE THE MILEAGE AND PER DIEM CLAIMED FOR YOURSELF AND WIFE WERE IN EXCESS OF THE CONSTRUCTIVE TRAVEL EXPENSES, INCLUDING PER DIEM, BY COMMON CARRIER THE EXCESS TRAVEL EXPENSE WAS ADMINISTRATIVELY DISALLOWED. YOU NOW CLAIM REIMBURSEMENT FOR THE AMOUNT OF THE DISALLOWANCE SINCE YOU SAY PARAGRAPH 4.32 (C) OF SECTION 180 OF THE FOREIGN SERVICE TRAVEL REGULATIONS, THEN IN EFFECT, AUTHORIZES TRAVEL BY PRIVATELY OWNED CONVEYANCE AS BEING MORE ADVANTAGEOUS TO THE GOVERNMENT "WHEN AN EMPLOYEE IS AUTHORIZED TO TRANSPORT EFFECTS BUT NO DETERMINATION HAS BEEN MADE UNDER FSTR 5.21 THAT THE SHIPMENT OF A PRIVATELY OWNED CONVEYANCE IS NECESSARY OR EXPEDIENT AND THE EMPLOYEE OR MEMBER OF HIS FAMILY WHO IS AUTHORIZED TO TRAVEL EVEN THOUGH UNACCOMPANIED DRIVES SUCH CONVEYANCE BETWEEN AUTHORIZED POINTS OF ORIGIN AND DESTINATION.' YOU BELIEVE THIS SECTION WAS INTENDED TO INSURE THAT A TRAVELER NEED NOT INCUR BURDENSOME EXPENDITURES IN CONNECTION WITH AN OFFICIAL TRANSFER.

SECTION 913 OF THE FOREIGN SERVICE ACT OF 1946, 22 U.S.C. 1138, PROVIDES:

"THE SECRETARY MAY, NOTWITHSTANDING THE PROVISIONS OF ANY OTHER LAW, TRANSPORT FOR OR ON BEHALF OF AN OFFICER OR EMPLOYEE OF THE SERVICE, A PRIVATELY OWNED AUTOMOBILE IN ANY CASE WHERE HE SHALL DETERMINE THAT WATER, RAIL, OR AIR TRANSPORTATION OF THE AUTOMOBILE IS NECESSARY OR EXPEDIENT FOR ANY PART OR OF ALL THE DISTANCE BETWEEN POINTS OF ORIGIN AND DESTINATION.'

IN 180 FOREIGN SERVICE TRAVEL REGULATIONS 5.21 THE SECRETARY SPECIFIES THE REQUIREMENTS FOR A DETERMINATION THAT THE SHIPMENT IS NECESSARY OR EXPEDIENT.

SINCE THE CIRCUMSTANCES OF YOUR TRAVEL BETWEEN STANFORD AND WASHINGTON ARE NOT INCLUDED IN ANY OF THE SITUATIONS CONSIDERED IN 180 FSTR 5.21, AUTHORIZING AN EXPENSE TO THE GOVERNMENT FOR THE SHIPMENT OF THE VEHICLE, OUR VIEW IS THAT LEGALLY THE PROVISIONS OF PARAGRAPH 4.32 (C) MAY NOT BE CONSTRUED AS, IN FACT, A VALID DETERMINATION THAT YOUR TRAVEL BY PRIVATELY OWNED AUTOMOBILE WAS MORE ADVANTAGEOUS TO THE GOVERNMENT SO AS TO AUTHORIZE PAYMENT OF MILEAGE AND PER DIEM IN EXCESS OF THE COMPARATIVE COST OF TRAVEL BY COMMON CARRIER. PARAGRAPH 4.32 OF THE REGULATIONS RECOGNIZED THAT A DETERMINATION OF ADVANTAGE TO THE GOVERNMENT WAS NECESSARY (5 U.S.C. 837). THAT DETERMINATION UNDER SUBPARAGRAPH (C), HOWEVER, WAS BASED ON THE PROBABLE COST OF AN UNAUTHORIZED SHIPMENT OF AN AUTOMOBILE--- THE REQUIRED DETERMINATION THAT THE SHIPMENT BE "NECESSARY OR EXPEDIENT" BEING ABSENT. THE DEPARTMENT OF STATE, IN RECOGNITION OF THAT FACT, HAS DELETED 4.32 (C) FROM ITS REGULATIONS.

WHILE WE FULLY APPRECIATE YOUR POSITION IN THIS MATTER, OUR VIEW IS SINCE YOU WERE PAID CONSTRUCTIVE RAIL TRAVEL COSTS AND PER DIEM FOR YOURSELF AND WIFE FROM YOUR FORMER OFFICIAL DUTY STATION UPON TRANSFER TO WASHINGTON, YOU HAVE BEEN PAID ALL THE EXPENSES OF TRAVEL TO WHICH YOU LAWFULLY ARE ENTITLED.

THEREFORE, THE ADMINISTRATIVE DISALLOWANCE OF THE EXCESS TRAVEL COSTS CLAIMED ON THE TRAVEL VOUCHER IS SUSTAINED.