B-191681 L/M, APR 2, 1980

B-191681 L/M, APR 2, 1980

PRECIS-UNAVAILABLE

DOUGLAS E. CONGDON, COWLES & RINALDI, LTD.:

WE HAVE CAREFULLY REVIEWED THE MATERIALS SUBMITTED ON BEHALF OF COLONEL MARK H. MAGNUSSEN AS WELL AS THE OTHER MATERIALS IN THE FILE IN CONNECTION WITH A REQUEST FOR RECONSIDERATION OF OUR DECISION B-191681, NOVEMBER 21, 1978, DENYING COLONEL MAGNUSSEN'S CLAIM FOR REIMBURSEMENT FOR CERTAIN TRAVEL EXPENSES INCURRED WHILE ON TEMPORARY DUTY.

THE FACTS ARE SET FORTH IN DETAIL IN THE DECISION OF NOVEMBER 21, 1978. COLONEL MAGNUSSEN HAS NOW PRESENTED ADDITIONAL INFORMATION AND DOCUMENTATION INDICATING THAT THE REASONS FOR HIS RETURN BY COMMERCIAL AIRLINE FROM HIS TEMPORARY DUTY AT FORT BELVOIR WERE THE CRITICAL NATURE OF HIS DUTY ASSIGNMENT IN THE CANAL ZONE AND THE UNRELIABILITY OF GOVERNMENT TRANSPORTATION FOR RETURN TRAVEL TO THE CANAL ZONE.

THE BASIC RULES WHICH MUST BE APPLIED TO TRAVEL AND TRANSPORTATION ALLOWANCES FOR MEMBERS OF THE UNIFORMED SERVICES ARE CONTAINED IN 37 U.S.C. 404 (1976) AS IMPLEMENTED BY REGULATIONS FOUND IN CHAPTER 4, VOLUME 1, JOINT TRAVEL REGULATIONS (1 JTR). THE REGULATIONS GOVERNING ALLOWANCES FOR TRAVEL ON TEMPORARY DUTY OUTSIDE THE UNITED STATES ARE SET FORTH IN PART F, CHAPTER 4, 1 JTR. PARAGRAPH M4251 (CHANGE 267, MAY 1, 1975), 1 JTR, PROVIDES THAT TRANSPORTATION ALLOWANCES FOR TRANSOCEANIC TRAVEL PERFORMED AT MEMBER'S EXPENSE WILL BE AS PRESCRIBED IN PARAGRAPH M4159-5 (CHANGE 265, MARCH 1, 1975), 1 JTR. THAT PARAGRAPH PROVIDES IN PART:

"*** WHEN TRAVEL BY GOVERNMENT TRANSPORTATION IS AUTHORIZED (AS DISTINGUISHED FROM DIRECTED) AND THE MEMBER PERFORMS TRANSOCEANIC TRAVEL BY ANOTHER MODE OF TRANSPORTATION AT PERSONAL EXPENSE, THE MEMBER IS ENTITLED TO REIMBURSEMENT FOR THE COST OF THE TRANSPORTATION UTILIZED NOT TO EXCEED THE APPLICABLE TARIFF CHARGE WHICH THE SPONSORING SERVICE WOULD HAVE BEEN REQUIRED TO PAY FOR THE AVAILABLE GOVERNMENT TRANSPORTATION.

THE ORDERS INVOLVED IN COLONEL MAGNUSSEN'S TRAVEL WERE AMENDED RETROACTIVELY TWO TIMES AFTER THEY WERE ISSUED. AS ORDER-ISSUING OFFICER, COLONEL MAGNUSSEN SAYS THAT THE ORIGINAL ORDERS DID NOT CARRY OUT HIS INTENT TO PERMIT RETURN TRANSPORTATION BY COMMERCIAL MEANS AT GOVERNMENT EXPENSE. SINCE THE FIRST MODIFICATION OF THE ORDERS DID NOT PERMIT THAT RESULT THE ORDERS WERE AMENDED OVER A MONTH AFTER TRAVEL WAS PERFORMED IN AN ATTEMPT TO PERMIT PAYMENT BASED UPON COMMERCIAL AIR FARES.

AN INDIVIDUAL MAY BE PAID ON ONLY THE BASIS OF AUTHORITY CONTAINED IN VALID TRAVEL ORDERS AND TRAVEL ORDERS MAY BE RETROACTIVELY CHANGED TO INCREASE THE TRAVELER'S ENTITLEMENT ONLY WHEN THERE IS AN ERROR ON THE FACE OF THE ORDERS. HERE THE ORDERS AS ORIGINALLY WRITTEN APPEAR PROPER. IN FACT, IT IS NECESSARY TO RESORT TO A SPECIAL EXPLANATION OF THE CIRCUMSTANCES TO SHOW THAT COMMERCIAL TRAVEL FOR RETURN MIGHT HAVE BEEN APPROPRIATE. ACCORDINGLY, WE MUST PREDICATE ALLOWANCE OF THE CLAIM ON THE ORDERS WHICH EXISTED AT THE TIME TRAVEL WAS PERFORMED AND NOT UPON AMENDMENTS WHICH WERE MADE SOME TIME AFTER TRAVEL WAS COMPLETED.

IN THE CIRCUMSTANCES WE DO NOT FIND A BASIS FOR PAYING THE ADDED COST OF TRAVELING BY COMMERCIAL MEANS. THIS DETERMINATION IN NO WAY IMPUGNS THE INTEGRITY OF THE OFFICER INVOLVED. HOWEVER UNDER THE RULES APPLICABLE TO TRAVEL AT GOVERNMENT EXPENSE IT HAS NOT BEEN SHOWN THAT PAYMENT OF FUNDS FOR TRAVEL OTHER THAN BY GOVERNMENT MEANS WAS PROPERLY AUTHORIZED.

ACCORDINGLY OUR DECISION B-191681, NOVEMBER 21, 1978, IS SUSTAINED.